Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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MILITARY COMMISSIONS

II.314.1

MILITARY COMMISSIONS, and the Trial of the Conspirators for the Murder of Abraham Lincoln, President of the United States. When war prevails in a portion of country occupied or threatened by an enemy, whether within or without the territory of the United States, crimes and military offenses are often committed which can not by the rules of war be tried or punished by courts martial, and which at the same time are not within the jurisdiction of any existing civil court. The good of society demands that such cases be tried and punished by the military power, by referring them to a duly constituted military tribunal composed of reliable officers, who, acting under the solemnity of an oath and the responsibility attached to a court of record, examine witnesses, pass upon the guilt or innocence of the arraigned parties, and determine the degree of punishment to be inflicted for the violation of law.

II.314.2

—The powers of these tribunals have not been defined, nor any mode of procedure established by statute law, but the rules which apply to courts martial are held to be applicable to military commissions, and they are subjected to review and confirmation in the same manner and by the same authority as courts martial.

II.314.3

—With respect to the jurisdiction of military commissions, it is held that all military offenses which do not come within the statute referring them for trial before a court martial, must be tried and punished under the laws of war, by military commissions. It is also held, that many offenses which in time of peace are civil offenses, become in time of war military offenses, and must be tried by a military tribunal even in places where civil tribunals exist. In fact, jurisdiction over capital offenses committed by parties not in the military or naval service of the United States, under certain circumstances has been claimed and exercised by military commissions, and parties thus convicted have, by the approval of the higher authority, suffered the penalty attached to the commission of such crimes. The constitution of the United States provides the right of trial by jury to persons held to answer for capital or otherwise infamous crimes, except when arising in the land or naval service. This is referred to as conclusive against the jurisdiction of military courts over such offenses when committed by citizens. It is, however, laid down as a rule by Benet (p. 208) that while the letter of the article would give force to such a declaration, yet in construing the different parts of the constitution together, such interpretation must give way before the necessity for an efficient exercise of the war power which is vested in congress by that instrument. It is also held by the same authority, that this principle has been recognized by the legislation of the country since an early period in its history, by the adoption of the fifty-seventh article of war, in the fact that it has from the beginning rendered amenable to trial by courts martial, for certain offenses, not only military persons, but all persons whatsoever. This article was first adopted by the congress of the confederation, and remained unchanged at the formation of the constitution.

II.314.4

—A military commission is not restricted in its jurisdiction to offenses committed in the state or district where it sits, or the place where the offense was committed, as are the criminal courts of the country, but extends to any military department in which, on account of facilities for obtaining evidence, or for other good reasons, it may be convenient to bring a case to trial. During the war of the rebellion a great number and variety of offenses against the law and usages of war, committed mostly by civilians, (Winthrop's Digest, p. 328), were tried and punished by military commissions, to wit: unauthorized correspondence with the enemy; blockade running; mail carrying across the lines; drawing a bill of exchange upon an enemy; dealing in confederate securities or money; manufacturing arms, etc., for the enemy; furnishing articles contraband of war to the enemy; publicly expressing hostility to the government of the United States or sympathy with the enemy; entering the federal lines from the enemy without authority; violating a flag of truce; violating an oath of amnesty or of allegiance to the government; aiding prisoners of war to escape; unwarranted treatment of federal prisoners of war; burning and destroying bridges, railroads, steamboats, and cutting telegraph wires used in military operations; recruiting for the enemy within the federal lines; engaging in guerilla warfare; assisting federal soldiers to desert; resisting or obstructing an enrolment or draft, impeding enlistments; conspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy.

II.314.5

—Of the ordinary crimes over which jurisdiction has been assumed by military commissions, especially during the war of the rebellion, are to be enumerated as most frequent, attempts to defraud the United States, misappropriations of public money and property and embezzlement of the same, bribery of and attempts to bribe United States officers breach of the peace, rape, arson, receiving stolen property, burglary, riot, larceny, assault and battery with intent to kill, robbery, homicide, and the crime known as "murder in violation of the laws of war." A recent illustration of this latter clause, was the principal offense of the Modoe Indians, tried by a military commission in July, 1873, which, as a treacherous killing of an enemy during a truce, was charged as "murder in violation of the laws of war."

II.314.6

—From such jurisdiction, however, are very properly excepted such offenses as are clearly within the legal cognizance of the criminal courts of the country, when such courts have been left in the full operation of their usual powers, upon the establishment of a military government, or the status of martial law Such was the condition of the courts in the District of Columbia during the war of the rebellion, as at no time was the operation of the civil courts impeded or in anywise interfered with during its existence, and ordinary criminal offenses committed therein by civilians or soldiers not excepted by the act of March 3, 1863, were in general and particular, taken cognizance of by the courts of said district.

