Lincoln's Code

by John Fabian Witt

  Yet there was an alternative approach to the end of war, one that had long been adopted in civil wars. In the seventeenth century, the English Civil War had closed with the execution of prominent royalists. Widespread executions and purposeful starvation marked the grim finale of the uprising in Scotland in 1745. A half century later, Lord Charles Cornwallis (seventeen years removed from his defeat at Yorktown, Virginia) executed thousands of defeated Irish rebels. In the first decade of the nineteenth century, Napoleon imposed terrible punishments on men caught up in guerrilla insurgencies against his puppet governments, first in Calabria and then in Spain.

  The code Lincoln issued in 1863 balanced precariously between the honorable soldier’s amnesty and the much harsher approach characteristic of civil wars. The fierce vision embodied in the code had already underwritten nearly 1,000 war crimes trials during the war. By its terms, it authorized treason prosecutions of rebels in the war’s wake, too. After John Wilkes Booth assassinated Lincoln on April 14, a mere five days after the courtly meeting of military commanders at Appomattox, northern sentiment tipped toward a fierce justice for the postwar world. Arrests of high-ranking Confederate officers and civilian officials followed hard on the heels of the April surrenders. The Union Army cast Jefferson Davis into solitary confinement at Fort Monroe in Virginia and held his vice president, the diminutive Alexander Stephens of Georgia, at Fort Warren in Boston Harbor. In quick succession, Union forces arrested the former justice of the U.S. Supreme Court John Campbell and Confederate cabinet officials George Trenholm, James Seddon, John Reagan, Robert Hunter, and Stephen Mallory. Governors Zebulon Vance of North Carolina, Abraham Allison of Florida, and Joseph Brown of Georgia soon found themselves in prison, as did the Confederacy’s Canadian agent Clement Clay, Senator Benjamin Harvey Hill of Georgia, the Confederate agent for exchange Robert Ould, and a number of others. In May, the Lincoln assassination conspirators went on trial. Captain Henry Wirz, the commandant of the Andersonville prison camp, sat in the Old Capitol Prison in Washington, D.C., awaiting his own trial for abusing Union soldiers. And in midsummer, Secretary of War Stanton sent Francis Lieber into the Confederate archives on a mission to uncover evidence of complicity by Jefferson Davis and other high officials of the Confederacy in the crimes of the war.

  Lieber’s foray into the rebel archives promised to undo the magnanimous spirit of Grant and Lee at Appomattox. His project aimed to support a vast system of war crimes trials and to carry the uncompromising approach to the laws of warfare into the postwar world. But it was not to be. Within two years, Jefferson Davis would walk out of Fort Monroe arm-in-arm with his wife. Eighteen months thereafter, Johnson would issue an amnesty for Davis and the last few Confederate officials yet to be pardoned. The project of turning the laws of war into a vehicle for prosecuting Confederate leaders had come to naught. But why?

  To Assassinate Everybody

  JOHN WILKES BOOTH’S bullet denied Lincoln the chance to elaborate a full-blown plan for dealing with the rebels in the postwar world. But the martyred president left clues.

  In his Second Inaugural Address, delivered on March 4, 1865, Lincoln voiced the thoughts that had preoccupied him in the fall of 1862 as he considered Emancipation and a more aggressive Union war effort. The problem, he told the inaugural crowd, was that each side to the conflict imagined it was in the right. Men in the North and the South “read the same Bible, and pray to the same God; and each invokes His aid against the other.” It seemed impossible that those who fought to defend the evils of slavery could lay claim to God’s authority. But Lincoln cautioned against overconfidence. “Let us judge not that we be not judged,” Lincoln said, echoing the New Testament’s Matthew 7:1 God would judge, for there was sin enough for both sides. (“He gives to both North and South, this terrible war, as woe due to those by whom the offence came. . . .”) Our role on earth was to leave revenge behind and to move forward to “bind up the nation’s wounds.” Exquisitely attuned to the limits on man’s capacity to know for certain whether his way is the way of God, Lincoln finished the address with words that balanced humility with righteousness: “With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in . . . to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.”

