Blood on the Moon

by Edward , Jr. Steers

  Part Four

  The Aftermath

  Whether his name shall be hereafter surrounded with honor or shall go down in posterity in infamy, depends upon the man who writes his history.

  Galveston Daily News

  CHAPTER NINETEEN

  To Remove the Stain of Innocent Blood from the Land

  All persons harboring or secreting the said persons . . . or aiding . . . their concealment or escape, will be treated as accomplices in the murder of the President . . . and shall be subject to trial before a military commission, and the punishment of death.

  Edwin M. Stanton

  Beginning on April 17 and ending with the death of Booth and the capture of Davy Herold on April 26, nine of the ten individuals charged by the government with conspiracy in Lincoln’s murder were in custody.1 Edman Spangler was the first. Following his arrest early on Monday, April 17, he was placed in the Old Capitol Prison located on the corner of A and First Streets, N.E. Arnold and O’Laughlen were next, also imprisoned on April 17. They were put on board the monitor Saugus anchored in the Eastern Branch of the Potomac River near the Navy Yard. Numbers four and five were Mary Surratt and Lewis Powell, both arrested on the night of April 17. Mary Surratt was taken to the Carroll Annex of Old Capitol Prison while Powell joined Arnold and O’Laughlen aboard the Saugus. Number six was George Atzerodt. Captured on Thursday, April 20, at his cousin’s house in Germantown, Maryland, Atzerodt was placed aboard the monitor Montauk and later transferred to the Saugus. Number seven was Dr. Mudd. Arrested on April 24, Mudd was put in the Carroll Annex of Old Capitol Prison along with Mary Surratt. The last conspirator arrested was Davy Herold, who was captured on April 26, at the Garrett farm. Herold was placed aboard the Montauk, where Atzerodt was also being held at the time. The last of the conspirators taken into custody was John Wilkes Booth. His body was placed aboard the Montauk, where it remained until April 27 when it was interred at the Arsenal. Only John Surratt was missing. He was still at large, his hiding place unknown to authorities. He was secure among friends in Canada where he would remain for the next several weeks before being spirited off to Europe.

  The accused were charged under the conspiracy laws that existed in 1865. Most historians have acknowledged that the defendants were involved in one way or another with Booth’s plan to capture Lincoln, but many believe that only Booth, Powell, Atzerodt, and Herold were involved in the conspiracy to assassinate Lincoln. Put another way, there were two separate conspiracies—one to capture, another to kill. Those who subscribe to this theory believe that Mary Surratt, Samuel Mudd, Edman Spangler, Samuel Arnold, and Michael O’Laughlen were convicted of the wrong crime. This conclusion reflects an uninformed knowledge of the conspiracy laws under which the defendants were tried, and this is irrespective of whether the trial was a military trial or a civil trial.

  The conspiracy laws in 1865 differed little from present-day conspiracy laws. The present Federal statute describes a general conspiracy as a crime where “two or more persons conspire . . . to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.”2 Since conspiracy involves secrecy and concealment, the law lessens the government’s burden of proof in proving the essential elements of the conspiracy.3 There are four elements that must exist to constitute a conspiracy:

  1) An agreement between at least two parties,

  2) to achieve an illegal goal,

  3) a knowledge of the conspiracy and participation in the conspiracy, and

  4) at least one conspirator’s commission of an overt act in furtherance of the conspiracy.4

  Most important to the case of the Lincoln conspirators, a person may be a member of an unlawful conspiracy without knowing all of the details of the conspiracy or even all of the other members. If a person understands the unlawful nature of a plan and willingly joins in the plan, even if only on one occasion, it is sufficient to convict the individual for conspiracy even though that person played only a minor role. The law further states that when a felony has been committed in pursuance of a conspiracy that had as its design only a misdemeanor, the misdemeanor becomes merged into the felony.5 Simply stated, if the intent of the conspiracy is to kidnap and a homicide occurs as a result of the conspiracy, the crime becomes one of homicide, not kidnapping. The aims of the conspiracy may shift or evolve. This last point is especially important when considering the case of the Lincoln conspirators. Booth’s original conspiracy to capture shifted to one of murder.