II.314.7

—Likewise in a state of district where a military government has not existed or martial law been proclaimed, or, if it has existed or been proclaimed, has ceased to be exercised, and the regular criminal courts are open and in full operation, the supreme court of the United States has decided that a military commission, in the absence of special authority by congress, can not assume jurisdiction of a public offense, although the nation be still involved in war. (Ex parte Milligan, 4 Wallace, 1; Milligan vs. Hovey, 3 Bissell, 13; In re Murphy, Woolworth, 143; Devlin vs. U. S., 12 Ct. Cl., 271; XII. Opin. Att'ys Genl., 128.)

II.314.8

—The case, however, claiming the greatest attention as the most noted of all such illegal trials in the history of the United States, is that known as "The Trial of the Conspirators for the Assassination of Abraham Lincoln, President of the United States," and the attempted assassination of certain other public officers and members of the government. This is more clearly set forth in the executive order promulgated by the president, relating to the trial of the accused, and dated

  EXECUTIVE CHAMBER.
WASHINGTON CITY, May 1, 1865.

Whereas the Attorney General of the United States hath given his opinion:
That the persons implicated in the murder of the late President, Abraham Lincoln, and the attempted assassination of the Honorable William H. Seward, Secretary of State, and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City, and their aiders and abettors, are subject to the jurisdiction of, and lawfully triable before, a Military Commission:
It is ordered: 1st. That the Assistant Adjutant General detail nine competent military officers to serve as a Commission for the trial of said parties, and that the Judge Advocate General proceed to prefer charges against said parties for their alleged offenses, and bring them to trial before said Military Commission; that said trial or trials be conducted by the said Judge Advocate General, and as Recorder thereof in person, aided by such Assistant and Special Judge Advocates as he may designate; and that said trials be conducted with all diligence consistent with the ends of justice; the said Commission to sit without regard to hours.
2d. That Brevet Major General Hartranft be assigned to duty as Special Provost Marshal General, for the purpose of said trial and attendance upon said Commission, and the execution of its mandates.
3d. That the said Commission establish such order or rules of proceeding as may avoid unnecessary delay, and conduce to the ends of public justice.

  (Signed)
  ANDREW JOHNSON.

II.314.9

Whereupon the following special order was issued from the office of the adjutant general of the army, to wit:

  WAR DEPARTMENT, ADJ'T GENL'S OFFICE,
  WASHINGTON, May 6th, 1865.
SPECIAL ORDERS No. 211.
Extract.
* * * * * * * *
4. A Military Commission is hereby appointed to meet at Washington, District of Columbia, on Monday, the 8th day of May, 1865, at 9 o'clock A. M., or as soon thereafter as practical, for the trial of David E. Herold, George A. Atzerodt, Lewis Payne, Michael O'Laughlin. Edward Spangler, Samuel Arnold, Mary E. Surratt, Samuel A. Mudd, and such other prisoners as may be brought before it, implicated in the murder of the late President, Abraham Lincoln, and the attempted assassination of the Honorable William H. Seward, Secretary of State, and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City, and their aiders and abettors.

  Detail for the Court.

Major General David Hunter, U. S. Volunteers.
Major General Lewis Wallace, U. S. Volunteers.
Brevet Major General August V. Kautz, U. S. Volunteers.
Brigadier General Albion P. Howe, U. S. Volunteers.
Brigadier General Robert S. Foster, U. S. Volunteers.
Brevet Brig General James A. Ekin, U. S. Volunteers.
Brigadier General T. M. Harris, U. S. Volunteers.
Brevet Colonel C. H. Tomkins, U. S. Army
Lieutenant Colonel David R. Clendenin, 8th Ills Cavalry.
Brig General Joseph Holt, Judge Advocate and Recorder.

By order of the President of the United States.
  (Signed)   E. D. TOWNSEND,
Assistant Adjutant General.

II.314.10

Immediately thereafter the commission met pursuant to the foregoing orders, and all the members were duly sworn. The Hon. John A. Bingham and Brevet Col H. L. Burnett, judge advocate, also appeared, by direction of the judge advocate general, as assistant or special judge advocates, and were likewise duly sworn.