  Lincoln’s thinking in the final weeks of the conflict was singularly forward-looking. Charles Sumner remembered that the president “had been gentle & forgiving” down to the last. The president, Sumner recalled, “said nothing harsh even of Jefferson Davis,” and urged fellow Union men to “repeat the words quoted in his late address, ‘Judge not that ye be not judged.’” Lincoln’s actions matched his words. In December 1863, he offered full pardons to rebels willing to swear an oath of loyalty to the Constitution of the United States and respect all laws and presidential proclamations regarding Emancipation. (Lincoln excluded several classes of rebels, including high-ranking military officers, civil or diplomatic agents, and anyone who had treated black Union soldiers or their officers “otherwise than lawfully as prisoners of war.”) A year later, in his December 1864 message to the Congress, the president assured the nation that the offer remained open, though he warned that it would not remain open forever. All but Jefferson Davis, he said, would be allowed to “reaccept the Union.” (Privately he hoped Davis would escape abroad.) In February 1865, Lincoln even presented a plan to his cabinet that would have paid the South $400 million in compensation for Emancipation (equal to the cost of 200 days of war) and offered amnesty for treason if the rebels would agree to put down their arms.

  When prominent American actor and Confederate sympathizer John Wilkes Booth assassinated Lincoln at Ford’s Theatre in Washington, he eliminated the Union leader most committed to the amnesty tradition in postwar justice. For there was a powerful backward-looking and sometimes vengeful streak in Union sentiment as well. In the Congress, Senator Benjamin Wade and the powerful Joint Committee on the Conduct of the War had been pressing since January for retaliation against the South for its treatment of Union soldiers and other atrocities. “If you go to war,” Wade thundered, “you have departed from the great principles laid down by Christ and His followers.” The forgiveness principle of the Sermon on the Mount, Wade insisted, thus had no application to conduct in war. Sumner disagreed, and cited his friend Lieber as an authority on the dangers of retaliation. But others, such as Senator Timothy Howe of Wisconsin, sided with the Joint Committee. The better biblical frame of reference, he said on the Senate floor, was not New Testament forgiveness but Old Testament retaliation: the law of an eye for an eye. “If they take a tooth,” Howe announced, the Union ought “to take another” in reprisal.

  JOSEPH HOLT IN the War Department’s Bureau of Military Justice believed the assassination of Lincoln demanded severe postwar measures. But where Wade and Howe had pressed for retaliation, Holt sought the criminal punishment of Confederate leaders. In the spirit of his departed president’s code, he aimed to adapt the fierce law of war of the wartime military commissions for the postwar world.

  In the days after Booth shot Lincoln, the assassination of the president was Holt’s overwhelming preoccupation. Booth had leapt to the stage and escaped (hobbled by his fall) through a back door. In the hours that followed, even before the president was dead, Edwin Stanton personally launched a fevered investigation, which he soon handed off to Holt and the Bureau of Military Justice. Within ten days, the government had arrested seven people Holt believed had conspired in the assassination. On April 26, Union troops tracked down and killed Booth in a Virginia barn seventy-eight miles from the capital and arrested his companion, the impressionable David Herold.

  Stanton and Holt thought that the authority of their wartime military tribunals extended to the eight alleged conspirators in custody. Less than twenty years after Winfield Scott had pioneered the idea of the military commission in Mexico, the criminal punishment of th
ose who violated the laws of war had become standard operating procedure in the Union war effort. The code of 1863, which set out much of the law that the military commissions applied, listed assassination as a violation of the laws of war. Though the provision had been drafted with the Confederate outlawry of Benjamin Butler and David Hunter in mind, it would apply just as well to the killing of Lincoln. The trial of the assassination conspirators would proceed in a military tribunal, as had hundreds of trials for violations of the laws of war in the preceding four years.

