“The Judge-Advocate.—I think the common law of war will reach that case. This is a crime which has been committed in the midst of a great civil war, in the capital of the country, in the camp of the Commander-in-Chief of our armies, and if the common law of war cannot be enforced against criminals of that character, then I think such a code is in vain in the world.“Mr. Ewing.—Do you base it, then, only on the law of nations?“The Judge-Advocate.—The common law of war.“Mr. Ewing.—Is that all the answer to the question?“The Judge-Advocate.—It is the one I regard as perfectly appropriate to give.“Mr. Ewing.—I am as much in the dark now as to that as I was in reference to the other inquiry.”
“The Judge-Advocate.—I think the common law of war will reach that case. This is a crime which has been committed in the midst of a great civil war, in the capital of the country, in the camp of the Commander-in-Chief of our armies, and if the common law of war cannot be enforced against criminals of that character, then I think such a code is in vain in the world.
“Mr. Ewing.—Do you base it, then, only on the law of nations?
“The Judge-Advocate.—The common law of war.
“Mr. Ewing.—Is that all the answer to the question?
“The Judge-Advocate.—It is the one I regard as perfectly appropriate to give.
“Mr. Ewing.—I am as much in the dark now as to that as I was in reference to the other inquiry.”
It is significant that the ready Special Judge-Advocate rendered no aid to his colleague on the latter branch of the inquiry.
According to the theory of the prosecution, then, Mary E. Surratt was tried, as a co-conspirator of Jefferson Davis and seven of his agents, of the seven men tried with her, and of Booth and her own son, for the crime of “traitorous conspiracy” to murder the President, Vice-President, Secretary of State and Lieutenant-General, of the United States; and for the following crimes committed in pursuance thereof:
1. Assassination of the President, with Booth.
2. Attempt to murder the Secretary of State, his two sons and two attendants (five crimes instead of one), with Payne.
7. Lying in wait to kill the Vice-President, with Atzerodt.
8. Lying in wait to kill the Lieutenant-General, with O’Laughlin.
Eight separate species of crimes, beside the generic one of “traitorous conspiracy.” And she, a citizen, a non-combatant, a woman, was tried on this nine-fold, omnibus charge, jointly with seven men, under “the common law of war”!
On the 16th of June (Friday), Mr. Clampitt read the argument of Reverdy Johnson against the jurisdiction of the Commission—one of the most cogent and convincing ever delivered in a court of justice.
The Supreme Court of the United States, subsequently (December, 1866), in deciding the Milligan case, did but little more than reiterate the propositions maintained by this great lawyer.
He opened his address by reminding the Court that the question of their jurisdiction to try and sentence the accused was for the Court alone to decide, and that no mandate of the President, if in fact and in law the Constitution did not tolerate such tribunals in such cases, could protect any member of the Commission from the consequences of his illegal acts. He then advanced and proved the following propositions: that none but military offenses are subject to the jurisdiction of military courts, and that the offenders when they commit such offenses must be subject to military jurisdiction—in otherwords, must belong to the army or navy; that the President himself had no right to constitute military courts of his own motion, but that such power must first be exercised by Congress under the constitutional grant to that body to make rules for the government and regulation of the land and naval forces; that, by the fifth and sixth amendments of the constitution, every person, except those belonging to the land or naval forces or to the militia in active service in time of war, and, being such, committing a military or naval crime, is guaranteed an investigation by a grand jury as a preliminary to trial, and a speedy and public trial by an impartial jury. He then took up and examined the grounds on which the jurisdiction of the Commission was sought to be maintained. Calling the Court’s attention to the constitutional provision that, if the institution of such Commission was an incident to the war power, that power was lodged exclusively in Congress and not at all in the President, and, therefore, Congress only could authorize such tribunals, he showed that, neither by the articles of war nor by the two acts, relied on, passed during the Rebellion, had Congress ever authorized any such tribunal; and that a military commission like the present and under present circumstances “is not to be found sanctioned, or the most remotely recognized, or even alluded to, by any writer on military law in England or the United States, or in any legislation of either country.”
And, in this connection, he pronounced the suggestion that the civil courts and juries of the District of Columbia could not safely be relied upon for the trial of these cases, “an unjust reflection upon the judges, upon the people, upon the marshal, an appointee of the President, by whom the juries were summoned, and upon our civil institutions themselves;” and he closed his remarks upon this branch of his subject by saying that the foregoing suggestion,
“upon another ground, is equally without force. It rests on the idea that the guilty only are ever brought to trial; that the only object of the Constitution and laws in this regard is to afford the means to establish alleged guilt; that accusation, however made, is to be esteemedprima facieevidence of guilt, and that the Executive should be armed, without other restriction than his own discretion, with all the appliances deemed by him necessary to make the presumption from such evidence conclusive. Never was there a more dangerous theory. The peril to the citizen from a prosecution so conducted, as illustrated in all history, is so great that the very elementary principles of constitutional liberty, the spirit and letter of the Constitution itself repudiated it.”
