American Brutus

by Michael W. Kauffman

  The simplest case was made against Lewis Powell. He had conspired with Booth, and was unquestionably the man who attacked Secretary of State Seward.

  The most complex case was the one brought against Dr. Mudd. The prosecution claimed that there had been a series of meetings between Mudd and Booth: first, at his own home; second, at the National Hotel in January; and third, at the same hotel in March. That last meeting was inferred from the testimony of Marcus P. Norton, a patent attorney, who claimed that Mudd mistakenly barged into his hotel room looking for Booth. The doctor was also accused of delaying his report of Booth’s whereabouts until long after the fugitives had left his farm.

  Since John Bingham considered all rebel sympathizers to be guilty of conspiracy, he spent a good deal of time attacking Mudd on evidence of his pro-Southern leanings. Thus, he called the doctor’s former slaves to testify about the way Mudd had treated them—he had once shot one in the leg— and about his sheltering of rebel soldiers in the woods. But other former slaves testified that Dr. Mudd was a gentle master, and one of the “rebel soldiers” in question tried to show (over Bingham’s objections) that he was just a civilian, hiding there in fear of an unjustified arrest. Mudd’s attorney also tried to show, over Bingham’s objections, that Booth had first come to Bryantown in search of real estate, and that his meeting with the doctor came about by chance because John C. Thompson, who introduced them, thought that Mudd might have some land to sell.

  The most damaging testimony against Dr. Mudd came from Louis Weichmann, who had already established himself as the government’s most important witness. Weichmann described that December 23 meeting at the National Hotel, and said that Booth, Surratt, and Mudd were speaking confidentially among themselves. (He said the meeting took place in January.)

  Though Weichmann’s testimony seemed damning, he never actually claimed to know what the defendant was doing with Booth. This turned out to be the hallmark of all his testimony. Though it was Weichmann who tied Booth to almost everyone on the dock, he never claimed to see or hear what transpired among them. His testimony always implied that the defendant was engaged in guilty conduct, while asserting that his own presence there was innocent. Thus he walked a fine line: he made his points with the government, but left the onus of betrayal on others.

  In the end, it was John M. Lloyd, not Weichmann, who incriminated Mary Surratt. Lloyd claimed that she had asked for those “shooting irons” at the tavern. More than all the shady visitors, more than Lewis Powell’s arrest in her hallway, and more than her apparent intimacy with Booth, Lloyd’s testimony showed direct participation in the plot on the night of the shooting. The testimony of Weichmann only brought her into Lloyd’s presence.

  THE COURTROOM WAS USUALLY PACKED to capacity, and reporters had to maneuver for a look at the defendants. A surprising number were reminded of wild animals. Jane G. Swisshelm, for example, wrote, “I think I could not have passed Harold on the street without mentally exclaiming, ‘ape.’ ” She described Atzerodt as a panther, “who could only spring for prey when he felt assured of success,” and said that “Payne” was like a buffalo, “who simply had a fierce delight in conflict, [and who] had been trained to believe that Mr. Seward was trespassing on his grazing lands. . . .” Of all the prisoners, it was “Payne” who inspired the most imaginative comments. Most observers seemed to think he was superhuman. “His name is a misnomer,” said the Sunday Mercury. “He seems to have no comprehension of physical suffering. . . . His nerves appear to have gone into muscle.”

  It is almost impossible to find any description not tinged by a preconception of guilt. The Boston Daily Advertiser said, “Already such testimony has been taken as to assure the court and the world of the guilt of nearly all the accused; and nothing short of a miracle can save their lives from the doom, the justice of which every word from the witness stand makes more certain.” In fact, this was published before a single word of testimony had been taken about any of the defendants.

  The public loved reading about the “wretched accused,” and they expected condemnation in the most colorful terms. The Washington press corps did not disappoint. They called Mary Surratt the “mother of conspirators,” and observed, “We have seen cows and oxen with countenances very much like that of poor Spangler.” They told of Atzerodt’s lowness, Herold’s stupidity, and Dr. Mudd’s vanity, and their observations were often based on the configuration of bumps on the suspects’ heads. One of the kindest remarks was reserved for Mike O’Laughlen, who, it was said, “must be young in crime, [as] the deformity of his soul has not pictured itself on his face.”