  The new attorney general of the United States, James Speed, agreed. Lincoln had appointed Speed in December 1864 to replace the aging and ill Edward Bates. As a longtime antislavery lawyer from Kentucky, his instincts now ran to the protection of the freedpeople, something that became more apparent with time and that ultimately led to his resignation in 1866. But he was not the sharpest lawyer. Lincoln had chosen him for his border state political connections, not his legal acumen. An unsympathetic Justice Samuel Miller wrote that Speed was “one of the feeblest men” he had seen argue before the Court. And when President Johnson asked him whether the Lincoln conspirators could be tried in a military commission, Speed made what would prove to be a fateful error. In a long opinion, Speed contended not only that the assassination could and should be tried by military commission but that it could not be tried in any other forum. “If the persons charged have offended against the laws of war,” Speed opined, “it would be as palpably 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.”

  Perhaps Speed was not to be blamed for erring. The law governing punishment for violations of the laws of war was startlingly new; the term “war crime” had not yet even come into use. But his mistake was an important one. There was no reason to see resort to the courts as legally unavailable. The theory of the prosecution was that Booth and his accomplices were not acting as lawful soldiers and therefore could not claim the privilege to kill that the law of war afforded. There was thus no need to charge Booth’s accomplices with war crimes at all. They might just as well have been charged with conspiracy to commit murder. But given the standard operating procedures of Holt’s Bureau of Military Justice, and given that the White House was in post-assassination disarray, little or no thought was put into whether the trial might better have taken place in the federal courts in Washington, D.C. Speed had reached his conclusion by May 1. And once the case was set for trial in a military commission, a series of tactical mistakes ensued, mistakes that almost certainly would not have been made in a civilian courtroom and that would soon come back to haunt Holt’s postwar effort to bring rebel leaders to trial.

  WHEN THE LINCOLN assassination commission opened on May 9, 1865, six male defendants shuffled into a low-ceilinged room in the Old Arsenal Penitentiary in Washington. They were dressed in black and hooded so that they could not see. The two defendants who followed close behind—a woman named Mary Surratt and a seventh man named Dr. Samuel Mudd—were spared the indignity of the hood, but all the defendants wore shackles of one kind or another. Some were chained to heavy iron balls. At Holt’s order, the room had been closed to the public.

  Having persuaded themselves that a military commission was necessary, Holt and his judge advocates had pressed the commission to its limits. Brevet Major General August Kautz, who sat as one of the members of the commission, thought the scene looked like something out of the Spanish Inquisition. “I was quite impressed with its impropriety in this age,” Kautz later recalled. Holt soon pulled back. On subsequent days, the hoods disappeared. The secrecy rule was lifted when the newspapers protested and Holt realized that he would not be able to prevent selective leaks. But the damage was done. The shackles remained, and so did the lasting image of the hooded defendants before a secret tribunal.

  Two of the most trusted members of Holt’s wartime judge advocate team, John Bingham and Henry Burnett, assisted the judge advocate general in the trial. The three men presented a stream of witnesses whose testimony connected the defendants to Booth. Against six of them, the evidence (while not bulletproof) was relatively clear. George Atzerodt, who was supposed to have attacked Vice President Johnson but had failed to do so, had taken a room at the Kirkwood House hotel where the vice president was staying; weapons and a bankbook in Booth’s name were found in the room. Lewis Powell, who had been assigned to kill Secretary of State Seward and had nearly accomplished his goal, was identified by multiple eyewitnesses to his brutal knife attack on Seward in the secretary’s Washington home. David Herold had been captured with the assassin. Statements by one of the defendants, Samuel Arnold, convincingly connected Arnold and his co-defendant Michael O’Laughlin to an earlier plot by Booth to kidnap Lincoln, though there was little to suggest that either man had been involved in the events immediately surrounding the April 14 assassination. Edman Spangler, a stagehand and carpenter, was implicated by testimony showing that he had helped Booth get away down the back alley behind the theater.

