American Brutus

by Michael W. Kauffman

  IN 1867, YELLOW FEVER STRUCK the prison in the Dry Tortugas. Nearly everyone in the prison became infected. Dozens of guards perished, but the disease claimed only two prisoners. One of them was Mike O’Laughlen, who died on September 23. With so many officers laid up, Dr. Mudd might have escaped from the island. He had tried unsuccessfully to do just that in 1865, but declined to try it again. The prison doctor had died, and Mudd was the only physician left on the fort. In spite of his own illness, he cared for the sick and dying until another doctor could be sent from Key West. His actions were credited with slowing the spread of the disease and perhaps saving many lives. In gratitude, the surviving men of the garrison signed a petition urging the president to pardon him.

  Unfortunately for Dr. Mudd, a pardon was out of the question. Andrew Johnson was still under siege in Washington. Mudd’s only hope lay in the appeal process. In September 1868, his petition for a writ of habeas corpus reached the U.S. District Court at Key West, and Judge Thomas J. Boynton dismissed it out of hand. Mudd’s attorney tried to argue that the Supreme Court’s Milligan decision invalidated military trials of civilians. And even if it didn’t, the prisoner was still entitled to clemency under one of President Johnson’s amnesty proclamations.

  Judge Boynton slapped down both arguments, claiming that neither Milligan nor the pardon applied in Mudd’s case because the assassination was a military crime. “It was not Mr. Lincoln who was assassinated,” said the judge, “but the commander-in-chief of the Army for military reasons. I find no difficulty therefore in classing the offense as a military one, and with this opinion arrive at the necessary conclusion that the proper tribunal for the trial of those engaged in it was a military one.”

  This decision was actually based on the Supreme Court’s minority (and concurring) opinion in the Milligan case, and not on the opinion that became law. Had Boynton actually read the arguments in that case, he could not have missed the fact that it was Lambdin P. Milligan who had committed a military crime—namely, to raise an armed force for the purpose of opposing United States troops. But Booth’s plot was altogether different. As Joseph Holt argued in the Lincoln conspiracy trial, “The murder of the President of the United States, as alleged and shown, was pre-eminently a political assassination. Disloyalty to the Government was its sole, its only inspiration.”

  So Judge Boynton got it backward. The Supreme Court could hardly have rendered its Milligan decision without considering how it would affect the more famous case of Dr. Mudd. They could easily have drawn a distinction between the two cases, but they pointedly chose not to do so.

  Disheartened, Mudd and his family continued to press for a pardon, which finally came on February 8, 1869. Spangler and Arnold were pardoned a month later, on the last full day of Andrew Johnson’s term.17

  John Surratt had already been in and out of the system by then. While Mudd and the others sweltered in the Dry Tortugas, Surratt embarked on an odyssey that took him halfway around the world. On the night of the assassination, he was in Elmira, New York, to make a sketch of the prison camp there for Gen. Edwin G. Lee. The following morning, he learned of the president’s death, and immediately headed north to Montreal. He hid for a couple of months in a Catholic rectory, then left for England and the Continent. Eventually he made his way to the Papal States, then at war with the Kingdom of Italy. He enlisted in Company C, 3rd Regiment of the Papal Zouaves, and ran into an old Maryland acquaintance who served in the same regiment. Henry B. Ste. Marie recognized Surratt and promptly reported his whereabouts to the State Department. They showed little interest, but the Pope ordered Surratt’s arrest on his own authority. Before the prisoner could be transported to a secure jail, he escaped. Eventually, American officials traced his movements through Naples to a ship bound for Egypt. They followed the vessel to Alexandria, and when it arrived on November 23, 1866, Surratt was taken into custody. 18

  Returned to Washington, John Surratt was charged with the murder of Abraham Lincoln and was held over for trial in a civilian court. The first witnesses took the stand on June 17, 1867. To support the charge, prosecutors had to show that Surratt was actually at the scene of the crime, or was “constructively present” to render assistance when the shooting took place. For this, they offered the testimony of Sergeants Robert H. Cooper and Joseph H. Dye, who claimed they saw Surratt at Ford’s Theatre, calling out the time, on the evening of April 14. The defense tried to show that Cooper and Dye were mistaken, and that Surratt could not have been there that night. He had been in Montreal when he sent his cousin a letter on the twelfth, and because of poor travel conditions, he couldn’t possibly have made it to the capital two days later.

