Full text of "Charge and specification against David E. Herold, George A. Atzerodt, Lewis Payne, Michael O'Laughlin, John H. Surratt, Edward Spangler, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd"

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CHARGE AND SPECIFICATION

DAVID E. HEROLD, GEORGE A. ATZERODT, LEWIS PAYNE, MI-
CHAEL O'LAUGHLIN, JOHN H. SURRATT, EDWARD SPANGLER,
SAMUEL ARNOLD, MARY E. SURRATT, AND SAMUEL A. MUDD.

aay ana tiie niteeniii ua_y oi xipui, a., u. i.ovj.j, i^uiuL-niinj,, v.^/*. .^...^-
y, 'and conspiring together with one John H. Sunatt, John VVilk«s
i' Jftferson Davis, George N. Sanders, Beverly Tucker, Jacob 'Ihomp-

Chaege I. For maliciously, unlawfully, and traitorously, and in aid of
the existing armed rebellion' against the United States of America, on or
before the tith day of March, a'. D. 1865, and on divers -'tlier days between
that day and the' fifteentli day of April, A. I). IStiS, combining, confede-
rating

Booth, . _ , .

sou, William C. Cleary, Clement C. Ciay, George Harper, George,\oung,
and others unknown, to kill and murder, wiihin the Military Department
\of Washington, and within the fortified and intrenched lines thereof,
Abraham Lincoln, late, and at the time of said combining, confederating,
and conspiring, Presidentof the United States of America, and Comuiander-
in-chief j3f the army and navy thereof; Andrew Johnson, now Vice Presi-
dent of the United States aforesaid ; William H. Seward, S«^:retaiy of State
of the United States aforesai! ; and Uly.-ses S. Grant, Lieutenant General
of the army of the United States aforesaid, then in command of the armies
of the United States, undt-r the direction of the said Abraham Lin. oln ;
and in pursuance of and in prosecuting said malicious, unlawfuL and
traitorous con^spiracy aforesaid, and in aid of said rebellion, after-
wards, to wit : on the 14th day of April, A. D. 18G5, within the military
department of Washington aforesaid, and within the fortified and in-
trenched lines of said military department, together with said Jidin Wilkes
Booth and John H. Snrratt, maliciously, unlawfully, and traitorously
murdering the said Abraham Lincoln, then Presid nt of the United Statf-s
and Commander-in-chief of th-e army and navy of the United States, as
aforesaid, and maliciously, unlawfully, and traitorously assaulting, with
intent to kill and murder, the said William H. Seward, then Secretary of
State of the United States as aforesaid, and lying in wait, with intent mali-
ciously, unlawfully, and traitorously to kill and murder the said Andrew
Jphns'on, then being Vice President of the United States, and the said
Ulysses S. Grant, then being Lieutenant General, and in command of the
armies of the United States, as aforesaid.

Specijication 1. In this : that they, the said David E. Herold, Edward
Spangler, Lewis Payne, John H. s'urratt, Michael O'Laughli!, Samuel
Arnold, Mary E. Sarratt, George A. Atzerodt, and Samuel A. Muid, incited
and encouraged thereunto by JelFerson Davis, George N. Sanders, Beverly
Tucker, Jacob Thompson, William C. Chary, Clement C. Clay, George
Harper. George Young, and others unknown, citizens of the United States
aforesaid, and who were then engaged in armed rebellion against the

United States of America, within the limits thereof, did, in aid of said
armed rebellion, on or before the 6th day of March, A. D. 1865, and on
divers other days and times between that day and the 15th day of Aprils
A. D. 1865, combine, confederate, and conspire together at Washington-
city, within the military department of Washington, and within the in-
trenched fortifications and military lines of the said United States, there-
being, unlawfully, maliciously, and traitorously, to kill and murder Abra-
ham Lincoln, then President of the United.States aforesaid, and Com-
mander-in-chief of the army and navy thereof, and unlawfully, malici-
ously, and traitorously to kill and murder Andrew Johnson, iMHvVice
President of the said United States, upon whom, on the death of said
Abraham Lincoln, after the fourth day of March, A. D. 1865, thp. office of
President of the United States, and Commander-in-chief of the army and
navy thereof, would devolve; and to unlawfully, malicioiisly, and traitor-
ously kill and murder Ulysses S. Grant, then Lieutenant General, and, under
the direction of the said Abraham Lincoln, in command of tlie armies of
the United States aforesaid, and unlawfully, maliciously, and traitoroUv<ly
to kill and murder Wm. H. Seward, then Secretary of State of the United
States- aforesaid, whose duty it was by law, upon the death of said Presi-
dent and Vice President of the United States aforesaid, to cause an election-
to be held for electors of President of the United States — the conspirators
aforesaid designing and intending by the killing and murder of the said
Abraham Lincoln, Andrew Johnson-, Ulysses- S. Grant, and William H.
Seward, as aforesaid, to deprive the army and navy of the said United
States of a constitutional Commander-in-chief ; and to deprive the armies-
of the United States of their lawful commander ; and to prevent a lawful
election of President and Vice President of the United States aforesaid;
and by the means aforesaid to aid and comfort the insurgents engaged in
armed rebellion against the said United States as aforesaid, and thereby to-
aid in the subversion and overthrow of the Constitution and laws of the
said United States.

And being so combined, confederated, and conspiring together in the
prosecution of said unlawful and traitorous conspiracy, on the night of the
14tli day of April, A. D. 1865, at the hour of about ten o'clock and fifteen
minutes p. m., at Ford's theatre, on Tenth street, in the city of Washing-
ton, and within the military department and military lines aforesaid, John
Wilkes Booth, one of the conspirators aforesaid, in pursuance of said un-
lawful and traitorous conspiracy, did,- then and there, unlawfully, malici-
ously and traitorously, and with intent to kill and murder the said Abra-
ham Lincoln, discharge a pistol then held in the hands of him, the said
Booth, the same being then loaded with powder and a leaden ball, against
and upon the left and posterior side of the head of the said Abraham Lincoln ;-
and did thereby, then and there, inllict upon him, the said Abraham Lin-
coln, then President of the said United States, and Commander-in chief of
the army and navy thereof,- a mortal wound, whereof, afterwards, to wit ;.
on the 15tii day of April, A. D. 1865, at Washington city aforesaid, the
eaid Abraham Lincoln died; and thereby, then and there, in puisuance
of said conspiracy, the said defendants, and. the said John Wilkes Booth,
did, unlawfully, traitorously and maliciously, and with the intent to aid
the rebellion, as aforesaid, kill and murder the said Abraham Lincoln,
President of the United States, as aforesaid.