  The cases against Mary Surratt and the Virginia doctor named Samuel Mudd, the remaining two defendants, were considerably more controversial. Fleeing Washington, Booth and Herold had sought medical assistance at Mudd’s home within hours of the assassination; Mudd set Booth’s broken leg and failed to alert authorities to the possibility that his patient might have been the fugitive assassin. A boarder at Mary Surratt’s boardinghouse named Louis J. Weichman further testified that he had spent time together with Mudd and Booth in the capital weeks before Booth sought medical assistance from Mudd in Virginia.

  Weichman also implicated Mary Surratt, testifying that Atzerodt, Powell, Herold, and Booth had all frequented the Surratt boardinghouse in the weeks leading up to the assassination and that Booth had spoken secretively with Mary and her son John, who later fled the country to evade arrest. Another witness, John Lloyd, also testified against Surratt. Lloyd, who had leased a farm and tavern from Surratt at the tiny Virginia crossroads known as Surrattsville, swore that John Surratt along with Herold and Atzerodt had left guns and ammunition at the tavern several weeks before the assassination, and that Mary Surratt had checked to make sure the guns were at the ready in the days before the assassination and had done so again on the fateful day itself. Also weighing against Surratt was the inconvenient fact that Powell had implicated her by his actions. He had been arrested three days after the assassination when he arrived poorly disguised at her boardinghouse while investigators were searching the premises.

  The testimony of Weichman and Lloyd laid powerful, if circumstantial, cases against Surratt and Mudd. Had Holt stopped there, and especially if Surratt had been imprisoned with Mudd rather than executed, the Lincoln assassination trial might not have generated the controversy it has for the past 150 years. But Holt was not satisfied with pursuing the eight defendants before the commission. The charges named Jefferson Davis and seven Confederate agents in Canada as unindicted co-conspirators in the assassination plot. And when the case delved into this broader conspiracy theory, it began to come apart at the seams.

  THE PRINCIPAL STRATEGY of the defense was to contest the authority of the military commission to try the defendants for violating the laws of war. Senator Reverdy Johnson of Maryland represented Mary Surratt and took the same position that John Lee had adopted when he was the Union judge advocate in 1862 and that Clement Vallandigham had advanced in 1864. Military tribunals, Johnson told the commission, had jurisdiction only over soldiers and moreover could try only those crimes that were specified in Congress’s Articles of War from 1806. Johnson willingly conceded that there might be an exception when the U.S. military operated outside its own borders, as it had in Mexico when Winfield Scott instituted military commissions in 1847. But to do so in the United States was an entirely different matter. The defendants here were not enemy aliens, they were U.S. citizens, living in the nation’s capital and in Maryland. Under such circumstances, Johnso
n contended, military tribunals were illegitimate substitutes for the kinds of treason prosecutions that the Constitution expressly committed to the federal courts. Indeed, Thomas Ewing, Jr. (the foster brother and brother-in-law of William Tecumseh Sherman and veteran of the bitter Missouri guerrilla war), argued on behalf of Dr. Mudd that the tribunals operated without law at all.

  Holt’s team had powerful responses at the ready. Could it be the case, Bingham replied, that the military was empowered to shoot down Booth in cold blood but not to put assassins on trial under the laws of war? “By what law” was a president justified in killing one of the conspirators, but condemned for “subjecting to trial” others “according to the laws of war”? Attorney General Speed made the same argument in his opinion supporting the authority of the military tribunal. Military tribunals were the self-imposed restraint that soldiers adopted to be sure the particular person before them deserved death. War usually brought death to its victims with far less individualized attention to justice. No one other than pacifists (of whom there were precious few in 1865) doubted the legality of legitimate military killings in wartime. How, then, could trying and executing the same people for violations of the laws of war be unlawful?

  As Speed saw it, “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 with and prevent a battle.” Was it really the defendants’ position that the military should give way to the civilian authorities in precisely the domain in which it was already seeking to exercise restraint? “It is curious,” Speed concluded, “to see one and the same mind justify the killing of thousands 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 implication of Speed’s and Bingham’s words was only too clear: If the defendants were right, the military would in the future resort to more traditional modes of military force, ones that would not be nearly as discriminating or restrained as those exercised by the commission.