[It is without address.]“The undersigned, members of the Military Commission detailed to try Mary E. Surratt and others for the conspiracy and the murder of Abraham Lincoln, late President of the United States, &c., respectfully pray the President, in consideration of the sex and age of the said Mary E. Surratt, if he can, upon all the facts in the case, find it consistent with his sense of duty to the country, to commute the sentence of death, which the Court have been constrained to pronounce, to imprisonment in the penitentiary for life.Respectfully submitted.”
[It is without address.]
“The undersigned, members of the Military Commission detailed to try Mary E. Surratt and others for the conspiracy and the murder of Abraham Lincoln, late President of the United States, &c., respectfully pray the President, in consideration of the sex and age of the said Mary E. Surratt, if he can, upon all the facts in the case, find it consistent with his sense of duty to the country, to commute the sentence of death, which the Court have been constrained to pronounce, to imprisonment in the penitentiary for life.
Respectfully submitted.”
General Ekin copies it on a half-sheet of legal-cap paper, and the five officers, viz.: Generals Hunter, Kautz, Foster and Ekin, and Colonel Tompkins,sign the copy; General Ekin keeping the draft of Bingham as a memento of so gentle an executioner.
The Commission then proceeds to the next and last case, and, again exercising its prerogative of clemency, sentences Dr. Mudd to imprisonment for life. It is now Friday noon. The result of the two-days’ secret session, consisting of a succinct statement of the verdict and sentence in every case, in the foregoing order, is redacted into a record. The presiding officer signs, and the Recorder countersigns it. It is placed in the hands of the Judge-Advocate, together with the petition to the President. There is an adjournment without day. The members disperse, and the work of the Military Commission is over.
The Death Warrant and the Execution.
FromFriday afternoon, the thirtieth of June, through Saturday, Sunday, Monday and Tuesday, the first four days of July, the record of the findings and sentences remained under the seal of sworn secrecy in the custody of the Judge-Advocate-General. To consummate the work of the Commission, the signature of the President to a warrant approving its action and directing the execution of its judgment was necessary. But, during this interval, as it was given out from the White House, President Johnson was too ill to attend to public business. In the meantime, the city, and even the whole country to its very borders, were agitated by the question: What is to be the fate of Mrs. Surratt? The doom of the male culprits was for the moment forgotten in the intense anxiety over hers.
Despite the seven-fold seal of secrecy which covered the proceedings of the secret sessions, whispers of a recommendation of mercy filled the air. In the War Department, the main source of anxiety, at the same time, must have been this superfluouspaper—the distressing outcome of an unsuspected sentimental weakness in five of our chosen men. After the final adjournment of the Commission, the unobtrusive, unaddressed half-sheet had been fastened to the record of the sentences by the same narrow yellow silk ribbon which held its own sheets together, and to which it now dangled as a last leaf, or back. A safety-valve to the misplaced chivalry of the Court—it had served its purpose, and was henceforth useless. That it should now turn itself into an implement of evil, minister to the cause of rebellion and assassination, cause “Our Own Andy” to flinch at last and thus the she-fiend of the Bureau escape her doom! It would be treason to suffer it. Upon that resolve, the Triumvirate of Stanton, Holt and Bingham had once for all determined. Indestructible, inconcealable, omnipotent, indeed, must that paper be, which could thwart their united purpose.
At length, on the morning of Wednesday, the fifth, Preston King, who, in those days, was a favored guest at the White House, announced in the Judge-Advocate’s office that the President was so much better as to be able to sit up; and at a later hour in the day, General Holt, in pursuance of an appointment, started on his solemn errand. The volumes of testimony taken before the Commission by official stenographers, daily reports of which had been furnished, he, of course, did not carry with him. In the interview that was to come, therewould be no time and no inclination to read over bulky rolls of examinations and cross-examinations of witnesses. From aught that appears, the President was not expected to read over the evidence, nor was it customary in such cases. It may have been the duty of the Secretary of War or the Attorney-General to scrutinize the testimony, either from day to day or at the close of the trial. But all that the President was supposed to know about the merits of the case appears to have been derived from what any of his Cabinet saw fit to inform him, from what he himself casually and unofficially read, but, especially and principally, from what the Judge-Advocate was now coming to tell him. As to the guilt of the accused, and especially of Mrs. Surratt, his mind had long ago been made up for him by his imperious War Minister, from whose despotic sway he had not as yet recovered energy enough to free himself. He was still in that brief introductory period of his Presidency which may be called his Stanton Apprenticeship; still eager “to make treason odious;” full of threatenings to hang Davis and other Southern leaders. He had not yet awakened from the state of semi-stupefaction into which his sudden and awful elevation seems to have thrown him; and, in this state, he must have been extremely averse to dwelling on any of the circumstances of the assassination to which he owed his high place. The idea of clemency to any one of the band of assassins, male or female, which his War-Secretary’s courtmight convict, would have been intolerable to his imagination and sickening to his sense of security. What Andrew Johnson, at this moment, wanted was to push away from his mind all thoughts of the tragic end of his predecessor, and to allow retributive vengeance to take the most summary course with the least possible knowledge and trouble to himself. And this mood of the presidential mind was well known to the Judge-Advocate-General, as he entered the President’s room. He brought with him so much of the record of the proceedings of the Commission as was necessary to the accomplishment of his errand—viz.: the record of the findings and sentences, which the President was to endorse. This document consisted of a few sheets of legal-cap paper fastened together at the top, written on both sides in the fashion of legal papers,i. e., beginning at the top of the first page and, on reaching the bottom, turning up the paper and writing on the back from the bottom to top. It was a document complete in itself, the written record ending on the first page of the last half-sheet—thus leaving blank the remainder of that page and the whole of the obverse side; ample room for the death-warrant. To this record, but forming no part of it, the Petition, as we have said, had been affixed, but in such a manner as to be easily separable without mutilation. He must also have brought with him his official report of the trial—styled “The formal brief review of the case,” which was subsequently appended to the regularReport of the Judge-Advocate-General to the Secretary of War and transmitted to the Congress in December following—because it is addressed “To the President,” is dated “July 5, 1865,” and is signed “J. Holt.” It recites the verdicts and sentences; justifies its brevity by referring to “the full and exhaustive” argument of Judge Bingham; certifies to the regularity and fairness of the proceedings; and recommends the execution of the sentences;but it makes no mention of the Petition, or any “suggestion” of mercy.
The Judge-Advocate could have anticipated no difficulty in obtaining the approval of the President, conscious as he was that the grounds of such approval were to be furnished to the President by himself. The approval being had, the fixing of the day of execution could cause no disagreement. His only possible source of embarrassment was the petition for commutation. But it would be strange, indeed, if a few apt words could not further emasculate the mild, hypothetical language in which his colleague, Bingham, had seen fit to clothe that paper.
He found the President “alone,” and (as he himself says) “waiting for” him, “very pale, as if just recovered from a severe illness.”