  One other aspect of the law needs to be recognized, and that is the concept of “vicarious liability.” This concept states that any one person involved in a conspiracy is liable for the actions of another, even though the first person was not directly responsible for the ultimate actions of the other. And finally, a person may only withdraw from a conspiracy by making a meaningful effort to prevent the conspiracy from ultimately taking place. Having a change of heart and simply walking away from a conspiracy is not sufficient in the eyes of the law to absolve a conspirator.

  This law clearly applies to those charged and tried as co-conspirators with John Wilkes Booth in the murder of Abraham Lincoln. While some of the conspirators may have thought they were participating only in a plot to kidnap the president and while others believed they had abandoned the plot, they were still involved in the eyes of the law. The eventual murder of Abraham Lincoln could have been prevented if any of the conspirators had gone to the proper authorities and exposed the plot along with the plotters. No one did.

  On May 1, President Johnson issued an executive order directing that the persons charged with Abraham Lincoln’s murder stand trial before a military commission. Johnson’s order rested on Attorney General James Speed’s decision that the accused were “enemy belligerents” and not citizens. Their alleged offenses were military in nature and had a military objective: to adversely affect the war effort of the Northern military. It was a decision that appears to have been more influenced by Stanton than by Speed.

  Johnson had assumed the presidency on April 15 at 10:00 A.M., two and a half hours after Lincoln had died. Although Johnson was officially in charge of the Federal government, Stanton continued to control much of its operations. The executive order issued by Johnson establishing the commission was drafted in Stanton’s hand and was written on War Department letterhead.6

  There is little in the documentary record that sheds light on what transpired leading to the decision to try the accused before a military commission, but such a decision seems obvious in hindsight. The District of Columbia was still a city whose native civilian population held strong Southern sympathies. The majority of pro-Union men were in the army. Much of the policing activities in the District were carried out by the military since the District was still operating under martial law.7 Part of the government’s case was aimed directly at Jefferson Davis and members of the Confederate government. Because of the climate in the city, Stanton and his colleagues feared jury nullification. It seems reasonable that this possibility was uppermost in Stanton’s mind, as well it should have been.

  A military trial would insure that the process would remain in loyal hands under government control—and more important, under Stanton’s control. A military trial would not significantly alter the process of law, only the control of the proceedings. A common but mistaken perception dominating the popular literature on the trial is that military law and civil law differed significantly in both administration and rules of evidence. The trial closely followed civil law, and both the prosecution and defense attorneys referred to civil precedent in presenting their respective cases. Objections were made and ruled on according to the civil code then in practice. A total of thirty-four objections were made by the prosecution, with all thirty-four sustained, while fifteen objections were raised by the defense and two being sustained.8 This disparity is cited by some historians as an indication of bias on behalf of the court but may have simply reflected the differing legal skil
ls of the opposing attorneys.

  Military trials were not unique in the country’s history, but they reached extraordinarily high numbers during the Civil War. Between 1861 and 1865 thirteen thousand persons were tried before five thousand military commissions. Records are incomplete, but enough exist to give a fair picture of this most unusual practice in jurisprudence.9 The Civil War was unique in American history, and many illegal acts that did not violate civil law were taking place on a daily basis. For example, it was not against civil law to describe in a letter or dispatch what a person saw concerning numbers of troops, their condition, or their disposition. Transporting various goods from a foreign country to certain states was not a civil offense. Nor was using the U.S. postal system to distribute letters and newspapers from one state to another. But these and other similar acts were very much in violation of military law during time of war.