After depicting the peril to the rights of the citizen of confiding to the option of the Executive the power of substituting a secret for a public tribunal for the trial of offenses, he established the following propositions: That the creation of a Court is an exclusively legislative function; that constitutional guarantees are designed for times of war as well as times of peace; that the power to suspend the writ of Habeas Corpus carries with it only the temporarysuspension of the right to inquire into the cause of the arrest, and does not extend in any way over the other rights of the accused. The distinguished advocate then further maintained that, conceding the articles of war provide for a military court like this, yet the offense charged in the present case being nothing less than treason could not under the provision of the constitution, regulating the trial of treason, be tried by a military commission; and, also, that under the articles of war persons who were not and never had been in the army were not subject to military law. And, in order to illustrate this branch of his argument as forcibly as possible, passing in review the guaranteed and historic rights of accused persons on trials before civil courts, he arrayed the open and flagrant violations of these rights which had been permitted by the Commission on the present trial: First, in the character of the pleadings, which for indefiniteness and duplicity would not have been tolerated by any civil tribunal. Second, as to the rules of evidence, which, according to the Judge-Advocate, allowed proof of separate and distinct offenses alleged to have been committed, not only by the parties on trial, but by other persons, and which the accused, however innocent, could not be supposed able to meet. Third, he quoted Lord Holt to show that in a civil court “these parties could not have been legally fettered during their trial.” Referring to the row of miserable beings weighed down with shackles as they had enteredthe court-room, as they confronted their epauletted judges, and as they departed to their solitary cells, day by day, for more than a month, he repeated the words of the great jurist, then 200 years old:
“Hearing the clanking of chains, though no complaint was made to him, he said, ‘I should like to know why the prisoner is brought in ironed. Let them be instantly knocked off. When prisoners are tried they should stand at their ease.’”
Then, characterizing the claim, that martial law prevailing in the District of Columbia therefore warranted the Commission, as alike indefensible and dangerous, and at the same time irrelevant because martial law had never been proclaimed and the civil courts were in the full and undisturbed exercise of all their functions, the counsel drove this point home as follows:
“We learn, and the fact is doubtless true, that one of the parties, the very chief of the alleged conspiracy, has been indicted, and is about to be tried before one of those courts. If he, the alleged head and front of the conspiracy, is to be and can be so tried, upon what ground of right, of fairness or of policy, can the parties who are charged to have been his mere instruments be deprived of the same mode of trial?”
At the close of his speech he recurs to the warning that the President’s command can furnish no justification to the members of the tribunal. If their function were only to act as aides to the President to enable him to discharge his prerogative of punishment, and is to that extent legal, then it is only sobecause the President might have dispensed with the Court altogether, and ordered the punishment of the culprits without any formal trial.
No, he warned them, in the most courtly and courteous manner, they could not shield themselves behind the President.
“Responsibility to personal danger can never alarm soldiers who have faced * * * death on the battle-field. But there is a responsibility that every gentleman, be he soldier or citizen, will constantly hold before him and make him ponder—responsibility to the constitution and laws of his country and an intelligent public opinion—and prevent his doing anything knowingly that can justly subject him to the censure of either. I have said that your responsibility is great. If the Commission under which you act is void and confers no authority, whatever you may do may involve the most serious personal liability.”
He then cited the case of Governor Wall, hung in London in 1802 for murder—a soldier, under his government in the island of Goree, having been whipped to death by sentence of a regimental court-martial, twenty years before.
“In that instance want of jurisdiction in the court-martial was held to be fatal to its judgment as a defense for the death that ensued under it. In this, if the Commission has no jurisdiction, its judgment for the same reason will be of no avail, either to Judges, Secretary of War, or President, if either shall be called to a responsibility for what may be done under it.”
The learned counsel then added:
“The opinion I have endeavored to maintain is believed to be the almost unanimous opinion of the profession and certainly is of every judge or court who has expressed any.”
And he cited the then recent charge of Judge Bond to the grand jury at Baltimore, in which the Judge declared in reference to such military commissions as the present, that,
“Such persons exercising such unlawful jurisdiction are liable to indictment by you as well as responsible in civil actions to the parties.”
And he quoted to the Court that portion of the charge of Judge Rufus W. Peckham to a grand jury in New York City, delivered during the progress of this very trial, wherein the right of a military commission to try was denied:
“A great crime has lately been committed that has shocked the civilized world. Every right-minded man desires the punishment of the criminals, but he desires that punishment to be administered according to law, and through the judicial tribunals of the country. No star-chamber court, no secret inquisition, in this nineteenth century, can ever be made acceptable to the American mind.********“Grave doubts, to say the least, exist in the minds of intelligent men, as to the constitutional right of the Military Commission at Washington to sit in judgment upon the prisoners now on trial for their lives before that tribunal. Thoughtful men feel aggrieved that such a commission should be established in this free country, when the war is over, and when the common law courts are open and accessible to administer justice according to law, without fear or favor. * * *“The unanimity with which the leading press of our land has condemned this mode of trial ought to be gratifying to every patriot.”
“A great crime has lately been committed that has shocked the civilized world. Every right-minded man desires the punishment of the criminals, but he desires that punishment to be administered according to law, and through the judicial tribunals of the country. No star-chamber court, no secret inquisition, in this nineteenth century, can ever be made acceptable to the American mind.
********
“Grave doubts, to say the least, exist in the minds of intelligent men, as to the constitutional right of the Military Commission at Washington to sit in judgment upon the prisoners now on trial for their lives before that tribunal. Thoughtful men feel aggrieved that such a commission should be established in this free country, when the war is over, and when the common law courts are open and accessible to administer justice according to law, without fear or favor. * * *
“The unanimity with which the leading press of our land has condemned this mode of trial ought to be gratifying to every patriot.”