“Without delay” he “proceeded to discharge the duty which brought” him “into his presence.” What took place at this “confidential interview” (as Holt calls it) can never be precisely known; the distinguished interlocutors having subsequently riseninto unappeasable quarrel over the presence or absence of the petition, and given contradictory versions. Whatever the truth may be, it is evident that everything went smoothly at the moment. The Judge-Advocate was not disappointed. No difficulty was encountered. What was done was done quickly and at once. The record may have been read over; but this was hardly necessary, as the bare mention of the several sentences would convey a correct summary of its contents. He may have read the “brief review of the case” he had prepared. As Judge Holt relates, he said to the President, “frankly, as it was his official duty to do,” that in his judgment “the proceedings of the Court were regular, and its findings and sentences justified by the evidence, and that the sentences should be enforced.” And this was what he had written in his “Brief Review.” What more could the successor of the murdered Lincoln want? His approval must have been spontaneous and immediate. As Holt says, “at that time Mr. Johnson needed no urging.” Mention may have been made of the curious weakness infecting some members of “our Court” towards the wicked woman, who, as Johnson seems then to have thought, “had kept the nest that hatched the egg;” but only to be scouted by both Judge-Advocate and President as most reprehensible and actuallydisloyal.
Their unanimity over the salutary effect of the hanging of this one woman on the female rebels wasmore than fraternal. And it is probable that no more explicit mention of an actual petition was made by Judge Holt in his conversation with the President than was made in his written report to the President, dated the same day, and which he had with him at the time.
The day of execution was fixed upon with the same alacrity. “Make it as soon as possible, so that the disagreeable business may be over; say the day after to-morrow—Friday, the seventh.” And, thereupon, everything being agreed upon, Judge Holt turns over the papers to the last page of the record and spreads it upon the table. Beginning, a few lines below the signature of “D. Hunter, President” which closes the record, with the date,
“Executive Mansion, July 5th, 1865,”
“with his own hand” he writes out the death warrant. As this includes the approval of the sentences, the appointment of the day and hour of execution, and the designation of the place of confinement of those condemned to imprisonment, the bottom of the page is reached before he completes his task. If he had turned up the page and continued his writing on the obverse side from the bottom down, as all the foregoing had been written, then the petition of mercy, unaddressed as it was, would have been, if still attached, directly beneath the eye of the President as he signed the death-warrant. But, as now appears from the record itself, the carefulJudge-Advocate did not turn up the page from the bottom. On the contrary, reverting to the layman’s way of writing papers, he whisks the whole record over, and continues the writing of the death-warrant on the back of the last half-sheet of the recordfrom the top to the bottom—by this change of method, either throwing the petition under the leaves of the record, or, if disengaged, leaving itupside down.
When he has thus finished his draft he shoves it over to the President. The President signs it with tremulous hand. The “confidential interview” is at an end; and the Judge-Advocate, taking up the papers, hurries out and over to the Department of War.
At this moment the petition disappears from view. We hear no more of it. Thrust as a convenient succedaneum into the hands of the majority of the Commission, ignored, suppressed or slurred over when before the President, it had served its pitiful purpose. Neither the Adjutant-General nor any of his clerks, appear to have noticed it, although the record must have been copied more than once in his office. It seems to have sunk suddenly into oblivion; its very existence became the subject of dispute. It was omitted from the authorized published proceedings of the Commission. It was omitted from the annual report of the Judge-Advocate. The disloyal paper must have been laid alongside the suppressed “Diary,” there to repose unseen until the Impeachmentof Johnson and the Trial of Surratt summoned them together into the light of day.
On the morning of Thursday, the sixth day of July, the six days ominous silence of the War-Department is broken. An order issues from the Adjutant-General’s office which, bearing date the day before and reciting the findings and death-sentences of the Commission and the death-warrant of the President, commands Major-General Hancock to see execution done, on the seventh, between the hours of ten and two.
This order was read to Mrs. Surratt at noon. She had all along been encouraged to hope. She, herself, had never been able to realize the possibility of a capital condemnation in her own case. And, here, suddenly, was Death, with violence and shame, within twenty-four hours. She sank down under the blow. In faltering accents she protested that she had no hand in the murder of the President, and pleaded for a few days more time to prepare for death. During the remainder of the day and throughout the night, she was so prostrated by physical weakness and mental derangement as to necessitate medical aid to keep her alive and sane. The cries of her daughter could be heard in the still darkness outside the prison. At five o’clock in the morning, the mother (with the three condemned men), was removed to a solitary cell on the first floor, preparatory to the execution.
In the meantime, when it first became known that, by the sentence of the Commission and the direction of the President, Mrs. Surratt was to die by the rope on the same scaffold with Payne, Herold and Atzerodt within twenty-four hours, a chill of despairing terror froze the blood of her relatives and friends, a thrill of consternation swept over the body of the citizens, and dark misgivings disturbed even the most loyal breasts. A stream of supplicants at once set in towards the Executive Mansion—not only friends and acquaintances of the condemned woman, but strangers, high-placed men, and women too, who were haunted by doubts of her guilt and could in some degree realize her agony.
But even this expiring effort of sympathy, the powers behind the President had anticipated. Apprehensive that Andrew Johnson, at the last moment, might yield to distressing importunities for more time, they had already taken measures that their sick man’s wish to hear nothing till all was over should be scrupulously respected. Preston King and General James Lane undertook to keep the door and bar all access to the President during the dreadful interval between the promulgation of the sentence and its execution. It was rumored that they, with a congenial crew, held high revelry around their passive Chief in his private apartments. Be this as it may, no supplicant—friend, acquaintance or stranger—was allowed to gain access to the President.
The priests, who had attested upon her trial the good character, the piety and the general worth of their parishioner, instinctively turned their steps to the White House to beg for clemency, or, at least, a respite. They were repulsed from its door. In ghastly mockery, they were told to go to —— Judge Holt.
At last, the daughter of the victim made her way to the very threshold of the President’s room. Frenzied with grief she assailed the portal with her cries for admission to plead for her dying mother. She was denied admittance. In the extremity of her despair she lay down upon the steps, and, in the name of God, appealed to the President and to the wardens, only to listen to her prayer. The grim guardians of the door held it shut in her face.
Denied, thus, even an appeal to Executive clemency, the friends of the poor woman, as a last most desperate resort, invoked the Constitution of their and her country through the historic writ of Habeas Corpus. On the morning of the day of the execution, they found a judge (Judge Wylie; all honor to his memory!) who had the independence and courage to grant the writ. At half-past eleven, General Hancock appeared before the Judge and made return that by order of the President the Habeas Corpus was suspended and therefore he did not produce the body. The order of the President dated ten o’clock, same morning, was annexed to the return and directed the General to proceed with the execution.
No sooner had the guarantees of the Constitution been, thus, finally set at naught, than the cell-doors were thrown open and the prisoners summoned to their doom. As the enfeebled widow raised her trembling limbs from off the coarse mattress which alone separated her body from the stone floor of her dungeon, she strove, in broken words, to assure the soldiers, who had come to bind her arms behind her back and tie cords around her skirts above and below the knee, of her utter, yet helpless innocence. Her confessor, who stood by her until the last, gently pointed out to her the uselessness of such appeals, at such a moment, and directed her hopes towards Heaven.
