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Title: Assassination of Lincoln: a History of the Great Conspiracy
       Trial of the Conspirators by a Military Commission and a Review of the Trial of John H. Surratt


Author: Thomas Mealey Harris



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[Illustration: T. M. Harris]


ASSASSINATION OF LINCOLN

A History of the Great Conspiracy

Trial of the Conspirators by a Military Commission
and a Review of the Trial of John H. Surratt

by

T. M. HARRIS

Late Brigadier-General U. S. V. and Major-General By Brevet

A Member of the Commission







Boston, Mass.
American Citizen Company
7 Bromfield Street

Entered according to Act of Congress, in the year 1892,
By T. M. HARRIS,
In the Office of the Librarian of Congress at Washington.

All Rights Reserved.

Typography by Fish & Sancton, 198 Washington St., Boston.




EXPLANATION.


It is perhaps necessary that the author should explain the sense in
which the term, "Great Conspiracy," in the title of his book, is used.
It is not at all in the same sense in which it is used by General
Logan in his book. In that it is used as the equivalent of the Great
Rebellion, only that it broadly covers all that led to and culminated
in the war against the government, designated as "The Rebellion." It is
only here used to designate the conspiracy that resorted to the policy
of assassination as a means to give aid to the rebellion; and the
reader who follows the author through will then be able to perceive why
he designates this a "Great Conspiracy."




PREFACE.


It is now more than twenty-seven years since the assassination of
Abraham Lincoln, President of the United States,--an event of the
greatest importance at the time, not only to the people of the United
States, but to the civilized world. The trial of the conspirators by
a military commission created the greatest possible interest; and the
proceedings and testimony were published from day to day by all of the
great newspapers of the country, and read with avidity. The judgment of
those who carefully studied the testimony at the time was formed upon a
competent knowledge of the facts.

And yet, even then, the fate of the prisoners on trial before the
Commission, to be found innocent or guilty according to the evidence,
constituted the great point of interest, and thus tended to divert
attention from the evidence against the other parties charged not only
with being co-conspirators, but as being the instigators of the plot.

Since that time a new generation has come on to the stage of action,
and as the official report of the trial by Ben Pittman, published at
the time, is in the hands of but comparatively few people, a concise
history of this great event, in popular form, but founded on the
evidence, seemed to the writer to be due and called for at the present
time.

The necessity for this has been emphasized by a recent revival of
efforts that have been made from time to time, ever since the
execution of the assassins that were condemned to death, to prejudice
public sentiment against the government by the assumption of the
innocence of one of the parties executed--Mrs. Surratt.

Only a few months since (May 30, 1891), La Salle Institute in New York
City was crowded by an audience that came together expecting to hear
Cardinal Gibbons and Father Walter review the case of Mrs. Surratt.
Neither the cardinal nor the father appeared, but a Mr. Sloane arose
and read to the audience a letter from Father Walter on the subject.
This letter contained nothing new to those who were familiar with the
case at the time of its occurrence. It was substantially the same that
was published over his signature shortly after her execution. After
stating that he was her confessor, and that his priestly vows did not
permit him to reveal the secrets of the confessional, he very calmly
and positively states his belief in her entire innocence, basing that
belief on what he professes to know. He then relates the efforts he
made to get a reprieve and a postponement of her execution for a few
days, and expresses the belief that could he have succeeded in this for
only ten days he could have saved her life.

He then complains of the manner in which he was treated by the
President, Andrew Johnson, and Judge Holt, who referred him back and
forth, each to the other, and that between them he could get nothing
accomplished.

A story has also been gotten up of a Union soldier who was a member of
the conspiracy and knew all of its members and secrets, who affirms
the innocence of Mrs. Surratt. The most rational and, at the same
time, charitable thing to be said about this story is, that this Union
soldier was manufactured for the occasion.

That portion of the press of to-day that inherits the old copper-head
animus, greedily publishes all such things as these, and indulges in
the wildest latitude of editorial comment and false statements. They
have buried all of the members of the Commission but one many times;
have followed all of the principal actors in the scene to violent and
miserable deaths; and have made it manifest that had the Almighty Ruler
of the Universe viewed the matter in their light, and been as swift in
his retributions as they would have had him to be, not one who had any
connection with the arrest, trial, and execution of the assassins of
the great and good President would have been left alive.

They have manifested an especial venom of feeling against the then
Secretary of War, Hon. E. M. Stanton, iterating and reiterating the
absurd and false statement that he died from the violence of his own
hand, being crazed with remorse. Why they should thus select Mr.
Stanton as the especial object of their hatred cannot be seen from
any connection he had with this case. His part, though important and
involving great responsibility, was, in fact, a very subordinate
one. He selected the officers to be embraced in the order of detail
for the Commission, under the order of the President, that was all.
Judge Holt conducted the trial and recorded the proceedings under the
President's order, and when he handed that record over to the President
his connection with the case ended. President Johnson then held the
temporal destiny of this woman, as well as that of all the others
convicted, in his own hand. He and he alone was responsible.

From all this it appears that the time has come when a clear, concise
history of this conspiracy and trial should be given to the world. To
this task the writer has addressed himself, and he offers this volume
as the result of his labors. The facts herein narrated in regard to
the assassination, as well as to the parts enacted by each of the
individual members of the conspiracy, are drawn from the testimony
before the Commission. They have been thrown into the form of a
connected narrative, and there has been nothing stated as a fact but
what is fully sustained by the evidence which formed the basis of
the decisions of the Commission. Nothing has been admitted into this
narrative but what rests on the specific testimony of unimpeachable
witnesses. The author only deems it necessary that the opinion, or
belief, of Father Walter, and all others of his persuasion, shall be
confronted by the testimony in the case, in order that an intelligent
judgment shall be reached. At the time of this trial there were just
two classes of people in this country--the friends and the enemies of
the government. The former were united and determined in their purpose
and effort to preserve and perpetuate the government established
by our fathers under the constitution that included in its purpose
and provisions the union of the states and made us a nation. The
latter were madly bent on its overthrow, and so judged favorably or
unfavorably of the occurrences of the times, as they tended to favor
or hinder the accomplishment of their purposes. The feelings of both
parties had been wrought up to the highest pitch of intensity because
the matters at issue had been submitted to the arbitrament of the
sword. The result of this appeal was clearly foreshadowed at the time
of the assassination of the President, and before the conclusion of
the trial of his murderers the cause of the Confederacy had collapsed.
The rebellion was virtually overcome. The deep political scheme to
give it a new lease of life and bring to its aid new elements of
success by the assassinations that had been planned, had been too
long delayed, and its execution had become utterly impracticable. The
soldiers of the rebellion had fought their fight--a brave and plucky
and protracted fight. They realized the hopelessness of their cause
and, though greatly disappointed and mortified at their failure, they
had the consciousness that they had done all that brave men could do
to win success, and so were ready to accept the result, return to their
homes, and resume citizenship under the government they were unable to
overthrow. Not so with the secret active enemies of the government.
They were not willing to accept defeat, but were, nevertheless (happily
for the country), in a condition that they could only show their
enmity by maligning and villifying the authorities they were unable
to overthrow; and of this privilege they fully availed themselves.
Thus it has come to pass that the magnitude, scope, and purpose of
the assassination conspiracy are unknown to the present generation.
All that a large majority of those who have come upon the stage of
action since that time know of this, in many respects, one of the most
important trials that has ever occurred in our history, is what they
have learned through the efforts of these vituperators; and they have
never seen it referred to other than as the trial of Mrs. Surratt.
The Commission was not called upon to render a decision as to the
innocence or guilt of the persons charged by the government with being
co-conspirators with John H. Surratt and John Wilkes Booth, who were
not in the custody of the government and so not before the Commission;
but the government, having assumed the responsibility of charging
Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson,
William C. Cleary, Clement C. Clay, George Harper, George Young, and
others, with thus conspiring to kill and murder Abraham Lincoln, Andrew
Johnson, Wm. H. Seward, and Ulysses S. Grant, was under the necessity
of vindicating its honor and dignity before the world by presenting
the evidence in its possession on which its charge was founded. It
will be my purpose to present this evidence, and to show the full
significance and purpose of the plot, and with whom it originated.
Many of the prominent actors in this tragedy have been summoned before
a higher tribunal to answer for the deeds done in the body. There we
are content to leave them, assured that "all things are naked and open
to the eyes of Him with whom they have to do," and that there will be
no mistakes made in the decisions there rendered. And toward those who
yet remain, it is with no feelings of personal enmity that the author
shall write. He only knows them as they are revealed in the testimony,
and by this he shall endeavor to deal fairly and candidly. They made
themselves conspicuous in their connection with public affairs of
the greatest importance, and so their acts belong to the public. If
they have made a bad record, it is due to the truth of history that
their acts shall be fully unfolded. History is a truthful narration
of events that have occurred; and its conclusions must be based on a
consideration of all of the facts, taken in their proper order and
relation to the events. The aim of the writer has been to give a candid
and reliable history of the Great Conspiracy as deduced from the
evidence before the Commission and to be found in the official report
of the proceedings published by Ben Pittman immediately after the trial.

The asperities of the great conflict have been largely obliterated by
the many happy years of peace that have intervened since that unhappy
period. We have but one country and one flag, which almost all have
learned to love as of old. Let us draw wisdom and virtue from the
history of the past, learning as well from our errors and mistakes as
from our virtues, that we may, by a course of well-doing, gain the
favor of Him who holds the destiny of nations in His hands, and who
pulls down one and sets another up.

The stability of a popular government must rest on the virtue and
intelligence of its people. Our institutions were established on this
basis alone, and on this alone can they stand. The divorcement of
Church and State by the framers of our constitution was one of the
wise conclusions which they drew from the past; but it was no part of
their purpose to divorce religion from the State. On the contrary,
their politics was a part of their religion and was deduced from the
teachings of God's word. Let us beware of the effort of the present
time to divorce politics from religion because we rightly divorce the
Church from the State.

There is no morality that can make a man a valuable and a reliable
citizen of a free state except the morality of the Christian religion
as taught in God's word. It is the duty, therefore, of every parent and
every teacher to instill into the minds of our youth this Christian
morality as a basis for the highest patriotism and noblest citizenship.
Let the American flag float over every school-house, and the morality
of the Bible be taught with the authority inherent in God's word. Then
will the days of assassinations, whether political or religious, come
to an end. Owing to a variety of causes, the facts connected with this
most important event in our nation's history have been slurred over
and obscured. Scarcely one in a thousand of our people to-day have any
knowledge of their existence.

The object of the writer will be to revive them and bring them out
clearly to the knowledge of all.

        T. M. HARRIS.

    RITCHIE C. H., W. Va.




CONTENTS.


  EXPLANATION                                                     3

  PREFACE                                                         5

  CONTENTS                                                       13


  CHAPTER I.

  INTRODUCTORY                                                   17


  CHAPTER II.

  PREPARATIONS FOR THE EXECUTION OF THE PLOT                     24


  CHAPTER III.

  ASSASSINATION OF THE PRESIDENT AND ATTEMPTED ASSASSINATION
      OF SECRETARY SEWARD                                        34


  CHAPTER IV.

  THE NEWS COMMUNICATED TO THE WORLD, AND ITS EFFECT             47


  CHAPTER V.

  UNRAVELLING THE PLOT--PURSUIT AND CAPTURE OF BOOTH AND
      HEROLD--DEATH OF BOOTH                                     51


  CHAPTER VI.

  UNRAVELLING THE CONSPIRACY--ARREST OF SPANGLER, O'LAUGHLIN,
      ATZERODT, MUDD, AND ARNOLD                                 60


  CHAPTER VII.

  QUESTIONS PRELIMINARY TO THE TRIAL--WHAT SORT OF TRIAL
      SHOULD BE GIVEN, CIVIL OR MILITARY                         82


  CHAPTER VIII.

  A MILITARY COMMISSION--ITS NATURE, CONSTITUTION, DUTIES,
      AND JURISDICTION                                           96


  CHAPTER IX.

  CONSTITUTION OF THE COMMISSION, AND TRIAL                      98


  CHAPTER X.

  EVIDENCE IN REGARD TO ATROCITIES NOT EMBRACED IN THE CHARGE
      AND SPECIFICATIONS, FOR WHICH DAVIS AND HIS CANADA
      CABINET WERE RESPONSIBLE                                  118


  CHAPTER XI.

  EVIDENCE PRESENTED BY THE GOVERNMENT TO SUSTAIN ITS CHARGE
      AND SPECIFICATIONS                                        147


  CHAPTER XII.

  THE GOVERNMENT WITNESSES AGAINST DAVIS AND HIS ASSOCIATES
      IN THIS CRIME                                             163


  CHAPTER XIII.

  A CRITICISM OF NICOLAY AND HAY                                177


  CHAPTER XIV.

  JACOB THOMPSON'S BANK ACCOUNT--WHAT BECAME OF THE MONEY       182


  CHAPTER XV.

  THE CASE OF MRS. SURRATT                                      192


  CHAPTER XVI.

  FATHER WALTER                                                 204


  CHAPTER XVII.

  CONCLUSION                                                    211


  CHAPTER XVIII.

  FLIGHT AND CAPTURE OF JOHN H. SURRATT                         212


  PART II.


  CHAPTER I.

  INDICTMENT AND TRIAL                                          229


  CHAPTER II.

  A CRITICISM OF THE DEFENSE                                    253


  CHAPTER III.

  TREATMENT OF WITNESSES AND EVIDENCE BY THE COUNSEL FOR
      THE DEFENSE, AND THEIR ANIMUS TOWARD THE GOVERNMENT
      AND APPEALS TO THE POLITICAL PREJUDICES OF JURORS         259


  APPENDIX                                                      317

  PREFACE TO APPENDIX                                           319

  ARGUMENT OF JOHN A. BINGHAM                                   325

  CONTROVERSY BETWEEN PRESIDENT JOHNSON AND JUDGE HOLT          407




PART I.

ASSASSINATION OF LINCOLN.

[Illustration: A. Lincoln ]




CHAPTER I.

INTRODUCTORY.


The rebellion of the slave-holding states, and the attempt to establish
a separate government by force of arms, was solely in the interest
of the institution of slavery. The Southern Confederacy was to rest
on this institution as its corner-stone. By the establishment of the
Confederacy it was intended to end, forever, the agitation of this
question, and establish the system of human slavery as one of the
permanent institutions of the world. And all this in the nineteenth
century of the Christian era! Preparatory to this the pulpit and the
press had been suborned, the Christian conscience of the country had
been debauched, and the doctrine that slavery was a Divine institution
was taught, and accepted as true, by one-half of the American people.

A doctor of divinity, or even a common preacher, who could prove this
to his own satisfaction, and that of his hearers, at once achieved
popularity, and had his great learning and ability heralded by the
secular press throughout the South land. Neither was this kind of
preaching confined to the South. It found a distinct and earnest echo
in many places in the North. It was argued, and no doubt sincerely
believed, that slavery was the best condition for securing the
happiness and welfare of the African race--the condition in which
the negro could be most useful to the world; that his condition had
been greatly improved by his transplantation from a heathen land and
the environments of barbarism to a Christian land and civilized and
Christian environments; and that subjection to a higher and superior
race was necessary to his deriving the highest benefit from the change.
Slavery, it was taught, was a patriarchal institution, and that it was
only through it that the highest ideal of human civilization could be
attained. It was natural that a people whose judgment had crystalized
around such opinions as these should be intolerant of opposition, as
they had closed the door to discussion on this question; and so for
several generations a contrary opinion was not tolerated, or allowed
to find expression, in the slave-holding states. The agitation of this
question, in its moral aspects, by constantly increasing numbers of
earnest, able men in the North, at last led to the organization of
a political party opposed to this institution, and the question of
slavery thus became a political question.

The friends of the institution instinctively recognized the danger that
thus confronted them, and began to strengthen their fences by most
stringent measures to repress discussion and shut out the light. This
was a tacit admission that they felt themselves unable to stand before
the world in argument. It may be laid down as an axiom, that whenever
a political party forecloses discussion on any subject, but more
especially on a great moral issue, it is not only on the wrong side of
that issue, but has an intuitive perception of that fact.

It may also be accepted as an axiom, that the more inconsistent a man's
attitude is on any great moral question the more intolerant will he be
of opposition. Not only were the most stringent laws passed to prevent
the discussion of the institution of slavery in its moral aspects in
the Southern States, but also the most lawless and violent measures
were resorted to, so that it was as much as a man's life was worth to
undertake to make a public argument against slavery in a slave-holding
state, and even to be found earnestly opposed to the institution in
sentiment was to put personal safety in jeopardy. The making of this
question a political question tended largely to de-sectionalize it. No
party could hope to succeed, as a National party, without the vote of
the South, and this could only be secured by concessions to the demands
of the slave holders in the interest of that institution; and so the
party that was willing to concede the most to their demands became the
dominant party in the nation. Thus the leading Democratic politicians,
all over the North, became the staunch advocates of slavery; and we
all know with what blind confidence, and fierce determination, the
masses follow their political leaders. The culmination of the contest
over this question, resulting in the election of Abraham Lincoln
to the Presidency by a party openly opposed to slavery, caused its
friends to take their appeal from the ballot box to the sword; and
this appeal found those who were the friends of the institution from
political party considerations scattered all over the North in quite
formidable numbers, constituting an enemy in the rear of our armies
that gave to the administration of President Lincoln no little anxiety
and embarrassment, making it necessary for him, as early as September,
1862, to proclaim martial law and suspend the writ of _habeas corpus_
in respect to all persons in the United States who were found to be
actively disloyal, and engaged in efforts to aid the rebellion. The
following is a copy of his proclamation:--

    GENERAL ORDERS NO. 141.

          WAR DEPARTMENT,
        ADJUTANT GENERAL'S OFFICE,
            WASHINGTON, Sept. 25, 1862.

    The following Proclamation by the President is published for
    the information and government of the Army and all concerned:

    _By the President of the United States of America._

      A PROCLAMATION.

    Whereas it has become necessary to call into service not only
    volunteers but also portions of the militia of the States
    by draft, in order to suppress the insurrection existing in
    the United States, and disloyal persons are not adequately
    restrained by the ordinary processes of law from hindering
    this measure and from giving aid and comfort in various ways
    to the insurrection: Now, therefore, be it ordered: First,
    That during the existing insurrection, and as a necessary
    measure for suppressing the same, all rebels and insurgents,
    their aiders and abettors, within the United States, and all
    persons discouraging volunteer enlistments, resisting militia
    drafts, or guilty of any disloyal practice affording aid and
    comfort to rebels against the authority of the United States
    shall be subject to martial law, and liable to trial and
    punishment by court-martial or military commission. Second,
    That the writ of _habeas corpus_ is suspended in respect to
    all persons arrested, or who are now, or hereafter during the
    rebellion shall be, imprisoned in any fort, camp, arsenal,
    military prison, or other place of confinement, by any military
    authority, or by sentence of any court-martial or military
    commission. In witness whereof I have hereunto set my hand, and
    caused the seal of the United States to be affixed.

    Done at the city of Washington, this twenty-fourth day of
    September, in the year of our Lord one thousand eight hundred
    and sixty-two, and of the Independence of the United States the
    eighty-seventh.

        ABRAHAM LINCOLN.

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

    By order of the Secretary of War,
      "L. THOMAS, _Adjutant General_."

        "Official."


This disloyal element was rendered much more formidable by the fact
of its perfect combination, through secret, oath-bound organizations
under the names of Knights of the Golden Circle and Order of American
Knights. These secret orders no doubt had their origin in the South,
preparatory to secession and war; but after the war had been commenced
it was chiefly in the North that they were useful to the rebel cause,
and it was through these that the assassination of the President-elect
was to have been accomplished at Baltimore when on his way to the
Capital in 1861, and thus his inauguration as President was to have
been prevented. We thus see the desperate character of the political
leaders of the rebellion, who were ready to frustrate the expressed
will of the people by resorting to assassination. We need not think
strange that a rebellion which was ready to resort to such means in its
incipiency should finally expire under the weight of this infamy.

By these secret organizations, the enemies of the government, wherever
they might be, possessed the means of a secret recognition amongst
their members. And under whatever circumstances they might be placed,
the obligations of their oath afforded them confidence and security.
They constituted a brotherhood, and by their secret grips, signs,
passwords, etc., they had a guarantee of unity of sentiment and of
purpose, and of faithfulness to each other and to the obligations of
their oath.

These organizations were regarded as allies by the rebel government,
and were counted on as a valuable factor to secure the success of its
arms. This element in the North kept itself in constant communication
with the rebel government and the rebel armies, and thus, in a large
degree, filled the place of spies in giving information. To furnish
facilities for communication with its friends in the North, as also
for various other purposes in aid of the rebel cause, the Confederate
Government sent a number of its ablest civilians to Canada, at an
early period of the war, as its secret agents, who established their
headquarters at Montreal. This cabal consisted of the following
persons: Jacob Thompson, who had been Secretary of the Interior under
Buchanan's administration; Clement C. Clay, who had been a United
States Senator from Alabama; Beverly Tucker, who had been a Circuit
Judge in Virginia; George N. Sanders, William C. Cleary, Prof.
Holcomb, George Harper, and others. Of these, Thompson, Tucker, and
Clay seem to have held semi-official positions, and we will designate
them as Davis's Canada Cabinet. The others named, as also others
unnamed above, appear to have acted as aids, in a subordinate capacity,
in the execution of their plots. They all claimed to be acting as
agents of the Rebel Government upon their oaths on the trial for the
extradition of the St. Alban's raiders.

The proclamation of martial law and suspension of the writ of _habeas
corpus_ in September, 1862, had the effect of restraining the open,
active efforts of these secret disloyal organizations to cripple the
resources at Mr. Lincoln's command for suppressing the rebellion,
inasmuch as any such efforts were met by arrest, military trial, and
imprisonment; yet, inasmuch as they created a necessity for a military
police at all important points in the North, they felt that they were
still rendering valuable service to the rebellion by thus weakening
the force at the front; and whilst it was necessary to conduct their
operations with much more secrecy, their organizations were not
disbanded. They went on to effect a complete military organization,
thoroughly officered and drilled, and in many cases armed, holding
themselves ready to take the field in any emergency that might arise
that would justify so bold a measure. The Canada Cabinet watched over
these organizations with great interest, and directed their operations,
and by many schemes sought to bring about an emergency that would
enable them to bring this army, which they had hidden away in secrecy,
into the field of active operations for the success of their cause.
The officers of these secret military organizations were chosen from
the local political leaders in the different localities where they
existed, and kept themselves in communication with the Canada Cabinet,
and through this medium the Confederate Government was kept informed of
their strength, organization, plans, and purposes. So bold and active
did they become, in spite of the efforts of the military police for
their suppression, that the government finally found it necessary,
through its secret service department, to possess itself of a thorough
knowledge of these organizations, and in this way was enabled to
capture the arms and munitions of war which had been secured and were
hidden away in secrecy by them, and also to arrest the leading officers
of these organizations in several states. Whilst by these means these
treasonable combinations were seriously crippled, they were unchanged
in animus and still struggled to maintain their existence. They kept
themselves in communication with the Canada conspirators, and ready
to co-operate with them for the success of their schemes should the
conditions become sufficiently promising to justify them in declaring
themselves openly.

It was in the summer of 1864 that Jacob Thompson, according to the
testimony before the Commission, declared that he had his friends all
over the Northern States, who were willing to go to any length in order
to serve the cause of the South. Jefferson Davis's Canada Cabinet kept
up a constant correspondence with their chief, through secret agents
who travelled directly through the states, and even through the city of
Washington.

So potent was the aid of secret signs, grips, pass-words, etc., as a
means of recognition, and so universally were the members of these
secret orders diffused over the country, that they could go anywhere.
Should one agent find it necessary to stop his task for fear of
detection, another would take it up; and where men could not go, women
went, to carry communications. The Canada Cabinet was well supplied
with money by the government at Richmond, and in this department of the
service Jacob Thompson seems to have been Secretary of the Treasury.
He kept his deposits largely in the Ontario Bank of Montreal, and his
credits there arose from Southern bills of exchange on London. The
object of the writer in this introductory chapter has been to place
clearly before his readers the formidable character of the conspiracy,
which, with the President of the Confederacy at its head, and organized
by his Canada Cabinet, was intended to throw the loyal North into a
state of chaotic confusion and bring to the aid of their sinking cause
the disloyal element all over the North, by a series of assassinations
which would leave the nation without a civil and military head and
without any constitutional way of electing another President, and
at the same time would deprive the armies of the United States of a
lawful commander. This was the last card of the political leaders of
the rebellion, the last desperate resort to retrieve a cause that had
been manifestly lost in open warfare. It may seem like temerity in the
writer to make such a charge involving a total disregard of the laws of
civilized warfare, and such utter moral depravity on the part of these
conspirators, and to claim for their wicked project the approval of
Jefferson Davis, but the evidence in the possession of the government
and adduced before the Commission, it will be seen, fully justified
the government in making this charge. The persons brought before the
Commission, though in full sympathy in sentiment with their employers,
were merely the tools and hired assassins of the Canada Cabinet, acting
under the advice and sanction of their chief. I shall now proceed to
bring before my readers the denouement of their plot, and, from the
evidence given before the Commission, show that the origin, scope and
purpose of the conspiracy have been truly indicated above.




CHAPTER II.

PREPARATIONS FOR THE EXECUTION OF THE PLOT.


The evidence which will be hereafter referred to shows that John Wilkes
Booth and John H. Surratt had, as early as the latter part of October,
or early in November, 1864, entered into a contract with Davis's Canada
Cabinet to accomplish the assassinations they had planned, and that
they immediately entered upon their work of preparation. It would seem
from the evidence, that at that time the purpose was to execute their
designs at a much earlier date than they did; and that this delay was
occasioned by the Canada conspirators.

[Illustration: J. WILKES BOOTH.]

Surratt and Booth, however, were busied from that time on in making
their preparations. The first step was to enlist in the conspiracy a
sufficient number of competent and reliable assistants, to each one
of whom was assigned the part he was to take in it, and to train,
equip, and prepare him for the part assigned him. The assassination of
President Lincoln had fallen to Payne by lot; and to him was entrusted
the task of making all needed preparations. Payne had visited Canada
during the fall of 1864, and probably there made the acquaintance of
Booth. To a man of Booth's sagacity, a mere glance at Payne would be
sufficient to impress him with the idea that he was one of the helpers
he wanted; and as we find him as early as February, 1865, transplanted
to Washington City by Booth and Surratt, and from that time on
associating with them very intimately but very secretly, and without
employment, or visible means, passing back and forth between Washington
and Baltimore, and finally provided with quarters in Washington by
Surratt, there can be no doubt that he was early enlisted in the
conspiracy, and supported by the Canada Cabinet through their agents
in Washington--Booth and Surratt. The author is led to conclude
from studying the evidence that Booth and Surratt were acting under a
considerable latitude of provisional instructions, and that to them was
entrusted the selection of the time and place for the accomplishment of
their purpose. There were a number of persons in Canada, members of the
conspiracy, who were expected to take an active part in its execution;
and it is altogether probable that the original plan contemplated the
accomplishment of these assassinations as opportunities could be found
or made, and that for each one a man had been assigned.

John Wilkes Booth and John Harrison Surratt were the leaders of the
conspiracy in Washington, they having proposed to their co-conspirators
in Canada to accomplish for them the assassinations they had planned.

They were stimulated by their intense hostility to the administration
of President Lincoln and desire for the establishment of the Southern
Confederacy, and also by the delusive idea of winning enduring fame and
the lasting gratitude of their countrymen of the South for being thus
the instruments of retrieving the fortunes of their dying cause. But in
addition to these considerations, they had large promises of pecuniary
reward. They were, in fact, the hired assassins of Jefferson Davis and
his Canada Cabinet.

These two men had been engaged for months in making their preparations
for the assassination of the President, Vice-President, Secretary
Seward, and General Grant. They visited and conferred with the Canada
conspirators from time to time during the summer and fall of 1864,
and early winter of 1865. They traversed the counties of Prince
George, Charles, and St. Mary's, Maryland, lying along the north side
of the Potomac below Washington, to prepare the way for escape by
securing confederates along the contemplated route who would assist
in facilitating their flight by aiding them in their progress, or
by concealing them if necessary. Booth had spent some time in this
work during the fall and early winter, making himself familiar with
the geography of the country, roads, etc., under the pretence that
he desired to purchase lands in Maryland. He found in Charles County
Dr. S. A. Mudd, who sympathized with his plans, and entered into them
at least so far as to pledge him any assistance he could give him
in making his escape. Mudd also visited Booth two or three times in
Washington during the winter, introducing him on the occasion of his
first visit to John H. Surratt; and in the course of these visits he
was always found in company with Booth and others of the conspirators
who were to take an active part in its accomplishment, and was no
doubt kept well informed of the progress of their preparations, and
of the time when it would be attempted after that had been determined
upon. Surratt also spent much time during the winter in this part of
Maryland, in preparation for the work. Being at home there, he could
render Booth valuable assistance by procuring friends who would aid him
in his flight, and in getting him across the Potomac at the selected
point. As this was on the line of a regular underground mail route
between Washington and Richmond, with which Surratt was familiar, he,
of course, had no difficulty in making satisfactory arrangements, the
great mass of the population in all of these counties being intensely
disloyal.

They had selected and arranged with Payne, Atzerodt, O'Laughlin,
Arnold, Herold, Spangler, and numerous other parties who were never
made known, to take an active part in the work of assassination, or to
aid them in their escape. Booth and Surratt had provided horses for
the occasion, and, with Atzerodt and Herold, were known to a number of
liverymen of whom they were liberal and frequent patrons.

Surratt provided quarters for Payne at the Herndon House, representing
him to be a delicate gentleman, and stipulating that his meals should
be served to him in his room. Atzerodt, who was to have assassinated
the Vice-President, had taken a room at the Pennsylvania House. Booth,
being an actor, and familiar with the routine of the play and the work
of the assistants on the stage, having selected Ford's Theatre as the
place for the accomplishment of his purpose, proceeded to make himself
at home amongst the _habitues_ of that establishment. He was a very
handsome man, stylish in his dress, dissolute in his habits, a constant
and free drinker, generous in the expenditure of his money on his vices
of smoking and drinking, and of great personal magnetism. He soon
ingratiated himself with the employees of the theatre, and became a
general favorite.

It was necessary that he should have a co-conspirator at the theatre
to assist him in making his escape. He had labored hard with an actor
in New York by the name of Chester, with whom he was acquainted, to
engage him in the conspiracy, that he might station him at the door of
his exit, to see that his way should be clear and the door open at the
critical moment, for which service he offered to pay him three thousand
dollars; but Chester, after several interviews and much importunity,
absolutely declined, and begged Booth never to mention the matter to
him again. Failing to secure Chester, he turned his attention to Edward
Spangler, an employee at the theatre. Spangler was a man of dissipated
habits, low moral tone, and little intellectual culture, and being
politically in sympathy with Booth, he was easily led by him into the
conspiracy. Booth had had a shed fitted up as a stable in an alley back
of the theatre, and had kept his horse in it occasionally for some time
previous, that he might have it convenient when the supreme moment
should have arrived, without exciting suspicion. To reach the private
box fitted up on the occasion for the occupancy of the President and
General Grant, with their wives, it was necessary to pass through two
doors. The first led into a passage behind the box, the second from
this passage into the box. To prevent any one from following him into
the passage and hindering the accomplishment of his purpose, Booth had
cut, himself, or more likely had had Spangler, who was a kind of rough
carpenter, cut a mortise in the plastering of the passage wall, in such
a position with reference to the door that the end of a wooden bar,
three and a half feet long, which had been prepared for that purpose,
could be inserted in the mortise, and the other end placed against the
panel of the door so that it could not be opened from the outside.

That ingress to this passage might not be prevented by the bolting of
the door by the President and his party after entering, the screws of
the fastenings had been drawn, so that it could be easily pushed open.
A hole had been bored through the door to the box, opposite where the
President's chair was placed, with a small bit, and reamed out with a
knife, so that Booth could, after gaining the passage and barring the
door behind him, peep through this hole and assure himself of the exact
position of his intended victim. The manner in which all of these
arrangements had been made, the mortise in the plastered wall, the
bar of wood fitted to the mortise, and in length having been exactly
prepared to fit against the panel of the door and act as a brace, show
that all these preparations had been made with the greatest forethought
and care.

About three weeks previous to the assassination, John H. Surratt,
Herold, and Atzerodt brought to the tavern at Surrattsville, in
Maryland, about ten miles below Washington City, owned by Mrs. Surratt,
and at the time occupied by a man by the name of Lloyd, two carbines,
with ammunition, a monkey-wrench, and a piece of rope. Surratt asked
Lloyd to take charge of these things and keep them secreted, saying
they would be called for before a great while, at the same time showing
him a suitable place about the house in which to hide them. The Surratt
family had lived in this house and kept a country tavern until within
a few months previous, when they had removed to Washington, renting
their tavern to Lloyd, so that Surratt was much more familiar with the
house than Lloyd. These things, as we shall see, were placed there
for the use of Booth and his companion in their flight after the
assassination. As a precautionary measure, Booth, on the Tuesday before
the assassination, sought an interview with Mrs. Surratt, who shortly
after that interview discovered that she had some private business at
Surrattsville that had to be attended to that day, and so she asked
Mr. Wiechmann, a young man who had been a boarder at her house for
several months, to drive her down, saying that she wanted to go and
see a Mr. Nothey who owed her some money. She then sent Wiechmann to
Booth, to get his horse and buggy for the drive. Booth told Wiechmann
that he had sold his horse and buggy, but gave him ten dollars with
which to procure one. Meeting Lloyd on the way down, driving up to
Washington, they stopped; Lloyd got out of his buggy and went to the
side of Mrs. Surratt's buggy, on which she was sitting, when Mrs.
Surratt told Lloyd, as he afterwards testified, in a low voice, so that
Wiechmann did not hear what she said, to have those shooting irons
ready, or handy, as they would be called for before long. On the day
of the assassination Booth again had a private interview with Mrs.
Surratt, after which she again asked Wiechmann to drive her down to
Surrattsville, claiming the same errand as before. On this occasion she
sought an opportunity for a private interview with Lloyd, when she told
him to have the carbines handy, as they would be called for that night,
at the same time handing him a field-glass, which Booth had given to
her, and telling him to have two bottles of whiskey ready.

John H. Surratt left Washington for Richmond on the 25th of March and
returned to Washington on the 3d of April, leaving for Montreal on the
evening of the same day. He showed to Wiechmann--an old college friend
and, at this time, a boarder in his mother's house--nine or eleven
twenty-dollar gold pieces, and sixty dollars in greenbacks, on his
return from Richmond. Surratt, in his Rockville lecture, admits that
he received two hundred dollars in gold from Benjamin to pay expenses
and remunerate for services. Surratt left Washington for Canada on
the evening of the 3d of April, and we find him, by the evidence, in
Montreal on the 6th, where he delivered to Thompson a cipher dispatch
from Jefferson Davis, and a letter from Mr. Benjamin, of Davis's
Richmond Cabinet. After reading these documents, Thompson, laying his
hand on them, said, "This makes the thing all right." The sanction of
the rebel president to his arrangements with the assassins had been
obtained, and authority also for the expenditure of funds to fulfil the
contract. The Canada conspirators who were to take a part prepared at
once, and started for the States, boasting to their friends that they
would hear of the death of Old Abe and others before ten days. This was
on the 8th of April, and nothing now remained but to find, and use, an
opportunity; and Booth selected the appearance of the President at the
theatre as affording the opportunity he sought, and proceeded to make
all his arrangements accordingly.

All things were now ready. Booth had selected the route for his escape
and had provided to be furnished with a field-glass, two carbines,
and two bottles of whiskey at Surrattsville, having sent a notice to
Lloyd to have them ready, as they would be called for that night. He
had provided horses from a livery-stable for himself and Herold, who
was to accompany him. He had also provided a horse for Payne, whose
part was to murder Secretary Seward. He had assembled his assistants
in Washington, to one of whom, Michael O'Laughlin, he had assigned
the task of the assassination of General Grant; and having made these
preparations, he spent the day and afternoon of the 14th of April
looking after the matter generally, and keeping up his courage, or
rather recklessness, with frequent potations of whiskey. To Payne he
had given a one-eyed bay horse, which he had purchased of a man by the
name of Gardner, a neighbor of Dr. Samuel Mudd, in Charles County,
Maryland. Mudd accompanied him, and introduced him to Gardner as a
man who was desirous of purchasing land in that part of Maryland,
and who wished a good driving horse that he could use for a short
time. During the afternoon of the 14th, Booth, Herold, and Atzerodt
hired horses from liverymen, and were to be seen riding here and
there about the streets of Washington, frequently stopping at saloons
to refresh themselves with that which obtunds all moral sensibility
and makes men reckless in wickedness. Booth was acting the part of a
general mustering his forces for the conflict, part of which he thus
displayed openly, but keeping another part in concealment. He kept
himself in active communication with all, and delivered his orders
and instructions. Feeling the full force of the responsibility of
his engagement, and earnestly intent on its complete and thorough
accomplishment, he attended in person to every detail to make failure,
if possible, an impossibility.

It would seem that a previous attempt had been made to assassinate
the President, which had resulted in a failure. It was known that
President Lincoln was in the habit of riding out to the Soldiers' Home
of evenings, passing through a lonely suburb of the city unguarded.
Some time in March, John Wilkes Booth, John H. Surratt, Payne,
Atzerodt, Herold, and two others, left the house of Mrs. Surratt about
two o'clock in the afternoon, on horseback, armed with revolvers
and bowie-knives, and returned about six o'clock under the greatest
possible excitement of rage and disappointment. All the evidence
went to show that this expedition was regarded by them as one of the
greatest importance, involving the necessity of leaving the city,
perhaps for good, as their return in the evening was as much of a
surprise to their friends as it was an occasion of dissatisfaction to
themselves. I think there can hardly be a doubt that they expected to
intercept the President on his way to the Home, and were lying in wait
for him with the purpose of there assassinating him, and then making
their escape. The President, however, upon the earnest advice of his
cabinet, had yielded the point of riding unprotected and alone, and had
accepted the protection of an escort of cavalry on these rides. Booth
and his party finding him thus guarded had been compelled to abandon
the idea of thus finding an opportunity to assassinate him, and so had
to prepare a new plan of operations. There was a rumor, which found
its way into the papers about this time, that there was a plot to
capture the President and carry him a prisoner to Richmond; but however
much Booth's pride and vanity might have impelled him to achieve the
notoriety that would have attended the accomplishment of such a feat,
the difficulties and dangers attending its accomplishment must have
been too obvious to a man of Booth's sagacity, and its success involved
in too much uncertainty, to have justified him in making such an
attempt.

In view of all the facts, I conclude that the real purpose of Booth and
his party on the occasion referred to was to murder the President, and
trust to flight for concealment and safety. But now Booth was fully
possessed with the idea of the practicability of his present plan, and
was determined to know no such word as fail; and that it was entirely
possible that, but for a Providential interference, he might have made
good his escape after murdering the President, we shall hereafter see.

President Lincoln had been convinced by the most undoubted proofs
that a plan for his assassination at Baltimore whilst on his way to
Washington, in 1861, to assume the responsibilities of the office to
which he had been called by the choice of the people, had been arranged
and prepared for by his enemies, and had only been prevented of its
execution by the strategic movement planned by his friends, by which he
passed through that city during the night previous to the morning on
which he was expected.

"From the very beginning of his Presidency Mr. Lincoln had been
constantly subject to the threats of his enemies and the warnings of
his friends. The threats came in every form: his mail was infested with
brutal and vulgar menace, mostly anonymous, the proper expression of
vile and cowardly minds.

"The warnings were not less numerous; the vaporings of village
bullies, the extravagancies of excited secessionist politicians, even
the drolling of practical jokers, were faithfully reported to him by
zealous or nervous friends. Most of these communications received no
notice. In cases where there seemed a ground for inquiry it was made,
as carefully as possible, by the President's private secretary and by
the War Department, but always without substantial results.

"Warnings that appeared to be most definite, when they came to be
examined proved too vague and confused for further attention. The
President was too intelligent not to know he was in some danger. Madmen
frequently made their way to the very door of the executive offices,
and sometimes into Mr. Lincoln's presence.

"He had himself so sane a mind, and a heart so kindly even to his
enemies, that it was hard for him to believe in a political hatred so
deadly as to lead to murder. He would sometimes laughingly say, 'Our
friends on the other side would make nothing by exchanging me for
Hamlin,' the Vice-President having the reputation of more radical views
than his chief. He knew, indeed, that incitements to murder him were
not uncommon in the South. An advertisement had appeared in a paper of
Selma, Alabama, in December, 1864, opening a subscription for funds to
affect the assassination of Lincoln, Seward, and Johnson before the
inauguration."[1]

In view of all this danger he would say "that he could not possibly
guard against it unless he were to shut himself up in an iron box, in
which condition he could scarcely perform the duties of a President.
By the hand of a murderer he could only die once; to go continually in
fear would be to die over and over."

To his faithful and devoted friend, Father Chiniquy, who on several
occasions warned him of his danger, and of the ultimate source of its
inspiration, he said, "I see no other way than to be always prepared to
die. I know my danger; but man must not care how and where he dies,
provided he dies at the post of honor and duty."

We have come to the point now where we find, on the part of his
murderers, all things ready for his taking off; and their intended
victim prepared in mind for his fate, and ready to "die at the post
of honor and duty." What a fearful, and at the same time, sublime
spectacle! The powers of light and the powers of darkness were
contending, as ever, for the supremacy. Satan, the usurper, claims this
world for his kingdom. He has seduced and enslaved the human race, and,
by every false and cunning device, is always resisting every movement
that looks to the disenthralment of mankind, and bringing the world
back to its allegiance to God, its rightful sovereign. How sublime was
the faith of President Lincoln in the ultimate triumph of the right!
How sincerely and believingly could he have sung,

        "Thy saints in all this glorious war,
          Shall conquer though they die;
        They see the triumph from afar,
          By faith they bring it nigh."




CHAPTER III.

ASSASSINATION OF THE PRESIDENT AND ATTEMPTED ASSASSINATION OF SECRETARY
SEWARD.


On the morning of the 14th of April, 1865, the President's messenger
went to Ford's Theatre in Washington City and engaged a private box
for the President and General Grant, with their wives, to witness the
play of "Our American Cousin," which was to be rendered there that
night. The heavy burden of responsibility, the weight of cares and
anxieties which had for four long years rested on the head of President
Lincoln in his official position of President of the United States
and Commander-in-Chief of its army and navy, employed during all that
time in suppressing a gigantic rebellion of the slave-holding States
of the South against the constitutional and lawful authority of the
government, and which had followed him into his second term of office,
upon which he had just entered, had been partially lifted by the signal
success of the Union arms at Appomattox, and the surrender of Lee's
army. General Grant, who had just accepted the unconditional surrender
of that army, and finished the work of dismissing to their homes the
officers and men who had composed it (and who for four long years had
fought with such magnificent bravery, and manifested such earnestness
and determinedness of purpose in a cause which, though bad, was no
doubt esteemed by them to be just), under no other condition than that
they should return to their homes and the pursuits of peaceful life,
and desist from all further acts of hostility against the government
they had sought, but failed, to overthrow, had gone to Washington to
talk over the situation with the President and Secretary of War, and
to decide on future operations for the speedy establishment of peace.
With the surrender of Lee's army, and the successful march of Sherman
from Atlanta to the sea, and his almost unresisted progress up the
coast toward the Nation's Capital, it was obvious that the rebellion
had collapsed, and that the return of peace was just at hand. All
loyal hearts throughout the land throbbed with joy, and praise and
thanksgiving ascended to Him who had stamped the righteousness of the
union cause with the signet of His approbation, in thus giving us the
victory after a long and bloody contest. The years of sacrifice, toil,
suffering and danger were almost forgotten in the gladness of that
hour; and the war-scarred veterans in the field, and their friends at
home, were rejoicing at the prospect of a speedy re-union, under skies
of peace. It was an hour big with the memories of the past and hopes
of the future. When we think of what President Lincoln had endured
through all these years of the war; of his unfaltering purpose to
discharge all the duties of his official oath, by protecting, defending
and preserving the constitution of his country; of the formidable
difficulties that had to be met and overcome--difficulties thrown
across his pathway often by friends, always by foes; when we remember
his largeness of soul, his unbounded love of, and sympathy with,
mankind; his all controlling love of his country and her institutions
of freedom; his patient toleration of opposing views of martial and of
political policy; his self-poise, and almost infallible appreciation
of the situation and its demands, in whatever circumstances he might
be placed; his kindness of nature and goodness of heart, we can well
conceive what must have been his fullness of joy on this the last day
of his sojourn on earth. God, in his providence, led him to the opening
of a vista through which his patriotic and philanthropic soul could
swell with delightful anticipations of the greatness, the glory, and
the happiness that should accrue to mankind through his faithfulness to
the obligations of his official oath, by which he had vindicated his
authority, and brought to a right solution the great moral question
underlying the contest, and thus had made our beloved land a land
of freedom in fact, as well as in name. He saw a new and glorious
era about to dawn on his country. Like Moses, however, he was only
permitted, in vision, to look over into the promised land--the great
future of his beloved country.

It is consoling to thus know that to the great Lincoln his last day on
earth was the happiest, and at the same time, the meekest day of his
life. His biographers, Nicolay and Hay, who were able to write from
personal association with, and observation of, this great man, inform
us that on this day his soul was filled with the kindliest feelings
toward his enemies, and in his last conference with his cabinet his
policy of dealing with them was shadowed forth as free from feelings
of revenge or desire for the punishment of any. He desired that no man
should lose his life for the part he had taken in the rebellion. He
held "malice toward none," and was filled with "charity for all." His
passage from time to eternity, though brought about by the bullet of an
assassin, was a passage through a triumphal arch, whose further portal
was the gate of heaven.

The presence of General Grant was known to the city, and it was noised
abroad that both he and President Lincoln would honor the theatre with
their presence on that evening. The public knowledge of this fact was
calculated to bring out a brilliant and large assemblage of people.
The loyal citizens would be there to give to the President and the
successful and popular commander of his armies in the field a heartfelt
and royal ovation in this the hour of their triumph. All felt happy
and secure. That they were coming together to witness, on that night,
the awful tragedy of the assassination of the nation's head, President
Lincoln, was not dreamed of by any except those who had made every
preparation in advance for accomplishing the murderous plot, and who
were stealthily slipping about through the assembling crowds, like
fiends, to assure themselves that every arrangement for the successful
accomplishment of their hellish purpose was complete. During the day
General Grant received a telegram that called him to Philadelphia on
business, and owing to this apparently providential circumstance he
was prevented from accompanying the President to the theatre on that
eventful night, and also, in all probability, from being, with the
President, a victim of the plot, in which there is good reason to
conclude, from all the evidence, his life was included, and that for
him an assassin had been provided.

In lieu of General and Mrs. Grant, President Lincoln had taken Major
Rathbone and Miss Harris, the step-son and daughter of Senator Harris,
of New York, into the Presidential party. On reaching the theatre at a
somewhat late hour, and after the play had commenced, as soon as the
presence of the President became known, the actors stopped playing, the
band struck up "Hail to the Chief," and the audience rose and received
him with vociferous cheering.

The party proceeded along the rear of the dress circle, and entered the
box that had been prepared for them, the President taking the rocking
chair that had been placed there for him on the left of the box, and
nearest to the audience, about four feet from the door of entrance to
the box. Major Rathbone and the ladies found seats on the President's
right. During this time the conspirators were on the alert, scanning
the situation, passing about so as to keep up a communication with each
other, in preparation for their work. Booth had arranged with Payne to
assassinate Secretary Seward at the same time that he would assassinate
the President; and no doubt had planned for Payne, after accomplishing
his task, to join him and Herold in their flight, crossing the Eastern
Branch at the Navy Yard bridge, and then to pass down through Maryland
and cross the Potomac, at a selected point, into Virginia, where
they might consider themselves as being safe amongst their friends.
Secretary Seward was known to have received severe injuries from the
upsetting of his carriage, and to be lying in a critical condition
under the care of Dr. Verdi. Booth had planned to take advantage of
this circumstance for gaining admittance for Payne into the sick
chamber, where, by springing with the ferocity of a tiger upon the sick
man, he might make quick work in dispatching him with his dagger. To
this end he had prepared a package rolled up in paper, and had schooled
Payne in the artifice, teaching him to represent himself as having been
sent by Dr. Verdi with this package of medicine, which it was necessary
he should deliver in person, as he had important verbal directions as
to the manner of its use, which required him to see the Secretary.

About ten o'clock Booth rode up the alley back of the theatre where
he had been accustomed to keep his horse, and having reached the rear
entrance, called for Ned three times, each time a little louder than
before. At the third call Ned Spangler answered to his summons by
appearing at the door. Booth's first salutation was in the form of a
question: "Ned, you will help me all you can, won't you?" To which
Spangler replied, "Oh, yes!" Booth then requested him to send "Peanuts"
(a boy employed about the theatre), to hold his horse. Spangler gave
the boy orders to do this, and upon the boy making the objection that
he might be out of place at the time he had a duty to perform, Spangler
bade him go, saying that he would stand responsible for him. The boy
then took the reins, and held the horse for about half an hour, until
Booth returned to reward him with a curse and a kick, as he jerked the
rein from him preparatory to remounting for his flight. After entering
the theatre, Booth passed rapidly across the stage, glancing at the
box occupied by his intended victim, and looking up his accomplices,
he passed out of the front door on to the walk where he was met by two
of his fellow conspirators. One of these was a low, villainous-looking
fellow, whilst the other was a very neatly-dressed man. Booth
held a private conference with these by the door where he and the
vulgar-looking fellow had stationed themselves. The neatly-dressed man
crossed the walk to the rear of the President's carriage and peeped
into it. One of the witnesses, who was sitting on the platform in front
of the theatre, had his attention arrested by the manner and conduct of
these men, and so watched them very closely.

It was at the close of the second act that Booth and his two fellow
conspirators appeared at the door. Booth said, "I think he will come
down now"; and they aligned themselves to await his coming. Their
communications with each other were in whispered tones. Finding that
the President would remain until the close of the play, they then began
to prepare to assassinate him in the theatre. The neatly-dressed man
called the time three times in succession at short intervals, each
time a little louder than before. Booth now entered the saloon, took a
drink of whiskey, and then went at once into the theatre. He passed
quickly along next to the wall behind the chairs, and having reached a
point near the door that led to the passage behind the box, he stopped,
took a small pack of visiting cards from his pocket, selected one and
replaced the others; stood a second with it in his hand, and then
showed it to the President's messenger, who was sitting just below
him, and then, without waiting, passed through the door from the lobby
into the passage, closing and barring it after him. Taking a hasty,
but careful, look through the hole which he had had made in the door
for the purpose of assuring himself of the President's position, and
cocking his pistol and with his finger on the trigger, he pulled open
the door, and stealthily entered the box, where he stood right behind
and within three feet of the President. The play had advanced to the
second scene of the third act, and whilst the audience was intensely
interested Booth fired the fatal shot--the ball penetrating the skull
on the back of the left side of the head, inflicting a wound in the
brain (the ball passing entirely through and lodging behind the right
eye), of which he died at about half-past seven o'clock on the morning
of the fifteenth. He was unconscious from the moment he was struck
until his spirit passed from earth. An unspeakable calm settled on that
remarkable face, leaving the impress of a happy soul on the casket it
had left behind.