On the twenty-third, General Ewing, too, assailed the jurisdiction of the Court in a short but powerful speech from which are taken the following extracts:
“The jurisdiction of the Commission has to be soughtdehorsthe Constitution, and against its express prohibition. It is, therefore, at least of doubtful validity. If that jurisdiction do not exist; if the doubt be resolved against it by our judicial tribunals, when the law shall again speak, the form of trial by this unauthorized Commission cannot be pleaded in justification of the seizure of property or the arrest of persons, much less the infliction of the death penalty. In that event, however fully the recorded evidence may sustain your findings, however moderate may seem your sentences, however favorable to the accused your rulings on the evidence, your sentence will be held in law no better than the rulings of Judge Lynch’s courts in the administration of lynch law.“Our judicial tribunals, at some future day * * * will be again in the full exercise of their constitutional powers, and may think, as a large proportion of the legal profession think now, that your jurisdiction in these cases is an unwarranted assumption; and they may treat the judgment which you pronounce and the sentence you cause to be executed, as your own unauthorized acts.“Conviction may be easier and more certain in this Military Commission, than in our constitutional courts. Inexperienced as most of you are in judicial investigation, you can admit evidence which the courts would reject, and reject what they would admit, and you may convict and sentence on evidence which those courts would hold to be wholly insufficient. Means, too, may be resorted to by detectives, acting under promise or hope of reward, and operating on the fears or the cupidity of witnesses, to obtain and introduce evidence, which cannot be detected and exposed in this military trial, but could be readily in the free, but guarded, course of investigation before our regular judicial tribunals. The Judge-Advocate, with whom chiefly rests the fate of these citizens, is learned in the law,but from his position he can not be an impartial judge, unless he be more than a man. He is the prosecutor in the most extended sense of the word. As in duty bound, before this court was called, he received the reports of detectives, pre-examined the witnesses, prepared and officially signed the charges, and, as principal counsel for the Government, controlled on the trial the presentation, admission and rejection of evidence. In our courts of law, a lawyer who has heard his client’s story, if transferred from the bar to the bench, may not sit in the trial of the cause, lest the ermine be sullied through the partiality of counsel. This is no mere theoretical objection—for the union of prosecutor and judge works practical injustice to the accused. The Judge-Advocate controls the admission and rejection of evidence—knows what will aid and what will injure the case of the prosecution, and inclines favorably to the one and unfavorably to the other. The defense is met with a bias of feeling and opinion on the part of the judge who controls the proceedings of the Court, and on whom, in great measure, the fate of the accused depends, which morals and law alike reject.”
“The jurisdiction of the Commission has to be soughtdehorsthe Constitution, and against its express prohibition. It is, therefore, at least of doubtful validity. If that jurisdiction do not exist; if the doubt be resolved against it by our judicial tribunals, when the law shall again speak, the form of trial by this unauthorized Commission cannot be pleaded in justification of the seizure of property or the arrest of persons, much less the infliction of the death penalty. In that event, however fully the recorded evidence may sustain your findings, however moderate may seem your sentences, however favorable to the accused your rulings on the evidence, your sentence will be held in law no better than the rulings of Judge Lynch’s courts in the administration of lynch law.
“Our judicial tribunals, at some future day * * * will be again in the full exercise of their constitutional powers, and may think, as a large proportion of the legal profession think now, that your jurisdiction in these cases is an unwarranted assumption; and they may treat the judgment which you pronounce and the sentence you cause to be executed, as your own unauthorized acts.
“Conviction may be easier and more certain in this Military Commission, than in our constitutional courts. Inexperienced as most of you are in judicial investigation, you can admit evidence which the courts would reject, and reject what they would admit, and you may convict and sentence on evidence which those courts would hold to be wholly insufficient. Means, too, may be resorted to by detectives, acting under promise or hope of reward, and operating on the fears or the cupidity of witnesses, to obtain and introduce evidence, which cannot be detected and exposed in this military trial, but could be readily in the free, but guarded, course of investigation before our regular judicial tribunals. The Judge-Advocate, with whom chiefly rests the fate of these citizens, is learned in the law,but from his position he can not be an impartial judge, unless he be more than a man. He is the prosecutor in the most extended sense of the word. As in duty bound, before this court was called, he received the reports of detectives, pre-examined the witnesses, prepared and officially signed the charges, and, as principal counsel for the Government, controlled on the trial the presentation, admission and rejection of evidence. In our courts of law, a lawyer who has heard his client’s story, if transferred from the bar to the bench, may not sit in the trial of the cause, lest the ermine be sullied through the partiality of counsel. This is no mere theoretical objection—for the union of prosecutor and judge works practical injustice to the accused. The Judge-Advocate controls the admission and rejection of evidence—knows what will aid and what will injure the case of the prosecution, and inclines favorably to the one and unfavorably to the other. The defense is met with a bias of feeling and opinion on the part of the judge who controls the proceedings of the Court, and on whom, in great measure, the fate of the accused depends, which morals and law alike reject.”
Whatsoever else may be pleaded in excuse or palliation of the acts of the Commission, it can never be said that its members were driven on by an overpowering sense of their duty as soldiers, in blind ignorance of the Constitution and the law. Each and every officer was made fully aware of his awful responsibility and apprised of the precarious footing of his authority.
Charge of Judge Bingham.
Fromthe sixteenth to the twenty-seventh of June the time was consumed by the summing up of the several counsel for the prisoners on the facts disclosed by the evidence; and on the last mentioned day and the succeeding one, Special Judge-Advocate Bingham delivered his address in answer to all the foregoing pleas, both as to the jurisdiction of the Court and also as to the merits of the case.
This long, carefully prepared and yet impassioned speech may be fairly considered as embodying the very proof-charge of the prosecution. Indeed, under the rules of military procedure, it occupies the place and performs the functions of the judge’s charge in the common-law courts. As such, it deserves a closer analysis and a more extended examination than can be given to it here. The briefest and most cursory review, however, will suffice to show its tone and temper.
After a solemn asseveration of his desire to be just to the accused, and a warning to the Court that “a wrongful and illegal conviction or a wrongful and illegal acquittal * * * would impair somewhat thesecurity of every man’s life and shake the stability of the Republic,” the learned advocate specifically declares, that the charge “is not simply the crime of murdering a human being” but a “combination of atrocities,” committed as charged upon the record, “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, George N. Sanders and others, with intent thereby to aid the existing rebellion and subvert the constitution and laws of the United States.”
A denunciation of the Rebellion as “itself simply a criminal conspiracy and a gigantic assassination”; the following glowing period—“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 what they in vain attempt by wager of battle”;—and the unequivocal announcement that “it is for this secret conspiracy in the interest of the rebellion, formed at the instigation of the chief 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”: finish the exordium.