  The trial had plenty of tense moments, especially when lawyers or witnesses referred to the case of Mary Surratt. Her name brought out powerful emotions from both sides, and her memory haunted every day of her son’s trial. Defense attorneys made sure of that.

  In some ways, John Surratt’s trial echoed that of his mother. It was really the same case, with many of the same witnesses, but tried under different rules. Lou Weichmann was back, and this time, the defense brought a battery of witnesses to impeach his credibility. And he was not the only one under fire. Defense attorneys believed that some witnesses had been coerced by the threat of prosecution. Sgt. Joseph Dye, for example, had been indicted for passing counterfeit money, and somehow managed to get charges dropped just after he testified against Surratt. And William E. Cleaver had had an even greater threat hanging over him. Cleaver once owned a stable where Surratt kept his horse, and prosecutors wanted him to testify about incriminating statements he had heard the defendant make. But Cleaver had just been convicted of the rape and killing of a young Washington woman, and Judge George P. Fisher—the same man who presided over John Surratt’s trial—had denied his motion for an appeal. But only two days before the Surratt trial was set to begin, Fisher changed his mind. He allowed Cleaver to appear as a witness, and he denied that the government had offered leniency in exchange for testimony. But that was untrue. It subsequently developed that Congressman James Ashley, a political ally of Joseph Holt, had personally told Cleaver that “if the evidence [he gave] was of value he [Cleaver] would undoubtedly be released.” He was.19

  Certainly, witnesses were paid, pressured, and otherwise induced to bend their testimony, and Judge Holt was responsible for at least some of that. But the jurors were not easily fooled, and Holt’s behind-the-scenes maneuvering had little effect on the outcome of the trial. The rule of law predominated, and it brought about an interesting twist that would never have occurred in 1865.

  In common law, a man could not be convicted solely on the word of a cohort. So defense attorney Richard Merrick tried to offer evidence that Louis Weichmann had confessed to spying for the Confederacy. Therefore, he argued, anything Weichmann said on the stand “was the testimony of an accomplice, seeking to save his own life by the betrayal of his associates. ” But Judge Fisher ruled against the defense—in a way. He said that Weichmann was not an accomplice in the assassination unless the defense could prove that the Confederacy, with whom he was allegedly involved, was a principal to that crime. He did not think they could prove any such thing.

  Joseph Holt must have been aghast. Two years before, he had prosecuted Mary Surratt and seven others on the theory that their plot and the Confederate government were inseparable. But now, Judge Fisher spoke as if the whole idea were preposterous. He ruled that the Confederate link was irrelevant unless the defense could prove the Davis government was involved. They were not inclined to try.

  Three hundred witnesses testified in all, but those who tipped the balance were the ones who placed Surratt in Elmira on the morning of April 15. If their testimony was correct, the prosecution would need to shore up its claim that the defendant could have been in upstate New York on Saturday morning when he had just been in Washington the night before. They were prepared to do that through the testimony of five witnesses who had seen Surratt at various stages
of the journey. But just before the first of these was scheduled to appear, he lost his nerve and admitted that he and the other four had all been coached. The story was leaked to the New York Herald, and none of the witnesses ever appeared.

  So the prosecution left much unexplained. After seventy-three hours of deliberation, the jury informed Judge Fisher that they were deadlocked at eight votes to four, with the majority favoring acquittal. The judge declared a mistrial, and the prisoner was taken back to his cell. As the lawyers gathered up their papers, Judge Fisher stunned them all by accusing the lead defense attorney of disreputable conduct. He said that Joseph H. Bradley, Sr., had recently handed him a note that seemed to be a challenge to a duel. Though Bradley denied doing anything of the sort, Fisher summarily disbarred him.