  Over the next six weeks, witnesses were questioned on Booth’s movements, the shooting at Ford’s, and various plots allegedly hatched by the Confederate government. Brooke Stabler and John Fletcher told how Herold, Atzerodt, and Booth shared their horses. John Greenawalt and Mary Van Tyne told of Booth’s conferences with the defendants. Sgt. Silas Cobb and Willie Jett detailed Booth’s escape, and Everton Conger told of the assassin’s final moments. Thus did the trial move through the sweltering heat of summer in a room often packed to suffocation. Visitors shuffled in, defendants talked with their lawyers, and prosecutors lectured the commission on points of law.6

  The proceedings often grew acrimonious. When that happened, prosecutor John A. Bingham was almost always involved in the fight. Bingham’s style was anything but gentle; he scolded, mocked, and intimidated his adversaries, and never yielded an inch of ground. To him, an argument didn’t simply have merit; it was so plain that anyone with a trace of common sense could perceive it. A legal authority wasn’t simply on point; it was so precisely relevant to the argument that one would have thought the author had written it with this case especially in mind. While Holt and Burnett were models of decorum, John A. Bingham was a scrapper. In law and politics, he gave no quarter.

  Understandably, each side challenged the credibility of opposing witnesses, but in the eyes of the prosecutors, credibility often hinged on politics. They usually asked witnesses how they had voted in the last election, and they made a special point of asking those from Southern Maryland. Anyone who had supported Benjamin Gwynn Harris for Congress knew he was in trouble. Joseph Holt’s office had just taught Mr. Harris a lesson in hardball politics. On April 23, two Confederate soldiers stopped at the congressman’s home on their way back from the war. They spoke to Harris, and he supposedly counseled them not to take an oath of allegiance, but to let themselves be exchanged, then get back into the fight. Though he declined to give them a place to stay, he did give each a dollar to pay for a hotel room. For that, he was arrested and tried by a military commission. Convicted of harboring Confederates, he was expelled from Congress and sentenced to three years in prison. His case cast a long shadow over the conspiracy trial, which began just as the Harris trial ended.7

  It was almost two weeks into the trial before Joseph Holt called his most important witness on the issue of Confederate involvement. This was Sandford Conover. As a correspondent for the New York Tribune, Conover had reported anonymously on plots against Lincoln in the spring of 1864. He said that he left the South in October of that year and, under the alias of James Watson Wallace, went to Montreal, where he got to know some Confederate officials. He said that they told him about various schemes to bring terror to the Northern public, and he claimed that Jacob Thompson even asked him to take part in one of these. Conover described it as a plot, led by Booth, to kill Lincoln and most senior officials in the federal government.

  According to Conover, John Surratt came to Thompson’s office sometime after April 6 with letters of approval for the scheme. After reading the letters, Thompson allegedly tapped on them and said, “This makes the thing all right.” A few days later, Conover saw Thompson talking with his colleague William C. Cleary when they heard rejoicing over Lee’s surrender. Cleary remarked that the Confederacy “would put the laugh on the other side of their mouth in a day or two.” If prosecutors were looking for a smoking gun, they f
ound it in the testimony of Sandford Conover.8

  Considering how vigorously Judge Holt pursued a Confederate angle on the plot, it is strange that he ignored the undeniable link that existed between the rebel government and Lewis Powell. Though Powell had left the uniformed service in January, he fell in with a pro-Southern network almost immediately, and it was they who led him to John Surratt. Indeed, it is no stretch to say that Preston Parr, Maggie Branson, and Thomas Green were part of a spy network, and that they supplied Booth with his most trusted lieutenant. Yet Joseph Holt and associates did nothing with the information. Had they wanted to bring the real Southern connection to light, the man they called “Payne” should have been their way in.

