Culprits arraigned before them, guarded by armed soldiery, without arms themselves – why, in the name of justice, drag them into Court and force them to sit through a long trial, bound with iron, hand and foot? Was it to forestall a last possible effort of reckless and suicidal despair?
These brave warriors could not have feared the naked arm of Payne, nor have indulged the childish apprehension that seven unarmed men and one unarmed woman might overpower six armed soldiers and nine gallant officers, and effect their escape from the third story of a prison guarded on all sides with bayonets and watched by detective police! And yet, so far as appears, no single member of the Court, to whom such a desecration of our common humanity was a daily sight for weeks, thought it deserving of notice, much less of protest.
There is but one explanation of this moral insensibility, and that applies with the same force to the case of the woman as to those of the men. It is, that the accused were already doomed. For them no humiliation could be thought too deep, no indignity too vile, no hardship too severe, because their guilt was predetermined to be clear. And the members of the Military Commission, as they looked across the room at that sorry sight, saw nothing incongruous with justice, or even with the most chivalrous decorum, that the traitorous murderers of their beloved Commander-in-Chief should wear the shackles which were the proper precursors of the death of ignominy, they were resolved the outlaws should not escape.
We, civilians, must ever humbly bear in mind that the rule of the common law, that every person accused of crime is presumed to be innocent until his guilt is established beyond a reasonable doubt – a rule the benignity of which is often sneered at by soldiers as giving occasion for lawyers’ tricks and quibbles, and as an impediment to swift justice, is reversed in military courts, where every person accused of crime is presumed to be guilty until he himself prove his innocence.
After the prisoners had been seated, and the members of the Commission, the Judge-Advocates and the official reporters sworn in, the accused were severally arraigned. There was but one Charge against the whole eight. Carefully formulated by the three Judge-Advocates upon the lines of the theory adopted by the Secretary of War, and which Gen. Baker and the Bureau of Military Justice had been moving heaven and earth to establish, it was so contrived as to allege a crime of such unprecedented, far-reaching and profound heinousness as to be an adequate cause of such an unprecedented and profound calamity.
The eight prisoners were jointly and severally charged with nothing less than having, in aid of the Rebellion, “traitorously” conspired, “together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, George N. Sanders, Beverley Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young and others unknown, to kill and murder” “Abraham Lincoln, late President of the United States and Commander-in-Chief of the Army and Navy thereof, Andrew Johnson, then Vice-President, Wm. H. Seward, Secretary of State, and Ulysses S. Grant, Lieutenant-General;” and of having, in pursuance of such “traitorous conspiracy,” “together with John Wilkes Booth and John H. Surratt” “traitorously” murdered Abraham Lincoln, “traitorously” assaulted with intent to kill, William H. Seward, and lain in wait “traitorously” to murder Andrew Johnson and Ulysses S. Grant.
On this elastic comprehensive Charge, in which treason and murder are vaguely commingled, every one of the men, and Mary E. Surratt, were arraigned, plead not guilty, and were put upon trial. There is no doubt, by the way, that the Secretary of War would have been included as one of the contemplated victims, had not Edwin M. Stanton borne so prominent a part in the prosecution; and it was for this reason, and not because of any change in the evidence, that General Grant stood alone, as the mark of O’Laughlin.
To this single Charge there was, also, but a single Specification. This document alleged that the design of all these traitorous conspirators was, to deprive the Army and Navy of their Commander-in-Chief and the armies of their Commander; to prevent a lawful election of President and Vice-President; and by such means to aid and comfort the Rebellion and overthrow the Constitution and laws.
It then alleged the killing of Abraham Lincoln by Booth in the prosecution of the conspiracy, and charged the murder to be the act of the prisoners, as well as of Booth and John H. Surratt. It then alleged that Spangler, in furtherance of the conspiracy, aided Booth in obtaining entrance to the box of the theatre, in barring the door of the theatre box, and in effecting his escape. Then, that Herold, in furtherance of the conspiracy, aided and abetted Booth in the murder, and in effecting his escape. Then, that Payne, in like furtherance, made the murderous assault on Seward and also on his two sons and two attendants. Then, that Atzerodt, in like furtherance, at the same hour of the night, lay in wait for Andrew Johnson with intent to kill him. Then, that Michael O’Laughlin, in like furtherance, on the nights of the 13th and 14th of April, lay in wait for General Grant with like intent. Then, that Samuel Arnold, in prosecution of the conspiracy, “did, on or before the 6th day of March, 1865, and on divers other days and times between that day and the 15th day of April, 1865, combine, conspire with and counsel, abet, comfort and support” Booth, Payne, Atzerodt, O’Laughlin and their confederates. Then, “that, in prosecution of the conspiracy, Mary E. Surratt, on or before the 6th of March, 1865, and on divers other days and times between that day and the 20th of April, 1865, received, entertained, harbored and concealed, aided and assisted” Booth, Herold, Payne, John H. Surratt, O’Laughlin, Atzerodt, Arnold and their confederates, “with the knowledge of the murderous and traitorous conspiracy aforesaid, and with intent to aid, abet and assist them in the execution thereof, and in escaping from justice.” And, lastly, that in prosecution of the conspiracy Samuel A. Mudd did from on or before the 6th day of March, to the 20th of April “advise, encourage, receive, entertain, harbor and conceal, aid and assist” Booth, Herold, Payne, John H. Surratt, O’Laughlin, Atzerodt, Mary E. Surratt, Arnold and their confederates, in its execution and their escape.
After the prisoners, who as yet had no counsel, had pleaded not guilty to the Charge and Specification, the Court adopted rules of proceeding – one of which was that the sessions of the Court should be secret, and no one but the sworn officers and the counsel for the prisoners, also sworn to secrecy, should be admitted, except by permit of the President of the Commission; and that only such portions of the testimony as the Judge-Advocate should designate should be made public.
On the next day (Thursday, May 11th), Mr. Thomas Ewing, Jr. and Mr. Frederick Stone appeared as counsel for Dr. Mudd, and Mr. Frederick A. Aiken and Mr. John W. Clampitt for Mrs. Surratt; and on the succeeding day (12th), Mr. Frederick Stone appeared for Herold “at the earnest request of his widowed mother and estimable sisters;” General Ewing for Arnold (and on Monday, the 15th, for Spangler); Mr. Walter S. Cox for O’Laughlin, and Mr. William E. Doster for Payne and Atzerodt.
By the rules of the Commission no counsel could appear for the prisoners unless he took the “iron-clad oath” or filed evidence of having taken it. So supersensitive was the loyalty of the Court that it could not brook the presence of a “sympathizer with the South,” even in such a confidential relation as counsel for accused conspirators in aid of the Rebellion.
The demeanor of the Court towards the counsel for the defense, reflecting as in a mirror the humor of the Judge-Advocates, was highly characteristic. Sometimes they were treated with haughty indifference, sometimes with ironical condescension, often with contumely, generally with contempt. Their objections were invariably overruled, unless acceded to by the Judge-Advocate. The Commission could not conceal its secret opinion that they were engaged in a disreputable and disloyal employment.
This statement must be somewhat qualified, however, so far as it relates to General Ewing. He was, or had been recently, of equal rank in the army of the Union with the members of the Court. He was a brother-in-law of General Sherman, and he had acquired a high reputation for gallantry and skill, as well as loyalty, during the war. That such a distinguished fellow-soldier should appear to defend the fiendish murderers of their beloved Commander-in-Chief – outlaws they were detailed as a Court to hang – evidently perplexed and disconcerted these military Judges and tended in some degree to curb the over-bearing insolence of the Special Judge-Advocate. Thus, this able lawyer and gallant