Thus died the man who said, "Senator Douglass says he don't care
whether slavery is voted up, or voted down; but God cares, and humanity
cares, and I care."

As soon as Booth had fired his pistol, and was satisfied that his end
was accomplished, he cried out, "Revenge for the South!" and throwing
his pistol down, he took his dagger in his right hand, and placed his
left hand on the balustrade preparatory to his leap of twelve feet to
the stage. Just at this moment Major Rathbone sprang forward and tried
to catch him. In this he failed, but received a severe cut in his arm
from a back-handed thrust of Booth's dagger. Time was everything now to
the assassin. He must make good his escape whilst the audience stood
dazed, and before it had time to comprehend clearly what had happened.
With his left hand on the railing, he boldly leaped from the box to the
stage. The front of the box had been draped for the occasion with the
American flag, which was stretched across its front, and reached down
nearly or quite to the floor. In the descent, Booth's spur caught in
the flag, tearing out a piece which he dragged nearly half way across
the stage. The flag, however, was avenged for this double insult which
he had put upon it; for by this entanglement his descent was deflected,
causing him to strike the stage obliquely, and partially to fall, thus
fracturing the fibula of his left leg, on account of which injury his
flight was impeded, and his permanent escape made impossible. As he
recovered himself from his partial fall and started to run across the
stage with his dagger brandished aloft, he cried out in a theatrical
tone, "_Sic semper tyrannis!_" and quickly passed out at a little back
door opening into the alley where he had left his horse, and, though
closely pursued, succeeded in mounting, and rode rapidly away.

Of course he could not afford to run any risks in regard to his escape,
and for all this he had made his arrangements in advance. Spangler had
faithfully redeemed his promise to render him all the aid he could by
keeping the passage to the door clear at the critical moment, and also
by doing all he could to retard pursuit. When a fellow-employee cried
out, "That was Booth!" Ned ordered him to shut up, saying "You don't
know who it was." Booth was closely pursued by a man by the name of
Stewart, who followed him into the alley, making every effort he could
to stop him; but Booth kept his horse in motion, so that Stewart failed
to get hold of the rein, and the assassin was soon off at a rapid pace.

Stewart testified that Spangler, or a man resembling him, stood
near the door, and could have prevented Booth's exit had he been so
disposed. It is evident his purpose was to aid, rather than hinder, his
escape. All the occupants of the stage, actors and assistants, male and
female, were in a state of confusion and intense excitement except this
man, who evidently had not been taken by surprise, but was prepared in
mind for what had happened, and had played his part in the tragedy.

At the same hour that Booth fired the fatal shot, Payne appeared at the
door of Secretary Seward's house, in the guise of a messenger from Dr.
Verdi, holding in his hand the package that Booth had prepared for him,
and demanded to see the Secretary, saying that he had a verbal message
which was of particular importance in regard to the use, or application
of, the medicine, and that he must see the Secretary himself. Dr.
Verdi had left his patient but a short time previous, and had consoled
the family that had for days been suffering the greatest anxiety on
account of the Secretary's condition by taking a favorable view of the
symptoms. The family, worn with watching and anxiety, were disposing of
themselves for the night. Major A. H. Seward had retired to his room.
Sergeant George F. Robinson, acting as attendant nurse, was watching
by the bedside, in company with Miss Seward, the Secretary's daughter.
Frederick Seward occupied the room at the head of the stairs. All the
rooms occupied by the Secretary and his family were on the second
floor, and were reached by a flight of stairs in the hallway.

The second waiter, William H. Bell, a colored lad of nineteen, was
stationed at the hall door. Being somewhat relieved of their anxiety by
the doctor's favorable view of the case, all were anticipating a night
of quiet rest. The door bell rang, and was responded to by Bell, the
colored waiter. Immediately upon his opening of the door, Payne stepped
into the hall. He was a tall, broad-shouldered, muscular man, as agile
and ferocious as a panther; a low-browed, scowling, villainous-looking
specimen of humanity, the animal preponderating largely in every
feature of his visage and expression of his countenance. There he
stood, holding in his left hand the package, and keeping his right hand
in his overcoat pocket. He demanded of the boy to be allowed to see the
Secretary, telling his story about being sent by Dr. Verdi to deliver
the medicine with his directions. The porter told him that his orders
were to admit no one, and that he could not see Mr. Seward; that he
would deliver the package himself. To this Payne would not consent, but
persisted in saying that he _must_ see Mr. Seward. After considerable
parleying, he started up stairs, and the porter, seeing that he
would go, and thinking that he might complain of his conduct to the
Secretary, asked him to pardon him, to which Payne replied, "O, I know,
that's all right." He was wearing heavy boots, and took no pains to
walk lightly as he went up the stairs, whereupon the porter requested
him not to make so much noise, to which, however, he paid no attention.
As he approached the head of the stairs, he was met by Mr. Frederick
Seward, who had been attracted by the noise, to whom he said, "I want
to see Mr. Seward." Frederick went into his father's room, and finding
him asleep, returned saying, "You cannot see him." All this time Payne
stood holding out the package in his left hand, grasping with his right
hand the pistol in his overcoat pocket. Frederick requested him to give
him the package, saying he would deliver it; but Payne persisted in
saying that that would not do; he _must_ see Mr. Seward,--he _must_ see
him.

Frederick finally said, "I am the proprietor here, and his son; if
you cannot leave your message with me, you cannot leave it at all."
Payne still continued parleying with Frederick for some time; but
finding that his talking availed nothing, he started as if to go down
stairs. This, however, was only a feint on his part in order to throw
Frederick off of his guard and to get rid of the porter who stood
behind him. He again walked so heavily that the porter requested him
not to make so much noise; but at that moment, Payne, having prepared
himself for the encounter, turned quickly, and making a spring towards
Frederick, struck him two or three times with the pistol, which he had
all the time held in his hand, fracturing his skull and knocking him
senseless to the floor. Having learned which was the room occupied
by the invalid by seeing Frederick go into it, Payne rushed past the
prostrate man, opened the door of the Secretary's room, and was met by
Sergeant Robinson. Having broken and thrown down his revolver in his
encounter with Frederick, he had drawn his dagger, and at his first
encounter with the sergeant he struck him with his knife, cutting an
ugly gash in his forehead, and partially knocking him down. He then
pressed rapidly forward, knife in hand, to where the invalid lay in his
bed. Throwing himself upon him, he commenced striking at his face and
neck with his dagger. The Secretary was reclining in a half-sitting
posture, having the coverings well drawn up about his neck and chin,
to which circumstance the failure of the would-be assassin to take
his life was no doubt due. The sergeant, as soon as he recovered his
equilibrium, sprang upon Payne, and Major Seward, having been awakened
by the screams of his sister, sprang into the room in his night-dress.
Finding the sergeant grappling him in such a way as to hinder the
effectiveness of his thrusts at the Secretary, and probably thinking
that he had accomplished his purpose, he turned his attention toward
making his escape. In disentangling himself from the grasp of the two
men who now had hold of him, he gave to Major Seward several severe
cuts about the head and face, crying all the time, "I am mad! I am
mad!" Finally, pulling himself loose, he started to make his way to the
street. Meeting a Mr. Emrick W. Hansel, another nurse, on the stairs,
he made a thrust at him with his knife, inflicting an ugly wound. He
now left the house, leaving five of its inmates stabbed, cut, and
bleeding behind him. Having reached the street, he deliberately threw
his dagger away, mounted the horse which he had hitched in front of
the door, and rode off. Thus, for the time being, this inhuman monster
passed from sight, having made good his retreat minus his dagger,
hat, and revolver. He was not a moment too soon in withdrawing from
the house. The colored porter, as soon as he saw the violence done to
Frederick Seward at the head of the stairs, ran down and out into the
street with the cry of "murder," and did not stop until he reached
General Angur's headquarters, where he reported the occurrence and ran
back immediately, accompanied by two or three soldiers. They reached
the house just in time to see Payne mount his horse and ride away.
He was followed some distance by the porter, who kept nearly up with
him for some time, as he rode slowly at first, but he then mended his
pace, and was soon out of sight. The soldiers, having no orders and not
comprehending the situation, made no effort to stop him, although the
colored boy who gave the alarm, and who preceded them, pointed him out
to them as the man who had so ruthlessly broken the quiet of that house
and produced such consternation amongst its peaceful inmates.

Although Payne rode away so leisurely at the start, he put his horse
to the top of his speed as soon as he had fairly cleared the streets
and reached the suburbs of the city. About two hours later, a bay
horse, saddled, and blind of an eye, came running up a by-road that
led to Camp Barry, about three-fourths of a mile east of the capitol,
and was there halted and taken charge of and placed in General Angur's
stables. The horse, when found, bore marks of having been ridden at a
furious rate. The sweat was streaming from every pore and dripping to
the ground. This proved to be the bay horse that Booth had bought from
Gardner, the neighbor of Dr. Mudd, in November, 1864, and which he sold
to his co-conspirator, Arnold, in January, 1865, according to his own
statement made some time before the assassination.

This was no doubt the horse rode by Payne on that night. The most
probable theory is, that being pushed and urged at a furious rate, and
being blind of an eye, he stumbled and pitched headlong, throwing, and
probably stunning, his rider, after which he regained his footing and
made his escape before Payne had sufficiently recovered to get hold of
him. The fact of his being a little lame when caught goes to sustain
this theory. Thus was the would-be assassin prevented from joining his
comrades, Booth and Herold, in their flight, and compelled to skulk and
hide in the suburbs of the city for the next two days. He was without
arms and hatless, and was compelled to throw away his overcoat, which
was afterwards found, on account of the bloodstains on its sleeves. He
knew that the alarm would spread rapidly throughout the vicinity, and
in his present condition he dared not venture out through the country,
so he was compelled to spend the time in hiding and skulking until he
was forced from his retreat by hunger. Making a covering for his head
out of a sleeve from his under-shirt, which he drew over it like a
turban, he shouldered a pick, which he had stolen from the trenches,
and at near the hour of midnight on the 17th he entered the city. He
went directly to the house of Mrs. Surratt, as the safest place he
could find to rest, hide, and refresh himself, and obtain an outfit
in which he might make his escape. Here he felt that he could trust
the secret of his presence. Unfortunately for him, as well as for Mrs.
Surratt, the government had by this time come into possession of such
information as justified it in sending its military police to that
house, with orders to arrest its inmates.

It had been discovered that the house of Mrs. Surratt had been the
headquarters of the conspirators in Washington City. The officer in
charge of the police, Major H. W. Smith, had reached the house but a
short time before Payne arrived. Payne came with his turban on his
head, and the pick on his shoulder, and rang the door-bell. Major Smith
responded to the bell, and asked him to come in. Seeing the officer, he
said he believed he was mistaken in the house. Being asked whose house
he sought, he replied, "Mrs. Surratt's." The officer replied, "This
is the place," and drawing his revolver on him, ordered him to come
in. Payne entered, and the officer closed the door. He then inquired
who he was, and what he wanted. To these questions he replied that he
was a poor man, and a laborer, and that Mrs. Surratt had sent for him
to dig a drain for her. On being asked what brought him there at that
time of night, he replied that he "merely called to see what time Mrs.
Surratt wanted him to go to work in the morning." The officer saw that
his hands bore no marks of labor, and at once suspected he had caged
one of the conspirators. He placed him under arrest and took him along
with the others in the house, to General Angur's headquarters, where he
was held for identification. William H. Bell, the colored boy who was
second waiter at Mr. Seward's, being sent for, at once unhesitatingly
identified him as the man who had produced such consternation in the
house of Mr. Seward, on the night of the 14th, by his determined
efforts to take the Secretary's life. Lewis Payne, having been thus
captured and identified, and Mrs. Mary E. Surratt, were the first
amongst the conspirators to be held for trial.

After the attack at Secretary Seward's, Dr. Verdi and two or
three other surgeons were at once called to examine and treat the
Secretary and the other victims of Payne's dagger. The house in which
the onslaught was made had the appearance of a charnal house or
slaughter-pen. The Secretary was found to have received three or four
severe cuts about the face and neck, which were only made dangerous by
the loss of blood they had occasioned and the weak condition of the
patient.

The Secretary made a slow but good recovery. Of the other four wounded
men, the wounds of Mr. Frederick Seward proved the most serious,
as his skull had been fractured and depressed, so as to render him
unconscious, from which condition he was only recalled by a surgical
operation.

All finally recovered. Here again we are called to notice the
providences in the case, leading to the capture of Payne, and to the
bringing on his head the just reward of his deeds.




CHAPTER IV.

THE NEWS COMMUNICATED TO THE WORLD, AND ITS EFFECT.


On the morning of the 15th of April, 1865, the telegraph wires carried
to every part of the United States that was in communication with
Washington, and to the rest of the civilized world, the astounding
intelligence that Abraham Lincoln, President of the United States,
had been assassinated on the previous night by John Wilkes Booth,
at Ford's Theatre in Washington City; that at the same hour a most
savage attempt had been made to assassinate the Secretary of State,
Hon. William H. Seward, and that he was lying in a most critical and
dangerous condition from the wounds which he had received, and would
probably die. Never, perhaps, in the history of the race were so many
hearts bleeding, and so many eyes suffused with tears at one time, as
on that sorrowful day. The nation was filled with grief, mingled with
indignation and horror at the deed. The land was literally draped in
mourning. Every city, and every town and village, displayed the sable
habiliments of grief. The response came back to our people, in kind,
from every civilized people on earth.

The writer was at the time a member of Grant's victorious army, and
had large opportunities for witnessing the effects produced by the sad
intelligence on the soldiery of our country. From the highest officers
down to the rank and file of the army, sorrow and grief were depicted
on every countenance. From Appomattox to Richmond the victorious
army that had been filled with joyful and hopeful anticipations over
its successes, and the prospect of the speedy dawn of peace, and of
returning to their homes and friends and to the pursuits of peaceful
life, after four years of arduous military service, was at once plunged
into the deepest sadness and gloom. Strong men wept. It was as though
every soldier had lost his dearest friend. There was always a day of
sadness in the army after every great battle, even in the triumphs
of victory, at the thought of the many brave comrades who had given
up their lives for their country, and would never again be seen in
the ranks,--who were even then being gathered up from the field and
carefully laid away in silence to await the resurrection morn; and of
the others, who with loss of limbs and fearful wounds, were receiving
the care of the surgeons and nurses in the hospitals improvised for the
occasion; but never before had such a pall of grief been thrown over
the entire army.

The depth of sorrow into which the nation was plunged by the news
of his assassination revealed, as nothing else could have done, the
place Abraham Lincoln held in the confidence and affections of the
loyal people of the land. The first shock of the sad intelligence was
almost paralytic. The people--even the army--for the moment stood dazed
and bewildered. What was the meaning of all this? Was the war to be
prolonged? Were we now to be called upon to turn our victorious arms
upon the enemy in the rear, of whose existence we had all the time been
conscious? Such were the questions that first suggested themselves. If
so, the army was then in a state of mind to have made a short work of
it. The victory over our armed foe in front, who had so bravely met us,
and often with success, on many a hotly-contested field, would never
have been yielded to the disloyal cowards who, through all of these
years of the war, from their safe retreats and hiding-places, threw
every obstacle they could in the way of our now martyred President, and
who had planned and accomplished his taking off.

The extent of the conspiracy had not as yet been revealed; but enough
was known to the government to evince the fact that this was an act of
deep political significance, having behind it a very different class of
men from the dissolute and depraved assassins who were executing their
behests, and not merely done for the gratification of personal and
political revenge. It was obvious that the occasion called for the most
vigorous and decided measures on the part of the government to meet
and overcome the strategy of assassinations just now entered upon. It
very soon became known to the authorities that the plot had been but
very partially executed, and that the purpose of the conspirators was
to subvert the constitution by depriving the nation of its executive
head, and leaving no constitutional way of electing a new President,
and at the same time to deprive the armies in the field of a lawful
commander. To accomplish this, the President, Vice-President, Secretary
of State, and General Grant were all to have been assassinated. The
conspirators in Canada and also the rebel president, when they heard
that only President Lincoln had been killed, could not conceal their
disappointment, and virtually confessed that their deep-laid scheme
had proven a failure. The former still adhered to their purpose, and
in their rage declared, "We are not done with them yet." We hardly
dare to venture upon the consideration of what would have been the
result had they completed the work they had planned. We have reason
for profound thankfulness to that God who has thus far so wisely and
graciously watched over our national progress, that he did not permit
its accomplishment. But we, who were actors on the stage at that time,
knowing how the principal actors in our national affairs, both civil
and military, had been schooled in self-sacrificing, patriotic devotion
to the institutions of our fathers, and their unfaltering purpose to
transmit them unimpaired to their children and children's children for
a perpetual inheritance, can but feel assured that even in the dire
extremity now under consideration they would have proven true to their
trust, and would have found a way to restore all of the machinery of
government provided for in the Constitution. The people are above the
Constitution even as the maker is above the thing made.

The rebel armies had been so completely overcome that they could no
longer have formed even a nucleus around which the traitors in the
North could have organized an opposition that could have been regarded
with other than feelings of contempt by our victorious hosts. The time
had passed; the opportunity was gone. No wonder the conspirators in
Canada gnashed their teeth with rage and disappointment because "the
boys had not been allowed to act when they wanted to." They had amongst
their many schemes concocted during the summer of 1864, such as making
raids, liberating rebel prisoners of war held in Northern prisons,
burning cities, spreading pestilence, and poisoning reservoirs, been
led also to consider this scheme of assassinations. All of these things
were to be done in aid of the rebellion.

As their cause became desperate on account of the continued success
of our arms, so did they become desperate in planning to retrieve. As
early as January, 1865, they received a communication from Jefferson
Davis suggesting these things and urging them to stop at nothing,
however desperate, and plainly intimating that Lincoln ought not to
be allowed to live; but it was not until the latter part of March,
1865, that they were prepared to present to him a definitely-prepared
plan for the accomplishment of their purposes that he could accept and
sanction. They had thus been long delayed, and now they were compelled
to realize that their work was a failure. No wonder that they all, from
Jefferson Davis down, felt and expressed grievous disappointment. It
reminds us of Milton's description of the malignant schemes, failures,
disappointments, and rage of the Prince of Devils in his contests with
the Almighty.




CHAPTER V.

UNRAVELLING THE PLOT.--PURSUIT AND CAPTURE OF BOOTH AND HEROLD.--DEATH
OF BOOTH.


The most active measures were at once resorted to by the government
to discover the conspirators, and to capture all who could be found
of those engaged in it. The civil and military police, as also those
engaged in the secret service of the government, were at once set to
work. It was soon learned that Booth and a co-conspirator, which proved
to be Herold, had passed over the navy-yard bridge, on horseback, very
shortly after the hour at which the fatal shot had been fired, and
were fleeing toward Surrattsville and Bryantown in Maryland. They had
been allowed to pass by the sentinel at the bridge, having represented
themselves as citizens on their way to their homes. Booth was first
at the bridge, and gave his true name to the sentinel, saying that he
lived close to Beautown. Five minutes later Herold came and gave his
name as Smith, saying that he lived at White Plains and was on his way
home. Having gotten safely on the road, they directly joined company,
and pushed on rapidly, arriving at Surrattsville about midnight.

Stopping at Lloyd's tavern in Surrattsville, Herold dismounted and
went into the house, saying to Lloyd, "For God's sake, make haste
and get those things!" Lloyd, understanding what he wanted from the
notification given him by Mrs. Surratt on the evening previous, without
making any reply, went and got the carbines, which he had placed in
his bedroom that they might be handy, and brought them to Herold,
together with the ammunition and field-glass that had been deposited
with him, and the two bottles of whiskey that Booth had ordered through
Mrs. Surratt the evening before. Herold carried out to Booth one of
the bottles of whiskey, drinking from his own bottle in the house
before going out. Booth declined taking his carbine, saying his leg was
broken and he could not carry it. As they were about leaving, Booth
said to Lloyd, "I will tell you some news if you want to hear it"; and
then went on to say, "I am pretty certain that we have assassinated
the President and Secretary Seward." The moon was now up and shining
brightly, and the two confessed criminals resumed their flight. The
next heard of them was at the house of Dr. Samuel A. Mudd, near
Bryantown, in Maryland, and about thirty miles from Washington, where
they arrived at about four o'clock on the morning of the 15th, having
travelled at the rate of six miles per hour.

[Illustration: MAP OF BOOTH'S ROUTE.]

Booth's leg had been broken by a fracture of the fibula, or small bone
of the leg, when he fell on the stage on leaping from the President's
box, and by this time had become very painful. He greatly needed
the support of a splint, and quiet as well. He was in a position,
however, to get neither; for although he had reached the house of a
co-conspirator, who was a country doctor, and well disposed to render
him all the aid he could, he appears to have made a very bungling
out, dressing the broken limb with some pasteboard and a bandage that
gave but a very imperfect support. As to the rest he required, that
was impossible, for although Mudd placed him in an upstairs room and
kept him until the afternoon, they were admonished by seeing a squad
of soldiers under Lieutenant Dana passing down past Mudd's place,
which was a quarter of a mile off the road to Bryantown, that there
was no rest for the wicked; and as quickly as it could be done after
the soldiers passed, Mudd got rid of his dangerous charge by sending
them by an unfrequented route to the house of his friend and neighbor,
Samuel Cox, about six miles nearer to the Potomac. Booth was on no new
ground, neither amongst strangers either to his person or to his wicked
purpose. He had spent a good deal of his time during the previous
fall in that part of Maryland, preparing a way for his escape after
accomplishing his purpose. His way had seemed clear to him in advance;
his route had been selected; his friendly acquaintanceships secured.
But, alas! the broken leg. Under the guise of looking at the country
with a desire to purchase lands, he had perfected all his arrangements,
and had expected to pass swiftly over his route, accompanied by
Atzerodt (whose home was in this neighborhood, and who knew all about
the contraband trade with the rebel capital, the underground mail
route between Richmond and Washington, and all of the people engaged
in these operations, and also the place and facilities for crossing
the Potomac), and also by Payne and Herold. He had purposed to be safe
on the soil of the Old Dominion e'er this time. Instead of realizing
all this, he found himself a cripple, scarcely able to travel, and
closely pursued by those whom he knew to be on his trail, with no other
companion than his devoted but inefficient friend, Herold; and thus he
was compelled to realize that

        "The best laid schemes o' mice and men
          Gang aft aglee;
        And lea' us nought but grief and pain
          For promised joy."

Mudd had done all he could to relieve him, but dare not try to conceal
and keep him. He could only forward him to the next stage of his
journey and to a safe place of concealment. This he faithfully did.
Cox lived near Port Tobacco, the home of Atzerodt; and as his was too
public a place to afford safety to the fugitives, he turned them over
to his neighbor, Thomas Jones, a contraband trader between Maryland
and Richmond, who, in the midst of a constant scouring of the country
by pursuing parties, kept his charge concealed in the woods near his
house, supplying them with food and doing everything he could for their
comfort, waiting and watching constantly to find an opportunity to get
them across the Potomac. They were hunted so closely that they could
hear the neighing of the horses of the troopers, and fearing they might
be betrayed by their horses answering the calls, Herold led them into a
swamp near where they lay concealed in the pines and shot them.

The river was being continually patroled by gun-boats, and the task of
getting his wards across proved both difficult and dangerous to Jones.
The proclamation of the Secretary of War, offering one hundred thousand
dollars for the capture of Booth, and warning all persons from aiding
the fugitives in any way in making their escape, had been published
broadcast, yet Jones was true to his trust. Neither the offered rewards
nor the warnings of the proclamation had any effect on him; but for a
whole week he kept them secreted in the pines on his premises, where
Booth lay night and day wrapped in a pair of blankets that had most
likely been furnished him by Dr. Mudd. Finally, being furnished by
Jones with a boat, they took their own risks and effected a crossing;
but they were seen by a colored man, upon whose report General Baker
got on their track and finally effected their capture.

There can be no doubt that Booth had selected this as the route for
his escape months before, and that all of his visits to this part of
Maryland had been made with reference to this plan. Being at length
across the Potomac, even though under such unfavorable auspices, Booth
no doubt drew a free and exultant breath at having been permitted to
set his foot at last on the soil of the Old Dominion. He felt that he
was now amongst friends who would aid him in his progress, or help
him by concealment, as the case might require; and his friend Jones
no doubt breathed with a freedom he had not known for some days at
finding himself cut loose from his dangerous charge. Booth was greatly
disappointed at the cold reception given him by the people on whom he
had counted so much after crossing into Virginia. He had expected to
be lionized and honored as the hero of the age; but instead of that he
received a comparatively cold reception that stung his vanity like the
poison of an asp.

[Illustration: DAVID E. HEROLD.]

It is true the people showed no disposition to betray him; but, at the
same time, they manifested a disposition to enter into no compromising
friendship with him, or in any way to assume any responsibility in his
behalf by helping him to escape. How much of this was due to abhorrence
of his crime, and how much to a dread of consequences, can only be
a matter of conjecture. The fact that they were willing to let him
escape, if he could, would throw the preponderance on the latter as the
governing motive of their conduct. Sad, indeed, was Booth's condition
at this time. More than a week had elapsed since he had perpetrated
his great crime and commenced his guilty flight; and now he found
himself on foot, so lame as scarcely to be able to walk a step, even
with the help of a crutch, and scarcely more than fifty miles from
his starting point. His companion in crime, Herold, was now the only
human being on whose friendship and fidelity he could certainly rely. A
reward of one hundred and seventy-five thousand dollars offered for his
capture, the brand of Cain upon him, his fractured bone cutting into
the flesh at every movement of his limb,--a constant admonition of a
frowning Providence,--it is no wonder that the diurnal entries in his
book begin to bear evidence of a remorse that can never be appeased.
We can but pity his deplorable condition, for he was a fellow-man; but
then he was at the same time a monster in crime, directed by hatred of
a fellow-man without just cause, and of wickedness that had brought
upon him the blood of one of the greatest and best of men, not only
of his own age and country, but of all the ages of the world. When we
contemplate his crime, our sympathies refuse to go with him, and our
sense of justice finds a grateful feeling of relief in the evidence now
clearly pointing to the fact that he is a doomed man.

By the aid of his blind follower, Herold, he is able to maintain his
concealment, and after a wretched fashion to resume his flight in an
old wagon drawn by two miserable horses and driven by a negro. In this
state he reaches Port Conway, on the Rappahannock, in King George
County, Virginia. Here his driver refuses to take him any further. It
is just at this juncture and in this dilemma that they are met by three
confederate soldiers, Major Ruggles, Lieutenant Bainbridge, and Captain
William Jett, the latter of Moseby's command.

Herold, thinking they were recruiting for the rebel service, was quick
to see in them a means of assistance in getting South, and under the
protection of the stars and bars, and so revealed their identity,
appealing to them for assistance. A little later, Booth, getting out
of the wretched conveyance, came forward, and to assure himself of
their disposition toward him, accosted them with the interrogatory, "I
suppose you have been told who we are?" then, throwing himself back
on his crutch, and straightening himself up, with pistol cocked and
drawn, he said, "Yes, I am Wilkes Booth, the slayer of Abraham Lincoln,
and I am worth just one hundred and seventy-five thousand dollars to
the man that captures me." His attitude and speech was that of a man at
bay, under the power of a desperate purpose never to be taken alive.
These three officers of the confederate army (for they were such at
this time, not having been paroled), whilst mildly protesting that they
did not sanction his acts as an assassin, assured him that they did not
want any blood money, and promised to render him all the assistance
in their power in making his escape, a promise which they faithfully
kept. Major Ruggles dismounted and placed Booth on his horse, when
the whole party crossed over the Rappahannock, from Port Conway, in
King George, to Port Royal, in Caroline County, Virginia, and after an
ineffectual effort to find quarters for Booth in the town, they took
him three miles on the road to Bowling Green, the county seat of the
latter county, where they succeeded in getting a man by the name of
Garrett to take him in, with the understanding that he would do all he
could for his comfort and safety. Garrett took Booth and Herold in with
a full knowledge of all the facts in the case, and with some manifest
reluctance from a knowledge of the danger he would thus incur.

Bainbridge and Herold went on to Bowling Green, whilst Ruggles and Jett
remained over night in the woods near the house, Booth being hid away
on the premises and cared for. On the following day Captain Jett went
to Bowling Green on a visit, prompted by the tender passion, where he
intended to remain a few days; and Lieutenant Bainbridge returned to
the Garrett farm, where he rejoined Major Ruggles. The two started for
Port Conway, but before getting there, learned that the town was full
of Yankee cavalry, when they lost no time in returning to Garrett's,
and gave warning to Booth, advising him to lose no time in fleeing to a
piece of woods, which they pointed out to him, and then turned to look
out for their own safety. The cavalry of which they got this notice was
a squad detailed from the Sixteenth New York Regiment, commanded by
Lieutenant Dougherty, which had been ordered to report to General L.
C. Baker of the Secret Service Department, and by him placed in charge
of E. J. Conger and L. B. Baker, officers belonging to his detective
force.

Arriving at Port Conway on the afternoon of the day subsequent to the
crossing of the parties above referred to, and finding the wife of the
ferry keeper at the ferry-house sitting and conversing with another
women, Colonel Conger exhibited to them a photograph of Booth, and
informed them that that was the man they wanted. It at once became
apparent to him, from the manner and actions of the woman, that Booth
was not far off. The ferryman, a man by the name of Rollins, was sent
for, and being influenced no doubt by fear of compromising himself he
became very communicative. He told them all about the party that had
crossed the day before, one of whom, Captain Jett, he knew well; and
knowing that Jett had been paying attention to a Miss Goldman, the
daughter of a Bowling Green hotel keeper, he suggested that he would
most probably be found there. Colonel Conger pushed on with his squad
of cavalry, commanded by Captain, then Lieutenant, E. P. Dougherty, to
Bowling Green, passing the Garrett farm after dark.

Arriving at Goldman's Hotel, he inquired of Mrs. Goldman as to the men
that were in the house. She answered him that her wounded son was in
a room upstairs, and that he was all the man there was there. Colonel
Conger then required her to lead the way upstairs, telling her at the
same time that if his men were fired on he would burn the building and
carry its inmates to Washington as prisoners. As he entered the room
which she showed him, up one flight of stairs, Captain Jett jumped out
of bed half-dressed, and admitted his identity. Colonel Conger then
informed him that he was cognizant of his movements for the last two
days, and proceeded to read to him the proclamation of the Secretary
of War, telling him when he had done reading it that if he did not
tell him the truth he would hang him; but that if he truly gave him
the information that he sought he would protect him. Jett was greatly
excited, and told him that he had left Booth at the Garrett Farm, three
miles from Port Royal. The Colonel then had Jett's horse taken from
the stable, making Jett his unwilling guide to the place of Booth's
concealment.

Arriving at Garrett's, the cavalry was so disposed of as to prevent
any one from escaping, and after having extorted, by threats, the
information that Booth and Herold were concealed in the barn, it
was at once surrounded. They were ordered to come out and surrender
themselves, which Booth refused to do. After a considerable parley,
Herold came to the door and gave himself up. He was followed by the
maledictions of Booth, who accused him of cowardly unfaithfulness in
thus deserting him. Booth still refusing to surrender, a wisp of hay
was fired and thrown in on the hay in the barn. From this start the
barn was soon lighted up with the flames of the burning hay. Booth
was known to be armed and desperate, and as the burning hay began to
illuminate the barn he was seen, carbine in hand, peering through the
cracks, and trying to get an aim. He had before offered to fight the
crowd for a chance of his life if the Colonel would but withdraw his
men one hundred yards. Being answered that they had come to capture
him, not to fight, he was preparing to sell his life as dearly as
possible. At this moment, Sergeant Boston Corbett, of the Sixteenth
New York Cavalry, fired at Booth through a crack in the barn, upon his
own responsibility, and struck him on the back part of his head, very
nearly in the same part where his own ball had struck the President,
only a little lower down, and passing obliquely through the base of
the brain and upper part of the spinal cord; it produced instantly
almost complete paralysis of every muscle in his body below the seat
of the wound, the nerves of organic life only sufficing to keep up a
very difficult and imperfect respiration, and a feeble action of the
heart for a few hours, when, with the coming of the morning of the
26th of April, 1865, twelve days after the commission of his crime and
commencement of his flight, the malefactor expired. He was perfectly
clear in his mind, but could not swallow, and was scarcely able to
articulate so as to be understood, although he seemed anxious to talk.
He requested the officer, who was waiting over him and trying to
minister to him, to tell his mother that he died for his country. Thus
was avenged, not the loyal North alone, but the cause of justice, the
cause of freedom, the cause of humanity. Amongst the articles found on
his person the most important as bearing on the conspiracy in which he
was engaged was a bill of exchange, as follows:--

    No. 1492.
    Stamp.

    THE ONTARIO BANK,
    MONTREAL BRANCH.

    _Exchange for £61 12s. 10d._

        MONTREAL, 27th October, 1864.

    Sixty days after sight of this first exchange (second and
    third of same tenor and date unpaid) pay to the order of J.
    Wilkes Booth sixty-one pounds, twelve shillings, and ten pence
    sterling. Value received and charge to account of this office.

    To Messrs. GLYNN, MILLS & CO., London.

        [Signed]
          H. STANUS, _Manager_.

The body was brought to Washington and identified fully. It was buried,
for the time secretly, under the floor of the old Capitol Prison, but
afterwards was given up to his friends.

Major Ruggles, in his account of his connection with Booth in his
flight, gives it as his opinion that he was not shot, as claimed, by
Sergeant Corbett, but that seeing escape hopeless, and knowing death
to be his fate, he took his own life, holding his pistol to the back
of his head; and in support of this opinion refers to the fact that
one chamber of his revolver was found to be empty. He also advances
the opinion that had the war still been going on, and Booth had made
his escape into the confederate lines, the rebel government would have
arrested him and delivered him up to the United States authorities.
In this opinion, he takes a charitable view of the virtue and moral
integrity of the Richmond government which I shall hereafter show is
not warranted by the facts and evidence in the case. In this opinion
he is also giving that government credit for a degree of virtue and
integrity in striking contrast with the conduct of himself and his
companions, who hurriedly entered into a friendly compact with the
assassins, knowing them to be such, pledging fidelity and assistance to
the full extent of their ability under the circumstances in which they
were placed, thus morally and legally making themselves accomplices
after the fact.[2]




CHAPTER VI.

UNRAVELLING THE CONSPIRACY.

_Arrest of Spangler, O'Laughlin, Atzerodt, Mudd, and Arnold._


Not only was the government bending every energy to overtake and
capture Booth and Herold, but also to find out who were their
co-conspirators. It undertook a systematic investigation of Booth's
haunts, associations, habits, and employment during the recent past.
Hotel registers were overhauled, liverymen interviewed, and each clue
followed up, so that in a short time enough was known to lead to the
arrest of Edward Spangler, Michael O'Laughlin, George A. Atzerodt,
Samuel Arnold, and Dr. Samuel A. Mudd, in addition to those heretofore
spoken of as having been arrested. By this time the evidence in
possession of the government made it clear that what had occurred was
but a partial accomplishment of a great conspiracy, which had its
origin with the agents of the rebel government in Canada; and that its
execution had been entrusted to John Wilkes Booth and John H. Surratt,
as leaders, and to such assistants as they should select and employ.

[Illustration: EDWARD SPANGLER]

It was soon discovered that Booth's intimate associates, with whom he
held private confidential intercourse, were John H. Surratt, and his
mother, Mary E. Surratt, Lewis Payne, George A. Atzerodt, Dr. Samuel
A. Mudd, David E. Herold, Samuel Arnold, and Michael O'Laughlin; and
that the house of Mrs. Surratt was the headquarters of the conspirators
in Washington. Arnold and O'Laughlin were intimate personal friends
and associates of Booth at his home in Baltimore. Booth, Payne,
and Atzerodt were frequent callers at the house of Mrs. Surratt,
where they were always made welcome; their business was always of a
private, confidential nature, and was with John Surratt when he
was at home, but in his absence was with Mrs. Surratt herself. Booth
had every privilege granted to him in that house, his requests for a
private conference being always responded to by John or his mother.
To Booth it seemed to be a matter of indifference which of the two
it was. In tracing his movements the last few months preceding the
assassination, it soon became evident that he was acting under the
impulse of a purpose that had entire possession of his mind. Having
undertaken to secure the accomplishment of the assassinations planned
by Davis and his Canada Cabinet, in the latter part of October,
1864, he was constantly employed in making his preparations for the
fulfillment of his contract, and gave no time or thought, apparently,
to anything else. He entirely abandoned his profession, that of an
actor, and lost all interest in the stage. He no longer consorted
with those of his profession to any extent, except as it might be
in preparation for the work to which he had devoted his life, and
accepted, instead, the fellowship of such low-browed scoundrels as
Payne and Atzerodt as better suited to his purpose. They became
mere tools in his hands, sympathizing with him fully in his intense
disloyalty, but being actuated at the same time by a mercenary motive,
the evidence justifying the conclusion that they had a promise of a
large pecuniary reward. He spent a great deal of time with these men,
studying their characters, and schooling them in the parts they were
to act. They were all known to the liverymen of the city, of whom they
very frequently obtained horses to ride about the suburbs and study
the roads, that they might be thoroughly familiar with the locality
when the time should come for them to make their escape. They were all
known, also, to go constantly armed with revolvers and bowie-knives by
those who had opportunities of seeing them together in their private
intercourse. They boarded at different hotels, and frequently changed
their boarding-places, but were frequent visitors of each other at
whatever places they might be stopping, and their intercourse was
always observed to be that of privacy; and so it became a just cause
for suspicion to have been an intimate companion of Booth, and finally
led to the arrest of them all.

With regard to the relations existing between Booth and John H.
Surratt, and his mother, Mary E. Surratt, the evidence showed that they
would always retire to an upstairs room whenever a lengthy conference
was desired; but that they frequently held short private conferences
in the parlor, when it could be done without danger of interruption.
Booth's right to thus come into the house and demand these private
interviews was never questioned, but granted with the alacrity due to a
common purpose that required it.


_Foundation for the Arrest of Mrs. Surratt._

The agents of the government, in pursuing their investigations,
obtained evidence that Mrs. Surratt's house had been the meeting-place
or headquarters of the conspirators, and that she was in private,
confidential intercourse with Booth. One of the principal witnesses
against her was Louis J. Wiechmann, who had been for several months a
boarder in her house, and whose friendly relations with the family were
due to the fact that he had been a fellow-student with John H. Surratt
at St. Charles College, in Maryland, and to the further fact that they
were co-religionists. Wiechmann had been, during all this time that
he had been a boarder at Mrs. Surratt's, employed as a clerk in the
office of General Hoffman, Commissary General of Prisoners; and from
him the facts above alleged were learned. Wiechmann also stated that
Mrs. Surratt sent him to Booth with a message that she wanted to see
him on private business, and that Booth replied that he would come that
evening or as soon as he could, and that he did come that evening.

On the Tuesday previous to the assassination, Mrs. Surratt requested
Wiechmann to drive her down to Surrattsville, saying that she wanted to
see a Mr. Nothey who owed her some money. Upon his consenting to do so,
she sent him to the National Hotel to see Booth, and request the use of
his horse and buggy for the occasion. Booth said he had sold his horse
and buggy, but handed to Wiechmann ten dollars with which to procure
one. Wiechmann got a conveyance and drove Mrs. Surratt to Surrattsville
and back. As they were on their way down, they met Lloyd, to whom Mrs.
Surratt had rented her farm and tavern at Surrattsville. Mrs. Surratt
requested Wiechmann to stop; and Lloyd, stopping at the same time, got
out of his buggy and came close to Mrs. Surratt, who conversed with
him in so low a tone that Wiechmann did not hear what was said, but
Lloyd testified before the Commission that she told him to "have those
shooting-irons where they would be convenient, as they would be wanted
before long." The "shooting-irons" referred to were two carbines,
which, with ammunition, a monkey-wrench, and a piece of rope, had been
left with Lloyd by John H. Surratt, Herold, and Atzerodt about three
weeks before, with the request that he should keep them hid, Surratt at
the same time showing him a safe place to secrete them. On the Friday
of the assassination, Mrs. Surratt requested Wiechmann to drive her
down to Surrattsville, alleging that she was going to see Mr. Nothey
again on the same business as before. She gave Wiechmann money to
procure a conveyance and he drove her down. Booth was with her in the
parlor when he returned with the conveyance, and when Mrs. Surratt was
about getting into the buggy, she requested Wiechmann to wait until
she went and got Mr. Booth's things. She went back into the parlor and
returned with a field-glass, which she delivered to Lloyd. They reached
Surrattsville about four o'clock. Mrs. Surratt then had Wiechmann sit
down and write a note to Mr. Nothey at her dictation, which she sent
to him by a Mr. Bennett Gwin. Lloyd had gone to Marlboro to court, and
Mrs. Surratt awaited his return which was not until about half-past
six o'clock. When Lloyd returned, he drove around into the back yard
to unload some fish and oysters which he had purchased, and Mrs.
Surratt, who had been waiting and watching for his return, seized this
opportunity to see him privately, when she told him, as Lloyd testified
before the Commission, to have the carbines ready, as they would be
called for that night, and also two bottles of whiskey. Then going with
him into the house, she gave him the field-glass.

She was now ready to return, and expressed anxiety to Wiechmann to
reach home before nine o'clock, saying that she had an engagement for
that hour. She reached her home just before nine, and a few moments
later Wiechmann, from his place at the table in the dining-room below,
heard the door-bell ring, and some one enter the parlor. The interview
was very short--just long enough for Mrs. Surratt to say that all was
right--when Wiechmann heard retreating footsteps, but did not know who
the visitor was. In view, however, of all the foregoing, we cannot
resist the conclusion that Booth was the person, and that this was
their last interview. Mrs. Surratt was able to produce the letter of
Mr. Calvert which she claimed required her to go to Surrattsville that
day to see Mr. Nothey, but she had no appointment to meet him there,
did not see him, and could just as well have written to him from her
home in Washington. This excuse for her visit was a mere fabrication.
Her real business was with Lloyd, and she was not ready to return
until after she had an interview with him, and delivered her message
from Booth, and the field-glass which he had given her. It is evident
that her show of private business was gotten up as a cover to her real
errand.

Again, Payne had visited the Surratt house on several occasions. The
first time he came he called for John H. Surratt, and on being told by
Wiechmann that John was not at home, he requested to see Mrs. Surratt.
He passed this time under the alias of Wood, and was received by Mrs.
Surratt, and kept over night, when he departed for Baltimore. About
three weeks later, say about the 20th of March (as his first visit was
about the 1st of March), he made his second visit, passing under the
name of Payne, and remained three days. It was during this visit that
the episode already referred to as having in all probability been an
attempt to murder the President on his visit to the Soldier's Home,
occurred, and from which Surratt, Booth, and Payne returned under such
excitement and evident disappointment.

[Illustration: LEWIS PAYNE.]

To such members of the family as had not been initiated into the plot,
this man of many aliases--Wood, Payne, and Powell--passed as a Baptist
preacher. He said that he had taken the oath whilst in Baltimore, and
intended henceforth to be a good, loyal man. When this man came to the
house of Mrs. Surratt on the night of the 17th of April, as heretofore
related, and was placed under arrest, Mrs. Surratt, who had also upon
a knowledge of the facts just recited been arrested a few minutes
before, when she was called into the hall and confronted with Payne,
having heard his story as to why he had come and what he had come for,
holding up her hands exclaimed, "Before God, I do not know this man,
and never saw him before." He had been a guest at her table for three
days only a few days previous to this, and was a man of such a marked
personality that having seen him once it would have been impossible to
have failed to recognize him on seeing him again, even though he might
have been partially disguised. With a woman's intuitive perception, she
saw the compromising effect that his visit at that time of night, and
under such circumstances, was calculated to have on her own case, and
so felt the necessity of this solemn disavowal of any knowledge of him.
Before the government felt justified in arresting this woman, only,
indeed, two or three hours after the assassination, it being known that
Booth was the assassin, and that he and John H. Surratt were intimate
friends, the detectives went to the house of Mrs. Surratt to see whom
they could find there. When they rang the bell Wiechmann, who occupied
an upstairs room, opened the window and inquired what they wanted. Upon
their demanding admittance, stating that they had been sent to that
house to see whom they could find in it, Wiechmann went and rapped at
Mrs. Surratt's door, informing her who it was that demanded admittance,
and asking her if he should let them in, when she replied, "Yes, let
them in; I have been expecting them." Now, why should Mrs. Surratt at
that hour, about three o'clock on the morning of the 15th, and only
three or four hours after the assassination, have been expecting a
visit from the detectives? A guilty conscience is its own accuser.

As Wiechmann and Lloyd were the principal witnesses against Mrs.
Surratt, and their evidence so conclusively established her guilt,
her counsel made an effort to discredit their testimony, but utterly
failed to do so. Wiechmann was a young man who established a good
character for veracity and general moral deportment by witnesses who
had been intimately associated with him for months in General Hoffman's
department. His manner was that of a man who was deeply affected by the
fact that he found himself in a situation in which his duty to his God
and his country required him to state facts that had been thrust upon
him, and that were now found to be so damaging to those with whom he
had been associating and whom he had regarded as friends. The attempt
made by counsel for the defense in their arguments to break the force
of his testimony by throwing out the unfounded insinuation that he
probably knew of the existence of the conspiracy, was done for the
purpose of engendering a doubt of the simple truth of his utterances
which were corroborated by other testimony than his own, and of which
he could have had no previous knowledge. Wiechmann's testimony, taking
into consideration the lies told to him and the deceptions practiced
upon him for nearly four months, is in itself absolute proof of his
integrity and of his innocence. In the words of Judge Bingham in
all that dread issue, "There was not a breath of suspicion found
against his character, nor was a single fact to which he testified
contradicted. The defense tried to kill him off with lies and
insinuations, but they could not and did not do it." Wiechmann admitted
that he had been puzzled to account for some of these occurrences. He
could not understand why such persons as Payne and Atzerodt should be
received and enjoy the privileges accorded to them by Mrs. Surratt
and her son; but particularly he had had his suspicions aroused by
the conduct of Surratt, Payne, and Booth upon their return from their
ride as heretofore recited. He had related this occurrence to Captain
Gleason, an officer with whom he was associated in his daily work. He
referred to a report or rumor, which had found its way into the papers,
of a plot to capture the President, and asked the Captain if he thought
it could be possible that this could have been the object of their
expedition. Wiechmann's character and actions in the matter could not
be discredited by insinuations that had no evidence to rest on for
their support.

Lloyd had rented Mrs. Surratt's farm and tavern at Surrattsville,
and so was her tenant. He was a man of intemperate habits, and there
was, I think, taking all things into consideration, strong reason to
conclude that he had been entrusted with the secret of the plot; but
of this there was no direct proof, and much less of his having been
any further a party to the conspiracy. Even admitting that he had this
guilty knowledge, it does not disqualify him for telling the truth
as to what occurred at the private interviews referred to between
himself and Mrs. Surratt, and that these private interviews did take
place under the circumstances already related we have the positive
testimony of Wiechmann. Lloyd's testimony was drawn out of him by
questions suggested by what Wiechmann had previously stated before the
Commission. The defense failed entirely to prove that he was a man not
to be believed upon his oath.

They endeavored to break the force of the testimony of Major Smith in
regard to Mrs. Surratt solemnly disclaiming any knowledge of Payne by
claiming that her eyesight was very defective, but failed to establish
any evidence of infirmity of sight beyond what was common to a person
of her age of forty-five years.

The evidence of Major Smith was that the hall was well lighted when she
was confronted with Payne, and her haste to disavow any knowledge of
him with such unnecessary solemnity was itself evidence of guilt. Her
eminent volunteer counsel, Hon. Reverdy Johnson, at that time a United
States senator from Maryland, did not attempt to assail the testimony
against her or to make any reference whatever to her case; but confined
himself to an argument against the constitutionality of her trial by
a military commission and against the jurisdiction of the court. In
view of all the facts above narrated, all of which were proven by the
witnesses brought before the Commission by the government, the author
thinks it would be impossible for any candid mind to escape from the
conclusion that Mrs. Surratt was fully informed of the purposes of
Booth and her son, and gave to them her hearty approval and earnest
co-operation. We have now presented in narrative form the evidence on
which Mrs. Surratt was found guilty and sentenced by the Commission
to be hung. Her case was evidently one of those deplorable cases, of
which the rebellion furnished so many examples, of a woman so entirely
under the influence of disloyalty to her government and so desirous
of its overthrow, that she was ready to resort to any means whatever
to accomplish that purpose, and so entered heart and soul into the
schemes of Booth and her son, hoping thereby to serve the cause of the
confederacy.


_Arrest of Atzerodt._

George A. Atzerodt had undertaken for his part the assassination of
Vice-President Johnson. He was found to have been a frequent visitor at
the Surratt house, and a boon companion of Payne, Surratt, and Booth.
It was found that he had taken a room at the Kirkwood House where the
Vice-President was stopping at the time. He had been assigned to room
number 126, on the next floor above that on which was the room occupied
by the Vice-President. He had been stopping at the Pennsylvania House
from the 27th of March until the 12th of April, and took this room
at the Kirkwood House on the morning of the 14th of April, paying in
advance for one day. On the 12th of April he visited this house, and
meeting Col. W. R. Nevins in the passage leading to the dining-room, he
asked him if he knew where Vice-President Johnson was. Nevins showed
him the Vice-President's room, but remarked, "He is now at dinner,"
pointing him out to Atzerodt as he sat at the table. Atzerodt did not
enter the dining-room, but simply looked in at the Vice-President. It
was ascertained that Atzerodt had not occupied his room on the night
of the 14th, and when the detectives who were on his track came to
the Kirkwood House on the afternoon of the 15th, it was found locked,
and the door had to be forced. Mr. Lee, the officer in pursuit of
him, found in his room, upon gaining admission, a black coat hanging
against the wall; underneath the pillow or bolster a revolver loaded
and capped, and between the sheets and mattress a large bowie-knife.
In the pockets of the coat were found a handkerchief marked "Mary R.
Booth," another marked "F. M.," or "F. A. Nelson," and another marked
"H," in one corner; also a bank-book of J. Wilkes Booth, showing a
credit of four hundred and fifty-five dollars with the Ontario Bank of
Montreal, and a map of Virginia. On the corner of the bank-book was
written "J. W. Booth, 53." On the inside of the book, "Mr. J. Wilkes
Booth, in account with the Ontario Bank of Montreal, Canada, 1864,
October 27; by deposit Cr. $455." This coat evidently belonged to
Booth, and its being thus found in Atzerodt's room showed that Booth
had visited him there during the day; and that he had spent some time
with him schooling him in his part was shown by the fact that he had
taken off his light overcoat and hung it up against the wall, and had
evidently become so much absorbed in mind with the purpose of his visit
that he forgot to take his coat when he left. The revolver loaded and
capped, and the huge bowie-knife hidden in the bed, serve to explain
the nature of the interview between Booth and Atzerodt, and the purpose
of death to the Vice-President on the part of the former, and in which
purpose at that time Atzerodt no doubt fully concurred. During the
stay of Atzerodt at the Pennsylvania House he was frequently called on
by Booth, and they were at pains always to hold their interviews in
private.

