Blood on the Moon

by Edward , Jr. Steers

  The job of recording the testimony and providing copies to all parties fell on a group of select reporters who took an oath “to record the evidence faithfully and truly.”21 These reporters worked for phonographer Benn Pitman, who was uniquely qualified to oversee the recording process. Pitman was the brother of Isaac Pitman, the Englishman who devised a system of shorthand in 1837 which was adopted worldwide as an accurate and legitimate system of verbatim recordation.22 Pitman had served the government during the war as a phonographer recording military trials. His most famous trial was the Indiana Treason Trial which eventually wound up before the Supreme Court of the United States (and was known as ex parte Milligan). He was hired again by the government to reproduce the daily testimony at the conspiracy trial. As a result of his work he received approval to publish the transcripts he and his recorders produced. The only stipulations placed upon Pitman were that the production of such a publication result in no cost to the government and that it “adhere to strict accuracy.”23

  The Rules of Proceeding specified that a copy of each day’s testimony be provided to the judge advocate general and to “the counsel of the prisoners.” Pitman also supplied “press copies” to the Washington Intelligencer and to commercial telegraphers who transmitted the content of the copies to Philadelphia at the end of each day for publication in the Philadelphia Daily Inquirer. Thus, both the Intelligencer and the Inquirer published verbatim copies of the trial testimony daily. The accounts published in the Inquirer were plagued by numerous typographical errors that the Washington newspaper did not experience. This probably resulted from errors in transmission by the telegraphers, who, every evening, wired the large number of transcribed pages to their editor. The Intelligencer worked directly from the “press copy” and experienced few transcription errors.

  The term “press copy” has caused a certain amount of confusion among some authors, who misunderstand the meaning of “press copy” as used in 1865.24 While the term in twentieth-century parlance refers to a hard copy passed out to members of the press corps, it had a different meaning in mid-nineteenth-century parlance. The term described the process by which verbatim copies were produced. The transcription of shorthand notes was made with ink, and copies were “lifted” from the original ink transcriptions by laying a piece of tissue paper over the ink transcription, then backing it with a damp cloth, and then applying pressure. In this way, a “copy” was lifted off of the original transcription onto the tissue paper by transferring some of the ink. The use of tissue paper allowed the image to “bleed” through the transparent tissue. In skilled hands, the process was extremely effective.25

  The trial began on May 10 and lasted until June 29, a total of fifty days. President Johnson’s executive order of May 1, establishing the military commission, designated Judge Advocate General Joseph Holt to conduct the trial along with his assistant, Judge Advocate John A. Bingham, and Special Judge Advocate Henry L. Burnett.26 Responsibility for the prisoners and for carrying out the mandates of the commission was assigned to Major General John C. Hartranft. Sitting in judgment as military commissioners were nine Federal officers whose selection was made by Bingham, but most probably involved Stanton and Holt. The nine officers were Major General David Hunter, Major General Lew Wallace, Brevet Major General August Kautz, Brigadier General Albion Howe, Brigadier General Robert Foster, Brevet Brigadier General Cyrus B. Comstock, Brigadier General Thomas Harris, Brevet Colonel Horace Porter, and Lieutenant Colonel David Clendenin. Within twenty-four hours Comstock and Porter were relieved from serving and replaced by Brevet Brigadier General James Ekin and Brevet Colonel Charles Tompkins.27

  All nine of the officers were “shooting” officers, having seen combat service during the war. They were a no-nonsense group who obviously felt a strong attachment to the Union and Abraham Lincoln. All of them had shown qualities of leadership in their various capacities during the war. Included among the nine were four graduates of West Point who remained professional soldiers, a former United States marshal, a medical practitioner, an author, and a school teacher. Most important was the fact that none was an attorney or had professional training in the law.

  During the trial a total of 366 witnesses gave testimony on a wide range of subjects. The number of witnesses was nearly evenly divided between the prosecution and the defense. Of the 366 witnesses, twenty-nine were Black, all having been slaves at one time. These witnesses were identified in the trial record as “colored” to isolate their testimony from the White witnesses. Of the twenty-nine, eighteen testified for the prosecution and eleven testified for the defense.

