Mrs. Campbell, who had known the Stantons in prewar days, begged him to parole her husband. “And now Mr. Stanton,” she pleaded, “at the risk of wearing out your patience—permit me to refer you back to … October 1863 when you rendered to myself and daughter, then in Washington, marks of kindness and consideration, I have never ceased gratefully to remember.… You said, I think in the last interview I had with you, what I quote to you now, ‘I am sure, Judge Campbell would have no desire to separate me from my wife and children—and I have no desire to keep him apart from his.…’ Oh, Mr. Stanton, let the thought of your own family plead for us.”
As time passed, Stanton became disposed to treat Campbell leniently, but except for Seward, the other members of the cabinet and the President distrusted the former Supreme Court judge. Six weeks after receiving Mrs. Campbell’s plea, Stanton was obliged to tell her that the President and cabinet had decided that Campbell must remain in prison for the present.4
Though the civil courts were functioning, Stanton wanted to try the alleged culprits at once before a military commission, where the rules of evidence would be less constricting and punishment was more likely to be stern and swift. He agreed with his friend Brady that this was the only plausible moderate course, for if the assassins got off or if President Johnson appeared to be weak toward them, then the “half-crazy abolitionist mind of the North” might whirl around to join with copperhead Democrats in opposition to constructive reconstruction measures.
So, in cabinet, Stanton pressed his arguments for the utility of a military commission. He had wanted the trial begun before Lincoln was buried, but failing in that, wanted no more time lost, and President Johnson was on his side. Attorney General Speed seemed reluctant to agree at first on the legitimacy of a military tribunal, but he soon succumbed to the argument advanced by Stanton and Holt that a trial by a military commission would be legal under what Holt termed “the common law of war.”5
A large segment of the press continued to insist that military proceedings were unconstitutional. Former Attorney General Bates wrote a powerful argument to this effect which received wide newspaper circulation. Though Stanton had never had a very high opinion of Bates, he was worried that the President might accept his reasoning and terminate the trial. At Stanton’s suggestion, Speed published a lengthy counterblast to Bates’s criticism.
The weighty opinions of Bates and Speed fanned the fires of journalistic abuse. Greeley leveled such a barrage of criticism at Stanton that he contemplated bringing suit against the Tribune for trying “to incite assassins to finish their work by murdering me.” Although no suit was pressed, personal animosity endured between the two men.6
Stanton was not, as Welles supposed, the originator of the plan whereby the trial would be conducted secretly. This was Holt’s idea. The Kentuckian was convinced that he had a God-given mission in life to avenge Lincoln’s murder. For his part, Stanton had wanted an open military trial from the beginning, but Holt convinced him that secrecy was the better way. News that the trial was to be held behind locked doors mysteriously leaked out, and it brought such voluble protests that Stanton had to rescind the order.
So far as Stanton was concerned, the trial of the conspirators was Holt’s responsibility from beginning to end. His own official concern with it was finished when the assassins and conspirators were caught, although he continued to play a significant part in collecting evidence and examining witnesses. He did not, however, predetermine the outcome.
With Speed now convinced that a military trial for the assassins was legal, Stanton had General Townsend select the officers who would constitute the court. Townsend learned that some officers, despite the Attorney General’s ruling, were skeptical of the legitimacy of the proceedings. C. B. Comstock, for example, was one of the original choices for the commission. “Wish I could get off,” he wrote in his diary. “They ought to be tried by civil courts.” Comstock was delighted when, suddenly, orders from the Secretary of War relieved him of this unwelcome assignment, along with one other, unnamed officer. Stanton took care to tell Grant that no fault was to be imputed to Comstock, but that as Grant had been a target for assassination himself and the two officers were members of his staff, it seemed best to substitute other men. It is obvious, however, that this alteration cleared from the roster of the officer-judges at least one man who doubted the validity of the court of which he was a member.
