The May 10 session began with a reading of President Johnson’s order calling for a trial by military commission. General David Hunter, president of the panel, announced that each defendant was charged with “maliciously, unlawfully, and traitorously, and in aid of the existing armed Rebellion,” conspiring with Confederate leaders “and others unknown” to murder the president, vice president, secretary of state, and general in chief of the army. Their purpose, as alleged in the specification, was to deprive the army and navy of a constitutional commander in chief; to prevent a lawful election; and to deprive the army of its commanding general.
The prisoners had just been informed of the charges before the session began, and each was now asked if he or she objected to any member of the commission. It was an important question, but after sitting for weeks in pain and darkness, the defendants could hardly have known how to answer. In retrospect, they might have objected to General Hunter and General Howe, who had both just come from a two-week tour of mourning with the president’s remains. They might have wondered why Hunter, whose troops had fought Mosby’s Rangers in the Shenandoah Valley, could now sit in judgment of Powell, who was one of the very same men he had faced in the field. Colonel Clendenin had also fought against Mosby. Would he feel inclined to avenge the “irregular warfare” that Powell and his comrades had waged against him? And what about atonement? Hunter had been considerably embarrassed by General Early in 1864. Would he need to redeem himself in Secretary Stanton’s eyes? Did Lew Wallace need to prove himself after a military blunder at Shiloh? None of these questions came to mind as the prisoners sat there, helpless and bewildered. It was just beginning to dawn on them that the trial had actually begun. At this point, only two of them even had lawyers.
It was almost impossible to get an attorney on short notice. Judge Advocate General Holt’s staff helped advise the prisoners, and even sent couriers to inform prospective lawyers that their services had been requested. But some were unwilling to take any case before a military commission, especially this one. Some had obligations elsewhere, and a few were too pro-Southern to be admitted as counsel. At any rate, the commission had business of its own to attend to, so for the third time the prisoners were ushered back to their cells. At least they would have a few more hours to search for counsel.
Once the accused had left, the commission determined its rules of procedure. Not being a real court, they had a great deal of latitude in the way they could operate. Though Joseph Holt was the prosecutor, he was also the commission’s legal adviser. He recommended they move forward with or without defense counsel. He also suggested they impose a five-minute limit on defense arguments. The commission agreed to move ahead, but rejected the time limit on arguments. They were more receptive to another, more controversial idea. Holt said that a few of the government’s witnesses, fearing retaliation, preferred to keep their testimony secret. Others were expected to implicate people who were not yet in custody, and the War Department was afraid that an open proceeding might tip those people off. For both reasons, Holt recommended that the commission conduct its business behind closed doors. Only those persons officially engaged in the trial should be allowed in the courtroom, and all should be sworn to secrecy. The commission endorsed Holt’s argument, and the following day, the Lincoln assassination conspiracy trial began in closed session.23
The defendants were still scrambling to find lawyers, and in a short time most of the accused had found someone. John Atzerodt hired William E. Doster, the former provost marshal of Washington, to represent his brother. Walter S. Cox, a law professor at Columbian College, agreed to defend O’Laughlen, and David Herold retained the services of Frederick Stone, from a distinguished Charles County family. Dr. Mudd and Sam Arnold would both be represented by General Thomas Ewing, Jr., former chief justice of the Kansas Supreme Court and a brother-in-law of General William T. Sherman. All were fine attorneys, but there were not enough to go around. Spangler and Powell were still unrepresented, and after several rejections, Mary Surratt could secure only the services of two neophytes, John W. Clampitt and Frederick A. Aiken. Neither had experience in a capital case, and Aiken was just completing his first year of practice.
The trial was just getting under way when Clement C. Clay, one of the Confederates accused in the president’s proclamation, decided to give himself up. Clay was stung by the charges that he had conspired with Booth, and he insisted on fighting them head-on. He contacted the nearest federal authorities and promised to turn himself in. “Conscious of my innocence, unwilling even to seem to fly from justice, and confident of my entire vindication from so foul an imputation upon the full, fair, and impartial trial which I expect to receive, I shall go as soon as practicable to Macon to deliver myself up to your custody.”