Atzerodt's whereabouts from the 12th to the 14th of April are not
accounted for. On the 14th, after having taken his room at the
Kirkwood, we next find him at a livery-stable on Eighth and E streets,
where he procured a bay mare, paying five dollars for her hire for the
afternoon. He took her to Naylor's stable and had her put up. Here he
was accompanied by Herold. It was about one o'clock P.M. when
he had his mare put up. He left and did not return until about seven
P.M. On his return he ordered his mare to be saddled, and
requested that she should be left standing with the saddle and bridle
on until ten o'clock, when he would call for her. He returned at ten,
got his mare, and left. He returned the mare to the stable on Eighth
and E streets shortly after the assassination of the President, at
about eleven o'clock.

After returning the mare, he boarded a navy-yard car at Sixth Street,
and rode down as far as the navy-yard. Finding a man by the name of
Briscoe on the car, with whom he was acquainted, he asked him to let
him sleep with him in his store. Being refused, he urged his request,
and seemed excited. Briscoe asked him if he had heard the news. He
replied that he had.

Not getting permission to lodge with Briscoe, he said he would return
to the Pennsylvania House, which he did, arriving there on horseback
about twelve M. or one o'clock A.M. He asked the colored boy in waiting
at the house to hold his horse whilst he went into the bar. He then
mounted his horse and left, returning again at about two o'clock on
foot, in company with another man. They paid for their lodging and
retired. Atzerodt, on being requested by the clerk to register before
retiring to his room, hesitated, and did it with manifest reluctance.
These parties arose very early on the morning of the 15th, and left.
At about eight o'clock on the morning of the 15th, we find Atzerodt in
Georgetown trying to sell his watch to a man with whom he was somewhat
acquainted; but not being able to do so, he pawned his pistol for ten
dollars, saying he was going to the country and would come, or send,
and redeem it the next week. He was followed and arrested in Montgomery
County, Maryland, on the 20th of April.

He ate his dinner on the 16th at the house of Mr Hezekiah Metz. There
were two or three other persons at the table with him, and all were
anxious to hear the news from Washington. He was asked whether it was
true, as had been reported in that neighborhood, that General Grant
had been killed. Atzerodt, according to the testimony of Metz, replied
that "if the man who was to follow him had done so it was likely to
be true." There was some conflict of statement, however, between Metz
and the other two parties who were at the table, and who were used as
witnesses for the defense. These thought he said if it were so, it was
likely to have been done by some one who got on the train with him.
There are good reasons, however, for concluding that Metz gave his real
answer.

Atzerodt was known in that neighborhood as Andrew Atwood. From Metz's
he went to the house of his cousin, Hartman Richter, near the little
village of Germantown, and remained there until he was arrested by
Sergeant L. W. Grimmell on the night of the 20th. Richter denied that
there was anybody in his house when inquired of by the Sergeant.
When told by the Sergeant that he would have to search the house, he
admitted that his cousin was upstairs in bed. His wife then spoke up,
saying, "there were three men there for that matter." Atzerodt was
brought to Washington and held as a prisoner for trial, as a party to
the conspiracy. There is no doubt from the evidence presented, that
he was not only a party to the conspiracy, but also that Booth had
arranged with him and relied on him to assassinate the Vice-President.
For this purpose he had removed him from the Pennsylvania to the
Kirkwood House, where the Vice-President had rooms, and was boarding.
This change had been made on the morning of the 14th, and Booth
had been there during the day to see that all things were properly
arranged. Atzerodt's revolver was found hidden away in his bed, loaded,
capped, and ready for use. His bowie-knife also was found secreted in
his bed; and yet there is no evidence that he was in his room, or even
in the house during the evening or night. In his defense his counsel
set up the plea, and proved it, that he was incapable of committing
such a crime, being constitutionally a coward. He was a low-browed,
vulgar vagabond, fond of whiskey, tobacco, and vicious company; a
cowardly braggart, covering up his cowardice by a great pretense of
bravery when the battle was not on; low enough in moral tone to do any
wicked thing, but without physical courage to face the danger connected
with what he had engaged to do. Booth had mistaken his man; but being a
member of the conspiracy, he was equally guilty with Booth.


_Arrest of Spangler._

On the strength of the facts incidentally presented in the foregoing
narrative, Edward Spangler was taken into military custody, and held
as a prisoner for trial. The capture of Herold has already been given.
All of these prisoners were held in military custody, and under such
precautions as would have rendered any attempt at rescue or escape the
height of folly.

In Booth's trunk a letter was found from Samuel Arnold to Booth,
dated at Hookstown, Md., March 27th, 1865. This letter was signed
simply "Sam," but was proved to be in Arnold's handwriting, and led
not only to his own arrest, but also to that of his friend and fellow
conspirator, Michael O'Laughlin. Arnold had evidently fallen into a
hesitating frame of mind. I feel that I cannot do better than to give
this letter entire. It is as follows:--

        HOOKSTOWN, BALTIMORE CO., March 27, 1865.

    DEAR JOHN:--Was business so important that you could
    not remain in Baltimore until I saw you? I came in as soon as I
    could, but found you had gone to Washington. I called also on
    Mike, but learned from his mother that he had gone out with you
    and had not returned. I concluded, therefore, that he had gone
    with you. How inconsiderate you have been! When I left you,
    you stated you would not meet me in a month or so. Therefore,
    I made application for employment, an answer to which I shall
    receive during the week. I told my parents I had ceased with
    you. Can I, then, under existing circumstances, come as you
    request? You know full well that the government suspicions
    something is going on there; therefore the undertaking is
    becoming more complicated. Why not, for the present, desist,
    for various reasons which, if you look into, you can readily
    see, without my making any mention thereof. You, nor any
    one, can censure me for my present course. You have been its
    cause, for how can I come now after telling them I had left
    you? Suspicion rests upon me now from my whole family and even
    parties in the country. I will be compelled to leave home any
    how, and how soon I care not. None, no, not one, were more
    in favor of the enterprise than myself, and to-day would be
    there had you not done as you have: by this I mean, manner
    of proceeding. I am, as you well know, in need. I am, as you
    may say, in rags; whereas to-day I ought to be well clothed.
    I do not feel right stalking about with means, and more from
    appearances a beggar. I feel my dependence: but even all this
    would be and was forgotten, for I was one with you. Time more
    propitious will arrive yet. Do not act rashly or in haste. I
    prefer your first query: go and see how it will be taken at
    R----d, and e'er long I shall be better prepared to again be
    with you. I dislike writing,--would sooner verbally make known
    my views,--yet your non-writing causes me thus to proceed. Do
    not in anger peruse this. Weigh all I have said, and, as a
    rational man and a friend, you cannot censure or upbraid my
    conduct. I sincerely trust this, or aught else that shall or
    may occur, will never be an obstacle to obliterate our former
    friendship and attachment. Write me to Baltimore, as I expect
    to be in about Wednesday or Thursday, or, if you can possibly
    come on, I will Tuesday meet you in Baltimore at B----. Ever I
    subscribe myself,

        Your friend,
          SAM.

Arnold got employment at Fortress Monroe, and was there at the time
of the assassination; but the finding of the above letter in Booth's
trunk, as also other evidence constantly turning up in the course of
the investigations being made, identifying him with the conspiracy,
led to his arrest on the 17th of April at Fortress Monroe. Arnold,
when arrested, made a partial confession, relating the circumstances
of a meeting of some of the conspirators held at the Lichau House in
Washington about three weeks previous to his going to Fortress Monroe.

[Illustration: SAMUEL ARNOLD.]

This meeting must have occurred within two or three days after the
writing of the above letter, immediately before Surratt's visit to
Richmond, and was attended by Booth, Surratt, O'Laughlin, Atzerodt,
Arnold, a man with the alias of Moseby, and another whose name he could
not recollect. He denied that he had ever corresponded with Booth, but
on being informed of the letter found in Booth's trunk he admitted that
he wrote it. He also stated that Booth had letters of introduction to
Dr. Mudd and Dr. Queen, but said he did not know from whom Booth got
them. He claimed that an angry discussion took place at the meeting
referred to. He said he told Booth then that if the thing did not take
place that week he would withdraw. Booth got angry at that, and said
he ought to be shot for talking in that way. He said that he replied
to Booth that two could play at that game; and that he withdrew from
the conspiracy at that time, and occupied his position at Fortress
Monroe on the 1st of April. It is evident, I think, that as he began to
contemplate the hazards of the enterprise, its dangers began to be more
and more apparent to him. His heart failed him, and he was anxious for
an excuse to withdraw from it, but had not the courage to peremptorily
do so. This is the interpretation I put upon the above letter--of the
altercation between him and Booth, and of his going to Fortress Monroe.

There is also apparent in the letter a shade of disappointment and
dissatisfaction in regard to pecuniary matters, implying that promised
reward had been withheld by Booth. Early in September, whilst at a
grain threshing, Arnold received a letter containing a fifty-dollar
bill. Reading the letter and showing it with the money to a companion,
he remarked that "he was flush." He handed the letter to his friend to
read, but he, after trying to read a few lines, and finding that he
could not understand it on account of its ambiguity, handed it back
to Arnold, asking him what it meant. Arnold replied that something
big would be seen in the papers one of these days. This was no doubt
a retainer's fee, or in other words, an advance payment from Booth.
The rather complaining tone of Arnold's letter, hinting at pecuniary
embarrassment, would seem to indicate that Booth's promises of
pecuniary reward had been large, whilst his fulfillment had been far
from satisfactory.

This, amongst other considerations to be named, had evidently cooled
Arnold's ardor in the prosecution of the plot, and was the cause of his
disposition to withdraw from it.

The probabilities are that his parents and friends suspecting that his
intimacy with Booth foreboded evil, and probably suspecting something
of his purpose, had so earnestly remonstrated with him as to cause
him to stagger or falter in his purpose, and made him anxious for an
excuse for breaking with Booth. He perhaps began to regard Booth's
plan as quixotic and impracticable, full of hazard, and not likely to
succeed. In fact, he stated that he so told Booth at this meeting. He
was evidently restive, and thought it had been put off too long to
effect the end contemplated. It does not appear to have been from any
awakening of his moral nature that he faltered, neither from cowardice
that he weakened; and so he failed to purge himself of complicity in
Booth's guilt. But there was sufficient evidence of his desire to
withdraw from any part in the execution of Booth's present purposes
to extenuate his guilt in a measure, at least, in the judgment of the
Commission.


_Arrest of O'Laughlin._

Arnold's letter to Booth on the 27th of March, which was found in
Booth's trunk, together with evidence gathered up on every hand as
the investigation proceeded, led to the arrest of Michael O'Laughlin
at the house of his brother-in-law, in Baltimore, on Monday, the 17th
of April, the same day on which Arnold was arrested. When arrested he
seemed to understand what it was for, not asking any questions about
it. He had gone to Washington on the 13th and remained until Saturday,
the 15th. On returning to Baltimore on Saturday night, he was met at
the depot by his brother-in-law, who told him that he had been inquired
for by detectives that evening. Being advised by the friend who had
accompanied him to Washington and back to remain at his home, he said
he would not be arrested at home, as it would kill his mother. Why was
he expecting to be arrested? A man innocent of crime never fears or
expects arrest. He went to the house of his brother-in-law and quietly
awaited the issue. He even requested his brother-in-law to inform the
officer of his whereabouts, thus seeming to court arrest.

He had carefully thought the thing over, and concluded that the
government would not be able to fix guilt upon him, and so he thought
to have the benefit of a seeming willingness to be arrested, as
presumptive proof of his innocence. He had gone to Washington on
the 13th with three companions, ostensibly to see the parade and
illumination in commemoration of the surrender of Lee's army, and to
"have a good time," as his companions expressed it in their evidence in
his behalf on his defense.

He kept with these companions in the rounds of their drunken carousal
and debaucheries enough to blind them as to the real object of his
visit. They were drinking freely during the Thursday and Friday of
their stay, and were evidently unable to give a connected and reliable
account of O'Laughlin's whereabouts during the whole of the time. They
thought he spent most of the time in company with one or the other of
them; but they admitted that he had had a long interview with Booth at
his room at the National Hotel on Friday, the 14th. It was positively
proven, however, that he was at the house of Secretary Stanton on the
occasion of the reception given to General Grant on the night of the
13th; that he seemed to be in a state of partial intoxication, and
pushed himself through the crowd into the hall inquiring for General
Grant, saying he wanted to see him. He was told by the Secretary's son
that that was no occasion for him to see him, and to step out onto the
pavement where the carriage stopped, and he could see him. He stood
for some time in the hall looking in through the door at the General.
He also said he wanted to see Stanton, and being asked if it was the
Secretary he wished to see, he said it was. The Secretary was pointed
out to him, but he did not go to him. His manner was so impertinently
obtrusive and rude that he was finally requested to leave, and was
escorted out of the house by the son of the Secretary. Mr. Stanton
at first thought him to be intoxicated, but upon conversing with him
concluded he was not. It would appear from all this that the part
Booth had assigned to him was the assassination of General Grant, and
that his visit to the house of the Secretary was for the purpose of
so acquainting himself with the form and features of the General as
to be able readily to identify him. Had not the General been called
away on that Friday afternoon,--had he accompanied the President to
the theatre, as he had intended doing,--there is scarcely a doubt
that "Peanuts" would have had two horses to hold, or that some other
arrangements would have been made for General Grant's assassination
that would have made O'Laughlin a companion of Booth in his flight.

We have now seen the development of Booth's plot, and its partial
success, but, as to the real object of it, its entire failure. The
thing proposed by the head conspirators, whose agents we have been
following up in their efforts for its accomplishment, failed of its
realization. They had hoped by the policy of assassination to put the
rapidly waning cause of the confederacy on its feet again under new and
more favorable auspices.

The cause, at the time of this attempt to thus give it aid, was already
lost on the field of military conflict beyond hope of recovery. The
whole people, North and South, saw that the war was at an end; that the
brief day of the so-called Southern Confederacy was over--that its sun
had set; and great as must have been the disappointment of those who
had so fruitlessly plunged the country into the greatest civil war that
history records, they were quite content to accept and make the best of
their failure.

Both parties were glad that the contest had been decided, and of the
opportunity to lay down their arms, and return to the pursuits of
peaceful life. Had not Booth kept himself as full of whiskey as he was
of his fiendish purpose, had he given himself an opportunity to scan
the situation in a duly sober frame of mind, we think it even more than
probable he would have abandoned the whole project as useless. But both
he and his associates were free and constant drinkers, and by their
frequent visits to saloons, as shown by the whole run of the testimony
before the Commission, it would seem probable that they scarcely ever
drew an absolutely sober breath, and so could not realize the true
situation of the cause they sought to serve.

[Illustration: MICHAEL O'LAUGHLIN.]

The Canada conspirators are in like manner, according to all the
testimony, shown to have been free drinkers. All of their diabolical
schemes were most probably the products of minds acting under the
influence of alcoholic stimulants, and this may in some degree account
for the obtundity of their moral perceptions. It has been said by one
who was personally cognizant of the fact, that alcohol precipitated
the rebellion, and that its leaders in both branches of Congress kept
themselves constantly under the excitement of alcoholic stimulants and
so were made reckless of consequences.


_Arrest of Dr. Samuel A. Mudd._

It will be remembered that in giving the history of Booth's flight,
we found him and Herold at the house of Dr. S. A. Mudd, at about four
o'clock on the morning of the 15th of April, they having ridden thirty
miles in about six hours after leaving Washington. They would no doubt
have stopped at Mudd's, even had Booth not needed his services as a
surgeon, for a short respite and refreshment, as the doctor was, as
we shall hereafter see, a co-conspirator with Booth. Booth's broken
leg had by this time become very painful, and this made it necessary
that he should stop to have it dressed. Mudd dressed his leg, as he
himself said, as well as he could with the means at his command, and
giving them refreshments, he placed Booth in a chamber upstairs where
he remained until about three o'clock in the afternoon. Mudd and Herold
went out, as Mudd said, to find a carriage in which to take Booth on
his journey; but it is more likely Mudd was showing Herold a by-way
toward the Potomac, at the point where they expected to cross, whilst
Booth was resting.

About one o'clock on that afternoon, Lieutenant Dana, with a squad of
cavalry, passed down toward Bryantown in pursuit of Booth, and as there
was no doubt a sharp look-out kept from the house of Dr. Mudd, which
stood about a quarter of a mile from, and in full view of, the road,
they were by this admonished of their danger and resumed their flight
as soon as they could after the soldiers passed. Thus Mudd got them off
of his hands, and started them on their way to his friend, Samuel Cox.
On Tuesday, the 18th of April, Mudd was first interviewed, and then
denied that there had been any body at his house on the 15th; but upon
being pressed with questions, he finally said that two strangers had
come to his house about four o'clock on Saturday morning on horseback,
one of them having a broken leg, and that he had taken them in, dressed
the leg, and had a crutch made for the man, and that they had left
after breakfast, telling in what direction they had gone, but giving a
false cue. He denied knowing either of them, and said they were entire
strangers to him, going on to give a minute description of the men and
their horses as though desirous of giving all the information he could,
but with an appearance and manner that created distrust. Being asked
if he knew Booth, he said he had been introduced to him at church in
the fall before, but had no other acquaintance with him. Being asked
if the man whose leg he had dressed was not Booth, he said he was not.
When told by the officer that he would have to search the house, his
wife went upstairs and brought down a boot that Mudd had removed from
Booth's foot by ripping it down in front, and it was seen that on the
inside of the boot leg, near the top, was written, "J. Wilkes," and
also the maker's name. Mudd was interviewed two or three times before
his arrest, and prevaricated every time so much that he frequently
contradicted himself. It was noticed that he was never at home when
called for, but was not far off, as he always made his appearance in
a short time when sent for by his wife. He was finally placed under
arrest; and upon the photograph of Booth being shown to him, and being
asked if that looked like Booth, he said he thought not, but finally
concluded there was some resemblance to Booth across the eyes. He was
taken to Washington and held as a prisoner. Mudd was a physician,
living on a farm. He had had a considerable number of slaves at the
breaking out of the rebellion, most of whom had left him during the
previous winter. His father also, living in the neighborhood, was a
large land and slave holder, and Mudd's disloyalty was no doubt of the
rabid type. His home was a place of resort for returned rebel soldiers
and recruiting parties, and he had a place of concealment in the pines
near his house, where they were sheltered and cared for, the doctor
sending their food to them by his slaves; and if, at any time, any of
these parties ventured to his house to take their meals, a slave was
always placed on watch to give notice of the approach of any one.

The letter of introduction to Dr. Mudd which Booth had, as related
by Arnold, had no doubt been presented in the fall, at the time Mudd
admitted having been introduced to him at church; and from that time
their intimacy commenced. This was in November, 1864.

About the 23d of December, 1864, Mudd visited Booth in Washington, and
introduced him to John H. Surratt, under the following circumstances:
Wiechmann and Surratt were on the street together, when Wiechmann
heard some one call, "Surratt! Surratt!" and turning round, they were
met by Dr. Mudd and Booth. Mudd introduced Booth to Surratt, and then
Surratt introduced both of them to Wiechmann. They went, by invitation
of Booth, to the National Hotel, where Booth had a room, and were
served by him with wine and cigars. Mudd went out into a passage and
called Booth. They remained out of the room for a short time, and
conversed in a low tone of voice. Upon their return to the room Booth
called Surratt, and the three went out again into the passage, and
were engaged for some time in a private conference. Upon their return,
Mudd made an explanation, by way of apology, to Wiechmann, saying that
Booth wanted to buy his farm, but he did not care to sell. Booth also
apologized, giving the same excuse. The three then took seats around
a table, when Booth took an envelope from his pocket, and upon this,
with his pencil, commenced drawing lines, as if marking roads. Whilst
engaged in doing this the three were conversing in so low a tone that
Wiechmann could not hear what was said.

Mudd made one or two other visits to Washington during the winter, and
his business seemed always to be with Booth and Surratt. At least, he
was always found in their company.

According to one of Mudd's various statements, Booth and Herold left
his house between three and four o'clock in the afternoon. It will be
noted that he at first denied their having been there at all. Then
he admitted that two strangers had been there on Saturday morning;
that he had dressed a broken leg for one of them, and had a crutch
made for him, and they left after breakfast. That they remained until
after Dana and his party passed down to Bryantown, there is no doubt;
and that they left as soon as possible, assisted by Mudd, after the
soldiers passed, as we have heretofore seen. Mudd, after his conviction
and sentence, whilst being conveyed to the Dry Tortugas, admitted,
voluntarily, to Captain Dutton that he knew Booth when he came to his
house on the morning of the 15th of April; and also that he went to
Washington in December by appointment with Booth, to introduce him to
Surratt. He might just as well have admitted his complicity in the
conspiracy. Mudd's expression of countenance was that of a hypocrite.
He had the bump of secretiveness largely developed; and it would
have taken months of favorable acquaintanceship to have removed the
unfavorable impression made by the first scanning of the man. He had
the appearance of a natural born liar and deceiver.

We have now Mrs. Mary E. Surratt, Edward Spangler, Lewis Payne, David
E. Herold, Samuel Arnold, Michael O'Laughlin, George A. Atzerodt, and
Dr. Samuel Mudd under arrest and held for trial by the government under
the charge of being co-conspirators with John H. Surratt, Booth, and
others yet to be named, and still others unknown and who never will be
known. The evidence yet to be adduced makes it clear that there were
quite a number of these conspirators in Washington at the time of the
assassination who were never discovered, encouraging by their presence,
and aiding and abetting, Booth and his associates.

There are good reasons for believing that the purpose of Booth and his
fellow-conspirators was known to many, both in Canada and the United
States, who were interested in the destruction of our government. It
may yet happen that a sufficient amount of evidence may be found to
justify this, or some other writer, in making explicit charges that are
for the present withheld.

[Illustration: GEORGE E. ATZERODT.]

In regard to the persons above named who were put upon their trial,
the writer will only say that, in giving an account of the grounds of
arrest in each case, he has stated the facts proven by unimpeached
witnesses before the Commission, whose testimony governed the decisions
of the court in their respective cases, and that his statements of the
facts in evidence will be found to be fully vindicated by a critical
examination and study of the testimony as given by Pittman in his
official report of the trial. He feels sure that no one, with that
report before him, can impeach the account he has given of the parts
acted by each one of the prisoners named in this great tragedy; and
upon these facts must rest the judgment of mankind, as did the judgment
of the court.




CHAPTER VII.

QUESTIONS PRELIMINARY TO THE TRIAL


_What Sort of Trial should be given, Civil or Military?_

The first question that presented itself to the government in regard to
these prisoners was, as to what kind of a trial should be given them,
whether civil or military? The civil courts were open in the District
of Columbia at the time, and had been all through the war. There was
no question that a form of trial could be had in the civil courts; but
there was at the same time as little question that, under existing
circumstances, such a trial would only result in a miscarriage of
justice. The great crime had been committed during the existence of a
state of war, and the courts were only able to carry on their functions
under the protection of the arms of the government.

This ægis being withdrawn, the administration of justice through the
civil courts would have been an impossibility, even in the capital
of the nation; and with this protection it was equally impossible
to secure the demands of justice through the civil courts in cases
involving the issues of the war, as a jury of partisans could not be
expected to decide impartially if all belonged to one party, and if
divided on party lines, they could not be expected to decide at all.
The latter alternative was the only one on which a jury could have been
impaneled, under the rules of law, at that time, in the District of
Columbia. Outside of the soldiery there were as many enemies as friends
of the government in the population of the district, to say the least,
and many of these enemies were passing under the guise of friends. In
this state of things it was obvious that it would be futile to send
these prisoners before a civil tribunal for trial. The government
had evidence that a great conspiracy existed, the purpose of which
was to aid the rebel cause by a series of assassinations, and that
what had happened was in pursuance of that plan, but only its partial
accomplishment. The extent of this conspiracy had not been fully
revealed, but its spirit and purpose were known, and both wisdom and
good policy required that it should be met with the utmost promptitude
and suppressed with no faltering hand. These persons had been arrested
by the military police, and were held as prisoners in military custody.
They were held not as prisoners of war, but as _secret active enemies_
of the government, guilty of a crime the purpose of which was to aid
the rebellion, and this being their purpose, it took them out of the
realm of _civil_, into the realm of _martial_, law. Their crime was
regarded as an act of war, inasmuch as its purpose was to aid the
existing armed rebellion. The means by which they thus sought to give
it aid were morally reprehensible, and such as had long been rejected
by the enlightened sentiment of the civilized and Christian nations
of the earth. The crime was a blow at the life of the nation, in the
person of its chosen head, and was committed in the nation's capital,
and within the intrenched lines and fortifications thereof; and so it
was decided that the prisoners were properly subject to a trial by a
military commission.

President Lincoln's order of September 25th, 1862, had not been
rescinded and was still in force, and under this order the prisoners
were, from the purpose of their crime, subject to a military
trial. They could not, under the articles of war, be sent before a
court-martial for trial, but could, _under martial law, which is only
the common law in a state of war_, be tried by a military commission.

The chief conspirators, on whom rested the responsibility of the plot,
were still at large, and in an attitude of desperate hostility towards
the government. The extent of their plans, and the means at their
command for their execution, could not be known, and so it was a matter
of the utmost importance to deal with the prisoners in the most summary
manner consistent with the ends of justice. The President requested
the attorney general, Hon. James A. Speed, a Kentuckian by birth, to
give his official opinion as to whether these persons implicated in
this crime could be tried before a military tribunal, or must be tried
before a civil court. As the reply of the Attorney General furnishes
an exhaustive discussion of the different conditions existing under a
state of peace and a state of war, and shows that whilst in a state of
peace the Constitution throws its shield of protection over the life,
liberty, and property of the citizen, even the humblest, its provisions
cannot afford protection to these in a state of war, and that martial
law, or the common law of war comes in in the place of the Constitution
to ameliorate as much as possible the miseries of war, and secure, as
far as possible, the ends of justice and mercy; and as it constitutes
a most important and interesting document worthy of the careful study
of every young man who desires to become well informed on the most
important questions of our national life, I shall give it a place
entire, and commend it to careful perusal and study.


_Opinion of the Attorney General._

    The President was assassinated at a theatre in the city
    of Washington. At the time of the assassination a civil
    war was flagrant,--the city of Washington was defended by
    fortifications regularly and constantly manned, the principal
    police of the city was by federal soldiers, the public offices
    and property in the city were all guarded by soldiers, and the
    President's house and person were, or should have been, under
    the guard of soldiers. Martial law had been declared in the
    District of Columbia, but the civil courts were open and held
    their regular sessions, and transacted business as in times
    of peace. Such being the facts, the question is one of great
    importance,--important because it involves the constitutional
    guarantees thrown about the rights of the citizen, and because
    the security of the army and government in time of war is
    involved; important, as it involves a seeming conflict between
    the laws of peace and war. Having given the question propounded
    the patient and earnest consideration its magnitude and
    importance require, I will proceed to give the reasons why I am
    of the opinion that the conspirators not only may but ought to
    be tried by a military tribunal. A civil court of the United
    States is created by a law of Congress, under and according
    to the Constitution. To the Constitution and the law we must
    look to ascertain how the court is constituted, the limits of
    its jurisdiction, and what its mode of procedure. A military
    tribunal exists under and according to the Constitution in
    time of war. Congress may prescribe how all such tribunals are
    to be constituted, what shall be their jurisdiction and mode
    of procedure. Should Congress fail to create such tribunals,
    then, under the Constitution, they must be constituted
    according to the laws and usages of civilized warfare. They may
    take cognizance of such offences as the laws of war permit;
    they must proceed according to the customary usages of such
    tribunals in time of war, and inflict such punishments as are
    sanctioned by the practice of civilized nations in time of war.
    In time of peace, neither Congress nor the military can create
    any military tribunals, except such as are made in pursuance
    of that clause of the Constitution which gives to Congress the
    power "to make rules for the government of the land and naval
    forces." I do not think that Congress can, in time of war or
    peace, under this clause of the Constitution, create military
    tribunals for the adjudication of offenses committed by persons
    not engaged in, or belonging to, such forces.

    This is a proposition too plain for argument. But it does not
    follow that because such military tribunals cannot be created
    by Congress under this clause that they cannot be created at
    all. Is there no other power conferred by the Constitution
    upon Congress or the military under which such tribunals may
    be created in time of war? That the law of nations constitutes
    a part of the law of the land must be admitted. The laws of
    nations are expressly made laws of the land by the Constitution
    when it says that "Congress shall have power to define and
    punish piracies and felonies committed on the high seas, and
    offences against the law of nations." To define is to give the
    limits or precise meaning of a word or thing in being; to make
    is to call into being. Congress has power to define, not to
    make, the laws of nations; but Congress has power to make rules
    for the government of the army and navy. From the very face of
    the Constitution, then, it is evident that the laws of nations
    do constitute a part of the laws of the land. But very soon
    after the organization of the federal government, Mr. Randolph,
    then attorney general, said: "The law of nations, although not
    specifically adopted by the Constitution, is essentially a
    part of the law of the land. Its obligation commences and runs
    with the existence of a nation, subject to some modifications
    on points of indifference." The framers of the Constitution
    knew that a nation could not maintain an honorable place among
    the nations of the world that does not regard the great and
    essential principles of the law of nations as a part of the law
    of the land. Hence Congress may define those laws but cannot
    abrogate them, or, as Mr. Randolph says, may "modify on some
    points of indifference."

    That the laws of nations constitute a part of the laws of the
    land, is established from the face of the Constitution upon
    principle and by authority. But the laws of war constitute
    much the greater part of the law of nations. Like the other
    laws of nations, they exist and are of binding force upon the
    departments and citizens of the government, though not defined
    by any law of Congress. No one that has ever glanced at the
    many treatises that have been published in different ages of
    the world by great, good, and learned men, can fail to know
    that the laws of war constitute a part of the law of nations,
    and that those laws have been prescribed with tolerable
    accuracy. Congress can declare war. When war is declared it
    must be under the Constitution, carried on according to the
    known usages and laws of war among civilized nations. Under the
    power to define these laws, Congress cannot abrogate them, or
    authorize their infraction.

    The Constitution does not permit this government to prosecute a
    war as an uncivilized and barbarous people. As war is required
    by the frame-work of our government to be prosecuted according
    to the known usages of war among the civilized nations of the
    earth, it is important to understand what are the obligations,
    duties, and responsibilities imposed by war upon the military.
    Congress, not having defined, as under the Constitution it
    might have done, the laws of war, we must look to the usage
    of nations to ascertain the powers conferred in war, on whom
    the exercise of these powers devolve, over whom, and to what
    extent do these powers reach, and in how far the citizen and
    the soldier are bound by the legitimate use thereof. The power
    conferred by war is, of course, adequate to the end to be
    accomplished, and not greater than what is necessary to be
    accomplished. The law of war, like every other code of laws,
    declares what shall not be done, and does not say what may be
    done.

    The legitimate use of the great power of war, or rather the
    prohibitions upon the use of that power, increase or diminish
    as the necessity of the case demands. When a city is besieged
    and hard pressed the commander may exert an authority over the
    non-combatants which he may not when no enemy is near. All wars
    against a domestic enemy, or to repel invasions, are prosecuted
    to preserve the government. If the invading force can be
    overcome by the ordinary civil police of a country, it should
    be done without bringing upon the country the terrible scourge
    of war; if a commotion or insurrection can be put down by the
    ordinary process of law, the military should not be called out.
    A defensive foreign war is declared and carried on because the
    civil police is inadequate to repel it; a civil war is waged
    because the laws cannot be peacefully enforced by the ordinary
    tribunals of the country through civil process and by civil
    officers. Because of the utter inability to keep the peace and
    maintain order by customary officers and agencies in time of
    peace, armies are organized and put into the field. They are
    called out and invested with the powers of war to prevent total
    anarchy and to preserve the government.

    Peace is the normal condition of a country, and war abnormal,
    neither being without law, but each having laws appropriate to
    the condition of society. The maxim _enter arma silent leges_
    is never wholly true. The object of war is to bring society out
    of its abnormal condition; and the laws of war aim to have that
    done with the least possible injury to persons and property.
    Anciently, when two nations were at war the conqueror had, or
    asserted, the right to take from his enemy his life, liberty,
    and property: if either was spared it was a favor, or act of
    mercy. By the laws of nations, and of war as a part thereof,
    the conqueror was deprived of this right.

    When two governments, foreign to each other, are at war, or
    when a civil war becomes territorial, all of the people of
    the respective belligerents become by the law of nations the
    enemies of each other. As enemies they cannot hold intercourse,
    but neither can kill or injure the other except under a
    commission from their respective governments. So humanizing
    have been, and are, the laws of war, that it is a high offense
    against them to kill an enemy without such commission. The laws
    of war demand that a man shall not take human life except under
    a license from his government; and under the Constitution of
    the United States no license can be given by any department of
    the government to take human life in war, except according to
    the law and usages of war. Soldiers regularly in the service
    have the license of the government to deprive men, the active
    enemies of their government, of their liberty and lives: their
    commission so to act is as perfect and as legal as that of a
    judge to adjudicate; but the soldier must act in obedience to
    the laws of war, as the judge must in obedience to the civil
    law. A civil judge must try criminals in the mode prescribed
    in the Constitution and the law; so, soldiers must kill or
    capture according to the laws of war. Non-combatants are not to
    be disturbed or interfered with by the armies of either party
    except in extreme cases.

    Armies are called out and organized to meet and overcome the
    active acting public enemies. But enemies with which armies
    have to deal are of two classes. 1. Open, active participants
    in hostilities, as soldiers who wear the uniform, move under
    the flag, and hold the appropriate commission from their
    government, openly assuming to discharge the duties and
    meet the responsibilities and dangers of soldiers, they are
    entitled to all belligerent rights, and should receive all
    the courtesies due to soldiers. The true soldier is proud to
    acknowledge and respect those rights, and ever cheerfully
    extends these courtesies. 2. Secret, but active participants,
    as spies, brigands, bushwhackers, jayhawkers, war-rebels, and
    assassins. In all wars, and especially civil wars, such secret,
    active enemies rise up to annoy and attack an army, and must
    be met and put down by the army. When lawless wretches become
    so impudent and powerful as not to be controlled and governed
    by the ordinary tribunals of a country, armies are called out
    and the laws of war invoked. War has never been and can never
    be conducted on the principle that an army is but a _posse
    comitatus_ of a civil magistrate. An army, like all other
    organized bodies, has a right, and its first duty is to protect
    its own existence, and the existence of all its parts, by the
    means and in the mode usual among civilized nations when at
    war. The question arises, then, do the laws of war authorize
    a different mode of proceeding and the use of different means
    against secret active enemies from those used against open
    active enemies? As has been said, the open enemy or soldier in
    time of war may be met in battle and killed, wounded, or taken
    prisoner, or so placed by the lawful strategy of war as that he
    is powerless. Unless the law of self-preservation absolutely
    demands it, the life of a wounded enemy or a prisoner must be
    spared.

    Unless pressed thereto by the extremest necessity, the laws
    of war condemn and punish with great severity harsh or
    cruel treatment to a wounded enemy or a prisoner. Certain
    stipulations and agreements, tacit or express, betwixt the
    open belligerent parties are permitted by the laws of war,
    and are held to be of a very high and sacred character. Such
    is the tacit understanding, or it may be usage of war, in
    regard to flags of truce. Flags of truce are resorted to as a
    means of saving human life, or alleviating human suffering.
    When not used with perfidy, the laws of war require that they
    should be respected. The Romans regarded embassadors betwixt
    belligerents as persons to be treated with consideration and
    respect. Plutarch, in his life of Cæsar, tells us that the
    barbarians in Gaul, having sent some embassadors to Cæsar, he
    detained them, charging fraudulent practices, and led his army
    to battle, obtaining a great victory. When the senate decreed
    festivals and sacrifices for the victory, Cato declared it to
    be his opinion that Cæsar ought to be given into the hands
    of the barbarians, that so the guilt which this breach of
    faith might otherwise bring upon the state might be expiated
    by transferring the curse on him who was the occasion of it.
    Under the Constitution and laws of the United States, should a
    commander be guilty of such a flagrant breach of law as Cato
    charged upon Cæsar, he would not be delivered to the enemy, but
    would be punished after a military trial.

    The many honorable gentlemen who hold commissions in the army
    of the United States, and have been deputed to conduct war
    according to the laws of war, would keenly feel it as an insult
    to their profession of arms for any one to say they could not
    or would not punish a fellow soldier who was wantonly guilty of
    cruelty to a prisoner, or perfidy towards the bearer of a flag
    of truce. The laws of war permit capitulations of surrender and
    paroles. They are agreements betwixt belligerents, and should
    be scrupulously observed and performed. They are contracts
    wholly unknown to civil tribunals. Parties to such contracts
    must answer any breaches thereof to the customary military
    tribunals in time of war. If an officer of rank, possessing
    the pride that becomes a soldier and a gentleman, who should
    capitulate to surrender his forces and property under his
    command and control, be charged with a fraudulent breach of
    the terms of surrender, the laws of war do not permit that he
    should be punished without a trial, or, if innocent, that he
    should have no means of wiping out the foul imputation. If a
    paroled prisoner is charged with a breach of his parole, he may
    be punished, if guilty, but not without a trial. He should be
    tried by a military tribunal, constituted and proceeding as the
    laws and usages of war prescribe.

    The law and usage of war contemplate that soldiers have a high
    sense of personal honor. The true soldier is proud to feel and
    know that his enemy possesses personal honor, and will conform
    and be obedient to the laws of war. In a spirit of justice,
    and with a wise appreciation of such feelings, the laws of war
    protect the honor and character of an open enemy. When, by the
    fortunes of war, one open enemy is thrown into the hands and
    power of another, and is charged with dishonorable conduct
    and a breach of the laws of war, he must be tried according
    to the usages of war. Justice and fairness say that an open
    enemy to whom dishonorable conduct is imputed has a right to
    demand a trial. If such a demand can be rightfully made, surely
    it cannot be rightfully refused. It is to be hoped that the
    military authorities of this country will never refuse such
    a demand because there is no act of Congress that authorizes
    it. In time of war the law and usages of war authorize it,
    and they are a part of the law of the land. One belligerent
    may request the other to punish for breaches of the laws of
    war, and, regularly, such a request should be made before
    retaliatory measures are taken. Whether the laws of war
    have been infringed or not is, of necessity, a question to
    be decided by the laws and usages of war, and is cognizable
    before a military tribunal. When prisoners of war conspire to
    escape, or are guilty of a breach of appropriate and necessary
    rules of prison discipline, they may be punished, but not
    without trial. The commander who should order every prisoner
    charged with improper conduct to be shot or hung would be
    guilty of a high offense against the laws of war, and should
    be punished therefor after a military trial. If the culprit
    should be condemned and executed, the commander would be as
    free from guilt as if the man had been killed in battle. It
    is manifest from what has been said, that military tribunals
    exist under and according to the laws of war, in the interest
    of justice and mercy. They are established to save human life
    and to prevent cruelty as far as possible. The commander of an
    army in time of war has the same power to organize military
    tribunals and to execute their judgments that he has to set
    his squadrons in the field and fight battles. His authority
    in each case is from the laws and usages of war. Having seen
    that there must be military tribunals to decide questions
    arising in time of war betwixt belligerents who are open and
    active enemies, let us next see whether the laws of war do
    not authorize such tribunals to determine the fate of those
    who are active but secret participants in the hostilities. In
    Mr. Wharton's "Elements of International Law," he says: "The
    effect of a state of war, lawfully declared to exist, is to
    place all the subjects of each belligerent power in a state of
    natural hostility. The usage of nations has modified this maxim
    by legalizing such acts of hostility only as are committed by
    those who are authorized by the express or implied command
    of the State, such as the regularly commissioned naval and
    military forces of the nation, and all others called out in
    its defense, or spontaneously defending themselves in case of
    necessity, without any express authority for that purpose."
    Cicero tells us in his offices, that by the Roman feudal law no
    person could lawfully engage in battle with the public enemy
    without being regularly enrolled, and taking the military oath.
    This was a regulation sanctioned both by policy and religion.
    The horrors of war would indeed be greatly aggravated if every
    individual of the belligerent States were allowed to plunder
    and slay indiscriminately the enemies' subjects without being
    in any manner accountable for his conduct. _Hence, it is in
    land-wars irregular bands of marauders are liable to be treated
    as lawless banditti, not entitled to the protection of the
    mitigated usages of war as practiced by civilized nations._

    In speaking upon the subject of banditti, Patrick Henry said
    in the Virginia Convention: "The honorable gentleman has
    given you an elaborate account of what he judges tyrannical
    legislation, and an _ex-post facto_ law (in the case of Josiah
    Philips); he has misinterpreted the facts. That man was
    not executed by a tyrannical stroke of power, nor was he a
    Socrates; he was a fugitive murderer and an outlaw; a man who
    commanded an _infamous banditti_, and _at a time when the war
    was at the most perilous stage_ he committed the most cruel
    and shocking barbarities; he was an enemy to the human name.
    Those who declare war against the human race may be struck
    out of existence as soon as apprehended. He was not executed
    according to those beautiful legal ceremonies which are pointed
    out by the law in criminal cases. The enormity of his crime
    did not entitle him to it. I am truly a friend to legal forms
    and methods; but, sir, the occasion warranted the measure. A
    pirate, an outlaw, or a common enemy to all mankind may be
    put to death at any time. It is justified by the law of war
    and of nations." No reader, not to say student, of the law of
    nations can doubt that Mr. Wheaton and Mr. Henry have fairly
    stated the laws of war. Let it be constantly borne in mind that
    they are talking of the law in a state of war. These banditti
    that spring up in time of war are respecters of no law, human
    or divine, of peace or of war, are _hostes humani generis_,
    and may be hunted down like wolves. Thoroughly desperate and
    perfectly lawless, no man can be required to peril his life in
    venturing to take them prisoners; as prisoners no trust can
    be reposed in them. But they are occasionally made prisoners.
    Being prisoners, what is to be done with them? If they are
    public enemies, assuming and exercising the right to kill, and
    are not regularly authorized to do so, they must be apprehended
    and dealt with by the military. No man can doubt the right
    and duty of the military to make prisoners of them, and being
    public enemies it is the duty of the military to punish them
    for any infractions of the laws of war.

    But the military cannot ascertain whether they are guilty
    or not without the aid of a military tribunal. In all wars,
    and especially in civil wars, secret but active enemies are
    almost as numerous as open ones. That fact has contributed to
    make civil wars such scourges to the countries in which they
    rage. In nearly all foreign wars the contending parties speak
    different languages and have different habits and manners,
    but in most civil wars that is not the case; hence there is
    a security in participating secretly in hostilities that
    induces many to thus engage. War prosecuted according to the
    most civilized usage is horrible, but its horrors are greatly
    aggravated by the immemorial habits of plunder, rape, and
    murder practiced by secret but active participants. Certain
    laws and usages have been adopted by the civilized world in
    wars between nations that are not of kin to one another, for
    the purpose and to the effect of arresting or softening many
    of the necessary cruel consequences of war. How strongly bound
    are we, then, in the midst of a great war where brother and
    personal friend are fighting against brother and friend, to
    adopt and be governed by these usages. A public enemy must or
    should be dealt with in all wars by the same laws. The fact
    they are public enemies being the same, they should deal with
    each other according to those laws of war that are contemplated
    by the Constitution.

    Whatever rules have been adopted and practiced by the
    civilized nations of the world in war to soften its hardships
    and severity should be adopted and practiced by us in this
    war. That the laws of war authorize commanders to create and
    establish military commissions, courts or tribunals for the
    trial of offenders against the laws of war, whether they be
    open or secret participants in the hostilities, cannot be
    denied. That the judgments of such tribunals may have been
    sometimes harsh, and sometimes even tyrannical, does not
    prove that they ought not to exist, nor does it prove that
    they are not constituted in the interest of justice and mercy.
    Considering the power that the laws of war give over secret
    participants in hostilities, such as banditti, guerrillas,
    spies, etc., the position of a commander would be miserable
    indeed if he could not call to his aid the judgments of such
    tribunals; he would become a mere butcher of men without the
    power to ascertain justice, and there can be no mercy where
    there is no justice. War in its mildest form is horrible; but
    take away from the contending armies the ability and right to
    organize what is now known as a Bureau of Military Justice,
    they would soon become monster savages unrestrained by any and
    all ideas of law and justice. Surely no lover of mankind, no
    one that respects law and order, no one that has the instinct
    of justice or that can be softened by mercy, would in time
    of war take away from the commanders the right to organize
    military tribunals of justice, and especially such tribunals
    for the protection of persons charged or suspected of being
    secret foes and participants in hostilities. It would be a
    miracle if the records and history of this war do not show
    occasional cases in which those tribunals have erred; but they
    will show many, very many cases in which human life would have
    been taken but for the interposition and judgments of these
    tribunals. Every student of the laws of war must acknowledge
    that such tribunals exert a kindly and benign influence in time
    of war. Impartial history will record the fact that the Bureau
    of Military Justice, regularly organized during this war, has
    saved human life and prevented human suffering. The greatest
    suffering patiently endured by soldiers, and the hardest
    battles gallantly fought during this protracted struggle,
    are not more creditable to the American character than the
    establishment of this bureau.

    This people have such an educated and profound respect for
    law and justice, such a love of mercy, that they have in the
    midst of this greatest of civil wars systematized and brought
    into regular order tribunals that before this war existed
    under the law of war, but without general rule. To condemn the
    tribunals that have been established under this bureau is to
    condemn and denounce the war itself, or, justifying the war, to
    insist that it shall be prosecuted according to the harshest
    rules, and without the aid of laws, usages, and customary
    agencies for mitigating those rules. If such tribunals had not
    existed before, under the laws and usages of war, the American
    citizen might as proudly point to their establishment as to our
    inimitable and inestimable Constitutions. It must be constantly
    borne in mind that such tribunals and such a bureau cannot
    exist except in time of war, and cannot then take cognizance
    of offenders and offenses where the civil courts are open,
    except offenders and offenses against the laws of war. But it
    is insisted by some, and doubtless with honesty, and with a
    zeal commensurate with their honesty, that such tribunals can
    have no constitutional existence. The argument against their
    constitutionality may be shortly, and I think, fairly stated
    thus: Congress alone can establish military or civil judicial
    tribunals. As Congress has not established military tribunals,
    except such as have been created under the articles of war,
    and which articles are made in pursuance of that clause in the
    Constitution which gives to Congress the power to make rules
    for the government of the army and navy, any other tribunal is
    and must be plainly unconstitutional, and all its acts void.
    This objection, thus stated, or stated in any form, begs the
    question. It assumes that Congress alone can establish military
    judicial tribunals. Is that assumption true?

    We have seen that when war comes, the laws and usages of war
    come with it, and that during the war they are a part of the
    laws of the land. Under the Constitution, Congress may define
    and punish offenses against those laws, but in default of
    Congress defining those laws and prescribing punishment for
    their infraction, and the mode of proceeding to ascertain
    whether an offense has been committed, and what punishment is
    to be inflicted, the army must be governed by the laws and
    usages of war as understood and practiced by the civilized
    nations of the world. It has been abundantly shown that these
    tribunals are constituted by the army in the interest of
    justice and mercy, and for the purpose and to the effect of
    mitigating the horrors of war.

    But it may be insisted that though the law of war, being part
    of the law of nations, constitute a part of the laws of the
    land, that those laws must be regarded as modified so far, and
    whenever they come in direct conflict with plain constitutional
    provisions. The following clauses of the constitution are
    principally relied upon to show the conflict betwixt the laws
    of war and the Constitution. "The trial of all crimes, except
    in cases of impeachment, shall be by the jury, and such trial
    shall be held in the State where the said crime shall have
    been committed; but when not committed within any State, the
    trial shall be at such place or places as the Congress may by
    law have directed." "No person shall be held to answer for a
    capital, or otherwise infamous crime, unless on a presentment
    or indictment of a grand jury, except in cases arising in
    the land or naval forces, or in the militia when in actual
    service, in time of war or public danger; nor shall any person
    be subject for the same offense to be twice put in jeopardy of
    life or limb; nor shall be compelled in any criminal case to be
    witness against himself, nor be deprived of life, liberty or
    property without due process of law, nor shall private property
    be taken for public use without just compensation" (Article V.
    of the amendments). "In all criminal prosecutions the accused
    shall enjoy the right of a speedy and public trial by an
    impartial jury of the State and district wherein the crime
    shall have been committed, which district shall have previously
    been ascertained by law, and be informed of the nature and
    cause of the accusation; to be confronted with witnesses
    against him, to have compulsory process for obtaining witnesses
    in his favor, and to have the assistance of counsel for his
    defense" (Article VI. of the amendments). These provisions of
    the Constitution are intended to fling around the life, liberty
    and property of a citizen all the guarantees of a jury trial.

