Cox quoted in LAS 14:708–9; William Winship, ed., Digest of Opinions of the Judge Advocate General (Washington: Government Printing Office, 1865). Secretary of Defense Donald H. Rumsfeld published a more detailed and explicit set of rules for military commission trials in his “Military Commission Order No. 1” dated March 21, 2002, and “Military Commission Order No. 2” dated April 30, 2003. If followed to the letter, these orders would give defense attorneys a reference that lawyers did not have in 1865. Though no detainees have been brought to trial as of this writing (2004), military authorities insist that such trials be held in secret. My thanks to Professor Ruth Wedge-wood for copies of the above orders.
Herold was allowed to remain in the courtroom after hours to write out a confession. It was never made public, and has not been found. Atzerodt’s confession was allowed as part of his lawyer’s closing summation. Hartranft log, 32, 33; Also comments in Poore, 2:514; Booth’s diary might have been admitted for other purposes, but not to prove the truth of anything he wrote in it. Bingham quoted in Poore, 2:183; An exception is found in the case of treason, for which a court might hear a defendant’s confession in court. Francis Wharton, Wharton’s American Criminal Law (Philadelphia: Kay and Brother, 1853), 1:358.
Ewing-Holt argument in Poore, 2:396; Afterward, John Bingham reverted to the charge that Mudd’s extended concealment was part of the crime. Wells in Poore, 1:282–93; Wells’s own statement on behalf of Mudd is in LAS 5:226.
Poore, 3:446; Rule on character evidence: Benét, 287; Grover’s Theatre: Poore, 2:541. Ewing brought this up again in his summation. LAS 14:602–3; By statute, they were required only to provide a copy of the charges and a transcript of the previous day’s testimony. Cottingham in Poore, 2:216.
Changed story: compare Mary Van Tyne in LAS 6:438 and Poore, 1:139–43; Misquotes: see Wells’s report on Greenawalt compared to Greenawalt’s sworn testimony, LAS 3:635 and Poore, 1:347. Alexander Lovett said on the stand that Booth left the Mudd farm on foot, yet no one said any such thing before the trial. Lovett, Gavacan, Joshua Lloyd, William Williams, and A. R. Allen contradicted one another. See Poore, 1:260, and M-619, 455:598 and 456:488, 492, 497, 501; The envelope, with the name of Thomas Zizinia, was apparently found in Booth’s trunk. The lines on it do appear to represent roads, but the locality has not been identified. See LAS 2:292; Alexander Lovett and George Cottingham reward claims in RG 233; Lovett said that Lloyd had confessed to being an accessory (LAS 5:193).
Suspicions: Joseph N. Clarke in LAS 2:922; Sympathizer: Gilbert J. Raynor in LAS 6:102–6; Howell statement in the John T. Ford Papers, MS 371, Maryland Historical Society; Foster in LAS 6:463; Weichmann to Burnett in Poore, 1:377; LAS 6:500; Sworn testimony later established that officers had threatened Weichmann directly. See Gifford in Surratt Trial, 820; Tribune article mentioned in Poore, 1:385; See Joseph George, Jr., “Nature’s First Law: Louis J. Weichmann and Mrs. Surratt,” Civil War History 28 (February 1982): 101–27.
Clara in LAS 3:135–37. I would guess that Sarah Slater wrote the letter.
Joseph George, Jr., “Subornation of Perjury at the Lincoln Conspiracy Trial? Joseph Holt, Robert Purdy, and the Lon Letter,” Civil War History 38 (1992): 230–41; Norton in Poore, 3:195, 439; Evans in Poore, 3:236–61; Ewing, 17.
Prince George’s County Circuit Court, Accounts vs. the Estate of J. H. Surratt, vol. WAJ, No. 1:277, Maryland State Archives. An entry for November 9, 1865, shows “One open a/c in favor of Jno H. Nothey” for $30.00.