Stanton designated Holt as Judge Advocate to present the case for the government, with Congressman Bingham, Stanton’s old Cadiz friend, and Colonel H. L. Burnett as his assistants. The accused were allowed to employ civilian counsel. Under the rules of procedure in a military court, it was incumbent upon the prosecution not only to obtain convictions wherever they were warranted but also to present all evidence bearing on both the guilt and the innocence of the accused and to see to it that their rights were respected.7
The military commission began its sitting on the morning of May 9. Next day the prisoners were led in to hear the charges and specifications, which were drawn also against the other Confederates whom the President had accused of complicity in the assassination in his recent proclamation. To Stanton and Holt, it seemed no less important that the guilt of these officials be established than that the prisoners be convicted. Throughout the trial the Secretary was on the alert for evidence against them.8
By May 23, Holt, Bingham, and Burnett had brought 123 government witnesses before the military court; after this the defense produced its witnesses. A summation by each side followed. Then the court went into private session to deliberate.
Holt relied chiefly on three witnesses to link Davis and other Confederate leaders to the murder plot. They were Sanford Conover, Richard Montgomery, and Dr. James B. Merritt, all of whom claimed to have had intimate contact with the Confederate agents in Canada. For “prudential reasons” the commission went into secret session for their testimony, but Benn Pitman, the chief court reporter, allowed part of Conover’s testimony to reach the press. It created such a stir that the government felt obliged to corroborate it by releasing the testimony of the others. Counterevidence brought forward impugned the witnesses’ veracity, and they soon became enmeshed in a web of falsehood.
To Jacob Thompson and Jeremiah S. Black, all this proved that “the vindictiveness of our old colleagues at Washington knows no bounds,” and that Stanton and Holt were indulging in personal spite against Thompson by accusing him of complicity in Lincoln’s murder. But if this was true in whole or in part, the fact remains that Stanton, who had no role in selecting the government’s witnesses, was far from being the only official in Washington who was convinced of the existence of a conspiracy, born in Richmond and in Canada, to kill Lincoln and other high government personages.9
While the military commission weighed the evidence in seclusion, speculation ran riot concerning what the decision would be. It was the consensus that Payne, Herold, and Atzerodt were doomed. But Arnold, O’Laughlin, and Spangler seemed only remotely implicated in the murder plot, and Dr. Mudd and Mrs. Surratt seemed to stand a chance of acquittal. Working against Mrs. Surratt, however, was the fact that her son was a fugitive. The government hoped to force him out of hiding by imperiling the life of his mother.
Stanton, according to his private secretary, had no personal connection with the trial of Mrs. Surratt aside from subjecting her boarder, Weichmann, to a stiff cross-examination. Weichmann’s testimony, by showing that Booth had frequently visited and talked to his alleged accomplices at the Surratt boardinghouse, laid the basis for the charge that the plot had been hatched there. Taken in connection with statements of John M. Lloyd, who kept a tavern for Mrs. Surratt, it also clearly implicated her. It also counted against her that the assassin Payne had been arrested while seeking entrance to her house, and there were other complaints against her. But she might have escaped conviction if it had not been for the testimony of Weichmann and Lloyd.
Weichmann, too, might very well have been accused of c
omplicity in the plot, and two years later, at the trial of John Surratt, Lloyd not only contradicted some of the statements he had made at the conspiracy trial but admitted that he had been subjected to both promises and threats.10 That Weichmann was subjected to the same sort of intimidation by Stanton, in the private cross-examination, seems likely from the statement made by John T. Ford, owner of the celebrated theater. Ford, imprisoned with Lloyd and Weichmann, became convinced from what they told him that Mrs. Surratt was innocent and that the two witnesses had been coerced. “Many yet living recall their fright,” Ford wrote, and asserted that Weichmann had told him that “Secretary Stanton had, in a threatening manner, expressed the opinion that his [Weichmann’s] hands had as much of the President’s blood on them as Booth’s.”