The speaker then tackles the question of jurisdiction, which, he remarks by the way, “as the Court has already overruled the plea,” he would pass overin silence, “but for the fact that a grave and elaborate argument has been made by the counsel for the accused, not only to show 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.”
He dexterously evades the force of the argument that the civil courts of the District were open when the crime was committed, by asserting that “they were only open * * * and are only open at this hour by force of the bayonet;” and he claims that the President acting by a military force had as much right to try the co-conspirators of Booth, as to pursue, capture and kill the chief criminal himself; which, if true, leads us into the maintenance of the monstrous doctrine that the President by a summary order might have strung up the culprits without the interposition of any court. He then enters upon an argument to show that the Commission, from the very nature of its organization, cannot decide that it is no Court, and he ridicules the idea that these nine subordinate military officers could question the authority of their Commander-in-Chief.
In this connection, he gently rebukes Mr. Ewing for his bold statement to the Commission: “You, gentlemen, are no court under the Constitution!” reminding him that “not many months since he was a general in the service of the country and as such in his department in the West proclaimed and enforced martial law;” and asks him whether he is“quite sure he will not have to answer for more of these alleged violations of the rights of citizens than any of the members of the Court?”
He professes his high regard for General Ewing as a military commander who has made a “liberal exercise of this power,” and facetiously wishes “to know whether he proposes, by his proclamation of the personal responsibility awaiting all such usurptions,” that he himself shall be “drawn and quartered.”
After disposing of General Ewing in this gingerly manner, he compensates himself for the slight restraint by pouring the vials of his unstinted wrath upon Reverdy Johnson; representing him as “denouncing the murdered President and his successor,” as making “a political harangue, a partisan speech against his government and country, thereby swelling the cry of the armed legions of sedition and rebellion that but yesterday shook the heavens.” He characterizes one of the most temperate and dignified of arguments as “a plea in behalf of an expiring and shattered rebellion,” and “a fit subject for public condemnation.”
He calls upon the people to 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 $25,000, rushes into the lists to champion the cause of the rebellion, its aiders and abettors, byfollowing to the letter his colleague [Mr. Johnson], and with greater plainness of speech, and a fervor intensified doubtless by the $25,000 received, and the hope of more, denounces the Court as a usurpation and threatens the members with the consequences.”
And he interrupts his tirade against one of the greatest men this country has produced to burst forth into the following grandiloquent apostrophe:
“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!”
After a brief defense of the secret sessions of the Commission, the learned advocate enters upon his circumstantial reply to the argument of Mr. Johnson, into which it is not worth while to follow him, as the main points of his contention have been rendered obsolete by the Supreme Court of the United States.
Suffice it to say, he holds that the President of the United States has the power, of his own motion, to declare martial law in time of war, over the whole United States, whether the States are within the theatre of the war or not; and that President Lincoln exercised this power by his proclamation of September, 1862, by virtue of which martial law prevailed over the whole North, including, of course, the District of Columbia, on the day of the assassination; and, farther, that certain subsequent actsof Congress, though not in express terms yet by fair implication, had ratified the proclamation.
He contends, in consequence, that “nothing can be clearer than that citizen and soldier alike, in time of civil or foreign war, are triable by military tribunals for all offences of which they may be guilty, in the interest of, or in concert with the enemy;” and that “these provisions, therefore, of your Constitution for indictment and trial by jury in civil courts ofall crimesare * * * silent and inoperative in time of war when the public safety requires it.”
Listen to this judicial expounder of constitutional law!
“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.“It is in evidence that Davis, Thompson, and others * * * 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 habitation of the people and in the ships in your harbor inflammable materials, and thereby destroy them by fire; to murder by the slow and consuming torture of famine your soldiers, captives 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.“I claim that the Constitution itself * * * by express terms, has declared 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 the time of civil war no person shall be deprived of life, liberty and property, without dueprocess of law? This is a provision of your Constitution, than which there is none more just and sacred in it; it is, however, only the law of peace, not of war.“In time of war the civil tribunals of justice are wholly or partially silent, as the public safety may require; * * * the limitations and provisions of the Constitution in favor of life, liberty and property are therefore wholly or partially suspended.”
“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.
“It is in evidence that Davis, Thompson, and others * * * 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 habitation of the people and in the ships in your harbor inflammable materials, and thereby destroy them by fire; to murder by the slow and consuming torture of famine your soldiers, captives 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.
“I claim that the Constitution itself * * * by express terms, has declared 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 the time of civil war no person shall be deprived of life, liberty and property, without dueprocess of law? This is a provision of your Constitution, than which there is none more just and sacred in it; it is, however, only the law of peace, not of war.
“In time of war the civil tribunals of justice are wholly or partially silent, as the public safety may require; * * * the limitations and provisions of the Constitution in favor of life, liberty and property are therefore wholly or partially suspended.”
He makes allusion to the recent re-election of President Lincoln, as ratifying any doubtful exercise of power by him:
“The voice of the people, thus solemnly proclaimed, by the omnipotence of the ballot * * * ought to be accepted, and will be accepted, I trust, by all just men, as the voice of God.”
He concludes his plea in favor of the jurisdiction of the Commission, by declaring that for what he had uttered in its favor “he will neither ask pardon nor offer apology,” and by quoting Lord Brougham’s speech in defence of a bill before the House of Lords empowering the Viceroy of Ireland to apprehend and detain all Irishmensuspectof conspiracy.
The Special Judge-Advocate then proceeds to sum up the evidence, in doing which he leaves nothing to the free agency of the Court. He, first, by a review of the testimony of the Montgomeries and Conovers, proves to his own and, presumably, to the Court’s satisfaction, that “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, Wm. H. Seward and Ulysses S. Grant.”
“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.“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.”
“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.
“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.”
After such utterances as these, it is hardly necessary to state that this impartial Judge declares every single person on trial, as well as John H. Surratt, guilty beyond the shadow of a doubt.