The government’s embargo on the “suppressed testimony” was about to be lifted when Mrs. Pitman handed a transcript to the Commercial. Benn Pitman explained the mixup in an unpublished memorandum, now in the New York Public Library. Montreal Evening Telegraph, June 10, 1865; Gen. John A. Dix to Stanton, June 24, 1865, in Stanton Papers, reel 10; Levi C. Turner’s report on the Conover perjury is in O.R. II:8, 855–61, and Holt’s reply follows in ibid., 962.
Hall in Poore, 3:542–43; In all, four doctors examined Powell: Basil Norris, James C. Hall, Joseph K. Barnes, and the prison doctor, George Loring Porter. See LAS 14:216–29. Dr. Nichols testified earlier in order to establish the validity of the defense. Some of his testimony supported the notion of Powell’s insanity, and some detracted from it. He had not examined the prisoner. Nichols in Poore, 3:143–53; The law did not then provide for an examination of the accused. See Poore, 3:498; Powell probably did not realize that his mother’s relatives were also Powells; hence the apparent ignorance. See Hall testimony in Poore, 3:545.
Wharton’s American Criminal Law, 618, and 1 Bingham on Criminal Law, section 265, both cited by Cox in LAS 14:691–92; The rule today, generally, is that conspiracy is a felony, and regardless of intention, a death that results will invoke the “felony murder rule,” by which all are guilty of “felony murder.” In 1865, conspiracy was only a misdemeanor, and in any event, the aim of this plot was to take a hostage, which was recognized as a legal act of war. See General Orders No. 100, Articles 54 and 55; O.R. II:5, 674.
Herold argument: Stone in LAS 14:808, 815, 818–19, 823; Spangler argument: Ewing in LAS 14:550, 558–59, 603; Cox in LAS 14:674–75, 680–89, 711, 732–33, 777; Atzerodt argument: Doster in Pitman, 300–7; Powell argument: Doster in LAS 14:629–30.
For more on Hunter, see Edward A. Miller, Jr., Lincoln’s Abolitionist General: The Biography of David Hunter (Columbia, SC: University of South Carolina Press, 1997).
Lew Wallace to Susan Wallace, n.d. [June 26, 1865], in Indiana Historical Society; Powell’s defense in LAS 14:611, 613, 635–38, 645; John A. Bingham, Argument of John A. Bingham, Special Judge Advocate (Washington: Government Printing Office, 1865), 35–36.
Bingham, 94–95, quote on horses: ibid., 113.
Burden of proof: ibid., 82 (emphasis added); Johnson’s other clients included Robert E. Lee; Quote on liberty: ibid., 60; Bingham’s attack on defense counsel: ibid., 11–13; In August 1863, Ewing issued General Order No. 11, which nearly depopulated four Missouri counties by ordering all rebel sympathizers not living in designated cities to leave. He also ordered a subordinate officer to make sure that certain rebels “are not to be captured under any circumstances, but to be killed when found.” O.R. I:22 (2) 473 and O.R. I:34 (4) 260.
R[ichard]. A. Watts, “The Trial and Execution of the Lincoln Conspirators,” Michigan History Magazine 6 (1922): 99; Prosecutors in deliberations: Benét, 95–96; DeHart, 94; Findings are published in General Court-Martial Orders No. 356. O.R. II:8, 698.
Statistics: clipping in the August V. Kautz Scrapbook, Library of Congress; Meal figure is from the Hartranft log, 80; Henry Kyd Douglas, I Rode with Stonewall (Chapel Hill: University of North Carolina Press, 1940), 342; Bingham in LAS 14:167.
Payment of a per diem was normal for witnesses, but Conover, Purdy, and others were given money from the secret service fund as well. A three-dollar per diem was authorized by statute. See 1 Stat. 216; Conover’s payment: Book W, Index to Secret Service Payments by disbursing clerk, Turner-Baker Papers, RG 94, National Archives; The Lew Wallace Library in Crawfordville, Indiana, has many of the general’s courtroom drawings. Another, discovered by the present writer, is in the Howard Shorthand Collection at the New York Public Library. Lobbying for war with Mexico was consistent with the views of both the Lincoln and Johnson administrations, and had the full support of Stanton, who considered it was way to “intensify national feeling . . . thousands, once misled [by secession] would rejoice to atone their error by rallying to the national flag.” Stanton to Andrew Johnson, in O.R. II:5, 511. The sapphire ring was mentioned in a letter to Susan Wallace from “Zayde,” dated October 29, 1865. At that time, her husband was president of the commission trying Henry Wirz, commandant of Andersonville prison.
