The Trial: The Assassination of President Lincoln and the Trial of the Conspirators

By Edward Steers, Terry Alford, Burrus Carnahan and 5 more

Transcripts from the trial of John Wilkes Booth’s co-conspirators, plus commentary:“Unquestionably the world-class expert on . . . Lincoln’s assassination.” ―Civil War News
 
On the night of April 14, 1865, John Wilkes Booth assassinated President Abraham Lincoln in what he envisioned part of a scheme to plunge the federal government into chaos and gain a reprieve for the struggling Confederacy. The plan failed. By April 26, Booth was killed resisting capture and eight of the nine conspirators eventually charged in Lincoln's murder were in custody. Their trial would become one of the most famous and most controversial in US history.
 
New president Andrew Johnson’s executive order on May 1 directed that persons charged with Lincoln’s murder stand trial before a military tribunal. The trial lasted more than fifty days, and 366 witnesses gave testimony. Benn Pitman, an expert in phonography—an early form of shorthand—was awarded a government contract to produce a transcription of each day’s testimony. Pitman made these transcripts available to the prosecution and defense, as well as select members of the press.
 
Although three versions of the testimony were published, Pitman’s edited collection was the most accessible. He skillfully winnowed the 4,300 pages of transcription into one volume, collated the testimony by defendant, indexed it by name and date, and added summaries.
 
In The Trial, assassination scholars guide readers through all 421 pages of testimony, illuminating Pitman’s record. By drawing together the evidence that resulted in the conspirators’ convictions, The Trial leaves no doubt as to the events surrounding the assassination of Abraham Lincoln, making this book a fascinating account of the trial as well as an essential resource.
 
“Steers’s lineup is truly expert—readers will be able to distinguish between fact and fancy and come away with a far better understanding of Lincoln’s assassination.” —William Hanchett, author of The Lincoln Murder Conspiracies

• Language: English
• Publisher: Open Road Integrated Media
• Release date: Jul 31, 2003
• ISBN: 9780813139081

Book preview

PREFACE

History is that branch of knowledge that records and explains past events. Among the more difficult problems encountered in explaining the past is the concept of context. To be successful in explaining the past, the historian must understand the context in which past events occurred. In explaining the assassination of Abraham Lincoln, it is necessary to understand the context in which it occurred. This is best done through the people who were witness to the tragedy and whose views were recorded at the time. Fortunately, many of those who witnessed the events leading up to, during, and following Lincoln’s assassination appeared as witnesses in the trial of those charged with his murder. Their testimony was recorded verbatim and published within weeks of the trial’s end. This interesting record represents the context that helps explain this momentous historical event.

Most historians who have written accounts of Abraham Lincoln’s assassination have failed to fully utilize the trial testimony in telling their story. This failure becomes even more obvious when one realizes that critical information contained in the trial record has failed to make its way into many of the more popular accounts written about Lincoln’s murder. Perhaps this is understandable since the testimony is not commonly available, and is long, complex, and tedious. Compounding the problem is the fact that witnesses often were called out of sequence. This makes it necessary to read the entire transcript to connect the separated parts. Contrary to popular belief, the evidence was not always straightforward, and while the case against those who actually participated in the assaults against the president and secretary of state seems clear, the case against the other defendants is less clear and considerably more controversial. To understand the significance of the evidence, especially against the four defendants who did not participate directly in the assassination of the president, requires considerable knowledge of the people and circumstances that existed at the time.

In this reprint edition of Pitman’s original 1865 version, eight leading assassination scholars provide commentary designed to guide the reader through the 402 pages of testimony by focusing on the relevant testimony as it relates to each defendant. This sometimes involves reviewing testimony that appears under one defendant and tying it to another defendant.

It is not the primary purpose of these commentaries to draw conclusions as to the guilt or innocence of any particular defendant, but to discuss the particular testimony deemed important to both the prosecution and defense as they present their cases. In this way the reader may draw his or her own conclusions as to the guilt or innocence of a particular defendant. Each commentary begins with a brief biography, followed by the circumstances of arrest, followed by a discussion of the testimony

Terry Alford, professor of history at Northern Virginia Community College, is a recognized expert on John Wilkes Booth. Alford has edited the 1938 memoir written by Asia Booth Clarke, the sister of Booth, illuminating the edition with his extensive knowledge of the Booth family and the relationship between Asia and John. In the present volume, he shares his expertise in his commentary on Booth and his co-conspirator, David Herold.

Burrus Carnahan adds his commentary to the important General Order Number 100 found in the appendix of Pitman’s original version. General Order Number 100 enumerated the rules of conduct under which the Army operated during the war and served as the law under which a military tribunal was used to try those accused of Abraham Lincoln’s murder. The use of a military tribunal has generated considerable controversy, and General Order Number 100 has been neglected by those writing on the legality of a military tribunal. Mr. Carnahan holds law degrees from Northwestern University and the University of Michigan. He served for twenty years in the Judge Advocate General’s Department, U. S. Air Force, where he specialized in international law. He is the author of several articles on international law and the law of war, and teaches a course on the law of war at the George Washington University Law School in Washington, D. C.

Joan Chaconas is an independent researcher who is a recognized expert on Washington, D. C, history and on the Surratt family She served as president of both the Lincoln Group of the District of Columbia and the Surratt Society, located in Clinton, Maryland. In 1977, in the course of her research, Chaconas discovered a previously unknown statement by conspirator George A. Atzerodt that proved crucial to reevaluating the relationships between John Wilkes Booth, Samuel Mudd, and Mary Surratt. Chaconas brings her expertise to the role of John Surratt in Booth’s conspiracy. Although John Surratt was not one of the defendants tried by the military tribunal, his role in Booth’s conspiracy was central and he necessarily becomes a part of the current volume.

Percy Martin is a recognized authority on Michael O’Laughlen and Samuel Arnold and a long-time contributor to the Surratt Courier, the official newsletter of the Surratt Society. His research on both O’Laughlen and Arnold has resulted in a more complete understanding of their lives, including their close relationships with Booth and his conspiracy.

Betty J. Ownsbey is a recognized authority on Lewis Thornton Powell, and her book, Alias Payne: Lewis Thornton Powell, the Mystery Man of the Lincoln Conspiracy (McFarland and Company) is the definitive work on Lewis Powell.

Edward Steers Jr. has authored several books on Abraham Lincoln, ineluding Lincoln: A Pictorial Biography (Thomas Publications), His Name Is Still Mudd (Thomas Publications), and Blood on the Moon: The Assassination of Abraham Lincoln (Univ. Press of Kentucky).