    These constitutional guarantees cannot be estimated too highly,
    or protected too sacredly. The reader of history knows that for
    many weary ages the people suffered for the want of them; it
    would not only be stupidity but madness in us not to preserve
    them. No man has a deeper conviction of their value, or a
    more sincere desire to preserve and perpetuate them, than I
    have. Nevertheless, these sacred and exalted provisions of the
    Constitution must not be read alone and by themselves, but must
    be read and taken in connection with other provisions. The
    Constitution was framed by great men--men of learning and large
    experience, and it is a wonderful monument of their wisdom.
    Well versed in the history of the world, they knew that the
    nation for which they were framing a government would, unless
    all history were false, have wars foreign and domestic. Hence
    the government framed by them is clothed with the power to make
    and carry on a war. As has been shown, when war comes the laws
    of war come with it. Infractions of the laws of nations are
    not denominated _crimes_, but _offenses_. Hence the expression
    in the Constitution that Congress shall have power to define
    and punish offenses against the law of nations. Many of the
    _offenses_ against the law of nations for which a man may lose
    his life, his liberty, or his property are not crimes. It is an
    offense against the law of nations to break a lawful blockade,
    and for which a forfeiture of the property is the penalty,
    and yet the running of a blockade has never been considered a
    crime; to hold communication or intercourse with the enemy is a
    high offense against the laws of war, and for which those laws
    prescribe punishment, and yet it is not a _crime_; to act as a
    spy is an offense against the laws of war, and the penalty for
    which, in all ages, has been death, and yet it is not a crime;
    to violate a flag of truce is an offense against the laws of
    war, and yet it is not a crime of which a civil court can take
    cognizance; to unite with banditti, jayhawkers, guerrillas,
    or any other unauthorized marauders is a high offense against
    the laws of war; the offense is complete when the band is
    organized or joined. The atrocities committed by such a band
    do not constitute the offenses, but make the reasons, and
    sufficient reasons they are, why such banditti are denounced by
    the laws of war. Some of the offenses against the laws of war
    are crimes, and some are not. Because they are crimes they do
    not cease to be offenses against the laws of war; nor because
    they are not crimes or misdemeanors do they fail to be offenses
    against the laws of war. Murder is a crime, and the murderer,
    as such, must be proceeded against in the form and manner
    prescribed by the Constitution. In committing the murder an
    offense may also have been committed against the laws of war;
    for that offense he must answer to the laws of war, and the
    tribunals legalized by that law. There is, then, an apparent
    but no real conflict in the constitutional provisions.

    Offenses against the laws of war must be dealt with and
    punished under the Constitution, as the laws of war, they being
    a part of the law of nations, direct; crimes must be dealt with
    and punished as the Constitution, and laws made in pursuance
    thereof, may direct. Congress has not undertaken to define the
    code of war nor to punish offenses against it. In the case of a
    spy, Congress has undertaken to say who shall be deemed a spy
    and how he shall be punished. But every lawyer knows that a
    spy was a well known offender under the laws of war, and that
    under, and according, to these laws he could have been tried
    and punished without an act of Congress. This is admitted by
    the act of Congress when it says that he shall suffer death
    "according to the laws and usages of war." The act is simply
    declaratory of the law. That portion of the Constitution
    which declares that no "person shall be deprived of his life,
    liberty or property without due process of law" has such
    direct reference to and connection with trials for _crime_ and
    _criminal_ prosecutions, that comment upon it would seem to be
    unnecessary. Trials for offenses against the laws of war are
    not embraced nor intended to be embraced in these provisions.
    If this is not so, then every man who kills another in battle
    is a murderer, for he deprived a "person of life without that
    due process of law" contemplated by this provision; every
    soldier that marches across a field in battle array is liable
    to an action for trespass, because he does so without that
    due process of law. The argument that flings around offenders
    against the laws of war these guarantees of the Constitution
    would convict all the soldiers of our army of murder; no
    prisoners could be taken and held; the army could not move.

    The absurd consequences that would of necessity flow from such
    an argument show that it cannot be the true construction--it
    cannot be what was intended by the framers of that instrument.
    One of the prime motives for the Union and a federal government
    was to confer the powers of war. If any provisions of the
    Constitution are so in conflict with the power to carry on
    war as to destroy and make it valueless, then the instrument,
    instead of being a great and wise one, is a miserable failure,
    a _felo de se_. If any man should sue out a writ of _habeas
    corpus_, and the returns show that he belonged to the army
    or navy, and was held to be tried for some offense against
    the rules and articles of war, the writ should be dismissed,
    and the party remanded to answer to the charges. So, in time
    of war, if a man should sue out a writ of _habeas corpus_,
    and it is made appear that he is in the hands of the military
    as a prisoner of war, the writ should be dismissed, and the
    prisoner remanded to be disposed of as the laws and usages of
    war require. If the prisoner be a regular unoffending soldier
    of the opposing party to the war, he should be treated with
    all the courtesy and kindness consistent with safe custody; if
    he has offended against the laws of war he should have such
    a trial, and be punished as the laws of war require. A spy,
    though a prisoner of war, may be tried, condemned, and executed
    by a military tribunal without a breach of the Constitution. A
    bushwhacker, a jayhawker, a bandit, a war rebel, an assassin,
    being public enemies, may be tried, condemned, and executed as
    offenders against the laws of war.

    The soldier that would fail to try a spy or a bandit after his
    capture would be as derelict in duty as if he were to fail to
    capture; he is as much bound to try and execute, if guilty, as
    he is to arrest; the same law that makes it his duty to pursue
    and kill or capture makes it his duty to try according to the
    usages of war. The judge of a civil court is not more strongly
    bound, under the Constitution and the law, to try a criminal,
    than is the military to try an offender against the laws of
    war. The fact that the civil courts are open does not affect
    the right of the military tribunal to hold as a prisoner and
    to try. The civil courts have no more right to prevent the
    military, in time of war, from trying an offender against the
    laws of war than they have a right to interfere and prevent a
    battle. A battle may be lawfully fought in the very presence of
    the court; so a spy, a bandit, or other offender against the
    law of war, may be tried, and tried lawfully, when and where
    the civil courts are open and transacting business. The law of
    war authorizes human life to be taken without legal process;
    or that legal process contemplated by those provisions of
    the Constitution that are relied upon to show that military
    judicial tribunals are unconstitutional.

    Wars should be prosecuted justly as well as bravely. One enemy
    in the power of another, whether he be an open or a secret
    one, should not be punished or executed without a trial. If
    the question be one concerning the laws of war, he should
    be tried by those engaged in the war; they, and they only,
    are his peers. The military must decide whether he is, or is
    not, an active participant in hostilities. If he is an active
    participant in the hostilities it is the duty of the military
    to take him, without warrant or other judicial process, and
    dispose of him as the laws of war direct. It is curious to see
    one and the same mind justify the killing of thousands of men
    in battle because it is done according to the laws of war, and
    yet condemning that same law when, out of regard for justice,
    and with the hope of saving life, it orders a military trial
    before the enemy are killed. The love of law, of justice, and
    the wish to save life and suffering should impel all good men
    in time of war to uphold and sustain the existence and actions
    of such tribunals. The object of such tribunals is obviously
    intended to save life, and when their jurisdiction is confined
    to offenses against the laws of war, that is their effect. They
    prevent indiscriminate slaughter; they prevent men from being
    punished or killed on mere suspicion. The law of nations, which
    is the result of the wisdom and experience of ages, has decided
    that jayhawkers, banditti, etc., are offenders against the laws
    of nature and of war, and as such amenable to the military. Our
    Constitution has made those laws a part of the law of the land.
    Obedience to the Constitution and the law, then, requires that
    the military should do their whole duty; they must not only
    meet and fight the enemies of the country in open battle, but
    they must kill or take the secret enemies of the country and
    try and execute them according to the laws of war.

    The civil tribunals of the country cannot rightfully interfere
    with the military in the performance of their high, arduous,
    and perilous but lawful duties. That Booth and his associates
    were secret active public enemies no mind that contemplates
    the facts can doubt. The exclamation used by him when he
    escaped from the box onto the stage, after he fired the fatal
    shot, _sic semper tyrannis_, and his dying message, "Say to my
    mother that I died for my country," show that he was not an
    assassin from private malice, but that he acted as a public
    foe. Such a deed is expressly laid down in Vattel, in his work
    on the law of nations, as an offense against the laws of war
    and a great crime: "I give then the name of assassination to
    a treacherous murder, whether the perpetrators of the deed be
    the subjects of the party whom we cause to be assassinated
    or of our own sovereign, or that it be executed by any other
    emissary introducing himself as a suppliant, a refugee, or a
    deserter, or in fine as a stranger" (Vattel, 339.) Neither the
    civil nor the military department of the government should
    regard itself as wiser and better than the Constitution and
    the laws that exist under or are made in pursuance thereof.
    Each department should, in peace and in war, confining itself
    to its own proper sphere of action, diligently and fearlessly
    perform its legitimate functions, and in the mode prescribed by
    the Constitution and the law. Such obedience to and observance
    of law will maintain peace when it exists, and will soonest
    relieve the country from the abnormal state of war.

    My conclusion, therefore, is, that if the persons who are
    charged with the assassination of the President committed the
    deed as public enemies, as I believe they did, and whether
    they did or not is a question to be decided by the tribunal
    before which they are tried, they not only can, but ought to be
    tried before a military tribunal. If the persons charged have
    offended against the laws of war, it would be especially wrong
    for the military to hand them over to the civil courts, as it
    would be wrong in a civil court to convict a man of murder who
    had in time of war killed another in battle.

        JAMES SPEED,
          _Attorney General_.

The foregoing discussion of the constitutional aspects of the question
will no doubt be regarded by most people as somewhat tedious, and
perhaps outside of the legal profession will be read, much less
carefully studied, by but few. Yet by those who study it, it will be
found to be a most profound and masterly analysis of the questions
involved, viz., those of military and civil jurisdiction as provided
for in the Constitution, and to fully justify the opinion given as the
conclusion of the argument.

We cannot too highly revere the Constitution, as it is that which gives
permanence, security, and prosperity to our national life; yet there
is a power greater than the Constitution--a power that by authority
expressed or understood reserves the right to amend, alter, or abolish
its provisions. That power is the sovereignty that resides in the
people. Self preservation is a national, as much as an individual
instinct, and self preservation is the first law of nature.

A government that has a right to live has a right to the use of all
the means that may be found indispensable to the perpetuation of its
existence. When war comes the laws of war come with it as a matter of
necessity; because war, being an abnormal state of society, brings with
it conditions that render inoperative and useless the means provided
for the safety and security of the life, liberty, and property of the
citizen, as guaranteed by the Constitution and laws. These interests
are too sacred to be left wholly unprotected; and so the civilized
nations of the world have adopted those rules which the wisdom and
experience of mankind have found necessary for their protection in time
of war. These rules, or laws, we denominate the laws of war. If the
experience of mankind should dictate modifications of, or additions
to, those rules for the better protection of these sacred interests of
life, liberty, and property, it would be as proper to amend these as
it is proper and competent to amend statute law, or to alter, amend,
or abolish constitutions. Such additions or alterations, if wisely
made, receive the sanction of mankind, and thus become a part of the
unwritten law, having in them the authority of this sanction.

In dealing with this question, however, it was not found necessary
that anything new should be devised, as the laws of war were found to
authorize all that was necessary to the adjudication of the question,
and to furnish the means and appliances for securing the ends of
justice.

The nature of the offense charged against these prisoners placed them
under the domain of martial law, as they were shown by their own acts
and declarations to be secret, active enemies of the government, the
purpose of their crime being to give aid to the existing rebellion. For
this reason the government left them in the hands of the military to
be dealt with according to the laws of war; and the President, being
_ex-officio_ Commander-in-Chief of the army and navy, ordered the
Assistant Adjutant General of the army to detail a military commission,
and send the accuse before it for a speedy trial.




CHAPTER VIII.

A MILITARY COMMISSION--ITS NATURE, CONSTITUTION, DUTIES, AND
JURISDICTION.


A military commission, as we have seen, is a judicial tribunal
authorized by and constituted under the laws of war during a state
of war. It consists of a definite number of commissioned officers
designated by the order of detail. Its jurisdiction is limited, and
its duties are also prescribed by that order. It is a military court
detailed to try offenders against the laws of war, and clothed with
power to decide both on the law and evidence in the case, and to
prescribe the punishment due to the offense. It is constituted to act
under a presiding officer, who is also designated in the order of
detail. It has the assistance of a judge advocate with whom it consults
in regard to any questions of law or of evidence that may arise.

The office of a judge advocate does not exactly correspond with that
of a states attorney in a civil court, for at the same time that it is
his duty to see that the case of the government and the evidence are
fairly presented, it is as much his duty to see that the accused shall
have a fair and impartial trial. The party on trial has the right to
have counsel of his own choice, and the government must secure the
attendance of such witnesses in his defense as he may designate. The
rules of law and of evidence are very nearly the same as those which
prevail in the civil courts. A military commission combines, to a great
extent, the functions of both court and jury, as it has to decide on
questions of law and evidence as a court, and on the guilt or innocence
of the accused, in the light of law and evidence, as a jury. Again, in
rendering a sentence, in case of conviction, it exercises the functions
of a court. The oath taken by the members of the detail, and which
constitutes it a court, requires them to diligently try the case and
judge and decide impartially, according to the law and evidence. Thus
it will be seen that the rights of the accused are carefully guarded,
and every precaution taken to make it certain that justice shall be
done. This is the purpose as much in the constitution of a military as
of a civil court. The only object of its constitution is to protect the
innocent and condemn and punish the guilty, and thus secure the ends
of justice and mercy. It is a benign provision of military law, and
entitled to the highest respect and honor. Its decisions and sentences,
however, must have the approval of the President of the United States
to give them validity.




CHAPTER IX.

CONSTITUTION OF THE COMMISSION, AND TRIAL.


The order of the President required the Assistant Adjutant General
of the army to detail nine competent military officers to serve as
a commission for the trial of the parties in custody, and also that
the Judge Advocate General should proceed to prefer charges against
them for their alleged offenses, and bring them to trial before the
Commission, under the conduct of the Judge Advocate General as the
recorder thereof, in person, and assisted by such assistant, or
special judge advocates as he might select, and that the trial should
be conducted with all diligence, consistent with the ends of justice.
Brevet Major General Hartranft was assigned to duty, by the President's
order, as Special Provost Martial General for the occasion. The
following officers were designated by the Assistant Adjutant General as
the detail for the court:--

Major General David H. Hunter, U.S.V., to preside over the Commission.

Major General Lewis Wallace, U.S.V.

Brevet Major General August V. Kautz, U.S.V.

Brigadier General Albion P. Howe, U.S.V.

Brigadier General Robert S. Foster, U.S.V.

Brevet Brigadier General Cyrus Comstock, U.S.V.

Brigadier General T. M. Harris, U.S.V.

Brevet Colonel Horace Porter, Aide-de-Camp.

Lieutenant Colonel David R. Clendennin, Eighth Illinois Cavalry.

Brigadier General Joseph Holt, Judge Advocate General United States
Army, Judge Advocate and Recorder of the Commission, aided by such
special or assistant judge advocates as he might designate.

[Illustration: T. M. Harris. August V. Kautz. J. A. Ekin. Hon. Jno. A.
Bingham. Chas. H. Tompkins. R. S. Foster. D. R. Clendenin.

D. Hunter. Lew Wallace. A. D. Howe. Hon. J. Holt. H. L. Burnett.

MEMBERS OF THE MILITARY COMMISSION.]

The details for the Commission were made on the 6th of May, 1865, and
it was ordered to meet at Washington City on the 8th of May, or as
soon thereafter as possible. The Commission held its first meeting on
the 9th of May, at ten o'clock A.M., all the members being
present, also the Judge Advocate General.

The Hon. John A. Bingham, and Brevet Colonel H. L. Burnett, Judge
Advocate, were introduced by the Judge Advocate General as assistant
or special judge advocates. The accused, David E. Herold, George A.
Atzerodt, Samuel Arnold, Lewis Payne, Michael O'Laughlin, Edward
Spangler, Mary E. Surratt, and Samuel A. Mudd were brought into court,
and being asked whether they desired to employ counsel replied in
the affirmative. To afford them an opportunity to do so, the court
adjourned to meet on the 10th day of May, at ten o'clock A.M.
At the assembling of the court on the 10th, the Judge Advocate read
a special order from the Assistant Adjutant General, E. D. Townsend,
relieving General Comstock and Brevet Colonel Porter from service on
the Commission, and substituting for them Brevet Brigadier General
James A. Ekin, U. S. V., and Brevet Colonel C. H. Tompkins, U. S. A.

All the members being present, the Commission proceeded to the trial
of the parties accused as above named, who were brought into court,
and having the order detailing the Commission read to them, they were
asked if they had any objection to any member named therein, to which
they all replied, severally, that they had not. The members of the
Commission were then duly sworn by the Judge Advocate General in the
presence of the accused. The Judge Advocate General and the assistant
judge advocates were then duly sworn by the president of the court in
the presence of the accused.

Ben Pittman, R. Sutton, D. F. Murphy, R. R. Hitt, J. J. Murphy,
and Edward V. Murphy were sworn by the Judge Advocate General, in
the presence of the accused, as reporters to the Commission. The
accused were then severally arraigned on the following charge and
specifications:--


    _Charge and Specifications against David E. Herold, George
    A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler,
    Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd._

    _Charge._--For maliciously, unlawfully, and traitorously, and
    in aid of the existing armed rebellion against the United
    States of America, on or before the 6th day of March, A.D.
    1865, and on divers other days between that day and the
    15th day of April, A.D. 1865, combining, confederating, and
    conspiring together with one John H. Surratt, John Wilkes
    Booth, Jefferson Davis, George N. Sanders, Beverly Tucker,
    Jacob Thompson, William C. Cleary, Clement C. Clay, George
    Harper, George Young, and others unknown, to kill and murder
    within the military department of Washington, and within the
    fortified and intrenched lines thereof, Abraham Lincoln,
    late, at the time of said combining, confederating, and
    conspiring President of the United States of America and
    Commander-in-Chief of the army and navy thereof; Andrew
    Johnson, now Vice-President of the United States aforesaid;
    William H. Seward, Secretary of State of the United States
    aforesaid; and Ulysses S. Grant, Lieutenant General of the
    army of the United States aforesaid, then in command of the
    armies of the United States under the direction of the said
    Abraham Lincoln; and in pursuance of, and in prosecuting said
    malicious, unlawful, and traitorous conspiracy aforesaid, and
    in aid of said rebellion, afterwards, to wit, on the 14th
    day of April, A.D. 1865, within the military department at
    Washington aforesaid, and within the fortified and intrenched
    lines of said military department, together with said John
    Wilkes Booth and John H. Surratt, maliciously, unlawfully, and
    traitorously murdering the said Abraham Lincoln, then President
    of the United States and Commander-in-Chief of the army and
    navy of the United States as aforesaid; and maliciously,
    unlawfully, and traitorously assaulting with intent to kill and
    murder the said William H. Seward, then Secretary of State of
    the United States as aforesaid; and lying in wait with intent
    maliciously, unlawfully, and traitorously to kill and murder
    Andrew Johnson, then being Vice-President of the United States;
    and the said Ulysses S. Grant, then being Lieutenant General,
    and in command of the armies of the United States as aforesaid.

    _Specifications._--In this, that they, the said David E.
    Herold, Edward Spangler, Lewis Payne, Michael O'Laughlin,
    Samuel Arnold, Mary E. Surratt, George A. Atzerodt, and Samuel
    A. Mudd, together with the said John H. Surratt and John Wilkes
    Booth, incited and encouraged thereunto by Jefferson Davis,
    George N. Sanders, Beverly Tucker, Jacob Thompson, William
    C. Cleary, Clement C. Clay, George Harper, George Young, and
    others unknown, citizens of the United States aforesaid, and
    who were then engaged in armed rebellion against the United
    States of America, within the limits thereof, did, in aid of
    said armed rebellion, on or before the 6th day of March, A.D.
    1865, and on divers other days and times between that day
    and the 15th day of April, A.D. 1865, combine, confederate,
    and conspire together at Washington City, within the
    military department of Washington, and within the intrenched
    fortifications and military lines of the said United States,
    there being unlawfully, maliciously, and traitorously to kill
    and murder Abraham Lincoln, then President of the United
    States aforesaid, and Commander-in-Chief of the army and navy
    thereof; and unlawfully, maliciously, and traitorously to kill
    and murder Andrew Johnson, now Vice-President of the said
    United States, upon whom, on the death of the said Abraham
    Lincoln, after the 4th day of March, A.D. 1865, the office of
    President of the said United States and Commander-in-Chief of
    the army and navy thereof would devolve; and to unlawfully,
    maliciously, and traitorously kill and murder Ulysses S.
    Grant, then Lieutenant General, and under the direction of
    Abraham Lincoln, in command of the armies of the United States
    aforesaid; and unlawfully, maliciously, and traitorously to
    kill and murder William H. Seward, then Secretary of State of
    the United States aforesaid, whose duty it was by law, upon the
    death of the said President and Vice-President of the United
    States aforesaid, to cause an election to be held for electors
    of President of the United States; the conspirators aforesaid,
    designing and intending by the killing and murder of the said
    Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, and William
    H. Seward, as aforesaid, to deprive the army and navy of the
    said United States of a constitutional commander-in-chief; and
    to deprive the armies of the United States of their lawful
    commander; and to prevent a lawful election of President and
    Vice-President of the United States aforesaid; and by the
    means aforesaid to aid and comfort the insurgents engaged in
    armed rebellion against the said United States as aforesaid,
    and thereby to aid in the subversion and overthrow of the
    Constitution and laws of the said United States.

    And being so combined, confederated and conspiring together in
    the prosecution of said unlawful and traitorous conspiracy, on
    the night of the 14th day of April, A.D. 1865, at the hour of
    about ten o'clock and fifteen minutes P.M., at Ford's Theatre
    on Tenth Street, in the City of Washington, and within the
    military department and military lines aforesaid, John Wilkes
    Booth, one of the conspirators aforesaid, in pursuance of
    said unlawful and traitorous conspiracy, did then and there
    unlawfully, maliciously, and traitorously, and with intent to
    kill and murder the said Abraham Lincoln, discharge a pistol
    then held in the hands of him, the said John Wilkes Booth, the
    same being then loaded with powder and a leaden ball, against
    and upon the left and posterior side of the head of the said
    Abraham Lincoln; and did thereby then and there inflict upon
    him, the said Abraham Lincoln, then President of the United
    States and Commander-in-Chief of the army and navy thereof,
    a mortal wound whereof afterwards, to wit, on the 15th day
    of April, A.D. 1865, at Washington City aforesaid, the said
    Abraham Lincoln died; and thereby, then and there, and in
    pursuance of said conspiracy, the said defendants, and the
    said John Wilkes Booth and John H. Surratt did, unlawfully,
    traitorously and maliciously, and with intent to aid the
    rebellion as aforesaid, kill and murder the said Abraham
    Lincoln, President of the United States, as aforesaid. And in
    further prosecution of the unlawful, and traitorous conspiracy
    aforesaid, and of the murderous and traitorous intent of said
    conspiracy, the said Edward Spangler, on the said 14th day
    of April, A.D. 1865, at about the same hour of that day as
    aforesaid, within the said military department and military
    lines aforesaid, did aid and assist the said John Wilkes Booth
    to obtain entrance to the box in the said theatre, in which
    said Abraham Lincoln was sitting at the time he was assaulted
    and shot as aforesaid by John Wilkes Booth; and also did, then
    and there, aid said Booth in barring and obstructing the door
    of the box of said theatre, so as to hinder and prevent any
    assistance to, or rescue of, the said Abraham Lincoln against
    the murderous assault of the said John Wilkes Booth; and did
    aid and abet him in making his escape after the said Abraham
    Lincoln had been murdered in manner aforesaid.

    And in further prosecution of said unlawful, murderous, and
    traitorous conspiracy, and in pursuance thereof, and with the
    intent as aforesaid, the said David E. Herold did, on the
    night of the 14th day of April, A.D. 1865, within the military
    department and military lines aforesaid, aid, abet, and assist
    the said John Wilkes Booth in the killing and murder of the
    said Abraham Lincoln, and did, then and there, aid, abet, and
    assist him, the said John Wilkes Booth, in attempting to escape
    through the military lines aforesaid, and did accompany and
    assist the said John Wilkes Booth in attempting to conceal
    himself and escape from justice after killing and murdering
    said Abraham Lincoln as aforesaid.

    And in further prosecution of said unlawful and traitorous
    conspiracy, and of the intent thereof, as aforesaid, the said
    Lewis Payne did, on the same night of the 14th day of April,
    A.D. 1865, about the same hour of ten o'clock and fifteen
    minutes P.M., at the city of Washington, and within the
    military department and military lines aforesaid, unlawfully
    and maliciously make an assault upon the said William H.
    Seward, Secretary of State, as aforesaid, in the dwelling house
    and bed-chamber of him, the said William H. Seward, and the
    said Payne did, then and there, with a large knife held in
    his hand, unlawfully, traitorously, and in pursuance of said
    conspiracy, strike, stab, cut, and attempt to kill and murder
    the said William H. Seward, and did thereby, then and there,
    and with the intent aforesaid, with said knife inflict upon the
    face and throat of the said William H. Seward divers grievous
    wounds. And the said Lewis Payne, in further prosecution of
    said conspiracy, at the same time and place last aforesaid,
    did attempt, with the knife aforesaid, and a pistol held in
    his hand, to kill and murder Frederick W. Seward, Augustus
    H. Seward, Emrick W. Hansel and George F. Robinson, who were
    striving to protect and rescue the said William H. Seward from
    murder by the said Lewis Payne, and did, then and there, with
    said knife and pistol held in his hands, inflict upon the head
    of the said Frederick W. Seward, and upon the persons of said
    Augustus H. Seward, Emrick W. Hansel, and George F. Robinson,
    divers grievous and dangerous wounds, with intent then and
    there to kill and murder the said Frederick W. Seward, Augustus
    H. Seward, Emrick W. Hansel, and George F. Robinson.

    And in further prosecution of said conspiracy and its
    traitorous and murderous designs, the said George A. Atzerodt
    did, on the night of the 14th of April, A.D. 1865, and about
    the same hour of the night aforesaid, within the military
    department and military lines aforesaid, lie in wait for Andrew
    Johnson, then Vice-President of the United States aforesaid,
    with the intent unlawfully and maliciously to kill and murder
    him, the said Andrew Johnson.

    And in further prosecution of the conspiracy aforesaid, and
    of its murderous and treasonable purposes aforesaid, on the
    nights of the 13th and 14th of April, A.D. 1865, at Washington
    City, and within the military department and military lines
    aforesaid, the said Michael O'Laughlin did, then and there,
    lie in wait for Ulysses S. Grant, then lieutenant general and
    commander of the armies of the United States as aforesaid, with
    intent then and there to kill and murder the said Ulysses S.
    Grant.

    And in further prosecution of said conspiracy, the said Samuel
    Arnold did, within the military department and the military
    lines aforesaid, on or before the 6th day of March, A.D. 1865,
    and on divers other days and times between that day and the
    15th day of April, A.D. 1865, combine, conspire with, and
    aid, counsel, abet, comfort, and support the said John Wilkes
    Booth, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, and
    their confederates in said unlawful, murderous and traitorous
    conspiracy, and in the execution thereof aforesaid.

    And in further prosecution of said conspiracy, Mary E. Surratt
    did, at Washington City and within the military department and
    military lines aforesaid, on or before the 6th day of March,
    A.D. 1865, and on divers other days and times between that
    day and the 20th day of April, A.D. 1865, receive, entertain,
    harbor, and conceal, aid and assist the said John Wilkes
    Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael
    O'Laughlin, George A. Atzerodt, Samuel Arnold, and their
    confederates, with knowledge of the murderous and traitorous
    conspiracy aforesaid, and with the intent to aid, abet, and
    assist them in the execution thereof, and in escaping from
    justice after the murder of the said Abraham Lincoln as
    aforesaid.

    And in further prosecution of said conspiracy the said Samuel
    A. Mudd did at Washington City and within the military
    department and military lines aforesaid, on or before the 6th
    day of March, A.D. 1865, and on divers other days and times
    between that day and the 20th day of April, A.D. 1865, advise,
    encourage, receive, entertain, harbor and conceal, aid and
    assist the said John Wilkes Booth, David E. Herold, Lewis
    Payne, John H. Surratt, Michael O'Laughlin, George A. Atzerodt,
    Mary E. Surratt, and Samuel Arnold, and their confederates,
    with knowledge of the murderous and traitorous conspiracy
    aforesaid, and with the intent to aid, abet, and assist them
    in the execution thereof and in escaping from justice after
    the murder of the said Abraham Lincoln, in pursuance of said
    conspiracy in manner aforesaid. By order of the President of
    the United States.

    J. HOLT, _Judge Advocate General_


_Charge and Specifications Indorsed._

"Copy of the within charge and specification delivered to David E.
Herold, George A. Atzerodt, Lewis Payne, Edward Spangler, Michael
O'Laughlin, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd, on the
8th day of May, 1865.

        [Signed]
          "J. F. HARTRANFT,

        "_Brevet Major General and
        Special Provost Marshal General_."


The accused severally plead as follows:--

To the specification, "Not guilty."

To the charge, "Not guilty."

The Commission then proceeded to consider the rules and regulations
by which its proceedings should be governed or conducted. The
prisoners were served, as we have seen, with a due notice of the
offenses with which they were charged, and required to be confronted
with the witnesses against them. They were allowed the benefit of
counsel of their own choice and compulsory attendance of witnesses
in their defense. In short, they were accorded every condition that
was necessary to a fair and impartial trial. In this case the only
qualification required of the counsel selected or employed by the
accused in their defense was, that they should submit or file evidence
of having taken the oath required by an act of Congress, or should take
said oath before being permitted to appear in the case.

The examination of witnesses was conducted on the part of the
government by the Judge Advocate and by counsel on the part of the
accused. The evidence was taken down by short-hand reporters who
were sworn to record the evidence faithfully and truly, and not to
communicate the same, or any part of the proceedings on the trial,
except by authority of the presiding officer. They were required to
furnish a copy of the evidence taken each day to the Judge Advocate,
and also a copy to prisoners' counsel. No reporters except the official
reporters were allowed access to the court-room. The Judge Advocate,
however, was allowed to furnish to the agent of the Associated Press,
at his discretion, a copy of such testimony and proceedings as might
be published during the trial without injury to the public and to the
ends of justice. All other publication of the evidence and of the
proceedings during the trial was forbidden, and was to be dealt with
as a contempt of court. The testimony being closed, the case was to
be immediately summed up by one judge advocate, selected by the Judge
Advocate General, to be followed or opened, if the Judge Advocate
General so selected, by counsel for the prisoners, and the argument
closed by one judge advocate.

The argument being closed, the court was to proceed immediately
to deliberate and make its determination. The provost marshal was
required to have the prisoners present during the trial, and was held
responsible for their safe keeping. Their counsel was permitted to
hold communication with them in the presence, but not in the hearing,
of the guard. Counsel for the prisoners were required to furnish
immediately a list of witnesses required for the defense of their
respective clients to the Judge Advocate General, who procured their
attendance in the usual manner. At the meeting of the Commission on
May the 11th, Samuel A. Mudd asked permission to introduce Frederick
Stone, Esq., and Thomas Ewing, Jr., Esq., as his counsel. Mary E.
Surratt asked to introduce Frederick Aiken, Esq., and John W. Clampitt,
Esq., as her counsel, which applications were granted by the court. At
its meeting on May 12th, David E. Herold asked to introduce Frederick
Stone, Esq., as his counsel; Samuel Arnold asked to introduce Thomas
Ewing, Jr., Esq., as his counsel; George A. Atzerodt asked to introduce
William E. Doster, Esq., as his counsel; Michael O'Laughlin applied
for permission to introduce Walter S. Cox, Esq., as his counsel; Lewis
Payne asked to introduce William E. Doster, Esq., as his counsel;
Edward Spangler applied for permission to introduce Thomas Ewing, Jr.,
Esq., as his counsel; which applications were granted, and Messrs.
Doster and Cox, having first taken the oath prescribed by act of
Congress approved July 2d, 1862, in open court, appeared accordingly.
The accused, Mary E. Surratt, applied for permission to introduce
Hon. Reverdy Johnson as additional counsel for her, and permission
being granted, he appeared accordingly. The admission of Mr. Johnson
was objected to by the author, a member of the court, on the ground
that he had very light views of the obligations of an oath, and in
proof of this, reference was made to an open letter to the people of
Maryland, written a few months previously by the honorable gentleman,
in which he advised them to take the oath prescribed by the late
Constitutional Convention of that State as a qualification for the
exercise of the right of suffrage in the adoption or rejection of the
amended Constitution, in which letter he took the ground that as the
convention had transcended its power in prescribing such an oath,
which in effect was intended to exclude all disloyal persons from
participation in this right of citizenship, it carried in it no moral
obligation; and that they might therefore take it as a matter of
indifference, even though they were disloyal. The honorable gentleman
at first treated this objection to his appearance with great _hauteur_
of manner, and appeared to be astonished that an obscure officer in
the army, whom nobody knew, should presume to arraign a man in his
position as incompetent to appear before such a court. He was answered
by the president of the Commission, who said, that had not General
Harris raised this objection he had intended doing so himself. The
honorable gentleman, seeing that there was danger of his exclusion from
the court, and that it could not be bluffed, immediately came down
from his high horse, and in a very respectful manner entered into a
lengthy explanation of the letter referred to, which explanation did
not put a better face on the matter, but as he in closing emphatically
declared that he did recognize the moral obligation of an oath, the
objection was withdrawn, and he was admitted and appeared accordingly.
The accused severally then asked, for the time, to withdraw their plea
of "Not guilty," heretofore filed, so that they might plead to the
jurisdiction of the court.

This being granted, they offered the following plea to the jurisdiction
of the court:--

"---- ----, one of the accused, for plea says that this court has no
jurisdiction in the proceedings against him, because he says he is not,
and has not been, in the military service of the United States.

"And for further plea, the said ---- ---- says that loyal civil courts,
in which all the offenses charged are triable, exist, and are in full
and free operation in all the places where the several offenses charged
are alleged to have been committed.

"And for further plea, the said ---- ---- says that the court has no
jurisdiction in the matter of the alleged conspiracy, so far as it
is charged to have been a conspiracy to murder Abraham Lincoln, late
President of the United States, and William H. Seward, Secretary of
State, because he says said alleged conspiracy, and all acts alleged
to have been done in the formation and in the execution thereof, are
in the charge and specifications alleged to have been committed in
the City of Washington, in which city are loyal civil courts in full
operation, in which all said offenses charged are triable.

"And the said ---- ---- for further plea says this court has no
jurisdiction in the matter of the crime of murdering Abraham Lincoln,
late President of the United States, and William H. Seward, Secretary
of State, because he says said crimes and acts done in execution
thereof are, in the charge and specifications, alleged to have been
committed in the City of Washington, in which city are loyal civil
courts, in full operation, in which said crimes are triable."

In answer to this plea the judge advocate presented the following
replication:--

    "Now come the United States, and for answer to the special plea
    by one of the defendants, ---- ----, plead to the jurisdiction
    of the Commission in this case, say that this Commission has
    jurisdiction in the premises to try and determine the matters
    in the charge and specifications alleged and set forth against
    the said defendant, ---- ----.

        "J. HOLT,
          "_Judge Advocate General_."

The court was then cleared for deliberation, and on being reopened
the Judge Advocate announced that the pleas of the accused had been
overruled by the Commission. The accused then made application for
severance as follows:--

"---- ----, one of the accused, asks that he be tried separate from
those who are charged with him, for the reason that he believes his
defense will be greatly prejudiced by a joint trial."

The Commission overruled the application for severance. The accused
then severally plead:--

To the specifications, "Not guilty."

To the charge, "Not guilty."

The considerations on which the motion for severance was overruled
were, that the charge alleged a conspiracy on the part of the persons
accused and on trial, with others unknown, unlawfully, maliciously, and
traitorously to kill and murder the President and others. The fact of
entering into a conspiracy to do unlawful acts gives to the associated
body, in law, an individuality; personality is merged in the common
purpose of those thus combining themselves together, and so the
declaration or act of any one of them, touching the accomplishment of
the common purpose, becomes the declaration or act of all. The guilt is
equally shared by all. If the government could not sustain the charge
of a conspiracy, then none of the accused could be found guilty of
entering into a conspiracy as alleged. The fact of a conspiracy being
established, it only remained to be shown in each case that the accused
was a member of it; proving this, he would be held to be a sharer in
the guilt, although not present at the commission of the crime; but
failing to establish the fact of his belonging to the conspiracy, his
innocence must be legally admitted. In other words he could not be
found guilty. There can in law be no severance of an individuality; and
so the application for a separate trial was denied, or overruled.

On the demurrer to the jurisdiction of the court, the Commission held
that it could not admit this to be a question that it could properly
take under its consideration. To the executive department of the
government alone belonged the decision of this question as to the
kind of trial that the accused should have; and the President, after
maturely considering it in the light of the Constitution and the
related facts, and after having submitted it to his Attorney General
for his opinion, accepting that opinion as the correct conclusion
of his very exhaustive argument, embracing all the Constitutional
questions involved, had determined that these parties were offenders
against the laws of war, as their offense was the act of secret, active
participants in the existing hostilities, and committed with a deep
political intent, the purpose of which was to give aid to the existing
rebellion, and so, justly, under the Constitution, subjecting them
to _law martial_, and trial by a military commission. The President,
being _ex-officio_ Commander-in-Chief of the armies of the United
States, had the right to order a detail of officers to constitute such
court, and by order to specify the duties required of them. Their
duty as officers of the army required of them simply obedience to the
orders of the President of the United States and to those over them
in the organization of the military arm of the government. To this
they were bound by the solemn obligations of their official oath. To
have entertained this question would have been an act of disobedience,
subjecting them to discipline; to have refused to serve would have been
an act of mutiny. The officers composing this court were, according
to the biographers of President Lincoln (Nicolay and Hay) "not only
officers high in rank, but of unusual weight of character"; they had
been thoroughly schooled in military discipline, and so recognized the
duty of obedience to orders as the first duty of a soldier. It was not
any part of their duty to discuss the wisdom, propriety, or legality
of an order before entering upon the act of obedience. Their duty was
simply to obey, and for this they were properly held responsible.
The order of detail assigned to them the specific duty of trying the
accused under the charge and specifications prepared against them by
the government, and so, as loyal, obedient soldiers, loving their
country and having faith in its government, they had nothing to do but
to enter upon and discharge the duties for which they had been detailed.

As before stated, the Hon. Reverdy Johnson, a United States Senator
from Maryland, volunteered to defend Mrs. Mary E. Surratt, selecting
her for his client that he might have the benefit, for the purpose of
his argument, of the sympathy which we all naturally feel for her sex.
It was not his purpose to defend her any more than any other one or all
of the prisoners, as he addressed himself simply to the task of arguing
the question of jurisdiction. His real object was, evidently, to get
himself before the Commission, that he might arraign the martyred
President before the country and before the world, and denounce his
acts for the prosecution of the war as unconstitutional and tyrannical
usurpations of power. He made a lengthy, and from the stand-point of
the right of secession, able argument against the right to try these
cases before a military tribunal. The Commission was made up largely of
men sufficiently versed in constitutional law, as well as the laws of
nations and of war, to be little influenced by his sophistries. Their
position towards the government on these questions had placed them
where they were, as officers in its military service, and they could
not be swerved from the loyal discharge of their duty. The reply of
the Hon. John A. Bingham to the sophistries of the honorable senator,
is a masterpiece of logical reasoning, as also of forensic eloquence
and legal acumen, and will well repay the careful study, not only of
every student of law, but of every young man who has an ambition to
become intelligent in matters of public interest, involving the rights,
duties, and privileges of the citizen in time of peace and in time of
war.

It will be found not only thoroughly learned and exhaustive of all
questions involved, as a legal argument, but also the very embodiment
of patriotic devotion to our free institutions of government, and to
the cause of civil liberty, justice, humanity, and moral progress.

The Commission was diligently engaged in the trial of the prisoners
from the 11th day of May until the 30th day of June, a period of about
seven weeks being consumed in hearing the testimony and the motions and
arguments of counsel. As I have given, in narrative form, the facts
proven against each of the accused, as they stood unimpeached and
uncontroverted by testimony given in defense, in giving the history of
their arrest, it is unnecessary that I should give it formally, as it
appears upon the record of the trial.

After maturely deliberating on the evidence adduced in the case of each
of the accused, the findings of the Commission were as follows:--

In the case of David E. Herold: Of the specification guilty; except
"combining, confederating, and conspiring with Edward Spangler," as to
which part thereof not guilty. Of the charge guilty; except the words
of the charge, "combining, confederating, and conspiring with Edward
Spangler," as to which not guilty. And the Commission did, therefore,
sentence him, the said David E. Herold, to be hanged by the neck until
he be dead, at such time and place as the President of the United
States should direct, two-thirds of the Commission concurring therein.

In the case of George A. Atzerodt: After mature consideration of
the evidence adduced, the Commission found the accused, of the
specification guilty; except "combining, confederating, and conspiring
with Edward Spangler," of this not guilty. Of the charge guilty; except
"combining, confederating, and conspiring with Edward Spangler,"
of this not guilty. And the sentence of the Commission was that he
be hanged by the neck until he be dead, at such time and place as
the President of the United States might direct, two-thirds of the
Commission concurring therein.

In the case of Lewis Payne, the Commission found him, of the
specifications guilty; of the charge guilty; with the same exceptions
as in the case of Atzerodt; and sentenced him to be hung as above,
two-thirds of the Commission concurring therein.

In the case of Mary E. Surratt, the Commission found her, of the
specifications guilty, and of the charge guilty; except as to
"receiving, sustaining, harboring, and concealing Samuel Arnold and
Michael O'Laughlin"; and except as to "combining, confederating, and
conspiring with Edward Spangler," and of this not guilty; and sentenced
her to be hanged by the neck until she be dead, at such time and place
as the President of the United States should direct, two-thirds of the
Commission concurring therein.

In the case of Michael O'Laughlin, the Commission found him guilty
of the specifications, except the words thereof, "And in further
prosecution of the conspiracy aforesaid, and of its murderous and
treasonable purposes aforesaid, on the night of the 13th of April,
A.D. 1865, at Washington City, and within the military department and
military lines aforesaid, the said Michael O'Laughlin did, then and
there, lie in wait for Ulysses S. Grant, then Lieutenant General and
commander of the armies of the United States, with intent, then and
there, to kill and murder the said Ulysses S. Grant"; of said words not
guilty. Of the charge guilty, except "combining, confederating, and
conspiring with Edward Spangler"; of this not guilty. O'Laughlin was
sentenced by the Commission to be imprisoned at hard labor for life, at
such place as the President might direct, two-thirds of the Commission
concurring therein. In the case of Edward Spangler, the Commission
found him guilty of the charge and specifications, with exceptions
similar to the above, and sentenced him to be imprisoned at hard labor
for the term of six years, at such place as the President might direct,
two-thirds concurring therein.

In the case of Samuel Arnold, the decision of the Commission was,
that he was guilty of the charge and specifications, with exceptions
similar to the above, and that he should be imprisoned for life at
hard labor at such place as the President should direct, two-thirds
concurring.

In the case of Samuel A. Mudd, the Commission found him guilty of the
charge and specifications, with similar exceptions, as the evidence
required, and sentenced him to be imprisoned at hard labor for life, as
above.

The findings and sentences of the Commission were approved by the
President, and those of the accused who were sentenced to imprisonment
at hard labor were ordered by him to be sent to the military prison at
the Dry Tortugas, and they were transported there accordingly.

In the case of those who were sentenced to death, the President
ordered their execution to take place on the 7th day of July, one week
after they were convicted and sentenced by the court, and they were
accordingly executed.

After the conviction and sentence of Mrs. Surratt, Judge Bingham, at
the request of a member of the court, drew up the following petition:
"To the President: The undersigned, members of the military commission
appointed to try the persons charged with the murder of Abraham
Lincoln, etc., respectfully represent that the Commission have been
constrained to find Mary E. Surratt guilty upon the testimony of the
assassination of Abraham Lincoln, late President of the United States,
and to pronounce upon her, as required by law, the sentence of death;
but in consideration of her age and sex, the undersigned pray your
Excellency, if it is consistent with your sense of duty, to commute her
sentence to imprisonment for life in the penitentiary."

This petition was signed by five members (a majority) of the court, and
although not constituting a part of the record, was presented along
with the record by the Judge Advocate General to the President. The
record was carefully considered and discussed by the President and a
full cabinet, when, without a dissenting voice, the sentences of the
Commission were confirmed, and the prayer of the petition was rejected.

Mrs. Surratt's counsel then sued out a writ of _habeas corpus_ to
take her out of the hands of the military authorities, and thus to
secure for her a civil trial, or perhaps an entire release, after the
President had approved the findings and sentence of the court.

The President had set the 7th day of July, 1865, as the day for the
execution of those who had been sentenced to death, and had given
orders accordingly to the military officer under whose charge they had
been placed. On the forenoon of that day, on the application of Mrs.
Surratt's counsel, Judge Wylie, of the Supreme Court of the District of
Columbia, endorsed on her application:--

    "Let the writ issue as prayed, returnable before the criminal
    court of the District of Columbia, now sitting at the hour of
    ten o'clock A.M., this 7th day of July, 1865.

        [Signed]
          "ANDREW WYLIE,

        "_A Justice of the Supreme Court of the District of Columbia_.

    "July 7th, 1865."

This writ was served on General Hancock, who had custody of, and was
charged with the execution of the prisoners, and who, accompanied by
Attorney General Speed, appeared before Judge Wylie in obedience to the
writ, on which the following return was made:--

        HEADQUARTERS MIDDLE MILITARY DIVISION,
          WASHINGTON, D. C., July 7th, 1865.

    To Hon. ANDREW WYLIE, _Justice of the Supreme Court of the
    District of Columbia_:--

    I hereby acknowledge the service of the writ hereto attached
    and return the same, and respectfully say that the body of
    Mary E. Surratt is in my possession under and by virtue of
    an order of Andrew Johnson, President of the United States,
    and Commander-in-Chief of the army and navy, for the purposes
    in said order expressed, a copy of which is hereto attached
    and made part of this return; and that I do not produce said
    body by reason of the order of the President of the United
    States, indorsed upon said writ, to which reference is hereby
    respectfully made, dated July 7th, 1865.

The order of the President, made a part of the above return, is as
follows:--

        EXECUTIVE OFFICE, July 7th, 1865, 10 o'clock A.M.

    To Major General W. S. HANCOCK, _Commander, etc._:--

    I, ANDREW JOHNSON, President of the United States,
    do hereby declare that the writ of habeas corpus has been
    heretofore suspended in such cases as this, and I do hereby
    especially suspend this writ, and direct that you proceed to
    execute the order heretofore given upon the judgment of the
    military commission, and you will give this order in return to
    the writ.

        ANDREW JOHNSON, _President_.

The court ruled that it yielded to the suspension of the writ of
_habeas corpus_ by the President of the United States.

Thus ended the contest over the jurisdiction of the military
commission. It has never been revived with success and never will be,
as the sound sense of every patriotic American, whose heart beats true
to the cause of liberty, justice, good morals, and good government,
rests on the arguments that determined this trial by a military
commission as its sanction, both by our inimitable Constitution and
by the laws of war. In the light of these arguments, this trial will
ever hereafter have the authority of a precedent, should another crisis
arise involving the principles on which it rests. It was only those
whose sympathies were with the rebellion who demurred to it at the
time, and whose yelp is occasionally heard, even at this late day, but
on a very cold trail.

The sentence of the Commission was executed on the 7th day of July,
1865, in accordance with the President's order, by General Hancock, in
the yard of the old Capitol prison. Thus the trial and the execution
were alike at the hands of the military; and thus the authority and
justice of the government were vindicated, and a solemn warning was
given to all traitors to desist from schemes of assassination; a
warning which, as we shall yet see, taught them a salutary lesson, and
in some measure brought them to their senses.

We shall now turn our attention to the persons just now referred to,
some of whom were known, but many were unknown. Before doing this,
however, it seems due to our history at this point to say a word about
Booth's co-conspirator, John H. Surratt, who would seem to have dropped
out of sight in the narrative I have given of the arrest and trial of
the conspirators.

It will be remembered that he carried the dispatches from the Richmond
government to the Canada conspirators, sanctioning the arrangements
that had been made by them to secure the assassinations they had
planned; that he arrived with these dispatches at Montreal on the
6th of April; and that the execution of the plot was at once entered
upon, those of the conspirators who were to take an active part
preparing immediately and starting for Washington, boasting openly of
what they would do when they should have reached their destination.
Some of these were known, and will be hereafter referred to by name;
but there would seem to have been a number of them whose names were
never learned. John H. Surratt came back, either alone or in company
with some of them. That he was in Washington, aiding and abetting, on
the day and night of the assassination, was positively sworn to by
one of the witnesses who was well acquainted with him; and from the
concurrence of testimony, there is good reason to believe that he was
one of the two parties with whom Booth was in communication on the
sidewalk in front of the theatre, as heretofore narrated, and that
he acted as monitor, calling the time for Booth. He seems, however,
to have had the bumps both of cautiousness and secretiveness largely
developed, and so kept himself as much as possible out of sight in
the transaction in which he was no doubt, at the same time, an active
participant. He most probably left Washington on the first train after
the work was done, as we have no trace of him again until we find him
at Burlington, Vt., on his way to Canada, on the 18th of April. As
it is my purpose to devote a chapter or two to his case especially,
I shall not, at this time, pursue it any further; but as he was
undoubtedly a very active and important factor in the conspiracy, and
escaped justice merely by escaping capture at the time, and so securing
a civil trial after the war was over, a history of his case naturally
comes within the scope of my plan, and will serve to illustrate what I
have already said in relation to the existing facts in regard to the
population of the District of Columbia that would have rendered a civil
trial futile in the cases brought before the Commission.




CHAPTER X.

    EVIDENCE IN REGARD TO ATROCITIES NOT EMBRACED IN THE CHARGE AND
    SPECIFICATIONS, FOR WHICH DAVIS AND HIS CANADA CABINET WERE
    RESPONSIBLE.


It will have been noticed that in its charge and specifications
against the prisoners on trial the government charged Jefferson Davis,
George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary,
Clement C. Clay, George Harper, George Young, and others unknown,
with combining, confederating, and conspiring together with one John
H. Surratt and John Wilkes Booth to kill and murder Abraham Lincoln,
Andrew Johnson, William H. Seward, and Ulysses S. Grant; and in the
specifications it is alleged that David E. Herold, Edward Spangler,
Lewis Payne, Michael O'Laughlin, Samuel Arnold, Mary E. Surratt,
George Atzerodt, and Samuel A. Mudd, together with the said John H.
Surratt and John Wilkes Booth, incited and encouraged thereunto by
Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson,
William C. Cleary, Clement C. Clay, George Harper, George Young, and
others unknown, did kill and murder Abraham Lincoln, and assault
violently with intent to kill William H. Seward. In this the government
distinctly and unequivocally charged Jefferson Davis and his allies
with inciting and encouraging the prisoners on trial to the commission
of this great crime, with the political intent of giving aid to their
sinking cause. They were not arraigned before the Commission, for they
were not in custody; but they were arraigned before the world. The
Commission was then not called upon to render a finding in their case;
but the government was called upon to present to the world through
the Commission the evidence on which its grave charge against these
men, who had rendered themselves conspicuous before the world, was
founded. Its honor and dignity made this obligatory upon it. A careful
reading of the charge and specifications on which the assassins were
arraigned and tried will show that it was competent for the government
to present, on that trial, the evidence in its possession on which
it charged Jefferson Davis, Jacob Thompson, Clement C. Clay, Beverly
Tucker, George N. Sanders, William C. Cleary, George Young, George
Harper, and others, as being inciters to this crime. This evidence was
so conclusive of their guilt as charged, that had they been before the
Commission they could only have escaped conviction by impeaching the
government's witnesses.

