Lincoln's Code

by John Fabian Witt

  Ultimately, Bingham and Holt could barely even understand the nature of the defendants’ objection. Had the defendants’ lawyers not noticed the hundreds of military tribunal prosecutions in which the United States had prosecuted rebels for violations of the laws of war over the previous four years? The work of the judge advocates had been to mobilize what the Union’s 1863 code and Justice Wayne’s opinion in the Vallandigham case had called “the common law of war.” By “what code or system of laws is the crime of ‘traitorously’ murdering” defined, Ewing demanded to know on behalf of the defendants. Holt’s reply was straight from the vigorous version of the customs and usages of war crafted by Lieber and issued by Lincoln at the nadir of the Union war effort: “the common law of war,” he answered. If there was any doubt whence Holt derived the authority for the charges, he dispelled it on June 8 when he offered into evidence for the prosecution a copy of General Orders No. 100, Lieber’s Instructions for the Government of Armies of the United States in the Field.

  Holt’s arguments carried the day before the military commission. After deliberating for several days, the commission returned guilty verdicts for all eight defendants on June 30. President Johnson approved the commission’s findings on July 5. Arnold, O’Laughlin, and Mudd received terms of life imprisonment. The commission sentenced Spangler to six years at hard labor. But as for Atzerodt, Herold, Powell, and Surratt, the commission sentenced them to be hanged by the neck until dead. Two days later, Judge Andrew Wylie of the District of Columbia courts reluctantly acquiesced in the president’s refusal to recognize Mary Surratt’s emergency habeas petition. (Johnson insisted that the writ of habeas corpus was still suspended, but just in case it was not, he issued a special order suspending it for Surratt’s case in particular.) Within hours, Union military officials hanged Atzerodt, Herold, Powell, and Surratt from a newly built scaffold in the south yard of the Old Arsenal Penitentiary.

  THE LINCOLN CONSPIRATOR trial raised serious questions about flaws in the military commission system and accordingly about the utility in the postwar world of the fierce version of the laws of war that Lincoln and Lieber had advanced in early 1863.

  The military commission placed virtually no constraints on the scope of the conspiracy theory that Holt’s team proposed. A court would almost certainly have required that the judge advocates stick closer to the defendants in the dock. But lacking any such limit, Holt and his team exhausted themselves trying to connect Booth’s accomplices to the highest reaches of the Confederate government. Calling a shadowy network of informants as witnesses, they aimed to prove the existence of a nefarious plot reaching from the Confederate capital at Richmond to agents in Canada and back to Booth in Washington. The commission heard about surreptitious Confederate plots to burn the North’s major cities and destroy its ports. The prosecution presented evidence of efforts to destroy civilian steamboats and blow up the Union supply lines at City Point in Virginia by means of a new torpedo device. Witnesses testified to plots to burn New York City, to introduce infectious diseases in the North, and to starve captured Union soldiers at prison camps in the South. Holt’s team submitted testimony describing Confederate agents’ involvement in a raid on civilian property at St. Albans, Vermont, launched from across the Canadian border.

  Most important, Holt relied on a man he introduced to the commission as Sanford Conover. Conover testified that he had worked as a Confederate agent in Canada under the alias James Watson Wallace and that he had there met with numerous Confederate agents (including some named as co-conspirators in the charges against Booth’s accomplices) to arrange “the plot to assassinate Mr. Lincoln and his cabinet.” Conover helped expand Holt’s case against the alleged accomplices into a wholesale attack on the war methods of the South. He testified to schemes to attack Union prison camps and release entire regiments of captive Confederate soldiers to plunder the interior of the Union. He described a plan to destroy the Croton Dam, which supplied New York City with its water. He detailed plans to set off a yellow fever epidemic by sending infected goods to the North’s most populous cities. Most of all, he connected the schemes to the highest levels of the Confederate government.

  Holt’s reliance on Conover backfired even before the trial had come to a close. Conover, whose real name was Charles Dunham, was actually a con man. By mid-June, reports were circulating in the press to indicate that Conover had concocted a fantastic series of lies. A Canadian came forward to say that he was the real James Watson Wallace and that he had no knowledge of the conversations Conover claimed to describe. The Toronto Globe published evidence that Conover had simply made up his stories from whole cloth. The New York Times reported that the testimony that had “caused such a sensation” now “seem[ed] to be in a muddle.” In late June, John A. Dix, commander of the Union’s Department of the East, privately warned Holt that Conover was a notorious character. But blinded by his zeal to connect the Confederate hierarchy to the assassination and to an entire scheme of unlawful warfare, Holt plunged forward in reliance on his dubious witness nonetheless.