Thomas R. Turner, professor of history at Bridgewater State College in Massachusetts, is author of Beware the People Weeping (Louisiana State Univ. Press) and The Assassination of Abraham Lincoln (Krieger Publishing Company). Turner serves as editor of the Lincoln Herald, an historical journal devoted to Abraham Lincoln and the Civil War. He is a recognized expert on the military tribunal that tried the Lincoln conspirators.

Laurie Verge is director of the Surratt House and Museum, located in Clinton, Maryland, and a past president of the Surratt Society. She has written extensively on the Surratt family and the era in which they lived. Verge is the current editor of the Surratt Courier, a publication of the Surratt Society.

In addition to the scholars listed above, the names of Kieran McAuliffe and Lynn McAuliffe must be added. Kieran designed the dust jacket and maps that appear in the book, and Lynn provided her expertise in reviewing the final version of the manuscript and correcting many of the flaws that occurred along the way. I am indebted to both for their help and dedication to this project.

Introduction

Edward Steers Jr.

On the night of April 14, 1865, the famous American actor John Wilkes Booth paid one last visit to the stage. It was at Ford’s Theatre in Washington, D. C, where Booth had delighted thousands of fans, visited with fellow thes-pians, picked up his mail, and enjoyed the friendship of the theater’s entrepreneurs: John, James, and Harry Ford. The Ford brothers knew Booth to be a bright and personable character who was admired by nearly everyone who knew him, and the affable young actor was always a welcome visitor. On his April 14 visit, however, Booth was not interested in social matters. He had other, more diabolical plans—the murder of the president of the United States.

At approximately twenty minutes past ten o’clock, Booth entered the private box where President Abraham Lincoln sat enjoying a delightful spoof on American and British culture. Stepping behind the president, Booth fired a small leaden bullet into the back of Lincoln’s head. Mortally wounded, Lincoln managed to live for another nine hours before passing into American memory. Booth escaped, but twelve days later, on April 26, he was cornered in a tobacco barn near Bowling Green, Virginia, along with his cohort David Herold. Booth was killed and Herold taken prisoner.

The murder of Abraham Lincoln was only part of Booth’s overall plan to decapitate the Federal government and gain a reprieve for his beloved Confederacy. Also targeted were Vice President Andrew Johnson, Secretary of State William H. Seward, and General of the Armies Ulysses S. Grant. Booth’s conspiracy appeared to be aimed at throwing the government into chaos and thereby affording the Confederacy time to resuscitate its dying hopes for independence. Only Booth succeeded in carrying out his part of the grand scheme. Andrew Johnson escaped death when George Atzerodt, the man assigned to kill the vice president, lost his courage at the last minute. Lewis Powell viciously attacked William Seward along with several other members of the secretary of state’s household, but miraculously none were killed. Powell fled the scene and became lost in the outskirts of the city. Grant sidestepped possible assassination when he canceled his plans to attend the theater with the president and his wife, choosing instead to travel to New Jersey to visit his children in school.

Within hours of the assassination the Federal government cast a wide dragnet, pulling into custody anyone who might have the slightest connection to Booth. The government’s effort proved effective, and by April 26 Booth was dead and eight of his cohorts were in custody: David Herold, Mary Surratt, Lewis Powell, Edman Spangler, Samuel Arnold, Michael O’Laughlen, George Atzerodt, and Samuel Mudd. Only John Surratt Jr. remained at large. Surratt would remain a fugitive until February 1867, when he would be captured in Alexandria, Egypt, and returned to the United States to stand trial for the murder of Abraham Lincoln.

With Booth dead and Surratt in hiding, the eight individuals were placed on trial before a military tribunal established by an executive order of President Andrew Johnson based on a legal opinion of Attorney General James Speed (see pp. 403-9). The choice of a military trial, however, was the decision of Secretary of War Edwin Stanton, who convinced others that it was necessary.¹ Only by using a military tribunal, he argued, could the government control the proceedings, insuring what most people at the time felt was justice in the murder of their president. The use of a military tribunal to try the accused was not without controversy, both at the time it occurred and throughout later years.

In his legal opinion justifying use of a military tribunal, Attorney General Speed labeled the accused as enemy belligerents who acted in the furtherance of a plan to disrupt the Federal government and its military effort. This plan, according to Speed, was to kill the constitutional leaders of the Federal government, thereby creating chaos and overthrowing the military objectives of the government. Chief among the leaders targeted for assassination was Abraham Lincoln, the constitutional head of the United States military forces. Killing the nation’s commander-in-chief was viewed as a military crime and an offense against the law of war. Such offenses placed the accused outside the jurisdiction of the civil courts and left their fate solely in the hands of the secretary of war and the president.

Although Major General Thomas Ewing, counsel for Samuel A. Mudd, and Senator Reverdy Johnson (D, Maryland), counsel for Mary Surratt, challenged the legal jurisdiction of the military tribunal, there was little objection among the general public and press establishment at the time. The majority of Northern citizens and newspapers supported a military trial and believed the accused guilty of the country’s most horrible crime. The government, and many of its citizens, believed that the crime had been hatched in Richmond and was a last gasp effort on the part of Confederate leaders to bring about victory (see General Conspiracy, pp. 24-69). As commander-in-chief, Lincoln had become a military target, and his death a military crime.

One year after the trial the U. S. Supreme Court issued a ruling in an unrelated case that defined, in part, the jurisdiction of military tribunals. The Court handed down what pundits have called a landmark decision in Ex parte Milligan, which stated in brief that civilians could not be tried by military tribunal where the civil courts were open and functioning and no threat by an enemy army existed.² The key factor in the Milligan decision was in the definition of the defendants, civilian versus enemy belligerents, as well as the circumstances that existed at the time the defendants were arrested and tried. Some historians have treated the Milligan decision as having broad applicability to military tribunals. Others have challenged the jurisdiction of the military tribunal on yet another basis, the Habeas Corpus Act of 1863. This act by the U. S. Congress banned the trial of civilians by the military.³ Although enacted in 1863, the military trials of civilians continued unabated for the rest of the war.

Not all jurists are agreed as to the applicability of the Milligan case to the Lincoln conspiracy trial. In 1868, a Federal court for the District of Southern Florida upheld the jurisdiction of the military tribunal to try the accused, thus affirming Speed’s opinion in support of a military tribunal.⁴ In 1942 and again in 1946, the U. S. Supreme Court, in two separate cases emanating from World War II, upheld the jurisdiction of the military tribunal even though one of the cases involved a U. S. citizen.⁵ And in 1956⁶ and in 2001,⁷ Federal courts once again upheld the jurisdiction of the military to try civilians for law of war violations.