Amid the tolling of the bells, sending a shudder through the silent population of the city, and heralded by the tramp of armed men, the death-march of the doomed woman and the doomed men begins. The still breathing men and still breathing woman are clothed already in their shrouds. As she totters first along the corridor, accompanied by her priest and requiring two soldiers to hold her erect, the very extremity of her helplessness and woe bears witness in her favor. Even the bloody Payne, who walks next behind her, has broken through that stolid indifference to his own fate, so remarkable as to indicate insanity, to clear her from all complicity with the assassination. Herold and Atzerodt, who follow, though themselves speechless with terror, seem to wave her mute acquittal, as they stumble along intothe swift-coming Darkness. They reach the prison-yard. They mount the high scaffold. They are seated in four chairs facing the four dangling nooses, while the death-warrant is once more read. Their graves, already dug, are in full sight close by. Their coffins stand by the side of the open graves. They are raised up and pushed forward upon the two drops, Herold and Atzerodt on one, Mrs. Surratt and Payne on the other; the half-conscious woman still supported by the two guards. The ropes are adjusted. The hoods drawn over the face. The signal is given. The two drops fall. Surrounded by the unpitying soldiery, headed by the unpitying Hartranft, the woman and the men hang writhing in the agonies of an ignominious death. When pronounced dead, the bodies are cut down. They are laid out on the top of the coffins. A hurried post-mortem examination is made. And, then, at four o’clock in the afternoon, they are inclosed in the coffins and buried side by side. The soldiers depart with flourish of trumpet and beat of drum. Silence descends on the grounds of the old Arsenal; broken only by the pace of the sentinel set to guard the four corpses.
The daughter may beg the stern Secretary to yield up the body of her murdered mother, that she may place it in consecrated ground. But she will beg in vain.
And so ended the fell tragedy. And so did brave soldiers avenge the murder of their “beloved Commander-in-Chief.” Methinks their belovedCommander-in-Chief, could his freed spirit have found a mortal voice, would have spurned, with indignant horror, the savage sacrifice of a defenseless woman to appease his gentle shade.
Was it not Murder?
Andnow what shall be said as to this taking of human life?
Maintaining the most rigorous allegiance to the simple unadulterated truth, what can be said? Arraigned at the bar of the common law as expounded by the precedents of centuries, and confronted by plain provisions of the Constitution of the United States, which need no exposition and yet have been luminously expounded; but one thing can be said.
Had Mary E. Surratt the right guaranteed by the Constitution to a trial singly and alone, in a regularly constituted civil court, and by a jury of the vicinage, the individuals of which she might select by challenge, both for cause, in all cases, and without cause to a certain number, before she could be legally convicted of any crime whatever, or be lawfully punished by the most trivial loss of property or the minutest injury to limb, to say nothing of the brutal crushing out of her life? That’s the unevadable question which the ages put and will continue to put. And upon its precisely truthful answer, depend the character and color of the acts of every personwho had lot or part in the execution of this woman.
On the 21st day of October, 1864—while the war was still raging—Lambdin P. Milligan, a citizen of the United States and a resident of Indiana, was arraigned before a Military Commission convened by the commanding General of that Military District, at Indianapolis, on the following charges preferred against him by Henry L. Burnett, Judge-Advocate of the Department of the West:
1. Conspiracy against the Government of the United States.
2. Affording aid and comfort to the rebels.
3. Inciting insurrection.
4. Disloyal practices.
5. Violation of the laws of war.
There were also specifications, the substance of which was that Milligan had joined and aided a secret society, known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and authorities of the United States; had communicated with the enemy; conspired to seize munitions of war in the arsenals, and to liberate prisoners; resisted and encouraged resistance to the draft: at or near Indianapolis, in Indiana, “a State within the military lines of the Army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy.”
On these charges and specifications, Milligan was subjected to a lengthy trial by this Military Commission which finally found him guilty on all the charges and sentenced him to be hanged. The record was approved by the Commanding General, and then transmitted to President Lincoln, who held it long under advisement, and was so holding it when he was killed. His successor, at about the same time that he summoned the Commission to try Mrs. Surratt, at length approved the findings and ordered the sentence to be executed on Friday, the 19th day of May, 1865.
But this object-lesson to the Commission sitting at that date in the old Penitentiary was intercepted. On the 10th of May, Milligan brought the record before the United States Circuit Court by a petition for his discharge, and, the two judges differing upon the main question of the jurisdiction of the Commission, the cause was certified under the statute to the Supreme Court of the United States; in deference to which action the President suspended the execution. The argument before that high tribunal coming on in the winter of 1865-66, a great array of counsel appeared upon both sides; David D. Field, James A. Garfield and Jeremiah S. Black for the prisoner, and Attorney-General Speed and Benjamin F. Butler for the United States. The counsel for the Government followed the same line as did Judge Bingham in his argument on the “Conspiracy Trial;” the counsel for the prisoner on their side, onlyenlarging, emphasizing and enforcing the argument of Reverdy Johnson. At the close of the term the Court unanimously decided that the Military Commission had no jurisdiction to try Milligan; that its verdict and sentence were void; and ordered the defendant discharged.
At the next term, the Court handed down two opinions—one the opinion of the Court, read by Judge Davis, in which four of his colleagues concurred, and one by Chief-Justice Chase, in which three of his colleagues concurred. The two opinions agreed that, as matter of law, the President could not of his own motion authorize such a Commission, and that, as matter of fact, the Congress had not authorized such a Commission; and therefore they were at one in their conclusion. But they differed in this; that, whereas the majority of the Court held that not even the Congress could authorize such a Court, the minority, while agreeing that the Congress had not exercised such a power, were of opinion that such a power was lodged in that branch of the Government.
The attempt has often been made to distinguish the case of Mrs. Surratt from that of Milligan by alleging that Washington at the time of the assassination was within the theatre of military operations, and actually under martial law, whereas Indiana at the time of the Commission of Milligan’s alleged offenses was not.
Now, it must be admitted that at the time of the murder of President Lincoln the war had swept faraway from the vicinity of the Capital. There had been no Confederate troops near it since Early’s raid in the summer of 1864, and no enemy even in the Shenandoah Valley since October. It must also be admitted, and was, in fact, proved on the trial, that the civil courts were open and in full and unobstructed discharge of their functions. As for the reiterated affirmation of Judge Bingham that the courts were only kept open by the protection of the bayonet; that is precisely what was affirmed by General Butler, in his argument before the Supreme Court, to have been the fact in Indiana.
None of the counsel in the Milligan case claimed that a Military Commission could possibly have jurisdiction to try a simple citizen in a State where there was no war or rumors of war.
“We do fully agree, that if at the time of these occurrences there were no military operations in Indiana, if there was no army there, if there was no necessity of armed forces there, * * * then this Commission had no jurisdiction to deal with the relator, and the question proposed may as well at once be answered in the negative.”