Before entering upon the consideration of the evidence a few prefatory
remarks seem to be necessary. At an early period of the rebellion
Jefferson Davis and his cabinet felt the necessity of sending some of
the strongest men of the Confederacy to establish their headquarters
in Canada, to look after the interests of the rebel cause, both at
home and abroad, and to render assistance to that cause in every way
that they could. Amongst its agents thus sent to Canada we find Jacob
Thompson of Mississippi, who had been Secretary of the Interior during
Buchanan's administration; Clement C. Clay, who had been a United
States Senator from Alabama; Beverly Tucker, who had been a circuit
judge in Virginia; George N. Sanders, William C. Cleary, George
Young, George Harper, and others of less note, acting in subordinate
capacities under the above conspicuous leaders and agents.

These agents had been domiciled within the territory of a neutral
government to carry on belligerent operations, contrary to the laws of
nations and also of war; and the operations planned by them from time
to time, and sometimes executed, were of the highest moral turpitude.
The fact that, although the government of Canada held the position of
a neutral power as between the belligerents, yet its people, in the
proportion of five to one, sympathized with the rebellion, made it very
favorable to the execution of the schemes of these Southern emissaries.
They also occupied a position that geographically was most favorable to
their purposes. They were within easy and constant communication with
the enemies of the government that were to be found in every Northern
State, and at the same time were able to afford a place of refuge for
rebel prisoners who were able to find means of escape from Northern
prisons. Canada was a place where disloyal refugees and persons accused
of offenses against the government congregated all through the war; and
so Jefferson Davis's Canada Cabinet was never at a loss for material
for carrying out its plans without regard to their character. They
were constantly surrounded by desperate and reckless men, who were in
deep sympathy with them in their desperate purpose to overthrow the
government, and like them, ready to engage in anything that might give
aid in carrying out that purpose. From the head of the rebel government
on down through the ranks of this class of its agents, there appears
to have been no restraint from any moral consideration. The honorable
men of the Confederacy were found, to a large extent, in the ranks of
its soldiers engaged in open warfare. The assassination plot was the
last card of these desperate men; it was preceded by many others in
which the laws of war and the laws of morals were utterly ignored. We
will, therefore, in the first place, present some of the most flagrant
of these, in regard to which the evidence makes Jefferson Davis and
his Canada Cabinet responsible, in order that from these revelations
we may be thoroughly informed of their utter disregard of every moral
consideration, and that we may thus be prepared for the conclusions to
which the evidence of their complicity in, and responsibility for, the
assassination plot point.

To show the utter lack of moral appreciation, the entire disregard of
all moral requirements, and contempt for the enlightened Christian
sentiment of the world as embodied in the accepted codes of martial and
international law, and that the assassination plot was only in keeping
with their other schemes to aid the rebel cause, I deem it necessary
to dwell at some length on the statement of these schemes, as shown
by the testimony before the Commission. The St. Albans raid, under
the lead of Lieutenant Bennett H. Young (made a lieutenant for this
occasion only, and that by the filling up for him of a Commission that
was sent to Clay, in blank, by the rebel secretary of war, and to be
thus conferred by him, at his discretion, on the persons he engaged in
such expeditions, as a protection in case of a trial for extradition),
was simply a hostile expedition planned by these conspirators, who
organized a squad of about twenty escaped Confederate soldiers from the
prisons in which they had been confined, and placed them under command
of Young, armed with one of these commissions for his protection. This
bogus lieutenant was instructed to pass through the New England States
with his command, and escape by the way of Halifax, burning towns
and farm-houses as he went; and by robbing and plundering to secure
all the money he could, and whatever else he could convert to the
use of the Confederate government. He made a foray into Vermont; set
fire to the town of St. Albans; robbed two banks, securing about two
hundred thousand dollars; and then, finding himself confronted by such
opposition that he was unable to proceed, was compelled to retreat into
Canada, being so closely pursued that he and a good part of his command
were made prisoners. They were committed to jail to await a trial for
extradition.

This was simply a guerilla raid, organized on neutral territory, not
for the purpose of engaging in open and honorable warfare against an
armed foe, but to burn and plunder the property of unarmed people,
who were non-combatants engaged in the pursuits of peaceful life.
Young's commission, however, enabled him to defeat the demand for his
extradition, as he was not captured until he had regained that neutral
territory on which, in violation of the law of nations, his expedition
had been organized. It is easy to see from this where the sympathies
of the Canadian court that tried this case lay. Pending this trial for
extradition, Clay became very uneasy for fear the commission conferred
by him on Young might not prove a sufficient protection, and so he sent
Richard Montgomery, who was in the employ of the United States in its
department of secret service, and who had so well wormed himself into
the confidence of the Canada Cabinet as to be employed by them on this
mission, with a letter to James A. Seddon, the rebel secretary of war,
urging him by every consideration he could think of to give a direct
sanction to Young's act, and to demand in the name of the Confederate
government that he should be released.

This letter was carried to Richmond by Montgomery, after having been
exhibited to the Secretary of War of the United States. I refer to
this as showing the status of Montgomery with these agents of the
Confederate government in Canada, and as evidence of his having gained
their entire confidence; and so he was in a position to be a witness,
before the Commission, as being informed of their plans and of their
doings. In response to this argument and earnest appeal of Clay, the
rebel government shouldered the responsibility of the St. Albans raid,
and shielded the raiders against extradition. The following is a copy
of Lieutenant Young's instructions from the rebel government:--

        CONFEDERATE STATES OF AMERICA,
          WAR DEPARTMENT,
            RICHMOND, VA., June 16th, 1864.

    TO Lieutenant BENNETT H. YOUNG:--

    LIEUTENANT:--You have been temporarily appointed first
    lieutenant in the provisional army for special service. You
    will proceed without delay to the British Provinces, where you
    will report to Messrs. Thompson and Clay for instructions.

    You will, under their direction, collect together such
    Confederate soldiers who have escaped from the enemy, not
    exceeding twenty in number, as you may deem suitable for the
    purpose, and will execute such enterprises as may be entrusted
    to you.

    You will take care to commit no violation of the local law, and
    to obey implicitly their instructions.

    You and your men will receive from these gentlemen
    transportation and the customary rations and clothing, or
    commutation therefor.

        JAMES A. SEDDON,
          _Secretary of War_.
    VA. June 16th.

Here we have the response to Clay's letter, and everything fixed up for
the defense of Young and his men after the act had been committed, the
papers being antedated to meet the requirements of the case.

During the progress of this trial for the extradition of the raiders,
Thompson, Clay, Tucker, and Sanders necessarily held a kind of
professional intercourse with the counsel representing the United
States. Sanders, on one occasion, became full of self-importance, as
also, probably, of whiskey, when his discretion forsook him, and he
gave vent to the vaunting and boasting of a braggadocio. He said this
raid was not the last that would occur, but it would be followed by the
depleting of many other banks and the burning of other towns on the
frontier, and that many Yankee sons of ---- (using a coarse and vulgar
expression) would be killed. He said they had their plans perfectly
organized, and men ready to sack and burn Buffalo, Detroit, New York,
and other places, and had deferred them for a time, but would soon see
the plans wholly executed; and any preparations that could be made by
the government to prevent them, would not, though they might delay them
for a time. He claimed to be acting as the agent of the Confederate
government, and we have seen that it assumed the responsibility.
Several other raids of like character were planned, but were prevented
by preparations which the government was enabled to make by being
informed of them in advance by persons engaged in its secret service,
or by other friends in Canada, who, being in the confidence of the
conspirators, became informed as to their plans.

These plans involved a warfare against non-combatants; a war, as we
shall see, of poisoning reservoirs, of burning towns and cities by
wholesale; a war of the destruction of men, women, and children;
burning of hospitals, churches, and private dwellings; a war for the
destruction of life and property; in short, a war against humanity.
The City of New York came in for a large share of their consideration.
The destruction of the Croton dam was an enterprise that seemed very
desirable to them, and for which they planned; and had the rebel armies
been able to keep the field a little while longer, this would no doubt
have been attempted and perhaps accomplished. The poisoning of the
reservoirs supplying the city with water seemed very desirable to them,
and was much discussed. This was one of the hobbies of the infamous Dr.
Blackburn and a Mr. M. A. Pallen of Mississippi, who had been a surgeon
in the rebel army. They had made a calculation of the capacity of the
reservoirs supplying the city, and had calculated the amount of poison
required to make an ordinary draught of water fatal to life. Amongst
the poisons they had considered arsenic, strychnine, and prussic acid
as available. Blackburn thought the project feasible. Thompson feared
it would be impossible to collect so large a quantity of poisonous
matter without exciting suspicion and leading to the detection of the
parties engaged in it. Pallen and others thought it could be managed
in Europe. This matter was fully and freely discussed in June, 1864, by
Blackburn, Pallen, Thompson, Sanders, and Cleary.

The moral question involved in the destruction, by poison, of the
entire population of the American commercial metropolis,--men,
women, and children,--did not enter into their thoughts; it was, in
fact, a scheme dear to their hearts; the difficulties attending its
accomplishment were the only things that gave them any trouble.

This is that same Dr. Blackburn who, with the approbation of Thompson
and his gang, made an effort in the summer of 1864 to spread pestilence
in Washington City, and in other cities occupied by federal troops,
as far south as could be reached, by means of clothing infected with
yellow fever and with small-pox.

Conover testified to this positively and circumstantially as one of
their many wicked schemes to spread consternation over the North, and
so demoralize the people that they would be willing to make peace on
any terms.

As this last scheme is so monstrous in character that it can only be
believed on the fullest proof, I give the testimony of Godfrey Joseph
Hyams before the Commission, in full.

"I am a native of London, Eng., but have lived south nine or ten years.
During the past year I have resided in Toronto, Can. About the middle
of December, 1863, I made the acquaintance of Dr. Blackburn. I was
introduced to him by the Rev. Stewart Robinson at the Queen's Hotel
in Toronto. I knew him by sight previously, but before that had no
conversation with him. I knew that he was a Confederate and was working
for the rebellion. Dr. Blackburn was then about to take south some men
who had escaped from the federal service, and I asked to go with him.
He asked me if I wanted to go south and serve the Confederacy. I said I
did. He then told me to come upstairs to a private room, as he wanted
to speak to me. He took me upstairs, and after we had entered his room
he pledged his word as a freemason, and offered his hand in friendship,
that he would never deceive me. He said he wanted to confide to me an
expedition. I told him I would not care if I did. He said I would make
an independent fortune by it, at least one hundred thousand dollars,
and get more honor and glory to my name than General Lee, and be of
more assistance to the Confederate government than if I was to take one
hundred thousand soldiers to reinforce General Lee. I pledged my word
that I would go if I could do any good. He then told me he wanted me
to take a certain quantity of clothing, consisting of shirts, coats,
and underclothing, into the States, and dispose of them by auction. I
was to take them to Washington City, to Norfolk, and as far south as I
could possibly go, where the federal government held possession and had
the most troops, and to sell them on a hot day or of a night; that it
did not matter what money I got for the clothing, I had just to dispose
of them in the best market where there were the most troops, and where
they would be most effective, and then come away. He told me I should
have one hundred thousand dollars for my services, sixty thousand
dollars of it directly after I returned to Toronto; but he said that
would not be a circumstance to what I should get. He said I might make
ten times one hundred thousand dollars. I was to stay in Toronto, and
go on with my legitimate business until I heard from him. He told me
to keep quiet, and if I moved anywhere I was to inform Dr. Stewart
Robinson where I went to, and he would telegraph for me, or write to me
through him. Sometime in the month of May, 1864, I went to my work and
worked on until the 8th day of June, '64; it was on a Saturday night; I
had been out to take a pair of boots home to a customer of mine; when I
returned home my wife had a letter for me from Dr. Blackburn, which Dr.
Stewart Robinson had left in passing there. I read the letter, and went
out to see Dr. Robinson. I asked him what I was to do about it. He said
he did not know anything about it; that he did not want to furnish any
means to commit an overt act against the United States government. He
advised me to borrow from Mr. Preston, who keeps a tobacco manufactory
in Toronto, enough money to take me to Montreal, and there get money
from Mr. Slaughter, according to the directions contained in Dr.
Blackburn's letter. This letter instructed me to proceed from Montreal
to Halifax to meet Dr. Blackburn; it was dated Havana, May 10th, 1864.
I went to Halifax to a gentleman by the name of Alexander H. Keith,
Jr., and remained under his care until Dr. Blackburn arrived in the
steamer 'Alpha,' on the 12th of July, 1864. When Dr. Blackburn arrived
he sent to the Farmer's Hotel, where I was staying, for me. I went
to see him, and he told me that the goods were on board the steamer
'Alpha,' and that the second officer on the steamer would go with me
and get the goods off, as they had been smuggled in from Bermuda. Mr.
Hill, the second officer, told me to get an express wagon and take it
down to Cunard's steamboat wharf. I did so, and there got eight trunks
and a valise. I was directed to take them to my hotel, and put them
in a private room. I put them in Mr. Doran's private sitting-room. I
then went around to Dr. Blackburn, and told him I had got the goods off
the steamer. He told me that the five trunks tied up with ropes were
the ones for me to take, and asked me if I would take the valise into
the States and send it by express, with an accompanying letter, as a
donation to President Lincoln. I objected to taking it, and refused
to do so. I then took three of the trunks and the valise around to
the hotel. He was then staying at the Halifax Hotel. The trunks had
Spanish marks upon them, and he told me to scrape them off, and that
Mr. Hill would go with me the next morning and make arrangements with
some captain of a vessel to take them. There were two vessels there
running to Boston, and I was to make an arrangement with either of them
to smuggle the trunks through to Boston. The next morning I went down
with Mr. Hill to the vessels. Mr. Hill had a private conversation with
Captain McGregor, the captain of the first vessel, to whom we applied
to take the goods, and he refused.

"We then went to see Captain O'Brien of the bark 'Halifax.' Hill told
him that I had some presents in my trunks, consisting of silks, satin
dresses, etc., that I wanted to take to my friends. The Captain and
Mr. Hill had a private conversation, and when the Captain came out he
consented to take them. I was to give him a twenty-dollar gold piece
for smuggling them in. I put them on board the vessel that day and he
stowed them away. The vessel lay five days at Boston before he could
get a chance to get them off, but finally he succeeded in getting them
off, and expressed them to Philadelphia, where I received them and
brought them to Baltimore. I then took out the goods, which were very
much rumpled, and smoothed them out and arranged them, bought some new
trunks, and repacked them and brought them to this city. Dr. Blackburn,
by way of caution, asked me before leaving if I had had the yellow
fever, and on my saying 'no,' he said, 'You must have a preventive
against taking it. You must get some camphor and chew it, and get some
strong cigars, the strongest you can get; and be sure to keep gloves
on your hands when handling the things.' He gave me some cigars that
he said he had brought from Havana, which he said were strong enough
for anything. When I arrived in this city, I turned over five of the
trunks to Messrs. W. L. Wall & Company, commission merchants in this
city, and four to a man by the name of Myers, from Boston, a sutler
for Siegel's or Weitzel's division. He said he had some goods which he
was going to take to New Berne, N.C., and I told him that I had a lot
of goods that I wanted to sell, and, to make the best market I could
for them, I would turn them over to him on commission. I also told him
I would shortly have more, and mentioned that I had disposed of some
to Wall & Company, of this city. Dr. Blackburn told me, when I was
making arrangements, that I should let the parties to whom I disposed
of my goods know that I would have a big lot to sell, as it was in
contemplation to get together about a million dollars' worth of goods
and dispose of them in that way. Dr. Blackburn stated that his object
in having these goods disposed of in different cities was to destroy
the armies, or anybody that they came in contact with. All these goods,
he told me, had been carefully infected in Bermuda with yellow fever,
small-pox, and other contagious diseases.

"The goods in the valise, which were intended for President Lincoln,
I understood him to say had been infected with yellow fever and
small-pox. This valise I declined taking charge of and turned it over
to him at Halifax Hotel, and I afterwards heard that it had been
sent to the President. On the five trunks that I turned over to Wall
& Company I got an advance of one hundred dollars. Among these five
trunks there was one that was always spoken of by Blackburn to me as
'Big No. 2,' which he said I must be sure to have sold in Washington.
On disposing of the trunks I immediately left Washington, and went
straight through until I got to Hamilton, Canada. In the waiting-room
there I met Mr. Holcomb and Clement C. Clay. They both rose, shook
hands with me, and congratulated me upon my safe return, and upon my
making a fortune. They told me I should be a gentleman for the future,
instead of a working man and a mechanic. They seemed perfectly to
understand the business in which I had been engaged.

"Mr. Holcomb told me that Dr. Blackburn was at the Donegan Hotel, in
Montreal, and that I had better telegraph to him stating that I had
returned. As Dr. Blackburn had requested me to telegraph to him as soon
as I got into Canada, I did so, and the next night, between eleven and
twelve o'clock, Dr. Blackburn came up and knocked at the door of my
house. I was in bed at the time. I looked out of the window, and saw
Dr. Blackburn there. Said he, 'Come down, Hyams, and open the door; you
are like all damned rascals who have been doing something wrong--you're
afraid that the devil is after you.' He was in company with Bennett
H. Young. I came down and let him in. He asked me how I had disposed
of the goods and I told him. 'Well,' said he 'that is all right as
long as "Big No. 2" went into Washington; it will kill them at sixty
yards distance.' I then told the doctor that everything had gone wrong
at my home in my absence; that I needed some funds; that my family
needed money. He said he would go to Colonel Jacob Thompson and make
arrangements for me to draw upon him for any amount of money that I
required. He then said that the British authorities had solicited his
services in attending the yellow fever that was then raging in Bermuda;
that he was going on there; and that as soon as he came back he would
see me. I went up to Jacob Thompson the next morning, and told him what
Dr. Blackburn had said. He said 'Yes'; Dr. Blackburn had been there
and had made arrangements for me to draw one hundred dollars whenever
it was shown that I had made disposition of the goods according to his
directions. I told him I needed money; that I had been so long away
from home that everything I had was gone, and I wanted money to pay
my rent, etc. He said, 'I will give you fifty dollars now, but it is
against Dr. Blackburn's request; when you show me that you have sold
the goods, I will give you the balance.' He asked me to give him a
receipt, which I did: 'Received of Jacob Thompson the sum of fifty
dollars on account of Dr. Blackburn.' That was about the 11th or 12th
of August last. The next day I wrote to Messrs. Wall & Company, of
Washington, desiring them to send me an account of the sales, and the
balance due me. When I received their answer, I took it to Colonel
Thompson. He then said he was perfectly satisfied I had done my part,
and gave me a check for fifty dollars on the Ontario Bank. I gave him
a receipt: 'Received of Jacob Thompson one hundred dollars in full
on account of Dr. Luke P. Blackburn.' I told Thompson of the large
sum which Dr. Blackburn had promised me for my services and that he
and Mr. Holcomb had both told me that the Confederate government had
appropriated two million dollars for the purpose of carrying it out;
but he would not pay me any more. When Dr. Blackburn returned from
Bermuda, I wrote to him at Montreal, and told him I wanted some money,
and that he ought to send me some; but he made no reply to my letter. I
was then sent down to Montreal with a commission for Bennett H. Young,
to be used in his defense in the St. Albans raid case. I there met Dr.
Blackburn. He said I had written some hard letters to him, abusing him,
and that he had no money to give me. He then got into his carriage at
the door and rode off to some races, I think, and never gave me any
more satisfaction. As I wanted money before leaving for the States,
I went to the Clifton House, Niagara. Dr. Blackburn told me he had
no money with him then, but that he would go to Mr. Holcomb and get
some, as he had Confederate funds with him. Blackburn said that when I
returned he would get the money for the expedition from either Holcomb
or Thompson, it did not matter which. From this, and from Holcomb and
Clay both shaking hands with me and congratulating me at Hamilton upon
my safe return, I thought, of course, they knew all about it. I do not
know that Dr. Stewart Robinson knew of the business in which I was
engaged, but he took good care of me while I was at Toronto, in the
fall, and until Dr. Blackburn wrote for me in the spring; and when he
gave me Dr. Blackburn's letter, he told me to borrow the money from Mr.
Preston to take me to Montreal, as he said he did not want to commit
an overt act against the Government of the United States himself. Mr.
Preston lent me ten dollars to go to Montreal. On arriving at that
place, according to the directions of Dr. Blackburn's letter, I went
to Mr. Slaughter to get the means to take me to Halifax. Mr. Slaughter
was short of funds, and had only twenty dollars that he could give me.
He said that I had better go to Mr. Holcomb, who was staying at the
Donegan Hotel, and he would give me the balance. I went to the Hotel
and sent up my name, and he sent for me to come up. I told him I wanted
some money to take me to Halifax; he asked me how much I wanted; I told
him as much as would make up forty dollars; he said 'You had better
take fifty dollars,' but as I did not want that much I only took enough
to make forty dollars. When I came to Washington to dispose of my
goods, which was on the 5th of August, 1864, I put up at the National
Hotel, registered my name as J. W. Harris, under which name I did
business with Wall & Company."

Here we have a straightforward, circumstantial account of the efforts
made and the means used to spread pestilence and death amongst citizens
and soldiers alike, in the capital of the nation, and in other cities
and camps, a special consignment, supposed to contain the contagion
of yellow fever and small-pox, being sent as "a donation to President
Lincoln." This was for the purpose of taking his life, and at the
risk of the lives of his household. Blackburn, Clay, Thompson, and
Holcomb were the originators of the plan, and as guilty as the infamous
scoundrel, Hyams, who, to gratify his desire for revenge on them for
their perfidy in putting him off with a mere pittance of the promised
reward for his services in the matter, comes before the Commission and
reveals the whole history of their infamy. No one who reads his story
will doubt that he was a conscienceless scoundrel, who, for the hope of
obtaining a large sum of money, according to their promise, was willing
to make himself an instrument in the wholesale and indiscriminate
destruction of human life. But monster as he was, he was not more a
monster than was each one of his employers. He was evidently a man
well qualified for the task in which he was employed; in the first
place destitute of conscience, and then a man of a good degree of
intelligence, shrewdness, and knowledge of affairs. Granting that he
was selected by Dr. Robinson, and recommended by him to Dr. Blackburn,
he could not have made a better selection had he had full knowledge
of the work cut out for him to do. And when we consider Blackburn's
perfidy in his dealings with him, pledging his faith as a freemason and
giving him his hand in friendship, assuring him that he would never
deceive him; then building him up in the idea that he would receive
one hundred thousand dollars, and perhaps ten times that amount as his
reward; and then, after he had performed a service that put his own
life in jeopardy, to put him off with a mere pittance of the amount
promised, we cannot wonder that a man constituted as Hyams was should
divulge the terrible secret in revenge for the shabby treatment he had
received at their hands.

See how Clay and Holcomb meet him on his return! They understand all
about the character of his mission, congratulate him on his safe
return, and on the fact that from thenceforth he was not to be known as
a laboring man and a mechanic, but as a gentleman.

No wonder that he, when for the pitiful sum of one hundred dollars he
had signed for Thompson a receipt in full on account of Dr. Blackburn,
vowed to have revenge. How true it is that there must be honor even
amongst the worst of villains, in order that they may hang together.
They broke faith with Hyams, and Hyams revealed circumstantially, and
fully, their great crime against humanity. We have now seen these men
planning to poison the water supply of New York City to the extent of
fatality to its whole population, men, women, and children,--helpless
age, and more helpless infancy doomed to death by the scope of their
plan; and now, we have found them engaged in an effort to spread
pestilence with the same purpose of the indiscriminate destruction of
human life. What worse can they do? Can we after this be surprised at
anything they may undertake? It will not avail to say that a man who
could be hired to do such a thing as this is unworthy of credence, even
under oath, and so that his testimony is not to be received. Hyams'
story bears on its face the marks of a truthful narrative of the facts,
just as they occurred, and it does not follow that because a man is a
confessed scoundrel he is incapable of telling the truth. No adequate
motive for falsehood in this case can be assigned. Had his employers
kept faith with him, he would no doubt have kept their terrible secret,
and it would have been buried with him. That they did not, only becomes
a reason for his disclosure of the facts, not for his fabrication of
falsehoods. But then his statement as to how he disposed of the goods
in Washington City is fully confirmed by the testimony of Wall &
Company, who produced an account of the transaction agreeing exactly,
in date and amount, with that given by Hyams, and also in regard to his
_alias_ of J. W. Harris. It was also corroborated by the National Hotel
register of that date.

Conover testified to this as one of the schemes planned by Thompson
and his gang, and Hyams gives a full account of the manner of its
execution. For some reason the infection was a failure in Washington
City; but not so with the goods sent by Myers, the sutler, to New
Berne, N.C. It will be recollected that an epidemic of yellow fever
broke out there in the latter part of the summer of 1864, that swept
away large numbers of people, both citizens and soldiers. No doubt this
epidemic was due to the infection carried in the clothing that Myers
received from Hyams, to be sold on commission; and that in the great
day of final account these men will find themselves arraigned as the
murderers of all those who fell as the victims of their hellish plot,
before a tribunal that is infinitely perfect in its knowledge and just
in its decisions.


_Plot to Burn New York City and its Attempted Execution._

The plot to burn the city of New York was attempted to be carried out
on the 25th of November, 1864. I will give the history of this attempt
as narrated in his confession, by Robert C. Kennedy, one of the gang
of incendiaries sent there for that purpose, who was arrested, tried,
found guilty, condemned, and hanged for his crime. Before his execution
he made a full confession as follows:--

    "After my escape from Johnson's Island I went to Canada,
    where I met a number of Confederates. They asked me if I was
    willing to go on an expedition. I replied: 'Yes, if it is in
    the service of my country.' They said: 'It is all right,' but
    gave me no intimation of its nature, nor did I ask for any.
    I was then sent to New York, where I stayed some time. There
    were eight men of our party, of whom two fled to Canada. After
    we had been in New York three weeks we were told that the
    object of our expedition was to retaliate on the North for the
    atrocities in the Shenandoah Valley. It was designed to set
    fire to the city on the night of the Presidential election; but
    the phosphorus was not ready, and it was put off until the 25th
    of November. I was stopping at the Belmont House, but moved
    into Prince Street. I set fire to four places--in Barnum's
    Museum, Lovejoy's Hotel, Tammany Hotel, and the New England
    House. The others merely started fires in the house where each
    one was lodging, and then ran off. Had they all done as I did,
    we would have had thirty-two fires and played a huge joke on
    the fire department. I know that I am to be hung for setting
    fire to Barnum's Museum, but that was only a joke. I had no
    idea of doing it. I had been drinking and went in there with a
    friend, and, just to scare the people, I emptied a bottle of
    phosphorus on the floor. We knew it would not set fire to the
    wood, for we had tried it before, and at one time had concluded
    to give the thing up. There was no fiendishness about it.
    After setting fire to my four places, I walked the streets all
    night, and went to the Exchange Hotel early in the morning. We
    all met there that morning and the next night. My friend and I
    had rooms there, but we sat in the office nearly all the time
    reading the papers, while we were watched by the detectives,
    of whom the hotel was full. I expected to die then, and if I
    had it would have been all right; but now it seems rather hard.
    I escaped to Canada and was glad enough when I crossed the
    bridge in safety. I desired, however, to return to my command,
    and started with my friend for the Confederacy _via_ Detroit.
    Just before entering the city he received an intimation that
    the detectives were on the look-out for us, and giving me the
    signal he jumped from the cars. I did not notice the signal,
    but kept on and was arrested in the depot. I wish to say that
    the killing of women and children was the last thing thought
    of. We wanted to let the people of the North understand that
    there were two sides to this war, and that they could not
    be rolling in wealth and comfort while we at the South were
    bearing all the hardships and privations. In retaliation for
    Sheridan's atrocities in the Shenandoah Valley, we desired to
    destroy property; not the lives of women and children, although
    that would, of course, have followed in its train."

    Done in the presence of
        LIEUT. COL. MARTIN BURKE and
          J. HOWARD, JR.
    March 24th, 1865, 10.30 P.M.

Kennedy, in the presence of death, made this free and full confession,
carefully confining himself to the narration of his own and the
acts of his fellow incendiaries. He does not tell who planned this
enterprise of death and destruction for the great metropolis of the
country, and whilst honestly confessing his own part in it, is very
careful not to compromise anybody else. But we are not left without
information as to who were the employers of him and his gang; and
here again Thompson and his fellow agents of the rebel government
in Canada are made to appear as its originators, and must be held
responsible, not only for the attempt thus made to destroy New York by
fire, but also for the worst consequences that could have happened had
their attempt proven successful.[3] Kennedy says they did not desire
to destroy the lives of women and children, although that would of
course have followed in its train. Thompson, Clay, Cleary, Sanders,
and any others that had any hand in setting this expedition on foot,
could not fail to know what would necessarily follow in its train if
successful, but were not deterred by the knowledge of the fact that
it involved not merely the destruction of property, but of necessity
also the destruction of women and children; for the firing of a city
like New York in many places, simultaneously, if successful in its
object, the destruction of the city, must necessarily result in the
same kind of indiscriminate destruction of human life that resulted
at New Berne, from the dissemination of pestilence sent there in the
clothing that that inhuman fiend, Dr. Blackburn, had carefully infected
and sent there for that very purpose. In the early ages of the world
war meant the indiscriminate destruction of all that belonged to the
enemy. The spirit of war then was to exterminate the foe. Prisoners of
war were slaughtered after the battle was ended. Women and children
were killed or carried into slavery. Men had not learned to exercise
mercy in war. It meant universal destruction of life, and confiscation
of the property of the enemy. It meant even the confiscation of the
territory or country in which he lived. It is so yet among the savage
tribes of the earth. With them the murder of a woman about to become a
mother is nothing, and the dashing out of the brains of her children
against a stone or a tree, before her eyes, yields to them a fiendish
satisfaction. Civilized nations, however, do not so carry on war, and
the laws of war do not permit this mode of warfare. The annals of no
age of the world, or of the most rude and savage people of the earth,
afford examples more atrocious than those planned and executed, or
attempted to be executed, by these agents of Jefferson Davis in Canada,
and by other agents, as we shall see, whose deeds were sanctioned and
paid for by Davis and his Secretary of State Benjamin.

The prison-pen at Andersonville was evidently planned for the
destruction of the lives of the prisoners of war that were sent
there; and if any escaped death, it was intended that they should be
so physically injured that they could never again render any service
to the Union cause. In a country abounding in forest shade and pure
water, there can be no excuse given for locating a prison-pen in a
little intervale, wholly destitute of shade, where men without tents or
shelter of any kind were huddled together by the thousands, with a very
meagre supply of water, for a long time, even for quenching thirst, and
none at all for the purposes of cleanliness, and what they had for the
former purpose being contaminated with all the filth from the drainage
of the town just above.

It is evident that this location was made with a view to the
destruction of life and the ruin of health. Then, for the further
carrying out of this purpose, the rations supplied were not only wholly
insufficient in quantity, but most unwholesome in quality, exactly
adapted to aid the effects of miasmatic exposure, and foul water, in
bringing on stomach and bowel troubles and low forms of fever, which
were kept up until life was literally drained out, and death from
exhaustion ensued. Here, without any sympathetic medical assistance or
proper medicine, men were dying daily by the fifties and the hundreds,
and the survivors becoming mere ghostly spectres; whilst the inhuman
monster, Wirtz, stood gloating over the scene in devilish glee, and
his inhuman guards were constantly on the look-out for pretexts to
shoot down their fellowmen, as though the terrible harvest of death,
secured by their arrangements and management of this graveyard of the
living, was too meagre, and required their bullets to enrich it. Such
was Andersonville. The purpose of its location and management are too
obvious to need remark; and for all this, Jefferson Davis and his
Secretary of War are to be held responsible. Far be it from me to bring
up this matter for the purpose of giving a fresh impulse to sectional
enmity. I only do it to show the low moral status of those who were
responsible for the conduct of the war on the side of the rebellion, in
order that from all this we may be prepared for the evidence presented
to the world through the Commission, sustaining the grave charges of
the government.

There was no doubt an element, perhaps a large element of the
population of the Southern States, that was in full sympathy with
this policy; but such a policy could only have been abhorrent to the
honorable foe who bravely confronted us on the field of conflict.
It was the stay-at-home-and-fight element that sanctioned these
atrocities. War is cruel when conducted on the strictest rules of
civilized warfare. War is destructive; it is harsh and unrelenting.
Foeman must meet foeman with his steel. It is a game in which human
life is always the price of success and the cost of failure. The enemy
must be met and overcome; his resources must be reached and cut off if
it can be done, thus starving him into submission, as a more humane way
of getting the victory over him than by taking his life. But amongst
civilized people no enemy is to be deprived of life but the armed
and active foe in the field, in honorable and open combat, except
for crime. The lives of women, children, prisoners of war, and of
non-combatants generally, must be held sacred. Thus we see how much the
horrors of war have been mitigated by the more enlightened sentiments
and Christian morality of the world's present state of civilization.
When these shall have done their perfect work, wars will cease. The
time will yet come when men shall learn war no more. May God hasten the
day.

In charging Jefferson Davis, and those associated with him in the
conduct of the war with an utter disregard of the laws of war, and of
being guilty of atrocities that are only matched in savage life, I wish
again to make a distinct disclaimer in behalf of those who fought, and
of those who conducted his operations in the field. Whilst I abhor
their construction of the Constitution and theory of the union of the
States as destructive of the hopes of liberty and of free government,
tending continually to disintegration, and making the idea of a nation
an impossibility, I admire and honor the courage and bravery with which
they maintained their theory, and accord to them the honor, as well as
the courage of true soldiers.

To them the idea of winning success by the means we have had under
consideration, and for which we have found the political leaders
of the rebellion responsible, including the highest officer of the
Confederacy, would have been as abhorrent as to myself. Not a word
that I have written can tarnish the fame of the true soldier; and I
have carefully avoided charging anything against even the politicians
of the Confederacy that is not sustained by indisputable evidence.
Considered morally, their methods can never be justified; yet it was
by these methods, with assassination added, that the political leaders
of the rebellion sought to obtain success, and because of this, must
for all time in history fall under the condemnation of the enlightened
Christian conscience of the world. That they were guilty of all these
things has been abundantly proven; but as we shall see, the evidence
has not yet been exhausted. They attempt to shield themselves under the
claim of justifiable retaliation. Retaliation for what? They answer,
"The atrocities committed by Sheridan in the Shenandoah Valley." Let us
consider this question for a moment. It was the fortune of the writer
to be serving under Sheridan at the time these alleged atrocities were
committed, and to be an eye-witness of them. What did Sheridan do? He
burnt all the stack-yards and barns containing grain and hay, and all
the mills and factories found in the valley from above Harrisonburg
on down to near Winchester, or perhaps lower down than that. He also
appropriated all the horses, cattle, sheep, etc., that could have been
made available for the support and aid of an enemy. He dealt merely
with property, and that such property alone as would have enabled
General Lee again to have threatened the national capital by an
invading foe by this route, as he had twice, or oftener, done before,
thus making it necessary to employ a large force from our army in
guarding this route. General Grant determined to render this division
of his forces unnecessary, by rendering the valley impracticable to
Lee by this destruction of the abundant supplies that it furnished,
in order that he might have the benefit of Sheridan's forces in his
investment of Richmond.

It was simply the destruction of property by which the rebellion could
sustain itself, and thus prolong its existence, in order to shorten the
war, and thus save the expenditure of human life. There was no property
destroyed or confiscated but such as could be used for the subsistence
and movements of an army. It was simply a question of shortening the
war, and thus economizing human life by the destruction of property,
and so was a measure fully justified by the laws and usages of war.
Sheridan acted under Grant's orders in this matter, and his acts were
only atrocious as war itself is atrocious, and can never serve as a
justification of schemes that in every instance involved the lives of
non-combatants, and even of women and children. All of this destruction
of property in the Shenandoah Valley by Sheridan was done, and
accounted for, strictly in accordance with the laws and usages of war,
and has never been challenged by the civilized nations of the world as
an unwarranted atrocity. It was harsh in the extreme; but as a military
necessity it was justifiable. It included in its object mercy towards
the lives of men.

As the cause of the Confederacy began to lose ground in the summer
of 1864, and the signal success of our arms made it clear that it
would not be able to maintain the fight to a successful close, the
political leaders became desperate and reckless as to the means to
which they resorted. The City Point explosion, the burning of a number
of steamboats on the Ohio and Mississippi rivers, and the burning of a
soldiers', or United States, hospital at Louisville, Ky., were amongst
the occurrences of that eventful summer. The following extract from
the report of John Maxwell to Captain Z. McDaniel, commanding Torpedo
Company, explains the City Point explosion:--

"Captain: I have the honor to report that in obedience to your order,
and with the means and equipments furnished me by you, I left this city
(Richmond) 26th July last for the line of the James River, to operate
with the 'hozological torpedo' against the enemy's vessels navigating
that river. I had with me Mr. R. K. Dillard, who was well acquainted
with the localities, and whose services I engaged for the expedition.

"On arriving in Isle of Wight County, on the 2d of August, we
learned of immense supplies of stores being landed at City Point; and
for the purpose, by stratagem, of introducing our machine upon the
vessels there discharging stores, started for that point. We reached
there before day-break on the 9th of August last, having travelled
mostly by night, and crawled upon our knees to pass the east picket
line. Requesting my companion to remain behind about half a mile, I
approached cautiously the wharf, with my machine and powder covered by
a small box. Finding the captain had come ashore from a barge then at
the wharf, I seized the occasion to hurry forward with my box. Being
halted by one of the wharf sentinels, I succeeded in passing him by
representing that the captain had ordered me to convey the box on
board. Hailing a man from the barge, I put the machine in motion, and
gave it in his charge. He carried it aboard. The machine contained
about twelve pounds of powder. Rejoining my companion we retired to a
safe distance to witness the effect of our effort.

"In about an hour the explosion took place. Its effect was communicated
to another barge beyond the one operated upon, and also to a large
wharf building containing their stores (enemy's), which was totally
destroyed. The scene was terrific, and the effect deafened my companion
to an extent from which he has not recovered. My own person was
severely shocked, but I am thankful to Providence that we have both
escaped without injury. We obtained and enclose slips from the enemy's
newspapers, which afford their testimony of the terrible effects of the
blow. The enemy estimate the loss of life at fifty-eight killed and
one hundred and twenty-six wounded, but we have reason to believe it
greatly exceeded that.

"The pecuniary damage we heard estimated at four millions of dollars;
but of course we can give you no account of the extent of it exactly. I
may be permitted, Captain, here to remark _that a party of ladies_, it
seems, were killed by this explosion. It is saddening to me to realize
the fact that the terrible effects of war [he should have added as thus
conducted] induce such consequences; but when I remember the ordeal to
which our own women have been submitted, and the barbarities of the
enemy's crusade against us and them, my feelings are relieved by the
reflection that whilst this catastrophe was not _intended_ by us, it
amounts only, in the providence of God, to _just retribution_."

Hear the pious scoundrel salving his conscience with the old cry of
"just retribution!"

The following will explain the agency by which boats on the Ohio and
Mississippi rivers, and the United States Hospital at Louisville,
Ky., were burned. It is the testimony of Edward Frazier before the
Commission:--

"I am a steamboat man, and have been making St. Louis my home for the
last nine or ten years. During 1864 I knew of the operations of Tucker,
Minor Majors, Thomas L. Clark, and Colonel Barrett, of Missouri, for
burning boats carrying government freight, transports, and other
vessels on the Ohio and Mississippi and other rivers. These men were
in the service of the Confederate Government. I knew of the following
steamboats having been burned by the operations of these parties: the
'Imperial,' 'Hiawatha,' the 'Robert Campbell,' the 'Louisville,' the
'Daniel G. Taylor,' and others, besides some in New Orleans that I
do not know the names of. The 'Imperial' was one of the largest and
finest transports on the western waters. In the case of the burning
of the 'Robert Campbell,' which was destroyed in the stream when
under way, at Milikin's Bend, twenty-five miles above Vicksburg,
there was a considerable loss of life. The agent who destroyed this
boat was on board. These boats were all owned by private individuals.
The operations of these men were to include government hospitals,
store-houses, and everything appertaining to the enemy. A United States
hospital at Louisville was burned in June or July of 1864. I do not
know who burned it, but a man named Dillingham claimed compensation for
it. I was in Richmond from the 20th to the 25th or 26th of August last,
when I had an interview with the rebel Secretary of War, the Secretary
of State, and Mr. Jefferson Davis. Thomas L. Clark, Dillingham, and
myself, called there in connection with the boat burning, and put in
claims to Mr. James A. Seddon, the rebel Secretary of War. Mr. Clark
introduced me to Mr. Seddon. He told me that he had thrown up that
business, that it was now in the hands of Mr. Benjamin. We went to
him, and Mr. Benjamin looked at the papers we brought him, and asked
me if I knew anything about them. I told him that I did, and that I
believed they were all right. He asked me if I was from St. Louis. I
told him I was. He then asked Mr. Clark if he knew me to be all right,
and he said I had been represented to him by Mr. Majors as being all
right. Mr. Benjamin told us all three to call the next day. We did
so, when he said he had shown these papers to Jefferson Davis, and he
(Benjamin) wanted to know if we would not take thirty thousand dollars
and sign receipts in full. We told him we would not. Mr. Benjamin
then said that if Dillingham was to claim this in Louisville, he
wanted a statement of it. We went back to the hotel, and I wrote the
statement myself. It read that Mr. Dillingham had been hired by General
Polk, and that he had been sent to Louisville expressly to do that
work; namely, to burn the hospital. It was then talked over with Mr.
Benjamin, and we made a settlement with him for fifty thousand dollars;
thirty-five thousand dollars down in gold, and fifteen thousand dollars
on deposits, to be paid in four months, provided the claims proved
correct. The money was paid by a draft on Columbia for thirty-four
thousand, eight hundred dollars, in gold, and two hundred dollars in
gold we got in Richmond. We received the gold on the draft at Columbia.
Whilst in Richmond, Mr. Benjamin told me that Mr. Davis wanted to
see me. I went in with Mr. Benjamin to see Mr. Davis, and we sat and
talked. The conversation first was about what was called the Long
Bridge, between Nashville and Chattanooga. Mr. Davis wanted to know
what I thought about destroying it. He said they had been thinking of
it, and of sending some one to have it done. I told him I knew of the
bridge, though I did not, for I had never been there, but did not know
what to think about destroying it. He said I had better study it over.
Finally I told him I thought it could be done. Mr. Benjamin, I believe
it was, first remarked that he would give four hundred thousand dollars
if that bridge was destroyed, and asked me if I would take charge of
it. I told him I would not unless the passes were taken away from those
men that were now down there, and Mr. Davis said it should be done.
The conversation then turned on the burning of the steamboats. I told
Mr. Davis that I did not think it was any use burning steamboats, and
he said no, he was going to have that stopped. The next day I saw an
order taking away passes issued on or before the 23d of August. These
passes were permits to do this kind of work. I presume Mr. Davis knew
that the money I received was for the work that I had done; he knew
that I had received money there. Mr. Davis seemed fully aware of what
we had done, and he did not condemn it. Mr. Majors and Barrett belonged
to an organization known as the 'O. A. K.', or 'Order of American
Knights.'" The witness was asked to state, if he thought proper to
do so, whether he was also a member of that order; but he declined
to say. "I understood" (said the witness) "that Colonel Barrett held
the position of adjutant general of this organization, of the Sons
of Liberty, for the State of Illinois. I do not know that Majors and
Barrett were in Chicago in July last, but Mr. Majors left St. Louis
either in June or July, to go to Canada, and I presume went there by
way of Chicago."

Here again, we see the moral plane on which Davis and Benjamin worked
for the success of the Confederacy. We find them employing and paying
agents for burning boats, midstream, regardless of the destruction
of the lives of non-combatants, including, most likely, women and
children amongst the passengers aboard; burning a hospital filled
with sick, wounded, and dying soldiers, who, according to the laws of
civilized warfare, are entitled to the sacred protection of even the
enemy, whether in or out of their territory and possession. We have now
found Davis and his agents in Canada planning and carrying out schemes
for assassination or murder by wholesale, by spreading pestilence,
poisoning of reservoirs, burning cities, hospitals, and boats on their
way loaded with passengers, and by the use of explosives murdering
women. Human life, under any imaginable conditions of existence,
received no consideration at their hands if its sacrifice held out to
them any prospect of advancing their cause.

Another foul plot to murder prisoners of war held in Libby Prison,
right under the eyes of Davis and his Cabinet, is detailed as follows
by Erastus W. Ross, a witness before the Commission:--

"I was in the service of the rebel government. I was conscripted and
detailed as a clerk at Libby Prison, and never served in the army. In
March, 1864, General Kilpatrick was making a raid in the direction of
Richmond. About that time the prison was mined. I saw the place where I
was told the powder was buried under the prison; it was in the middle
of the building. The powder was put there secretly in the night. I
never saw it, but I saw the fuse. It was put in the office. I was away
at my uncle's the night that the powder was put there, and was told of
it the next morning by one of the colored men at the prison. There were
two sentinels near the place to prevent any person approaching it. The
excavation made was about the size of a barrel head, and the earth was
thrown up loosely over it. Major Turner, the commandant of the prison,
had charge of the fuse. He told me that the powder was there, and that
the fuse was to set it off; that it was put there for the security of
the prisoners, and if the army got in it was to be set off for the
purpose of blowing up the prison and the prisoners. The powder was
secretly taken out in May, and the whole building was then shut up.
The prisoners had all been sent to Macon, Ga. I suppose the powder was
placed there by the authority of General Winder or the Secretary of
War. Major Turner said he was acting under the authority of the rebel
war department, though I never saw any written orders about it."

John Latouche testified as follows: "I was first lieutenant in Company
B, Twenty-fifth Virginia Battalion, C. S. A. I was detailed to post
duty in Richmond to regulate the details of the guards of the military
prisons there, and in March, 1864, I was on duty at Libby Prison. Major
Turner, the keeper of the prison, told me that he was going to see
General Winder about the guard. On his return he told me that General
Winder himself had been to see the Secretary of War, and that they were
going to put powder under the prison. In the morning of the same day
the powder was brought. There were two kegs of about twenty-five pounds
each, and a box which contained about as much as the kegs. A hole was
dug in the centre of the middle basement, and the powder was put down
there. The box when put in just came level with the ground, and the
place was covered over with gravel. I did not see any fuse to it then.
I placed a sentry over this powder so that no accident might occur, and
the next day Major Turner, who had charge of the fuse, showed it to
us in his office; he showed it to everybody there. It was a long fuse
made of gutta-percha, such a one as I had never seen before. In May, I
think it was, Major Turner went South, and all of the prisoners were
sent out of the Libby building proper to the south; and General Winder
sent a note down to the office with directions to take up the powder
as privately or as secretly as possible. I forget his exact words. The
note was delivered into my hands for the inspector of the prison, to
whom I either gave or sent it. I afterward heard Major Turner say that
in the event of the raiders coming into Richmond he would have blown up
the prison. I understood him to say those were his orders."

We are not left, however, to infer that this gunpowder plot, by
which the lives of twelve hundred Union officers held as prisoners
of war were to have been sacrificed in case Colonel Dahlgren should
have gotten into the city for the purpose of their liberation, was
authorized by the head of the rebel government.

The box turned over by General Johnson to General Schofield, containing
the archives of the Confederate government, contained the proof that
Jefferson Davis ordered these preparations to be made, and that his
subordinates had orders to carry the plot into execution in the event
of the contingency above referred to. These archives also showed that
in this he was sustained by the committee of the rebel congress on
the conduct of the war. Pollard, also, in his history of the "Lost
Cause," attempts to justify this plot. In all this we see the debasing
influence of human bondage on the moral sense of a people. Who, except
under the influence of such a demoralization, could have planned for
the wholesale sacrifice of their prisoners of war?

Here we have Mr. Seddon, the rebel Secretary of War, of course not on
his own responsibility, but under the orders of his superior, Jefferson
Davis, ordering the officer in charge of the prisoners of war in their
possession to mine the building in which they were confined, and in
the event of a Yankee raid entering the city, to blow up the building,
and thus murder, at one fell swoop, all the prisoners in it to prevent
their being rescued and taken back into the service. Need we wonder
that an administration that could deliberately prepare to murder its
prisoners of war rather than suffer their liberation under the fortunes
of war, should have deliberately planned for the destruction of its
prisoners by the starvation and cruelties of Andersonville?

It gives me no pleasure to rehearse these things, but it is due to the
truth of history that they should be known. I desire to see a speedy
and complete reconciliation of these two sections of our country; and
I have always rejoiced that we who faced each other on the fields of
deadly conflict, have, from the time of the surrender of Lee's army,
been ready to meet each other as friends and brothers and fellow
citizens of a common country. The sight witnessed at Appomattox of the
soldiers of our army emptying their haversacks to satisfy the wants of
men who but the hour before stood confronting them as foes, but who
now had laid down their arms, worn out and famishing, was a glorious
exhibition of the best side of our nature, and plainly said that
though we had been enemies in war in peace we would be friends, and
foreshadowed the speedy reconciliation that has followed our terrible
strife, so far as the soldiers of the two armies are concerned. I
charge none of these things on these men. I fix the responsibility
for these things on the political leaders of the rebellion, and not
even on them indiscriminately but only on such of them as are named in
the charge and specifications under which, through the medium of the
Commission, they were arraigned before the world, and the evidence of
their guilt was produced. It is to show that the government in so doing
completely vindicated its dignity and honor that I write.

If the acts of public men render them infamous in history, the
responsibility rests in their bad exercise of that freedom of will that
makes us responsible beings.[4] And in human affairs, bad examples
should be held up as warnings, just as good examples should be held up
for imitation and encouragement.

We shall now approach a little more closely to the consideration of
the responsibility of Jefferson Davis and his Canada Cabinet for
the assassination of Abraham Lincoln; and will show, we think, by
incontestible evidence, that they were co-conspirators with Booth and
his gang, or rather, that they originated and concocted the plan, and
that Booth and his followers were merely their hired assassins for the
accomplishment of their purposes.




CHAPTER XI.

