The Judicial Murder of Mary E. Surratt. DeWitt David Miller

sentence of his argument against the jurisdiction of the Commission, he exclaimed:

      “Indeed, the position taken by the learned Assistant Judge-Advocate * * * goes to this – and even beyond it – namely, that participation in the Rebellion was participation in the assassination, and that the Rebellion itself formed part of the conspiracy for which these men are on trial here.”

      Throughout the whole trial, the Commission took the law from the Judge-Advocates with the unquestioning docility usually manifested by a jury on such matters in civil courts. In truth, the main function of a Judge-Advocate appears to be to furnish law to the Court, as in civil courts the main function of the Judge is to furnish law to the jury. Consequently, his exposition of the law on any disputed point – whether relative to modes of procedure, or to the competency of testimony, or even to questions of jurisdiction – instead of standing on the same level with the antagonistic exposition of counsel for the accused as an argument to be weighed by the Court against its opposite in the equal scales of decision, was at all times authoritative, like the opinion of a judge overruling the contention of a lawyer. This, surely, was bad enough for a defendant; but, what was still more fatal to his chances of fair dealing, this habit of domination, acquiesced in by the Court on questions of law, had the effect (as is also seen in civil courts) of giving the same superior force to the expositions of questions of fact by the Judge-Advocate. And as this office combined the functions of a prosecuting officer with the functions of a judge, there could be no restraints of law, custom or personal delicacy, against the enforcement, with all the powers of reasoning and appeal at command, the conclusion of the Judge-Advocate upon the matters of fact.

      In a word, the judgment of the prosecuting officer – the retained counsel for the Government, the plaintiff in the action – ruled with absolute sway, both on the law and on the facts, the judgment of the Commission; the members of which, for that matter, were also in the pay of the Government.

      It may, therefore, be readily anticipated with how little impartiality the trial was conducted.

      Mrs. Surratt (as did the rest of the accused) plead to the jurisdiction of the Commission on the grounds (1) that she was not and had not been in the military service of the United States, and (2) that when the crimes charged were committed the civil courts were open in Washington; both of which allegations were admitted and were notoriously true. Whatever might be the indifference with which the rights of the men to a constitutional trial may have been viewed, it was so utterly incongruous with the spirit of military jurisprudence and so unprecedented in practice to try a woman by court-martial, that had Mrs. Surratt been alone before that Commission we venture to say those nine soldiers could not have brought themselves, or allowed the Judge-Advocate to bring them, to the overruling of her plea. As it was, however, the court-room was cleared of all save the members of the Commission and the three Judge-Advocates; and after a season of what is called “deliberation” (which meant the further enforcement of the opinion of the prosecuting officers upon the point under discussion, where necessary), the court reopened and “the Judge-Advocate announced that the pleas * * * had been overruled by the Commission.”

      Mrs. Surratt (as did the other prisoners) then asked for a separate trial; a right guaranteed to her in all the civil courts of the vicinage. It was denied to her, without discussion, as a matter of course.

      And yet no one now can fail to recognize the grievous disadvantage under which this one woman labored, coupled in a single trial with such culprits as Payne who confessed his guilt, and Herold who was captured with Booth.

      In fact, the scheme of trial contrived by the Judge-Advocates on a scale comprehensive enough to embrace the prisoners, the Canadian exiles and the Confederate Cabinet, would not work on a trial of Mrs. Surratt alone. Of this pet plan they were highly proud and greatly enamoured. To it, everything – the rights of woman as well as man; considerations of equity and of common fairness – must be made to give way.

      To the maintenance of this scheme in its integrity, they had marshalled the witnesses, and they guided the Commission with a firm hand so that not a jot or tittle of its symmetry should be marred.

      This determined purpose is indicated by the starting-point they chose for the testimony.

      On Friday, the twelfth, the first witness was sworn, and his name was Richard Montgomery. His testimony, as well as that of the other witnesses sworn that day, was taken in secret session, and no portion of it was allowed to reach the public until long after the trial. It was all directed to establish the complicity of the rebel agents in Canada and through them the complicity of Jefferson Davis and other officers of the “Confederacy” in the assassination. In other words, this testimony was given to prove the guilt, not of the men much less of the woman on trial, but of the men included in the charge but not on trial; and whom, as it now appears, the United States never intended to try.

      To connect the defunct Confederacy in the person of its captive Chief with the murder of the President would throw a halo of romantic wickedness about the crime, and chime in with the prevalent hatred towards every human being in any way connected with the Rebellion.

      This class of testimony continued to be introduced every now and then during the trial – whenever most convenient to the prosecution – and as often as it was given the court-room was cleared of spectators and the session secret; the isolated counsel for Mrs. Surratt, utterly at a loss to imagine the connection of such testimony, given under such solemn precautions, with their own client, and knowing nothing whatever of the witnesses themselves, must have looked on in bewildered amazement, and had no motive for cross-examination.

      The chief witnesses who gave this carefully suppressed evidence were spies upon the rebel agents in Canada paid by the United States, and, at the same time, spies upon the United States paid by the rebel agents.

      They were, of course, ready to swear to as many conversations with these agents, both before and after the assassination, in which those agents implicated themselves and the heads of government at Richmond in the most reckless manner, as the Judge-Advocates thought necessary or advisable.

      The head, parent and tutor of this band of witnesses was a man called Sanford Conover. After giving his testimony before the Commission, he went to Canada and again resumed his simulated intimacy with the Confederates there, passing under the name of James W. Wallace. An unauthorized version of his testimony having leaked out and appearing in the newspapers, he was called to account for it by his Canadian friends. He then made and published an affidavit that the person who had given testimony before the Commission was not himself but an imposter, and at the same time also published an offer of $500 reward for the arrest of “the infamous and perjured scoundrel who secretly personated me under name of Sanford Conover, and deposed to a tissue of falsehood before the military Commission at Washington.”