  The prisoner himself was hard to ignore. To Holt and almost everyone else, Lewis Powell was an object of wonder. He was a gladiator—a tall, cool killing machine who seemed utterly indifferent to his own fate. But that was the public image; in private, Powell was an emotional wreck. On the ship he had tried to kill himself. In his cell, he wept at the thought of what he had done. His confinement was such a jolt to his system that it left him constipated for weeks. Add the panicked behavior at Seward’s and a racing pulse, and an entirely different picture of Lewis Powell emerges. He was not so much a heartless killer as a scared young man who just didn’t show his feelings.

  Much about him was still a mystery. His identity was yet unknown, and after a woodcut appeared in Harper’s Weekly, guessing became a national pastime. Superintendent John A. Kennedy of the New York Police Department believed he was really William A. Johnson of New Bern, North Carolina. Others thought he was an illegitimate son of Jefferson Davis. By various accounts he was a Missourian, a Kentuckian, a Georgian, and a Canadian. Detectives spent a small fortune chasing down leads, but they missed one that might have proved helpful. Back on April 24, A. H. Windson suggested that the prisoner might be the same fellow who had captured Dick Blazer the year before. He urged authorities to have Blazer identify him, but no action was taken.

  Powell himself did not break his silence for weeks. His own attorney, William E. Doster, could not decide whether to explain his conduct by “lunacy, unparalleled stupidity or fear of prejudicing his cause by communications with his counsel.” But after the prosecution presented its case against him, Powell finally opened up. On May 20 he asked Doster to come back and talk to him the following day, a Sunday. They sat in the courtroom for hours, and Powell asked about the condition of Frederick Seward; he said he wished to apologize for the attack. Eventually he talked about his life. He spoke of growing up in a slave system, of enlisting at sixteen, and of losing two brothers in the war. As Powell told it, anyone in those circumstances would hate Yankees, and would have felt honored to be chosen for Booth’s plot. Impressed with his sincerity, Doster made up his mind to put it all on the record. By the rules of evidence, though, he could do that only through an insanity defense.9

  The general public had not really settled on a definition of insanity. Though everyone agreed that mental illness could result from organic brain disease, some also believed in such a thing as “moral insanity,” which impaired only the “affective faculties.” In lay terms, it was a lack of emotional control. This would form the basis for Lewis Powell’s defense.

  These days, insanity is strictly a legal term, but in 1865 it was an accepted medical diagnosis as well. Though relatively few specialized in the study of mental illness, the law allowed any physician to testify as an expert witness. And since the profession had not universally endorsed the concept of “moral insanity,” an attorney could not be sure of finding a doctor whose views were favorable to the defendant. There were skeptics in the legal profession as well. Ironically, one of the nation’s most visible proponents of the insanity defense was none other than William H. Seward. In 1846, Seward had defended two accused murderers on that basis, and had championed their cause at the risk of his own political career.

  William E. Doster seemed to equate insanity with unreasonable behavior, and his client had certainly demonstrated enough of that. “In the first place,” Doster said, “all the circumstances connected with the assassination show the work of insane men . . . look at the conduct of the prisoner, Payne, after he entered the house, without the slightest particle of disguise, speaking to the Negro [Bell] for five minutes—a person that he must know would be able to recognize him again thereafter; the ferocity of the crime, which is not indicative of human nature in its sane state; his leaving all the traces, which men usually close up, behind him. . . . He takes his knife and deliberately throws it down in front of Mr. Seward’s door, as though anxious to be detected; and then, instead of riding off quickly as a sane man would under the circumstances, he moves off so slowly that the Negro tells you he followed him for a whole square on a walk; and afterwards [returns] to the very house . . . where he must have known, if he had been sane, that he would immediately walk into the arms of the military authorities. He goes to this house in a crazy disguise, because who in the world ever heard of a man disguising himself by using a piece of his drawers as a hat. . . . I ask you, is that the conduct of a sane man?”10