EVIDENCE PRESENTED BY THE GOVERNMENT TO SUSTAIN ITS CHARGE AND
SPECIFICATIONS.


The following letter was found in the box turned over by General Joseph
A. Johnson, at Charlotte, N.C., to General Schofield, and said to
contain the archives of the Confederate government:--

        MONTGOMERY, WHITE SULPHUR SPRINGS, VA.

    TO HIS EXCELLENCY, _the President of the Confederate States of
    America_:--

    DEAR SIR:--I have been thinking for some time that I
    would make this communication to you, but have been deterred
    from doing so on account of ill health. I now offer you my
    services, and if you will favor me in my designs, I will
    proceed, as soon as my health will permit, to rid my country of
    some of her deadliest enemies, by striking at the very heart's
    blood of those who seek to enchain her in slavery. I consider
    nothing dishonorable having such a tendency. All I ask of you
    is to favor me by granting me the necessary passes, etc., on
    which to travel while in the jurisdiction of the Confederate
    government. I am perfectly familiar with the North, and feel
    confident I can execute anything I undertake. I am just
    returned from within their lines. I am a lieutenant in General
    Duke's command, and I was on the raid last June in Kentucky
    under General John H. Morgan. I and all of my command excepting
    about three or four, and two commissioned officers, were taken
    prisoners; but finding a good opportunity, while being taken to
    prison, I made my escape from them. Dressing myself in the garb
    of a citizen, I attempted to pass through the mountains, but
    finding that impossible, narrowly escaping two or three times
    from being retaken, I shaped my course north, and went through
    to the Canadas, from where, by the assistance of Colonel
    Holcomb, I succeeded in making my way around and through the
    blockade; but having yellow fever, etc., at Bermuda, I have
    been rendered unfit for service since my arrival. I was reared
    up in the State of Alabama, and educated in its university.
    Both the Secretary of War and his assistant, Judge Campbell,
    are personally acquainted with my father, William J. Alston, of
    the fifth Congressional District of Alabama, having served in
    the time of the old Congress, in the years 1849-50 and 1851. If
    I do anything for you, I shall expect your full confidence in
    return. If you do this, I can render you and my country very
    important service. Let me hear from you soon. I am anxious to
    be doing something, and having no command at present, all, or
    nearly all, being in garrison, I desire that you favor me in
    this a short time. I would like to have a personal interview
    with you, in order to perfect the arrangements before starting.

        I am, very respectfully,
          Your obedient servant,
            LIEUTENANT W. ALSTON.

This letter, it will be observed, is without date; but the box in
which it was found was marked, "Adjutant and Inspector General's
Office; letters received July to December, 1864." Lieutenant Alston
was captured in Kentucky in June, 1864, and so, in making his escape
through Canada, made the acquaintance of the rebel agents there, just
at the time that they were full of the assassination scheme. It was
probably from his intercourse with them that he became infatuated
with this idea, although he does not give them the credit of it. He
seems to have been an ambitious youth who desired to impress the rebel
President with the idea that this was an original scheme of his own.
Mark how unblushingly he opens his mind to Davis in presenting his
plot! It is nothing less than "striking at the heart's blood of some
of his country's deadliest foes," of whom everybody then knew that
Abraham Lincoln was universally regarded in the South as chief. It is a
plain offer to aid his country's cause by entering upon the policy of
assassinating the loyal men of the country whose official duty required
them to put down the rebellion. He considers nothing dishonorable that
tends to accomplish this. He does not merely propose to strike at the
heart's blood of Abraham Lincoln. No; like the Canada conspirators,
he has a more comprehensive scheme. Did Jefferson Davis feel insulted
by being thought capable of giving his sanction to such a foul and
dishonorable proposition? Let us see.

The following is his endorsement put upon it:--

    INDORSEMENT.

    A. 1. 390. Lieut. W. Alston, Montgomery, Sulphur Springs, Va.
    (no date). Is Lieutenant in General Duke's command. Accompanied
    raid into Kentucky and was captured, but escaped into Canada,
    from whence he found his way back. Been in bad health. Now
    offers his services to rid the country of some of its deadliest
    enemies. Asks for papers to permit him to travel within the
    jurisdiction of this government. Would like to have an
    interview and explain. Respectfully referred, by direction of
    the President, to the Honorable Secretary of War.

        BURTON N. HARRISON,
          _Private Secretary_.

    Received November 19th, 1864.
    Recorded book A.A.G.O., December 16th, 1864.
    A.G. for attention.
      By order of J. A. CAMPBELL, A.S.W.

The handwriting of the private secretary of Jefferson Davis, Burton
N. Harrison, and of the Assistant Secretary of War, J. A. Campbell,
in the endorsements, was verified before the Commission by Lewis W.
Chamberlain, who had been a clerk in the war department at Richmond,
and was well acquainted with the handwriting of both of these gentlemen.

From the consideration given by the rebel President, as shown by
these careful and favorable endorsements, would it be unreasonable
to conclude that Lieutenant Alston was granted the interview that he
desired, and that, armed with the permission and authority of the rebel
chief, he became one of the active participants in the closing scenes
of the drama?

We have other evidence that at this very time the mind of Jefferson
Davis was turned in this direction, and that he was inciting his agents
in Canada to turn their attention to a grand political scheme of
wholesale assassinations.

To show the moral obtundity of the political stay-at-home-and-fight
rebels about this time, I will reproduce an advertisement of this
proposition to assassinate President Lincoln and the other civil
officers of the government, that was published in the _Selma_ (Alabama)
_Dispatch_, in December, 1864, under the caption--

    "MILLION DOLLARS FOR ASSASSINATION

    "One million dollars wanted to have peace by the 1st of March.
    If the citizens of the Southern Confederacy will furnish me
    with the cash, or good securities for the sum of one million
    dollars, I will cause the lives of Abraham Lincoln, William
    H. Seward, and Andrew Johnson to be taken by the 1st of March
    next. This will give us peace, and satisfy the world that
    cruel tyrants cannot live in a land of liberty. If this is not
    accomplished, nothing will be claimed beyond the sum of fifty
    thousand dollars in advance, which is supposed to be necessary
    to reach and slaughter the three villains. I will give, myself,
    one thousand dollars towards this patriotic purpose. Every one
    wishing to contribute will address Box X, Cahawba, Alabama.
    December 1st, 1864."

This advertisement was proven by compositors in the _Dispatch_
office to have been put in that paper by Mr. G. W. Gale, a lawyer of
considerable reputation, and that the copy was in his handwriting,
which was well known at that office. My impression is that several of
the Richmond papers reproduced this advertisement, as also many other
papers in the Confederacy. The treasonable purpose to overthrow the
Constitution by the assassination of the President, Vice-President, and
Secretary of State shows that the plan had been maturely considered
in the light of the conditions that would render it most effective in
securing the object in view, and that it was a deep political scheme to
give the rebellion a new lease of life, and put it on its feet again
under more favorable conditions for success. I have already given
incidentally, and in a fragmentary way, glimpses of the testimony on
which the charges of the government were founded. I will now present in
a connected form the testimony bearing on the question.

Richard Montgomery testified before the Commission that Thompson said
to him in the summer of 1864 that he had his friends all over the
North, and that he could have anybody put out of his way that he chose;
that he would only have to point out the man that he considered in his
way, and his friends would remove him, and would consider it no crime
when done for the cause of the Confederacy. Clay also, on being told
by Montgomery what Thompson had said, replied, "That is so; we are all
devoted to our cause and ready to go any lengths--to do anything in the
world to serve our cause." Thompson said his friends would do this and
not let him know anything about it if necessary. That this was not mere
bragadocio is evident from the fact that Montgomery was accepted by
Thompson as a confederate in full sympathy with himself, and entitled
to his fullest confidence.

Merritt testified that he first heard of the assassination plot in
October or November, 1864, when he was told by Young, in reply to an
inquiry of Merritt in regard to a contemplated raid: "We have something
on the _tapis_ of much more importance than any raids we have made, or
can make." He said, "It was determined that Old Abe should never be
inaugurated." He said they had plenty of friends in Washington; and
speaking of Mr. Lincoln, he called him a damned old tyrant. Merritt
was afterwards introduced to George N. Sanders by Colonel Steele, and
in the course of the conversation that ensued, Steele said, "the damned
old tyrant will never serve another term if he is elected." Sanders
replied, "he (Lincoln) would have to keep himself mighty close if he
did serve another term." In January, 1865, Thompson told Montgomery
that a proposition had been made to him to rid the world of the tyrant
Lincoln, Stanton, Grant, and some others. He said he knew the men
that made the proposition to be bold, daring men, and able to execute
anything they would undertake without regard to cost. He said he was in
favor of the proposition, but had concluded to defer giving his answer
until he should have consulted with his government at Richmond; and
that he was only waiting for their approval; adding that he thought it
would be a great blessing to the people, both North and South, to have
these men killed. Beverly Tucker, in a conversation with Montgomery
after the assassination, recounting the many wrongs the South had
received at the hands of Mr. Lincoln, said, "that he deserved his
death, and it was a pity he had not met it long ago; that it was too
bad that the boys had not been allowed to act when they wanted to."

Conover testified that he saw Booth in Montreal about the latter part
of October, 1864. He was strutting about the St. Lawrence Hall, playing
billiards, etc., but occasionally was to be seen in confidential
intercourse with Sanders and Thompson.

Whilst in Canada at this time the plot to assassinate was fully decided
upon, as will be shown by the "Selby letter" subjoined. This letter was
picked up in a street car in New York by a couple of ladies, one of
whom, Mrs. Mary Hudspeth, testified before the Commission as follows:
"In November last, after the presidential election, and on the day that
General Butler left New York, as I was riding on the Third Avenue cars
in New York City, I overheard a conversation of two men. They were
talking most earnestly. One of them said he would leave for Washington
day after to-morrow. The other was going to Newburg or New Berne that
night. One of the two was a young man with false whiskers. This I
observed when a jolt of the car pushed his hat forward and at the same
time pushed his whiskers, by which I observed that the front face was
darker than it was under the whiskers. Judging by his conversation, he
was a young man of education. The other, whose name was Johnson, was
not. I noticed that the hand of the younger man was very beautiful, and
showed that he had led a life of ease and not of labor.

"They exchanged letters whilst in the car. When the one who had the
false whiskers put back the letters in his pocket, I saw a pistol in
his belt. I overheard the younger one say that he would leave for
Washington the day after to-morrow. The other was very angry because it
had not fallen on him to go to Washington. Both left the cars before
I did. After they had left, my daughter, who was with me, picked up
a letter which was lying on the floor of the car, immediately under
where they sat, and gave it to me, and I, thinking it was mine, as I
had letters of my own to post at the Nassau Street Post-office, took
it without noticing that it was not one of my own. When I got to the
brokers, where I was going with some gold, I noticed an envelope with
two letters in it. These are the letters, and both were contained in
one envelope. After I examined the letters and found their character,
I took them first to General Scott, who asked me to read them to him.
He said he thought they were of great importance, and asked me to take
them to General Dix. I did so. The letters are as follows:--

    "DEAR LOUIS:--The time has at last come that we have
    all so wished for, and upon you everything depends. As it was
    decided before you left, we were to cast lots. Accordingly
    we did so, and you are to be the Charlotte Corday of the
    nineteenth century. When you remember the fearful, solemn vow
    that was taken by us you will feel there is no drawback--_Abe_
    must _die_, and _now_. You can choose your weapons--the
    cup, the _knife_, the _bullet_. The cup failed us once, and
    might again. Johnson, who will give _this_, has been like an
    enraged demon since the meeting because it has not fallen
    upon him to rid the world of the monster. He says the blood
    of his gray-haired father and his noble brother call on him
    for revenge, and revenge he will have; if he cannot wreak it
    upon the fountain head, he will upon some of the blood-thirsty
    generals. Butler would suit him. As our plans were all
    concocted and well arranged, we separated; and as I am writing
    on my way to Detroit, I will only say that all rests upon
    you. You know where to find your friends. Your disguises are
    so perfect and complete, that without _one_ knew _your face_
    no police telegraphic despatch would catch you. The English
    gentleman, Harcourt, must not act hastily. Remember he has ten
    days. Strike for your home, strike for your country; bide your
    time, but strike sure. Get introduced, congratulate him, listen
    to his stories--not many more will the brute tell to earthly
    friends. Do anything but fail, and meet us at the appointed
    place within the fortnight. Inclose this note, together with
    one of poor Leenea. I will give the reason for this when
    we meet. Return by Johnson. I wish I could go to you, but
    duty calls me to the West; you will probably hear from me in
    Washington. Sanders is doing us no good in Canada.

        "Believe me your brother in love,
          "CHARLES SELBY."


        "ST. LOUIS, October 21st, 1864.

    "DEAREST HUSBAND:--Why do you not come home? You left
    me for ten days only, and now you have been from home more than
    two weeks. In that long time, only sent me one short note--a
    few cold words--and a check for money, which I did not require.
    What has come over you? Have you forgotten your wife and child?
    Baby calls for papa until my heart aches. We are _so lonely
    without you_. I have written to you again and again, and, as a
    last resource, yesterday wrote to Charlie, begging him to see
    you and tell you to come home. I am so ill--not able to leave
    my room; if I was, I would go to you wherever you were, if in
    _this world_. Mamma says I must not write any more, as I am too
    weak. Louis, darling, do not stay away any longer from your
    heart-broken wife,

        "LEENEA."

General Dix sent these letters to the War Department at Washington.
They were given to President Lincoln, who put them in an envelope,
marked it "Assassination," and laid it away in his desk, where it was
found after his death. Mrs. Hudspeth testified that she picked these
letters up on the day that General Butler left New York. General Butler
had orders to leave on the 11th of November, but upon application got
permission to remain until the 14th. Booth left Washington on the early
morning train on November 11th, which would put him into New York on
the afternoon of that day. Here he met his co-conspirator, Johnson, on
the cars, and in exchanging letters with him, dropped these letters
without noticing it. The Leenea letter was to have been returned by
Johnson. He was to leave for Washington on the day after to-morrow,
which, reckoning from the 11th, would be the 13th. The hotel register
accounts for him again at Washington on the 14th in the early part of
the evening. That the young man described by Mrs. Hudspeth was John
Wilkes Booth was shown by her recognition of his photograph, shown to
her in the presence of the Commission, when she declared that that was
the same face.[5]

It was also shown by the testimony of Samuel Knapp Chester, the
actor, that Booth was in New York about this time, laboring with
Chester in the most urgent manner to draw him into the conspiracy.
It is true he represented to him that the purpose was to capture the
President, and carry him a prisoner to Richmond; that this feat was
to be performed at Ford's Theatre in Washington, and that Chester's
part in it would be the easy one of simply opening the door of exit
on a given signal; but can any sane man believe that this was his
purpose? The impracticability of this proposition could not but have
been as apparent to Booth as it was to Chester, who begged Booth,
finally, to never mention the subject to him again. It is evident Booth
intended to withhold from Chester his real purpose until he could get
him irrevocably committed to the conspiracy. The letter which he had
dropped, and which I have given above, reveals the real purpose of the
conspiracy. It will be seen by this letter that it was in contemplation
at that time to act at once, or at least as soon as a good opportunity
should be found, or could be made. He who was "to be the Charlotte
Corday of the nineteenth century" had his choice as to the weapons he
should use; but whether it should be the cup, the knife, or the bullet,
it simply meant death. Why was not the purpose carried out at that time
as arranged for at the meeting to which the letter refers? As will be
shown by the subsequent testimony, the assassins were restrained from
present action by the agents of the rebel government in Canada, who
desired to have explicit sanction to the arrangements they had made as
to the compensation, and authority for the expenditure it involved.

Let us see now how the testimony connects the rebel agents in Canada
with this meeting that was held in the latter part of October, or
first of November, 1864, and with its conclusions, which resulted in
arrangements for these assassinations. Montgomery testified that in
January, 1865, Jacob Thompson told him that a proposition had been made
to him to rid the world of the tyrant Lincoln, Stanton, Grant, and some
others. The men who had made the proposition, he said, he knew to be
bold, daring men, and able to execute anything they would undertake
without regard to cost. He said he was in favor of the proposition but
had determined to defer his answer until he had consulted with his
government at Richmond, and he was then only waiting their approval,
adding that he thought it would be a blessing to the people, both
North and South, to have these men killed. A few days after the
assassination, Montgomery had a conversation with Beverly Tucker in
Montreal. He said a great deal about the wrongs the South had received
at the hands of Mr. Lincoln, and that he deserved his death, and it
was a pity he had not met with it long ago. He said "It was too bad
that the boys had not been allowed to act when they wanted to." Thus we
see that "the boys" were kept back from the execution of the plot for
which they had made ready late in October, or early in November, at the
meeting referred to in the Selby letter, by Thompson and his clique,
who had concluded to defer it until they should have obtained the
sanction of their government at Richmond to their arrangements, which
no doubt involved the expenditure of a large sum of money. Montgomery
at this time related a portion of the conversation with Thompson, given
above, to William C. Cleary, who was Thompson's confidential secretary,
when Cleary told him that Booth was one of the men to whom Thompson
referred; and speaking of the assassination, he said "It was too bad
that the whole work had not been done," adding, "They had better
look out; we have not done yet." Cleary told Montgomery during this
conversation that Booth had been there visiting Thompson twice in the
winter; the last time he thought was in December.

That Cleary was well acquainted with all that Thompson, Tucker, and
Clay were doing is clear from the relation he sustained to Thompson;
and Thompson himself told Montgomery that Cleary was posted in all his
affairs, and that if he (Montgomery) sought him at any time when he was
absent, he could confide his business to Cleary.

Conover testified that he called on Thompson, in the early part of
February, 1865, to make some inquiry about the intended raid on
Ogdensburg, when Thompson said to him, "There is a better opportunity,
a better chance to immortalize yourself and save your country." Conover
replied that he was willing to do anything to save the country.
Thompson then said, "Some of our boys are going to play a grand joke
on Abe and Andy." Upon Conover asking him for a further explanation, he
said, "It was to kill them, or, rather, to remove them from office."
He said, "it was only removing them from office; that the killing of
a tyrant was no murder." He told Conover then, or subsequently, that
he had conferred a commission on Booth for this purpose, and would
commission all who engaged in it, so that whether it succeeded or
failed, if they escaped to Canada, they could not be claimed under
the extradition treaty. The Confederate government kept these Canada
agents supplied with commissions in blank, to be filled up by them
at their pleasure, to cover cases like these. In this conversation
of Thompson with Conover, in February, in which he was endeavoring
to enlist Conover in the plot, he argued that killing a tyrant in
such a case was no murder, and asked him if he had ever read the work
entitled, "Killing no Murder," a letter addressed by Colonel Titus to
Oliver Cromwell. Mr. Hamlin was to have been included in the scheme,
had it been put into execution before the 4th of March. In a subsequent
conversation in April, Mr. Hamlin was omitted, and Vice-President
Johnson put in his place. We here again see the political intent of
this scheme, in that it was the office, not the man, that was really
the subject of the blow.

Merritt testified to an interview he had with Harper, Caldwell,
Randall, Charles Holt, and a man called "Texas," at the Queen's
Hotel, in Toronto, on the 6th of April, 1865. Harper said they were
"going to the States, and were going to kick up the damnedest row
that had ever been heard of." He said to Merritt, an hour or two
afterwards, that "if he (Merritt) did not hear of the death of Old
Abe, and the Vice-President, and General Dix in less than ten days he
might put him down as a damned fool." We have now had abundant proof
that Thompson, Clay, Tucker, Sanders, Cleary, etc., were guilty of
combining, confederating, and conspiring with Booth, and the others,
to assassinate Abraham Lincoln, Andrew Johnson, William H. Seward,
etc.; that this plot originated with them, and that they diligently
prosecuted the work of preparation for it from October, 1864, until
its denouement, in April, 1865. It appears to have engrossed their
minds; it was the great subject of conversation in all of their secret
conclaves, the great burden of all their thoughts, the very height of
their ambition.

Let us next see to what extent the head of the rebel Confederacy,
Jefferson Davis, is implicated in it by the evidence. We have
already seen by his favorable reception of the Alston letter and the
endorsement he put upon it, that there was nothing in his mind or
moral nature that revolted at its base, cowardly, and dishonorable
proposition to "strike at the very heart's blood of some of our
country's deadliest foes." On the contrary, he refers it to his
Assistant Secretary of War, marked "For attention."

Having obtained this index to the state of his mind, we find ourselves
prepared to receive the testimony of Dr. J. B. Merritt as to a letter
read by Sanders in a meeting of rebels in Montreal, about the middle
of February, 1865, at which ten or fifteen persons were present,
amongst whom were Sanders, Colonel Steele, Captain Scott, George Young,
Byron Hill, Caldwell, Ford, Benedict, Kirk, and Merritt. Sanders said
he had received the letter from "the President of our Confederacy"
(meaning Jefferson Davis). The substance of this letter was, that if
the confederates in Canada and in the States were willing to submit to
be governed by such a tyrant as Lincoln he did not wish to recognize
them as friends and associates, and he expressed his approbation of
any measures they might take to accomplish this object. It is true Dr.
Merritt did not see Davis's signature to the letter, and would not
have known it had he seen it, but the letter was first read openly by
Sanders, and then handed to the others, several of whom read it, and
none questioned either its author or authenticity. Colonel Steele,
Young, Hill, and Captain Scott read it, and no objection was raised.
After reading this letter, Sanders went on to name a number of persons
who were ready and willing, as he said, to engage in the undertaking
to remove the President, Vice-President, the cabinet, and some of the
leading generals, and said there was any amount of money to accomplish
the purpose. Amongst the persons whom he said thus stood ready to
engage in this work, he named Booth, George Harper, Charles Caldwell,
one Randall, and Harrison (by which name Surratt was known), and
one or two others, one of whom they called "Plug Tobacco," or "Port
Tobacco." I will here remark that Atzerodt was sometimes called by this
latter name. Sanders said that Booth was heart and soul in this project
of assassination, and felt as much as any person could feel, for the
reason that he was a cousin to Beall, who was hung in New York. He said
that if they could dispose of Mr. Lincoln it would be an easy matter to
dispose of Mr. Johnson; he was such a drunken sot it would be an easy
matter to dispose of him in some of his drunken revelries.

When Sanders read the letter he also spoke of Mr. Seward. "I inferred,"
says Dr. Merritt, "it was partially the language of the letter. It was,
I think, that if the President, Vice-President, and Mr. Seward could be
disposed of, it would be satisfying the people of the North that they
(the Southerners) had friends in the North, and that peace could be
obtained on better terms than could be otherwise obtained."

It will be remembered that Booth sent to Chester fifty dollars in a
letter when trying to get him into the conspiracy, and that at their
final interview in February, Chester positively refused to have
anything to do with it, and returned to Booth the fifty dollars he
had received. Booth took the money, saying at the same time he would
not do so only he was short of funds. He had told Chester that there
was plenty of money in the affair, and that if he would join he would
never want for money again as long as he lived. He said, however, as
an excuse for taking back the fifty dollars he had sent him, that he
was very short of funds, and that he, or some one, would have to go to
Richmond to replenish. Wiechmann testified that John H. Surratt left
Washington for Richmond on the 27th of March, and returned on the 3d of
April; that on his return he showed him nine, or eleven, twenty-dollar
gold pieces and sixty dollars in currency. Wiechmann was on intimate
terms of personal intercourse with Surratt, lived in the same house
with him, and was with him daily when at home, and expressed himself as
quite certain that he had no gold when he left Washington. He was not
engaged in any business by which he could make money. His mother had
a very limited income from the rent of her farm and tavern, and kept
boarders to enable her to make ends meet; yet her son was constantly
spending money in traveling about, and so must have been supplied by
his Canada friends, whom he visited occasionally; and the chief calls
he had for expenditure appear to have arisen from his prosecution of
their schemes. Returning thus from Richmond to Washington on the 3d of
April, he left the same evening, according to Wiechmann, for Canada.

Conover testified that he saw him in Montreal on the 6th or 7th of
April, in Mr. Thompson's room, and he learned from their conversation
that Surratt had just brought despatches from Richmond to Mr. Thompson.
One despatch was from Mr. Benjamin, the rebel Secretary of State,
and one, which Conover thought was a cipher despatch, from Jefferson
Davis. Conover had previously been solicited by Thompson to participate
in this work of assassination, and so was freely admitted to their
secret councils. After reading these letters from Davis and Benjamin,
Thompson, laying his hands on them, said, "This makes the thing all
right," referring to the assent of the rebel authorities. Mr. Lincoln,
Mr. Johnson, the Secretary of War, Mr. Stanton, and the Secretary
of State, Mr. Seward, Judge Chase, and General Grant were to be the
victims. Mr. Thompson said this would leave the government entirely
without a head; that there was no provision in the Constitution of the
United States by which they could elect another President if these men
were removed. The long waited for authority to use funds which the
rebel government had placed to the credit of Mr. Thompson having been
now secured in the despatch from Mr. Benjamin, and his chief, Jefferson
Davis, no time was lost in putting the ball in motion. Mr. Thompson
had over six hundred thousand dollars to his credit in the Ontario
Bank of Montreal, and within two days after receiving these letters,
he drew on his deposit for over two hundred thousand dollars. Conover
saw Surratt in Montreal from the 6th or 7th to the 9th of April, and
having been admitted to their confidence by Thompson, on his receiving
the despatches, was accepted by Surratt as being one of themselves, and
so he was under no restraint in conversing with Conover. From the whole
of his conversation Conover inferred that he was to take his part,
whatever that might be, in the conspiracy. We have already learned
from Merritt's testimony, that after Surratt's return to Canada on the
6th of April there was an immediate bustle amongst those in Canada who
were to go to Washington to take part in the plot, and that they began
to leave on the 8th. The sinews of war having been furnished, there was
great eagerness, expressed and apparent, to be off for the execution
of the plot, and great boasting on the part of those who went as to
what they were going to do. Having set their hired assassins in motion,
Thompson and his gang stood waiting in a great state of expectancy for
the result. Conover testified that on the day before, or the very day
of the assassination, he had a conversation with William C. Cleary
about the rejoicing in the States over the surrender of Lee and the
capture of Richmond. Cleary remarked that they "would put the laugh on
the other side of their mouths in a day or two." "The conspiracy was at
that time talked of amongst them about as freely as one would speak of
the weather."

Jefferson Davis received his first intelligence of the assassination
at Charlotte, N.C., on the 19th of April, in a telegram from General
Breckinridge, as follows:--

        "GREENSBORO', April 19, 1865.

    "_His Excellency President Davis_:--

    "President Lincoln was assassinated in the theatre at
    Washington on the night of the 11th inst. Seward's house was
    entered on the same night and he was repeatedly stabbed, and is
    probably mortally wounded.

        [Signed]
          "JOHN C. BRECKINRIDGE."

Davis received this telegram whilst haranguing in his grandiloquent
style the crowd that had gathered about him, trying to convince them
that they were not whipped, and would yet succeed. At the conclusion
of his speech, he read the telegram to his auditors; and after the
manifestations of delight at the news had subsided, he made this
comment: "Well, if it were done, it were better it were well done."

On the following day, when dining at the house of the witness, Mr.
Lewis F. Bates, with General Breckinridge, who had come to pay him a
visit, upon General Breckinridge saying in regard to the assassination
that he regretted it very much--that it was very unfortunate for
the people of the South at that time--Davis replied, "Well, General,
I don't know; if it were done at all, it were better that it were
well done; and if the same had been done to Andy Johnson, the beast,
and Secretary Stanton the job would then be complete." Mark the
disappointment of the man, and his bitter dissatisfaction with the
result of the plot to which he had so recently given his sanction! The
telegram informed him of the death of President Lincoln at the hands
of an assassin, and gave him strong grounds to conclude that Secretary
Seward had been put out of the way in the same way, and was dead; but
this does not satisfy him. The work had not been well done because
"Andy Johnson" still lived, and so they had failed in their purpose to
subvert the government. Hear him growl, "It were better it were well
done; and if the same had only been done to Andy Johnson, the beast,
and to Secretary Stanton, the job would then have been complete," and
we might have taken fresh courage. His co-conspirators in Canada, when
informed of the result, gnashed their teeth in rage and disappointment.
They expressed their regret that "the boys had not been allowed to act
when they wanted to," and swore "they were not done with them yet." At
first their attitude was that of defiance, and their expressions of
regret at their failure to completely carry out their plot were mingled
with threatenings as to what they would yet do. They boasted while the
trial was going on that they had their friends at court, and were kept
posted from day to day as to what was going on. The promptness of the
government in bringing its prisoners before a military commission for
trial, making it obvious that there was to be no fooling in the case,
together with their continued disasters in the field, ending in the
speedy collapse of the rebellion and the capture of Jefferson Davis,
brought them to their senses, and to a realization of their own danger;
and so they at once commenced to destroy all documentary evidence of
their guilt. They declared in the presence of Montgomery, and also of
Merritt, that they had destroyed all their papers, lest some Yankee
should steal them and they should be brought up in a possible future
trial as evidence against them.

Now, let us consider what is lacking in this testimony to make the
evidence of Davis's complicity in this crime complete. Nothing,
manifestly, but the letters referred to in the testimony; the first,
that read by Sanders, and credited by him to Davis, inciting his
friends in Canada to the commission of this crime, and pointing out
specifically whom he would have them put out of the way; and the
second, carried by Surratt to Thompson, on which Thompson laid his
hand and exclaimed, "This makes the thing all right!" But the absence
of this missing link in the chain of evidence against him is accounted
for, and that in a way that makes the chain even stronger, if possible,
than if we were able to produce these documents.

His co-conspirators in Canada declare to two witnesses and in the
presence of a third, George B. Hutchinson, that they have destroyed all
their papers; giving as the reason for so doing, the fear that some
"Yankee son of a b--h" might steal them, and they should be used as
evidence against them.

They burn their papers and then silently steal away. _Exeunt omnes._




CHAPTER XII.

THE GOVERNMENT WITNESSES AGAINST DAVIS AND HIS ASSOCIATES IN THIS CRIME.


Inasmuch as the testimony given above so completely sustains the charge
and specifications made by the government against Jefferson Davis,
George N. Sanders, Jacob Thompson, Beverly Tucker, Clement C. Clay,
William C. Cleary, _et al_, that had they been before the Commission
their successful defense could only have been made by impeachment of
the witnesses against them, I will now show that this could not have
been done. The principal witnesses in this department of the trial, in
which the Commission was only used as a medium through which to present
to the world, before whom the charges were made, the evidence on which
they rested, were Richard Montgomery, Sanford Conover, and Dr. James
B. Merritt. Richard Montgomery was originally a citizen of the city of
New York, and was in the employ of the government in its department
of secret service. He was sent to Canada, in the summer of 1864, to
acquire information of the plans and purposes of the rebels assembled
in Canada.

He acted faithfully toward the government in this service, imparting to
it all the information he obtained from time to time that was of any
importance.

He was a man of intelligence, good character, and was trusted by the
government. There was no attempt made before the Commission to impeach
his character for credibility. Of course the purpose of his mission to
Canada required him to gain the confidence of the men whose movements
he had been sent to watch, and a knowledge of whose plans and purposes
it was his duty to obtain. To do this it was necessary not only that
he should conceal from them his real character and mission, but that
he should be known to them as a man holding the same opinions and
actuated by the same purposes as themselves. To gain fully their
confidence was necessary to the success and usefulness of his mission.
This he could only do by making them believe that his sentiments
and purposes were in unison with their own. Of course this involved
duplicity and falsehood, yet it is held to be allowable in war, because
it may be made to contribute to success. A great deal of the strategy
in war consists in deceiving the enemy; and if it is ever allowable
by falsehood to deceive, it was certainly allowable by falsehood to
deceive those who were playing false to their government to accomplish
its overthrow. They were secretly concocting their schemes for the
accomplishment of this purpose; and to be forearmed against them, it
was necessary to be forewarned of them. This could only be done by this
kind of deception, which is the same in its nature as that practiced
by every spy. But spies are used by both parties to the conflict in
every war. War is in its very nature atrociously wicked; and so, its
ethics cannot be made to conform to the accepted morality that ought
to govern peaceful life. But whilst war is wicked and ought never to
be provoked, it is yet justifiable when it becomes necessary to the
preservation of the life of a nation. Upon the aggressor in this case
the responsibility belongs. On him the guilt falls. A defensive war is
always justifiable; and so, according to the code of military ethics,
everything that is necessary to its successful prosecution is also
justifiable. This secret service department has always been considered
one of these indispensable necessities; and it has never been regarded
as a just ground of impeachment of a man's character for truthfulness
and honesty that he has been found engaged in this kind of service.
Indeed the very nature of the duties of this service call for a man of
sterling integrity, in order that the information obtained through him
may have the quality of reliability.

That Richard Montgomery succeeded fully in gaining the confidence of
these Canada rebels is shown by the fact that they made him a medium
of communication between themselves and the Richmond government. His
character is further shown by the fact that when they paid him one
hundred and fifty dollars for carrying despatches to Richmond he
credited the government with it on his expense account. And that he
acted faithfully in the discharge of his duties to his government is
shown by the fact that he always submitted the despatches sent by
him to the authorities at Washington, where copies of them were kept
when they were allowed to pass. This is sufficient evidence that he
was in a position to learn the facts to which he testified, and also
presumptive evidence of the credibility of his statements. The force of
his evidence could only have been broken by undoubted proof that he was
a man that could not be believed under oath.

Dr. James B. Merritt was a native of Canada by accident, having been
born there whilst his parents were there on a visit, but had been all
his life a citizen of the State of New York. He went to Canada in the
spring of 1864, and practiced his profession at Windsor and Dumfries.
He passed amongst the rebels in Canada as a sympathizer of the Southern
cause, and was accepted by them as a good rebel, and was fully taken
into their confidences. They talked freely to him, and revealed their
plans to him without hesitation or reserve. His testimony, as we
have seen, is very specific, and relates to facts of the greatest
importance. He testified that his sympathies had always been with his
government, and that his object in dissembling in his intercourse with
the Canada rebels was to be able to impart information to the United
States government when he deemed it of sufficient importance to justify
or require its communication.

That he did thus voluntarily, and without compensation, furnish
valuable information to the government was shown. He had thus
communicated to the Provost Marshal at Detroit the plot to burn New
York City. It was also shown that he had made an effort to communicate
the knowledge he had obtained, after the meeting of the 6th of April,
at which John H. Surratt delivered to Thompson the despatches he had
brought from Richmond, as to the parties starting from Canada to
Washington to assist in the work of assassination. There was sufficient
evidence of his loyalty and usefulness to the government, and his
credibility was not assailed. He was a self-constituted secret service
man, working without compensation, and so entitled to all the more
honor.

Sanford Conover, known to the conspirators as James Watson Wallace,
was born and educated in New York City. He had been living in the
South for five or six years when the rebellion broke out, and was
conscripted into the rebel service from near Columbia, S.C., early
in 1863, but was detailed and served as a clerk in the rebel war
department at Richmond for six months. His sympathies being on the side
of the Union, he embraced the first good opportunity he could find
to desert, and ran the blockade from Richmond, walking most of the
way. He rode on the cars as far as Hanover Junction, and then walked
up through Snickersville to Charlestown, and from there to Harper's
Ferry, and so on to Washington, reaching there in the latter part of
December, 1863. Whilst in Washington he became a correspondent of the
New York _Tribune_, and went to Canada in that capacity in October,
1864. He testified that he received compensation from the _Tribune_ for
his services as correspondent, but had never received anything from
either the United States or the Confederate government, and that his
sympathies had always been with the Union cause. The fact that he was
not willing to remain in the safe and easy position of a clerk in the
rebel war department, but chose rather to take the hazard of deserting,
fully confirms his sworn statements as to his political sympathies. He
also was a self-constituted secret service agent of the United States,
serving without pay. He seems to have been peculiarly successful in
working himself into the confidence of Davis's agents in Canada, who
admitted him to their conferences and revealed fully and freely to him
all of their plans. His testimony is specific and conclusive as to
their guilt. After he had testified before the Commission he was sent
back to Canada by the Judge Advocate General to get the official report
of the St. Albans trial, to be used in evidence. Arriving in Montreal,
he was received in the most friendly manner by the conspirators,
who had not the least idea that he had been a witness before the
Commission, and so they went on with their confidences as to what they
would yet do, declaring they were not done yet, etc. But after he
had been there a day or two, his testimony, which had hitherto been
withheld, was published in the New York papers, and this revealed to
them the fact that Sanford Conover was their James Watson Wallace.

Of course they were like demons in their rage when they saw that he had
revealed all of their doings. He was at once virtually made a prisoner
by twelve or fifteen men armed to the teeth, who confronted him with
his testimony before the Commission. Conover found himself suddenly
and unexpectedly placed in a situation of great difficulty and danger,
escape being impossible, and so he denied that he had been before the
Commission as a witness.

They then required him to make a denial under oath, and set a lawyer
at work to put this disavowal in the most imposing shape, whilst they
sent for an officer to administer the oath, informing Conover that he
must appear to the officer not only to be willing, but anxious to swear
to this disclaimer, in which they make him say he had been personated
before the Commission by some infamous scoundrel, who had sworn to a
tissue of falsehoods, and telling him that if he manifested the least
hesitation or unwillingness his life would pay the forfeit. He at
first, in order to get away from them, proposed that he would go to the
hotel and prepare the paper that they required. O'Donnell told him that
would not do, and that he would shoot him down like a dog if he did
not do as they required. Conover still declining, Sanders said to him,
"Wallace, you see what kind of hands you are in; I hope you will not be
so foolish as to refuse." Seeing there was no other way of escape from
them, Conover finally did what they required. They then had a lawyer,
by the name of Kerr, to write out and sign and be qualified to a very
formal affidavit covering the whole case, to the effect that he was
present and saw Conover swear to the disavowal referred to, and that
he did it willingly, and appeared anxious to do so, in justice to his
own character. These affidavits they at once published to the world
through the Canada papers, and with them also published the following
advertisement, as if from Conover:--

    Five hundred dollars reward will be given for the arrest, so
    that I can bring to punishment, in Canada, of the infamous and
    perjured scoundrel who recently personated me under the name of
    Sanford Conover, and deposed to a tissue of falsehoods before
    the Military Commission at Washington.

        JAMES W. WALLACE.

They also wrote and published over his name, as if from him, the
following letter:--

    _To the Editor of the Evening Telegraph:--_

    Sir:--Please publish my affidavit now handed you, and the
    subjoined advertisement. I will obtain and furnish others for
    publication hereafter. I will add that if President Johnson
    will send me a safe conduct to go to Washington and return
    here, I will proceed thither and go before the military court
    and make _profert_ of myself, in order that they may see
    whether or not I am the Sanford Conover who swore as stated.

        MONTREAL, June 8th, 1865.
          JAMES W. WALLACE.

Conover not returning to Washington at the time he was expected, it was
realized that he had been put in jeopardy by the premature publication
of his testimony, and so it became the duty of the United States to
follow him with its protecting arm, and he was rescued through the
intervention of General Dix.

Being thus rescued, he came again before the Commission and testified
circumstantially to all of the above facts, and thus exposed the
effort of the conspirators to break the force of his testimony by an
affidavit extorted by violence whilst he was virtually a prisoner, and
supported by that of Kerr, who may not have known that he testified to
a falsehood, as the coercion was used before he was sent for, and still
held over the head of Conover by the threat that if he manifested the
least hesitation or unwillingness before Kerr his life would pay the
forfeit. The testimony of Conover as to the circumstances under which
this affidavit was extorted from him, was substantiated, as also his
character, by Nathan Auser, who testified as follows:--

"I reside in New York, and am acquainted with Sanford Conover, who has
just testified. I have known him eight or ten years; his character
for integrity and usefulness is good as far as I know. I recently
accompanied him to Montreal, in Canada, and was present at an interview
which he had with Beverly Tucker, George N. Sanders, and that clique of
rebel conspirators.

"After we went into O'Donnell's room, at Montreal, Mr. Cameron gave
each of us a paper containing the evidence Mr. Conover gave here in
Washington before the Commission, when he denied it. They told him he
must sign a written paper to that effect, and if he did not he would
not leave the room alive. O'Donnell said that he would shoot him like
a dog if he did not. Mr. Conover was first going to his hotel to write
the paper; at first they agreed to this, but when they got as far as
St. Lawrence Hall they made up their minds they would not let him do
this himself, and when they went upstairs at St. Lawrence Hall they
would not let me go up. There were, I think, twelve or fifteen of the
conspirators together; among them Sanders, Tucker, O'Donnell, General
Carroll, Pallen, and Cameron. They all accompanied him for the purpose
of preventing his escape and obliging him to do what they required."

Thus was their attempt to break the force of Conover's testimony by
fraud and violence exposed, and they were left in a more pitiable
condition than if they had not made the effort. Conover stands in a
better light as a witness than he did before it was made.

The question will naturally suggest itself to the intelligent reader,
why, if these men knew of the purpose and preparations referred to as
the result of the reception of the despatches from Richmond at the
hands of Surratt, did they not inform the authorities at Washington?
Accepting the fact that they had all the knowledge on this subject
which is implied in their testimony, and that they were loyal to the
government, as they declared themselves to be under oath, this would
seem plainly to have been their duty.

The counsel for the defense were not slow to perceive this fact, and
sought to weaken their standing before the Commission by asking them
this very question. The answers elicited, however, only served to
strengthen their testimony. In answer, Dr. Merritt stated as follows:
"On Saturday the 8th of April I was at Galt, five miles from which
place Harper's mother lives, and I ascertained there that Harper and
Caldwell had stopped there and had started for the States. When I found
they had left for Washington, probably for the purpose of assassinating
the President, I went to Squire Davidson, a justice of the peace, to
give information and have them stopped.

"He said that the thing was too ridiculously or supremely absurd
to take any notice of; it would only appear foolish to give such
information and cause arrests to be made on such grounds; it was so
inconsistent that no person would believe it; and he declined to issue
any process. I then called upon the judge of the court of assizes,
made my statement to him, and he said I should have to go to the grand
jury."

In his answer it is made to appear that Dr. Merritt made an earnest
effort to have this information imparted to the government, and did all
that we can reasonably think that he ought to have done.

His testimony is corroborated by that of Squire Davidson, who made a
statement to the government after the assassination, of this interview
that Merritt had sought with him and of the purpose of it; and it
was upon this information that Dr. Merritt was brought before the
Commission as a witness.

In answer to this question, Conover testified as follows: "I
communicated to the New York _Tribune_ the contemplated assassination
of the President, and the intended raid on Ogdensburg. The
assassination plot they declined to publish because they had been
accused of publishing sensational stories. The assassination plot I
communicated in March last, and also in February, I think,--certainly
before the 4th of March. My reasons for communicating the intended
assassinations to the _Tribune_, and not directly to the government,
was that I supposed that the relations between the editor and
proprietor of the _Tribune_ and the government were such that they
would lose no time in giving information on the subject. In regard
to the conspiracy, as well as to some other secrets of the rebels in
Canada, I requested Mr. Gay, of the _Tribune_, to give information to
the government, and I believe he has formerly done so."

Here again we find that the witness Conover fulfilled his duty, which,
under the circumstances in which his testimony places him in regard
to the matter, any reasonable man could have required of him. And his
position was also strengthened before the Commission by the answer
elicited.

Lewis F. Bates, who testified as to Jefferson Davis's remarks to his
auditors on reading to them the telegram from General Breckinridge,
informing him of the assassination of the President, etc., and of
his remarks to General Breckinridge on the following day at the
dinner table, was a resident of Charlotte, N.C., where he had been
for a little over four years. He was superintendent of the Southern
Express Company for the State of North Carolina. He was a native of
Massachusetts. The responsible position in which we find him vouches
for his standing as a reliable man amongst those who knew him. His
character was further established before the Commission by the
testimony of a witness who was acquainted with him, James E. Russell,
as follows: "I reside in Springfield, Mass. I have known Lewis F. Bates
for about twenty-five years. For the last five years I have not known
anything of his whereabouts, until I learned from him that he had been
living in Charlotte, N.C. He was in business as a baggage-master on the
Western Railroad, Massachusetts, while I was conductor, and I never
heard anything against his reputation for truth."

Burton N. Harrison, private secretary to Jefferson Davis, in an article
entitled, "An Extract from a Narrative, written not for publication,
but for the entertainment of my children only," published in the
_Century Magazine_, New Series, Vol. V., pp. 136 and 137, says: "In
pursuance of the scheme of Stanton and Holt to fasten upon Mr. Davis
charges of a guilty foreknowledge of, and participation in, the murder
of Mr. Lincoln, Bates was afterwards carried to Washington and made to
testify (before the military tribunal, I believe, where the murderers
were on trial) to something about that speech [referring to Davis's
speech at Charlotte, N.C.]. As I recollect the reports of the testimony
published at the time, they made the witness say that Mr. Davis had
approved of the assassination, either explicitly or by necessary
implication; and that he added, 'If it was to be done it is well it was
done quickly,' or words to that effect. If any such testimony was given
it is false and without foundation; no comment upon or reference to the
assassination was made in that speech. I have been told the witness has
always stoutly insisted he never testified to anything of the kind, but
that what he said was altogether perverted in the publication made by
the rascals in Washington. Col. William Preston Johnston tells me he
has seen another version of the story, and thinks Bates is understood
to have fathered it in a publication made in some newspaper after his
visit to Washington; it represents Bates as saying that the words above
mentioned as imputed to Mr. Davis were used by him, not, indeed, in
the speech I have described, but in a conversation with Johnston at
Bates's house. Johnston assures me that, in that shape, too, the story
is false; that Mr. Davis never used such words in his presence, or
any words at all like them. He adds that Mr. Davis remarked to him at
Bates's house, with reference to the assassination, that Mr. Lincoln
would have been much more useful to the Southern States than Andrew
Johnson, the successor, was likely to be; and I myself heard Mr. Davis
express the same opinion at that period." On p. 145, same article, he
says: "It was at that cavalry camp we first heard of the proclamation
offering one hundred thousand dollars for the capture of Mr. Davis upon
the charge, invented by Stanton and Holt, of participation in the plot
to murder Mr. Lincoln. Colonel Pritchard had himself just received it,
and considerately handed a printed copy of the proclamation to Mr.
Davis, who read it with a composure unruffled by any feeling other than
scorn. The money was several years afterwards paid to the captors.
Stanton and Holt, lawyers both, very well knew that Mr. Davis could
never be convicted upon an indictment for treason, but were determined
to hang him anyhow, and were in search of a pretext for doing so."
And again in conclusion he says, "To have been a prisoner in the
hands of the government of the United States, and not to have been
brought to trial upon any of the charges against him, is sufficient
refutation of them all. It indicates that the people in Washington
knew the accusations could not be sustained." Had Mr. Harrison adhered
to his original purpose of simply entertaining his children with this
article it would have been much to his credit. It seems, however, that
upon reading and re-reading it he came to regard it as too clever a
production, and of too much public importance, to be restricted to so
narrow a sphere, and so he publishes this lengthy extract from it in
the _Century_. The article, as it appears in the _Century_, is mostly
devoted to an account of the flight of Mr. Davis and his family from
Richmond, and their progress southward until captured.

We have simply extracted from this article that part which from the
nature of the subject claims our attention, as it relates to the
testimony of Lewis F. Bates before the Commission. Let us first notice
Mr. Harrison's assumption that Secretary Stanton and General Holt had
concocted a scheme to fasten on Jefferson Davis a guilty complicity in
the murder of Mr. Lincoln. This charge Mr. Harrison makes with brazen
effrontery, but does not bring a scintilla of evidence to sustain it.
Here are two high officers of the government,--the Secretary of War,
and the head of the Department of Military Justice,--men of unsullied
personal and official reputation, charged with concocting a scheme to
take the life of Jefferson Davis on a trumped-up charge, and sustained
by false testimony. The Secretary of War, as was his duty, employed
every agency in his power to ferret out the conspirators, and in the
progress of his investigations turned over to the Judge Advocate
General all the facts that came to his knowledge, together with the
names of the persons by whom they could be proven. These persons were
brought before the Judge Advocate and carefully examined as to what
they knew, and so became witnesses before the Commission, when they
were found to have knowledge of facts bearing on the great crime that
had been committed.

That any witness was in any manner coerced, or required to render
testimony that had been prepared for him by these officers as charged,
will only be believed by those who are ignorant of the personal
and official character of these noble, patriotic, men, or those
who, like Mr. Harrison, are willing to thus calumniate on their own
responsibility. That Mr. Bates was testifying under any manner of
duress will not be believed by any member of the Commission who is yet
living, and who can recall the appearance and manner of the witness
in giving his testimony. He was evidently telling just what he had
seen and heard, and did it willingly. The charge of Mr. Harrison, that
Bates was carried to Washington and made to testify, rests simply on
the authority of Mr. Burton N. Harrison, whilom private secretary to
Jefferson Davis, unsustained by any evidence.

The evidence given by Bates was taken down, as delivered, by a
stenographer, and read to him before he was discharged, and its
correctness admitted by him, as witnessed by his signature. This
testimony was published in the newspapers, and also in the official
record of the trial. What excuse, then, can Mr. Harrison give for
quoting it as he recollected it, and so failing to give anything like a
correct version of his testimony?

The testimony of Bates was that Mr. Davis, whilst addressing the people
from the steps of Bates's house, received a telegram from General
Breckinridge informing him of the assassination of President Lincoln,
and that an attempt had been made on the life of William H. Seward,
and that he was repeatedly stabbed and probably mortally wounded,
and that in concluding his speech he read the telegram aloud, and
made this remark, "If it were to be done it were better it were well
done." The witness added, "I am quite sure that these are the words he
used." And again, "A day or two afterward Jefferson Davis and John C.
Breckinridge were present at my house, when the assassination of the
President was the subject of conversation. In speaking of it, John C.
Breckinridge remarked to Davis that he regretted it very much, that it
was very unfortunate for the people of the South at that time. Davis
replied, 'Well, General, I don't know; if it were to be done at all,
it were better that it were well done, and if the same had been done
to Andy Johnson, the beast, and to Secretary Stanton, the job would
then be complete.' No remark was made at all as to the criminality
of the act, and from the expression used by John C. Breckinridge I
drew the conclusion that he simply regarded it as unfortunate for
the people of the South at that time." Here is Bates's testimony as
it stands recorded, and was also published at the time.[6] Why did
not Mr. Harrison address himself to this testimony instead of giving
his version of it from memory, and confounding it with newspaper
reports as to what Bates claimed to have been his testimony, and thus
finding an opportunity to substitute Col. William P. Johnston for
General Breckinridge, thus contradicting it through Johnston? General
Breckinridge was the only man who could have contradicted Bates's
testimony. If he ever did do this it has not come to the knowledge
of the writer. Bates's testimony cannot be set aside in the manner
attempted by Mr. Harrison.