And in further prosecution of the unlawful and traitorous conspiracy
aforesaid, and of thw murderous and traitorous intent of said conspiracy,
the said Edward Spangler, on said 14th day of April, A. D. 1865, at about
the same hour of that day, as aforesaid, within said military department
and the military lines aforesaid, did aid and- assist the said John Wilkes

Sootli to obtain entrance to the box in said theatre, in wbicb said Abra-
ham Lincoln was sitting at tlie time he was assaulted and shot, as afore-
. said, hy John Wilkes Booth ; and also did then and there aid said Booth,
in barring and obstructing the door of the box of said theatre, so as to
hinder and prevent any assistance to, or rescue of, the said Abraham Lin-
coln, against the murderous assault of the said John Wilkes Booth, and
did aid and abet him in making his escape after the said Abraham Lincoln
had been murdered in manner aforesaid.

And in further prosecution of said unlawful, murderous and traitorous
conspiracy, and in pursuance thereof, and with the intent as aforesaid, the
said David E. Herold did, on the night of the 14th of April, A. D. 1865,
within the military department and military lines aforesaid, aid, abet and
assist the said John Wilkes Booth in the killing and murder of the said
Abraham J/incoln, and did then and there aid, and abet, and assist him, the
said John Wilkes Boeth, in attempting to escape through the militar^r lines
aforesaid, and did accompany and assist the said John Wilkes Booth in
attempting to conceal himself and escape from justice, after killing and
murdering said Abraham Lincoln, as aforesaid.

And in further prosecution of said unlawful and traitorous conspiracy,
and of the intent thereof as aforesaid, the said Lewis Payne did, on the
same night of the 1-ith day of April, A. D. 18(j5, about the same hour of
ten o'clock fifteen minutes, p. ni., at the City of Washington, and within
'the military department and the military lines aforesaid, unlawfully and
maliciously make an assault upon the said William H. Seward, Secretary
of State as aforesaid, in the dwelling-house and bed-chamber of him, the
said William il. Seward, and the said Payne did then and there, with a
large knife, held in his hand, unlawfully, traitorously, and in pursuance
of said conspiracy, strike, stab, cut, and attempt to kill and murder, the
said William H. Seward, and did- thereby, then and there, and with the
intent aforesaid, with said knife, inflict upon the face and throat of the said
William H. Seward divers grievous wounds. And the said Lewis Payne,
in further prosecution of said conspiracy, at the same time and place last
aforesaid, did attempt, with the knife aforesaid, and a pistol held in his
hand, to kill and murder Frederick W. Seward, Augustus H. Seward, Em-
rick W. Hansell, and George F. Robinson, who were then striving to pro-
tect and rescue the said William H. Seward from murder by the said Lewis
Payne, and did then and there, with said knife and pistol held in his hands,
inflict upon the head of said Frederick W. Seward, and upon the persons
of said Augustus H. Seward, Emrick W. Hansell, and George F. Robinson,
divers grievous and dangerous wounds, with intent, then and there, to kill
and murder the said Frederick W. Seward, Augustus H. Seward, Emrick
W. Hansell, and George F. Robinson.

And in further prosecution of said conspiracy and it straitorous and mur-
derous designs, the said George A. Atzerodt did, on the night of the 14th
of April, A. D. 1865, and about iSb»!'<j|K,ne hour of the night aforesaid, within
the military department and ti^^^^^Ljitary lines aforesaid, lie in wait for
Andrew Johnson, then Vice Vi'ttdij^^oi the United States aforesaid, with
the intent unlawfully and malfw^ply to kill and murder him, the said
Andrew Johnson.

And in the further prosecution of fee conspiracy aforesaid, and of its mur-
derous and treasonable pirrposes aforesaid, on the nights of the 13th and
14th of April, Jl. D. 1865, at Washington city, and within the military de-
partment and military lines aforesaid, the said Michael O'Laughliu did
then and there lie in wait for Ulysses S. Grant, then Lieutenant General
and commander of the armies of the United States as aforesaid, with intent
then and there to kill and murder the said Ulysses S. Grant.

And in further prosecution of said conspiracy, the said Samuel Arnold
did, within the military department and military lines aforesaid, on or
before the sixth day of March, A. D. 1S(J5, and on divers other days and
times between that day and the 15th day of April, A. D. 1865, combine,
conspire witli, and aid, counsel, abet, comfort, and support, the said John
Willces Bdotli, Lewis Payne, George A. Atzerodt, Michael O'Laughlin, and
thv^ir coniedrrates, in said unlawful, murderous, and traitorous conspiracy,
and in the execution thereof, as aforesaid.

And in further prosecution of the said conspiracy, Mary E. Surratt did,
at Washington city, and within the military department and military lines
aforesaid, on or before the sixth day of March, A. D. 1865, and on divers
other days and times between that day and the 2Uth day of April, A. D.
184)5, receive, entertain, haibor, and lonceal. aid and assist, the said John
Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael
O'Lauglilin, George A. Atzerodt, Samuel Arnold, and their confederates,
with knovvledge 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 after the murder of the said Abraham Lincoln, as-
aforesaid.

And in further prosecution of said conspiracy, the said Samiiel A. Mudd
did, at Washington city, and within the military department and military
lines aforesaid, on or before the sixth day of March, A. D. 1865, and on
divers other days and times between that day and the twentieth day of
Apiil, A. D. 1865, advise, encourage, receive, entertain, harbor, and con-
ceal, aid and assist, the said John Wilkes Booth, David E. Herold, Lewis
Payne, John H. Surratt, Michael O'Laughlin, G<}orge A. Atzerodt, Mary E,
Surratt, and Samuel Arnold, and their confederates, with knovvledge 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 after
the murder of the said Abraham Lincoln, in pursuance of said conspiracy,,
in manner aforesaid.

By the President of the United States :

("Signed^ J. HOLT, Judge Advocate Gensttah

Argument on the Facts in the Case of the Ac-
cused, Dr. Samuel A. Mudd.