Clay’s surrender was not the most startling news to arrive that day. Jefferson Davis had been captured near the town of Irwinville, Georgia. Though Davis and Clay were both named as conspirators, they would not stand trial with the others. Both were taken to Fortress Monroe, where they were kept in legal limbo pending a decision by the president on what to do with them.
A couple of days into the trial, it appeared that Powell and Spangler would not be able to secure counsel. Colonel Burnett asked the other attorneys to take them on as well. Doster would take the case of Powell, and General Ewing, who already had two clients, agreed to add Spangler to his burden. At the same time, Frederick Stone asked to join in the defense of Dr. Mudd. Ewing, no doubt, was glad to have the help.
It was bad enough that these people had been hired at the last minute, without time to prepare. But Judge Holt compounded the difficulty by dispensing with an opening statement and keeping the details of the case to himself. Thus he made it plain from the outset that this was a military commission, not a court. Here the government made its own rules, shared them with no one, and changed them as it saw fit. As William Doster later recalled, it was as if “a few lawyers were on one side, and the whole United States on the other.”24
SEVENTEEN
“NOTHING SHORT OF A MIRACLE CAN SAVE THEIR LIVES”
NOT ALL THE DEFENSE ATTORNEYS HAD BEEN SWORN before the government presented its first witnesses on Friday, May 12. Eleven witnesses were heard on the first day alone. None of their testimony was even directed at the defendants. Joseph Holt wanted to begin the trial by showing that the Confederate government had repeatedly crossed the bounds of civilized warfare. The atrocities committed by Davis, Clay, Sanders, Thompson, and others formed a pattern that embraced many individual acts, including secession itself. Thus, the grand conspiracy that culminated in Lincoln’s assassination was the same one that planned the burning of cities, the spreading of disease, and the starvation of prisoners. Any connection to the Confederacy, from mere sympathy to the Lincoln assassination itself, imparted an equal share of guilt. To Joseph Holt, it was all one enormous plot.
Richard R. Montgomery was one of Holt’s first witnesses. Montgomery, a federal spy, claimed to know most of the rebel leaders in Canada. He said that in January 1865, Jacob Thompson, of the Confederate State Department, told him of a plan to kill Northern leaders. According to Montgomery, Thompson supported the idea, but was not allowed to set events in motion until Richmond gave its approval. Other witnesses testified that assassination was freely discussed by the rebels, and two of them claimed to have seen Booth talking with George N. Sanders, of the so-called Canadian Cabinet in Montreal.
Gen. Ulysses S. Grant also took the stand that day. He had been called to testify about his commission in the army and about Jacob Thompson’s position in the rebel government. Before he even reached the courtroom, though, Grant was stopped by Private Alfred C. Gibson, a fifteen-year-old clerk to General Hartranft. Gibson pointed out that the general was smoking a cigar, and since new gas lines had been installed in the courtroom, he would have to leave the stogie downstairs. The hero of Appomattox was a bit taken aback. He paused for a moment and gave the nervous young boy a hard look. But he was right to f
ollow orders, and Grant commended him for it. He put out the cigar and went upstairs, leaving young Private Gibson to boast that he once gave an order to a lieutenant general.1
Holt wrapped up the first day of testimony by calling Henry Von Steinacker to the stand. Von Steinacker claimed that he was actually present when Booth himself spoke with Confederate officers about the assassination. It was his testimony more than any other that connected those officials to the assassin and, through him, to the prisoners on the dock.