They contended, as the very basis of their case, that the acts of Milligan “took place in the theatre of military operations, within the lines of the army, in a State which had been, and then was constantly threatened with invasion.”
And, in fact, the record in so many words so stated, and the statement was uncontroverted by the relator.
General Butler with great earnestness put the question:
“If the Court takes judicial notice that the courts are open, must it not also take judicial notice how, and by whose protection, and by whose permission they were so open? that they were open because the strong arm of the military upheld them; because by that power these Sons of Liberty and Knights of the American Circle, who would have driven them away, were arrested, tried and punished.“If the soldiery of the United States, by their arms, had not held the State from intestine domestic foes within, and the attacks of traitors without; had not kept the ten thousand rebel prisoners of war confined in the neighborhood from being released by these Knights and men of the Order of the Sons of Liberty; there would have been no courts in Indiana, no place in which the Circuit Judge of the United States could sit in peace to administer the laws.”
“If the Court takes judicial notice that the courts are open, must it not also take judicial notice how, and by whose protection, and by whose permission they were so open? that they were open because the strong arm of the military upheld them; because by that power these Sons of Liberty and Knights of the American Circle, who would have driven them away, were arrested, tried and punished.
“If the soldiery of the United States, by their arms, had not held the State from intestine domestic foes within, and the attacks of traitors without; had not kept the ten thousand rebel prisoners of war confined in the neighborhood from being released by these Knights and men of the Order of the Sons of Liberty; there would have been no courts in Indiana, no place in which the Circuit Judge of the United States could sit in peace to administer the laws.”
Moreover, the opinion of the minority Judges bases their contention that Congress had the power, if it had chosen to exercise it, to authorize such a Military Commission, upon this very fact.
“In Indiana, for example, at the time of the arrest of Milligan and his co conspirators, it is established by the papers in the record, that the State was a military district; was the theatre of military operations, had been actually invaded, and was constantly threatened with invasion. It appears, also, that a powerful secret association, composed of citizens and others, existed within the State, under military organization, conspiring against the draft, and plotting insurrection, the liberation of the prisoners of war at various depots, the seizure of the State and national arsenals, armed co-operation with the enemy, and war against the national government.”
Not one of which circumstances (except that it was a military district) can be truthfully predicated of the District of Columbia at the time of the assassination.
As for actual martial law, there was no declaration of martial law claimed for the City of Washington, other than the proclamation of the President which applied as well to Indiana, and, indeed, to the whole North.
We are justified, therefore, in saying, that the Supreme Court of the United States, in this case of Milligan, pronounced the final condemnation of the whole proceedings of the Military Commission which tried and condemned Mary E. Surratt; declaring, with all the solemn force of a determination of the highest judicial tribunal known to this nation, that every one of its acts, from its creation by the President to its transmission of its record of doom to the President, was in direct contravention of the Constitution of the United States and absolutely null and void.
That illustrious Court, speaking by Judge David Davis, thus enunciates the law:
“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”“From what source did the Military Commission * * derive their authority?”“It is not pretended that the commission was a court ordained or established by Congress.”“They cannot justify on the mandate of the President; because he is controlled by law and has his appropriate sphere of duty, which is to execute not to make the law; and there is no unwritten criminal code to which resort may be had as a source of jurisdiction.”“The laws and usages of war can never be applied to citizens in states which have upheld the authority of the government and where the courts are open and their processes unobstructed. And no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said it has never been provoked by the state of the country even to attempt its exercise.”“All other persons,” (i. e., all other than those in the military and naval service) “citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity.”“It is claimed that martial law covers with its broad mantle the proceedings of this Military Commission.”“Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”“Martial law can never exist where the courts are open, and in the proper and unmolested exercise of their jurisdiction. It is also confined to the locality of actual war.”
“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”
“From what source did the Military Commission * * derive their authority?”
“It is not pretended that the commission was a court ordained or established by Congress.”
“They cannot justify on the mandate of the President; because he is controlled by law and has his appropriate sphere of duty, which is to execute not to make the law; and there is no unwritten criminal code to which resort may be had as a source of jurisdiction.”
“The laws and usages of war can never be applied to citizens in states which have upheld the authority of the government and where the courts are open and their processes unobstructed. And no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said it has never been provoked by the state of the country even to attempt its exercise.”
“All other persons,” (i. e., all other than those in the military and naval service) “citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity.”
“It is claimed that martial law covers with its broad mantle the proceedings of this Military Commission.”
“Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”
“Martial law can never exist where the courts are open, and in the proper and unmolested exercise of their jurisdiction. It is also confined to the locality of actual war.”
Had the swift process by which this unfortunate woman was hurried to the scaffold been interruptedby a stay to allow a review by the same high tribunal which rescued Milligan from the jaws of death, it cannot be doubted that in her case, as in his, the same conclusions would have been reached, viz.:
1st. “One of the plainest constitutional provisions was, therefore, infringed when” (Mary E. Surratt) “was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.”2nd. “Another guarantee of freedom was broken when” (Mary E. Surratt) “was denied a trial by jury;”
1st. “One of the plainest constitutional provisions was, therefore, infringed when” (Mary E. Surratt) “was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.”
2nd. “Another guarantee of freedom was broken when” (Mary E. Surratt) “was denied a trial by jury;”
that, in her case, as in his, the Court would have set the prisoner free; there would have been no hanging, no felon’s grave, and not even an ulterior attempt at a constitutional trial.
For it is remarkable that although the Military tribunal which tried Milligan pronounced him guilty of crimes deserving a traitor’s death; the seeming strength of the evidence must have melted away, strangely enough, when subjected to the prospective investigation of constitutional courts, as there was not even a subsequent effort on the part of the Government to call him to account.
Let us add, as a final corollary to this exposition of the Constitution by the Supreme Court, the following remark: that the ground and argument employed by Attorney General Speed in his opinion upon the right of the President to order the trial of the alleged assassins by Military Commission, and by Judge-Advocate Bingham in his address to that Commission, involve areductio ad absurdum, or,rather, areductio ad monstrosum, that is, aReductio ad absurdum quia monstrosum.
For, that ground and that argument, invoked to uphold and sanction the trial of civilians by military commissions, necessarily and inevitably go farther, and proclaim the right of President Johnson, alone, of his own motion and without the interposition of a formal court, whether military commission or drum-head court-martial, to have commanded the immediate execution of every person whom he might believe to be guilty of participation in the assassination of his predecessor or in the presumed attempt upon himself.
The conclusion forced upon us, therefore,—the one only thing to be said—is, that the hanging of Mary E. Surratt was nothing less than the crime of murder.
Murder, not only in the case of the private soldiers who dragged her to the scaffold and put the rope about her neck; they, at least can plead the almost irresistible force of military discipline.
But murder, also, in the case of the Major-General whose sword gave the signal for the drop to fall. General and soldiers are in the precise position, before the law, of a mob of Lynchers carrying out the judgment of a Lynch court.