Mr. EwiNG, on Friday, delirered the following argument on the facts in
the case of the accused, Dr. Samuel A. Mudd :

May it please the Court :

Samuel Mudd, now on trial before this Court, on a charge of conspiracy
to assassinate the President of the United States and other chief officers of
the nation, has been a practising physician, residing five m les north of
Bryantown, in Charles county, Maryland, on a farm of about five hundred
acres, given to him by his father. His house is between twenty-seven and
thirty miles from Washington, and four or five miles east of the road from
Washington to Bryantown. It is shown by Dr. George Mudd, .John L.
Turner, John Waters, Joseph Waters, Thomas Davis, John McPherson,
Lewellyu Gardiner, and other gentlemen of unimpeached and unquestion-
able loyalty, who are in full sympathy with the Government, that he is a
man of most exemplary character — peaceable, kind, upright, and obedient
to the laws. His family being slaveholders, he did not like the anti-
slavery measures of the Government, but was always respectful and tem-
perate in discussing them, freely took the oath of allegiance prescribed for
voters, ("Dr. George Mudd, J supported an Union candidate against Harris,
the secession candidate, for Congress, (T. L. Gardiner, J and for more than
a year past regarded the rebellion a failure. (Dr. George Mudd. J He was
never known or reported to have done an act or said a word in aid of the
rebellion, or in countenance or support of the enemies of the Government.

An effort was made, over all objections and in violation, I respectfully
submit, of the plainest rules of evidence, to blacken his character as a citi-
zen, by showing that he was wont, after the war broke out, to threaten his
slaves to send them to Richmond " to build batteries." But it will be seen
hereafter, that all that part of the testimony of the same witnesses, which
related to the presence of Surratt and o£ rebel officers at the house of the
accused, was utterly false. And Dyer, in presence of whom Eglen says the
threat was made to him, swears he was not in the country then, and no
auch threat was ever made in his presence. The other colored servants of

the accused, Charles and Julia Bl'oyce, and Betty and Frank Washington,
say they never heard of such threats having been made ; and J. T. Mudd
and Dr. George Mudd, and his colored servants Charles and Julia Bloyce,
and Betty and Frank Washington, describe him as being remarkably easy,
unexaoting, and kind to all about him — slaves and freemen.

From this brief reference to the evidence of the character of the accused,
I pass to a consideration of the testimony adduced to prove his connection
with the conspiracy.

And, first, as to his acquaintance icith Booth. J. C. Thompson says, that
early in November last Booth went to the house of witness's father-in-law,
Dr. William Queen, four or five miles south of Bryantown, and eight or
ten f-om Dr. Mudd's, and presented a letter of introduction from a Mr.
Martin, of Montreal, who said he wanted to see the county. It does not
appear who Martin was. Booth said his business was to invest in land and
to buy horses. He went with Dr. Queen's family to a church nt;xt day, in
the neighborhood of Bryantown, and was there casually introduced, before
service, by Thompson, to the accused. After service Booth returned
to Quee]i's house, and stayed until next morning, when he left. While at
Queen's, he made inquiries of Thompson as to horses for sale, the price of
lands, their qualities, the roads to Washington, and to the landings on the
Potomac ; and Thompson told him that the father of Dr. Samuel Mudd
was a large landholder, and might sell part of his land. On Monday morn-
ing, after leaving Dr. Queen's, Booth came by the house of the accused,
who went with him to the house of George Gardiner, to look at some horses
for sale. The accused lives about one quarter of a mile from Gardiner's,
("Mary Mudd, Thomas L. Gardiner, J and on the most direct road to that
place from Dr. Queen's, through Bryantown. ("Mary Mudd, Hardy. J There
Booth bought the one-eyed saddle-horse which he kept here, and which
Payne rode after the attempted assassination of Mr. Seward. Mudd mani-
fested no interest in the purchase, but after it was made Booth directed
the horse to be sent to Montgomery's Hotel, in Bryantown, and Booth and
the accused rode off together in the direction of the house of the accused,
which was also the direction of Bryantown. Witness took the horse to
Bryantown next morning, and delivered hi-.n in person to Booth there.
Witness says the horse was bought on Monday, but he thinks in the latter
part of November; though he says he is "one of the worst hands in the
world to keep dates . ' '

Thompson further says, that after Booth's first introduction and visit to
Dr. Queen's, "he came there again, and stayed all night, and left very
early next morning. I think it was about the middle of December follow-
ing his first visit there."

There is nothing whatever to show that Mudd saw Booth on this second
visit, or at any other time, in the country, prior to the assassination ; but

a great deal of evidence that he never was at Mudd's house, or in his im-
mediate neighborhood, prior to the assassination, except once, and on his
first visit. I Tvill refer to tlie several items of testimony on this point.

1st. Thomas L. Gardiner savs he was back and forth at Miidd's house,
sometimes every day, and always two or thi-ee times a week, and never
heard of Booth being there, or in the neighborhood, after the purchase of
the horse and before the assassinati n.

2d. Mary Mudd says she saw Booth one Sunday in November at church,
in Dr. Queen's pew, and with his family, and that she heard of his being
at the house of her brother, the accused, on that visit, but did not hear
that he stayed all night ; and that on the same visit he bought the horse of
Gardiner. She lives at her father's, on the farm adjoining that of accused,
and was at his house two or three times a week, and saw him nearly every
day on his visits to his mother, who was an invalid, and whose attending
physician he was ; and never saw or heard of Booth, escejjt on that one
occasion, before the assassination.

3d. Fanny Mudd, sister of the accused, living with her father, testifies
to the same effect.

4th. Charles Bloyce was at the house of the accused Saturday and Sun-
day of each week of last year until Christmas Eve, ^except six weeks in
April and May,^ and never saw or heard of Booth's being there.

5th. Betty Washington ("coloredj lived there from Monday after Christ-
mas until now, and never saw or heard of Booth there before the assas-
sination.

6th. Thomas Davis lived there from 9th January last. Same as above.