  Physical descriptions of the accused as reported in the newspapers revealed the prejudice of the times, both positive and negative. Samuel Arnold was described as a young Baltimorean with an “intelligent face, curly brown hair and restless dark eyes.” Edman Spangler, on the other hand, had an “unintelligent-looking face . . . swollen by the excessive use of alcohol, a low forehead, brown hair, and anxious-looking eyes.” Michael O’Laughlen was a “small, delicate-looking man with pleasing features, uneasy black eyes, bushy black hair, and an imperial, anxious expression shaded by a sad, remorseful look.”28

  George Atzerodt faired worst of all. He was described as a “Teutonic Dugald Dalgettys,” a geographic stereotype that long ago escaped the English language. He was short, thickset, round-shouldered, brawny-armed with a stupid expression. He “manifested a stoical indifference to what was going on in the Court.” The writer of these observations concluded his description by describing Atzerodt as “crafty, cowardly, and mercenary, his own safety the all-absorbing subject of his thoughts.” One can empathize with Atzerodt if his thoughts during the trial tended to focus on his own safety.29

  Next came Lewis Powell. He was “very tall, with an athletic, gladiatorial frame.” He had a “massive robustness of animal manhood in its most stalwart type.” He exhibited “neither intellect nor intelligence in his dark gray eyes, low forehead, massive jaws, compressed full lips, small nose, large nostrils, dark hair and beardless face.” Most characterizations of Powell have relied on the descriptions given by his defense attorney, William E. Doster, which according to Powell biographer Betty Ownsbey “were melodramatic fiction told in the best Victorian tradition in an attempt to sway the court’s sympathy for a good boy gone wrong.”30 Doster described Powell as “rough and illiterate” and attempted to show that he was insane when he attempted to murder Seward. Doster pointed out to the commissioners that Powell “believed in Heaven and General Lee; dresses himself in the clothes of Union dead; stands guard over starving prisoners;. . . has his cup carved out of some Federal skull.”31 In his closing summation Doster soared into a flight of fancy: “I have formed an estimate of him little short of admiration, for his honesty of purpose, freedom from deception and malice, and courageous resolution to abide by the principles to which he was reared.”32 He ended by quoting Brutus: “This was a man!”33

  David Herold was “a doltish, insignificant-looking young man, not much over one and twenty years of age, with a slender frame, and irresolute, cowardly appearance.” His “Israelite nose” separated his “small, dark hazel eyes” and was located just above his “incipient moustache.” The writer of this description was amazed that a villain like Booth would have selected “such a contemptuous-looking fellow” as a co-conspirator.34

  Mary Surratt and Samuel Mudd were spared all the stereotypical negatives used on the others. Mary, “a belle in her youth,” had “rather pleasing features,” dark grey eyes and brown hair. Those in the courtroom saw her as “the devoted mother of an attached family, of pious sentiments, and deserving the recommendations so lavishly given of her by her religious advisors.” Mary’s was the only description that included a lengthy biography of her life, which was sure to “inspire feelings of pity.”35

  Dr. Samuel A. Mudd was the most puzzling of the conspirators. He was “the most inoffensive and decent in appearance of all the prisoners.” Described as forty years of
age, he was actually thirty-two years old. He was “rather tall, quite thin, with sharp features, a high bald forehead, astute blue eyes, compressed pale lips, and sandy hair, moustache and whiskers.”36 All in all, Dr. Mudd was an aristocrat completely out of place among the other rabble at the bar. But not all of the descriptions of Dr. Mudd were positive. General Thomas Harris, a member of the commission, revealed his own phrenological beliefs when he wrote, “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 acquaintanceship to have removed the unfavorable impression made by first scanning of the man. He had the appearance of a natural born liar and deceiver.”37