Despite the challenge to the jurisdiction of the Lincoln tribunal, the trial was held. The president appointed nine military officers, all members of the Army. The nine officers set their own rules of procedure in the conduct of the trial (see Rules of Proceeding, p. 21). In doing so, they were within their military authority. Despite numerous misconceptions about the trial that persist to this day, the procedures closely followed civil law. Precedents cited by both the prosecution and the defense throughout the trial were taken from civil cases and applicable civil law.

Among the Rules of Proceeding that the commission adopted was a requirement that the trial be recorded verbatim in a form of shorthand (see Rule 4, p. 21). This was carried out by a group of select reporters who took an oath to record the evidence faithfully and truly. The reporters worked for Benn Pitman, who was uniquely qualified to oversee the recording process.

Pitman was the brother of Isaac Pitman, the Englishman who devised a system of shorthand known as phonography that was adopted worldwide as an accurate and legitimate system of verbatim recording. Benn Pitman immigrated to the United States in 1852 and located in Cincinnati, where he established the Phonographic Institute. He had served the government on prior occasions as a phonographer recording military trials, his most famous trial being the Indiana Treason Trial, which eventually wound up before the Supreme Court of the United States in 1866 as Ex parte Milligan.

As a part of his contract Pitman was given the right to publish the transcripts of the trial for public sale. The only stipulations placed upon Pitman were that the production of such a publication result in no cost to the government and that it adhere to strict accuracy.

The Rules of Proceeding specified that a copy of each day’s testimony be provided to the judge advocate general and to the counsel of the prisoners. While it is not likely that Pitman provided transcribed copies to each of the defense attorneys, he did make at least one copy of his transcription available, as shown by Thomas Ewing’s statement in the trial record. Ewing commented before the commission: "I will state that the reporters are not able to furnish us immediately with an official copy of the record; it is always behindhand a day or so; but inasmuch as the record is published quite accurately [emphasis added] in the Intelligencer, from the notes of the reporters …" (see Ewing, p. 242).

Ewing’s reference to the Intelligencer is to the National Intelligencer, a major Washington, D. C, paper of the day. Pitman supplied press copies daily to the Intelligencer and to commercial telegraphers who transmitted by telegraph the content of the copies to Philadelphia at the end of each day for publication in the Philadelphia Daily Inquirer. Both the Intelligencer and Inquirer published verbatim copies of the trial record daily. The accounts published in the Inquirer were plagued by numerous typographical errors that probably reflected errors in transmission by the telegraphers, as the Intelligencer does not have the same errors.

The term press copy has caused a certain amount of confusion among some modern writers who do not understand the meaning of the term as used in 1865. The term press did not refer to the print media of the day, but rather the process by which copies were made. The transcription of shorthand notes was done in ink, and copies were lifted from the original ink transcriptions by laying a piece of tissue paper over the ink transcription and backing it with a damp cloth. Pressure was then applied, dampening the ink. The thinness of the tissue paper allowed the ink to penetrate through, resulting in a positive copy.⁸ The process allowed Pitman and his clerks to make several sets of press copies of each day’s transcriptions. Presumably one of the press copies was made available to the Intelligencer and another copy to the telegraphers who transmitted the record to the Inquirer using Morse code.

Shortly after the trial ended, three separate hardback versions of the trial testimony were published.⁹ The first version to become available to the public was published by T. B. Petersen and Brothers of Philadelphia using the transcripts published in the Philadelphia Daily Inquirer. It appeared in paperback on July 10, 1865, and in a hardback version on July 19. Boston newspaper journalist Ben Perley Poore published the second version. Using the transcripts published daily in the Intelligencer, Poore published the entire transcript in three volumes containing 1,584 pages. Poore released two volumes immediately but didn’t publish the third until 1866. While sales for the first two were brisk, the third volume sold poorly and is exceedingly rare today. Poore, like Petersen, also published a paperback version in sixteen separate segments. Pitman, the originator of the trial transcript, was the last to publish. His version was an abridged, 421-page hardback edition released in November of 1865.

The three versions differ in several ways. The first two, by Petersen and Poore, were copied from the daily newspaper accounts and lack editing of any sort. They do not contain the closing arguments of the prosecution or defense counsels. Most importantly, they lack indexing, which makes it difficult to locate testimony by specific witnesses without familiarizing oneself with the entire transcript. Witnesses did not appear at the same time on the same subject but were occasionally called out of sequence, thus making it difficult to read the testimony as it relates to a particular defendant. The Pitman version suffers no such deficiency. Pitman carefully edited the 4,900-plus pages of hand-transcribed testimony and collated it by defendant and indexed the arranged testimony by name, date, and whether the witness was a prosecution or defense witness, then gave a one-line summary of the subject of the testimony. Herein lies the strength of the Pitman version.

The last features that can be found in the Pitman version are the closing arguments by the respective attorneys. These are lacking in the Petersen and three-volume Poore versions. This is a major difference. As the reader will see, there are important facts to be gleaned from these arguments. While the Poore version and the original trial transcript, reproduced on microfilm by the National Archives, have been used by some historians, Pitman’s unique format has made it the principal source—and therefore the most cited—for those writing on the assassination. This alone makes the Pitman version a necessary source for studying the assassination and subsequent trial record.

While Pitman has become the primary source of trial testimony, it does have certain deficiencies not found in the unabridged record published by Poore. Pitman, more often than not, merges the witnesses’ responses to multiple questions by the prosecutors and defense attorneys, summarizing them into a single response. While the Pitman version makes finding particular testimony easier, it can be misleading since relevant testimony about one defendant may actually appear under the section devoted to another defendant, and relevant testimony may be missed if one does not read the trial record in its entirety. An example is found among the testimony relating to Samuel Alexander Mudd. In providing testimony against Samuel Arnold, Federal detective Eaton G. Horner, who arrested Arnold, stated that Arnold had told him during interrogation that John Wilkes Booth carried a letter of introduction to Samuel Mudd at the time of Booth’s first visit to Charles County, Maryland. Patrick Martin, a Confederate agent working out of Montreal, gave the letter of introduction to Booth. This critical piece of evidence showing that Booth’s meeting with Samuel Mudd in November 1864 was pre-planned on Booth’s end ties both Booth and Mudd to the Confederate Secret Service operating in Canada. Yet none of the biographies written about Samuel Mudd include this important piece of evidence, presumably because the authors of these works did not read the entire trial transcript, or if they did, they missed Horner’s important testimony.¹⁰ By reading the trial text in its entirety, Horner’s crucial statement concerning Mudd becomes obvious even though it does not appear under the heading Samuel A. Mudd in the Pitman version.