Murder, not only in the case of the one military officer who superintended the details of the execution. He, too, though with much less force, can plead that he was the mere bailiff of what he believed to be a competent Court.
But murder, also, on the part of the nine military officers and the three advocates who tried and sentenced this woman to death. These men, in the forum of the law, stand in the precise position of any nine policemen steered by any three police attorneys in the city of New York, who should dare to try, convict and sentence to death a citizen of that city.
Murder, not only on the part of the Commission and its lawyers; they too might, possibly, plead—though with still diminishing force—that, although they were warned and took the awful responsibility, still they believed in their competency.
But murder, also, in the President of the United States, who appointed the court, approved its findings, and commanded the execution of its sentence. He stands before the law in the same position as though, sweeping aside all empty forms, he had seized a sword and with his own hand cut off the head of the woman, without the mockery of a trial. In our frame of government, there is surely no room for such a twi-formed barbarian-despot, as a President having the power to pick out from the army, of which he is the commander-in-chief, the members of a court to try and punish with death, at his option, any one of the citizens, for an abortive attempt on his own life.
And it was murder, not only in the case of the President; he, too, but with scarcely audible voice, might plead the coercion of his situation—sitting as he did in the seat of the murdered Lincoln.
But it was murder, also, in the Secretary of War, who initiated the iniquitous process, pushed on the relentless prosecution, shut his own ears and the ears of the President to all pleas for mercy, presided like a Moloch over the scaffold, and kept the key of the charnel-house, where, beside the unpitied carcasses of the reputed ruffians forced upon her in her ordeal of torture and in the hour of death, the slaughtered lady lay mouldering in her shroud. Here, at least, the plea of mitigation exhales in a cry like that of Payne, “I was mad!”
Weigh the extenuating circumstances in whatever scale you may; extend as much mercy as possible to those who showed no mercy in their day of power—still, the offense of every one and all, who had hand, part or lot in this work of death, contains every element which, under the most rigorous definition of the law, makes up the Crime of Murder. The killing was there. The unlawful killing was there. The premeditated design to effect death was there. The belief of the perpetrators, that they had a right to kill, or that they were commanded to kill by an overruling power, before a court of law avails not a whit. Ignorance of the constitution as well as the law excuses no man, be he civilian or soldier, President or assassin, War-Minister or Payne.
Murder it essentially was, and as such it should be denounced to the present and future generations.
Garrett Davis told no more than the exact truth when he declared in his place in the Senate of the United States:
“There is no power in the United States, in time of war or peace, that can legitimately and constitutionally try a civilian who is not in the naval or military service of the United States, or in the militia of a State in the actual service of the United States, by a court-martial or by a military commission. It is a usurpation, and a flagitious usurpation of power for any military court to try a civilian, and if any military court tries a civilian and sentences him to death and he is executed under the sentence, the whole court are nothing but murderers, and they may be indicted in the State courts where such military murders are perpetrated; and if the laws were enforced firmly and impartially every member of such a court would be convicted, sentenced and punished as a murderer.”
Although the actual guilt of any of the victims constitutes no legal defense to this fearful charge, yet as the unquestioning obedience which the soldier yields, as a matter of course, to the commands of his superior officer must alleviate, if it do not wipe away, the guilt of the members of the Commission, in the forum of morals; so the ascertainment that the sufferers on the scaffold and in prison, in fact, deserved their doom, cannot but blunt the edge of our condemnation of the iniquity of the trial, as well as weaken our pity for the condemned and our sense of shame over the tyrannous acts of the government.
A word or two, therefore, will be appropriate in respect to the sufficiency of the testimony to establish the guilt of the accused.
I. As to Arnold and O’Laughlin, it may be said in one emphatic word, that there was no evidence at all against them of complicity in the plot to kill. The letter of Arnold to Booth shows, when fairly construed, that, if the writer had conspired with the actor, he conspired to abduct; and, also, for the time being, even that conspiracy he had abandoned. He was at Fort Monroe for the two weeks prior to the assassination. His confession, used on the trial against himself not only but also against O’Laughlin because he was mentioned in it as present at a meeting of the conspirators, was a confession only of a conspiracy to abduct which had been given up. The condemnation of these two men was brought about by the conduct of Judge Bingham, to which we have drawn attention, in systematically shutting his eyes to the existence of any conspiracy to capture, and employing the letter and confession as proof that both these men were guilty of conspiracy to murder.
II. As to Dr. Mudd, the evidence leaves it doubtful whether or not he recognized Booth under his disguise on the night he set his broken leg, and therefore whether he may have been an accessory after the fact or not; but the testimony of the informer Weichman, by which chiefly if not solely the prosecution sought to implicate the doctor in the conspiracy to murder, was greatly damaged, if not completely broken down, by the proof on the part of the defense that Dr. Mudd had not been inWashington from November or December, 1864, until after the assassination.
III. As to Payne, his guilt of the assault on Seward in complicity with Booth was clear, and confessed by himself. He was but twenty years of age, of weak mind, entirely dominated by the superior intellect and will of Booth. He claimed he acted under the command of his captain. He was so stolidly indifferent during the trial as to raise suspicion of his sanity, and he repeatedly expressed his wish for the termination of the trial so that he might cease to live.
IV. As to the boy Herold, it was manifest that, as the mere tool and puppet of Booth, he was acquainted beforehand with the design of his master to kill the President, but there is no evidence that he aided or abetted Booth in the actual assassination in any way except to participate in his flight after he had got out of Washington.
V. As to Atzerodt, for whom there appears to have been no pity or sign of relenting, it is nevertheless a fact, that the testimony to his lying in wait for Andrew Johnson is so feeble as to be almost farcical. The poor German was a coward and never went near Johnson. There is no circumstance in the evidence inconsistent with his own confession, that he was in the plot to capture, knew nothing of the design to murder until 8 o’clock on the evening of the 14th, and then refused to enact the part assigned him by Booth.
Indeed, it would appear as if the Commission, by a sort of proleptic vision of the future course of the President in his desperate struggle with the Congress, in grim irony actually hung Atzerodt because he didnotkill Andrew Johnson.