II.314.11

—The accused were then severally arraigned on the following charge and specification: "Charge against David E. Herold, George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd. For maliciously, unlawfully and traitorously, and in aid of the existing armed rebellion against the United States of America, on or before the 6th day of March. A. D. 1863, and on divers other days between that day and the 15th day of April, A. D. 1863, combining, confederating and conspiring together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, George N. Sanders, Beverly Tucker. Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young, and others unknown, to kill and murder, within the military department of Washington, and within the fortified and entrenched lines thereof, Abraham Lincoln, late, and at the time of said combining, confederating and conspiring, president of the United States of America, and commander in-chief of the army and navy thereof; Andrew Johnson, then vice-president of the United States aforesaid; William H. Seward, secretary of state of the United States aforesaid, and Ulysses S. Grant, lieutenant general of the army of the United States aforesaid, then in command of the armies of the United States under the direction of the said Abraham Lincoln; and in pursuance of and in prosecuting said malicious, unlawful and traitorous conspiracy aforesaid, and in aid of said rebellion, afterward, to wit, on the 14th day of April, A. D. 1865, within the military department of Washington aforesaid, and within the fortified and entrenched lines of said military department, together with said John Wilkes Booth and John H. Surratt, maliciously, unlawfully and traitorously murdering the said Abraham Lincoln, then president of the United States, and commander in chief of the army and navy of the United States as aforesaid; and maliciously, unlawfully and traitorously assaulting with intent to kill and murder the said William H. Seward, then secretary of state of the United States, as aforesaid; and lying in wait with intent maliciously, unlawfully and traitorously to kill and murder the said Andrew Johnson, then being vice president of the United States; and the said Ulysses S. Grant, then being lieutenant general and in command of the armies of the United States as aforesaid."

II.314.12

—Then followed the specification, at great length, designating the combining and conspiring on the part of the accused to maliciously and traitorously kill and murder the president and the aforesaid officers of the government of the United States, and of the army of the United States, designing and intending thereby to deprive the army and navy of the United States of a constitutional commander-in-chief; the armies of the United States of their lawful commander, and to prevent a lawful election of president and vice-president of the United States aforesaid, and by the aforesaid means to aid and comfort the insurgents engaged in armed rebellion against the said United States, and thereby aid in the subversion and overthrow of the constitution and laws of the United States.

II.314.13

—The specification further sets forth the time and place of the said murder, and the means and manner of death of the said Abraham Lincoln, president of the United States, the mortal wound having been inflicted by one John Wilkes Booth, in pursuance of the said conspiracy; and further, the aid and assistance rendered unto said Booth by the accused, said Spangler, an employé of the theatre in which the said murder was committed, enabling the said Booth to approach and enter the box in the said theatre in which the president was sitting at the time of the murderous assault; and further, the aid and assistance rendered by the accused, the said David E. Herold, unto the said Booth, while attempting his escape through the military lines of the government aforesaid, and the further attempt to aid in the concealment of the said Booth after the act aforesaid.

II.314.14

—The specification further relates the attempt of the accused, in the further pursuance of the said conspiracy, to kill and murder the Hon. William H. Seward, secretary of state, and the time, place and manner of the murderous assault. And in further prosecution of said conspiracy, the act of George A. Atzerodt, of lying in wait, on the night of the murder of the president, and about the hour of the same, with intent to kill and murder Andrew Johnson, then vice-president of the United States. And further, the act of the accused, Michael O'Laughlin, of lying in wait at the same hour of the aforesaid murder of the president, with intent to kill and murder Ulysses S. Grant, commander of the armies of the United States. And further, the attempt of the accused, Samuel Arnold, to aid, comfort and abet the aforesaid murderous acts, in pursuance of the conspiracy, by meeting, counseling and conspiring with the accused upon divers occasions. In further prosecution of the said conspiracy, the specification sets forth that the accused, Mary E. Surratt, did, at Washington city, on or before the 6th day of March, A. D. 1865, and on divers other days and times between that day and the 20th day of April, A. D. 1865, receive, entertain, harbor and conceal, aid and assist the said John Wilkes Booth and the other accused, with the intent to aid and abet them in the execution of the same, and in escaping from justice after the murder of the said Abraham Lincoln as aforesaid. And in further prosecution of the said conspiracy, the accused, Samuel A. Mudd, did, at Washington city, on or before the 6th day of March, 1865, and upon divers other days between that time and the 20th day of April, 1865, aid, assist, entertain, harbor and conceal the said John Wilkes Booth and the other accused, with knowledge of the conspiracy aforesaid, and with the intent to aid them in the execution of the same, in escaping from justice after the murder of the said Abraham Lincoln as aforesaid.

II.314.15

—To the specification, all the accused severally pleaded "Not guilty," also to the charge. "Not guilty."

II.314.16

—The several accused applied for permission to introduce counsel; and their applications were granted.