Weichmann, testifying at the John Surratt inquiry in 1867, said he had been “nervous” at the previous trial, and contradicted some of his previous statements, thereby putting Mrs. Surratt in a more favorable light. At this second trial, which in some respects amounted to a rehearing of Mrs. Surratt’s case, Louis Carland, a former customer at Ford’s Theater, testified that Weichmann had told him in 1865 that if he had been “let alone … it could have been quite a different affair with Mrs. Surratt than it was,” that his statements had been written out for him, and that he had been threatened with prosecution as an accessory if he refused to swear to them. Weichmann, under examination, denied that he had made this confession, but admitted that he had talked to Carland.
John W. Clampitt, one of Mrs. Surratt’s lawyers, a number of years after the trial wrote that Weichmann, after testifying, had been stung with remorse because he had committed perjury in implicating Mrs. Surratt in Lincoln’s murder. Certain “authorities of the War Department” had threatened to prosecute him as an accomplice in the conspiracy against Lincoln if he refused to offer testimony, Weichmann claimed, according to Clampitt. Holt had rejected the first statement Weichmann had prepared with the remark that “it was not strong enough,” whereupon, still under threat of prosecution, Weichmann had written a second and stronger statement, the substance of which he subsequently swore to on the witness stand. The man to whom Weichmann made this confession, wrote Clampitt, was refused permission to testify.11
Just how severely Stanton worked Weichmann over in private cross-examination must remain a matter of conjecture. But Stanton was not the only one who put the young clerk on the griddle. Passions were high, and this was a period when even civil courts employed standards of procedure which today seem shockingly low. Promises as well as threats helped loosen Weichmann’s tongue, as they had with Lloyd. Later, on Stanton’s and Holt’s recommendations, Weichmann was given a clerkship in the Philadelphia customhouse, and he kept his government post for more than twenty-five years, writing in 1900 that except for the continuing intercession of Burnett and Bingham, “I would long ago have fallen by the wayside.” But he also asserted at this time: “I believe that both Mrs. Surratt and her son were deeply involved and if they had done their duty as Christian people they could have saved the life of Mr. Lincoln.” On his deathbed he signed a statement attesting to the truth of “every word” he had uttered at the assassination trial.
Throughout the trial the government tried to minimize the fact that Booth had concocted two separate plots against Lincoln. The first was to kidnap the President, and it was not until the very day of the assassination that Booth had resolved to kill him. This fact was made evident in the diary that had been taken from Booth’s body and subsequently turned over to Stanton. Strangely enough, this diary, which would have shown that Arnold, O’Laughlin, and both Surratts, though participants in the abduction plot, were ignorant of Booth’s design to murder, was never introduced in evidence by either side. In this the prosecution was remiss in its duty to present all the facts. But the government was in no mood to draw fine distinctions. To the prosecuting authorities, complicity in the one scheme amounted to participation in the other. A President, after all, was dead; the abduction plot alone warranted severe penalties.
That the defense attorneys failed to call for the diary is far more remarkable than that the government did not produce it. They were singularly inept or, at best, incredibly forgetful. Though the diary was in the War Department archives, the New York Times of April 27 and the World on the next day had referred to its being found.
It was not part of Stanton’s responsibility to see to it that the diary appeared at the trial. There is no evidence that he was a party to its suppression, if, indeed, the document was suppressed at all in the sense of a deliberate withholding of it. But this was to be added to the arsenal of historical weapons which Stanton’s enemies were to launch at him as a result of later developments.
Another abstruse feature of the trial was the failure of the Judge Advocate to attempt to trace Booth’s movements from the time he left Dr. Mudd’s house after having his broken leg set until he crossed the Rappahannock River at Port Conway—a period of nine days. Stanton’s offer of a reward for Booth’s capture had been accompanied by a warning that anyone harboring or aiding the fugitive would be tried as an accomplice in his crime, and a number of persons were known to have aided Booth during this phase of his flight. But though some of these persons were arrested and questioned, no charges were brought against them. Yet the government knew Booth’s route.12
The military commission reached a verdict on the last day of June. It found all the prisoners guilty of conspiring with the Confederates named in the proclamation to murder Lincoln, Johnson, Seward, and Grant, and sentenced Payne, Herold, Atzerodt, and Mrs. Surratt to be hanged. O’Laughlin and Dr. Mudd were sentenced to hard labor for life, Spangler for six years.