  Not everyone within the inner circle of government was in favor of trying the accused before a military commission. Former Attorney General Edward Bates, Secretary of the Navy Gideon Welles, and Secretary of the Treasury Hugh McCulloch expressed opposition to a military trial. Welles wrote in his diary that he felt the accused should be tried by a civil court, but that Stanton insisted that a military court was the proper authority to try the accused. Attorney General James Speed, after showing ambivalence, agreed with Stanton.10

  Welles’s “regret” seems somewhat less than emphatic. Edward Bates felt more strongly on the issue. Bates did not simply “regret” the action; he thought it unconstitutional. But Bates held most of what Stanton did in low regard and even referred to Stanton’s actions as dictatorial.11 In fact, Bates was a frequent behind-the-scenes critic of many of Lincoln’s war-related policies. Bates opposed Lincoln’s approval admitting West Virginia as the thirty-fifth state in 1863 as unconstitutional even though the Supreme Court had ruled in 1849 that the Congress and the president had the legal authority to decide which government in a state represented the duly constituted government of that state.12 Bates based his opposition to a military trial on his beliefs that the accused conspirators were civilians, not members of a military organization, and that their alleged crime was not military in nature. Attorney General James Speed believed differently. He issued a formal opinion that explained his support for a military trial.13 Speed carefully described the various elements that led him to his conclusion. The president was commander in chief of the military; the city of Washington was a war zone ringed by fortifications manned throughout the war by Federal soldiers; martial law existed in the District of Columbia and, though the civilian courts were open and the civilian police were allowed to function in the usual manner, the principal police authority within the city rested with the military. Most important, however, was Speed’s characterization of the accused as “enemy belligerents” whose act was not for personal gain or vengeful malice, but was designed to thwart the military effort of the government. As enemy belligerents, the accused not only could be tried by a military commission under the law of war, but must be tried under military law. It was the nature of the accused as well as the nature of the crime that justified their trial by military commission. Speed differed with Bates in that he did not view the accused as civilians. Subsequent critics of the military commission have sided with Bates, believing the accused were civilians with no ties—directly or indirectly—to any clandestine or military effort by the Confederate government. A strong case can be made, however, linking the accused to various clandestine activities on behalf of the Confederacy, supporting Speed’s characterization of them as enemy belligerents.14

  Speed went on to point out that many of the offenses against the laws of war are not crimes under the civil code, and the framers of the Constitution were precise in their language. They empowered the Congress with the authority to define and punish offenses against the laws of war, and did not use the word crimes when referring to such offenses as they did when referring to civil law. Breaking a lawful blockade is considered an offense against the laws of war, but not regarded as a crime in civil court. Similarly, to act as a spy is an offense against the law of war, but it is not a civil crime. To violate a flag of truce is an offense against the laws of war that no civil court can consider as a crime. It was this rationale that Speed used in characterizing the accused as “enemy belligerents.”

  Two of the defense attorneys, Senator Reverdy Johnson (Democrat, Maryland), counsel for Mary Surratt, and Thomas Ewing, counsel for Samuel Mudd and Samuel Arnold, vigorously protested the jurisdiction of the military commission to try their clients while the civilian courts were open and functioning.15 The commission heard the arguments of both Johnson and Ewing and then met in closed session to consider them. When the commission reconvened it denied the request, ruling it had legal jurisdiction over the trial of the defendants and citing the opinion of the attorney general. The commission’s ruling, unlike a ruling in a civil court, could not be appealed to a higher court. It could only be appealed to the president, who had already ruled in favor of the commission’s jurisdiction.