“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.“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.”
“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.
“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.”
He lets out the secret that the mother is on trial as a substitute for her son, whom the Secretary of War and the Bureau of Military Justice had failed to capture, by saying:
“Nothing but his conscious coward guilt could possibly induce him to absent himself from his mother, as he does, upon her trial.”
After having reiterated over and over again, with all the authority of his office, what he had for hours endeavoured to enforce by all the resources of his intellect, that the guilt “of all these parties, both present and absent” is proved “beyond any doubt whatever,” and “is no longer an open question;” he closes by formally, and with a very cheap show of magnanimity, leaving “the decision of this dread issue” to the Court.
The Verdict, Sentence and Petition.
Withthe loud and repeated denunciations of this elaborate and vindictive harangue, full as it was of rhetorical appeals to the members of the Commission to avenge the murder of “their beloved Commander-in-Chief,” and of repeated and most emphatic assurances of the undoubted guilt of each and every one of the prisoners, as well as of all their alleged accomplices, still ringing in the ear of the Court; the room is for the last time cleared of spectators, counsel for the prisoners and reporters; the mournful procession of the accused marches for the last time from the dock to their solitary cells, their fetters clanking as they go; and the Commission meets to deliberate upon its verdict. But who remains in the room, meets with the Court and participates in its secret and solemn deliberations? Who but Colonel Burnett, the officer who had so zealously conducted the preliminary examinations of the witnesses and marshalled the evidence for the prosecution? Who but Recorder Joseph Holt, the head of the Bureau of Military Justice, the left hand of Stanton as Baker was his right? Who but JohnA. Bingham, the Special Judge-Advocate, who had so mercilessly conducted the trial, assailing counsel, browbeating witnesses for the defense, declaring that all participants in the rebellion were virtually guilty of the assassination, and who had just closed his long speech, in which he had done his utmost to stir up the Commission to the highest pitch of loyalty, unreasoning passion and insatiable desire for vengeance?
Where can we look in the history of the world for a parallel to such a spectacle? A woman of refinement and education, thrown together in one mass with seven men, to be tried by nine soldiers, for the crime of conspiring with Jefferson Davis, the arch-enemy of every member of the tribunal, to kill, and killing, the beloved Commander-in-Chief of every member of the tribunal; three experienced criminal lawyers eagerly engaging in the task of proving her guilty; pursuing it for days and weeks with the unrelenting vigor of sleuth-hounds; winding up by reiterating in the most solemn manner their overwhelming conviction of her guilt; and then all three being closeted with the Court to take part in making up the doom of death!
And here let us pause to consider one feature of the trial and of the summing up of Judge Bingham, which has not yet been noticed because it deserves special and prominent remark.
It appeared from the testimony on the part of the prosecution, unmistakably, that, during the fall of 1864 and the winter of 1864-5, Booth was broodingover a wild plot for the capture of the President (either on one of his drives, or in the theatre, where the lights were to be turned off), then hurrying off the captive to lower Maryland, thence across the Potomac, and thence to Richmond; thereby to force an exchange of prisoners, if not, possibly, a cessation of the war. It was a plot of the kind to emanate from the disordered brain of a young, spoiled, dissipated and disappointed actor. During this period, Booth made some trifling and miserably inadequate preparations, and endeavored to enlist some of his associates in its execution; and, by his personal ascendency over them, he did in fact entangle, in a more or less vague adhesion to the plot, Arnold, O’Laughlin, Atzerodt, Payne, Herold, John H. Surratt, Lloyd, and, possibly, Dr. Mudd and Weichman.
On the fall of Richmond, and the surrender of Lee, this any-how impracticable scheme was necessarily abandoned. Indeed, the proof showed that Arnold and O’Laughlin had deserted their leader some time before.
It further appeared in the testimony that it was not until after the forced abandonment of this plot and the desertion of most of his adherents, that Booth, plunged as he was into the depths of chagrin and despair because of the collapse of the rebellion, suddenly, as a mere after-thought, the offspring of a spirit of impotent revenge, seized upon the idea of murder, which was not in fact brought to thebirth until the afternoon of the fourteenth, when he was first informed of the promised attendance of President Lincoln and General Grant at the theatre. Now, the existence of the plot to capture, although it looked forth from the evidence steadily into their faces, the Judge-Advocates bound themselves not to recognize. In the first place, such a concession would forever demolish the preconceived theory of the Secretary of War, Colonel Baker and the Bureau of Military Justice, that the conspiracy to murder emanated from the Confederate Government through its Canadian agents, by pointing directly to another plot than the one to kill as that in which these agents had been interested. The horrid monster of a widespread, treasonable conspiracy to overthrow the government, which had been conjured up in the imagination of the Secretary of War and then cherished in the secret recesses of the Bureau of Military Justice, would have immediately shrunk into the comparatively simple case of an assassination of the President and an attempted assassination of the Secretary of State, by two worthless villains suddenly seizing opportunity by the forelock to accomplish their murderous purpose. And, in the next place, the concession of such a plot as a fact would go far to establish the innocence of Mrs. Surratt, Arnold, O’Laughlin and Mudd, as well as that of John H. Surratt, by explaining such suspicious circumstances as the frequent rendezvous of Booth, Payne and others at Mrs. Surratt’s house, which practice, as itwas proved, ceased altogether on the fall of Richmond and the immediate departure of the son to Canada. To the Judge-Advocates, if not to the Court, any evidence looking towards innocence was most distasteful and unwelcome. They were in no mood to reconcile what they considered the damning proofs of a conspiracy to kill their “beloved Commander-in-Chief” with the innocence of the fettered culprits before them, by admitting a plot to capture, into which nevertheless those same proofs fitted with surprising consistency. Besides, in the eyes of Bingham and Holt, complicity in a plot to capture, although unexecuted, was proof of complicity in the plot to murder, and also of itself deserved death. In this direction, therefore, the Judge-Advocates were mole-eyed. On the contrary, they hailed the slightest indication of guilt with a glow of triumph. In the direction of guilt, they were lynx-eyed.