According to the rules governing the commission, it could impose the death penalty only by a two-thirds vote. In Mrs. Surratt’s case this was obtained on condition that five members of the commission be permitted to petition President Johnson for a commutation of her sentence from death to life imprisonment by reason of her age and sex. This petition was attached to the findings and sentences by Burnett after he had taken the court record to Holt’s office. Its existence was kept a strict secret from the public.
There is no doubt that Stanton, like President Johnson and the other members of the cabinet, felt that Mrs. Surratt was guilty. Welles, writing to Johnson in 1873, “thought then and think now, [that] she was deserving of punishment as any of those implicated.” Welles asserted that “my impression of her guilt was derived chiefly from Mr. Stanton, who denounced her as most deserving of punishment.” But Welles, who hated Stanton, never implied that the War Secretary engineered her death sentence.
Nor did Stanton prevent her from receiving the President’s clemency. The commission reached its decision at a time when both men were severely ill. The sick President and the sick War Secretary saw each other only momentarily if at all during the first week of July.
Holt was able to obtain an interview alone with the ailing President on the afternoon of July 5, and he brought to the White House “a formal brief review of the case” and the secret record, though not the voluminous testimony. He was not circumventing Stanton. Existing procedures involved direct communication between the Bureau of Military Justice and the President; there was no reason for Holt to go through the office of the Secretary of War.
No one else was present when Holt laid these papers before Johnson. Johnson did not read them; Holt merely briefed him on them. The sentences in the case of Herold, Atzerodt, and Payne were considered and approved. What happened next, however, in the case of Mrs. Surratt, became the subject of a heated controversy between Johnson and Holt in later years.
The President claimed that “no recommendation for a commutation of her punishment was mentioned or submitted to me.” Holt maintained, on the other hand, that he “drew the President’s attention specially to the recommendation in favor of Mrs. Surratt, which he read and freely commented on.” Both men agreed, however, that the matter of clemency for Mrs. Surratt was discussed,
and Johnson never denied that they were at one in the opinion that her age and sex furnished no ground for modifying the sentence of the court and that she deserved to die. Thus it seems unlikely that Johnson would have been moved by the petition, whether or not he saw it.13
Johnson made a telling point against Holt in their later controversy by calling attention to the fact that Pitman’s record of the trial contained no reference whatever to the petition for clemency, though Stanton had stipulated that Burnett should be responsible to the Bureau of Military Justice for its “strict accuracy.” The President accused Holt and Stanton of engineering the omission of the petition, maintained that he had never seen the petition, and in a campaign speech in 1873, when he was electioneering for a U. S. Senate seat, stated that Mrs. Surratt had been executed by trickery and that Stanton eventually committed suicide in remorse for this deed.
There was evasion, but the trickery was not of Stanton’s making. The whole question of the accuracy of the Pitman trial record needs evaluation, for example. Pitman himself described his transcript as “a great heap of rubbish.” But this is not the major point.
Holt’s excuse for not including the petition in Pitman’s authorized printed record of the trial—namely, that “recommendations to mercy by members of military courts do not in law constitute any part of the records”—would appear to be pure evasion, inasmuch as Pitman’s book is as much a history of the trial as an official record of the court proceedings, and contains many documents and papers far less pertinent to the subject than the omitted petition. In the “formal brief review of the case” that Holt submitted to President Johnson on July 5, no mention is made of the petition. Nor did Holt mention it in his formal report of the proceedings to Stanton.
Thus the conclusion seems inescapable that Holt, determined that the major conspirators should die, willfully concealed the contents of the petition from the President. And the question then arises: Was Stanton a party to the subterfuge? The evidence seems to exempt him from this charge.
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