II.314.17

—All of the accused, severally, through their counsel, asked leave to withdraw, pro tempore, their plea of "Not guilty." heretofore filed, in order that they might plead to the jurisdiction of the commission. The application being granted, the defendant, Mary E. Surratt, and all others of the accused, severally offered a plea to the jurisdiction of the commission, as follows: "Mary E. Surratt, one of the accused, for plea, says that this court has no jurisdiction in the proceedings against her, because she says she is not, and has not been, in the military service of the United States. And, for further plea, the said Mary E. Surratt says that loyal civil courts, in which all the offenses charged are triable, exist, and are in full and free operation in all the places where the several offenses charged are alleged to have been committed. And, for further plea, the said Mary E. Surratt says that the court has no jurisdiction in the matter of the alleged conspiracy, so far as it is charged to have been a conspiracy, to murder Abraham Lincoln, late president of the United States, and William H. Seward, secretary of state, because she says, said alleged conspiracy and all acts alleged to have been done in the formation and in the execution thereof, are, in the charges and specifications, alleged to have been committed in the city of Washington, in which city are loyal civil courts, in full operation, in which said crimes are triable." Signed, on behalf of the accused, by her counsel.

II.314.18

—The judge advocate then presented the following replication:

Now come the United States, and, for answer to the special plea by one of the defendants. Mary E. Surratt, pleaded to the jurisdiction of the Commission in this case say that this Commission has jurisdiction in the premises to try and determine the matters in the Charge and Specification alleged and set forth against the said defendant, Mary E. Surratt.

(Signed)
J. HOLT,
Judge Advocate General.

II.314.19

The court overruled the pleas of the accused to its jurisdiction.

II.314.20

—The accused then severally made application for severance, and asked to be tried separate from those charged jointly with them, for the reason that they believed that their defense would be greatly prejudiced by a joint trial. The commission overruled the application for a severance.

II.314.21

—The accused then severally pleaded: To the specification, "Not guilty," and to the charge, "Not guilty."

II.314.22

—The commission adopted and promulgated its rules of proceeding, and thereupon began taking testimony by calling for the prosecution, Richard Montgomery, Sandford Conover and James B. Merritt, whose testimony was taken during the secret session of the commission, and for a time suppressed. The evidence of these parties related to the action of prominent men connected with the confederacy. The first effort of the government was to establish the general conspiracy alleged in the charge and specification. To this end sixteen witnesses were called, among whom were Richard Montgomery, Sandford Conover, James B. Merritt (the three witnesses before mentioned), General Ulysses S. Grant, Henry Von Steinacker, William E. Wheeler, and Hon. Chas. A. Dana.

II.314.23

—The prosecution presented the testimony of Lieut. William H. Terry, William Eaton, and Col. Joseph H. Taylor, with respect to a secret cipher found among Booth's effects. Hon. C. A. Dana testified to finding key to cipher in Secretary Benjamin's office at Richmond, Va. Charles Duell and James Ferguson testified to alleged assassination letter, Charles Dawson to the "Lou" letter addressed to Booth, and Samuel K Chester with respect to Booth's confession as to the plot to capture the president.

II.314.24

—For the purpose of connecting Jefferson Davis with the assassination, the prosecution presented the testimony of Lewis F. Bates, J. C. Courtney, James E. Russell, Rev. W. H. Ryder, and others. Edward Frazier testified to the alleged payment of parties by Secretary Benjamin, of certain sums of gold for burning steamboats. Col. Martin Burke testified to alleged confession of Robert C. Kennedy, of plot to burn New York city. G. J. Hyams, W. L. Wall and A. Brenner testified to the alleged introduction of small-pox by Dr. Blackburn into the north, by means of infected clothing. Seven witnesses testified to the alleged starvation of Union prisoners. Three witnesses testified to the alleged mining of Libby prison by confederate authorities. Twenty-nine witnesses testified with respect to the assassination and attending circumstances. Fifteen witnesses testified with regard to the pursuit and capture of Booth and Herold. Four witnesses testified to papers obtained from confederate archives, being proposals to "rid the country of some of her deadliest enemies," by parties who wanted a consideration therefor. Twelve witnesses testified on behalf of the government in the endeavor to establish the guilt of Edward Spangler, one of the accused. Fifteen witnesses testified on behalf of the government in the endeavor to establish the guilt of George A. Atzerodt, one of the accused. Eighteen witnesses testified on behalf of the government in the attempt to establish the guilt of Lewis Payne, one of the accused. Twenty-two witnesses testified on behalf of the government in the endeavor to establish the guilt of Dr. Samuel A. Mudd. one of the accused. Thirteen witnesses testified on behalf of the government in the endeavor to establish the guilt of Michael O'Laughlin, one of the accused. Seven witnesses testified on behalf of the government in the endeavor to establish the guilt of Samuel Arnold, one of the accused. Twenty-one witnesses testified on behalf of the government in the endeavor to establish the guilt of Mary E. Surratt, one of the accused. The prosecution closed, and the defense began by impeaching the testimony of H. Von Steinacker, a witness called by the government to prove the general conspiracy. Before the trial began, and during its progress, large rewards were offered by the government for testimony that would establish the conspiracy and convict the accused parties. While certain testimony of great importance to the government was thus obtained, there crept into the case, by this means, the evidence of parties who had committed perjury to obtain the proffered reward. In this class of testimony was that of the party named Von Steinacker. This individual swore that he was an engineer officer in the topographical department, on the staff of Gen. Edward Johnson, and that altogether he was in the confederate service three years. That in the summer of 1863 he saw Booth and two civilian companions in the camp of the second Virginia regiment, and was formally introduced to them. That there was a secret meeting of the officers and the three civilians That the plan of the proposed assassination was discussed and approved, and that it was further agreed to send certain officers on "detached service" to "Canada and the border," to release rebel prisoners, to lay northern cities in ashes, and, finally, to obtain possession of the members of the cabinet and kill the president.