Consequently, they bent every energy to identify the plot to capture with the plot to kill. They introduced anonymous letters, dropped letters; a letter mailed nearly a month after the assassination directed to J. W. B.; a letter in cipher, purporting to be dated the day after the assassination, addressed to John W. Wise, signed “No Five,” found floating in the water at Morehead City, North Carolina, as late as the first of May; this last, the most flagrant violation and cynical disregard of the law of evidence on record.
They did more. They labored to keep out all reference to the plot to capture. And it was for this reason, that the Judge-Advocates deliberately suppressed the diary found on the body of Booth. Its contents demonstrated the existence of the plot to capture.
Instead of allowing the officer who testified to the articles taken from the dead body of Booth to make a detailed statement in response to one general question as to what they were, the examining counsel shows him first the knife, then the pistols, then the belt and holster, then a file with a cork at one end, then a spur, then the carbine, then the bills of exchange, then the pocket-compass; following the exhibition of every article with the interrogatory, “Did you take this from the corpse of the actor?” But no diary was exhibited or even spoken of, although, as has been mentioned, it was carried by this same officer and Colonel Baker to Secretary Stanton on the night following the capture. That these Judge-Advocates had carefully searched through the diary for items they could use against the prisoners, is shown by their calling one of the proprietors of the “National Intelligencer,” as a witness, to contradict the statement that Booth had left a written article, setting forth the reasons for his crime, for publication in that paper—a statement found only in the diary whose very existence they kept secret.
Therefore, when Judge Bingham came to review the evidence, he utterly refused to recognize in thetestimony any such thing as a plot to capture; he shut his eyes to it and obstinately ignored it; he scornfully swept it aside as an absurdity it would be waste of time to combat; and he twisted every circumstance which looked to a connection, however remote, with an abandoned plot to kidnap, into a proof, solid and substantial, of complicity in the plot to murder.
And, therefore, when this same thorough-going advocate, with his two emulous associates, proceeded in secret conclave with the members of the Commission to go over the testimony for the purpose of making up their verdict and sentence, he summarily stifled any hint as to the possibility of a plot to capture; he banished from the minds of the Court, if they ever entertained such a purpose, any attempt to reconcile the circumstantial evidence with the existence of such a plot; and, besides, he held it up to the condemnation of those military men as equally heinous and as deserving the same punishment as the actual assassination.
Thus, the presence of these prosecutors during the deliberations of the Court must have exerted a deadly influence (if any influence were necessary) against the prisoners, and benumbed any impartiality and freedom of judgment which might otherwise have lodged in the members of the Commission.
The Commission, with its three attending prosecuting officers, held two secret sessions—Thursday and Friday, the 29th and 30th of June; on the firstday from 10 o’clock in the morning until 6 o’clock in the evening, on the second day, probably, during the morning only. The record of the proceedings is meagre, but contains enough to show the lines of the discussion which, in such an unexpected manner through one whole day, prolonged the deliberations of a tribunal organized solely to obey the predetermination of a higher power, and even made necessary an adjournment over night.
There was no difficulty with the verdicts, except in the case of Spangler, over the degree of whose guilt a majority of the Commission presumed for the first time to differ with the Judge-Advocates. They would unite in a conviction of the crime of assisting Booth to escape from the theatre with knowledge of the assassination, but they would go no farther. They would not find him a participant in the “traitorous conspiracy.” This poor fellow, as we can seenow, was clearly innocent of the main charge; but that was no reason,then, why the Commission should find him so. There was more testimony pointing to his complicity with Booth on the fatal night than there was against Arnold or O’Laughlin or even Mrs. Surratt; and Judge Bingham, the guardian and guide of the Court, had pronounced it “Conclusive and brief.” The testimony of the defense, however, appears overwhelmingly convincing, and, moreover, his case was admirably managed by General Ewing.
For all the rest there was no mercy in the verdict. Every one was found guilty of the charge as formulated (eliminating Spangler); that is, in the judgment of the Commission, they had, each and all, been engaged in a treasonable conspiracy with Jefferson Davis, John H. Surratt, John Wilkes Booth and the others named, to kill Abraham Lincoln, President, Andrew Johnson, Vice-President, Wm. H. Seward, Secretary of State, U. S. Grant, Lieutenant-General; and that in pursuance of such conspiracy they (the prisoners) together with John H. Surratt and J. Wilkes Booth, had murdered Abraham Lincoln, assaulted with intent to kill W. H. Seward, and lain in wait with intent to kill Andrew Johnson and U. S. Grant.
This was the deliberate judgment of the Commission as guided by Judge-Advocates Holt, Burnett and Bingham. With the same breath with which they pronounced the guilt of Mrs. Surratt, they pronounced also the guilt of her son, of Jefferson Davis, of Clement C. Clay, of George H. Sanders, of Beverly Tucker. And there can be no doubt that if these men had also been upon trial, they all would have been visited with the same condemnation and would have met the same doom.