Nor is there any evidence whatever of Booth's having s/aijfd nil night
with' the accused on the visit when the horse was t)Ought of Gardiner, or
at any other time, except that of Col. Wells, who says, that after Mudd'B
arrest, "he said, in answer to another question, that he met Booth some
time in November. I think he said he was introduced by Mr. Thompson,
a son-in-law of Dr. Queen, to Booth. I think he said the introduction took
place at the chapel or church on Sunday morning ; that, after the intro-
duction had passed between them, Thompson said, Booth wants to buy
farming lands ; and they had some little conversation on the subject of
lands, and then Booth asked the question, whether there were any desira-
ble horses that could be bought in that neighborhood cheaply ; that he
mentioned the name of a neighbor of his who had some horses that were
good travellers ; and that he remained with him that night, 1 think, and next
morning purchased one of those horses." Now, it will be recollected that
Thompson says Booth stayed at Dr. Queen's on that visit Saturday night
and Sunday night, and Thomas L. Gardiner says the horse was bought
Mondaij morning. So that, if Col. Wells is correct in recollecting what
Mudd said, then Thompson must be wrong. It is more probable that

Thompson is vigVit, as to Booth's having spent Sunday night at Queen's.
Thompson's testimony is strengthened, too, by tliat of Mary Mndd, Fanny
Mudd, and Charles Bloyce, who would, in all probability, have heard the
fact of -Booth, spending Sunday night at the house of the accused, had ha
done so ; but they did not hear it.

It is here to be observed, that though the accused was not permitted to
show, by Booth's declarations here., that he was contemplating and nego-
tiating purchases of lands in Charles county, yet evidence was admitted as
to his declarations made theru to that effect. Dr. Bowman, of Bryantown,
■says that Booth negotiated with him, on one of these visits, for the pur-
chase of his farm, and also tallied of buying horses. And a few days after
witness had negotiated with Booth for the sale of his farm, he met Dr.
Mudd, and spoke of the negotiation with Booth, and Mudd said, " Why,
that fellow promised to buy my lami.''^ It is also shown by Dr. Blanford, Dr.
Bowman, M. P. Gardiner, and Dyer, that Mudd, for a year past, wanted
to sell his land, and quit farming.

This, then, is all that is shown of any meeting between Mudd and Booth
in that country before the assassination — a casual introduction at church
on Sunday in November — Bootli going next morning to Mudd's, talliing of
buying his farm, and riding with him a quarter of a mile to a neighbor's
to buy a horse, and their going off together towards Mudd's and Bryantown,
where the horse was delivered to Booth next morning.

We will now turn to consider the evidence as to the accused's acquaint-
ance with Jolin H. Surratt^ If he knew Surratt at all, the fact is not shown
by, nor inferable from, the evidence. Miss Surratt was educated at Bryan-
town, before the war, and her family lived at Surrattsville, and kept the
hotel there, Cwhicli is on the road from Dr. Mudd's house to Washington,}
until they removed, in October last, to a house on H street, in th s city,
where they have since resided. (Miss Surratt, Holahan, Weichmann.J
Dr. Madd probably had met Surratt at the hotel at Surrattsville, or, before
the wa,r, at Bryantown, while his sister was at school ; but it is not shown
by credible testimony that he knew him at all. Let us examine the evi-
dence on this point.

1st. Mary Si7ns, formerly Dr. Mudd's slave, says that a man whom Dr,
and Mrs. Mudd called Surratt was at Mudd's house from almost every
Saturday night until Monday night through the latter part of the winter,
and through the spring and summer of last year until apples and peaches
were ripe, when she saw him no more ", and that on the last of November
she left Dr. Mudd's house. That he 7>evei- slept in the house, but took din-
ner there si:^ or seven times. That Andrew Gwynn, Bennett Gioynn, Capt.
Perry, Lieut. Perry, and Capt. White, of Tennessee, slept with Surratt in
the pines near the spring, on bed-clothes furnished from Dr. Mudd's house,

and that they were supplied by witness and by Dr. Mudd with victuals
from the house. That William Mudd, a neighbor, and Eachel Spencer,
and Albin Brooke, members of Mudd's household, used to see Surratt
there then. She says that the lieutenants and officers had epaulettes on
their shoulders, gray breeches with yellow stripes, coat of same color
and trimming. Their horses were kept in Dr. Mudd's stable, by Mile
Sims.

2d. Milo Sims, brother of Mary, fourteen years old, formerly slave of
Dr. Mudd, left there Friday before last Christmas. Saw two or three men
there last sitmmer, who slept at the spring near Dr. Mudd's house. Bedding
taken from, the house ; meals carried by llari/ Sims, generally, though
they sometimes ate in the house, and they all slept at the spring, except
one called John Surratt, who slept once in the house. Don't say how long
they stay^d. It was in '"planting tobacco time." He attended their horses
in Dr. Mudd's stable.

3d. Rachel Spencer, slave of Dr. Mudd and cook at his house, left him
€arly in January, 1SU5 ; saw five or six men around Dr. Mudd's house
last summer ; slei^t in the pines near the house, and were furnished with
meals from it. Were dressed in black and blue. Were there on!// a loeek,
and vever saw them there before or since. She heard no names of the men
except Andrew Gwynn and Watt Bowie. That Albin Brooke lived at Dr.
Mudd's then, and was with these men occasionally,

4th. Elzee Eglen, formerly Dr. Mudd's slave, left him 20th August, 1863 ;
saw a party sleeping in the pines, by the spring, near the house, summer
before last. Knew Andrew Givijnn^ and he was one of them ; did not recol-
lect any other names. Mary iSims carried them meals, and Miio Sims at-
tended the horses in Dr. Mudd's stable. Some wore gray clothes with
brass buttons, but without other marks — some black clothes. Did not
say how many there were, nor how long they stayed.

5th. Melvina Washington, formerly Dr. Mudd's slave, left him October,
1863; saw party sleeping in the pines near the house summer before last ;
victuals furnished from the house. Party stayed there about a iveek, and
then left, tome were dressed in gray, and some in short jackets with
little peaks behind, with black buttons. She saw them seven or eight
times during one week, and then they all l-eft, and she never saw any of them
at any other time except during that week. That Andreiv Givynu^s irame
was the only one she heard ; that Marij Siins used to tell her, when the
men were there, the names of others, but she had forgotten them.