  The jury’s deadlock came as no surprise to prosecutors, who said that Washington jurors were too pro-Southern to convict Surratt. They lobbied for new laws that would allow a change of venue, but Congress failed to pass the necessary legislation. In truth, the government’s real problem was not with the jury, but with the evidence. Even the district attorney himself didn’t seem to believe that Surratt had been in Washington on the night of the shooting. In his summation, Edward Carrington told the jury that Surratt’s whereabouts really didn’t matter. Since the defendant had left Montreal for the States when Booth summoned him, “his obedience to the order . . . to aid in the unlawful conspiracy” was enough to convict.

  Carrington was not prepared to argue that again. On June 18, 1868, he presented another indictment against Surratt, charging him with “aiding the rebellion.” To everyone’s surprise, Judge Andrew Wylie (and not the attorneys) noticed that the statute of limitations had already run out on this particular crime. He dismissed the indictment, and the case was finished. The government’s appeal was denied, and on November 5, 1868, Edward Carrington tried one last time to indict Surratt. The grand jury took no action, and the government gave up. A few days later the prisoner was released. 20

  IN THE SPRING OF 1869, Arnold, Mudd, and Spangler arrived back home in Maryland. Dr. Mudd returned to his farm, his family, and his medical practice. Sam Arnold moved into his father’s house in Baltimore. Ned Spangler took a job at the Holliday Street Theatre. When the theater burned down in 1873, Spangler left Baltimore and headed for Charles County, where he went to work for Dr. Mudd. He died at the Mudd farm on February 7, 1875. Not long afterward, the doctor was looking for something in Spangler’s tool chest, and he found a manuscript in Ned’s own hand, detailing all he knew of the circumstances that had brought him so much trouble.

  Many years later, a Boston newspaper inadvertently revealed the true source of Spangler’s difficulty. It published an interview with Harry Hawk, the actor who was on stage when Booth fired the shot. Dazed and shaken, Hawk had frozen up in fear when the crowd pressed in on him. Someone demanded to know who had shot the president, and Hawk blurted out, “I won’t tell. There’ll be a terrible uproar, and I want to keep out of any trouble.” Jake Rittersback heard those words, but in the confusion of the moment, he attributed them to his fellow stagehand. He repeated them to authorities, and Ned Spangler became a suspect in the conspiracy.

  Dr. Mudd survived Spangler by eight years. He died in 1883 after going out on a house call and getting caught in a winter storm. He lies in the cemetery of St. Mary’s Church, just a few paces from the spot where he and Booth first met in 1864.

  Sam Arnold worked as a butcher in Baltimore, and in the 1880s he moved to the village of Friendship, Maryland, to manage the farm of an old friend. He wrote his life story, and in 1902 the Baltimore American published it in serial form. Arnold died on September 21, 1906, and was buried in Baltimore’s Green Mount Cemetery. By then Mike O’Laughlen’s remains had been transferred up from the Dry Tortugas, and had been buried there as well.21

  THE OLD WASHINGTON PENITENTIARY was razed in 1867, and the remains of Powell, Atzerodt, Herold, and Mrs. Surratt were reburied under the floor of a warehouse at the Washington Arsenal. The bodies of Booth and Henry Wirz, the commandant of Andersonville prison, were placed beside them. In February 1869, Andrew Johnson released the bodies to their respective families for burial elsewhere.

  Mary Surratt now lies in Mt. Olivet Cemetery, under a gravestone with the simple inscription “Mrs. Surratt.” David Herold was removed to his family lot in Congressional Cemetery, and shares a grave with his sister Jane. George Atzerodt was buried under an assumed name in St. Paul’s Lutheran Cemetery in Baltimore.

  Booth’s remains were taken to Baltimore, where they were identified by friends and family, then placed in a vault at Green Mount Cemetery. In June 1869, they were reinterred in the family lot, near a large monument to the elder Booth.