  Holt’s team reached too far in its arguments about the law as well. Law of war commissions had become a basic part of the Union war effort. Yet Bingham in particular sought to use the trial to establish a breathtaking expansion in the scope of the military commissions. Arguing before the commission, he insisted that every single rebel soldier was implicated in the assassination, or at the very least in unlawful killings. “Everybody” who “entered into the rebellion,” he thundered, “entered into it to assassinate everybody that represented this Government.” Assassination and unlawful killing were the natural consequences of the rebellion; they were the very purpose for which men had joined the southern armies. Thomas Ewing grasped the implications. Why, he asked the commission, had the prosecution adopted such a novel position? It was for the same reason that Achilles immolated a dozen Trojans at the funeral pyre of Patroclus: “simply because they were Trojans, and because Patroclus had fallen by a Trojan hand.” Now Holt and Bingham were threatening to burn every rebel at the pyre. Indeed, Ewing warned, it could even prove to be worse. In his view, the eight people accused of being the accomplices of Booth were no more subject to military jurisdiction than any other American—unless, that is, military law extended over and embraced “all the people of the United States.”

  EWING’S CLAIM WAS an exaggeration, but it was not as much of one as it has seemed in the years since. Though it has long been forgotten by historians, the men participating in the Lincoln conspiracy tribunal knew full well that dozens of war crimes trials were taking place all around the country in the waning days of the conflict and in its immediate aftermath. Many such trials took place far from the spotlight. Others, though a good deal less prominent than the prosecution of the Lincoln assassination conspirators, were nonetheless high-profile affairs.

  In January 1865, a military commission in Cincinnati had attracted nationwide press attention when it tried and convicted a group of seven men, including a swashbuckling British mercenary named George St. Leger Grenfell, for conspiring in violation of the laws of war to set fire to Chicago and free the captured rebel soldiers held there at the Union’s Camp Douglas. The next month, one of Holt’s close associates, Judge Advocate John Bolles, led the closely watched prosecution of a well-connected young Virginian named John Yates Beall at Fort Lafayette in New York Harbor. A military commission convicted the handsome but impetuous Beall of unlawful attacks on vessels in the Great Lakes, attempted sabotage of civilian railroads in upstate New York, and being a spy. “It is a murder,” declared Beall as he mounted the scaffold and turned to face his beloved South. (Orville Browning would later wonder whether John Wilkes Booth had hoped to avenge Beall’s death when he entered Lincoln’s box at Ford’s Theatre a month and a half later.) At around the same time, Union officials in New York also tried, convicted, and executed a Confederate agent named Robert Kennedy on charges of violating the laws of war and spying in connection with a failed attempt to s
et a great fire in Manhattan. Little damage had been done, in part because Kennedy had been drunk the whole time. P. T. Barnum’s museum, which was one of Kennedy’s targets, had a wax figure of the dead Confederate saboteur on display less than a month after his execution.

  Champ Ferguson in custody: pictured in front at center with an armed Union guard, Ferguson was one of the most feared southern guerrilla leaders. After the war he was tried and executed for war crimes, including the execution of captured black soldiers.

  The end of open hostilities did little to slow the pace of the commissions, at least not at first. Even as Holt was overseeing the trial of Booth’s accomplices, his office presided over dozens of military commissions for violations of the laws of war. Commissions trying such violations moved forward in the Department of the Cumberland under Major General George H. Thomas; in the Department of the East under John Dix; in Virginia and North Carolina under Benjamin Butler; in the Department of the Gulf under Major General Stephen A. Hurlbut; and in Missouri under Major General Grenville Dodge. All through the summer in Nashville a military tribunal tried and convicted Champ Ferguson for unlawful guerrilla warfare and the systematic execution of black soldiers at Saltville, Virginia. Ferguson was executed in October. That same month, another commission in Wilmington, North Carolina, tried and convicted two men for the murder of a Union guide in violation of the laws and customs of war.

  FAR AND AWAY the most prominent case tried in the wake of the Lincoln conspiracy trial was the prosecution of Captain Henry Wirz, the commander responsible for overseeing captured Union soldiers held at Andersonville, Georgia. It did almost as much damage to the reputation of military commissions as the worst excesses of the Lincoln assassination trial had done just weeks before.

  When the first Union prisoners had arrived at the tiny hardscrabble town of Andersonville in southwestern Georgia in February 1864, they found a bleak seventeen-acre camp with no structures surrounded by an eighteen-foot stockade fence. A creek ran down the middle of the camp. Around the compound’s edges ran a “dead line” about twelve feet inside the stockade wall. Andersonville had been designed to hold 10,000 Union men, though given the absence of buildings it would not have held even that number comfortably. But over the course of the next year, the camp at Andersonville took in between 41,000 and 45,000 Union soldiers. As many as 32,899 prisoners resided inside the stockade at any one time. For six months in 1864 and early 1865, the press of prisoners turned the little town into the fifth most populous city in the South. Conditions were deplorable. The camp’s principal water source quickly became foul and polluted. Gangrene and disease ran rampant among the prisoners. Three quarters of the patients admitted to the camp hospital died. All told, more than a quarter of those who entered the stockade—some 12,912 men—never left.

  In May 1865, Union officials arrested Wirz for his conduct as commander of the prison interior. Wirz seemed to be a comic book villain. With a thick accent and a temper made worse by a festering wound received in the Peninsula Campaign in May 1862 that had rendered his right arm almost completely useless, the Swiss-born Wirz was reviled by former prisoners and disliked by many of his own men as well. Lew Wallace, who served as president of the military commission that tried Wirz, described him as having the eyes of a cat “when the animal is excited by a scent of prey.” Wirz, Wallace decided, was “altogether well-chosen for his awful service in the Confederacy.”