  The defense attorneys were a sound and accomplished group of lawyers. The most distinguished was Maryland Senator Reverdy Johnson. At sixty-nine, Johnson had already accumulated a lifetime of honors. He had served in a variety of posts including Maryland’s deputy attorney general (1816–17) and United States attorney general (1849–50). Johnson represented the slaveowners in the Dred Scott case and had originally believed in the South’s right to secede, only to reverse himself when his own state began to consider it. Second only to Johnson in prestige was Brevet Major General Thomas Ewing Jr., counsel for Samuel Mudd and Samuel Arnold. Ewing had served as chief justice on the Kansas Supreme Court in 1861–62 before resigning to become colonel of the Eleventh Kansas Cavalry. A year later he was promoted to brigadier general and was breveted major general in February 1865.

  Frederick Aiken and John W. Clampitt were junior law partners with Reverdy Johnson, and when Johnson withdrew into the background, they assumed control of Mary Surratt’s defense. Aiken was a somewhat strange individual. On April 5, 1861, a week before the attack on Fort Sumter, Aiken offered his “intellectual” services to the Confederacy stating that he would rather give his pen than his blood to support the new cause. Apparently rebuffed, he wound up an aide on the staff of Major General Winfield Scott Hancock. John W. Clampitt also served in the Union army, in the Washington Light Infantry. Both Aiken and Clampitt were young attorneys in their late twenties. For both men, Mary Surratt’s defense would be the first major case of their careers.38

  Appointed by the court to act as defense counsel for George Atzerodt and Lewis Powell was William E. Doster. Doster had entered the war with the Fourth Pennsylvania Cavalry and rose to the rank of lieutenant colonel. In March 1865 he was breveted brigadier general for “gallant and meritorious service during the war.”39 Doster had recently served as provost marshal of Washington, a position he filled admirably. In 1862 he had flagged Thomas Nelson Conrad and had him arrested and thrown into Old Capitol Prison. At one time he had come under the evil eye of Lafayette Baker, who had Doster charged with aiding in the smuggling of liquor. Doster quickly countered by proving that the document that he allegedly issued was a forgery. The charges were dismissed. Doster’s credentials were impressive. He graduated from Yale University in 1857 and obtained his law degree from Harvard University in 1859. His defense of Atzerodt and Powell was as capable as any lawyer could have provided, and his vigorous objection to the prosecution’s attempt to introduce a confession given by Atzerodt to Provost Marshal James McPhail was successful.

  The last two attorneys to appear on behalf of the accused were Frederick Stone and Walter S. Cox. Stone was descended from an old Charles County, Maryland, family tracing its lineage back to Thomas Stone, a member of the Continental Congress and signer of the Declaration of Independence. Stone was forty-five years old at the time of the trial and was among the wealthiest residents of Charles County. He was considered the county’s leading attorney and in 1870 was a member of the United States Congress. Stone represented Samuel Mudd and Davy Herold. Rounding out the defense attorneys, Cox represented Michael O’Laughlen and Samuel Arnold.

  Joseph Holt was Lincoln’s judge advocate general. Holt was a Kentucky Democrat who had been a highly successful lawyer in private life. He had served in James Buchanan’s cabinet first as postmaster general and later as secretary of war, succeeding John Floyd after the latter resigned his post in December 1860. Although a Kentuckian, Holt became a staunch Unionist and stood by Lincoln and his policies throughout the war. He was a prime mover in calling for a military trial of the accused conspirators and initially tried to keep the trial proceedings secret. Holt, more than anyone else, believed Jefferson Davis and members of his cabinet were directly involved in the assassination.

  Holt was considered by most of his peers to be a brilliant lawyer and a serious student of the law. Placed in charge of the prosecution, he felt deficient in his ability to argue the case orally before the commission. Holt agreed to plan the prosecution but let his assistant, John A. Bingham, handle the examination of witnesses and final summation. Like Stanton, Holt has been demonized by many latter-day writers for a seeming disregard for civil liberties. At the time of the trial, however, both Stanton and Holt were held in high regard by the general public and by fellow jurists. Much of the criticism against them is unfounded.