  The question of legal jurisdiction of the military to try civilians was raised a year later by a citizen of Indiana named Lambdin P. Milligan. Milligan had been arrested and tried before a military commission in Indiana on charges of attempting to disrupt the military operations in that state by violent means. Milligan was found guilty and sentenced to hang. He was able to bring his case before the United States Supreme Court in the fall of 1866. In what has come to be known as a “landmark” decision, the Supreme Court ruled that citizens could not be tried by military tribunal in those jurisdictions where the civilian courts are open and functioning and no military threat was evident. The Court ruled that Indiana was not a war zone, had not been invaded by a hostile force, had not been threatened with invasion by a hostile force, and that martial law cannot exist under such conditions.16

  But 1865 was not 1866. There was little opposition—and considerable public support—for a military trial of the accused conspirators, although any form of trial would have satisfied a majority of the country. To most Northerners a trial was necessary and those guilty of this terrible crime must be punished. The majority of Northerners agreed with Stanton when he wrote: “The stain of innocent blood must be removed from the land.”17

  During the night of April 29, the six remaining prisoners were transferred to the Old Washington Arsenal, located on a small peninsula where the Potomac and Anacostia Rivers merged before flowing south toward the Chesapeake Bay. The Arsenal was the oldest continuous military base in operation in the United States. In 1836 the first Federal penitentiary was built on its grounds and quickly became a model prison for its time. Shortly after the outbreak of the Civil War, the Arsenal became the main staging area for military supplies. It soon ran out of space for storing the vast supply of munitions that were needed by Union forces. Lincoln closed down the prison and moved all of the prisoners to the Federal penitentiary at Albany, New York. The prison facilities were turned over to the military.

  Since the Arsenal was one of the most secure areas in the District of Columbia, Stanton ordered the eight defendants transferred to the old cellblocks. The prisoners now fell within the complete domain of the military and were isolated from any semblance of civilian authority. The militarization was complete.

  The government took over the third floor of the penitentiary building, converting it into a trial room. The room measured approximately thirty feet by forty feet with an eleven-foot-high ceiling supported by three wooden columns evenly spaced down the center of the room. Four large windows with iron gratings were along one wall, and two small anterooms adjoined the main room. One of these anterooms was used to hold witnesses, while members of the commission used the other. A prisoners’ dock was constructed against the west wall and was at a right angle to the table where the panel of judges or commissioners sat. The dock was four feet wide, elevated off of the floor one foot, and bounded by a railing that separated the prisoners from the
rest of the courtroom. The nine judges sat around a large table that faced the witness stand. Select members of the press corps and court reporters occupied another large table adjacent to the witness stand. At the foot of the judges’ table was a smaller table around which the prosecution team sat. Members of the defense team sat at two small tables located directly in front of the prisoners’ dock. The entire room was freshly whitewashed and outfitted with gas jets for those sessions that ran after dark. During the daylight hours the four windows flooded the room with light, which was enhanced by the newly whitened walls.

  The commission convened every day at 10:00 A.M. and continued until finished with that day’s work, no matter how late the hour. An important feature of the trial had the verbatim testimony recorded in shorthand by a system known as phonography. The phonographic recordings were transcribed at the end of each session, and copies were provided to the judge advocate and defense counsel before the next day’s session. This record of the previous day’s testimony was then read in open court to allow the two sides an opportunity to correct the record.18

  Early in the proceedings a motion was made that the daily reading be dispensed with since each side was presented with an official copy of the preceding day’s testimony.19 Thomas Ewing, defense counsel for Samuel Mudd, agreed, and the other defense counsels offered no objection. Judge Advocate Holt, however, did object. Holt thought it would be a dangerous precedent for them not to read the record in open court “where there are so many lives at stake, . . . and . . . where it is so vastly important . . . that there should be strict accuracy.”20 Accepting Holt’s concern, the court agreed to continue following the laborious practice of reading the previous day’s testimony at the start of each session. While this added considerably to the length of the proceedings, there would be no misunderstanding as to the accuracy of statements made by witnesses. Either side could object and seek a correction of the record. This is an important point in studying the transcript for historical purposes. While the various nuances of the witnesses reflected in their demeanor, voice inflections, hesitations, and the like cannot be gleaned from the transcript, the researcher can be sure of the accuracy of the transcript as evidenced by its approval by both the defense and the prosecution.