  Yet the trial got off to a bumpy start on August 21. When the judge advocate handling the case, Norton Parker Chipman, filed charges against Wirz that named Jefferson Davis, Robert E. Lee, and Confederate secretary of war James Seddon, an angry Stanton called a halt to the proceedings and demanded that Chipman redraft the charges to leave out the Confederate leadership. With Lieber’s help, Stanton was trying desperately to find evidence that would support Holt’s accusations at the trial of the Lincoln assassination conspirators by definitively linking Davis to the worst atrocities of the war. The last thing Stanton needed was for the Wirz prosecution to force his hand before he had found the evidence he needed. Nor did he want to create an occasion for bringing Davis to the capital.

  The trial resumed three days later with new charges that left out Davis and the Confederate high command. But Wirz’s two lawyers both dropped out immediately. The lawyers who replaced them, Orrin Baker and Louis Schade, threatened to walk off the case themselves when the tribunal frustrated their attempts to call certain witnesses on Wirz’s behalf. The judge advocate arrested James Duncan (Wirz’s subordinate at Andersonville) while Duncan waited to testify for the defense. And when Schade sought to call Robert Ould to testify to the Union’s responsibility for the collapse of the 1862 prisoner exchange cartel, Chipman chased him back to Virginia on the threat of arresting him for breaking the terms of his parole if he left his home state. A court reporter delivered Wirz’s closing statement when the tribunal refused to give Baker the two weeks he requested to prepare his final arguments.

  Such procedural irregularities were bad enough, but the case prepared by Chipman and Holt was plagued by a deeper problem too, one that Chipman’s ill-advised initial charges had inadvertently betrayed. Chipman made heroic efforts to bring out testimony that would tie prison conditions at Andersonville to Confederate officials in Richmond. Doing so suggested a wide and nefarious conspiracy. But such efforts also cast doubt on Wirz’s personal responsibility for the prison conditions that had killed so many Union men. Multiple witnesses (some unreliable, others more credible) testified to instances of abuse by Wirz, including the shooting and beating of individual prisoners. But the real burden of the case was to charge Wirz with responsibility not for isolated incidents of brutality, but for the deaths of thousands. And here the evidence was far less clear. Wirz, it came out, had sought on more than one occasion to bring the miserable conditions at his camp to the attention of Richmond officials. He made plans to improve the camp bakery and petitioned Richmond for improved rations. He enlarged the space enclosed in the stockade. And he looked into relocating the hospital to cleaner, less crowded space outside the stockade altogether. Wirz also put together a plan to create an elaborate series of dams and floodgates to improve the water quality at the camp and began work on the project, though it was never completed.

  Wirz doubtless could have done more. He failed to carry out most of his plans to improve conditions, and his notoriously erratic temper made life worse for many of the men under his care. But the evidence brought out in the tribunal also made clear that he had possessed little control over the resources his superiors provided to the prisoners. Wirz’s lawyers argued that he was merely “a servant and instrument in the hands of the Southern authorities.” The Swiss consul-general remonstrated on Wirz’s behalf with President Johnson, conceding that Wirz was “detestable,” but arguing that he had been the “tool of monsters in human form.” “Shall the hand suffer,” he asked, “for the arm that wielded it, for the soul and mind that controlled its ultimatum of crime?” As the proceedings unfolded, it came to seem that Confederate brigadier general John Winder—who had established the prison, presided over the selection of its site, and overseen all Confederate prisons from November 1864 onward—would have been a far better target for the Union’s ire. One witness testified that Winder had planned to improve conditions by a horrible attrition; he would leave the prisoners “in their present condition until their number has been sufficiently reduced by death to make the present arrangements suffice for their accommodation.” Even Winder objected to the quality and size of the prisoners’ rations and wrote Richmond seeking improvements. But his responsibility for prison conditions seemed far clearer than Wirz’s. If he had not died of a heart attack while inspecting a South Carolina prison in February 1865, he surely would have been on trial alongside his German-speaking subordinate.

  The Wirz prosecution also threatened to raise embarrassing questions for the Union. Conditions at some prisons in the North, and especially the notorious prison at Elmira, New York, h
ad been almost as bad as those at Andersonville. Death rates in northern camps rivaled those in the South, and northern officials bore their share of the responsibility for conditions that led to the unnecessary deaths of Confederate soldiers.16 Prisoner of war camps on both sides had simply never caught up to the massive organizational task of maintaining populations of thousands and even tens of thousands of men.

  In particular, Wirz and his defense lawyers worked to turn attention back on Union authorities’ unpopular refusal to engage in prisoner exchanges after the summer of 1863. That was why they had called Robert Ould (the Confederate agent for exchange) to testify, and it is almost certainly why the judge advocates chased Ould back to Virginia on the threat of arresting him for breaking his parole. Even so, the defense’s cross-examination of government witnesses directed attention to the question of prisoner exchanges and the collapse of the exchange cartel. And in his closing statement, Wirz did so again, urging on the commission his view of “where the responsibility rested for non-exchange of prisoners of war.”