That these five witnesses all refer to the same party of men and the
same year is certain, from the fact that Elzee Eglen says that Mary Sims
carried tha party he describes as being there ia the summer of 1863 their
victuals, and that Milo Sims kept their horses in the stable ; and Melvina
Washington says Mary Sims used to tell her the names of the party which
2

she descrilbes as being there in 1863 ; and also from the fact that all of
them, except Mile Sims, named Andrew Gwtjnn as being one of the party,
I will not waste the time of the Court in pointing out to it in detail the dis-
crepancies in their evidence apparent from the foregoing synopsis of their
testimony ; and therefore, only calling its attention to the fact that all of
these witnesses were living with Dr. Mndd during fend after the year 1861,
(Dyer,) down to the several dates given above, when they respectively
left, I will proceed to show from the evidence what and when the occur-
rences really were about which they have testified.

1. Ben. Gwynn (^named by Mary Sins as one of the party} says :

" Q. Will you state whether during last summer, in company with Cap-
tain White, from Tennessee, Captain Perry, Lieutenant Perry, Andrew
G-wynn, and George Gwynn, or either of them, you were about Dr. Sam-
uel A. Mndd's house for several days ? A.I was not. I do not know any
of the parties named, and I never heard of them, except Andrew Gwynn
and George Gwynn.

Q,. Were you with your brothers, Andrew Gwynn and George Gwynn,
about Dr. Mudd's house last year? A. No, sir. I have not been in Dr.
Mudd's house since about the first of November, 1861. I have not been
on his place, or nearer his place than church, since about the 6th of No-
vember, 1861.

Q. Where did you and the party who were with you near Dr. Mudd's
sleep? A. We slept in the pines near the spring.

Q. How long were you there ? A. Four or five days. I left my neigh-
borhood, and went down there and stayed around in the neighborhood —
part of the time at his place, and part of the time elsewhere. He fed us
there — gave us something to eat, and had some bed-clothing brought out
of the house. That was all."

He further said, that the party was composed of his brother, Andrew
Gwynn, and Jerry Dyer, who, on the breaking out of the war, were, like
all the people of that section, panic-stricken, and apprehending arrest ; that
he came up to Washington on the 10th of November, gave himself up, found
there were no charges against him, took the oath, and went back home.
That John H. Surratt, when this party were there, was at college, and wit-
ness never saw him in Charles county then or since. That his brother,
Andreio Gwynn, went South in the fall of 1861, and was never, to his know-
ledge, back in that county but once since, and that was last winter some-
time. He corrected his statement as to when the party were there, and fixed
it in August, 1861.

2d. Jerry Dyer, brother-in-law of the accused, testifies to the same as
Ben. Gwynn. Says he and the two Gwynns were members of companies
organized by authority of Governor Hicks for home protection in 1860 ;
wei-e present on parade in Washington at the inauguration of a statue, on

the 22d of February, 1860. When the war broke out the companies were
disbanded ; many of the members going Soutli, and many of those who
remained in Charles county scattering about from rumors ot arrests ; that
there was a general panic in the cou'ity then, and almost everybody was
leaving home and "dodging about ;" that while he and the two Grwynns
slept in the pines these three or four days, Mary Sims carried them vict-
uals from the house, and Mil© Sims attended to the horses in Mudd's sta-
bles ; that they were dressed in citizens' clothing ; that Andrew Gwynn
went South in the fall of 1861 ; witness never heard of his being back
since; that Surratt was not there then, no", so far as he knows, since.

3d. William Mudd, a near neighbor of the accused, named bv Mary Sims
as having seen the party she describes, says he saw Benjamin Gwynn there
in 1861, but saw none of the others, then or since.

4th. Albin Brooke, referred to by Mary Simms and Rachel Spencer as
having seen the party they describe, ("and by Mary Sims as having seen
Surratt especially, J says he knows Surratt, having met him in another
county once, and knew Benjamin Gwynn and Andrew Gwynn, but that he
■never saw Surratt with any of the men named by Mary Sims at Dr. Mudd's,
nor heard of his having ever been there ; never heard of Andrew Gwynn being
back from Virginia since 1861. That he lived at Dr. Mudd's from the 1st
of January to between the 1st and the 15th of September of last year, and
was at the stable morning, noon, and night, each day, and was about the
spring daily ; while there never saw any strangers' horses in the stable,
nor any signs about the spring of persons sleeping there ; but that, while
living near Dr. Mudd's, in the summer of 1861, he knew of Ben. and An-
dr.w Gwynn and Dyer sleeping in the pines there.

5th. Ml s. Mary Jane Sims boarded, or was a guest, at Dr. Mudd's all last
year, except through March ; knew Andrew, Ben., and George Gwynn, and
John H. Surratt. Never saw or heard of any of them there, nor of any of
them sleeping in the pines.

6th. Frank Washington ("coloredj lived at Dr. Mudd's all last year ; knew
Andrew Gwynn by sight ; never saw or heard of him or Surratt, Cof whom
a photograph was shown him, J or of any of the men named by Mary Sims,
being there, or of any men being there in uniform ; at the stable three
times daily, and often at the spring, and saw no strange horses in the stable ;
saw no signs of men sleeping about the spring.

7th. Baptist Washington, carpenter, at work there putting up kitchen,
&c., from February till Christmas last year, except the month of August ;
same as above, except as to knowledge of Andrew Gwynn. ("Photograph
of Surratt shown him. J

8th. Charles Bloyce, (^colored, ^ at Dr. Mudd's through every Saturday
and Sunday all last year, except from 10th April to 20th May; same as
Frank Washington, except as to knowing Andrew Gwyuu.

9tli. Julia Aim Blojce, Ccolored cook, j there from early in July to 23(f
December, 1864; same, substantially, as Frank Washington; knew Ben.
and Andrew Gwynn. CPhotograph of Surratt shown witUfSS.J

10th. Emily tMudd and Fanny Mndd live on adjoining farm to Dr. Mudd,
at his father's ; at his house almost daily for years ; knew of the party in
the pines in 1861. composed of Dyer and the two Gwyuns ; knew Andrew
Gwynn well ; hever heard of his being back from Virginia sin^^e 1861, nor
of Surratt ever being at Dr. Mudd's, no^r of any of the others named by
Mary Sims, except the Gwynns, in 1861.