  One is naturally tempted to ask whether John Wilkes Booth, son of the “Mad Tragedian,” might have been found insane under existing laws. Privately, Junius Booth, Jr., believed that insanity ran “more or less thro’ the male portion of our family,” and his youngest brother, Joseph, admitted that he had become insane after hearing what John Wilkes had done. But both men were referring to depression; organic disease was another story. As a doctor well versed in mental health issues, Surgeon General Barnes testified that the “severest” test of sanity was the so-called Shakespearean test, in which the physician asks the patient a series of questions—usually about the patient himself—then repeats the questions later. If the answers match over time, the patient is considered sane. It was really a test of mental coherence. Since Booth had demonstrated the trait countless times on stage, such a test would have been superfluous.11

  None of the prosecutors believed Powell was insane. They felt that his attack on Seward was carefully calculated, with the perfectly rational aim of throwing the government into confusion. The laws of presidential succession proved this. Though Seward would not have become president in the absence of Lincoln and Johnson, he would have been required, as secretary of state, to call electors to choose a new executive, should the president and vice president both die in office. If the secretary of state were taken out of the picture, prosecutors said, the whole system would shut down.

  Their theory was interesting, but completely at odds with the assassin’s own reasoning. Time and again, Booth had complained that the Lincoln administration had no regard for the Constitution, and that they had cast aside any law that interfered with their wishes. His sincerity in that belief is beyond question. So why would he think that another law—and an almost trifling one, compared to the First Amendment—could stop Lincoln’s partisans dead in their tracks? Surely Booth knew about the long-settled practice of succession within departments. As early as 1803, subordinates had been assuming the duties of their absent superiors with no loss of authority. In fact, William Hunter, acting secretary of state, had moved seamlessly into the roles of the Sewards on April 15. He had done so before, and nobody questioned the legality of his work in that capacity.

  It is worth noting that the law of succession provided only for the death of the president; it said nothing about a living executive who simply couldn’t do his job. From a legal perspective, the capture of Lincoln would have been more disruptive than his death.12

  ALMOST EVERY ACCOUNT of the trial has focused on the treatment of the prisoners while glossing over the specific testimony and points of law. But this was a landmark event that spoke volumes about the times and— since September 2001—about our own as well. The only way to put the Lincoln conspiracy trial in its proper context is to read the record closely, bearing two specific questions in mind: What might have happened to the defendants in a civilian c
ourt? and How different would the trial be under current laws? There are no simple answers.

  It is not easy to put aside the barbarous image of people in hoods and chains. Prisoners had not been treated that way since 1696, and would not be again until 2001. But just as strange, in a way, was the fact that not all of the prisoners were forced to endure it. Mrs. Surratt and Dr. Mudd were never hooded, and Mudd, Arnold, and O’Laughlen were never weighted down with a heavy iron ball. Still, the treatment was shocking, and after some of the commission members objected to it, the hoods were no longer worn in the courtroom. They were removed altogether on June 10.

  In his capacity as jailer, General Hartranft did all he could to alleviate the suffering. Though the cells measured only three and a half by seven feet, the general made sure they were kept “as comfortable as can be expected.” Meals of coffee, soft bread, and salt meat were plentiful, and visitors to the prison could augment the fare. Of all the prisoners, Ned Spangler was the quickest to adapt to his conditions. Spangler surprised everyone with a voracious appetite and an upbeat disposition. He quickly learned to distinguish the voices of the different guards, and frequently tried to engage them in conversation to relieve the boredom. Mary Surratt, on the other hand, deteriorated steadily. She suffered from a gynecological disorder, possibly endometriosis, and as William Doster recalled, “Her cell by reason of her sickness was scarcely habitable.” Twice, her illness forced an early adjournment, and Stanton ordered General Hancock to do whatever he could to make her comfortable. Eventually she was transferred from her cell to a large room next to the courtroom, where her daughter was allowed to join her.13

  Contrary to his popular image, Judge Holt was not entirely heavy-handed. He used all the means at his disposal to track down witnesses for the defense. He agreed to delay the trial so doctors could assess Lewis Powell’s state of mind. When two members of the commission objected to defense testimony by a former Confederate, Holt insisted they let the man be heard. Such things are taken for granted by defendants today; in 1865, they were purely discretionary. While Holt was always known as a stickler for rules, he was more flexible in this case than anyone had a reason to expect.