VI. And as to Mrs. Surratt, the only witnesses of importance against her are Weichman and Lloyd. Without their testimony the case for the prosecution could not stand for a moment. Weichman, a boarder and intimate in her house, the college chum of her son, and, equally with him, the associate of Payne, Atzerodt, Herold and Booth, who, frightened almost to death at the outlook, was swearing, under a desperate strain, to clear his own skirts from the conspiracy and thus save his threatened neck:—Weichman’s testimony before the Commission, even at such a pass, is for some reason quite vague and indefinite, and only becomes deadly when supplemented by Lloyd’s. This man Lloyd it was who, in fact, furnished the only bit of evidence directly connecting Mrs. Surratt with the crime. He testifies to two conversations he had with her—one on the 11th and the other on the 14th of April—when she alluded to the weapons left weeks before at the hotel at Surrattsville owned by her and kept by Lloyd—on the 11th, that the “shooting-irons” would be wanted soon; on the 14th, that they would be called for that night. Lloyd, himself, however, admits, and it is otherwise clearly shown, that on the 14th he was so drunk ashardly to be able to stand up. Lloyd, also, was deeply implicated in the conspiracy to capture if not to assassinate. He had aided the fugitive assassins to escape, had kept their weapons hidden in his house, and he had, for two days after his arrest, denied all knowledge of Booth and Herold’s stopping at his hotel at midnight after the murder. He had been placed in solitary confinement and threatened with death. His nervous system, undermined by debauchery, gave way; his terrors were startling to witness and drove him well-nigh mad, and, at last, in a moment of distraction, he turned against Mrs. Surratt and her son. Like Weichman’s, his, also, was the frenzied effort of a terror-stricken wretch to avoid impending death by pushing someone forward to take his place. Reverdy Johnson, at the close of his plea to the jurisdiction of the court, let fall the following words, no less weighty for their truth than their force:
“This conclusion in regard to these witnesses must be, in the minds of the Court, and is certainly strongly impressed upon my own, that, if the facts which they themselves state as to their connection and intimacy with Booth and Payne are true, their knowledge of the purpose to commit the crimes and their participation in them, is much more satisfactorily established than the alleged knowledge and participation of Mrs. Surratt.”
Moreover, the testimony of both these witnesses, suborned as they were alike by their terrors and their hopes, is perfectly reconcilable with thealternative hypothesis, either that the woman in what she did was an innocent dupe of the fascinating actor, or that she was unaware of the sudden transformation of the long-pending plot to capture, of which she might have been a tacit well-wisher, into an extemporaneous plot to kill.
Much stress was laid by Mr. Bingham on her solemn denial of any prior acquaintance with Payne when confronted with him on the night of her arrest. But it is more than probable that the non-recognition was unsimulated, because of the disguise and pitiable plight of the desperado, who had been hidden in the mud of the suburbs three days and three nights, and, also, because the non-recognition was shared with her by the other ladies of the house. Besides, that a woman, caught in the toils in which Booth and her own son had unwittingly involved her, under the terror of recent arrest and imminent imprisonment, should have shrunk from any acknowledgment of this midnight intruder, even to the extent of falsehood, certainly is in no wise incompatible with innocence.
These are the only circumstances by which Mrs. Surratt is brought nearer than conjectural connection with the assassination, and the force of these is greatly weakened by the testimony in her defense.
It is neither necessary, nor relevant to this exposition, to enter into a lengthy discussion upon theprosandconsof her case. Her innocence has been demonstrated in a more decisive manner by subsequentevents, and stands tacitly admitted by the acts of the officers of the government. Few impartial hearers would have said then, and no impartial readers will say now, that the testimony against her is so strong as to render her innocence a mere fanciful or even an improbable hypothesis. No one can say that a jury, to a trial by which she was entitled under the Constitution, would have pronounced her guilty, and every one will admit that had her sentence been commuted to imprisonment for life, as five of her judges recommended, she would have been pardoned with Arnold, Spangler and Mudd, and might have been living with her daughter to-day. The circumstances of the whole tragedy warrant the assertion that, had John H. Surratt been caught as were the other prisoners, he, and not she, would have been put upon trial; he, and not she, would have been condemned to death; he, and not she, would have died by the rope. If he was innocent, then much more was she. Mary E. Surratt, I repeat, suffered the death of shame, not for any guilt of her own, but as a vicarious sacrifice for the presumed guilt of her fugitive son.
PART II.
THE VINDICATION.
Setting Aside the Verdict.
Whenthe President of the United States, the Secretary of War, the Military Commission, the Judge-Advocates, and the Executioner-General had buried the woman against whose life the whole military power of the Government, fresh from its triumph over a gigantic rebellion, had been levelled;—buried her broken body deep beneath the soil of the prison-yard, in close contact with the bodies of confessed felons; flattened the earth over her grave, replaced the pavement of stone, locked the door of entrance to the charnel-house and placed the key in the keeping of the stern Secretary;—they may have imagined that the iniquity of the whole proceeding was hidden forever.
But,horribile dictu!the ghost of Mary E. Surratt would not down. It troubled the breast of thewitness Weichman. It haunted the precincts of the Bureau of Military Justice. It pursued Bingham into the House of Representatives. It blanched the laurels of the great War Minister. Politics, history and the very vicissitudes of human events seemed subservient to the vindication of this humble victim.
Hardly had the delivery of the prisons of Washington, which followed the close of the trial, taken place, before the man who, as he himself swore, always had been treated as a son by the woman he betrayed, began to make advances to her sorrowing friends. He pretended to make confession of his perjury. He told a friend that his testimony would have been very much more favorable had it not been dictated to him by the officers who had him in charge; that the meeting of Lloyd and Mrs. Surratt was accidental, as she and he (Weichman) had already started for home before Lloyd returned, and only turned back because the buggy was discovered to be broken. The traitor soon discovered that he made no headway by such disclosures, but only met with a sterner repulse and a deeper loathing. His troubled soul then turned to another quarter. It has been stated that his testimony on the trial was somewhat indefinite and inconclusive. Complaints had been uttered by the officers conducting the prosecution. It was proved upon a subsequent occasion that one of these officers had actually threatened the witness that he would hangas an accomplice in the assassination did he not make his evidence more satisfactory. It appeared, also, that the Secretary of War had promised to protect and take care of him. Driven back by Mrs. Surratt’s friends from his attempt at propitiation, Weichman resolved that he would yet earn his reward by retouching his former testimony so as to make it more definite and telling. He saw, at last, that to save himself from everlasting ignominy he must, as far as in him lay, make sure of the guilt of his victim. Actuated by these or similar motives, he, on the 11th day of August, 1865, wrote out, and swore to, a statement in which he, by a suspicious exercise of memory, detailed conversations with Mrs. Surratt and significant incidents, all pointing to complicity with Booth, no mention of which had been made on the trial, and which this candid witness stated “had come to my(his)recollection since the rendition of my(his)testimony.”
This affidavit, containing (if true) more evidence of the guilt of Mrs. Surratt than his whole testimony on the trial, but, on the other hand, drawn up to suit himself without fear of cross-examination—he transmitted to Colonel Burnett, who, as though he, too, distrusted the sufficiency of the evidence against the dead woman as it had been actually given on the trial, was careful to append theex partestatement to the published report.
Weichman, at length, gets his reward in the shape of a clerkship in the Custom House at Philadelphia.