A second example involves the controversy over one of the trial exhibits, Exhibit No. 1, a photograph identified as John Wilkes Booth. The photograph currently found among the trial exhibits located in the National Archives and marked Exhibit No. 1 is a photograph of Edwin Booth, John Wilkes Booth’s brother. This finding has led those who advocate a government conspiracy aimed at framing innocent people to suggest that the government deliberately used the wrong photograph to mislead certain witnesses.¹¹ And yet, a careful reading of the summation reproduced in Pitman by Samuel Mudd’s own defense attorney, Thomas Ewing, proves that the photograph introduced as Exhibit No. 1 was a photograph of John Wilkes Booth and not his brother.¹² Thus the closing argument of Ewing, found only in the Pitman version, is vital to understanding the true nature of Exhibit No. 1, the photograph of John Wilkes Booth.

The taking of testimony began on May 12 and lasted until June 29, a total of forty-nine days. President Johnson’s executive order of May 1 establishing the military commission designated the judge advocate general, Joseph Holt, to serve as prosecutor, assisted by Special Judge Advocate John A. Bingham and Special Judge Advocate Henry L. Burnett.¹³

Holt was a Kentucky Democrat who had been a highly successful lawyer in private life. He had served in James Buchanan’s cabinet, first as postmaster general and later as secretary of war after John Floyd resigned to join the Confederacy following Virginia’s secession. Although a Democrat, Holt became a staunch Unionist and stood by Lincoln and his policies throughout the war. He supported the call for a military trial of the accused conspirators. Holt, more than anyone else, believed Jefferson Davis and members of his cabinet were directly involved in the assassination, and in an effort to protect key witnesses against Davis and his associates Holt unsuccessfully tried to keep the trial proceedings secret.

Many of Holt’s peers considered him to be a brilliant lawyer and a serious student of the law, but Holt himself felt deficient in his ability to argue the case before the tribunal. He agreed to plan the prosecution but let his assistant, John A. Bingham, handle the examination of witnesses and final summation.

Bingham represented the government before the tribunal. Bingham was born in Pennsylvania in 1815, and later moved to Cadiz, Ohio, where he became a lawyer in 1840, and served as district attorney before being elected to the U. S. House of Representatives. Defeated in his bid for reelection in 1862, Bingham won reelection in 1864. It was during his second term as a representative from Ohio that Bingham was appointed special judge advocate and assistant to Holt.

Rounding out the prosecution was Henry L. Burnett. Burnett was a combat officer. He had served as a major with the Second Ohio Cavalry in Missouri, Kansas, and Kentucky. In the summer of 1863 Burnett was appointed a judge advocate in the Bureau of Military Justice, at the rank of colonel, where he became involved in prosecuting those accused of plotting to liberate Confederate prisoners of war held at Camp Douglas in Chicago. His success while serving in the Bureau of Military Justice earned him a brevet appointment as brigadier general of volunteers in March of 1865 and an appointment as a special judge advocate assisting Holt and Bingham.

Responsibility for the prisoners and for carrying out the mandates of the commission was assigned to Major General John C. Hartranft. The nine officers who composed the tribunal were Major General David Hunter (president of the commission), Major General Lew Wallace, Brevet Major General August Kautz, Brigadier General Albion Howe, Brigadier General Robert Foster, Brevet Brigadier General Cyrus B. Comstock, Brigadier General Thomas Harris, Brevet Colonel Horace Porter, and Lieutenant Colonel David Clendenin. Within twenty-four hours Comstock and Porter were relieved from serving as commissioners and replaced by Brevet Brigadier General James Ekin and Brevet Colonel Charles Tomkins.¹⁴

All nine of the officers had seen combat service during the war. All had shown qualities of leadership in their various military capacities. None, however, were lawyers or had any formal legal schooling. Included among the nine were four graduates of West Point who remained professional soldiers, a former U. S. marshal, a medical practitioner, an author, and a school teacher.

During the trial a total of 366 witnesses gave testimony on a wide range of subjects. The number of witnesses was nearly evenly divided between the prosecution and the defense. Twenty-nine were Black, and were identified in the trial record as colored, presumably to isolate their testimony from the White witnesses. This practice was common in most civil courts at the time. In Maryland, as in many other states, colored persons, free or slave could not testify against a White person. Since the majority of the colored witnesses resided in Maryland, testifying against White defendants was unusual if not unique to most of them. Of the twenty-nine Black witnesses, eighteen testified for the prosecution and eleven testified for the defense.

The commission met for the first time on May 10 at 10:00 A. M. At this time not all of the defendants had been able to secure attorneys to represent them, a failing under the procedures of the military tribunal. President Johnson’s executive order was read, and the defendants were asked if they had any objection to any of the members of the commission. They did not. The defendants next heard the charges and specifications against them for the first time. While each of the accused had specifications tailored to his or her particular case, all were charged with "maliciously, unlawfully, and traitorously¹⁵ … conspiring … to kill and murder, … Abraham Lincoln, … Andrew Johnson, … William H. Seward, … and Ulysses S. Grant, … and assaulting, with intent to kill and murder, … William H. Seward, … and lying in wait with intent… to kill and murder the said Andrew Johnson, … and the said Ulysses S. Grant (see pp. 18-21).¹⁶ Each pled not guilty." The commission then adjourned to allow the defendants time to retain counsel and confer with their counsel on the charges and specifications. The defendants’ counsel had to be approved by the commission.

On May 11 the commission met for a second time and approved counsel for Samuel Mudd and Mary Surratt. Frederick Stone and Major General Thomas Ewing Jr. would represent Samuel Mudd. Frederick Aiken and John W. Clampitt would represent Mary Surratt. The remaining six defendants had not yet secured counsel, and the commission adjourned until the following day, allowing them time to do so. On reconvening, Frederick Stone agreed to represent David Herold, Thomas Ewing would represent Samuel Arnold, William E. Doster would represent George Atzerodt, while Walter S. Cox would represent Michael O’Laughlen. William Doster would also represent Lewis Powell, while Thomas Ewing agreed to represent Edman Spangler in addition to Samuel Mudd and Samuel Arnold. At this time, Mary Surratt submitted Senator Reverdy Johnson’s name as co-counsel along with that of John W. Clampitt and Frederick Aiken.

All the attorneys were approved without objection except for Reverdy Johnson. Tribunal member Thomas Harris challenged Johnson’s appointment, questioning whether Johnson recognized the moral obligation of a loyalty oath. Johnson had opposed a law requiring qualified voters in Maryland to take a loyalty oath before they could vote. He called the requirement unconstitutional. Johnson told the tribunal that he did not oppose the loyalty oath, only its requirement as a condition for voting. After some debate, the commissioners overruled Harris’s objection and accepted Johnson as counsel for Mary Surratt.