11th. rieury L. Mudd, Jr., brother of the accused, living at his father's ,'
same as above as to Surratt.

None of the five witnesses, whose testimony has been shown false in all
essential parts by the evidence of the twej.ve witnesses for defence, referred
to above, said that Surratt was one of the party sleeping in the pines, ex-
cept Mary and Milo Sims. These two witnesses are shown to have estab-
lished reputations as liars, by the evidence of Charles Blojce, Julia Ann
Bloyce, and Frank, Baptist, and Betty Washington, So all that testimony
for the prosecution, of the "intelligent contrabands," who darkened the
counsels of the court in this case, is cleared away. The only part of it at
all admissible under the rules of evidence, or entitled to the consideration
of the Court, was that showing Surratt was intimate with Mudd, and often
at his house last year and year before ; and that, like nearly all the rest of
their teslimony, has been conclusively shown to be false.

Another v^itness, who testifies to implicate Mudd as an associate of Sur-
ratt, is V\ illiam A. Evans, who said he saw Mudd some* time last winter
enter a house on H street, just as Judson Jarboe, of Prince George's coun-
ty, was going out of it ; and that Jarboe was then shaking hands with a
young lady, whom witness took to be a daughter of Mrs. Surratt, from her
striking likeness to her mother, he having known or seen all the family;
and that he stopped a policeman on the street, and asked whose house it
was, and he said, " Mrs. Surratt's ; " and that he drove up to the pave-
ment, and asked also a lady who lived near by, and she said the same. He
said this house Avas between Eighth and Ninth, or Nii.th and Tenth — he
was not perfectly certain as to the streets, but was certain it was between
the Patent I'ffice and the President's. Through an hour's cross-examina-
tion, he fought by equivocation, or pleading defect of memory, against fix-
ing any circumstance by which I could learn direc ly or indirectly the day
or the month when it occurred, and, finally, he could only say it waa
"sometime last winter." Although his attention had been so strongly
attracted to the house, he first said it was on one side of the street and
then on the other ; and could not tell whether it had any porch or any
portico, nor describe its color, nor whether it had a yard in front, nor
whether it was near the centre of the square, nor describe a single hous&

on either side of the same square. He said he knew Dr. Samuel Mudd,
having met him first at Brvantown church, in December, 1850.

Every material thing he did say, which was susceptible of being shown
false, has been so shown.

1st. Mrs. Surratt's house is not between the Patent Office and the Presi-
dent's, but next the corner of iSixth. (Weichmann, Holahan, Miss Surratt._)

2d. Miss Surratt, an only daughter, says she never saw or heard of
Samuel Mudd being at her mother's house, nor heard his name mentioned
in the family, and never met Judson Jarboe there or elsewhere before the
assassination.

3d. Miss Fitzpatrick, who boarded at Mrs. Surratt's from the 6th of Oc-
tober last to the assassination, and Holahan, who was there from the first
week of February last, never saw either Mudd or Jarboe there, or heard of
either being there, or the name of either mentioned in the family.

4th. Weichmann, who boarded there through last winter, never heard
of Mudd being at the house.

hih. Judson .Jarboe says he never was at Mrs. Surratt's house, or met
Dr. AJudd or Miss Surratt in Washington before the assassination.

6th. Mary Mudd says Samuel Mudd was at Frederick CoUegf^, at Freder-
icktown, Maryland, in December, 1850, and was not at home during the
collegiate year, beginning in September of th.tyear ; and Rev. Dr. Stone-
street, who was president of that college until December of that year, tes-
tifies the accused was then entt-red as a student there, and could not by
the rules of the college have gone home.

This witness, Evans, boasted often to the Court that he was a minister
of the Gospel, and reluctantly admitied on cro.ss-examination that he was
also one of tiie secret police. In his reckless zeal as a detective, he forgot
the ninth commandment, and bore false witness against his neighbor. It
is to be hoped his testimony that he is a minister of the Gospel is as false
as his material evidence. I feel bound in candor to admit, however, that
his conduct on the stand gave an air of plausibility to one of his material
statements — that for a month past he has "been on the Verge of insanity."

I. have now presented and considered all the testimony going to show
that Mudd ever met Surratt at all, and all that he ever met Booth, before
the assassination and after the first visit Booth made to Charles county —
except the testimony of Weichmann, which I will now consider.

That witness says that about the middle of Januaiy last, he and Surratt
weie walking down Seventh street one night, and passed Booth and Mudd
walking up the street, and just after they had passed, Mudd called "Sur-
ratt, Surratt." Surratt turned and recognized Mudd as an old acquaint-
ance, and introduced Mudd to witness, and then Mudd introduced Booth
to witness and Surratt. That soon after the introduction Booth invited

them all to his room at the National Hotel, where wine and cigars were
ordered. That Dr. Mudd, after the wines and cigars came, called Booth
into the passage, and they stayed there five to eight minutes, and then
both came and called Surratt out, and all three stayed there about as long
as Mudd and Surratt had stayed, both interviews together making about
ten to twenty minutes. On returning to the room. Dr. Mudd seated him-
self by witness, and apologized for their private conversation, saying,
" that Booth and he had some private business — that Booth wished to pur-
chase his farm." And that, subsequently, Booth also apologized to him,
giving the same reason for the private conversation. Booth at one time
took out the back of an envelope, and made marks on it with a pencil. " I
should not consider it writing, but more in the direction of roads or lines.''
The three were at that time seated round a centre table in the middle of
the room. "The room was very large — half the size of this court room."
He was standing when this was done within eight feet of them, and Booth
was talking in a low tone, and Surratt and Mudd looking on the paper, but
witness heard no word of the conversation. About twenty minutes after
the second return from the passage, and after a good deal of general con-
versation, they all walked round to the Pennsylvania House, where the
accused sat with witness on a lounge, and talked about the war, "ex-
pressed the opinion that the war would soon be over, and talked like a
Union man." Soon after getting there, Booth bid the accused good night,
and after Booth left, witness and Surratt followed, at about half-past ten
o'clock.

It will be observed that the only men spoken of by this witness as hav-
ing seen the accused on this occasion are Booth, who is dead, and Surratt,
who is a fugitive from the country. So there is no one who can be called
to confirm or confute his statements, as to the fact of these men being to-
gether, or as to the character of the interview. But there was one fact
about which he said he could not be mistaken, and by means of which his
evidence against Mudd is utterly overthrown. That is, he alleges the
meeting was about the middle of January, and fixes the time with certainty
by three distinct circumstances :

1st. He made a visit to Baltimore about the middle of January, and
near the date of this meeting.