The Commission, further, found Herold, Atzerodt, Payne and Arnold guilty of the Specification as formulated (eliminating Spangler); Mrs. Surratt guilty, except that she had not harbored and concealed Arnold or O’Laughlin; Dr. Mudd guilty,except that he had not harbored or concealed Payne, John H. Surratt, O’Laughlin, Atzerodt or Mrs. Surratt; and, strangest of all, they found O’Laughlin guilty of the Specification,except that he had not lain in wait for General Grant with intent to kill him, which was the very part in the conspiracy he was charged in the Specification with having undertaken. It should be recollected that, in the first moments of the panic succeeding the assassination, Stanton and his subordinates had included among the objects of the conspiracy, as if to complete its symmetry, the murder of the Secretary of War, himself. Afterwards, probably because of the attitude of Stanton relative to the prosecution, Grant was substituted as the victim of O’Laughlin and not of Booth; Stanton’s son having discovered a resemblance of the captured O’Laughlin to the mysterious visitor at his father’s house during the serenade on the night of the 13th of April, when General Grant was also present. This pretty romance, the testimony on behalf of O’Laughlin effectually dissipated on the trial, but the indomitable Bingham still insisted on holding the prisoner to a general complicity with the plot. In this instance, as well as in that of Spangler, there may have been some dissension between a majority of the officers and the Judge-Advocates, but, taken altogether, the eight verdicts could not have cost the Commission much time. It was organized to convict, and it did convict.
So that it was not until the Court, having made up its verdicts, proceeded to affix its sentences, that the three advocates, still assisting at the work of death, encountered the unforeseen difficulties which compelled a prolongation of the session. The crime or crimes of which the prisoners were all pronounced guilty (with the possible exception of Spangler’s) were capital, and the Secretary of War, on the eve of the assembling of the Commission, had already denounced against such offenses (not excepting Spangler’s) the punishment of death.
The sentence, however, under the rules governing military commissions, was wholly within the power of the Court, which, no matter what the nature of the verdict, could affix any punishment it saw fit, from a short imprisonment up to the gallows. Its two-fold function was, like a jury to find a verdict, not only, but, like the judge in a common-law court, to pronounce sentence; and, unlike such a judge, in pronouncing sentence, the Commission was confined within certain limits by no statute. Although the whole proceedings of the Court must be subjected to the final approval of the President, yet its members were clothed alike with the full prerogative of justice and the full prerogative of clemency. There was one limit, however. While a majority could find the verdict and prescribe every other punishment, it required two-thirds of the Commission to inflict the penalty of death. Four officers, therefore, could block the way to the scaffold, and five couldmitigate any sentence, to any degree, and for any, or for no reason.
The Commission must have taken up the cases for sentence in the order adopted in the formal Charge. As to the first three—Herold, Atzerodt and Payne—there could have been no dissent or hesitation. The Commission, with hardly a moment’s deliberation, must have ratified the judgment of the Judge-Advocates and condemned the prisoners to be hung by the neck until dead. The sentences of death formally declare in every instance that two-thirds of the Commission concur therein, but, as to these three, we can scarcely be in error in stating the Court was unanimous. It was not until the cases of the next three—O’Laughlin, Spangler and Arnold—were reached, that symptoms of dissatisfaction with the sweeping doom of death, so confidently pronounced by Judge Bingham in his charge, first began to show themselves amongst the members of the Court. It seems that now, after having joined with the counsel in pronouncing capital punishment upon the three most prominent culprits, the majority could no longer whet their appetite for blood so as to keep it up to the same fierce edge as that of the Judge-Advocates.
The deviations from the Charge and Specification, the Court had finally prescribed in the verdicts against O’Laughlin and Spangler, were not thought by the prosecutors to be of such importance as to warrant a softening of the sentence. But here theloyalty of some members of the Commission began to falter, and refuse to bear the strain. They had found O’Laughlin guilty of the “traitorous conspiracy,” and Spangler guilty of aiding Booth to escape, and Arnold guilty in the same degree as Herold, Atzerodt and Payne, but in none of these cases could the attending advocates extort a two-thirds vote for death. In the case of Spangler, owing, it is said, to the impression made by General Ewing and the influence of General Wallace, they were compelled to allow a sentence of but six years imprisonment. And in the case of the two others—convicted co-conspirators with Booth and Davis though they were—these prosecuting officers had to rest satisfied with but life-long imprisonment.
It was too evident that five members of the Commission had slipped the bloody rein. Three lives had they taken. Henceforth they would stop just this side the grave.
At this point—when the Commission had sentenced to death three men and had just declined to sentence to death two more whom it had pronounced guilty of the same crime—at this point it was, that the sentence of Mary E. Surratt came up for determination.
Now, the crimes of which Arnold had been found guilty were both in law and in fact the same of which she had been found guilty. Even the particular allegation in the Specification is the same in bothcases, except some immaterial variance in the verbiage and in the names of co-conspirators.
Of course, it will be presumed that the Commission had found the woman guilty without being pressed. But, equally of course, it will not be doubted that, in determining the sentence which should follow the verdict, the question of exercising the same mercy as the Commission had just exercised in the case of a man convicted of the same crime, must have arisen in the case of the woman. And, the question once having arisen, the first impulse of the majority, if inclined still to mercy, must have been to exert their own unquestioned function, and, as in the other cases, mitigate the sentence themselves. They would have, originally, no motive to thrust upon the President, who was to know comparatively nothing of the evidence, the responsibility of doing that thing, which they themselves who had heard the whole case thought ought to be done, and which in a parallel case they had just done. Even if they believed the woman’s crime had a deeper tinge of iniquity than either Arnold’s or Mudd’s (of which the respective verdicts, however, give no hint), but that nevertheless her age and sex ought to save her from the scaffold, they need not have turned to the President for mercy on such a ground. The woman clothed upon by her age and sex had sat for weeks bodily before them. This very mitigation was what a majority of the Court had power to administer. The reason of the mitigation was amatter of no moment. The Court could commute for “age and sex” as well as the President, and, for that matter, could state the reason for the milder penalty in the sentence itself.
Therefore, it may be taken for granted that here the Judge-Advocates again found that two-thirds of the Court would not concur in the infliction of the death penalty. Nay, that even a majority could not be obtained. Five out of the nine officers announced themselves in favor of imprisonment for life.