II.314.25

—The counsel for the defense of Mary E. Surratt, becoming possessed of evidence that would establish the perjury of this party, presented to the commission, in due form, their allegations impeaching his veracity and character as a witness for the government. By the testimony of witnesses whom they had summoned, they proposed to show that he was originally a deserter from the federal service; that early in the war he had enlisted as a private in Blenker's regiment of New York volunteers; that having been condemned by a court martial for stealing an officer's arms and equipments, he had escaped within the confederate lines, and, enlisting as a private in the confederate service, had been detailed as a draughtsman by Oscar Heinrichs, an engineer officer on Edward Johnson's staff; that while serving in that capacity he was convicted by a confederate court martial for stealing an officer's coat and arms; that at the battle of Gettysburg he was captured within the Union lines, and escaped by representing himself as in possession of the dead body of Major H. K. Douglas, of Edward Johnson's staff, then alive. The commission refused to entertain the motion to permit the allegations to go upon the record, proof to be adduced in support of the same; and, on motion of the judge advocate general, the whole proceedings were stricken from the record. While the counsel for the defense were not permitted to fully establish his character as a witness, they were, however, allowed to attack in part his credibility as such, and for that purpose called Gen. Edward Johnson, who testified that Von Steinacker was never an officer on his staff. Oscar Heinrichs being called, testified that he was an engineer officer on the staff of Edward Johnson; that he was acquainted with the witness, Von Steinacker; that he was an enlisted man in the confederate service, detailed by himself as a draughtsman. Major H. K. Douglas, whose "dead body" Von Steinacker represented he had in his possession at the time of his capture at Gettysburg, was also called, and testified that he was wounded at the battle of Gettysburg, taken prisoner, and held as such for nine months, and did not see Steinacker again after that engagement. All of these witnesses swore positively that either Booth nor the other conspirators ever made their appearance in their camp, and that no officers of their command were ever sent on "detached service" to burn northern cities, capture the members of the cabinet and kill the president. That there were no secret meetings of the officers with Booth or other civilians at any time. They each testified that Von Steinacker had repeatedly stated that he was a deserter from the federal service.

II.314.26

—The counsel for the defense of Mary E. Surratt further called and examined in her behalf thirty-one witnesses whose testimony related to her character as a loyal woman; her ignorance of the plot to either abduct or kill the president; her expressions of gratification at the ultimate success of the Union arms and the speedy close of the war; her kindness to Union soldiers and a large body of escaped government horses which she retained and fed at her own expense for a considerable time, and surrendered to the government without remuneration; the nature and object of her visit to Marlborough Court House on the day of the murder of the president, not as an agent of Booth to deliver arms to Lloyd at Surrattsville, as alleged by the government, but to obtain the means, in obedience to a summons from Mr. Calvert, to meet a pecuniary engagement so as to avert the peremptory sale of her property, by foreclosure; the meeting of Payne and the officers at her house on the morning of the second day after the murder, and her failure to recognize him; of the character of testimony for the prosecution and their impeachment; the intoxication of Lloyd on the 14th of April, the day of the alleged visit to bear arms; impeachment of the testimony of Weichman, principal witness for the prosecution, his own guilt in meeting with the conspirators; the deeply religious character of Mrs. Surratt, her unbounded charity, and the utter improbability of any knowledge of, participation in or consent to any plot to either abduct or assassinate the president.