Though the following day was a Saturday, the trial resumed anyway. A Canadian doctor named James B. Merritt took the stand and testified that in February, he heard George N. Sanders lay out an assassination scheme that had the approval of Jefferson Davis. Sanders specifically mentioned Booth, and possibly Atzerodt, as players. According to Merritt, Booth had his own reasons for killing Lincoln: he wanted to avenge the hanging of his cousin, John Yates Beall.2
In the course of the trial, government witnesses exposed a stunning array of Confederate atrocities. They told of plots to kill Union prisoners; to launch raids on St. Albans and other cities; and to burn New York, destroy steamships on the Mississippi, and assassinate Northern leaders. They produced a letter, found in Confederate archives, proposing to “rid the country of some of her deadliest enemies.” They claimed Confederates had confessed to spreading pestilence throughout the North—and even into the White House—by distributing clothing infected by disease. They laid open the bank accounts of Confederates in Canada, and showed an 1864 newspaper advertisement that offered to “cause the lives of Abraham Lincoln, William H. Seward, and Andrew Johnson to be taken by the first of March next.” Interspersed with all this was the testimony of Sam Chester and others who told all about Booth and his travels during the same period. By alternating the acts of Booth and the Confederates, Joseph Holt was able to blend two subjects into one, even if only by implication.
Defense attorneys felt that such testimony only inflamed the commission without proving anything against their clients. Since it was all taken behind closed doors, none could be subjected to public exposure and scrutiny. But that would not be the case for long. After testifying on May 12, General Grant and General Comstock went to the White House to lodge a complaint with the president. Both were disgusted with the secrecy of the trial, and they urged the president to open all future proceedings to the public. Though Johnson made no promises, their appeal must have been effective; the following day, Judge Holt informed the commission that the most sensitive testimony had already been taken, and he saw no further need for secrecy. On Monday, May 15, the commission released some (but not all) of the prior testimony, and visitors were admitted to the courtroom for the first time.3
AS THE SESSION OPENED on Monday, counsel for Mary Surratt announced that Senator Reverdy Johnson, of Maryland, had agreed to join their team. Johnson was a formidable advocate, but his primary contribution would be to challenge the legality of the trial. That was a well-worn path. Almost everyone was by now familiar with the arguments pro and con. The government claimed that military necessity required a military trial. Since the president had declared martial law, everyone could be subject to trial by military commission. On the other hand, the defendants were not soldiers, and military necessity could not be demonstrated. Washington was not under threat of imminent attack. The city courts had continued to operate without interruption, and though troops were indeed “intrenched” in the capital, they were mostly invalid soldiers assigned to light garrison duty—not the combat-ready forces one would throw in the path of an enemy assault. Certainly, no battle would have been jeopardized, no ground would have been lost, no Union army would have been defeated if the trial had taken place in a civilian court.
Indeed, Lee’s surrender seems to have removed the danger. Secretary Stanton conceded as much on April 13—the day before the assassination— when he issued orders to halt the draft, stop recruiting, curtail purchases, reduce the number of officers, and remove all travel restrictions imposed as a measure of war. On the fourteenth, brigade commanders in Washington were ordered to stop asking citizens for passes, and in one of his last writings, President Lincoln himself noted that “no pass is necessary now to authorize any one to go to & return from Petersburg & Richmond. People go & return just as they did before the war.” If all those facts suggested that Washington was not a city under siege, Stanton’s report to the president, prepared the following November, ended all discussion: “Since the surrender of Lee’s army,” the report said, “the danger to the national safety from combinations and conspiracies to aid the rebellion or resist the laws in the states not declared to be insurgent had passed away.”
One final point might have been made on the question of jurisdiction: none of the offenses charged in the indictment were federal crimes. In 1865, the assassination of the president was like any other murder. It was a crime against local authority, and would continue to be treated as such until Congress federalized the offense more than a full century after Lincoln died. 4
Reverdy Johnson might have been the first to address those issues, but before he could say a word, General Hunter, president of the commission, announced that one of its members had objected to Senator Johnson’s participation in the trial. General Thomas M. Harris felt that the senator should not be sworn in because he did not “recognize the moral obligation of an oath that is designed as a test of loyalty.” Johnson bristled at the challenge, but he knew exactly what inspired it. He explained that in October 1864, Marylanders were being turned away from a state election for refusing to swear allegiance to the federal administration. When some voters asked for his advice, Johnson said that Maryland had overstepped its authority when it required the oath in the first place. The only way that citizens could assert their rights, he said, would be to take the oath and vote regardless of their views.
