After some debate the commission overruled Harris’s objection and accepted Johnson as counsel for Mary Surratt. The first victory fell to the defendants. August Kautz appeared to represent the majority of the commission in rejecting Harris’s position when he wrote in his diary that Reverdy Johnson “did the other members [of the commission] great injustice if he supposed they united with General Harris in his ill-advised objection.”41
By the third day counsel for all of the defendants were in place and ready to proceed. At this point Thomas Ewing and Reverdy Johnson rose to challenge the legal jurisdiction of the military commission. They based their arguments on the fact that the civilian courts were open and functioning, and therefore the commission lacked jurisdiction. They argued that the defendants were all civilians and therefore should be tried in civil court and not by the military. Challenging the court’s jurisdiction was not unusual. In the several thousand military trials that had been held to date, the court’s jurisdiction was challenged in nearly every one of them.42
The commission ruled on its own jurisdiction, denying the motion by Ewing and Johnson. It was at this time that Samuel Mudd asked that he be tried separately from the others because his defense would be “greatly prejudiced by a joint trial.”43 Mudd’s request was denied. While the commission viewed Mudd as “socially distinct” from his co-defendants, they could see no such legal distinction. He would be tried along with the other seven defendants. With this business concluded, the session was adjourned until the next day, when the actual trial would begin. The prosecution and the defense were complete, witnesses for the prosecution were in tow, and they were ready to begin presenting their case.
Those critics who opposed the military commission on jurisdictional grounds were farther bolstered in their criticism when the commission declared that it would try the accused behind closed doors, keeping the proceedings secret. The press objected vigorously to this heavy-handed ploy by the government. Stanton came under the severest criticism, especially by later writers on the subject, but the original decision to hold closed hearings was not Stanton’s, it was Holt’s. In fact, Stanton favored a public trial. To his way of thinking, a public trial would help expose the Confederate complicity in the murder of the president. Henry Burnett, the man in charge of the trial procedures, wrote to Stanton on May 10, requesting him to make a decision one way or the other: “This evening you expressed the opinion that the charges and specifications should go to the Associated Press with the synopsis of today’s proceedings, but at the same time instructed me to consult with Judge Holt in reference to the matter. His opinion is decidedly against any publication of the charges, and in favor only of a very brief synopsis. How shall it be?”
Stanton wrote back to Burnett instructing him to follow the instructions of his superior. On the second day of the trial Holt decided to open up the proceedings to the public. Holt also mandated that the press be given the same transcripts (press copies) that were distributed to the lawyers each morning. Holt never explained his reasoning for this change in tactics, but it seems he suddenly became sensitive to charges of unfairness and realized that Stanton favored a public trial.
The defendants were at a clear disadvantage in being tried by military officers, none of whom had served previously as judges or attorneys. In addition, conviction required only a simple majority instead of a unanimous court. The death sentence required a two-thirds majority. The most serious consequence of trial by military commission lay in the inability of the defendants to appeal the verdict to a higher court. Appeal of a military commission’s ruling was only to the president of the United States, although all of that changed in 1866 when the Supreme Court agreed to hear the appeal of Milligan. As a result of the Milligan case, Mudd was able to file an appeal in the United States District Court for the District of Southern Florida in 1868 that eventually ended up in the Supreme Court in 1869. No matter how one compares the military trial with a civil trial, the real difference between the two forms in July of 1865 was the belief by the government that a civil trial would result in jury nullification due to strong Southern sympathies in the civil population of the District of Columbia. Whether real or perceived, it was this fear that motivated the government to seek a military trial, and the accused were definitely at a disadvantage.
Initially, the trial appeared to be two trials in one. The prosecution of Jefferson Davis and his cohorts proceeded as one trial, while the prosecution of Mary Surratt, Samuel Mudd, and the other defendants was viewed as a separate trial.44 Tried as unindicted co-conspirators along with the eight defendants in court were Jefferson Davis, George N. Sanders, Clement C. Clay, Beverley Tucker, Jacob Thompson, William C. Cleary, George Harper, George Young, “and others unknown.” Davis’s co-defendants were among the Confederate agents who had operated out of Canada and who the government believed had waged “black flag warfare” against the northeastern states. This included “germ” warfare against New York, Washington, Norfolk, and New Bern. To believe that George Atzerodt or David Herold was an agent of Jefferson Davis seemed almost laughable. That Mary Surratt conspired with any of these ruffians was unthinkable to many. Still, the government saw one great conspiracy made up of many small dots that, when connected, led directly to Richmond.
On May 2, ten days before the actual trial began, President Johnson issued a proclamation offering rewards for the capture of Jefferson Davis and five of his Canadian-based operatives. Johnson’s proclamation claimed that evidence in the Bureau of Military Justice clearly showed their complicity in Lincoln’s assassination.45 The claim caused a stir among the general public. A statement coming from the president of the United States was thought to be true or to contain enough truth to warrant trying these men for Lincoln’s murder. The public still had strong memories of the raid on St. Albans and the attempt to burn New York City and spread the pestilence of yellow fever throughout the North. These were considered acts of terror and uncivilized. The perpetrators of such acts had little sympathy among the Northern population or the Northern press. While the government claimed it had evidence to show that Davis and his Canadian agents had been behind Lincoln’s murder, it did not attempt to put them on trial along with the eight defendants. Thus Davis and his agents became unindicted co-conspirators.
Following his capture on May 10 near Irwinville, Georgia, Jefferson Davis believed he would be tried by his captors for treason, but also believed they would not be able to convict him on either legal or constitutional grounds. He viewed the charge that he shared complicity in Lincoln’s murder with contempt.46 Davis was also contemptuous of Andrew Johnson. He purportedly said that he “would a thousand times rather have Abraham Lincoln to deal with, as President of the United States, than to have [Andrew Johnson].”47
The government’s case against the Confederates hinged on the testimony of three witnesses who claimed to have intimate knowledge of their involvement in plotting Lincoln’s death. Claiming that the testimony would compromise the witnesses and place them in personal danger, Holt at first convinced the commission to hear their testimony in secret despite protests from the media and public. The attempt was eventually abandoned after parts of the testimony were leaked to the press and appeared in several major newspapers. In an effort to counter wild speculation, the commission decided to release all of the testimony or risk losing the public’s support.
The government’s three chief witnesses were Richard Montgomery, James B. Merritt, and Sanford Conover. All three witnesses claimed to have been in Canada and to have been taken into the confidence of the Confederate leaders there, particularly Jacob Thompson and George Sanders. Thus, all three had intimate knowledge of the Confederate leaders’ alleged relationship with Booth. Of the three witnesses, Conover proved to be the most sensational in linking the Confederacy to Lincoln’s death. Conover claimed that he had actually seen Booth together with Thompson and Sanders in Canada and that Thompson had told him that Booth had been authorized by Richmond to kill Lincoln.48 Merritt r
eiterated what Conover said, then went farther, claiming that Davis had actually authorized the killing in writing.49 Montgomery confirmed both Conover’s and Merritt’s testimony that a plot to assassinate Lincoln was in the works and that Thompson only awaited approval from Richmond.50 The three witnesses claimed to have seen Booth, Powell, and Herold in Canada and that Booth, Surratt, and Atzerodt were among the band of conspirators assigned to murder Lincoln. Conover’s testimony placing Booth in the presence of Confederate agents was the link prosecutors had been looking for.51 But the government’s case soon took a dramatic turn for the worse.
No sooner had these men testified than their credibility came under severe attack. As the principal witness against the Confederate leaders, Conover became the focus of these attacks. In Canada he had used the alias James Watson Wallace, while in Washington he testified under the alias Sanford Conover. His real name was Charles A. Dunham. Within days of publication of Conover’s testimony by the press, countercharges were appearing in most major newspapers. The essence of the countercharges centered on Thompson and his colleagues’ not being in Montreal when Conover claimed he met with them. No sooner had one allegation been exposed as perjurious than another followed. In truth, all three witnesses appeared to have lied.