2d. He had, before the meeting, got a letter, which he received on the
16<A of January.

3d. It was after the Congressional holidays, and Congress had resumed
its session. He recollects this fact of itself, and is confirmed in his recol-
lection by the fact that Booth's room was one a member of Congress had
occupied before the holidays, and which was given Booth, as he learned,
until the member, who had been delayed beyond the time of the reas-
sembling of Congress, should return. Booth told him this.

In refutation of this evidence, we have proved, beyond all controversy>
that Dr. Mudd was not in Washington /rom the 2/id of December to the 23c?
of March.

On the 23d of December he came to Washington with J. T. Mudd, who
says they left their horses at the Navy Yard, and went into the city at
dark, on the street cars, and registered at the Pennsylvania House. They
then went out and got supper at a restaurant, and then went to the Metro-
politan Hotel and stayed there together a quarter of an hour, and then to-
the National, where witness met a friend, and became separated in the
crowd from accused. Witness strolled out and went back to the Penn-
sylvania House, to which accused returned in a few minutes after he got
there. He saw and heard no > ne with the accused, though there might
have been persons with him in the front part of the room, ("which was
separated from where witness sat by open folding doors, J without witness
seeing them. Witness and accused then went to bed ; were together all
next day ; were about the market together, and at the store making pur-
chases ; were not at the National Hotel, and left the city about one o'clock
in the afternoon of the 24th, and returned home together. Witness never
saw Booth, except on his visit to Bryantown in November. We have
shown by the evidence of Lucas, Montgomery, Julia Bloyee, and Jerry
Mudd, that accused came here on that visit on a sufficient and legitimate
business errand — to purchase a cooking-stove and other articles, which he
bought here then.

On the 23d of March, Lewellyn Gardiner said accused again came to-
Washington with him to attend a sale of condemned horses, but that the
sale did not occur at that time. They got to Washington at 4 or 5 p. m.,
left their horses at Martin's, beyond the Navy Yard, and went about look-
ing at some wagons for sale, and went then to the Island to the house of
Henry Clark, where they took tea. They spent the evening at \)v. Allen's
playing whist ; slept together that night at Clark's, and after breakfast
next morning went through the Capitol looking at the paintings in the
Rotunda, and returned to Martin's at dinner, and after dinner left and re-
turned home. Accused was not separated from or out of sight of witness
five minutes during the whole visit, and did not go to any of the hotels or
to the post office, or see or inquire for Booth. Dr. Allen, Clark, Martin,
Thomas Davis, Mary Mudd, Henry Mudd, and Betty Washington, confirm
witness as to the objects or incidents of the visit.

On the 11th of April, three days before the assassination, while Booth,
as appears by the hotel register, was at the National in this city, accused
came to Giesboro to attend the sale of Government horses, which he and
Lewellyn Gardiner had come on the 23d of March to attend. Though in
sight of Washington, he did not come into the city, but took dinn r at
Martin's, and after dinner left and returned home. On this visit he stayed

all night at Blacford's, twelve miles from the city coming up, but not re-
turning. ("Lewellyn Gardiner, Henry L. Mudd, Dr. Blanford, Martin,
Davis, Betty Washington, Mary Mudd.J

On the 26th of January he went with his wife to the house of his neigh-
bor, George H. Gardiner, to a party, and stayed till daylight. ("Betty
Washington, Thomas Davis, Mary Mudd.j Except for one night on the
occasion of each of those four visits — two to Washington, one to Giesboro,
and one to Gardiner's — accused was not absent from home a night from
23d December until his arrest. (Betty Washington, Thomas Davis,
Henry L. Mudd, Mary Mudd, Frank Washington.^

After the evidence for the defence above referred to had been introduced,
refuting and completely overwhelming Weichmann's testimony and all in-
ferences as to Dr. Mudd's complicity with Booth which might be drawn
from it, a new accuser was introduced against him on the same point in
the person of Marcus P. Norton, who said that at half-past 10 o'clock, on
the morning of the 3d of March, as he was preparing his papers to go to
the Supreme Court to argue a motion in a. patent case there pending,
fwhich motion the record of the Court shows he did argue on that day, j a
stranger abruptly entered his room and as abruptly retired, saying he was
looking for Mr. Booth's room; and though witness never saw Dr. Mudd
before or since, until the day of his testifying, he says that stranger is
the prisoner at the bar. He could not tell any article of the stranger's
clothing except a black hat. Wm. A. Evans, a part of whose evidence we
have hereinbefore considered, comes to the support of Norton, by saying
that early on the morning of either the 1st, or 2d, or 3d of March, (wit-
ness is certain it was one of those three days, ) Dr. Mudd passed witness
on the road from. Bryantown to Washington, a few miles from the city,
driving a two-horse rockaway, and there was a man in with him, but
whether a black or a white man witness could not recollect. Fortunately
for the accused, the 1st day of March was Ash Wednesday — the first day
of Lent — a religious holiday of note and observance in the community of
Catholics among whom he lived. Fortunately for him, too, his sister Mary
was taken ill on that day, and required his medical attendance fat her
father's houe, on the farm adjoining his own, thirty miles from Washing-
tonj each day from the 2d to the 7th of March, inclusive. By the aid of
these two circumstances we have been able to show by Thomas Davis that
accused was at home at work on the 28th of February, (the day before
Ash Wednesday :) by Dr. Blanford, Frank Washington, and Betty Wash-
ington, that he was there at work at home on the 1st of March ; by Mary,
Fanny, Emily and Henry L . Mudd, Betty and Frank Washington, and Thomas
Davis, that he was there on the 2d, 3d, 4th, and 5th of March, at various
hours of each day. At or within two hours of the time when Norton says

he saw the accused enter tlie room at the National, ClO^^ A. M., 3(i of
March, ) Mary, Emily, Fanny, and Henry L. Mudd, Frank and Betty
Washington, Thomas and John Davis, all testify most emphatically to
having seen him at his house, on his farm, or at his father's house adja-
cent to his own — six hours' ride from Washington ! We have shown, too,
toy Mary Mudd, that the accused has always worn a lead-colored hat when-
ever she has seen him this year, and that she has seen him almost daily;
and by Henry Mudd, Dr. Blanford, and Mary Mudd, that neither he nor
his father owns a rockaway. Now, Norton either saw the accused enter
his room on the moruiuu of the 3d of March or net at all, for his evidence,
clinched as to the date by the record of the Supreme Court, excludes the
supposition that he coald have been mistaken us to the day. Nor can these
eight witnesses for the defence be mistaken as to the day, for the incideats
by which they |recollect Mudd^s presence at home fix the time in their
■memories exactly. With all this evidence before the Court, it cannot hesi-
tate to hold the alibi established beyond all cavil.