  Assistant Judge Advocate General John A. Bingham physically represented the government before the commission. He was born in Pennsylvania in 1815 and moved to Cadiz, Ohio, where he became a lawyer in 1840, serving as district attorney before being elected to the House of Representatives. Defeated in his bid for reelection in 1862, Bingham won reelection in 1864. It was during his second term as a representative from Ohio that Bingham was appointed special judge advocate and assistant to Holt.

  Rounding out the prosecution was Henry L. Burnett. Like the nine members sitting on the commission, Burnett was a “shooting” officer. He served as a captain with the Second Ohio Cavalry in Missouri, Kansas, and Kentucky. His outfit took part in the capture of Confederate raider John Hunt Morgan in the summer of 1863. Shortly after Morgan’s capture Burnett was appointed a judge advocate in the Bureau of Military Justice where he became involved in prosecuting the Copperheads, who had planned to liberate Confederate prisoners of war held at Camp Douglas in Chicago. His success while serving in the Bureau of Military Justice earned him a brevet appointment of brigadier general of volunteers in March of 1865 and an appointment as a special judge advocate assisting Holt and Bingham.

  The commission met for the first time on May 10 at 10:00 A.M. President Johnson’s executive order was read, and the defendants were asked if they had any objection to any of the members of the commission. They did not. The defendants next heard the charges and specifications against them for the first time. While each of the accused had specifications tailored to his or her particular case, all were charged with “maliciously, unlawfully, and traitorously . . . conspiring . . . to kill and murder,. . . Abraham Lincoln, . . . Andrew Johnson, . . . William H. Seward, . . . and Ulysses S. Grant, . . . and assaulting, with intent to kill and murder,. . . William H. Seward,. . . and lying in wait with intent. . . to kill and murder the said Andrew Johnson,. . . and the said Ulysses S. Grant.” Each pleaded “not guilty.”40 The commission then adjourned to allow the defendants further time to retain counsel and confer with their counsel on the charges and specifications. The defendants’ counsel had to be approved by the commission as satisfactory to represent the accused. While some viewed this as sinister, it was more to insure competent counsel since the charges carried the death penalty.

  On May 11 the commission met for a second time and approved counsel for Samuel Mudd and Mary Surratt. The remaining six defendants had not yet secured counsel and the commission adjourned until the next day, allowing them time to do so. When the commission met on the twelfth all six defendants submitted counsel for approval. Frederick Stone of Charles County, Maryland, would represent David Herold and Samuel Mudd. Thomas Ewing would represent Samuel Arnold. William E. Doster would represent George Atzerodt, while Walter S. Cox would represent Michael O’Laughlen. William Doster would also represent Lewis Powell, while Thomas Ewing would take on Edman Spangler in addition to Dr. Mudd. At this time Mary Surratt submitted Reverdy Johnson’s
name as co-counsel along with those of John W. Clampitt and Frederick Aiken to represent her.

  Johnson’s appointment was immediately challenged by Thomas Harris, who questioned his fitness because of his earlier opposition to requiring voters in Maryland to take a loyalty oath. In November of 1864, the Constitutional Convention of Maryland had passed a new state constitution that was presented to the voters for ratification in a special referendum. The convention also passed a resolution requiring a loyalty oath be taken as a requirement for any citizen to vote. Johnson challenged the requirement, declaring it unconstitutional. In a letter, made public, Johnson told the citizens of Maryland that they were under no obligation to honor such an oath because its enactment was beyond the authority of the convention and was unconstitutional. Johnson eloquently argued his case before the members of the commission, basing his opposition to a loyalty oath on the grounds that the Maryland convention lacked the authority to set standards for voting that went beyond those spelled out in the United States Constitution. Johnson was not opposed to a declaration of loyalty to the Union. He had taken such an oath himself on entering the United States Senate. He objected only to making it a condition to vote that he felt exceeded the constitutional requirements for voting.