II.314.27

—The counsel for the defense of David E. Herold called in his behalf nine witnesses, whose testimony related to the weakness of his intellect, his admiration for Booth and his susceptibility to his influence. The counsel for the defense of Edward Spangler called twenty-three witnesses, whose testimony related to his character, the nature of his relations to the theatre, the use of the rope found in his box, and the impossibility of criminal relations with Booth on the occasion of the murder. The counsel for the defense of George A. Atzerodt called in his behalf fifteen witnesses, whose testimony related to his character; of his conversations with regard to the assassination of Lincoln, Seward and Grant; of his superlative cowardice, as rendering it impossible for him to perform the part required of a conspirator. The counsel for the defense of Lewis Payne called in his behalf nine witnesses, whose testimony related to his attention to the sick after the battle of Gettysburg; his mental condition, indicating insanity; his examination with regard to his insanity, and causes and indications of his insanity, mental and moral; Payne's own admissions; his desire to die; his splendid physical condition; the affray in which Payne saved the lives of Union soldiers. The counsel for the defense of Dr. Samuel A. Mudd examined in his behalf seventy four witnesses, who testified with respect to his reputation as a citizen and as a master; of his loyalty. of the professional character of services to Booth while attempting to escape after the perpetration of the deed; and impeaching the testimony of witnesses for the prosecution. The counsel for the defense of Michael O'Laughlin called in his behalf nine witnesses, who testified with respect to his visit to Washington on the 13th and 14th of April. and their presence with him on those days his presence with others at the house of the witness Purdy at the hour of the assassination: and his presence at the Penn house the balance of the same night; Booth and O'Laughlin schoolmates; the voluntary surrender of O'Laughlin to the authorities. The counsel for the defense of Samuel Arnold examined eight witnesses in his behalf, who testified to his whereabouts from March 21 to April 1; his employment as a concerning his visit to Fortress Monroe on April 1; his employment as a book-keeper; his confession in Marshal McPhail's office; his employment at the time of his at rest.

II.314.28

—This closed the evidence for the defence There were, in all, three hundred and forty witnesses examined, including prosecution and defense; a large proportion of them being recalled. many as often as three or four times—Upon the conclusion of the testimony, argument upon the jurisdiction of the commission was presented by the counsel of Mary E. Surratt. An argument on the plea to the jurisdiction was also presented by the counsel of Samuel A Mudd. The counsel for David E. Herold, Edward Spangler, Mary E. Surratt, George A. Atzerodt. Lewis Payne, Samuel A. Mudd, Michael O'Laughlin, and Samuel Arnold, then presented the several arguments for their defense.

II.314.29

—The special judge advocate, Hon. John A. Bingham, then presented the reply of the government to the "several arguments in defense of Mary E. Surratt, and others, charged with conspiracy and murder of Abraham Lincoln, late president of the United States, etc."

II.314.30

—After a continuous session of nearly two months, upon the conclusion of the various arguments for the defense and the prosecution, June 30, 1865, the commission met with closed doors, all the members being present, also the judge advocate and assistant judge advocates (the counsel for the defense being excluded) and proceeded to render judgments in the cases.

II.314.31

—Upon the consideration of the cases of the accused, David E. Herold, George A. Atzerodt, Lewis Payne and Mary E. Surratt, the commission found the said accused, upon the specification, guilty, except "combining, confederating and conspiring with Edward Spangler"; of this, not guilty. Of the charge, guilty, except "combining, confederating and conspiring with Edward Spangler"; of this, not guilty. And the commission thereupon pronounced the following sentence, to wit: "And the commission do therefore sentence her, Mary E. Surratt, and him, David E. Herold, George A. Atzerodt and Lewis Payne, to be hanged by the neck until they be dead, at such time and place as the president of the United States shall direct; two-thirds of the members of the commission concurring therein."

II.314.32

—Upon the consideration of the cases of the accused, Michael O'Laughlin, Samuel Arnold and Samuel A. Mudd, the commission adjudged them guilty of part of the charge and specification, and thereupon pronounced the following sentence: "The commission do therefore sentence the said Michael O'Laughlin, Samuel Arnold and Samuel A. Mudd, to be imprisoned at hard labor for life, at such place as the president shall direct."

II.314.33

—Upon consideration of the case of the accused, Edward Spangler, the commission adjudged him guilty of part of the charge and specification, and thereupon pronounced the following sentence: "The commission do therefore sentence the said Edward Spangler to be imprisoned at hard labor for six years, at such place as the president shall direct."