The charge made by the government on that trial against Jefferson Davis
of inciting and encouraging the assassins, implicating him thus far in
the murder of Mr. Lincoln, was only made upon the evidence before it,
and which we have already presented at length.

It was not a trumped-up charge for the purpose of gratifying malice, or
with a view to the taking of the life of Mr. Davis unjustly in revenge,
but a charge made in good faith, and sustained by evidence that has
never been overthrown.

The conclusion of Mr. Harrison, that the government conceded that its
charge against Mr. Davis was unfounded in that it did not prosecute it
when it had him in custody as a prisoner, is a _non sequitor_.

The rebellion was declared to be at an end shortly after the trial
of the assassins. The proclamation of martial law ceased with the
proclamation of peace. Civil law took the place of martial law with
the issuance of the proclamation that the rebellion was at an end.
The work of reconstruction belonged to the political department of
the government, and the benign policy of condoning the past, and only
securing guarantees for the future was wisely adopted; this security is
found in the fourteenth amendment to the Constitution, and illustrates
the tempering of justice with mercy as had never been before done in
the history of the race. It can never be claimed that the government
abandoned its charge made against any of these parties because it did
not bring them to trial when it had it in its power to do so. The
charges as made have never been withdrawn. They stand in the records
of that trial, and the evidence on which the charges were based has
been presented to the world and the question of the guilt or innocence
of the parties has been referred to the decision of an enlightened and
impartial public sentiment and to the judgment of the world.

But we will now consider the credibility of this testimony from another
standpoint. Here we have three witnesses,--Conover, Montgomery, and
Merritt,--strangers to each other, testifying as to the facts known
to each one separately, and they completely corroborate each other.
There could have been no possible collusion, and yet their testimony
is the same. It is, as it were, the continued story of one man,
who is consistent with himself at every point. The purposes of the
conspirators and their plans through a period of several months are
the same, whether they come to us through Conover, Montgomery, or
Merritt. "Out of the abundance of the heart the mouth speaketh." The
assassination plot was that which engrossed their thoughts. They were
continually scheming for its accomplishment; it was the thing dear to
their hearts and was the constant theme of their tongues.

The witnesses corroborate each other in showing that this was the case.
In regard to the fact testified to by both Montgomery and Merritt,
that the conspirators stated they were destroying their papers, we
have the additional testimony of George B. Hutchinson, who testified
as follows: "On the 2d of June, and on the morning of the 3d, 1865, I
saw Dr. Merritt in conversation with Beverly Tucker, at St. Lawrence
Hall, in Montreal. I heard Beverly Tucker say in reply to a remark of
Dr. Merritt, that he had burned all the letters for fear that some
'Yankee son of a b--h' might steal them out of his room and use them in
testimony against him. They were at the time speaking about this trial,
and the charges against them. They were talking to Dr. Merritt as to
one to whom they gave their confidence."

Who, in the light of all the facts given in this testimony, which
fulfills all the conditions, on down to the crucial test of
credibility--that of the concurrence of three witnesses, who were
entire strangers to each other, in the statement of all the essential
facts--can doubt that all these men implicated in the charge and
specifications preferred by the government were equally guilty
with John H. Surratt and John Wilkes Booth of the assassination
accomplished, and that attempted; as, also, of the others planned. It
matters not that for good and sufficient reasons they were never called
to account by the government, when it had it in its power to do so;
they yet stand, and must forever stand, condemned by an intelligent and
candid world. If their guilt is not proven I do not see how it would be
possible to prove anything.




CHAPTER XIII.

A CRITICISM OF NICOLAY AND HAY.


Nicolay and Hay in their "Life of Lincoln" (see _Century Magazine_
for January, 1890, p. 439), say: "The surviving conspirators, with
the exception of John H. Surratt, were tried by a military commission
sitting in Washington in the months of May and June.

"The charges against them specified that they were 'incited and
encouraged' to treason and murder by Jefferson Davis and the
Confederate emissaries in Canada. This was not proven on the trial;
the evidence bearing on the case showed frequent communication between
Canada and Richmond and the Booth coterie in Washington, and some
transactions in drafts at the Montreal Bank where Jacob Thompson and
Booth kept their accounts. It was shown by the sworn testimony of a
reputable witness that Jefferson Davis at Greensboro', on hearing
of the assassination, expressed his gratification at the news; but
this, so far from proving any direct complicity in the crime, would
rather prove the opposite, as a conscious murderer usually conceals
his malice. Against all the rest, the facts we have briefly stated
were abundantly proved," etc. In a foot-note they add: "When captured
by General Wilson he (Jefferson Davis) affected to think he cleared
himself of suspicion in this regard by saying that Johnson was more
objectionable to him than Lincoln--not noticing that the conspiracy
contemplated the murder of both." From this there would seem to have
been some doubt in the mind of the writer on the question of Davis's
innocence. Again, they say: "Davis, in speaking to General Wilson
about this charge, said that he regarded the charge of treason as
likely to give him more trouble than this." Of course he relied on the
sagacity of his co-conspirators in Canada for the destruction of all
documentary evidence against him, and so he felt that his guilt could
not be proven. The writer has the highest regard for these authors, and
a very high appreciation of the manner in which they have handled their
great subject. The history of several of the last years of the life of
Abraham Lincoln is inseparably linked with the history of his country,
and that the most momentous period of its history. To do justice to the
subject of their memoir required a vast amount of the most painstaking
research, and a general overhauling of the political history of the
country over a period of a dozen or more years.

This was a work of great labor, involving a careful examination
of a multitude of documents and records. They had that familiar,
personal acquaintance with Mr. Lincoln, growing out of their official
relations to him, that enables them to form a correct estimate of his
intellectual and moral character, and of the innermost feelings and
governing motives of his life. They have done their work faithfully
and well, and have presented Mr. Lincoln in his true character, and
made manifest his wonderful astuteness, his wisdom, forbearance,
charity, gentleness, and toleration toward his fellowmen, as well as
his _firmness_ and fidelity to the right, to the gaze of an admiring
world. It is with feelings of regret that faithfulness to my purpose
of giving a true history of the great conspiracy which culminated in
his death requires me to take issue with them in their treatment of
this case. It will be evident to all my readers who have read and
carefully considered the evidence presented by the government to
sustain its charge against Jefferson Davis and his confederates in
Canada, that authors who were familiar with it could never have come to
the conclusion so confidently expressed by these authors when they say,
"This was not proved on the trial." The abstract of the evidence which
they then proceed to give, shows an equal degree of unfamiliarity with
it. It consists merely in a confused jumbling of a few comparatively
unimportant facts, leaving unnoticed and untouched the great mass of
relevant and conclusive testimony that I have presented. The account
which they give of the manner in which Davis received the news of
the assassination does not consist at all with the testimony. They
say: "It was shown by the sworn testimony of a reputable witness
that Jefferson Davis at Greensboro', on hearing of the assassination,
expressed his gratification at the news; but this, so far from proving
any direct complicity in the crime, would rather prove the opposite, as
a conscious murderer usually conceals his malice."

Jefferson Davis received the news of the assassination at Charlotte,
not at Greensboro'. Breckinridge telegraphed the news to him from
Greensboro'. It is the testimony of Lewis F. Bates to which they
refer. But my readers, who have so lately read Mr. Bates' testimony,
I am sure will not recognize it in the account which these authors
give of it; and as they have failed in giving us a true account of the
testimony, we cannot wonder if they draw an erroneous conclusion from
it inferentially. It will be remembered that all the expressions that
escaped from the rebel chief on that occasion were those of deep-felt
dissatisfaction and bitter disappointment. A free rendering of his
language on that occasion would amount to just this: "It might just as
well not have been done at all, since the job was not thoroughly done.
If Andy Johnson, the beast, and Stanton had only been included, the job
would then have been complete. It would have been of some account to
us." His whole speech and demeanor on that occasion show him to have
been a co-conspirator, fully aware of the scope of their plot, and
displeased at the incompleteness of the "job."

Again, on page 432 of the _Century_ for January, 1890, we find the
following: "He (Booth) was a fanatical secessionist; had assisted at
the capture of John Brown, and had imbibed, at Richmond and other
Southern cities where he had played, a furious spirit of partisanship
against Mr. Lincoln and the Union party.

"After the re-election of Mr. Lincoln, which rung the knell of the
insurrection, Booth, like many of the secessionists North and South,
was stung to the quick by disappointment. He visited Canada, consorted
with the rebel emissaries there, and at last--whether or not at their
instigation cannot certainly be said--conceived a scheme to capture
the President and take him to Richmond. He spent a great part of the
autumn and winter inducing a small number of loose fish of secession
sympathies to join him in this fantastic enterprise. He seemed always
well supplied with money, and talked largely of his speculations in
oil as a source of income; but his agent afterwards testified that
he never realized a dollar from that source--that his investments,
which were inconsiderable, were a total loss. The winter passed away,
and nothing was accomplished. On the 4th of March, Booth was at the
capitol, and created a disturbance by trying to force his way through
the line of policemen who guarded the passage through which the
President passed to the east front of the building. His intentions
at this time are not known. He afterwards said he lost an excellent
chance of killing the President that day. There are indications in the
evidence given on the trial of the conspirators that they suffered some
great disappointment in their schemes in the latter part of March;
and a letter from Arnold to Booth, dated 27th March, showed that some
of them had grown timid of the consequences of their contemplated
enterprise, and were ready to give it up. He advised Booth, before
going farther, to go and see how it would be taken at R----d. But timid
as they might be by nature, the whole group was so completely under
the ascendency of Booth that they did not dare disobey him when in his
presence; and after the surrender of Lee, in an excess of malice and
rage which was akin to madness, he called them together and assigned
each his part in the _new crimes_ [the italics are ours], the purpose
of which had arisen suddenly in his mind out of the ruins of the
abandoned abduction scheme. This plan was as brief and simple as it was
horrible. Powell, _alias_ Payne, the stalwart, brutal, simple-minded
boy from Florida, was to murder Seward; Atzerodt, the comic villain of
the drama, was assigned to remove Andrew Johnson; Booth reserved for
himself the most difficult and most conspicuous role of the tragedy; it
was Herold's duty to attend him as a page, and aid in his escape."

In this rather long extract, in which the situation is pictured with a
facile pen, there are two assumptions that are wholly irreconcilable
with the evidence.

The first is, that the plot was at first to capture the President and
carry him to Richmond, whether with or without the approbation of the
Canada conspirators, our author's assume cannot be known.

The evidence does not show that such a plot was really entertained
either by Booth or his co-conspirators in Canada. Conover testified
that he heard this scheme discussed at a meeting of the latter
in February; but it does not appear that it was ever considered
practicable, or was really entertained by them. The proposition was too
quixotic to receive the serious consideration of rational, intelligent
men. All the testimony in regard to the Canada conspirators shows that
they were all the time from October, 1864, devoting all their thoughts
to securing the assassination, not only of the President, but also of
the others named in the charge and specifications, and that by nothing
but the assassination of all of these men could the political end which
they sought be secured. This assumption of our authors is shown by the
testimony to be wholly untenable. The next assumption to which I take
exceptions is equally untenable in the light which the testimony throws
on the subject. It is, that the assassination was the result of a hasty
impulse of rage and disappointment, akin to madness; that a new crime
was thus conceived, which grew out of the ruins of the abduction plot,
which I have already sufficiently shown was never entertained by any
of the parties. So far from being the result of a hasty impulse, the
testimony clearly proves that it had been long entertained, and that
they had all been planning, preparing, and arranging for its execution
for months.

It is greatly to be regretted that such popular, and usually reliable,
authors, should have allowed themselves on this occasion to write thus
loosely, and express opinions and conclusions so much at variance with
the testimony. It tends to obscure the truth of history, and to the
formation of an erroneous public opinion.

The conclusion at which I have arrived, and expressed without
hesitation, as to the guilt of Davis and his Canada Cabinet in this
matter, stands untouched by that expressed by these authors, because
it is manifest that they not only had never studied, but were quite
unfamiliar with, the evidence on which alone a right judgment can be
based.

All I ask of my readers is, that they will scan carefully what I have
given as having been fairly deduced from the testimony before the
Commission, or to study the testimony itself as given in Pittman's
official report of the trial, and then judge between us.




CHAPTER XIV.

JACOB THOMPSON'S BANK ACCOUNT. WHAT BECAME OF THE MONEY?


The testimony before the Commission developed the fact that the Canada
Cabinet was kept well supplied with money, and that Jacob Thompson was
the Judas that carried the bag.

His treasury was kept replenished by Southern bills of exchange on
Liverpool. Robert Anson Campbell, first teller of the Ontario Bank of
Montreal, Canada, appeared before the Commission and gave testimony as
to Thompson's transactions with his bank as follows: "I know Mr. Jacob
Thompson very well. His account with the Ontario Bank I hold in my
hand. It commenced May 30th, 1864, and closed April 11th, 1865. Prior
to May 30th, he left with us sterling exchange, drawn on the rebel
agents at Liverpool, for collection. The first advice we had was May
30th, when there was placed to his credit £2,061 17_s._ and 1-1/2_d._,
and £20,618 11_s._ 4_d._, amounting to $109,965.63. The aggregate
amount of the credits is $649,873.28, and there is a balance still left
to his credit of $1,766.23; all the rest has been drawn out. Since
about the 1st of March he has drawn out $300,000, in sterling exchange
and deposit receipts. On the 6th of April last there is a deposit
receipt for $180,000. The banks in Canada give deposit receipts, which
are paid when presented, upon fifteen days notice. On the 8th of April
he drew a bill of £446 12_s._ 1_d._, and on the same day £4,000,
sterling. On the 24th of March he drew $100,000 in exchange; at another
time, $19,000. This sterling exchange was drawn to his credit, and also
the deposit receipts.

"Mr. Jacob Thompson has left Montreal since the 14th of April last. I
heard him say he was going away. He used to come to the bank two or
three times a week, and the last time he was in he gave a check to the
hotel keeper, which I cashed, and he then left the hotel. His friends
stated to me that he was going to Halifax, overland. Navigation was not
open then, and I was told he was going overland to Halifax, and thence
to Europe. I thought it strange at the time that he was going overland,
when by waiting two weeks longer he could have taken a steamer; and
it was talked of in the bank among the clerks. The account was opened
with Jacob Thompson individually. The newspaper report was that he was
financial agent of the Confederate States. We only knew that he brought
Southern sterling exchange bills, drawn on Southern agents in the old
country, and brought them to our bank for collection. How they came
to him we did not know. He was not, as far as I know, engaged in any
business in Canada requiring these large sums of money.

"He had other large money transactions in Canada. I knew of one
transaction of $50,000, that came through the Niagara District Bank, at
St. Catherines, a check drawn to the order of Mr. Clement C. Clay, and
deposited by him in that bank; they sent it to us, August 16th, 1864,
to put to their credit.

"Thompson has several times bought from us United States notes or
greenbacks. On August 25th he bought $15,000 in greenbacks, and on
July 14th, $19,125. This was the amount he paid in gold, and at that
time the exchange was about 55. I could not say what the amount of
greenbacks was, but that is what he paid for it in gold. On March 14th
last he bought $1,000 worth of greenbacks at 44-3/4, for which he
paid $552.20 in gold. On the 20th of March he bought £6,500 sterling
at 9-1/2. He also bought drafts on New York in several instances. J.
Wilkes Booth, the actor, had a small account at our bank. I had one
or two transactions with him, but do not remember more at present. He
may have been in the bank a dozen times; and I distinctly remember
seeing him once. He has still left to his credit $455, arising from a
deposit made by him, consisting of $200, in $20 Montreal bills, and
Davis's check on Merchant's Bank of $255. Davis is a broker, who kept
his office opposite the St. Lawrence Hall, and is, I think, either from
Richmond or Baltimore.

"When Booth came into the bank for this exchange he bought a bill of
exchange for £61 and some odd shillings, remarking, 'I am going to run
the blockade, and in case I should be captured can my capturers make
use of the exchange?' I told him they could not unless he endorsed the
bill, which was made payable to his order. He then said he would take
$300, and pulled out that amount, I think, in American gold. I figured
up what $300 would come to at the rate of exchange. I think it was
9-1/2, and gave him a bill of exchange for £61 and some odd shillings."

The bills of exchange found on Booth's body at the time of his capture
were here exhibited to the witness, who said, "These are the Ontario
Bank bills of exchange that were sold to Booth, bearing date October
27th, 1864."


_Testimony of Daniel S. Eastwood._

THE BEN WOOD DRAFT.

The following is the testimony of Daniel S. Eastwood, in regard to
Jacob Thompson's bank account, and serves to account for $25,000 of his
expenditures: "I am assistant manager of the Montreal branch of the
Ontario Bank, Canada. I was officially acquainted with Jacob Thompson,
formerly of Mississippi, who has for some time been sojourning in
Canada, and have knowledge of his account with our bank, a copy of
which was presented to this Commission by Mr. Campbell, our assistant
teller.

"The moneys to Mr. Thompson's credit accrued from the negotiation
of bills of exchange, drawn by the secretary of the treasury of
the so-called Confederate States on Frazier Trenholm & Company, of
Liverpool. They were understood to be the financial agents of the
Confederate States at Liverpool, and the face of the bills, I believe,
bore that inscription. Among the dispositions made from that fund,
by Jacob Thompson, was $25,000 paid in accordance with the following
requisition:--

    4329.
        MONTREAL, Aug. 10th, 1864.

    Wanted from the Ontario Bank, 3 days' sight,
      On New York,
        Favor of BENJAMIN WOOD, Esq.

        $25,000
    For ------- current funds.
        $10,000
    Deliv. 60 p. c.
    Ex. $15.00

    A. M.

"The '$10,000' underneath the $25,000 is the purchase money in gold of
$25,000 worth of United States funds.

"At Mr. Thompson's request the name of Benjamin Wood was erased (the
pen being just struck through it), and my name as an officer of the
bank written immediately beneath it, that the draft might be negotiable
without putting any other name to it.

"I have in my hand, it having been obtained from the cashier of the
City Bank in New York, the original draft for the $25,000 on which that
requisition was made by Mr. Thompson, in the name of Benjamin Wood. It
reads:--

    $25,000.              THE ONTARIO BANK.              No. 4329.

        MONTREAL, 10th of August, 1864.

    At three day's sight please pay to the order of D. S.
    EASTWOOD, in current funds, twenty-five thousand dollars
    value received, and charge the sume to account of this branch.

    +----------+
    |  U. S.   |       To Cashier City Bank,       H. Y. STANUS,
    | Internal |            New York.                 _Manager._
    | Revenue  |
    |  2 cent  |                          INDORSED.
    |  Stamp.  |
    +----------+    Pay to Hon. BENJAMIN WOOD, Esq., or order.
                         D. S. EASTWOOD.
                         B. WOOD.

"I have found this draft in the hands of the payee of the City Bank
in New York, and I understand from the cashier it has been paid. Mr.
Thompson was frequently in the habit of drawing moneys in the name of
an officer of the bank, so as to conceal the person for whom it was
really intended.

"A good deal of Thompson's exchange was drawn in that way, so that
there is no indication, except from the bank or the locality on which
the bill was drawn, to show where use was made of the funds. Large
amounts were drawn for, at his instance, on the banks of New York, but
we were not acquainted with the use they were put to.

"The Ben. Wood, to whom the draft was made payable, is, I believe,
the member of Congress, and the owner of the New York _News_." Jacob
Thompson's bank account, already in evidence, was handed to the
witness, who said: "This is a copy of Jacob Thompson's banking account
with us, as testified to by Robert Anson Campbell. I see in the
account entries of funds that were used for purpose of exchange on New
York, and also on London. The item $189,999, on the 6th of April, 1865,
was issued in deposit receipts, which may be paid anywhere."

In answer to a question by Mr. Aiken, counsel for defense, the witness
said: "I do not remember any drafts cashed at our bank in favor of
James Watson Wallace, Richard Montgomery, or James B. Merritt. I have
no recollection of the names."

Evidence of George Wilkes: "I am acquainted with Benjamin Wood, of
New York, and am familiar with his handwriting. The signature at the
back of that bill of exchange I should take to be his. At the date of
this bill Benjamin Wood was a member of Congress of the United States.
He was editor and proprietor of the New York _News_, so he told me
himself. The paper, I have heard, has been recently managed by John
Mitchell, late editor or assistant editor of the Richmond _Examiner_
and the Richmond _Enquirer_." The endorsement was further proven to be
in the handwriting of Ben. Wood by the testimony of Abram D. Burrell.
This testimony not only accounts for $25,000 paid to Ben. Wood, then
a member of Congress from New York City, for services rendered to the
rebel cause in the halls of legislation, or attempted to be there
rendered, but more particularly in the management of the New York
_News_. In his capacity as a legislator as well as that of editor, Ben.
Wood made himself conspicuous as a traitor to his country, and thus he
was rewarded by Jacob Thompson for his services to the rebel cause. The
testimony also throws light on Jacob's method of doing business in a
secret, underhanded manner, in order that the object and purport of his
transactions being thus concealed from public knowledge he could engage
in any wicked scheme without detection. Witness has drafts for $180,000
on the 6th of April, all being put in such form that they could not
well be traced, and so that it could not well be ascertained who were
the payees, or where paid, or whether they were ever paid at all. They
were probably held by this skilfull secret financier in such shape
that, upon the failure to fulfill the contract and then come forward
and claim the reward, they reverted to the Hon. Jacob Thompson.

The testimony of these witnesses reveals several very important facts
bearing on the subject of our investigations. First, it is shown that
the rebel agents in Canada were kept well supplied with money by
the Richmond government, their credits in the Canada banks arising
from Southern bills of exchange on the rebel agents at Liverpool.
Now the question arises, for what purpose was this money placed at
their disposal? They were sent by the rebel government to Canada to
work for the success of the rebellion in ways and by means which have
been disclosed by the testimony. Of course, then, they were supported
whilst in Canada by the Richmond government, and it is reasonable to
suppose at a fixed salary that had been agreed upon in advance. Then,
of course, their personal expenses had to be met, and as they were by
no means parsimonious in their habits, this item alone would make a
considerable draft on their treasury. Then they employed a good many
men, escaped rebel soldiers and other rebel refugees at various times
to execute various schemes concocted by them to aid the rebellion.

One witness stated that they said they had eight hundred men secreted
in Chicago, in the summer of 1864, to aid in a plan to liberate the
rebel prisoners at Camp Douglass, which plan was frustrated by the
government being informed of it in advance by friends in Canada who
were cognizant of the plot. Of course the expenses of all of these men
had to be met, and no doubt liberal compensation made to those who were
entrusted with the execution of the plot. So, also, the plot to burn
the city of New York, the St. Albans raid, and various other schemes of
like character cost a good deal of money. Of course they defrayed all
of the expenses of the trial of the St. Albans raiders for extradition.
The scheme of spreading disease and death through infected clothing, in
which Dr. Blackburn was employed as their agent, no doubt cost them a
good round sum. It will be remembered that Blackburn employed Godfrey
Joseph Hyams as his agent to get the infected clothing sold at such
places in the United States as he indicated, under the promise of one
hundred thousand dollars; and although he and Thompson chiselled Hyams
out of nine hundred and ninety-nine thousand nine hundred dollars
of this, it is quite reasonable to suppose that Blackburn received
large pay for his risk and trouble in going to Bermuda and carefully
infecting this clothing.

The witness, Montgomery, testified that he heard Clay say, in speaking
of these enterprises, that "they always had plenty of money to pay for
anything that was worth paying for." We have seen from the testimony
that Booth, and we have good reason to infer that Surratt also, were
kept plentifully supplied with money from the time that a definite
arrangement was made with them to take charge of the assassination job
in the latter part of October, 1864, until the final accomplishment,
so far as it was accomplished, of their plot. We have seen that they
were both without occupation, or legitimate source of income, during
all that time, and that they were actively engaged in preparation
for their work, and were going in a style of prodigality in their
expenditures, travelling a great deal, boarding not only themselves,
but also several of the hired assistants, at hotels in Washington,
without regard to cost, even stipulating in the case of Payne that his
meals should be served to him in his room. Then they were every way
profligate in their habits, especially in drinking and smoking--both
costly vices--and also in purchasing horses and hiring them kept at
livery stables; and still further in hiring horses of livery men for
their excursions about the suburbs of the city in perfecting their
plans for escape. Again, Booth always had money to use in drawing into
the plot, and in holding assistants. No doubt the fifty dollars sent
to Arnold in a letter came from Booth; and we know he sent in a letter
fifty dollars to Chester to induce him to join him, and although he
allowed Chester to return this money it was not until he had fully
satisfied himself that it was useless to press Chester any further on
the subject. They were evidently as profuse in their promises of reward
to their co-conspirators whom they hired as Blackburn was to Hyams.
Booth offered to deposit three thousand dollars for a retainer's fee to
Chester; and, in addition to this, assured him that if he would go into
the conspiracy he would never want for money as long as he lived. Even
so worthless a fellow as Atzerodt had been fed with the idea that he
would soon have as much gold as would keep him a gentleman the balance
of his life.

Now, where was all this money to come from? Evidently from Jacob
Thompson's bank account. The evidence of the bank teller shows that the
bill of exchange which was found on Booth's body after his death was
the same bought of him by Booth. This bill of exchange was dated Oct.
27, 1864.

It will be remembered that the Selby letter (the Selby being, no doubt,
an _alias_, as they were all sailing under _aliases_) reveals the fact
that it was at that meeting of the conspirators in Montreal, about the
last of October, 1864, that the plot was matured, and arrangements
made for carrying it into effect. No doubt this arrangement made
between the Canada Cabinet and Booth and his fellow assassins involved
a large expenditure of money--such an amount, that when the "Cabinet"
came to consider the matter over they shrunk from the responsibility
and called a halt until they could get the sanction of the Richmond
government in such a form that they could have a voucher to show for
this expenditure. Hence, their after regret that "the boys had not
been allowed to act when they wanted to." This sanction was delivered
to them by Surratt on the 6th of April, when Thompson, placing his
hand on the despatches, exclaimed, "This makes the thing all right!"
It would be a very singular coincidence, indeed, on the theory that
Davis, Thompson, and the others in Canada were not in the conspiracy,
that on this very day Thompson drew on his bank account for $180,000
by a deposit receipt; and that on the 8th, two days later, he drew
for £446 12_s._, 1_d._, and then again on the same day for £4,000
sterling, amounting in the aggregate to over two hundred thousand
dollars. Assuming this to have been the cost of the assassinations for
which Booth and Surratt had made themselves responsible, and that on
which they were counting to keep them well supplied with money all the
balance of their lives, the question arises what became of this money?
Of course their hired assassins were only to be paid when they had
fulfilled their contract. The money was subject to this contingency;
hence there was, no doubt, a provisional arrangement by which Thompson
held control over the reward promised them, and, when we look at the
final result of the thing, we can readily see that the money, in the
end, reverted to Thompson.

There is another very remarkable coincidence revealed in this
testimony; that is, the fact of Thompson's leaving Canada on the 14th
of April, 1865, for Europe, travelling overland to Halifax, when by
waiting two weeks longer he could have gone by steamer. This was such
an unusual circumstance as to require explanation, and excited remarks
amongst the clerks in the bank at the time. If we have been led by the
evidence to the conclusion that the government fully sustained its
charge and specification against Jacob Thompson, we can at once explain
this coincidence of his leaving Montreal for Europe by the overland
route to Halifax on the very day on which he expected the plot to be
consummated. He could not afford to wait for the opening of navigation,
lest his flight might be impeded by arrest, and a warrant or demand for
his extradition on the charge that he was a member of the conspiracy.
"The wicked flee where no man pursueth." A guilty conscience is its
own accuser. This remarkable coincidence, equally with the other, is
presumptive evidence of his guilt.

Booth kept his bank account in the same bank with Thompson, and there
is every reason to believe that his credits were from money supplied
to him by Thompson. When he drew the bill of October 27th, which was
found on his person after his death, he explained that he was going to
run the blockade. We have seen what he meant by that; and this gives
additional evidence that the assassination plot was fully matured, as
shown by the Selby letter, at that time, and that on the part of Booth,
acting under the latitude of discretion contained in that letter, he
was only biding his time, waiting and watching for, and seeking to
make, an opportunity; and that had he not been restrained by Thompson
until he could get authority from Richmond that would serve him as a
voucher for the large outlay of money involved, he would have acted
long before he finally did.

Now the question comes up, what became of the money deposited to
Thompson's credit by the Confederate government in the banks of Canada?
We have seen that he had deposited to his credit in the Ontario Bank
of Montreal $649,873.28, and have learned that he had, in addition to
this, large transactions in other Canada banks. The reduction of his
account in the Montreal bank of over $200,000 by the drafts of the 6th
and 8th of April, we have every reason to believe was dependent upon
contingencies for their payment which were never fulfilled, and so this
large amount reverted to Thompson. The Confederate government died
suddenly and unexpectedly about this time, leaving no executor with
will annexed, and no one to look after its assets, or court authorized
to appoint an administrator; and so it would seem that in this case
Jacob Thompson was not only a man that had achieved notoriety, but
that he also had riches thrust upon him. Perhaps he and Clay, Tucker,
Sanders, Cleary, and Holcombe held a court in equity, and distributed
amongst them the assets thus accidentally left in their hands.




CHAPTER XV.

THE CASE OF MRS. SURRATT.


So earnest and persistent have been the efforts of rebel priests,
politicians and editors to pervert public opinion in regard to the
case of Mrs. Surratt that it becomes necessary to devote some special
consideration to it even at the expense of some repetition. Immediately
after her execution a wild howl was set up by these people for the
purpose of making political capital out of the sympathy and tender
feeling which we all have for her sex. Her innocence was boldly
asserted, and the government was denounced for her execution. They
suppressed or set at naught all the evidence against her, and made
many false statements to subserve the purpose they had in view.
These efforts were only made by those who had been the enemies of
the government during the war--who had either asserted the right of
secession, or denied the right of the government to coerce (to use
their own expression) a State into submission to its authority.

[Illustration: MRS. MARY E. SURRATT.]

Because President Lincoln felt that the obligations of his official
oath required him to maintain the authority of the government and to
preserve the Union they had all through the terrible struggle in which
he was engaged been his bitter enemies. They were actuated by a spirit
of malignant hatred of the Union cause, and stood ready to oppose and
denounce every measure that the President had found necessary to the
success of his purpose and work. Their hostility to the government
was only rendered more intense by its success in putting down the
rebellion, and so they were ready to seize on this occasion, that they
might, out of it, make political capital. This effort has never been
abandoned, and the case of Mrs. Surratt continues to be worked for all
that it is worth by that portion of the Northern press that inherits
the old copperhead animus.

To fully understand the case of Mrs. Surratt we must make her
acquaintance as early as 1863. We find her at that time living at
Surrattsville, in Prince George County, Md., ten miles below Washington
City. The villa called Surrattsville consisted simply of a country
tavern owned and occupied by Mrs. Surratt. She was a widow with three
children, two sons and a daughter. The elder son had gone to Texas and
had volunteered in the rebel service. The younger son, John H. Surratt,
a young man of nineteen, had left St. Charles College in the summer
of 1861, not to volunteer as a soldier, but to engage in the secret
service of the Confederacy. There was a United States post-office at
Surrattsville; and this young man, in addition to his duties as a
Confederate spy and carrier of despatches for the rebel government,
handled Uncle Sam's mail and delivered it to his neighbors. From all
this we can readily gather the attitude of Mrs. Surratt toward the
government. On the trial of John H. Surratt, John F. Tibbetts testified
that in 1863 he was carrying the mail from Washington to Charlotte
Hall, and that he stopped at Surrattsville to deliver the mail at that
office. On one occasion, whilst waiting for the mail there, he heard
Mrs. Surratt say that she would give one thousand dollars to any one
that would kill Lincoln. He also testified that when there was a Union
victory he heard her son say in her presence that, "The d--d Northern
army and the leader thereof ought to be sent to hell."

Here we see the deep and traitorous hostility to the government of
these people who were in its service under the obligations of an
official oath. In the fall of 1864 Mrs. Surratt removed to Washington,
taking the house 541 on H Street. She rented her Surrattsville property
to a man by the name of Lloyd. What prompted this change is not known
to the writer. Her son had so won the confidence of Jefferson Davis and
Judah P. Benjamin that he had for a considerable time been entrusted
by them, not only with important despatches, but also with large sums
of money sent to their agents in Canada.[7] Indeed, this seems to have
been the only employment in which he was then engaged; and at this
time the assassination plot, as we have seen, was engaging the serious
attention both of Davis and his agents in Canada, and that both Surratt
and Booth were in the confidence of these men, though they were as yet
not personally acquainted with each other.

Booth arranged with Dr. S. A. Mudd to come to Washington to introduce
him to Surratt, which he did on the 23d day of December, 1864. Their
acquaintanceship ripened into the closest intimacy with a rapidity that
was due to a common sympathy and a common purpose. They were from that
time much together, and Booth at once became a frequent and constant
visitor at the house of Mrs. Surratt.[8] From this time on the evidence
begins to accumulate, showing her to be informed of the work in which
they were engaged, and to have fully entered into their scheme as a
helper.[9] There were a number of boarders in her house. These merely
received the ordinary civilities of personal intercourse from Booth;
but with John and his mother his intercourse was always of a private
and confidential character.

Booth's habit was to come into that house, and after the common-place
civilities to tap John on the shoulder and ask him to spare him a
moment of his time, when they would retire to an upstairs room and
remain in conference sometimes for two or three hours. In John's
absence (and he was frequently away) Booth would ask Mrs. Surratt to
grant him a private interview, which she always did. What business
could this man, who had been so recently introduced to the family,
have had that required so much and such strict privacy? Whatever it
was, Mrs. Surratt was trusted by him equally with her son. We have
now presented the state of things in that house between these parties
as shown by undisputed testimony, and will proceed to show from the
further evidence in the case what the business was that they had on
hand.

Shortly after John H. Surratt made the acquaintance of Booth, Atzerodt
became a frequent visitor at Mrs. Surratt's.[10] The first time he
came he inquired for "John H. Surratt or Mrs. Surratt." How did he know
of Mrs. Surratt in such a way that he could make her the alternative
of John? In the early part of March Payne called at the Surratt house,
and inquired for John H. Surratt, but when told that he was not at home
he asked to see Mrs. Surratt.[11] He was an entire stranger, but knew
enough, not only about John but also about his mother, to make her the
alternative in the absence of her son. He passed under the _alias_ of
Wood on this visit. Mrs. Surratt took him in for the night, and got
her boarder, Wiechmann, to take him to his room, where she had his
supper served to him. Would she thus have acted toward a stranger of
whom she knew nothing? It is not to be believed. Payne carried the key
to her hospitality in some secret sign that had been adopted by these
conspirators. Toward the last of March Payne called again, giving the
name of Payne and claiming to be a Baptist preacher. He remained in the
house this time for three days, and on one of these days was surprised
by Wiechmann coming into his room, where he found John H. Surratt and
Payne fencing with bowie-knives, and with revolvers lying on the bed;
there were also four sets of new spurs. Wiechmann spoke about what he
had seen to Mrs. Surratt, saying "that he did not like the look of
things," when she said, "Oh, you need not be disturbed about it; John
rides a good deal in the country, and has to carry these things to
protect himself."[12]

It was during this visit that Booth, Surratt, Payne, Atzerodt, Herold,
and one or two others, started out on an expedition from which they
returned under circumstances of disappointment and rage, as heretofore
recounted, and, of the import of which Mrs. Surratt was seen to have
been fully informed, as she was weeping, and declined going to her
dinner. Upon the failure of this expedition Booth went to New York and
Payne to Baltimore. The plot, however, was not abandoned; and for its
future prosecution it seemed desirable to Booth and Surratt to transfer
Payne to Washington, and that in the most secret manner, and there to
keep him hidden away until he was wanted. They procured a room for him
at the Herndon House, representing him to be a delicate gentleman, and
stipulating that his meals should be served to him in his room.[13] It
came to the knowledge of Wiechmann that Booth and Surratt had placed
some one in that house, and he was naturally curious to know whom it
was. Atzerodt let the secret out, and when Wiechmann spoke of its being
Payne who was quartered in the Herndon House, Mrs. Surratt asked him
how he knew. When he gave Atzerodt as the source of his information she
manifested some displeasure. But we are not left to infer from this
that she had been informed of the disposition that had been made of
Payne, for a night or two after that, when returning from an evening
service at St. Patrick's Church, in company with Wiechmann and three
or four young ladies, she stopped when they came to the Herndon House,
and asked the party to wait on her a few minutes whilst she should go
in and see Payne.[14] They waited on this interview for about twenty
minutes. Thus we see that she was notified of every move that was made
in preparation for the assassination.

Not only were Booth, Atzerodt, and Payne visitors at Mrs. Surratt's,
but also the notorious rebel spy and blockade runner, Mrs. Slater,
_alias_ Brown, was one of her visitors. This woman stayed all night
with her toward the latter part of March, 1865, and was accompanied by
Mrs. Surratt and her son John when she left on the next morning, Mrs.
Surratt going as far as Surrattsville, whilst her son accompanied her
to Richmond in place of a Mr. Howell whom she had expected to have
for her escort, but who had been arrested, and so Surratt took his
place.[15]

On one occasion Mrs. Surratt sent Mr. Wiechmann to Booth with a
message that she wanted to see him on private business, to which Booth
responded.

On the Tuesday before the assassination Mrs. Surratt asked Wiechmann
to drive her down to Surrattsville, and upon his consenting to do so
she sent him to Booth to request the use of his horse and buggy for the
trip. Booth told Wiechmann that he had sold his horse and buggy, but
he gave him ten dollars with which to procure one.[16] As they were
on their way down they met Mrs. Surratt's tenant, Lloyd, on the road,
when Mrs. Surratt requested Wiechmann to stop. Lloyd, recognizing her,
got out of his buggy and came to the side of Mrs. Surratt's buggy, on
which she was sitting, when she leaned her head out toward him and
conversed with him in so low a tone that Wiechmann did not hear what
was said;[17] but Lloyd testified that she told him to "have those
shooting-irons handy, as they would be called for before long." The
shooting-irons to which she referred were the two Spencer carbines
that had been carried to Surrattsville some time previous by J. H.
Surratt, Atzerodt, and Herold, and which John H. Surratt and Lloyd
had hidden away, as related heretofore. Thus we see that Mrs. Surratt
was kept posted in regard to every move that was made; that she knew
that these arms had been deposited there, the purpose for which they
had been left there, and that they would be called for soon. We can
now understand Booth's generosity in furnishing her ten dollars to
pay for a conveyance--she carried his message to Lloyd. On the day
of the assassination she again got Wiechmann to drive her down to
Surrattsville, no doubt at Booth's request, and perhaps at his expense.
She gave to Wiechmann ten dollars with which to procure a conveyance,
and as he passed out of her house on this errand he met Booth at the
front door, in the act, as it were, of ringing the door bell.[18]
When Wiechmann returned, in passing to his room, he saw Booth in the
parlor conversing with Mrs. Surratt. Booth sent by her to Lloyd, on
this occasion, a field-glass and a message to have the two carbines
ready, together with this glass and two bottles of whiskey, as they
would be called for that night. Lloyd was absent from home when they
arrived at Surrattsville, and did not return until late in the evening.
Mrs. Surratt dilly-dallied until he returned, and then snatched an
opportunity for a private interview with Lloyd in his back yard, where
he had driven. She then delivered to him the field-glass and Booth's
message to have the shooting-irons, etc., ready as they would be called
for that night, as they were, by Booth and Herold, about midnight.
Lloyd swore that this was the message which she delivered to him during
that interview in the back yard.[19]

Can any one doubt now that Mrs. Surratt was fully posted in every
particular of the assassination plot, that she was fully trusted by
Booth and her son, and was in sympathy with their purpose and willing
to do all she could in aiding its accomplishment,--that she was, in
fact, a co-conspirator?

On the night of the assassination, about three o'clock in the morning,
a party of detectives called at Mrs. Surratt's house for the purpose
of searching it to see whom they could find there, and demanded
admittance. When informed of their visit and the purpose of it by
Wiechmann, she said, "For God's sake let them in. I have been expecting
the house to be searched."[20] How many people in Washington were
expecting detectives to come that night to search their houses? Not
one who was innocent of crime. Two nights later the inmates of this
house--Mrs. Surratt, her daughter, and Miss Fitzpatrick--were put
under arrest by the military police; and whilst they were waiting for
a conveyance at near the hour of midnight the assassin Payne rang the
door bell, and was taken in and placed under arrest by the officer
in charge. When Mrs. Surratt was confronted by Payne she held up her
hand and solemnly said, "Before God I do not know him, and never saw
him."[21] It will be remembered that he had within the last three weeks
to that time stayed in her house for three days and nights, and he was
a man of such marked personality that he could not have been so easily
forgotten. The defense, in her case, attempted to account for this by
an alleged infirmity of sight, but they were unable to establish by
testimony any infirmity of sight beyond what is common to her age of
about forty-five.[22] It will be remembered that Payne had been hiding
and skulking for three days and nights, and of all the houses in
Washington her's was the only one to which he felt that he could go and
entrust the secret of his presence.

He could, under the circumstances in which he was placed, only have
given this confidence to a co-conspirator. Having now given a brief
synopsis of the testimony on which Mrs. Surratt was found guilty by
the Commission, it will be in order for my readers to form their own
conclusions as to her guilt or innocence. The writer only desires
to say that additional testimony going to show the justice of the
finding of the Commission in her case came out incidentally on the
trial of John H. Surratt, and will also be found in the affidavit of
L. J. Wiechmann, made after the military trial, in which he recounts
a number of circumstances that had escaped his memory when on the
witness stand, and which recurred to him in his subsequent reflections
on the case. The testimony of Sergeants Dye and Cooper, given on the
trial of Surratt, was that in passing Mrs. Surratt's house about ten
minutes after the murder, a lady which Dye (having seen Mrs. Surratt
at the military trial) believed to have been her, raised a window, and
thrusting her head out, asked them what was wrong down town.[23]

Here we have her sitting in her parlor at about twenty-five minutes
after ten o'clock waiting anxiously to hear some news. There was as yet
no excitement on the street to awaken curiosity. These two soldiers
believed they were the first persons to pass that house after the
assassination; the street was entirely quiet; as they passed along
they met two policemen shortly after passing the house 541, where Mrs.
Surratt lived, who had not yet heard the news; yet here was a woman
expecting to hear some news; who hailed the first passers-by after the
fatal, and evidently appointed, hour to inquire what was wrong down
town. It was also proven by a servant of good character, Susan Ann
Jackson, that she had on that night served supper in the dining-room,
after the family and boarders had left, to a man whom Mrs. Surratt
called her son, and whom this witness identified as the prisoner at the
bar.[24] We can now see why she was anxiously awaiting the news.

On the trial of Surratt a good deal of the testimony introduced to show
the existence of a conspiracy to assassinate the President, and that
the prisoner was a member of this conspiracy, implicated his mother in
it equally with himself. Most of the witnesses that had been brought
before the Commission to prove the existence of such a conspiracy, and
that Mary E. Surratt was an active member of it, were again produced
on this trial. As the witnesses Lloyd and Wiechmann were the most
important of these, their testimony being completely conclusive of the
guilt both of the the prisoner and his mother, great efforts were made
to discredit, especially, the testimony of Wiechmann; but this could
not be done by any of the methods known to the law. He stood the test
of every effort and came out unscathed from a bitter and most hostile
cross-examination that occupied a day and a half. Every effort was made
to make him contradict himself as to his present testimony in chief, as
also to his testimony given two years before at the military trial, but
without avail. No false witness could possibly have come out of such a
fiery ordeal unscathed. Truth is always consistent with itself, and one
truth is always consistent with every other correlated truth, and for
this reason a witness that keeps the truth can never be entrapped.

He was contradicted, it is true, by negative testimony as to some
points in his evidence. Persons who were in the same room with him at
the time that certain declarations were made to which he testified
swore that they did not hear them. But such testimony is of no value.
If one person in company with many others in a room were to swear that
he heard the clock strike, his testimony as to that fact could not be
discredited by that of all the others swearing that they did not hear
it strike. Positive testimony cannot be overthrown, or even shaken,
by negative. Witnesses were also brought to prove that he had made
different statements, and some to prove that he had virtually admitted
that he had testified falsely as to Mrs. Surratt, and that he had been
held under duress by certain officers of the government and required to
state in his testimony what they dictated to him. These efforts also
proved failures, as a close, scrutinizing cross-examination made it
apparent that these witnessess had been suborned, and were delivering
a cooked-up testimony. After every effort had been made that could be
devised by the ingenuity of counsels, Wiechmann stood before the court,
the jury, and the country, as an honest, conscientious, truthful man.
He was also a man of superior talent, education, and intelligence. In
short, he established a character that must challenge the admiration of
every candid mind.

The attempt was also made to overthrow Lloyd's testimony, but without
success. His testimony was assailed principally on the ground that
he was drunk when he returned to his home on that evening, the 14th
of April, when Mrs. Surratt snatched an opportunity to get a private
interview with him, by going out to him in his back yard, as soon
as he drove up, and there delivering to him the message to which
he testified, and also gave him Booth's field-glass. Lloyd himself
admitted that he was pretty drunk on that occasion, but he was not so
drunk but that he could carry out Mrs. Surratt's instructions to the
very letter. He got the carbines and all the other things and placed
them where they would be handy when called for, so that they could be
delivered without detaining the parties long when they should be called
for.[25] He was also on hand at the time they called, and ready to get
these things for them. It is evident Lloyd knew the purpose of all
this. When called on by the soldiers and detectives who were in pursuit
of Booth and Herold the next morning, he denied that there had been
anybody there during that night. He knew nothing. But when he found a
chain of ascertained facts about to fasten upon him, in great fear and
trepidation he made a clean breast of it, and told all. He then gave as
a reason for his course in denying all knowledge of the matter, that
he knew he could not tell all that he knew without implicating Mrs.
Surratt, and that he did not want to do that.


_Note and Affidavit of L. J. Wiechmann._

    Col. H. L. BURNETT, _Judge Advocate_, Cincinnati, Ohio:--

    COLONEL:--I stated before the Commission at Washington
    that I commenced to board with Mrs. Surratt in November, 1864.
    As a general thing I remained at home during the evenings, and
    consequently I heard many things which were then intended to
    blind me, but which now are as clear as daylight. The following
    facts, which have come to my recollection since the renditon of
    my testimony, may be of interest:--

    AFFIDAVIT OF LOUIS J. WIECHMANN.

    I once asked Mrs. Surratt what her son John had to do with
    Dr. Mudd's farm; why he made himself an agent for Booth? (She
    herself had told me that Booth desired to purchase Mudd's
    farm.) Her reply was, that Dr. Mudd and the people of Charles
    County had got tired of Booth, and that they had pushed him on
    John. Before the 4th of March she was in the habit of remarking
    that _something_ was going to happen to "Old Abe" which would
    prevent him from taking his seat; that General Lee was going to
    execute a movement which would startle the _whole world_. What
    that movement was she never said. A few days after I asked her
    why John brought such men as Herold and Atzerodt to the house,
    and why he associated with them? "Oh, John wishes to make use
    of them for his _dirty work_," was her reply. On my desiring to
    know what the dirty work was, she answered that "John wanted
    them to clean his horses." He had two at that time. And once,
    when she sent me to Brooks, the stable keeper, to inquire about
    her son, she laughed, and remarked that "Brooks considered John
    H. Surratt and Booth and Herold and Atzerodt a party of young
    gamblers and sports, and that she wanted him to think so."
    Brooks has told me since the trial that such was actually the
    case, and that at one time he saw John H. Surratt with three
    one-hundred-dollar notes in his possession.

    When Richmond fell and Lee's army surrendered, when Washington
    was illuminated, Mrs. Surratt closed her house and wept. Her
    house was gloomy and cheerless. To use her own expression,
    it was "indicative of her feelings." On Good Friday I drove
    her into the country, ignorant of her purpose and intentions.
    We started at about half-past two o'clock in the afternoon.
    Before leaving, she had an interview with John Wilkes Booth in
    the parlor. On the way down she was very lively and cheerful,
    taking the reins into her own hands several times and urging
    on the steed. We halted once, and that was about three miles
    from Washington, when, observing that there were pickets along
    the road, she hailed an old farmer and wanted to know if they
    would remain there all the night. On being told that they were
    withdrawn about eight o'clock in the evening, she said "she was
    glad to know it." On the return I chanced to make some remark
    about Booth, stating that he appeared to be without employment,
    and asking her when he was going to act again. "Booth is done
    acting," she said, "and is going to New York very soon, never
    to return." Then turning round, she remarked: "Yes, and Booth
    is crazy on one subject, and I am going to give him a good
    scolding the next time I see him." What that "one subject"
    was Mrs. Surratt never mentioned to me. She was very anxious
    to be at home at nine o'clock, saying that she had made an
    appointment with some gentleman who was to meet her at that
    hour. I asked her if it was Booth. She answered neither yes
    nor no. When about a mile from the city, and having from the
    top of a hill caught a view of Washington swimming in a flood
    of light, raising her hands, she said: "I am afraid all this
    rejoicing will be turned into mourning, and all this glory into
    sadness." I asked her what she meant. She replied that after
    sunshine there was always a storm, and that the people were
    too proud and licentious, and that God would punish them. The
    gentleman whom she expected at nine o'clock, on her return,
    called. It was, as I afterwards ascertained, Booth's last visit
    to Mrs. Surratt, and the third one that day. She was alone with
    him for a few minutes in the parlor. I was in the dining-room
    at the time, and as soon as I had taken tea I repaired thither.
    Mrs. Surratt's former cheerfulness had left her. She was now
    very nervous, agitated, and restless. On my asking her what
    was the matter, she replied that she was very nervous and did
    not feel well. Then looking at me, she wanted to know which
    way the torch-light procession was going that we had seen on
    the avenue. I remarked that it was a procession of the arsenal
    employees, who were going to serenade the President. She said
    that she would like to know, as she was very much interested
    in it. Her nervousness finally increased so much that she
    chased myself and the young ladies, who were making a great
    deal of noise and laughter, to our respective rooms. When the
    detectives came, at three o'clock the next morning, I rapped at
    her door for permission to let them in. "For God's sake, let
    them come in! I expected the house to be searched," she said.

    When the detectives had gone, and her daughter, almost frantic,
    cried out: "Oh, ma! Just think of that man (John Wilkes Booth)
    having been here an hour before the assassination! I am afraid
    it will bring suspicion on us."

    "Anna, come what will," she replied, "I am resigned. I think
    that John Wilkes Booth was only an instrument in the hands of
    the Almighty to punish this proud and licentious people."