Benn Pitman letter to Joseph Holt, November 22, 1873, in Holt Papers, 67:9259; Browning and Thomas Ewing, Sr., helped in the drafting of the writ; Ewing Family Papers, Library of Congress.
Evening Star, July 7, 1865, 2; Gillette’s account is in an uniden
tified clipping in the Lincoln Obsequies Scrapbook, Library of Congress.
Evening Star, July 7, 1865, 2; Unidentified clipping in the George Alfred Townsend Papers, Manuscripts Division, Library of Congress. Townsend got the Mussey quote from Johnson himself. Herold’s mother “had tried in vain to teach him better counsels, and now he must take the results of his wicked conduct without expecting sympathy from her.” Unidentified clipping in the Lincoln Obsequies Scrapbook, Library of Congress. The notes written by Herold’s sisters were not delivered because Mrs. Johnson and her daughter were ill. Evening Star, July 7, 1865, 2; The rule on executions was changed by both statute and court decisions. On March 3, 1869, the U.S. Congress passed a law requiring lower courts to suspend executions until they received a mandate from the U.S. Supreme Court (15 Stat. 338). Not until 1883 would the courts confirm that a “supersedeas” would prohibit enactment of the lower court’s decree. Hovey v. McDonald, 109 U.S. 150. The 1863 law creating the Supreme Court of the District of Columbia (formerly the U.S. District Court of the District of Columbia) gave one of its four justices the power to act as a federal judge in matters such as this. Wylie was evidently the designated judge. 12 Stat. 763.
Suspension of writ: Evening Star, July 8, 1865, 3: Original order is in the Treasure Room, National Archives.
Arnold, Memoirs, 61; Evening Star, July 7, 1865; 16th New York orders are in RG 393 (1), entry 5375, 23:51; Lt. D. F. Landon, letter dated July 11, 1865, transcript in the David Rankin Barbee Papers, Georgetown University; Relay: Hartranft log, 85.
New York Tribune, July 8, 1865, 1; John L. Smith’s duties were to deliver the death warrants to General Hancock, then to remain on “death watch” until the sentences were carried out. He had once been ordered to arrest his own wife and take her to the prison as a witness, but she was excused for illness. Smith in the Baltimore American, December 21, 1903; Father Walter was from St. Patrick’s church, and Father Wiget was from Gonzaga College. Rev. Mark Olds, of Christ Church, and Reverend Vaux, chaplain, U.S. Army, stood with Herold.
Gillette’s story is in Amy Gillette Bassett, Red Cross Reveries (Harrisburg, PA: Stackpole Co., 1961), 91. Mrs. Bassett was the minister’s granddaughter, and used his journals in the preparation of her account. New York Tribune, July 8, 1865, 1; The four soldiers were William Coxshall, David F. Shoup, George F. Taylor, and Frank B. Haslett. They were identified by Coxshall in the Milwaukee Free Press, January 31, 1914.
Coda
No other federal execution: see Surratt Courier 22 (May 1998): 6–7. The petition was signed by Hunter, Kautz, Foster, Ekin, and Tompkins. The original is in LAS 14:526. According to Holt, General Ekin copied it into his own hand, after John A. Bingham and Supreme Court Justice David Davis wrote it. Cincinnati Enquirer, December 15, 1883, 1; A Brophy affidavit is in the Butler Papers, Library of Congress, and his charges are in LAS 7:399–401; Weichmann response: The Philadelphia Inquirer, July 29, 1865, 1; Hartranft was rather emphatic that Powell “states that she had no knowledge whatever of the abduction plot, that no hint was ever said to her about it. . . .” New York Herald, July 12, 1865, 5; Brophy’s explanation of the Hartranft statement is in a letter to James Croggon of the Evening Star, July 10, 1865, in Crosby N. Boyd Papers, Library of Congress. The general’s own explanation is in Hartranft Papers, Gettysburg College. Less publicized was the remark of David Herold, who had said, “That old lady is as deep in as any of us” (Doster, 277); Gen. James A. Hardie and Father Jacob A. Walter both explained the execution flap in letters (dated July 22) to Archbishop M. J. Spalding. The archbishop ordered Walter to refrain from talking publicly on the subject. Both letters are in the archives of the Baltimore Archdiocese, and additional material is in the James A. Hardie Papers, Library of Congress.