By the third day counsel for all of the defendants were in place and ready to proceed. At this point Thomas Ewing and Reverdy Johnson rose to challenge the legal jurisdiction of the military commission. They based their arguments on the fact that the civilian courts were open and functioning, and therefore the commission lacked jurisdiction. They argued that the defendants were all civilians, not soldiers, and should be tried in civil court and not by the military. Challenging the military court’s jurisdiction was not unusual. In the several thousand military trials that had been held to date, the court’s jurisdiction was challenged in numerous instances.¹⁷

The commission ruled on its own jurisdiction, denying the motion by Ewing and Johnson. Samuel Mudd then requested that he be tried separately from the others because his defense would be greatly prejudiced by a joint trial.¹⁸ Mudd’s request was denied, there being no legal reason to grant Mudd a separate trial. With this business concluded, the session was adjourned until the next day, when the actual trial would begin. The prosecution and the defense teams were complete, witnesses for the prosecution were in tow, and the government was ready to begin presenting its case. It would begin by attempting to show that Lincoln’s murder was the result of a grand conspiracy emanating in Richmond and carried out through the Confederate Secret Service organization operating out of Canada.

Notes

  1.  Howard K. Beale, ed., Diary of Gideon Welles, 3 vols. (New York: WW. Norton, 1960), 2:303-4.

  2.  Ex parte Milligan, 4 Wall, 2, 18 L. Ed. 281.

  3.  Joseph George Jr., Military Trials of Civilians Under the Habeas Corpus Act of 1863, Lincoln Herald 98, no. 4 (winter 1996): 126.

  4.  Ex parte Mudd, 17 F. Cas. 954 (S. D. FLA. 1868).

  5.  Ex parte Quirin, 317 U. S. 1 (1942), and In re Yamashita, 327, U. S. 1 (1946).

  6.  Colepaugh v. Looney, 235 E 2d 429, 432-33 (10th Cir. 1956).

  7.  Mudd v. Caldera, 134 F. Supp. 2d 138 (D. C. 2001).

  8.  John C. Brennan, The Three Versions of the Testimony in the 1865 Conspiracy Trial, Surratt Courier 8, no. 3 (March 1983), pp. 3-6.

  9.  A fourth version, known as the Barclay version, was published in 1865 but consists of summarized parts of only that testimony deemed important by the publisher. Because a great deal of testimony is eliminated from the Barclay version, it is not considered along with the other three versions as a trial source document. Trial of the Assassins and Conspirators for the Murder of Abraham Lincoln (Philadelphia: Barclay and Co., 1865).

10.  Those biographies of Samuel Mudd that cite Martin’s letter of introduction mention only Dr. William Queen as the object of the letter, while Eaton Horner testified that Booth had letters of introduction to Dr. Mudd and Dr. Queen (see Eaton Horner, p. 235).

11.  In the most successful book written advocating a government conspiracy, historian Otto Eisenschiml first wrote of Exhibit No. 1 by referring to it as a riddle which staggers one’s imagination. See Otto Eisenschiml, Why Was Lincoln Murdered? (Boston: Little, Brown, 1940), 264.

12.  Edward Steers Jr., Otto Eisenschiml, Samuel Mudd and the Switched’ Photograph, Lincoln Herald 100, no. 4 (winter 1998), 167-78.

13.  Burnett was the judge advocate who successfully prosecuted Lambdin P. Milligan a year earlier in Indiana. Milligan successfully appealed his trial by military tribunal to the U. S. Supreme Court in 1866 (Exparte Milligan).

14.  Porter and Comstock were replaced on May 10. Both officers were members of Grant’s staff and requested removal. It was thought inappropriate for them to serve since Grant had been a target of Booth’s assassination plot. Privately, however, they appeared to oppose the trial of the accused by military tribunal. See Thomas R. Turner, The Assassination of Abraham Lincoln (Malabar, Fla.: Kreiger Publishing Company, 1999), 151.

15.  Although the term traitorously is used in the specification, the defendants were not charged with treason. Treason is a civil crime not triable by military tribunal.

16.  Benn Pitman, The Assassination of President Lincoln and the Trial of the Conspirators (New York: Moore, Wilstach, and Baldwin, 1865), 18-21.

17.  Thomas R. Turner, Beware the People Weeping: Public Opinion and the Assassination of Abraham Lincoln (Baton Rouge: Louisiana State Univ. Press, 1982), 149.

18.  Pitman, The Assassination of President Lincoln and the Trial of the Conspirators, 23.

The Military Trial

Thomas Reed Turner

One of the major issues surrounding the assassination of Abraham Lincoln has been that the trial of the conspirators took place before a military court. A degree of sympathy has been generated for Booth’s alleged accomplices, four of whom were hanged, under the assumption that whether the defendants were guilty or innocent, they did not receive a fair trial. Some historians have even speculated that Booth, himself, might have lost a degree of his villainy had he lived to stand trial before a military commission. Indeed, this debate over the legality of military trials for civilians has been one of the major themes discussed in the historical literature.

The court’s jurisdiction was also a major issue during the 1865 trial, as defense lawyers Thomas Ewing and Reverdy Johnson sparred with Special Judge Advocate John A. Bingham over the military tribunal’s authority to try civilians. In their arguments Ewing and Johnson hammered away at what they considered to be the constitutional provisions that prohibited the trial of civilians by military courts (see Reverdy Johnson, pp. 251-63, and Thomas Ewing, pp. 264-67).

Ewing emphasized the court’s illegality since it was not established by Congress and the judges were not magistrates who held their office for life during good behavior. While the president according to the Articles of War might constitute military courts, he could not give them jurisdiction over civilians who were not members of the land or naval forces and therefore not subject to the Articles’ jurisdiction.

Additionally, a military trial violated provisions of both the fifth and sixth amendments to the Constitution, which provide for a grand jury indictment in cases calling for capital punishment as well as promising a speedy and impartial trial. In response to the claim that in time of war the laws are silent, and some of the normal constitutional protections must be waived, Ewing indicated that this was an argument made only by despots.

Reverdy Johnson concurred with Ewing that a military trial negated the rights of the defendants under the fifth and sixth amendments to the Constitution. In addition, he argued that if the defendant is not subject to military jurisdiction when he commits a crime, then according to the Articles of War the court must turn him over to the civilian authorities.