Here, indeed, was a coil! The prosecutors were at their wits’ ends. And lo! when they passed on to consider the last case, that of Dr. Mudd, the same incomprehensible reluctance to shed more blood did but add to their discomfiture. The verdict indeed had been easily obtainable, but the coveted death-sentence would not follow. The whole day had been spent in these debatings. The expedient of adjourning over to the next day, perhaps, was now tried; and the dismayed Judge-Advocates, with but three out of the eight heads they had made so sure of, and their “female fiend” likely to slip the halter, hurry away to consult with their Chief.
Edwin M. Stanton, as he had presided over the whole preparatory process, so too had kept watch over the daily progress of the trial from afar. Every evening his zealous aide-de-camps made report for the day and took their orders for the morrow.
After the death of Booth and the escape of John H. Surratt, the condemnation to death of themother of the fugitive had become his one supreme aim.
The condemnation of the other prisoners was to him either a matter of no doubt or was a minor affair. Three heads of the band of assassins stood out in bloody prominence—Booth, John H. Surratt and Payne. The first had been snatched from his clutches by a death too easy. Payne, with hand-cuffs and fetters and chains and ball and hood, he might be confident, could not evade his proper doom. Surratt, by the aid of some inscrutable, malignant power, had contrived to baffle all the efforts of his widespread and mighty machinery of military and detective police. But he had the mother, the friend of Booth and the entertainer of Payne; and she, the relentless Secretary with his accordant lackeys had sworn, should not fail to suffer in default of the self-surrender of her son. She, moreover, was to be made an example and a warning to the women of the South, who, in the judgment of these three patterns of heroism, had “unsexed” themselves by cherishing and cheering fathers, brothers, husbands and sons on the tented field.
In the conclave which Stanton and his two co-adjutors held, either during the recesses of the prolonged session of the first day, or most likely during the night of the adjournment, it was resolved, that if the manly reluctance of five soldiers to doom a woman to the scaffold could be overcome in no other way, to employ as a last resort the “suggestion,”that the Court formally condemn her to death, and then, as a compromise, the soft-hearted five petition the President to commute—the three plotters trusting to the chances of the future, with the petition in their custody and the President under their dominion, to render ineffectual this forced concession to what they scorned as a weak sentimentalism. This suggestion of what was in truth a most extraordinary device—a petition to the President to do what the Court could do itself—could not have emanated from the merciful majority of the Court, which subsequently did sign the fatal document.They, at least, were sincere, and, if let alone, would have proceeded immediately to embody their own clemency in a formal sentence, as they had done with O’Laughlin and Arnold, and as they were about to do with Mudd. Had there been but one, or two, or three dissentients, so that they were powerless in the face of two-thirds of the Commission; or even had there been four—a number sufficient to block a death-sentence but not sufficient to dictate the action of the Court, then, indeed, recourse to the clemency of the Executive might have been a natural proceeding. But a clear majority had no need to look elsewhere for a power of commutation which they themselves possessed in full vigor, and which, in all probability, after the first three death-penalties, they had determined to apply in every one of the other cases. Neither could the suggestion have been made by one of the minority, because none of them signedthe petition to the last. The four must have been steadfast and uncompromising for blood. The whole scheme proceeded from a quarter outside the Court—a quarter which, on the one hand, was possessed by an overmastering revengeful passion, such as was required to point the five officers to a seeming source of mercy to which they might appeal and thus avoid the exercise of their own prerogative in antagonism to their four brethren, and, on the other hand, harbored some secret knowledge or malign intent that the petition would or should be, in fact, an empty form; from a quarter, in short, where the desire for the condemnation to death of Mrs. Surratt was all-controlling and where the condition of the President was well known. They, who suggested the death-sentence and the petition as a substitute for the milder penalty, were surely all on the side of death, and hoped, if they did not believe, that the prayer of the petition would be of no avail; else they would not have adopted such a circuitous method to do what the five officers could immediately have accomplished themselves. In one word, the contrivers of the device of petition were not those who desired to save the bare life of the convicted she-conspirator, but were those who would be satisfied with nothing less than her death on the scaffold. The suggestion was wholly sinister and malevolent. On the other hand, the majority of the Court did really desire that her punishment should not exceed that of Arnold, O’Laughlin and Mudd, and theycertainly would never have had recourse to a petition to the President, had they not been cheated into believing that that method of proceeding was likely to effectuate what they had full power to do. Never would these five soldiers, or any two of them, have given their voices for the death of this woman, had they dreamed for a moment that their signing of the petition was, and was meant to be, but a farce. They would not have played such a ghastly trick under the shadow of the gibbet.
Accordingly, when the Commission reassembled, either after recess or adjournment, the reinvigorated counsellors immediately unfolded their plan. We can almost hear their voices, in that upper room of the Old Penitentiary, as they alternately urge on the Court. Holt, making a merit of yielding in the cases of Spangler, of O’Laughlin, of Arnold and of Mudd, denounces the universal disloyalty of the women of the South, and pleads the necessity of an example.
Bingham, holding up both mother and son as equally deep-dyed in blood with Booth and Payne, both insinuates and threatens at the same time, that, if “tenderness,” forsooth, is to be shown because of the age and sex of such a she-assassin, then, for the sake of the blood of their murdered Commander-in-Chief, do not his own soldiers show it, but let his successor take the fearful responsibility.
One of the five gives way, and now there is a majority for death. One more appeal! The life ofthe woman trembles in the balance. Once more to the breach! The supreme reserve is at last brought forward—an argument much in use with Judge-Advocates in cases of refractory courts-martial, as a last resort—that the President will not allow a hair of her head to be harmed, but thatterror,TERROR, is necessary; in this instance, to force the son to quit his hiding place, the life of the mother must be the bait held out to catch the unsurrendering son. We will hang him and then free the woman’s neck.
Another vote comes over. Two-thirds at last concur, and her doom is sealed. They sentence “Mary E. Surratt to be hanged by the neck until she be dead.” Judge Bingham sits down and embodies the memorable “suggestion” in writing as follows: