Visibly shaken, Weichmann asked, “They don’t hang bounty jumpers, do they?”
“I guess not,” replied the inmate.
After a moment’s reflection, Weichmann noted, “I am in thirty-seven,” and, feeling his neck, said, “If it was me, I would rather be shot than hanged.” If hanging was Lou Weichmann’s worst fear, detectives who mingled among the prisoners made the most of it. Louis Carland, costumer of Ford’s Theatre, overheard one of them threaten to do just that.15
SOONER OR LATER, the government would need to segregate the criminal defendants from the rest of the detainees, and to that end, Major Eckert suggested that Stanton reactivate the old penitentiary on the grounds of the Washington Arsenal. The building was ideally suited. It had 224 prison cells, and was almost entirely surrounded by water. No place in Washington was more secure. It even had a large room that could be used for the trial. So on April 28, Stanton ordered Major James Benton, commanding officer of the arsenal, to ready the prison building. Cells were cleaned and inspected, shuck mattresses were delivered, and a detail was assigned to guard the place. The transfer was made on April 29, when David Herold, Lewis Powell, Mike O’Laughlen, Sam Arnold, Ned Spangler, and João Celestino, the sea captain, were led, under cover of a late-night downpour, to the steamer Keyport. The ship took them to the old penitentiary. Some of them would not leave there alive.
Brevet Maj. Gen. John F. Hartranft was put in direct command of the prison. Hero of a recent battle outside Petersburg, Hartranft, thirty-four, performed the duties of a warden. Six officers were appointed to serve under him, including Dr. George Loring Porter, the arsenal’s medical officer. The instructions issued to Porter undoubtedly applied to the entire staff: “While engaged on this duty you will be careful not to answer any questions addressed to you by the prisoners nor allow them to make any remarks not connected with your professional duties (to you).” Eventually Capt. Christian Rath joined the prison team. Rath, a former sheriff, had experience as a hangman.16
Nobody was sure who the defendants would be, and some papers speculated that as many as eighty people would be put on trial. Many of the prisoners were considered accessories after the fact, and in truth, Stanton had never shown much interest in their cases. His main focus was on those who had planned the assassination, and by the end of April his officers were hard at work sorting through evidence to see who should be tried for that offense.
The decision to file charges was not an easy one. In many cases the evidence was ambiguous, and it often turned on the word of an African American. Federal courts had just begun to admit their testimony, but social prejudices lagged far behind the law. In the summer of 1865, most juries were still reluctant to convict a white man on the word of anyone who might once have been his slave. Ultimately, prosecutors avoided the issue in this case, and that probably came as a relief to Samuel Cox, Thomas Jones, and Dr. Richard Stuart, who could have been prosecuted only on the word of a nonwhite witness.
Olcott, Foster, Wood, and Wells reviewed the evidence together, and one by one they dropped prisoners from the list of suspects. One of the first to be cleared was Junius Booth, whose letter to John Wilkes about the “oil business” looked much less incriminating in light of his brother’s real oil venture. Most of the Ford’s Theatre staff could breathe easier as well, and so could a few of the people who had helped Booth in his flight. The truth is, most were being held only as witnesses anyway, though they were never told as much. Stanton’s threat to impose the death sentence was a bluff; their offense was only a misdemeanor.
In a few cases, the decision to prosecute would hinge on one specific, unbending rule of law: anyone indicted could not be a witness. While a suspect today might agree to testify in exchange for a lighter sentence, that practice was illegal in 1865. So if a prosecutor knew of evidence that a potential witness might have been involved in the crime, he had to weigh the value of his testimony against the public’s interest in punishing him. It was an all-or-nothing proposition.17
This made George Atzerodt’s case especially difficult. Though Atzerodt was clearly implicated in the conspiracy, his knowledge of the plot might make him indispensable as a witness. In fact, Colonel Wells specifically told him that his testimony could save him from the gallows. So Atzerodt made several attempts to demonstrate his usefulness to the government, and he got his brother and brother-in-law to help him write a proffer. But apparently he had nothing the prosecution could use. His various statements were confused, contradictory, and open to attack. At one time, he claimed that Herold had been assigned the job of killing the vice president, but everywhere else, he said that Booth had given him the task. In his proffer, Atzerodt claimed that Booth had never discussed assassination, but he had previously said that that was the whole point of the Herndon House meeting. And though he consistently maintained that the meeting took place in Powell’s room, he could not make up his mind whether it had started at six-thirty, seven-thirty, or eight o’clock in the evening. Initially he claimed it happened on Thursday, but later said it took place on Friday night—not realizing that Powell had already checked out by then.
Atzerodt had no chance of taking the witness stand unless he could provide evidence against the others. Knowing that, he tried to implicate Dr. Mudd, but he made a weak case. As he said in the proffer, “Booth sent (as he told me) liquor & provisions for the trip with the President to Richmond, about two weeks before the murder to Dr. Mudd’s.” The operative phrase here was “as he told me.” It confirmed that Atzerodt’s information was secondhand. He did not really know whether Booth was telling him the truth about Mudd, or whether the doctor actually accepted those items, knowing how they were to be used. All he could offer was hearsay passed from a deceptive source through an unreliable witness.
Even when Atzerodt lied, as he often did, he could not implicate the Confederates that Joseph Holt had targeted. Indeed, he seemed to know nothing at all about a Southern connection to the conspiracy, in spite of having ties to the underground. All he knew is that Booth had been worried that someone in New York would kill the president before he got the chance. Atzerodt didn’t know who these people were, but he spoke of them as rivals, not associates. “If he [Booth] did not get him [Lincoln] quick the N[ew] York crowd would,” he said. Even with his life in the balance, Atzerodt could not be any more specific.18
The witness rule undoubtedly saved lives. Sam Chester and John M. Lloyd were good examples. Chester was privy to Booth’s intentions, and he did not report the plot when he should have. Still, he was one of the few people who could testify that the conspiracy had existed for months. Colonel Olcott called him one of the most important witnesses he had seen, and he became one of the first to take the stand for the government. He shared that good fortune with John M. Lloyd. Though Lloyd could have been hanged for hiding Booth’s guns, he was the only man who could link them to Mary Surratt, who was then thought to be the ringleader. Thus, he was a witness, not a defendant.
Of all the people spared by the witness rule, none was more controversial than Louis Weichmann. Though Weichmann seemed to be a member of Booth’s inner circle, he was by far the best witness to tie Booth, Powell, Atzerodt, and Herold to the Surratts. He was also the only one who could testify about the failed capture attempt on March 17. Without the testimony of Louis Weichmann, the prosecutors would have a hard time building a case against any of their leading suspects. And it was he who tipped the balance against another prisoner.
During an interrogation in Stanton’s office, Weichmann was asked if he knew Dr. Samuel A. Mudd. Yes, he said, he had met the doctor in Washington, when Mudd introduced Booth to John Surratt. To Stanton, that was a revelation. Mudd had specifically denied seeing Booth at any time after the assassin’s fake real estate search through Charles County. If Weichmann were correct, Dr. Mudd had lied. After questioning Weichmann on the specifics of that meeting, Stanton turned to Colonel Burnett and snapped, “Write that down!” Soon Dr. Mudd was stricken from the list of pros
ecution witnesses and added to the list of defendants.
Detectives had always thought that Mary Surratt was deceiving them, but they had had trouble catching her in a specific lie. When interviewed a second time, though, Mrs. Surratt gave the government more to work with. She denied having any conversation with Lloyd about weapons in the tavern or even knowing they were there. When asked about relatives in the rebel army, she said, “I have no son in the Confederate army that I know of.” But that wasn’t true. Her oldest child, Isaac, was a sergeant in the 33rd Texas Cavalry.
After finishing with Mrs. Surratt, detectives talked again with some of her boarders. From Honora Fitzpatrick, they learned that Booth often came to the Surratt house, even when John Surratt was not home. Unidentified visitors stopped in at all hours, and occasionally they talked among themselves in Mrs. Surratt’s bedroom. “Sometimes Mr. Booth would go up there and sometimes Port Tobacco [would],” she said, “and then Wood sometimes would.” Apparently, meetings could take place without John Surratt, but not without his mother.19
It was Secretary Stanton who decided which prisoners would be put on trial. Ultimately, he indicted eight people. If he had had his way, the editor of the New York Tribune would have been the ninth. Stanton became convinced that by writing editorials critical of the administration, Horace Greeley was trying to have him killed. On May 12, he took action. He retained a New York attorney and told him that Greeley ought to be punished for inciting the assassins to “finish their work.” Said Stanton: “I shall not allow them to have me murdered without a struggle for life on my part.” Nothing ever came of his accusation.
CAPTAIN EDWIN BEDEE WAS NOT ACCUSED of conspiracy, but of stealing President Lincoln’s papers on the night of the assassination. He had done nothing of the sort, but had delivered the papers to Stanton, as requested, on the morning of April 15. Now the date of his court-martial approached, and Bedee appealed to the secretary for help. Stanton responded at once and set the record straight. He insisted that all charges be dropped and ordered Bedee’s accuser, Gen. James A. Hardie, to issue a full apology.20
THERE HAD NEVER BEEN any doubt that the defendants would be tried before a military commission. President Johnson confirmed it on May 1, when he ordered that a panel of officers be convened for that purpose. Though Johnson would always contend that his attorney general had endorsed the idea, James Speed did not actually write his opinion down until late June, when the defense had already given their closing arguments.
The Lincoln conspiracy trial would pit eight defendants against the federal government. Dr. Mudd and Mary Surratt were indicted for sheltering the conspirators and helping to plan the killing; Powell, Herold, Spangler, and Atzerodt for involvement in the attacks; Arnold and O’Laughlen for taking part in the plot. Had the government possessed an efficient means of sorting data, they might have tried many more. But as it was, the evidence lay piecemeal in War Department files, never effectively examined or organized. So many of Booth’s cohorts were never caught, and people such as Sarah Slater, Preston Parr, Thomas Harbin, and Atzerodt’s friends Walter Barnes and Henry Bailey were allowed to go free, taking their secrets with them.
Evidently, Judge Holt was still eager to indict Confederate officials, so on May 2, President Johnson took active measures to secure their arrests. He issued a proclamation:
Whereas it appears, from evidence in the bureau of military justice, that the atrocious murder of the late President Abraham Lincoln, and the attempted assassination of the Honorable William H. Seward, Secretary of State, were incited, concerted, and procured by and between Jefferson Davis, late of Richmond, Virginia; and Jacob Thompson, Clement C. Clay, Beverly [sic] Tucker, George N. Saunders [sic], William C. Cleary, and other rebels and traitors against the government of the United States, harbored in Canada:
Now, therefore, to the end that justice may be done, I . . . do offer and promise for the arrest of said persons, or either of them . . . so that they can be brought to trial, the following rewards. . . .
The sum of $100,000 was offered for the capture of Jefferson Davis, and $25,000 was set for most of the others.
Johnson’s proclamation brought an immediate reaction from the newly accused. Beverley Tucker declared that he had never known or heard of any of those connected with the assassination and insisted that anyone who said otherwise “blackens his soul with perjury.” Tucker pointed out that the Lincoln administration (and particularly William Seward) was known to favor the annexation of Canada, and by framing Confederates who lived and worked there, they hoped to incite a war that would achieve their ends.
Jacob Thompson was even more direct. “I aver upon honor that I have never known, or conversed, or held communication, either directly or indirectly, with Booth . . . or with any of his associates, so far as I have seen them named,” he insisted. “I knew nothing of their plans. I defy the evidence in the Bureau of Military Justice. . . .” Thompson landed a solid punch on the administration when he referred to the card Booth had left for Andrew Johnson at the Kirkwood House. “I know there is not half the ground to suspect me,” he said, “than there is to suspect President Johnson himself.” Obviously, these men would not take the accusations lying down.21
THE LATE PRESIDENT’S FINAL JOURNEY came to an end on May 4, with a funeral service in Springfield. A large crowd braved the rain and chill to hear Bishop Mathew Simpson, of the Methodist Church, lead the graveside service at Oak Ridge Cemetery. There the bodies of Lincoln and his son Willie were placed in a public receiving vault to await a more permanent resting place.