But the final breaking down of the fabric of testimony against the leaders of the rebellion, as instigators of the assassination, threw consternation into the Bureau of Military Justice and the Cabinet. Jefferson Davis was still confined in Fort Monroe, and two companies of United States soldiers, who had fought and shed each other’s blood in their eagerness to be the first to seize the fugitive, were already quarreling over the $100,000 reward for his arrest as an accomplice of Booth. Clement C. Clay, for whose arrest $25,000 reward had been offered, as another accomplice, was also still in the hands of the authorities. Jacob Thompson, George N. Sanders and Beverly Tucker, for the arrest of each of whom $25,000 had been offered, were still at large. Every one of these men, it should be borne in mind, had been pronounced guilty by the military board which had condemned Mrs. Surratt. John H. Surratt, her son, for whose capture an enormous reward had been offered both by the Government and by the City of Washington, and whom the Military Commission had condemned as the go-between of the President of the Confederacy and his agents in Canada in the instigation of the murderous conspiracy, and also as the active aider and abettor of both Booth and Payne in the perpetration of their bloody crimes; he, too, had so fareluded all efforts to find even his whereabouts. It is only fair to presume that the astute lawyers connected with the Bureau of Military Justice must have had serious misgivings from the first, concerning the testimony of the spies, Montgomery, Conover and others, going to implicate Davis and the Canadian Rebels in the assassination. Such testimony was hearsay or secondary evidence at best; and they could have cherished no hope that such loose talk and the fragmentary repetition of letters heard read would ever be allowed to pass muster by an impartial judge in a civil court. And they had reason to believe that public opinion would not tolerate the experiment of another military commission. As early as July, 1865, an attempt was made to buy the papers of Jacob Thompson, among which it was supposed were the criminatory letters of Davis; and Attorney-General Speed was dispatched with $10,000 government money to effect the purchase. William C. Cleary, for whom $10,000 reward had been offered as one of the conspirators, and who had just been found guilty by the Military Commission, was to deliver the letters and receive the money. Speed met Cleary at the Clifton House, but the latter, in the meanwhile, had seen in a newspaper a portion of the testimony before the Military Commission implicating him, and he utterly refused to give up the papers, as he had to rely upon them, as he said, to vindicate himself. The shadows thus began to darken over thecredibility of the corps of spies that the Bureau had employed. Indictments for perjury against Montgomery, Conover and other paid witnesses began to be talked of. Friends, and enemies as well, of the imprisoned ex-President began to clamor for his trial or release. Even the implicated agents in Canada showed a bold front, and professed a willingness to meet the terrible charge if guaranteed a trial by jury. A jury! A jury of twelve men! Trial by jury! If there was anything that could shake the souls of the members of the Bureau of Military Justice, it was to hear of trial by jury. It was a damnable institution. It impeded justice. It screened the guilty. It was beyond control. It could not be relied on to convict. And yet it was to this tribunal they foresaw they must come.
In September, 1865, embarrassing news arrived at the Department of State. The consul at Liverpool informed the American Minister at London that John H. Surratt was in England and could be extradited at any time. Here was the villain who was, with Booth, the prime mover of the conspiracy and the active accomplice of Booth and Payne in their work of blood. At least, so the Military Commission found, who hung his mother in his stead. And yet the United States Government informed Mr. Adams, and Mr. Adams so informed the consul, that the Government did not intend to prosecute. On the 24th of Novemberensuing, the War Department, by general order, revoked the “rewards offered for the arrest of Jacob Thompson, Beverly Tucker, George N. Sanders, William S. Cleary and John H. Surratt.” Where now was the redoubtable Bingham who, over and over again, had assured the Commission he guided of the unmistakable guilt of all these persons? The whole theory of the Secretary of War, which he had preconceived in the midst of the panic following the assassination, that the murder of the President was the outcome of a deep-laid and widespread conspiracy, of which Jefferson Davis was the head and Booth and Payne the bloody hands—this theory, which the Bureau of Military Justice, aided by Baker and his detectives, had so sedulously labored to establish, and which Judge Bingham had so persistently pressed upon the nine military men who composed the Court, to the exclusion of any such hypothesis as a plot to capture—this preconceived theory all at once fell to the ground. The perjured spies, who had been the willing and paid tools to build it up, were about to be unmasked and their poisoned fangs drawn. After no great interval, Conover was, in fact, convicted of perjury in another case, and sentenced to imprisonment in the Albany penitentiary. The whole prosecution of the so-called conspirators, from its inception to its tragic close, turned out to have been founded on an enormous blunder. The findings of the Commission were falsified. Whatever the guilt of the doomedvictims, they were not guilty of the crime of which they were convicted. The terrible conspiracy, stretching from Richmond to Canada, and from Canada back to Washington, involving statesmen and generals, and crowning the wickedness of rebellion with the Medusa-head of assassination, shrank into the comparatively common-place and isolated offense of the murder of Lincoln and the assault upon Seward, suddenly concocted by Booth, on the afternoon of the 14th of April, in wild despair over the collapse of the rebellion. In such a predicament, the hanging of Mrs. Surratt could not have been a pleasing reminiscence to the Secretary of War, to Judge-Advocate Holt, or to the hangers-on of the Bureau of Military Justice. At such a moment they certainly had no use for her son John.
On the 12th of November, Preston King, who held one side of the door of the White House while the daughter of Mrs. Surratt pleaded for admission, walked off a ferry-boat into the Hudson River, with two bags of shot in the pockets of his overcoat, and was seen no more. This event might have passed as a startling coincidence, to be interpreted according to the feelings of the hearer, had it not been followed by the suicide of Senator James S. Lane, who held the other side of the door, and who, on the 11th day of July, 1866, blew his brains out on the plains of Kansas. That these two men had together stood between the President and the filial suppliant for mercy, in a case of life and death,and that, then, within a year, both had perished by their own hands, aroused whispers in the air, caused a holding of the breath and a listening, as if to catch the faint but increasing cry of innocent blood, coming up from the ground.
When the Congress met in December, 1865, the leaders of the dominant party were in a fierce and bitter humor. The Rebellion had been suppressed, the South subjugated and its chiefs captured, yet no one—not even the arch-traitor Davis—had been hung. And, more deeply exasperating still, the man they had elected Vice-President, and who had thus succeeded the martyred Lincoln, upon whom their hopes had been fixed to make treason odious, to hang the leaders higher than Haman, and to set aside the humane policy of reconstruction his predecessor had already outlined and substitute a more radical and retributive method—this man, whose precious life had been providentially spared from the pistol of the assassin to be the Moses of the colored people, and for harboring any such blasphemous purpose as lying in wait for him, a Court, appointed by himself and whose sentence he himself had approved, had hung a bewildered German—why this man had already shown himself a renegade, was bent on a general amnesty, appeared to have forgotten the assassination, was already hobnobbing with southern traitors, and was attempting to carry out a policy of reconstruction in the South, the result of which could be nothing less than thedethronement of the party who had brought the war for the Union to a triumphant end. These men resolved that such treachery should be balked at whatever cost. Ignorant as yet of the tainted character and of the break-down of the evidence adduced to show Confederate complicity in the assassination, the House of Representatives passed resolutions calling for the trial of Jefferson Davis for treason and for the other crimes with which he was charged; the ill-starred Bingham, once again in the House, insisting that the Confederate Chief should be put upon trial before a military tribunal for the same offense of which his former court had found him guilty in his absence. The House appointed a committee to investigate the complicity of Davis and others in the assassination, and in July, 1866, through its chairman, Mr. Boutwell, made a report, followed by a resolution, “that it is the duty of the executive department of the Government to proceed with the investigation of the facts connected with the assassination of the late President without unnecessary delay, that Jefferson Davis and others named in the proclamation of President Johnson of May 2d, 1865, may be put upon trial,” which was adoptednem. con.In this action, little as they reeked, these radical politicians were the unconscious tools of that Nemesis which stalks after lawlessness and triumphant crime. This resolution, and the news that John H. Surratt had been betrayed by one of his comrades in thePapal Zouaves into the hands of the Roman authorities, who had detained him to await the order of the American Government, and that the prisoner had escaped from his guard and fled to Malta, forced the Department of War to revoke the order of November, 1865, withdrawing the reward for the arrest of the fugitive.