  For 120 years Lewis Powell’s final resting place was a mystery. In 1869, Powell’s remains were taken up from the arsenal and buried in Washington’s Holmead Cemetery. But the cemetery was disbanded a short time later, and no further record of their whereabouts survived. Then, in 1993, a government anthropologist located what appeared to be Powell’s skull in the collections of the Smithsonian Institution. Within months the FBI laboratory confirmed the identification, and on November 11, 1994, Lewis Powell’s remains were laid to rest in the town of Geneva, Florida. His biographer, Betty Ownsbey, gave a brief and dignified eulogy, and the present writer helped lower the remains into the grave.22

  John Surratt was the last of Booth’s cohorts. After his release in 1868, Surratt hurried off on a six-month vacation in South America. On his return, he worked as a commission merchant in Baltimore, then as a teacher in Rockville. In 1870, he began a series of lectures in which he admitted to criminal conduct. Worse yet, he criticized those who still had the power to reinstate the charges against him. “Never in my life did I come across a more stupid set of detectives than those generally employed by the U.S. Government,” he told a Maryland audience. “They seemed to have no idea whatever how to search men.” His cockiness caught up with him, and on December 29, 1870, Surratt was arrested in Richmond, accused of selling tobacco, the year before, without a license. He was never indicted, but his arrest ended his lecture tour.

  From that time on, Surratt rarely spoke about the case. He married a relative of Francis Scott Key, raised a large family, and settled in Baltimore, where he worked as an auditor for the Old Bay Line. He died in April 1916. 23

  In time, eyewitnesses would look back on the case, recounting in vivid detail what had transpired in 1865. Their memories transformed the story, and over the years, Booth’s rapid stride across the stage became a limp or a hop. The president became more visible in his rocking chair, and eyewitnesses themselves became more heroic and played a bigger role in the night’s events.

  Even the most conscientious witness could not help skewing the story with outlandish claims. Dr. Charles A. Leale recalled giving the president artificial respiration, years before the procedure had been invented. Samuel H. Beckwith said that his boss, General Grant, had declined the Lincolns’ theater invitation because he had heard that the president was going to be kidnapped. Walt Whitman gave a richly detailed account of the shooting, as if he had been there himself. Even A. C. Richards got into the act. In the late 1870s, Richards, the former police superintendent, falsely claimed to have been present in Ford’s Theatre when the shooting occurred.24

  Eyewitness mistakes were compounded by deliberate falsehoods, and eventually it became almost impossible to separate fact from fiction. In 1928, a New Jersey woman recounted her own vivid recollection of the shooting, in which Booth’s leg snapped on landing and protruded through his boot, sending a spray of blood across the audience. With stories such as hers in the air, it is not hard to understand why people came to believe the outrageous claims of Otto Eisenschiml. In 1937, Eisenschiml implied that Edwin Stanton was behind the murder. His book Why Was Lincoln Murdered? set forth one of the great conspiracy theories of the twentieth century, but it was built on a combination of spotty research, false assumptions, and leadi
ng questions. Nevertheless, some of his conclusions are still repeated as fact: for example, that all the bridges out of Washington were closed but one; that all of the city’s telegraph lines mysteriously shut down that night; and that Stanton did all he could to see that the president would not be properly guarded.

  More thorough research would have dispelled almost all of Eisenschiml’s claims, but even the most exhaustive study leaves the question of security open to argument. The issue was never brought up in 1865, and at the time, nobody expressed surprise that Abraham Lincoln had gone out in public with no protection. But the assassination of James A. Garfield in 1881 brought a surge of interest in the subject of presidential security. For friends and associates of Mr. Lincoln, the interest became retroactive, and in time, several men came forward to tell their stories of life as a “bodyguard” and confidant of the late president. These accounts are no different from other long-ago memories—inaccurate, unlikely, and impossible to confirm—but they left the indelible impression that President Lincoln was betrayed by a lapse in the judgment of one of his guards.

  In fact, Abraham Lincoln had no bodyguards in the modern sense. It was the messenger Charles Forbes who had allowed Booth into the box, and consequently Mrs. Lincoln held Forbes responsible for the president’s death. To deflect the blame, Forbes filed a formal complaint against a White House guard, patrolman John F. Parker, and charged him with leaving his post outside the president’s box to have a drink. Parker was tried and acquitted.