ANDREW JOHNSON’S ORDER convening a military commission did not go into specifics, so when General E. D. Townsend returned from Springfield, he selected the nine officers who would serve on the panel. Major General David Hunter, who had just accompanied the president’s remains to Illinois, was to preside over the trial. The others were men of respectable rank and service: Major General Lew Wallace, Brevet Major General August V. Kautz, Brigadier General Albion P. Howe, Brigadier General Robert S. Foster, Brigadier General Cyrus B. Comstock, Brigadier General Thomas M. Harris, Brevet Colonel Horace Porter, and Lieutenant Colonel David R. Clendenin. Brevet Brigadier General Frederick H. Collier was originally slated to serve as well. Collier, a former prosecutor from Pittsburgh, had known Stanton for years, and had served on many such commissions in the course of the war. But for unspecified reasons, his assignment to this case was canceled.
The commission met for the first time on the morning of May 8. Two members were absent, but the others moved ahead and got their first look at the defendants. All of the male prisoners were shackled, and of them, all but Dr. Mudd wore hoods. Powell and Atzerodt had chains riveted around their ankles, with a heavy iron ball attached; each was accompanied by a soldier who carried the ball. The accused took their places on a long raised platform, set apart from the room by a wooden rail. Soldiers sat between them. When all were seated, the hoods were removed.
General Cyrus Comstock was appalled at the treatment of the prisoners. Comstock was one of several officers who had tried to get himself excused from the commission. An early adjournment gave him one more opportunity to lobby for his release, and this time he was successful. When the members of the commission appeared the following day, Comstock and Horace Porter had both been excused—ostensibly because they were senior aides to General Grant. Since Grant was thought to be a target of the conspiracy, their presence on the commission was deemed inappropriate. They were replaced by Brevet Brigadier General James A. Ekin and Brevet Colonel Charles H. Tompkins. General August Kautz, who had also tried to be excused, was forced to remain on the commission.22
When the full panel had assembled on the ninth, Judge Advocate General Holt introduced himself as the lead prosecutor. He would be assisted by two men with experience in high-profile military trials: Colonel Henry L. Burnett, who had served as a prosecutor in the Indianapolis and Cincinnati treason trials, and Congressman John Bingham, who had taken part in the court-martial
of General Fitz-John Porter. They noted that some of the defendants were not represented by counsel, and they asked if they wished to have an attorney. Each answered in the affirmative. That said, the commission adjourned to allow the accused a little more time to find one. But with or without, the government would start presenting its witnesses the following day.
THE TRIAL TOOK PLACE in a heavily guarded part of the old penitentiary building, with grated windows and eighteen-inch-thick walls. Another wall, twenty feet high, surrounded the entire prison. The courtroom itself was on the eastern end of the cell block, on the third floor of what had once been the deputy warden’s quarters. Workmen had altered the place, adding separate doors for prisoners and witnesses, new gas fixtures, and a raised platform for the accused. The room was divided by a line of three columns, on one side of which was a large green-baize-covered table for the commission. General David Hunter sat at one end of it, and Judge Holt and his assistants sat at the other. Law books and a few trial exhibits were placed in the center. A second large table was reserved for defense counsel and official reporters. A witness stand set up between the tables was arranged so that anyone giving testimony would have to face the commission when speaking. Reporters, sitting behind them, could not always hear what was said, but the rule was strictly enforced, and any witness who turned around drew a sharp rebuke from General Hunter.
Four reporters were borrowed from the Senate, and Benn Pitman, assistant to Henry Burnett, was appointed to supervise them. They worked in shifts, scribbling notes in the most common system of shorthand then in use—the one invented by Pitman’s brother Isaac.
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