II.314.34

—The proceedings of the commission were thereupon laid before the president for his action upon the findings and sentences, all of which were approved and made known in the following executive order:

  EXECUTIVE MANSION, July 6th, 1865.
The foregoing sentences in the cases of David E. Herold, G. A. Atserodt, Lewis Payne, Michael O'Laughlin, Edward Spangler, Samuel Arnold, Mary E. Surratt and Samuel A. Mudd, are hereby approved, and it is ordered, that the sentences of David E. Herold, G. A. Atzerodt, Lewis Payne and Mary E. Surratt be carried into execution by proper military authority, under the direction of the Secretary of War, on the 7th day of July, 1865, between the hours of 10 o'clock A. M. and 2 o'clock P. M. of that day. It is further ordered, that the prisoners Samuel Arnold, Samuel A. Mudd, Edward Spangler and Michael O'Langhlin be confined at hard labor in the Penitentiary at Albany, New York, during the period designated in their respective sentences.
(Signed)
ANDREW JOHNSON,
President.

II.314.35

(This order was afterward, to wit, on the 15th day of July following, so modified as to direct that the said Arnold, Mudd, Spangler and O'Laughlin be confined at hard labor in the military prison at Dry Tortugas, Florida, during the period of their respective sentences.)

II.314.36

—On the same day the following order was issued by the war department in accordance with the direction of the president:

WAR DEPARTMENT. ADJUTANT GENERAL'S OFFICE,
WASHINGTON, July 6th, 1865.
To Major General W. S. Hancock, United States Volunteers, Commanding the Middle Military Division, Washington, D. C.
Whereas, By the Military Commission appointed in paragraph 4. Special Orders No. 211, dated War Department, Adjutant General's Office, Washington, May 6, 1865, and of which Major General David Hunter, United States Volunteers, was President, the following persons were tried, and after mature consideration of evidence adduced in their cases were found and sentenced as hereinafter stated, as follows: (here follow the findings and sentences in the cases of David E. Herold, G. A. Atzerodt, Lewis Payne, and Mary E. Surratt)
And whereas the President of the United State, has approved the foregoing sentences in the following Order, to wit:
EXECUTIVE MANSION, July 6th, 1865.

The foregoing sentences in the cases of David E. Herold, G. A. Atzerodt, Lewis Payne and Mary E. Surratt are hereby approved, and it is ordered. that the sentences in the cases of David E Herold, G. A. Atzerodt, Lewis Payne and Mary E. Surratt be carried into execution by proper military authority, under the direction of the Secretary of War, on the 7th day of July, 1865, between the hours of 10 o'clock A. M. and 2 o'clock P. M. of that day.
(Signed)
ANDREW JOHNSON,
President.

Therefore you are hereby commanded to cause the foregoing sentences in the cases of David E. Herold, G. A. Atzerodt, Lewis Payne and Mary E. Suratt to be duly executed, in accordance with the President's Order
By command of the President of the United States
E. D. TOWNSEND
Ass't Adjutant General.

II.314.37

This order was promulgated about 5 o'clock P M., July 6, 1863. In a final attempt to save the life of their client, the counsel for Mrs. Surratt, at 2 o'clock A M., July 7. appeared before Judge Wylie. one of the justices of the supreme court of the District of Columbia, at his residence in the city of Washington. and at that early hour presented for his judicial action the following petition for a writ of habeas corpus in her behalf. to wit:

WASHINGTON, D. C. July 7, 1865.
To the Hon Andrew Wylie, one of the Justices of the Supreme Court of the District of Columbia:
The petition of Mary E. Surratt, by her Counsel, most respectfully represents unto your Honor, that on or about the 17th day of April. A. D. 1865, your petitioner was arrested by the Military Authorities of the United States, under the charge of complicity with the murder of Abraham Lincoln, late President of the United States, and has ever since that time been, and is now, confined on said charge, under and by virtue of the said military power of the United States, and is in the special custody of Major General W. S. Hancock, Commanding Middle Military Division, that since her said arrest your petitioner has been tried. against her solemn protest, by a Military Commission, unlawfully and without warrant, convened by the Secretary of War, as will appear from paragraph 4, Special Orders No. 211, dated War Department, Adjutant General's Office, Washington, May 6th, 1863, and by said Commission, notwithstanding her formal plea to the jurisdiction of the said Commission, is now unlawfully and unjustifiably detained in custody and sentenced to be hanged on to-day, July 7th, 1865, between the hours of 10 o'clock A. M. and 2 o'clock P. M. Your petitioner shows unto your Honor, that at the time of the commission of the said offense she was a private citizen of the United States. and in no manner connected with the military authority of the same, and that said offense was committed within the District of Columbia, said District being at the time within the lines of the armies of the United States, and not enemy's territory, or under the control of a Military Commander for the trial of civil causes. But, on the contrary, your petitioner alleges that the said crime was an offense simply against the peace of the United States, properly and solely cognizable under the Constitution and Laws of the United States, by the Criminal Court of this District, and which said Court was, and is now, open for the trial of such crimes and offenses. Therefore, Inasmuch as the said crime was only an offense against the peace of the United States, and not an act of war; inasmuch as your petitioner was a private citizen of the same and not subject to military jurisdiction, or in any wise amenable to military law; inasmuch as said District was the peaceful territory of the United States, and that all crimes and offenses committed within such territory are, under the Constitution and Laws of the United States, to be tried only before its criminal tribunals, with the right of public trial by jury; inasmuch as said Commission was a Military Commission, organized and governed by the laws of Military Courts Martial, and unlawfully convened without warrant or authority, and when she had not the right of public trial by jury as guaranteed to her by the Constitution and Laws of the United States, that therefore her detention and sentence are so without warrant, against positive law and unjustifiable: Wherefore she prays your Honor to grant unto her the United States most gracious writ of habeas corpus, commanding the said Major General W. S. Hancock to produce before your Honor the body of your said petitioner, with the cause and day of her said detention, to abide, etc, and she will ever pray.
MARY E. SURRATT.
By her Counsel.