Johnson also argued that the war power belonged to Congress, not the executive, which called into question the president’s right to convene a military tribunal. Although the trial of the conspirators was eventually opened to the press and public, the trial had begun in secret, a secrecy that Johnson said smacked of the Inquisition. This evoking of the Spanish Inquisition was particularly infuriating to the prosecutors.

Finally, Johnson reiterated that the Constitution makes no exceptions as to trials held in time of war. While the writ of habeas corpus may be suspended, such action does not change the fact that the trial must still take place in a civil court. Even if the defendants had committed treason, a crime they had not been charged with, under the Constitution the only remedy was a civil trial and not a military one.

In rebuttal, John A. Bingham argued that Lincoln was the commander-in-chief and had been murdered within the military lines of Washington. While the civil courts were open and functioning, it was no thanks to the rebels but rather to the force of Union bayonets. In grave emergencies such as the Civil War, the president may not be able to carry out his oath to protect and defend the Constitution without a declaration of martial law. And martial law justifies the use of military commissions. Bingham chided Attorney Ewing, who had been a Union general, that he had very properly used military courts in his own command to punish traitors and that there had not been any outcries that such action was illegal.

Bingham also told the court members that since the president was the commander-in-chief and they were military officers, they had no basis to challenge the lawful order establishing the military tribunal. However, even laying that technicality aside, the court was still clearly legal under Lincoln’s suspension of the writ of habeas corpus of September 24, 1862, which had declared that aiders and abettors of the enemy should be subject to martial law. Weren’t these defendants, asked Bingham, clearly aiding Jefferson Davis and the Confederate government in launching their murderous assault on the president and his cabinet? Furthermore, even if as Johnson argued Congress was the only body that could impose martial law, they had done so by act of March 3, 1863, when they upheld the actions that die president had taken.

The special judge advocate also noted that there was historical precedent involved as well since Congress had set up military courts during the American Revolution to try civilians aiding the enemy In Bingham’s view Reverdy Johnson was clearly mistaken; in time of war the civil tribunals are wholly or partially silent as the public safety may require. In any event, the issue had been decided definitively by the voters, who were aware of the extraordinary measures that President Lincoln had taken to suppress the rebellion and who had nonetheless overwhelmingly returned him to office for a second term (see John A. Bingham, pp. 351-72).

The public in 1865 mirrored the disagreements about the use of the military tribunal. Critics of this type of trial would probably have agreed with former Congressman Henry Winter Davis, who characterized the commission as being composed of officers too worthless for field service, ordered to try, and organized to convict, although military trials of civilians were hardly an unusual phenomenon during the Civil War. Others, however, would have found a sympathetic chord in Bingham’s argument that those who murdered the president in support of the Confederacy deserved nothing less than a military trial. This was also the opinion expressed by Attorney General James Speed, and it was based on this type of advice that Andrew Johnson convened the military commission in the first place.

As noted, another issue that arose was that the court initially began its deliberations in secret. Not surprisingly, there was much more opposition to the secrecy, which cut across partisan lines, than there had been simply to the use of military courts. This opposition was centered in the press, with newspapers apparently fearing that their readers might be deprived of complete coverage of the trial testimony, which incidentally might also cut back on the revenue that would be generated from increased circulation. Ultimately as criticism swelled, the trial was opened to the public and press, much to the relief of newspapers like the New York Times, which feared that if the conspirators were condemned in secret that charges would linger that the government’s case was too weak to convict in an open court.

For a century the majority of authors who have written about the military court tended to side with the critics of military justice. Pioneering author David M. DeWitt in The Judicial Murder of Mary Surratt (1893)¹ produced a withering critique of the military commission, which he believed had executed an innocent woman. In a subsequent book, The Assassination of Abraham Lincoln and Its Expiation (1909), ² DeWitt argued that the assassination had provided Secretary of War Edwin Stanton and the radical Republicans the opportunity to unleash a reign of terror against the prostrate South. Rounding up innocent civilians such as Mary Surratt and Samuel Mudd and trying them before a military court was simply one part of this vindictive radical policy.

Subsequent authors sometimes carried DeWitt’s notion that the radical Republicans were vindictive one step further, spinning elaborate conspiracy theories in which Stanton and the radicals actually engineered the president’s death.³ Virtually all of these claims are preposterous and can easily be shown to be false. The issue, however, is not whether the conspiracy works are accurate or not, but rather that these conspiracy-oriented books reinforced the negative image of the military trial. Now the radical Republicans were not merely intent on bringing vengeance to the South but rather they were masking their own involvement in Lincoln’s murder. That is why Stanton ordered the prisoners to be hooded—to keep them from telling what they knew. Also, in a military court convictions were certain and the defendants would be denied a chance to adequately defend themselves. Once the verdicts were handed down, four of the accused were hanged almost immediately to silence them forever, while the other four were imprisoned at Fort Jefferson in the Dry Tortugas, far beyond an appeal to civil courts and the writ of habeas corpus. There is little wonder that those who read the literature about the assassination came away with a very negative impression of military justice.

The negativity surrounding the trials was also reinforced by the cases of two defendants, Mary Surratt and Samuel Mudd. While there was some general sympathy for all of the conspirators, it was tempered a bit by the perception that in many of the cases the accused were nonetheless guilty. After all, David Herold had guided Lewis Powell to Secretary Seward’s house, then aided Booth in his escape and was discovered with the assassin in Richard Garrett’s barn. Powell was clearly identified as the man who attacked Seward and left his home a bloody shambles, while George Atzerodt admitted that Booth had assigned him to kill Andrew Johnson but that he had lost his nerve.⁴ There was little doubt that these conspirators would have been found guilty and sentenced to death in a civil trial. But in the case of Mary Surratt and Samuel Mudd critics argued that they were the innocent victims of bloodthirsty military justice. They had been swept up in the frenzy of the times, and in the case of Mrs. Surratt, who had been executed, there was no way that the damage could be undone except historically. Mrs. Surratt’s apologists have asked how she could have been condemned to death on weak circumstantial evidence and perjured testimony? The answer they gave was that in a civil trial such flimsy evidence would have been laughed out of court. The military commission, which was seeking victims, ignored the flaws in the evidence.

The same sort of sympathy was expressed for Dr. Mudd. Although Mudd had met with Booth in Washington and Booth had stayed at his Maryland farm overnight, allegedly on a horse-buying expedition, both Mudd and his wife denied recognizing Booth when he sought the doctor’s assistance for his broken leg. Mrs. Mudd said that she only became suspicious when she noticed that one of the strangers was wearing false whiskers. Dr. Mudd then alerted government authorities to the fact that two suspicious individuals, one with a broken leg, had called on him for medical assistance. Critics also charged that the evidence against Mudd was circumstantial and, as in the case of Mary Surratt, would never have been upheld in a civil court.