Meanwhile the great contest over the reconstruction of the South waxed fiercer and fiercer. Congress, during this session, became farther and farther alienated from the President, so that when that body met in December, 1866, the reckless majority in both Houses united in the resolve to get rid of Andrew Johnson, not indeed by the bloody method employed by Booth, but by the no less efficient, though more insidious and less bold, expedient of impeachment by the House and conviction by the Senate. No sooner had Congress convened than Mr. Boutwell made an attack upon the Executive for its dilatory action in the arrest of John H. Surratt, stating that he had reason to believe that the Government knew where the assassin was the May before. A committee appointed to investigate the matter made a report just at the close of the session obliquely censuring the Executive Department for its lack of diligence in effecting the arrest. On January 7th, 1867, the famous Ashley introduced his resolutions impeaching Andrew Johnson. The Judiciary Committee, to which they were referred, took testimony duringthe winter and made a report at the close of the session that it was unable to complete the investigation, and handed it over to the Fortieth Congress. That Congress met immediately at the close of the Thirty-ninth, and the testimony already taken was referred to the Judiciary Committee of its House, which proceeded with the matter during the spring and summer, and in November, 1867, after the recess; with the final result of a failure to pass the resolution of impeachment reported by a bare majority of the committee.
In process of this investigation all sorts of accusations and charges were made against the President. His enemies now employed the very same weapons against him which had been employed to convict the alleged assassins of his predecessor and the alleged conspirators against his own life. General Baker and his detectives, Conover and his allies, appear once more upon the scene. They actually invaded the privileged quarters of the White House and stationed spies in the very private apartments of the President. This time, however, they are ready to swear, and in fact do swear, not to having seen letters from Jefferson Davis to his agents in Canada advising assassination, but letters from Andrew Johnson to Davis squinting in that direction. They actually charged the President with being an accomplice in the assassination of Abraham Lincoln. Forgetting that a human being had been hung for lying in wait to kill AndrewJohnson as a part of a general conspiracy to murder the heads of the Government, these desperate men propose to impeach the President for being an accomplice in his own attempted murder. Ashley openly denounced him, in the House of Representatives on the 7th of March, 1867, as “the man who came into the Presidency through the door of assassination,” and alluded to the “dark suspicion which crept over the minds of men as to his complicity in the assassination plot,” and “the mysterious connection between death and treachery which this case presents.” Ashley had private interviews in the jail with Conover and Cleaver, who were confined there for their crimes, and they assured him of the guilt of Andrew Johnson. They furnished him with memoranda and letters purporting to show that Andrew Johnson and Booth were in communication with each other before the murder of Lincoln, and that Booth had said before his death that if Andrew Johnson dared go back on him he would have him hung higher than Haman. To such preposterous stuff, from professional perjurers, did the zealous Ashley seriously incline.
It was during this investigation that the evidence given by Secretaries Seward and Stanton and by Attorney-Generals Speed and Stansbery, demonstrated the utter futility of an attempt to establish complicity in the assassination on the part of Davis, Thompson and the rest, by witnesses who had beenshown, in other cases, to be unworthy of a moment’s belief.
While the impeachers were in the very act of pursuing the President as an accomplice in the murder of Abraham Lincoln, while the mighty Bingham, who had so eloquently defended President Johnson before the Military Commission against the charge of usurpation of power, and so bitterly denounced Jefferson Davis for alluding to Johnson as “The Beast,” now, with a complete change of tune, was clamoring for the impeachment of “his beloved Commander-in-Chief;”—Jefferson Davis, himself, is brought, by direction of the Secretary of War, in obedience to a writ of habeas corpus, before the United States Court at Richmond; there, without a word of remonstrance, transferred to the custody of the civil authority; and forthwith discharged on bail, Horace Greeley, who had never seen him before, becoming one of his bondsmen. Since that day in May, 1867, no attempt has ever been made to call the ex-President of the Southern Confederacy to account as one of the conspirators in the murder of Lincoln. Clay had been let go on parole as long before as April 19th, 1866; his property was restored to him in February, 1867; and proceedings under an indictment found against him for treason and conspiracy, indefinitely suspended on the 26th of March of the same year. Thompson and Sanders and Tucker returned to their country and appeared unmolested amongst us.Jefferson Davis died recently full of years and honors. At the death of Thompson, the flags of the Interior Department were lowered half-mast. Tucker was appointed to office not long ago by President Harrison. And all this, notwithstanding the Judge-Advocate had assured the Military Commission that the guilt of these men was as clear as the guilt of Booth or of Surratt, notwithstanding the Military Commission under his guidance so found, and, had these men been present before that tribunal, would doubtless have hung them on the same scaffold with Mrs. Surratt.
It was during this same investigation, that the diary of Booth, which had been so carefully concealed by the War Department and the Bureau of Military Justice from the Military Commission, was unearthed. Its publication produced a profound sensation, as it made clear the reality of a plan to capture the President; a plan, which had been blasted by the collapse of the Rebellion and, only at the last moment and without consultation, arbitrarily superseded by a hurried resolution to kill. When produced by Judge Holt before the committee, its mutilated condition gave rise to a terrible suspicion. Holt, himself, and Stanton were confident the book was in the same condition as when they first saw it. Colonel Conger, also, though not positive, thought it was unchanged since he took it from the dead body of Booth. But, to the great wonder of everybody, the distinguisheddetective, General Baker, testified, and stuck to it with emphasis when recalled, that, when he first examined the diary before it was lodged with the Secretary of War, there were no leaves missing and no stubs, although the diary, as exhibited to the committee, showed by means of the stubs remaining that sixteen or twenty leaves had been cut or torn out. The disclosures made by the production of the diary, together with the fact of its suppression, stirred the soul of General Butler; and, in this way, it came about that the ghost of Mrs. Surratt stalked one day into the House of Representatives. Judge Bingham, in his rollicking way, was upbraiding General Butler for having voted for Jefferson Davis fifty times as his candidate for President, and slurring his war record by calling him “the hero of Fort Fisher;” when, suddenly, at the petrific retort of his adversary that “the only victim of the gentleman’s prowess was an innocent woman hung upon the scaffold!” the spectre stood before him, forcing, as from “white lips and chattering teeth,” the exclamation of Macbeth: “Thou canst not say I did it!”