Arnold, Memoirs, 62; The prisoners had originally been sentenced to the Albany Penitentiary, but that was changed to Fort Jefferson, a military installation, at which they could not be reached by civilian courts. Stanton Papers, 10:55523, Library of Congress; Holt’s Digest of Opinions, 93, says that if the offense is punishable by the laws of the state wherein committed, a civilian penitentiary is recommended over a military one. But the offenses in this case were not specified in any civilian statute.
Semmes was a prisoner of the Navy Department. RG 393 (4), entry 2139; Richard Garrett sought restitution for damages to his barn, but Congress rejected his claim. Richard H. Garrett in The Fredericksburg Herald, April 27, 1868, and his claim, dated April 10, 1872, in RG 233. The official response is in House Report No. 743, Forty-third Congress, First Session. Jett and Rollins were also rumored to have taken blood money. When Rollins died in 1901, he left several large plantations, which he had bought, according to family tradition, in postwar tax sales. Rollins’s will, filed in King George Court House; My thanks to William Rollins’s great-grandson Garland Clarke. For information on A. R. Bainbridge, I thank Robert Cabot Bainbridge IV.
The Unlocked Book appeared in 1938, and a later edition, edited by Terry Alford, was published under the title John Wilkes Booth: A Sister’s Memoir (University Press of Mississippi, 1996); Theater receipts: New York Clipper, February 3, 1866; Assassination attempt: See “May’s Dramatic Encyclopedia” (manuscript), Jacket 16, p. 28, in the Maryland Historical Society. Comment on Edwin’s fame: Eleanor Ruggles, Prince of Players (New York: Norton, 1955), 206; Edwin did not burn his brother’s costumes, as is so often stated. The true story is given in many accounts, among them a clipping from the Boston Sunday Herald, November 14, 1891, clipping in the Harvard Theatre Collection, and the Boston Herald, August 7, 1927, clipping in Record Group 107, War Department Administration Files, National Archives. Government correspondence on Booth’s trunks is in RG 59, and published in Microcopy T-482, reel 2. An inventory of the items was sent to Stanton by Consul General John F. Potter (LAS 7:229).
Ford’s Theatre disaster: Washington Star, June 10, 1893, and New York Press, June 10, 1893; files on the disaster are kept by the Architect of the Capitol.
Ex Parte Milligan, 71 U.S. 2.
Dunham pardon file in RG 204, Records of the Pardon Attorney, file B-576, National Archives. Holt endorsed Albert G. Riddle’s recommendation for parole, based on Dunham’s secret contribution to the prosecution of John Surratt. For the case against Dunham, see House Report 104, Thirty-ninth Congress, First Session, 33–41. Because the conviction was for House testimony, Holt and Dunham always maintained that it had no bearing on other cases. William H. Gleason, of the Freedman’s Bureau, visited the Dry Tortugas at the behest of Butler. Each prisoner gave a statement on his own terms. Butler Papers, Library of Congress; The diary was often mentioned in newspaper reports right after Booth’s death. The New York Times, April 28, for example. According to Gideon Welles, the president and Stanton were “violently opposed” to its publication. Welles, Diary, 2:95; Butler in the Congressional Globe, Fortieth Congress, First Session, 363. The FBI laboratory examined the diary in 1977 and concluded that forty-three sheets (eighty-six pages) were missing. FBI report D-770615073, dated October 3, 1977. The Secret Service performed an indentation analysis in 1998. Secret Service Report 175-865-34837, dated June 30, 1998.