After defending that stance before the commission, Johnson reminded them that his own oath of office was good enough for the United States Senate—a body that creates generals. Then he tried to put their minds at ease. “I am here,” he said, “to do whatever the evidence will justify me in doing in protecting this lady [Mrs. Surratt] from the charge upon which she is now being tried for her life. I am here detesting from the very bottom of my heart every one concerned in this nefarious plot, carried out with such fiendish malice, as much as any member of this Court; and I am not here to protect any one whom, when the evidence is offered, I shall deem to have been guilty, even her.”
It was a strange speech for a lawyer—promising to leave his client if he became convinced of her guilt—and it may have been fatal to Mary Surratt. After listening to a few days of testimony, Johnson left the courtroom for good. Though he prepared an argument on the jurisdiction, he left it for a colleague to deliver. Otherwise he took no further interest in the fate of his client. He appeared to abandon her.
Reverdy Johnson had been challenged on the oath, but Augustus R. Cazauran, a newspaper reporter, was called to answer more serious charges. Cazauran was an ardent rebel who once spent three years in Sing Sing prison for forgery. After serving his sentence, he moved to Cincinnati, where he promptly stole a large sum of money from an orphans’ fund. Authorities traced him to Memphis, where he had become a newspaper editor. He stayed there for the duration of the war. Benn Pitman knew all of this, and was incensed when he learned that Cazauran had been granted a courtroom pass. Pitman complained to Stanton, and told him that authorities in Ohio still held a fugitive warrant for Cazauran. The reporter was arrested, and his editor, John W. Forney, of the Daily Constitutional Union, apologized for having employed him. Apparently, courtroom security was not hard to breach.5
Each defendant was charged with conspiracy, and with particular acts laid out in the specifications. Their cases were fairly straightforward. Herold, according to prosecutors, had traveled willingly with Booth, and had been in the plot from the beginning. Almost exclusively, the witnesses against him were people who had met him and Booth on their
flight.
Atzerodt had shared Booth’s horses, and seemed to follow his script to the final hour. Prosecution witnesses told of suspicious behavior in and around the Kirkwood House. In rebuttal, the defense showed that Atzerodt was a coward who would never have agreed to kill anyone.
Sam Arnold was charged with giving Booth advice and support. The principal evidence against him was his own letter to Booth, which was found in the assassin’s trunk. Testimony in his favor showed that he was nowhere near Washington after April 1.
Mike O’Laughlen had gone to Stanton’s house on the night of the thirteenth, and prosecutors alleged he was lying in wait for the secretary’s guest, General Grant. Government witnesses described his lifelong intimacy with Booth, and a few confidential meetings with him shortly before the shooting. The defense showed that O’Laughlen had his own reasons for going to Washington on April 13, and that he had spent almost all of his time celebrating there with friends.
Ned Spangler was charged with helping Booth arrange his escape. Prosecutors offered testimony to show his intimacy with Booth, and they wondered aloud if an eighty-foot length of rope found in Spangler’s carpetbag was intended for use in the assassin’s flight through the country— perhaps to trip the horses of anyone who followed. The defense showed that Spangler was not the only one who did favors for Booth, and that he had done nothing suspicious at the time of the shooting.
Mary Surratt was said to be the prime mover in the conspiracy. She had met privately with Booth, had taken some of the conspirators into her home, and had delivered messages on Booth’s behalf on the day of the assassination. Prosecutors made much of Lewis Powell’s appearance at her house on the night of the seventeeth, and several witnesses recounted her false claim that she had never seen him before. The principal witnesses against her were Weichmann and Lloyd; those who appeared in her favor were friends, boarders, and priests who offered alternate explanations of her actions and testimony to her good character.
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