Because the testimony of Conover and Montgomery and Merritt proved to be perjured, most historians have concluded that the charge of Confederate involvement was without merit. The public, however, had little difficulty with the government’s case. Despite the perjury, the public believed there was enough evidence to indict the Confederate government.52 Holt, however, soon turned his attention to the eight defendants in the dock.
Following his capture, Davis was imprisoned at Fortress Monroe, Virginia. On May 14, Stanton wrote to Major General Henry Halleck that Davis was to remain a prisoner in Fortress Monroe and that “his trial and punishment, if there be any, shall be in Virginia.”53 Sentiment among the press was generally in favor of trying Davis before a military commission. While Stanton and Seward both favored a military trial, Stanton felt that Davis should be tried in a civilian court on the charge of treason first and then tried before a military commission on all of the other charges associated with his alleged complicity in Lincoln’s assassination.54 Neither happened. Davis was released on parole on May 11, 1867, two years and one day after his capture near Irwinsville, Georgia. He was never brought to trial either before a civilian court for treason or before a military tribunal for complicity in Lincoln’s murder. The government eventually entered a nolle prosequi that closed the case against the Confederate president. Though imprisoned for two years, Davis eventually walked away, becoming a popular hero of “The Lost Cause.”
The prisoners in the dock were not as fortunate as Davis. Holt and Bingham pressed the government’s case against the unfortunate eight. The guilt of Powell and Herold was a forgone conclusion. Powell’s guilt was never disputed. His defense became a plea for his life. He was characterized as simply a rebel soldier carrying out his duty. His actions were no different from those of any rebel soldier with the exception that “he aimed at the head of a department instead of a corps; he struck at the head of a nation instead of at its limbs, . . . he believed he was killing an oppressor.”55
Herold’s defense centered on his inability to commit murder. His attorney pleaded that he was “unfit for deeds of blood and violence; he was cowardly.” His only service to Booth was his knowledge of roads; he was a pathfinder and nothing more. Atzerodt, who had been characterized as “crafty, cowardly and mercenary,” was simply a boatman. Like Herold, he was either too stupid or too cowardly to participate in murder. His only role was “to furnish the boat to carry the party over the Potomac.” He was “the ferryman of the capture.” When Booth told Atzerodt “to take charge of the Vice-President, he must have known that the prisoner had not the courage, and therefore did not care particularly whether he accomplished it or not.”56
The case for Arnold and O’Laughlen was equally simple. Whatever role they may have played was solely as abductors, not accomplices to murder. There was the “Sam” letter that tied Arnold tightly to Booth, and Booth’s telegram to O’Laughlen calling him to Washington. Whatever the relationship these two had with Booth and his plot to capture Lincoln, the defense claimed they walked away from both Booth and his crazy scheme. Neither man knew about the murder, nor would they have anything to do with it. But the prosecution didn’t buy it. The defense would have to come up with something better than claiming their defendants “walked away” from Booth’s conspiracy. Had they “walked” into police headquarters instead of away from Booth, Lincoln would never have been murdered. Thus the concept of “vicarious liability,” so common in modern-day jurisprudence, weighed heavily against the accused accomplices.
Edman Spangler was the weakest of the prosecution cases. Well known to Booth, Spangler was an old crony who had the longest association with Booth. It was Spangler whom Booth called to hold his horse that night at the theater. More important, it was Spangler who was accused of slamming the rear door immediately after Booth fled across the stage and out of the theater. Spangler may have been duped by Booth, but he would pay for his being so gullible. The military commission simply could not believe that Booth could have managed his escape from the theater without some sort of help, and the hapless Spangler was it.
The prosecution saved its best efforts for Mary Surratt and Samuel Mudd. The two defendants who garnered the most public sympathy as innocents received the severest attack by the prosecution. While the other six defendants all had direct ties to Booth, Mary Surratt and Dr. Mudd were portrayed as innocent acquaintances by their attorneys. The government had simply made a bad mistake in charging them as co-conspirators. Mary was a simple boardinghouse proprietor who was viewed by many as a victim because of her son John. Dr. Mudd did nothing more than honor his medical oath to care for the injured.