Lafayette C. Baker, History of the United States Secret Service (Philadelphia: King and Baird, 1867). Baker in House Report No. 7, Fortieth Congress, First Session, 32–33; Remarks on honesty: ibid., 111. Thomas Eckert and Everton Conger both insisted the diary was just the same in 1867 as when it was taken from Booth. Eckert in Surratt Trial, 828–34, Conger in ibid., 308–9, and House Report No. 7, 324–25. Byron Baker also held the diary for “about a minute.” Surratt Trial, 320. Stanton’s own memoranda on the diary are in the Stanton Papers, 11:56773 and 11:56424. They were published in the Daily Morning Chronicle, May 22, 1867, 1. At the impeachment hearings, Stanton denied that Booth’s burial was secretive, and Thomas Eckert revealed the exact whereabouts of the grave. Review in the Brooklyn Eagle, May 21, 1867, 2.
Rejected claims are listed in M-619, 457:32–164; Runkel in ibid., 455:854; West Vir
ginia Cavalry: ibid., 455:559; Rollins statement in LAS 6:76; Doherty claim in M-619, 456:216, and complaint, ibid., 455:769. Adolph Singer’s claim quoted Doherty as saying, “Go up as quick as possible for the rest of the men and Conger. I am on Booth’s track.” Ibid., 456:252; Byron Baker repeated his own version in Surratt Trial, 316; The fight continued into the courts, where the last of the lawsuits was dismissed in October 1878. See Supreme Court for the District of Columbia, Equity case no. 790, National Archives. Thanks to Paul Kallina, via Steve Miller.
War Department recommendations: House Exec. Doc. No. 90, Thirty-ninth Congress, First Session; Committee amendments: House Report No. 99, Thirty-ninth Congress, First Session; Final awards, 14 Stat. 341; Navy guidelines were set by law on June 30, 1864. 13 Stat. 309; Checks were issued on Treasury warrant No. 156952, dated August 4, 1866, in RG 217, Miscellaneous Treasury Accounts, National Archives. Baker in Surratt Trial, 319; Conger statement of April 27, M-619, 455:728, 729.
Holt’s remarks: Cincinnati Enquirer, December 15, 1883, 1; Denials in New York Tribune, September 11, 1873; Holt’s Vindication (Washington: privately printed, 1873), and a letter from Holt to Secretary of War William Belknap, August 1873, in Holt Papers, Box 2, Huntington Library, San Marino, California; Reuben D. Mussey wrote a twenty-seven-page account of the clemency petition, Holt Papers, 67:9165, Library of Congress. Father Walter’s comment is in a July 22 letter to Archbishop Spalding, cited above; The “nest” comment was made by President Johnson to a group of ministers on the night of July 7, and recorded in a letter by Rev. John G. Butler of the Lutheran Church; Dr. William P. Tonry, a government chemist, was fired on June 19, 1869, two days after his wedding. Special Orders No. 149, HQ of the Army, June 21, 1869, paragraph 3.
Robinson’s medal: 16 Stat. 704; The Secret Service Division of the Treasury Department began under executive authority in 1865, and was given statutory recognition in 1882. It was not actually a permanent organization until Public Law 82-79 was passed on July 16, 1951. Correspondence of H. Terrence Samway, U.S. Secret Service, with the author. For Olcott’s life, see Howard Murphet, Hammer on the Mountain: The Life of Henry Steele Olcott (Wheaton, IL: Theosophical Publishing House, 1972); For Wallace’s life see Lew Wallace: An Autobiography (New York: Harper & Brothers, 1906). The general died while writing his memoirs, and his wife completed the second volume. The trial account is thus hers, and not his; On Harris, see H. E. Matheny, Major General Thomas Maley Harris (Parsons, WV: McClain Printing Co., 1963). Asia Booth Clarke seemed to believe her brother had converted to Catholicism, but the evidence is not convincing. Booth and Herold were Episcopalians, Atzerodt was a Lutheran, Arnold and O’Laughlen were Methodists, and Powell was a Baptist. Spangler was German Reformed, but converted to Catholicism on his deathbed.
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