        (Signed)
          LOUIS J. WIECHMANN.

    Sworn and subscribed before me this 11th day of August, 1865.

        (Signed)
          CHAS. E. PANCOAST,
            _Alderman_.




CHAPTER XVI.

FATHER WALTER.


From the time of the trial of the conspirators by a military
commission, and of the execution of Mrs. Surratt by the order of
President Johnson, Father Walter, a secular priest of Washington
City, has made himself conspicuous by his efforts to pervert public
opinion on the result of the trial of the conspirators by the
Commission. Whilst rebel lawyers, editors, and politicians have boldly
assailed the lawfulness of the Commission, and have denounced it as
an unconstitutional tribunal, and have characterized the trial as a
"Star Chamber" trial, as a contrivance for taking human life under a
mockery of a judicial procedure, but with no purpose of securing the
ends of justice, Father Walter and other priests whose sympathies were
with the Southern Confederacy have earnestly seconded their efforts by
the invention and circulation of cunningly devised falsehoods. Father
Walter has every now and then bobbed up with the assertion of Mrs.
Surratt's entire innocence. Knowing that not one in a thousand of our
people has ever read the testimony on which she was convicted, he feels
that he can boldly assert that "there was not evidence enough against
her to hang a cat." He has also become bold enough to state as facts
what the evidence shows to be falsehoods. As an example of this: in an
article in the "Catholic Review" he asserts in regard to Mrs. Surratt's
trip to Surrattsville on the afternoon of the day of the assassination
that she had ordered her carriage for the trip, which was purely on
private business, on the forenoon of that day, and before it was known
that the President would go to the theatre. Why, if this was true, was
it not proven in her defense? There was no such testimony produced. The
testimony on this point against her was that shortly after two o'clock
on that afternoon she went up stairs to Wiechmann's room, tapped at
the door, and when it was opened she said to Mr. Wiechmann, "I have
just received a letter from Mr. Calvert that makes it necessary for me
to go to Surrattsville to-day and see Mr. Nothey. Would you be so good
as to get a conveyance and drive me down?" Upon Wiechmann's consenting
to do so, she handed him a ten dollar bill with which to procure a
conveyance. Surely there is no evidence here that a carriage had been
ordered already, as Wiechmann was left free to procure a conveyance
where he might see fit.

Wiechmann went down stairs, and as he opened the front door he saw John
Wilkes Booth, who was in the act, as it were, of pulling the front door
bell. Booth entered the house.

When young Wiechmann returned, after having procured the buggy, he went
up to his own room after some necessary articles of clothing, and as he
again descended the stairs and passed by the parlor door he observed
that Booth was in the parlor conversing with Mrs. Surratt. In a little
while Booth came down to the front door steps, and waved his hand in
token of adieu to Wiechmann, who was standing at the curb.

When Mrs. Surratt came and was in the act of getting into the buggy,
she remembered that she had forgotten something, and said, "Wait a
moment, until I go and get those things of Mr. Booth's." She returned
from the parlor with a package which was done up in brown paper, the
contents of which the witness did not see, but which was afterwards
shown to have been the field-glass which Booth carried with him in his
flight. This glass Booth sent to Lloyd by Mrs. Surratt, with a message
to have it, with the two carbines and two bottles of whiskey, where
they would be handy, as they would be called for that night. Lloyd
swore that this was the message delivered to him by Mrs. Surratt in the
private interview she sought with him in his back yard on his return
home that evening, and that in accordance with these instructions he
delivered them to Booth and Herold about midnight that night.[26]
Now let us see about the private business on which she professed to
be going, and on which she claimed on her trial that she went. The
letter from Mr. Calvert was a demand for money that she owed him, and
was written at Bladensburg on the 12th of April. On the afternoon of
the 14th she presented herself to Wiechmann and claimed that she had
just received it. It would seem very strange that it took this letter
two days to reach her at a distance of only six miles. She claimed
that she must go and see Mr. Nothey, who owed her, and get money
from him to pay her debt to Mr. Calvert. Mr. Nothey lived five miles
below Surrattsville, and as she claimed that she had just received
Mr. Calvert's letter it was impossible that she could have made any
arrangement with Nothey to meet her at Surrattsville that day. She did
not meet him there, neither did she go to his house to see him. When
she arrived at Surrattsville she took Wiechmann into the parlor at the
hotel and asked him to write a letter for her to Mr. Nothey, which he
did at her dictation; and this she sent to Mr. Nothey by a Mr. Bennett
Gwinn, a neighbor of his, who happened to be passing down.

Now, in view of all these facts, can any one see how her private
business was in any way subserved by her trip to Surrattsville on
that afternoon? She could as easily have written to Mr. Nothey from
Washington as from Surrattsville. A postage stamp, a sheet of paper and
an envelope would have saved her six dollars, the cost of her trip, and
would have served her business just as well. The truth is that this
talk of going on private business of her own was all a fabrication,
first to deceive Mr. Wiechmann as to the object of her trip, and then
to be used, should it become necessary, in her defense. We have already
seen what her real business was.

Father Walter falsifies again in the article referred to in saying that
she did not see Lloyd on that afternoon, but delivered the things to
his sister-in-law, Mrs. Offutt.[27] Both Lloyd and his sister-in-law
testified to her interview with him in his back yard, and Lloyd
testified as to what passed between them on that occasion.

It would seem that Father Walter is going on the theory that we have
gotten so far past the time, and that the testimony has been so far
forgotten that he can foist upon the public any statement that he may
please to fabricate. We would kindly remind the reverend Father that
no ultimate gain can be derived from an effort to suppress the truth.
Neither can it be obliterated by our prejudices. We may misconstrue
facts, but we cannot wipe them out by a mere stroke of the pen; and a
fact once made can never be recalled. But I am not yet done with this
Father. He prefaces his article in the "Review" with the statement that
he heard Mrs. Surratt's last confession, and that whilst his priestly
vows do not permit him to reveal the secrets of the confessional,
yet from knowledge in his possession he is prepared to assert her
entire innocence of this most atrocious crime. He means that we shall
understand that were he at liberty to give her last confession to
the world he could say that she then and there asserted her entire
innocence.

Will Father Walter deny that under the teachings of the Roman Catholic
Church he had an absolute right, with her consent, to make her
confession public on this point? Nay more, could not Mrs. Surratt have
compelled him to do so in vindication of her own good name, and of the
honor of the church of which she was a member? And having this consent,
was it not his most solemn duty to proclaim her confessed innocence in
every public way, through the press, and even from the very steps of
the gallows?

Why was not that confession made public? Why was it not reduced to
writing and signed with her own hand? Why has it not in its entirety
been given to the world? Why must the public wait twenty-seven years,
and instead of having the full confession be required to content
itself, in so great a case, with a mere assertion from the reverend
Father, based on his alleged knowledge? Aye, just there's the rub!

That confession of Mrs. Surratt's would have proved very interesting
reading, and might have let in a flood of light on some places that are
now very dark; it would, indeed, have shown how far Mrs. Surratt was
involved in the abduction and assassination plots, and to what degree
she was the willing or unwilling tool of her son, and of John Wilkes
Booth. That confession would have shown the object of Booth's visit to
her on the very day and eve of the murder. It would have explained
what she had in her mind when she carried Booth's field-glass into the
country, and told Lloyd to have the "shooting-irons" and two bottles of
whiskey ready on that fateful night of the 14th of April. And if she
did not explain satisfactorily every item of testimony which bore so
heavily against her, then her last confession was worth nothing.

Father Walter never had at any time Mrs. Surratt's consent to make her
confession public, and he dare not do so now after twenty-seven years
have elapsed since he shrove his unfortunate penitent.

Why, we repeat, did not Father Walter do this? He was interesting
himself very much in her behalf in trying to get her a reprieve; why
did he not use this as an argument with the President in her behalf
that in her final confession she asserted her innocence? Why did he
wait until the sentence had been confirmed by the President and a full
cabinet without a dissenting voice, and then had been carried into
execution, before he put into circulation the story of her confessed
innocence? And why does he refer to his priestly vows as his excuse
for this conduct, when he knows full well that having gained Mrs.
Surratt's consent to make her confession public as an entirety, these
vows imposed upon him no such restrictions? In vindication of the
Commission, and also of the court of review,--the President and his
cabinet,--we submit that the evidence shows her to have been guilty, no
matter what she might have said in her final confession.

Perhaps she had been led to believe that President Lincoln was an
execrable tyrant, and that his death was no more than that of the
"meanest nigger in the army." Her remarks to her daughter the night
her house was searched indicate the views she took of the subject.
"Anna, come what will, I am resigned. I think that Booth was only an
instrument in the hands of the Almighty to punish this wicked and
licentious people."[28] To one who could have taken this view of the
case, Booth's act could not have been regarded as a crime; and she who
rendered him all the aid she could would feel no guilt. They were only
co-operating with the Almighty in the execution of his vengeance. On
the trial of John H. Surratt, Mr. Merrick brought Father Walter on to
the stand and asked him if he had heard the last confession of Mrs.
Surratt, to which the Father answered, "I did. I gave her communion on
Friday and prepared her for death."

Mr. Merrick in his argument before the jury said: "I asked him 'Did she
tell you as she was marching to the scaffold that she was an innocent
woman?' I told him not to answer that question before I desired him
to. He nodded his head, but did not answer that question, because he
had no right, as the other side objected." Now what was the object of
all this? Mr. Merrick brought the Father on to the stand and asked him
a question that had not the slightest relevancy to any issue before
that jury. He knew, of course, that the prosecution would object, and
that the question could not be answered. It was a direct question, and
could have been answered by, "She did" or "She did not." Why does not
the Father answer at once? He had been cautioned not to do so until
desired, and so he waits for the prosecution to object and estop him
from answering the question. Mr. Merrick, however, in his argument
assumes that the Father stood ready to say that, "She solemnly declared
her entire innocence to me in her last confession," and throws the
responsibility on the other side for not getting this answer. The
argument was this: "You see that Father Walter stood ready to testify
to this fact, but the prosecution objected, and so he could not do it."

Now, what has become of the Father's priestly vows behind which he has
always been hiding? Or was all this a mere piece of acting, to give the
counsel a point from which to denounce the government, the Commission,
and all who were concerned in visiting justice upon the assassins?

We believe it to be true that the laws of his church did not forbid
him to make public, with her consent or command, her last confession
on this point, and that the Father in making the statements he does
at this late day is simply practicing sleight-of-hand upon the
public. It is a very strange circumstance, too, that whilst Payne,
Arnold, O'Laughlin, Atzerodt, and even John H. Surratt admitted
their connection with one or the other of the conspiracy plots, Mrs.
Surratt has not left one word or line after her to explain away the
incriminating evidence brought against her. The reason is plain; she
could not have explained anything without involving herself and her
son, and giving away the whole case.

For twenty-six years Father Walter and his rebel co-adjutors have kept
a paragraph going the rounds of the papers, stating as a fact that
all the members of the Commission but one are dead, and that they
died miserable deaths, which marked them as the subjects of heaven's
vengeance, and that some of them perished from the violence of their
own hands, being crazed with remorse.

The truth is that at this writing, April, 1892, all of the members
of the Commission are alive except General Hunter and General Ekin.
General Hunter lived to over four score years, and General Ekin to
seventy-three. The present writer is nearly seventy-nine and is still
able to vindicate the truth in the interest of a true history of his
period. Is it not high time that the American people should be fully
informed as to this most important episode in their history, in order
that they may not be misled by men who were not the friends, but the
enemies, of our government in its struggle for its preservation and
perpetuation?




CHAPTER XVII.

CONCLUSION.


Now come the United States and challenge an intelligent and candid
world to say whether or not, in the light of all this evidence, they
have vindicated their dignity and honor by showing that they had just
grounds for charging Jefferson Davis, George N. Sanders, Beverly
Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George
Harper, George Young, and others unknown, with combining, confederating
and conspiring together with one John Wilkes Booth and John Harrison
Surratt to kill and murder Abraham Lincoln, Andrew Johnson, William
H. Seward, and Ulysses S. Grant, with the intent to subvert the
Constitution and overthrow the government of the United States in aid
of the then existing rebellion and as a means of giving it success; and
that further, as specified, they, together with John H. Surratt, John
Wilkes Booth, David E. Herold, George A. Atzerodt, Lewis Payne, Mary
E. Surratt, Edward Spangler, Samuel Arnold, Michael O'Laughlin, and
Dr. Samuel A. Mudd, did, on the night of the 14th day of April, 1865,
murder Abraham Lincoln, and did attempt to murder William H. Seward,
and did lie in wait to murder Andrew Johnson, in pursuance of said
conspiracy, and in the purpose and intent thereof, as therein alleged.
And they further say, that if, in the light of all this evidence,
any persons shall feel like erecting a monument to the memory of
Jefferson Davis, this is a free country; let them do so, and take the
consequences that cannot fail to result to their reputation and memory
in the minds of a patriotic, intelligent, and right-minded people,
reared up under the influences and advantages of our free and liberal
institutions of civil administration, and of their uplifting power and
elevating influences on the people, who must, under these favoring
conditions, ultimately reach the true ideal of human development.




CHAPTER XVIII.

FLIGHT AND CAPTURE OF JOHN H. SURRATT.


The presence of John H. Surratt in Washington City on the day of the
assassination was proven before the Military Commission by a single
witness. This witness, however, was a man who was personally acquainted
with him, and who swore positively to having seen him on that day. His
testimony was given about a month after the event, and the circumstance
was fresh in his memory. He stated the time of the day when, and the
place where, he saw him; described his dress, the kind of hat he was
wearing, etc., etc. He was clear in his statements, could have had no
motives for swearing falsely, and it is scarcely possible that he could
have been mistaken. From the description given by Sergeant Dye of the
man who acted as monitor, calling the time three times in succession
at short intervals, the last time calling "Ten minutes past ten," in
front of the theatre, it will be remembered that the writer came to the
conclusion that this was John H. Surratt. This conclusion was verified
by this same witness on the trial of Surratt. Sergeant Dye had taken
a seat on the platform in front of the theatre, and just before the
conclusion of the second act of the play had his attention arrested by
an elegantly-dressed man, who came out of the vestibule, and commenced
to converse with a ruffianly-looking fellow. Then another joined them,
and the three conversed together. The one who appeared to be the the
leader said, "I think he will come out now," referring, as the witness
supposed, to the President. The President's carriage stood near the
platform on which the witness was sitting, and one of the three passed
out as far as the curbstone and looked into the carriage. It would
seem that they had anticipated the possibility of his departure at the
close of the second act, and had intended to assassinate him at the
moment of his passing out of the door. Quite a crowd of people came
out at the conclusion of the act, and Booth and his companions stood
near the door, awaiting the opportunity which they sought. When most
of the crowd had returned into the theatre, and the would-be assassins
saw that the President would remain until the close of the play, they
then began to prepare for his assassination in the theatre. The writer
concludes, from a careful consideration of all the circumstances, that
this was a provisional arrangement, in case their plan to murder him at
the door should fail.

Booth and the ruffianly-looking fellow kept their stations by the
door, to make sure of not missing the opportunity of which they had
planned to avail themselves, whilst the other stepped up and looked at
the clock in the vestibule, and called the time. He then immediately
walked rapidly up the street. He returned in a few minutes, and looking
at the clock again called the time, and again walked away rapidly up
the street. Very soon he returned again, and called the time louder
than before, "Ten minutes past ten!" and walking rapidly away, did not
return.

Booth had left the side of his companion before this long enough to
go into the saloon, where he drank a glass of whiskey, and then, as
soon as the time had been called the third time, went at once into the
theatre, and in less than ten minutes thereafter fired the fatal shot.
It is evident that it had been arranged between Booth and Payne that
the assassination of Secretary Seward should be concurrent with that of
President Lincoln; and that a system of signals had been arranged, of
which the man who called the time was acting as monitor. The suspicions
of Sergeant Dye having been aroused by the conduct of these three men,
he naturally scanned them very closely, and testified that he had a
good view, not only of the person, but of the face and features of
the man who called the time, and had his image indelibly impressed
on his memory. Upon being confronted by Surratt on his trial, he
unhesitatingly and positively declared that he was the man. In addition
to Reed and Dye, who testified before the Commission, there were nine
others who testified on the trial of Surratt to having seen him that
day in the City of Washington. All of these persons, except four, were
personally acquainted with him, and could not have been mistaken, as
they were able to give the time of day when, and the place where, they
saw him, as also, in the case of most of them, to describe his person,
dress, hat, moustache, etc., etc., without any discrepancies in their
testimony.

The other four, though not acquainted with him, identified him before
the jury, more or less positively, as the man they had seen. It is
worthy of remark that though they all testified with more or less of
particularity in their descriptions of his person, his dress, his hat,
his moustache, and as to the time of day when, and the place where,
they had seen him, there was nothing incongruous or contradictory in
their testimony. One witness, a colored woman, Susan Ann Jackson,
who was in service at Mrs. Surratt's at the time, and had been for
three or four weeks previous to the assassination, testified that
under the direction of Mrs. Surratt she had made tea for the prisoner
after the family and boarders had left the table on the night of the
assassination, and that Mrs. Surratt had said to her on that occasion,
"This is my son," and had asked her if he did not look like Annie. She
said this was the first and only time she had seen him until she met
him on his trial, and then she positively identified him as the man
she had waited upon that night. The time was impressed on her memory
by its being Good Friday, and the night of the assassination. Several
of the witnesses who testified to his presence in the city on that
day also testified that they saw him in company with Booth, and one,
at least, with Booth and O'Laughlin. Surratt himself told his old
acquaintance, St. Marie, with whom he renewed his acquaintanceship in
the ranks of the Papal Zouaves at Velletri, in Italy, that he left
Washington early on the morning of the 15th of April, disguised as an
English tourist; and that he had a very hard time to make his escape.
As the trains leaving Washington for Baltimore on the morning of the
15th were thoroughly scrutinized by the police before being permitted
to leave, it is uncertain whether Surratt's disguise sufficed to get
him through, or whether he went a part or all of the way to Baltimore
on horseback. There was some evidence on this trial tending to the
conclusion that he had escaped from the city on horseback. The next
place we get track of him in his flight is at the railroad depot at
Burlington, Vt., on the early morning of the 18th of April. Here he
turns up with a rough-looking man, no doubt the ruffianly-looking
fellow who was seen with him and Booth in front of the theatre on the
night of the assassination. They had crossed Lake Champlain on a boat
that ran from White Hall to Rouse's Point, on the night of the 17th,
and landed at Burlington, in order to take the train to Montreal. This
was the first trip the boat had made that season, and it was four hours
late in reaching Burlington, arriving there about midnight. They had to
wait for the morning train, which was due at four o'clock A.M.
of the 18th. They requested permission to sleep at the depot, and the
night watchman allowed them to sleep on the benches. He awakened them
in time for the train, and after daylight, when sweeping the floor, he
found a handkerchief under the bench where the taller of the two had
slept, and upon examining it after it was fairly light found it marked,
"J. H. Surratt 2." At Essex Junction, where they changed trains for St.
Albans, these two travellers made the change, and were found by the
conductor on his passing through the train standing on the platform
outside. He asked them for their fare, and was told that they had no
money. Surratt did all the talking. He represented that they were
laboring men, had been at work in New York, and had been unfortunate
and lost their money. He said they were now making their way back to
Canada, and were ready to promise that if he would carry them through
they would send him the fare as soon as they reached their friends. The
conductor reminded them of the necessity of having money if they would
travel.

Surratt disguised his speech, trying to use the dialect of a Canadian;
but when he became excited from fear of being put off the train he
forgot his Cannuck, and talked in good square English. The conductor
also noticed that his hands were not those of a laboring man, and
so concluded that the men were traveling _incognito_. This was on
the early morning of the 18th of April. They arrived at St. Albans
for breakfast. At the table they found everybody excited, and upon
Surratt's inquiring what it meant, his next neighbor at the table, an
old gentleman, informed him that the President had been assassinated,
to which Surratt replied that "The news was too good to be true." The
old gentleman then handed him a paper, and on looking it over he saw
his own name given as one of the assassins. He dropped the paper, and
found that he did not want any more breakfast. On passing out into the
next room, he heard some one say that Surratt must be in town, or had
passed through, as his handkerchief had been found in the street; when,
upon feeling for his handkerchief, he found that he had lost it. They
then left the place as quickly as possible, narrowly escaping arrest.
He understood that his handkerchief had been picked up in the street of
St. Albans, and no doubt, in the excitement, the news had taken that
shape, but, as we have seen, he lost it at Burlington depot, and so the
news must have been telegraphed to St. Albans.

[Illustration: JOHN H. SURRATT.]

It is not known how they traveled from St. Albans to Montreal, but it
is most probable that they walked across the country. We find Surratt's
name on the hotel register at Montreal, where he arrived at about
two o'clock on the 18th of April, he having been absent from that
place from the 12th. This had been to him an eventful week, full of
difficulties and hazards; but he may now feel safe, as he has reached
the abode of the chief conspirators, his employers, and is ready to
claim his reward. He can feel that he is in the midst of sympathizing
friends. But, alas! a criminal can never feel safe. An angry God
is ever on the track of the guilty conscience. As it was with the
first murderer, so it must be with every murderer,--a fugitive and a
vagabond he is compelled to be. He had hardly recorded his name on
the hotel register when he was informed that detectives were on the
look-out for him, and he was at once spirited away to the house of a
Mr. Porterfield. This man was a Southerner, who belonged to Thompson's
cabal, but who had abjured his allegiance to his country and taken
the oath of allegiance to the Queen of England, and had thus become a
British subject. He knew all about the conspiracy, and the means that
had been employed to carry it into effect; and was waiting and watching
anxiously for the return of his co-conspirators that had been sent
to Washington on their mission of assassinations. He at once took
Surratt into his house, and kept him secreted there for several days.
Finding the detectives who were in pursuit of the fugitive vigilant and
determined in their search, Porterfield became fearful that he could
not keep his charge concealed, and so made arrangements to get him into
a place of greater security.

At this point we meet with a new element amongst the Canada
conspirators, viz., the Roman Catholic priesthood. Porterfield had
arranged with Father Boucher to take his charge in custody, and keep
him concealed. This Father was rector of the parish of St. Liboire,
a newly-settled place, about forty-five miles from Montreal--an
out-of-the-way place, and so a good place in which to hide him away.
The arrangements had been made in advance with this Father to take
charge of Surratt, and keep him secreted at his house. He was conveyed
there by one Joseph F. Du Tilley, who seems to have been priest
Boucher's right hand man. The stratagem to get him away from Montreal
was as follows: two carriages drove up in front of Porterfield's house
late in the afternoon, when two persons, dressed as nearly as possible
alike, went out together; one of these got into one of the carriages,
and the other into the other, when they drove away in different
directions. Father Boucher appeared at the trial of Surratt as a
voluntary witness for the defense, and without any apparent sense of
shame convicted himself, by his own testimony, of being an accomplice
after the fact. We think that the testimony he gave warrants the
conclusion, also, that another priest, Father La Pierre, placed himself
in the same category. Both of these Fathers took Surratt into their
houses, and kept him concealed,--the first for three, and the latter
for two months,--knowing him to be charged with being a conspirator to
the assassination of the President of the United States.

Father Boucher's parish being in an out-of-the-way country place,
it was only necessary that he should constantly exercise a prudent
vigilance in behalf of his charge. He was visited frequently by his
friends whilst staying with Boucher; at one time three or four of
these came together, and stayed three or four days with him. The time
was spent in hunting, sporting, and revelry. It was very remarkable,
however, that Father Boucher could not remember the names of any of
these friends. Being a volunteer witness for the defense, he could
not give their names without implicating persons whom he did not
desire to compromise; hence, no doubt, his convenient Jesuitical
failure of memory. Perhaps he could not have given their names without
injury to the cause he desired to help. He could only say that some
of their names were English names, using the word English in contra
distinction from French or French-Canadian, in which sense it implied
not really English, but American,--Beverly Tucker for instance, perhaps
Porterfield, and likely, also, La Pierre. As two of these, Beverly
Tucker and La Pierre, along with Boucher, accompanied Surratt from
Montreal to Quebec, and did not leave him until they had seen him safe
on board the ocean steamer, "Peruvian," when he finally was sent to
Europe, it would seem highly probable that we have rightly surmised who
were his visitors on the occasion referred to. Surratt was not kept in
close confinement by Father Boucher, but his safety from discovery and
arrest was looked after with cunning vigilance. At length the time came
when it was thought safe and advisable to transfer the fugitive back to
Montreal. This was affected as secretly as had been his removal from
that place to the parish of St. Liboire.

Father La Pierre now took him in charge. He had provided for him a
secluded upstairs room at his father's house, _right under the shadow
of the bishop's window_. This Father had been a visitor of Surratt at
the lonely parish of St. Liboire, and now took him under his especial
protection. He kept him concealed, and never allowed him to go out
until after nightfall, and then never alone, but always accompanied
him. La Pierre thus kept his charge safely from the latter part of
July until the 5th of September, 1865. During all of this time he was
visited regularly twice a week, on Mondays and Thursdays, by Father
Boucher, who always remained over night with him at each visit. How
can we account for this great interest taken by these two priests in
secreting the murderer of the head of the greatest nation on earth,
and that with a full knowledge that he stood charged with this crime,
and that a great reward was offered for his apprehension? How can we
consider them less guilty, in a moral point of view, than Surratt
himself?

But at length a time came when it was thought safe and advisable to
send him abroad.

Early in September Father La Pierre sought an interview with Dr. Lewis
J. A. McMillen, surgeon on board the ocean steamer "Peruvian," which
was to sail on the 16th of that month from Quebec for Liverpool, and
made arrangements to put in his care for the passage a friend of his
by the name of McCarthy, who, for certain reasons, desired to embark
secretly on the voyage. The doctor took a steamer at Montreal, on the
15th, to join his ship, which was to sail on the following day.

Boucher and La Pierre conveyed Surratt in a covered carriage, and
went with him on board the same steamer on which the doctor had taken
passage. La Pierre was in disguise, inasmuch as he was dressed in
citizen's dress. They had also disguised Surratt by coloring his hair,
painting his face, and putting spectacles over his eyes. On the passage
from Montreal to Quebec, they kept him locked up in the state-room
occupied jointly by him and Father La Pierre. When they reached Quebec
and went on board the transport that was to convey them to the ocean
steamer "Peruvian," in which they were to sail, the doctor was there
introduced to Beverly Tucker, who had also felt enough of interest
in Surratt's case to induce him to accompany him from Montreal to
Quebec, and who stood in that relation to his case in the knowledge
of Fathers La Pierre and Boucher that they could safely take him into
their confidence in their plans for conveying Surratt out of the
country. This trio saw Surratt safely on board the "Peruvian," and then
bade him good-by. The interest thus manifested by Tucker in getting
Surratt safely away confirms the testimony given before the Military
Commission, showing him to have been justly charged by the government
with being a member of the great conspiracy. Before parting from his
charge Father La Pierre requested Dr. McMillen to let Surratt stay in
his room until after the vessel should have sailed.

Surratt is not an innocent man carrying a good conscience, that
enables him to look every man he meets squarely in the face. He is a
fugitive and a vagabond, carrying the weight of a terrible crime in
his memory--a weight that neither time nor distance can efface. He is
haunted by his fears, having before him the vision of a detective and
of capture; and so he skulks and hides from the phantom of an American
detective which he cannot banish from his mind.

The vessel being now on her way, and in British waters, the fugitive
ventured forth, and naturally sought the company of the surgeon of
the vessel in whose care he had been placed, and whom he regarded
as his friend. His social nature yearned for companionship, and all
the more as a means of relief from a guilty conscience. Does he now
enjoy a sense of security? To him this is impossible. He scanned
closely every passenger he met, that phantom of a detective being
ever present to his imagination. He sees a gentleman whom he takes to
be an American. He seeks his friend McMillen, and discloses to him
his fears, saying: "I think that man is an American detective." Upon
being asked by the doctor what he had done that he should be afraid
of a detective, he replied: "If you knew all the things I have done,
it would make you stare." Murder is a crime that will out. It imposes
a weight of guilt upon the conscience that will, at some unguarded
moment, let the fearful secret slip through the door of the lips
that are most firmly closed by a purpose of concealment. The doctor
reassured him, by reminding him that he was on board a British ship
sailing on British waters, and that he had nothing to fear from an
American detective. Surratt then drew a small four-barrelled revolver
from his vest pocket, and remarked: "I don't care; this will settle
him." The doctor now began to feel a great interest in his charge,
arising from the suspicion that he was John H. Surratt. The voyage
across the Atlantic occupied nine or ten days. The fugitive was so
full of his terrible secret that he could not keep quiet. Every day
he sought opportunities to converse with the doctor privately, and at
every interview the history of his crimes kept leaking out. He was
nervous, and constantly haunted by his fears; so that he could never
hear any one coming up behind him without starting and looking around.
Amongst his important revelations to the doctor were the following:
that he had for a considerable time previously to the assassination
been a bearer of despatches from Richmond to the Confederate agents
in Canada; that he had at one time carried to them from Richmond
thirty thousand dollars, and at another time seventy thousand dollars;
that he arrived in Montreal the last time on the 6th of April, with
despatches from Davis and Benjamin, thus confirming the testimony of
Conover and Merritt before the Military Commission. These despatches
he claimed to have delivered to Thompson. After the military trial,
and previous to the trial of Surratt, the witness, Conover, had been
convicted of perjury; but this does not discredit the testimony he
gave before the Commission, as it was confirmed by other witnesses who
stand unimpeached, and is here also confirmed by Surratt himself in
regard to one of its most important points. It will be remembered that
Conover testified to having been present at a meeting of the Canada
conspirators in Montreal, on the 6th of April, 1865, and that John H.
Surratt, who was present, had just arrived from Richmond, bringing a
cipher despatch from Jefferson Davis, and also a despatch from his
Secretary of State, Benjamin, and that Thompson, laying his hand on
these despatches, said: "This makes the thing all right"; and that
active measures were at once entered upon for putting the assassination
plot into effect. Now Surratt comes to McMillen five months later, on
the face of the broad Atlantic, and confirms Conover's testimony in its
major part. He also related to the doctor the particulars of his trip
to Richmond late in March, 1865, when he was accompanied by a woman,
who by other testimony was shown to have been Mrs. Slater, _alias_
Brown, the rebel spy and blockade runner. The arrangement was made
whilst he was in Canada for him to meet her in New York and accompany
her to Richmond, which he did, passing through Washington. In this
statement the testimony of Wiechmann is confirmed. Surratt related
to the doctor the difficulty they had in crossing the Potomac. They
were hailed by a gun-boat, and called upon to surrender. They said
they would do so, but waited for the small boat that had been sent
to bring them in to come alongside, when they suddenly arose, poured
a volley into the crew of the small boat, and then, in the confusion
that ensued, made their escape. There were twelve or fifteen crossing
with him at the time, and all were armed with revolvers. Having
gotten within the Confederate lines south of Fredericksburg, they were
being pushed along by negroes on a hand-car when they met five or six
forlorn, half-starved Union soldiers, who had made their escape from a
rebel prison and were striking for freedom. At the suggestion of this
wicked woman they shot them down, and passed on, leaving them lying on
the ground.

He also related to the doctor the plot, at one time discussed, to
capture the President and carry him to Richmond, but said it was found
to be impracticable, and so was abandoned. He claimed that Booth and
himself had spent ten thousand dollars in preparations for carrying out
their plot. When we remember that neither Booth nor Surratt had any
means of their own, and yet were carrying on an enterprise that called
for so large an outlay of money, we may well ask who stood behind them
and furnished the funds?

But if we take all of the testimony we have before us into
consideration we need have no difficulty in answering this question.
Jacob Thompson was the treasurer of the concern, and his government
kept him amply supplied with means. It will be remembered that Clay
said, "We have plenty of money to pay for anything that is worth paying
for." After the assassination Surratt was in some way supplied with
money to support him for a year, and carry him to Italy. In regard to
the assassination, Surratt told McMillen that he received a letter from
Booth at Montreal, in the beginning of the week of the assassination,
which was written in New York, calling him to Washington at once, as
it had become necessary to change their plans and to act quickly. He
started at once, and telegraphed Booth at New York City from Elmira,
but found that he had already gone to Washington. In regard to his
escape from Washington after the assassination, he related all of the
incidents that have already been given in regard to his experience at
St. Albans, the loss of his handkerchief, his hasty departure from that
place, etc., etc.

Every day during the voyage, he was filling McMillen's ears with these
stories, and as they neared the end of the voyage he began to revolve
in his mind whether he would land on the Irish coast or go on to
Liverpool. He asked McMillen which he had better do, but McMillen, who
must have known by this time who this McCarthy was, declined to give
him any advice. Surratt finally said he would go on to Liverpool, but
could not dismiss from his mind the fear that he might there meet a
detective awaiting his arrival. Pulling out his revolver, he said, "If
he did, this would settle him." Upon McMillen making the reply that
"they would make short work of it with him in England if he should do
such a thing as that," he said, "It is for that very reason I would do
it, for I would rather be hung by an English than a Yankee hangman, and
I know I would be hung should I be taken back to the United States."
Upon sighting the coast of Ireland he exclaimed, "Here is a foreign
country at last! I only wish that I may live two years to go back to
the United States and serve Andy Johnson as we served Lincoln."

When the "Peruvian" was about to land her passengers and mail at an
Irish port, Surratt sent for McMillen, and upon the latter expressing
surprise at finding him dressed, and prepared to land, saying that "he
thought he had concluded to go on with them to Liverpool," Surratt
replied, "that he had thought the matter over carefully, and had
concluded that it would be safer for him to land there, as it was then
nearly midnight." McMillen then said to him, "You have been telling me
a great many things, and I have come to the conclusion that the name by
which you were introduced to me is not your true name. Will you be kind
enough to tell me who you are?" The fugitive then whispered in his ear,
"I am Surratt." He then asked the doctor to send for the barkeeper,
and before leaving the ship drank so freely of brandy that the doctor
found it necessary to request the chief officer at the gangway to take
him by the arm and see him safely on shore. On the Wednesday following,
Surratt called on the doctor at his boarding house in Birkenhead,
opposite the city of Liverpool, and requested him to go over with him
to the city to find a house to which he had been directed to go. The
doctor had, on the previous day (which was the day after the "Peruvian"
had landed in Liverpool), visited the Vice-Consul of the United States,
Mr. Wildings, and made a sworn statement of the facts that Surratt had
revealed to him, his purpose being to aid the United States in securing
his arrest. He told the Vice-Consul that he was only making a partial
statement of Surratt's confessions during the voyage, deeming it only
important that the government should be informed of Surratt's arrival
in Liverpool. The doctor testified, on Surratt's trial, that Mr.
Wilding told him that he had been informed by Mr. Adams, the American
Minister at London, that the government was not going to prosecute
Surratt; that it hadn't anything against him.

Of all this Surratt was ignorant, and the doctor went with him, as
requested, across the river from Birkenhead to Liverpool, and finding
a cab, gave the driver directions where to take him, and then parted
from him. Surratt visited him again before the doctor started on the
return voyage, and requested him to see a party in Montreal, and bring
him some money. The doctor did as requested, but the person on whom he
was requested to call said he had no money for him. The rebellion had
collapsed; the plot had failed of its purpose, as it had also failed
in part of its fulfillment; and now Surratt was to suffer the fate of
Hyams--be shaken off and disowned. On the doctor's return to Liverpool
Surratt called on him, but only to learn that there was no money for
him. This was the last time that McMillen saw him until he saw him on
his trial.

Surratt is next found in Italy, in the army of the Pope, where he had
enlisted as a soldier in the ninth company of Zouaves about the middle
of April, 1866. He had found friends after his escape from Washington,
who had supported him, kept him secreted, watched over his safety,
planned his trip from Montreal to Italy, and furnished him money for
the expenses of his journey; friends who, no doubt, were accomplices
before, as well as after, the fact, for we find them waiting and
watching for his return to Montreal after the assassination, and ready
to hurry him off into seclusion. He was to them a stranger; only known
to them as a fugitive from his country, charged with the highest crime
that a man could commit,--a blow at the nation's life, by murdering the
nation's head,--a crime against liberty and humanity. These could not
have been his friends for mere personal reasons, but from sympathy in
the general purpose of this great crime,--the subversion of our free
institutions.

Certainly he may now feel safe, being hid away under the _alias_ of
Watson, in the ranks of the Papal Zouaves, in the town of Velletri,
in Italy, forty miles from Rome. But no! Here he meets Henry Benjamin
St. Marie, an old acquaintance of his, and now a fellow-soldier in his
company.

About the 18th or 19th of June, 1866, during an afternoon's walk, he,
in his confidences with his old acquaintance, tells of the events of
the 14th of April, 1865, and of the difficulty he had in making his
escape from Washington on the morning of the 15th. He said he left
disguised as an English traveler and succeeded in making his way out.

The American Consul was informed of his whereabouts, and upon the
matter being brought to the notice of the Pope through Cardinal
Antonelli, an order was issued for his arrest and delivery to the
United States authorities. He was thus arrested by his comrades in the
service, and kept under guard, but succeeded in making his escape from
his guards (if we may believe the story), by making a bold dash down a
precipice, at the risk of his life. Having thus escaped he made his way
to Naples, and thence to Alexandria, in Egypt. What must have been his
surprise on reaching the latter place to find an officer awaiting his
arrival, and ready to make him a prisoner. He was put in chains, placed
on board the United States man-of-war ship "Swatara," and brought back
to Washington, where he was held to answer for his crime.




PART II.

REVIEW OF THE TRIAL OF JOHN H. SURRATT.




CHAPTER I.

INDICTMENT AND TRIAL.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

    UNITED STATES AGAINST JOHN H. SURRATT.

    Indictment, Murder.

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

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

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

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

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

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

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

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

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

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

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

        BRADLEY & MERRICK, _for defense_.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

    THE UNITED STATES VS. JOHN H. SURRATT.

    In the Criminal Court, March Term, 1867.

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

        MERRICK, BRADLEY & BRADLEY,
          _Attorneys for Surratt_.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




CHAPTER II.

A CRITICISM OF THE DEFENSE.


It now remains for the writer to review the course of the defense in
this trial, and to point out its policy, its spirit, its perversion of
facts, and disregard of evidence in carrying out its purpose to appeal,
first, to the prejudice of the jury, and then to pervert public opinion.

The prisoner was defended by counsel of known and acknowledged
ability--men of reputation for their knowledge of law, and ability as
advocates at the bar. But despite all this, their defense of Surratt
was as unique in its character as was the case itself. Made by men
learned in the law, it ignored the requirements of law, and so was
managed by them more in the light of its political relations, than that
of its legal requirements. In proof of this assertion I shall quote
freely from the arguments of counsel, and I think I shall be able to
show that I am fully justified in expressing this opinion. I shall
first refer to the remarkable number of exceptions taken by the counsel
for the defense to the rulings of the Court on questions of evidence,
and the use made of them. I will quote first from the argument of Mr.
Merrick.

"In a prosecution such as this, conducted against one of its citizens
by a government, what should be the course of that government, and what
is due to the jury and to the prisoner? Whatever there is that can
throw light upon the alleged crime should be let into the jury box.
All evidence that could go before the human mind calculated to impress
it with conviction, or modify its opinions, should be allowed to come
before you. What has been the case with regard to this trial? Wherever
any technical rule of law could by any constraint whatever exclude a
piece of testimony calculated to enlighten your judgment, it has been
invoked to exclude that testimony; has been bent from its uniform
application and its generally understood principle for that purpose.
I shall find no fault with his honor on the bench in his rulings, for
this is not my place to express an opinion about a decision of the
Court.

A member of the bar should be loyal to the tribunal before which he
practices, to the full extent of gentlemanly and professional courtesy,
and in the court-room bow with pleasant acquiescence in whatever
the judge may say. With that acquiescence I bow, and yet there is
nothing--and I must say this, and say it in justice to myself--there is
nothing that has fallen from his honor in the adjudication upon these
questions of testimony that has changed my opinion that the testimony
should be allowed to go to the jury. _One hundred and fifty exceptions
taken by the defendant's counsel encumber this record._ It is certainly
strange that there should have been so wide a difference, and I regret
it. Without complaining, as I said, of the decisions of the Court, it
can only be accounted for from the fact that the attorneys representing
the government in this case have strained every principle of law, and
invoked in their behalf every discretionary power of the court, as
against the prisoner."

Notwithstanding his semblance of disclaimer, Mr. Merrick here makes an
appeal to the jury, on the implied charge of partiality on the part of
this Court. In giving his charge to the jury Judge Fisher very properly
takes notice of this charge, and effectually rebukes the arrogance of
the counsel in the following language: "Much stress has been laid by
the counsel for the defense upon the fact, which they assert, that
during the progress of this trial more than one hundred and fifty
exceptions have been taken to the rulings of the court concerning the
admissibility of evidence. If they have found themselves under the
necessity of calculating the number of these exceptions, and parading
them before you, with a view of having you render a verdict according
to irrelevant evidence not before you, rather than according to the
legal evidence which you have heard, I have no disposition to criticise
their taste, but leave them to present their case in their own way. At
the same time I feel it my duty to remark to you that if counsel will
be so bold as to present propositions to the Court which every tyro in
the profession ought to know are untenable, it does not necessarily
follow that the judge must always be so weak as to sustain them. It has
heretofore been supposed that exceptions to the rulings of a judge at
_nisi prius_ were intended to be passed in review before the appellate
tribunal. I have never before known them to be neatly calculated and
presented to the jury by way of argument."

A jury is sworn to decide according to the law and evidence in the
case. But how are jurors to decide according to the law, not being
acquainted with law? It is manifest they cannot take their instructions
on the law from the counsel employed in the case, as they will
naturally differ widely in their constructions of law. It is made,
therefore, the duty of the court, an impartial tribunal, skilled in
law, to instruct the jury on all the points of law involved in the
case. In this remarkable case the counsel for the defense, feeling that
the court could not sustain the interpretations of the law on several
important points which they had endeavored to impress on the jury in
their arguments, took the remarkable position that the jury was to be
its own judge of questions of law. Mr. Merrick, in the course of his
argument, took this position, and argued it at some length, as follows:
"The jury is specially charged, it is true, with the fact; but they are
also charged with the law. You are to instruct them by your learning,
your wisdom, and by your authority. You are to advise them; but they
must know and they must believe. My learned brother on the other side
(Mr. Carrington) seemed to feel that it was necessary to press you,
gentlemen, very hard upon your obligation to follow the instructions
of the Court. I have never heard him say that before. Other cases have
been tried before this, but I have never heard him talk so earnestly to
the jury about being obliged to follow the instructions of the Court.
Why is he so solicitous in this case? Does he think you won't dare to
do right? He told you, gentlemen of the jury, that you were sworn to
try this case according to the law and the fact, and that you must take
the law from the court; and if you departed from the law so given you,
you would be perjured. I tell you it is no such thing. If you find a
verdict of guilty, and do not believe the party to be guilty in every
particular, in your judgment and in your hearts, then you are perjured
men, I care not what the Court's instruction is.

"Has my learned friend read the oath? I don't think he has. Mr. Clerk,
will you be kind enough to read it." (The clerk then read the oath.)

Mr. Merrick resuming, said: "Where is the law? Why did you tell the
jury what you did? The language is, 'And a true verdict give according
to the evidence.' My learned brother has had that oath ringing in
his ears for six years. Why didn't he tell you what it was? You are,
gentlemen, to find a verdict according to the evidence. What sort of
verdict are you to find? Guilty, or not guilty. That is all you can
say. You cannot say 'Guilty,' under the Court's instruction, or 'Not
guilty,' under the Court's instruction. If you say 'Guilty,' you say
'Guilty as indicted,' upon your conscience resting the weight of the
guilt. If your verdict should be 'Guilty,' it will be followed by
blood, for you see there is no mercy anywhere in those that represent
the government. If your verdict is guilty, then, indeed, you look upon
a dying man. Upon your consciences will rest the responsibility of that
verdict.

"And let me say to you, gentlemen of the jury, that on that awful day
when you shall stand before the last tribunal to be judged, and the
All-Seeing Eye shall look into your hearts and ask you why you found
this verdict of guilty, think you He will harken if you say, 'The
judge's instructions made me do it.' He will say to you, 'Were you
not free agents, with minds and intellects, sworn as a jury in a free
country? Were you not told by the counsel for the prisoner at the bar
that it was your duty to find this verdict according to your judgments,
your consciences, and didn't you disregard him?'

"If Judge Fisher's instructions made you find it, bring Judge Fisher.
Where is the Judge? Think you he will step forward and say, 'I will
take the burden.' No, gentlemen. Let me say to you now, that by the
laws of the land, and by the laws of God, the responsibility is on
the judge to instruct you rightly, to guide you correctly, to give
you wise and judicious counsel, not as mandatory and binding on your
conscience, but as advisory to your judgment, to enlighten the pathway
you are to tread in your investigations. We shall ask no instructions,
and desire none. The law of murder is too plain to need any, and you,
gentlemen, are too intelligent not to understand it. Indeed, if we
desire some explanation, _we would prefer to give it to you in the
way of argument, rather than trust it to the distinguished judge who
presides_. We would trust it to argument, because, with regard to these
plain questions, all men can comprehend what the law is. _We would
prefer trusting it to the weight of our own character with the jury as
men and lawyers._" After this ingenious appeal to the jury, the learned
advocate then proceeded to recount and expound the propositions of law
on which the District Attorney had invoked the instructions of the
Court.

Judge Fisher in charging the jury made the following reference to this
remarkable argument by Mr. Merrick: "You have been told, gentlemen, by
the counsel for the defense, in a manner not very respectful, certainly
by no means complimentary to the Court, that you are the judges of the
law as well as the facts in criminal cases, and that you have the right
to disregard the instructions of the Court in matters of law; and they
tell you that their expositions of the law, and the weight of character
they possess, may be more safely relied upon than the instructions
which may be given you by the Court. The weight of character of a
prisoner's counsel would be a variable, and not unfrequently a very
unsafe criterion by which the jury should judge as to the law of his
case. Perhaps they would have you regard the court as sitting on the
bench merely to discharge the duty of preserving order and decorum in
the court room, which probably the crier of the court or baliff might
be disposed to regard as an usurpation of his prerogative. If the jury
are entirely to disregard the judge's instructions as to the law of a
case, I confess I can see but little left than that for him to perform.

"It is true, gentlemen, that you have the power, and in cases where
your consciences are satisfied that the instructions of the Court are
dictated, not by an honest desire to enlighten the jury as to the true
state of the law, but by corrupt and wicked motives, you have the right
to disregard the instructions purposely intended to mislead you. But
to claim that the jury are better judges of what the law may be than
the Court, is about as reasonable as to assert that a plain farmer or
merchant may be taken fresh from his plough or his counter, and be more
capable of navigating and manoeuvering a steam frigate, or to lead your
armies to certain victories, than your admiral or commander-in-chief.
In my opinion, you have just the same right to disregard the evidence
of the witnesses who stood before you unimpeached in any matter
respecting the facts involved in the cause, as you have to disregard
what the Court may say to you, under an official oath, as to the law
that may apply to the facts. A jury have the _power_, if they choose
to exercise it, after having assumed the obligations of an oath, to
say that they will neither believe the judge nor the witnesses, but
decide upon the law and facts according to their own caprice, or the
confidence which they may repose in the character of counsel on either
side, but such is not the purpose for which juries were instituted,
and they have no right so to act. When the witnesses in the cause
have testified before you as to the facts, it is then the office of
the judge, under his official oath, to testify to you in the spirit
of truth, according to the best of his knowledge and ability, as to
what is the law which may be applicable to those facts; and an honest
jury will disregard neither the testimony of the witnesses nor the
instructions of the judge, unless they are satisfied that corrupt
motives have actuated them. They will leave the party where the
law leaves him, to his legitimate redress,--a writ of error to the
appellate court."

Referring to the course of counsel in this illegitimate appeal to the
jury in their argument on this point, and to their appeal, based on
the number of their exceptions to the rulings of the Court, the judge
made this further remark in vindicating the position and dignity of
the Court: "In reference to these matters I may observe that, perhaps,
I owed it to the dignity of the bench to have interrupted counsel in
the conduct of the case in this particular, but in a cause involving
the life of the prisoner upon the one hand and the vindication of the
outraged justice of a nation in mourning upon the other, I deemed it my
duty to cast not an atom in the one scale or in the other which might
by any possibility tend to prejudice either side of the issue."




CHAPTER III.

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_Mr. Bradley._ "Who says so?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


_Side Lights on the Conspiracy._

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

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

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

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

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

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




APPENDIX.




PREFACE TO APPENDIX.


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

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


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

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

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

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

Upon which the editor remarked:--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Illustration]




ARGUMENT OF JOHN A. BINGHAM,

SPECIAL JUDGE ADVOCATE,

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.

"A PROCLAMATION.

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

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

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

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

        "ABRAHAM LINCOLN.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court add:--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

        "October 13, 1864.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

        "GREENSBORO', April 19, 1865.

    "_His Excellency President Davis_:--

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

        "JOHN C. BRECKINRIDGE."

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

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

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

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

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

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

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

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

        "CHAS. SELBY."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

        (Signed)
          "LON."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Illustration: Joseph Holt Judge Advocate General]




THE CONTROVERSY BETWEEN PRESIDENT JOHNSON AND JUDGE HOLT.

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


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

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

In a communication addressed to the Washington _Chronicle_, dated
August 25, 1873, Judge Holt gives a copy of a letter addressed by him
to the Secretary of War, on the 14th of that month, in which he sets
forth evidence tending to disprove the charge originating with Andrew
Johnson, of his suppression of the petition, signed by five of the
nine members of the commission, recommending, in consideration of her
age and sex, a commutation of the death sentence of Mary E. Surratt
to imprisonment for life in the penitentiary. The petition read as
follows: "To the President: The undersigned, members of the military
commission appointed to try the persons charged with the murder of
Abraham Lincoln, etc., respectfully represent that the commission have
been constrained to find Mary E. Surratt guilty, upon the testimony,
of the assassination of Abraham Lincoln, late President of the United
States, and to pronounce upon her, as required by law, the sentence
of death; but in consideration of her age and sex, the undersigned
pray your Excellency, if it is consistent with your sense of duty, to
commute her sentence to imprisonment for life in the penitentiary."

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

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

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

       *       *       *       *       *

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

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

       *       *       *       *       *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       *       *       *       *       *

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

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

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

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

And now the motive:--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saith an old poet:--

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




FOOTNOTES:


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[16] Trial Conspirators, p. 113.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[33] In a communication to a Philadelphia paper.




       *       *       *       *       *




Transcriber's note:

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

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

Simple typographical errors were corrected.

Ambiguous hyphens at the ends of lines were retained.

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

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

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

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

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

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

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

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

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



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