The prosecution painted a different picture. Mary Surratt not only “kept the nest that hatched the rotten egg,”57 as President Johnson had pointed out, she willingly did Booth’s bidding carrying messages to John Lloyd at her tavern where Booth and Herold would reoutfit themselves at the time of their escape. Furthermore, she helped tighten the noose around her own neck by denying she recognized or knew Powell the night of her arrest. The most damaging circumstance for Mary, however, was her son John. The government considered John Surratt a key player in Booth’s plot. He was an important link to Richmond.
Samuel Mudd had little more than his good word and a strong defense counsel to fall back on. While his counsel performed well in his defense, his good word did not. The prosecution showed that Mudd had lied repeatedly even when given every opportunity to come clean. Innocent men do not withhold the truth or mislead. Mudd did both and the government easily dismissed his claims of innocence. Thomas Harris had used the shape of Mudd’s head to conclude that he was “a natural born liar and deceiver,” but the other commissioners had Mudd’s own statements to show that he had lied repeatedly. Adamantly maintaining that he had met John Wilkes Booth on only one occasion, the evidence showed that when Booth visited Mudd in the early morning hours of April 15, 1865, it was the fourth time the two men had met. In the end Mudd’s status as a physician may have saved him from the gallows, but not life in prison. The nine commissioners voted five to four to hang the doctor. Mudd would be saved by a single vote. Mary Surratt had no such luck to save her.
On June 30 the military commission rendered its decision. All eight defendants were found guilty. Lewis Powell, David Herold, George Atzerodt, and Mary Surratt were sentenced to death by hanging. Samuel Mudd, Samuel Arnold, and Michael O’Laughlen were sentenced to life in prison. Edman Spangler was sentenced to six years. The prison terms were to be served in the penitentiary at Albany, New York, only to be changed later to the military prison at Fort Jefferson located among the Dry Tortugas Islands off the Florida Keys.
Few had expected Mary Surratt to hang. Following the commission’s recom
mendations on sentencing, five of the nine members signed a second recommendation asking President Johnson to grant executive clemency for Mary Surratt in consideration of her sex and age.58 It was not until July 5, two days before her hanging was scheduled, that Holt carried the commission’s findings along with their recommendation of clemency for Mary Surratt to Johnson. Johnson signed the papers approving the sentencing recommendations of the commission but did not sign the clemency plea. When word eventually leaked out that a clemency plea was rejected by Johnson he emphatically denied ever seeing a copy of it and claimed that he was not made aware of it until some time after the hanging. Holt was equally emphatic, claiming he had shown the petition to Johnson who ignored it.
Two years later, in August 1867, Johnson ordered Stanton to send him the clemency papers that Holt insisted he had shown the president. Johnson’s personal secretary, Colonel William G. Moore, kept a detailed record of the affair: “He distinctly remembered the great reluctance with which he approved the death warrant of a woman of Mrs. Surratt’s age, and that he asked Judge Advocate Genl. Holt, who originally brought to him the papers, many questions, but that nothing whatever was said to him respecting the recommendation of the Commission for clemency in her case.”59 We may never know for sure the true circumstances surrounding the appeal for executive clemency for Mary Surratt. Who was telling the truth was of little use to her at the time.
On the morning of July 6 Generals Hancock and Hartranft began their grim duty of visiting each of the four condemned prisoners and reading them their death warrants. Shortly after the prisoners received official word of their fate, the Arsenal carpenters began work on a gallows. They worked throughout the night until early morning of the seventh, the day of the hanging. During the entire period, their sawing and hammering could be heard by the prisoners as they waited in their cells. July 7 dawned hot and steamy and only grew worse as the sun slowly made its way toward its zenith. Washington’s summers were bad enough to warrant giving British officials tropical pay for serving in the city. The weather on the seventh would more than justify their pay.
Blood on the Moon Page 33