II.314.38

Judge Wylie granted the writ, making upon it the following indorsement:

Let the writ issue as prayed, returnable before the Criminal Court of the District of Columbia now sitting, at the hour of 10 o'clock A. M. this 7th day of July, 1865.
ANDREW WYLIE,
A Justice of the Supreme Court of the District of Columbia. July 7, 1865.

II.314.39

At half past eleven o'clock, on the morning of the 7th of July, Maj. Gen. Hancock, accompanied by Att'y Gen. Speed, appeared before Judge Wylie in obedience to the writ, and made the following return:

HEADQUARTERS MIDDLE MILITARY DIVISION,
WASHINGTON, D. C., July 7th. 1865.
To Hon. Andrew Wylie, Justice of the Supreme Court of the District of Columbia:
I hereby acknowledge the service of the writ hereto attached and return the same, and respectfully say that the body of Mary E. Surratt is in my possession, under and by virtue of an order of Andrew Johnson, President of the United States and Commander-in-Chief of the Army and Navy, for the purposes in said order expressed, a copy of which is hereto attached and made a part of the return; and that I do not produce said body by reason of the Order of the President of the United States, indorsed upon said writ, to which reference is hereby respectfully made, dated July 7, 1865.
W. S. HANCOCK,
Major General U. S. Vols., Commanding Middle Division.

II.314.40

The president's indorsement upon the writ is as follows, to wit:

EXECUTIVE OFFICE.
July 7. 1865, 10 A. M


To Major General W. S. Hancock, Commander, etc.:
I, Andrew Johnson, President of the United States, do hereby declare that the writ of habeas corpus has been heretofore suspended in such cases as this, and I do hereby especially suspend this writ, and direct that you proceed to execute the Order heretofore given upon the Judgment of the Military Commission, and you will give this Order in return to the writ.
ANDREW JOHNSON.
President.

II.314.41

The court ruled that it yielded to the suspension of the writ of habeas corpus by the president of the United States; and under this illegal suspension of the "writ of writs" the prisoner, Mary E. Surratt, together with Herold, Payne and Atzerodt, were executed upon the scaffold.

II.314.42

—There are two important incidents connected with the closing scenes of the trial which became known to the writer,*53 and are of great interest. It was at first proposed to acquit Mrs. Surratt, or at least to spare her life. Objection was made by the judge advocate general, who proposed, in its stead, that the same judgment should be rendered by the commission as in the cases of Payne. Atzerodt and Herold, with a recommendation to the president for mercy in her case. This course was adopted, the judgment rendered, and the recommendation signed by nearly all of the members of the commission. This recommendation was not placed before the president with its findings at the time they were presented for his approval, as Andrew Johnson subsequently averred, upon his honor, that he never saw the recommendation until two years after the execution, when. upon sending for the papers in the case, he found it among them, in a detached form.

II.314.43

—The other incident is the declaration of Payne. made on the morning of the execution to Gen. Hartranft. the special provost marshal, and by him transmitted forthwith to the president. The statement, as taken down by him, is as follows: "The prisoner Payne has just told me that Mrs. Surratt is entirely innocent of the assassination of President Lincoln, or of any knowledge thereof. He also states that she had no knowledge whatever of the abduction plot, that nothing was ever said to her about it, and that her name was never mentioned by the parties connected therewith." Gen. Hartranft indorsed upon this declaration these significant words: "I believe that Payne has told the truth." It was, however, of no avail. Her death had been decreed.

JOHN W. CLAMPITT.


Notes for this chapter


53.
The writer was of counsel for Mrs. Surratt.

Footnotes for MINES

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