The other event that reinforced the alleged unfairness of the military tribunal was the trial of John Surratt, a conspirator with Booth, who escaped capture in 1865. Surratt was captured in 1867 and tried before a civil court that year. Opponents of the military trial have argued that the testimony in John Surratt’s trial was pretty much a repeat of the evidence given during the 1865 trial. Since the jury in Surratt’s civil trial failed to agree on Surratt’s guilt, this automatically reinforced the notion that the military trial had been unfair.

For more than a century after the assassination, the image of the military trial had become pretty well fixed. The court was either illegal, condemning some innocent people to death and imprisoning others under the harshest conditions, or else it had been an instrument of treachery and deceit and part of a massive cover-up. Almost without exception those authors who wrote about Mrs. Surratt and Dr. Mudd portrayed them as innocent victims.

It is only in the last twenty years that historians have begun a re-examination of the events of the Lincoln assassination, once again reconsidering issues such as the fairness of the military trial. In taking this new look, revision of previously held views has begun to emerge. In the first place, the military court was not convened with the certainty that it would convict. Rather, since the public was so excited by Lincoln’s death, there was a belief that it would be very difficult to impanel an impartial jury, a problem that is often anticipated in modern trials. There were recorded instances of people being shot dead on the streets for speaking ill of the martyred president, with the shooter walking away a hero. One can imagine that a jury composed of such individuals would have been in no mood to extend any leniency to those they believed had been involved in Lincoln’s murder.

On the other hand, Washington was a southern city and it might be possible that Confederate sympathizers would be chosen to sit on the jury. They would probably be unwilling to convict no matter how strong the evidence might be. Such jury nullification would prevent a sense of closure and would keep the public in an agitated state. Therefore, the military tribunal made a great deal of sense since it would be shielded from this intense public pressure. The military court also had much wider rules for submission of evidence and would not only deal with the specific individuals before it but would also be able to get to the bottom of any conspiracy that might exist. In effect, the court served the same function as the Warren Commission did in the death of John F. Kennedy.

Indeed if one examines the testimony presented, a lot of it concerned alleged Southern atrocities. President Johnson had issued a proclamation charging Jefferson Davis and other Confederates with involvement in the murder. While the government was interested in convicting those accused, it was equally intent on making the case against the unindicted co-conspirators. Before a civil court a great deal of this evidence would have been disallowed as irrelevant, but such testimony was seen as entirely relevant before the military court.

Certain claims about the military court have often been misleading. The defendants were allowed to procure lawyers, although it sometimes surprises a modern audience to discover that lawyers were not rushing to take the cases. In sensational modern trials there is little difficulty in procuring famous defense lawyers, like Johnny Cochran or F. Lee Bailey, who are drawn to defend their clients if for no other reason than the money or publicity the trials may generate. However, in 1865 observers noted that the lawyers seemed to share the public’s grief about Lincoln’s death and in some cases acted as if their clients were guilty or as if there was not much they could do for them.

The lawyers were also not incompetents. For example, Reverdy Johnson was a U. S. senator, a former attorney general, and would serve as minister to Great Britain from 1868 to 1869. Frederick Stone and Walter Cox were eventually judges themselves, and in an ironic twist Cox presided in a civil court over the trial of Charles Guiteau, who assassinated James Garfield. Stone also was a congressman from Maryland. These lawyers were equal to or better than most members of the bar, but the truth is that the defendants were difficult to defend no matter the type of trial.

The charge that a military court was used because the defendants could not testify in their own behalf is also not true. In 1865, Maine was the only state to allow a defendant in a murder trial to testify in his own behalf, Apparently the widespread policy was intended to preclude the chance that a defendant might make a slip while upon the stand and provide incriminating evidence against himself. John Surratt could not testify in his own behalf in his 1867 civil trial, weakening the claim that the court was used to ensure silence.

The verdicts also undercut the charge that the military officers were out for blood. Had that been the case, they could simply have found all of the accused guilty and condemned them to death. Instead, the court was actually quite discriminating in its decisions. As noted, the guilt of Herold, Powell, and Atzerodt was clear and the death sentences were hardly unexpected. While the case of Mrs. Surratt has been much more controversial and even though the court condemned her to death, five members of the commission signed a clemency plea recommending commutation to life in prison because of her age and sex. A close examination of John Surratt’s trial shows that it is simplistic to argue that the main difference in the outcomes between the 1865 and 1867 verdicts was based on the type of trial. In reality, there were many other factors at work, not the least of which being that two years had passed and the jury could examine the testimony in a much calmer atmosphere.

Another development that has placed the cases of Mary Surratt and Samuel Mudd in a somewhat different light was the discovery by Joan Chaconas in the papers of Attorney William E. Doster of a statement by George Atzerodt that severely undermines the view that both of these individuals were innocent victims (see addendum for Atzerodt’s statement). Among other admissions, Atzerodt indicated that Booth had told him that Mrs. Surratt had been sent to her Surrattsville tavern to tell her tenant John Lloyd to have the weapons ready that had been hidden there. This confirmed Lloyd’s own testimony that had previously been called into question on the grounds that he was drunk and lying to implicate Mrs. Surratt and save himself. Atzerodt also added that supplies had been sent to Dr. Mudd a short time before the assassination. While it does not necessarily follow that Surratt or Mudd were clearly involved in the assassination, such evidence indicates knowledge of and cooperation with the capture plot. Neither individual appears to be quite the innocent victim of military justice that they were formerly seen to be.

Mudd’s innocence has been called into question by Edward Steers Jr. in his book His Name Is Still Mudd (1997).⁵ Steers argues that under the legal rules involving conspiracy and joint venture, a person involved in a plot to kidnap is still liable to be charged with murder, if the plan changes to murder and he has not alerted the authorities. Since none of the alleged Lincoln conspirators renounced the capture plan or informed anyone about it, they were subject to being charged with murder when Booth killed Lincoln.

In any event, the last two decades have witnessed a chipping away at the previous image of a bloodthirsty court that trampled on the Constitution and persecuted innocent victims. However, with Steers’s latest book, Blood on the Moon (2001), ⁶ the discussion has taken a different turn. Steers, unlike most previous authors, defends the military court as not only necessary but also legal. Those who have attacked the trial have usually done so on the basis of the 1866 Supreme Court decision Ex parte Milligan. In that landmark decision the court ruled that civilians could not be tried in military courts when the civil courts were open and functioning, as they had been in Indiana during the Civil War.

Steers, however, argues that the Milligan decision actually had a more limited application. He cites Attorney General Speed’s opinion that the defendants were enemy belligerents who could legally be tried by the military, since they were acting as agents of the Confederate government and had killed the commander-in-chief inside the military lines of the nation’s capital. Speed’s opinion is appended to Pitman’s trial proceedings (see James Speed, pp. 403-9).

Steers also notes that in 1868, Judge Thomas Boynton, Federal district judge of the Southern District of Florida in Ex pane Mudd, denied a habeas corpus appeal by Mudd, ruling that the Milligan decision was not applicable in Mudd’s case. In 2001, Judge Paul Friedman, a Federal judge of the District Court for the District of Columbia, upheld the legal jurisdiction of the military tribunal, reaffirming Boynton’s 1868 decision. Additionally, in 1942, German saboteurs were tried before a military commission in Washington and six were executed. In reviewing the legality of the military tribunal in Ex parte Quirin, the U. S. Supreme Court affirmed the tribunal’s validity and again stated that Milligan did not apply. It is worth noting that one of the saboteurs was a U. S. citizen.

In the 138 years since the military trial, debate has at last come full circle, from the government’s original justification for the trials, through decades of denunciation, to support for military justice. If the past is any guide, however, and wheels have a way of continuing to turn, then the debate about military tribunals is apt to continue. Civil libertarians, for example, will no doubt take issue with Steers’s defense of military tribunals and, despite any court decisions to the contrary, will argue that such trials for civilians are not legally justified under any circumstances.

Even if the trials were legal one might still question their wisdom. A great deal of ink has been spilled on this subject that might have been avoided had the conspirators simply been tried in the civil courts, although Steers would argue that a civil trial in Washington might have encountered a type of jury nullification. On the other hand, historians might have come to grips a lot more quickly with essential issues about the assassination if they had not been sidetracked by concerns about military jurisdiction.

Notes

1.  David Miller DeWitt, The Judicial Murder of Mary Surratt (Baltimore: John Murphy and Company, 1895).

2.  David Miller DeWitt, The Assassination of Abraham Lincoln and Its Expiation (New York: Macmillan, 1909).

3.  For examples see Otto Eisenschiml, Why Was Lincoln Murdered? (Boston: Little, Brown, 1937); Otto Eisenschiml, In the Shadow of Lincoln’s Death (New York: Wilfred Funk, 1940); and Theodore Roscoe, The Web of Conspiracy (Englewood Cliffs, N. J.: Prentice Hall, 1959).

4.  Affidavit of Frank Munroe re statement of George A. Atzerodt, NARA, M-599, reel 2, frames 0045-47.

5.  Edward Steers Jr., His Name Is Still Mudd (Gettysburg, Pa.: Thomas Publications, 1997).

6.  Edward Steers Jr., Blood on the Moon (Lexington, Ky.: Univ. Press of Kentucky, 2001).

General Conspiracy

Edward Steers Jr.

To most Americans in 1865, Abraham Lincoln was a casualty of the Civil War. His assassination was the direct result of his role as president and commander-in-chief of the military, and the Confederate leaders in Richmond had engineered his murder.¹ Even those in responsible government positions held this view. Arriving at Lincoln’s bedside, Secretary of the Navy Gideon Welles proclaimed, Damn the Rebels, this was their work.² Meeting with Confederate general Joseph E. Johnston to discuss surrender terms, Union general William T. Sherman told Johnston that he did not believe that any Confederate army officers were involved in the assassination. But, Sherman said, I would not say as much for Jeff Davis, George Sanders, and men of that stripe.³ Sherman’s reference to George Sanders, and men of that stripe was aimed at a group of Confederate agents operating from the sanctuary of Canada. Government officials agreed with Sherman. Within a few hours of Booth’s shooting Lincoln, Stanton ordered the arrest of several Confederate agents in Canada, including Jacob Thompson, Jefferson Davis’s man in charge of the operation.⁴

In the spring of 1864, Davis had embarked on a bold plan using the sanctuary of Canada to disrupt the war effort throughout the North and to demoralize its citizens in hopes of bringing about Lincoln’s defeat in the 1864 election. Davis selected Jacob Thompson of Mississippi and Clement C. Clay of Alabama as his special commissioners to oversee the operation. The two men were ordered to Canada carrying a draft for $1 million in gold⁵ and a letter from Davis that read in part:

I hereby direct you to proceed at once to Canada, there to carry out such instructions as you have received from me verbally, in such manner as shall seem most likely to be conducive to the furtherance of the interests of the Confederate States of America which have been entrusted to you.⁶

It was Thompson and Clay’s charge to wreak as much havoc throughout the northern states as they could using a variety of resources. That havoc came, in part, in the form of attacks against the civilian population. Their efforts included plans to burn certain northern cities, the bombing of factories and ships, and the use of germ warfare by introducing infectious agents among the civilian population. Working under Thompson and Clay were a cadre of associates and Secret Service agents, including William C. Cleary, George N. Sanders, Dr. Luke Pryor Blackburn, Joseph Godfrey Hyams, Thomas H. Hines, Beverly Tucker, and James P. Holcomb.

While the efforts of these Confederate operatives failed to undermine support for Lincoln and his war policies, they were, nonetheless, a thorn in the Federal government’s side. Their activities made them suspect in the assassination of Lincoln. Authorities, in searching Booth’s hotel room the day after Lincoln was shot, found a Confederate cipher key that was identical to one found in Confederate Secretary of State Judah P. Benjamin’s office. Also among Booth’s possessions was a letter from Sam, later shown to be Samuel B. Arnold, that advised Booth to go and see how it will be taken in R—D.… The it was interpreted to mean assassination and the R—D was obviously Richmond (see William H. Terry, p. 235). By the time the trial began the government had gathered sufficient information to place John Wilkes Booth in Canada in direct contact with several of Thompson’s agents. This lone fact led the government to conclude that Booth was a Confederate agent operating under orders from Jefferson Davis and with the aid of Thompson and his agents.

Chief prosecutor Judge Advocate General Joseph Holt became convinced that Jefferson Davis was behind Lincoln’s murder. Davis, along with Thompson, his agents, and others unknown, became unindicted co-conspirators along with the eight individuals on trial for the assassination of Abraham Lincoln. None of these men were in custody at the time the trial began, but they were named nonetheless.

Assassination historian Thomas R. Turner has appropriately described the military trial as a trial within a trial.⁷ While Booth’s eight co-conspirators sat in the dock, the prosecution began its case by attempting to prove a general conspiracy, accusing