The only ether item of evidence as to anything done or said by Dr.
Mudd, or by anybody, before the assassination, tending in the least to show
•him implicated in the conspiracy, is the evidence of Daniel J. Thomas, who
says that several weeks before the assassination he met Mudd at the house
of his neighbor, Downing, and there, in the course of conversation, Mudd
said Claughingly^ that ^'Lincoln and his whole Cabinet, and every Union
•man in the State of Maryland, would be killed within six weeks." Witness
said he wrote to Col. John C. Holland, provost marshal of that district, at
EUicott's Mills, before the assassination, advising him of Mudd's statement.
But Col. Holland says he got a letter from witness about that time, and
there was not a word of the statement in it, nor a reference to the accused,
nor to any statement by anybody about killing anybody. Thomas says he
'told his brother. Dr. Thomas, of the declaration before the President was
killed, but his brother says emphatically he did not tell him until after
Mudd's arrest — the boot found at Mudd's house having been named in the
same conversation. Thomas says he told Mr. Downing about it before the
assassination, but Downing says emphatically he did not tell him a word
about it at any time. Downing also says that he himself was present every
'moment of the time Mudd and Thomas were together at his house, and
heard every word said by either of them, and Mudd did not make that
statement, nor refer to the President, or the Cabinet, or the Union men of
Maryland, at all, nor say a word about anybody being killed. He says
however, Mudd, when Thomas was bragging and lying about being a pro-
vost marshal, did tell him, " he was a jack " — which insult was doubtless
an incentive to the invention of the calumny. But it was not the only in-
centive. Thomas knew that if that lie could be palmed off on the Judge
3

Advocate and the Court for truth, it might lead to Mudd^s arrest aiiri con-
viction as one of the conspirators. He had, on Tuesday, before Mudd's-
arrest, and before this lie was coined and circulated, been posting hand-
bills, containing the order of the War Department offering liberal rewards
for any information leading to the arrest of Booth's accomplices, and he-
then, doubtless, conceived the idea of at once getting reward in money
from the Government for his information, and revenge on Mudd for his in-
sult in Downing's house.

That he gave that evidence corruptly is shown by Wm. Watson, John
1. Richardson, and Benjamin Naylor, who say that Thomas, after testify-
ing against Mudd, went to see them., and said, that "-if Dr. Mudd loas con-
victed upon his testimony, he would then have given conclusive evidence that he
gave the information that led to the detection cf the conspirator f'' '■'■He then
ashed Mr. Benjamin J. Naylor if he did not mention to him and Gibbons, be-
fore the killing of the President, the language that Dr. Mudd had used. Mr.
Naylor said that he had never done ii, before or after ! " ^'■'He said his por-
tion of the reward ought to 6e $10,000 — and asJced meCWatson) if l^ would not,
as the best loyal man in Prince George'' s county, give him a certificate of how
much he ought to be entitled to." The testimony of Richards, and of Eli J.
Watson, coupled with Thomas's testimony in denial of these statements,
fill the record of infamy of this false witness.

To accumulate evidence that Thomas's statement is utterly unreliable,
the defence brought over twenty of his neighbors, who testified that he-
could not be believed on oath^ — among whom were Naylor,. Robey, Richards,
Orme, Joseph. Waters, John Waters, J. F. Watson, Eli Watson, Smith,
Baden, Dickens, Hawkins, Monroe, and others, of undisputed loyalty,
nearly all of whom had known him. from boyhood. His brother, Dr..
Thomas, testifies tliat he is at times deranged; and Dr. Geo. Mudd says
he is mentally and morally insane. And, although Thomas's evidence was
the most important in the case against Dr. Mudd, the Judge Advocate has
not seriously attempted to sustain him — has not tried to show that he ever
told OP hinted at this story to anybody before the assassination — and
has not asked one of the scores of witnesses for the prosecution in attend-
ance from Thomas's neighborhood a question as to his reputation for ve-
racity— except Wm. Watson, who said it was decidedly bad. A feeble at-
tempt was made to snstain him, by endeavoring to show that he was a
zealous supporter of the Administration, and that, therefore, the general
Toice of his community was against him. But we showed he was a rebel
at the beginning of the war, and an opponent of the Administration at the
last election — and then the Judge Advocate dropped him !

This is all the evidence of every act or word done or said by anybody,,
prior to the assassination, tending in the remotest degree to connect Mudd

with the conspiracy. It consists, in large part, of the testimo"ny of the
£ve negroes, as to the Confederate officers frequenting Mudd's house last
year and the year before — two of them, Milo and Mary Sims, as to Surratt's
visiting his house last year — of Evans as to Mudd's going to Surratt's house
last winter — of Evans and Norton as to Mudd being here on tlie 3d of March
— of Weichmaun as to the interview between Mudd, Booth, and Surratt,
-about the middle of January — and of Thomas as to Mudd's prediction of
tthe assassination in March. I venture to say, that rarely in the annals of
criminal trials has the life of an accused been assailed by such an array o^
false testimony as is exhibited in the evidence of these nine witnesses — and
larely has it been the good fortune of an innocent man, arraigned and on
trial for his life, to so confute and overwhelra his accusers. I feel it would
be a waste of time and an imputation on the intelligence of the Court to
delay it with fuller discussion of the evidence of these witnesses — and feel
•sure it will cast their testimony from its deliberations, or recollect it only
to reflect haw foully and mistakenly the accused has been assailed.

Having now discussed all the evidence adduced that calls for discussion,
or may by possibility be relied on as showing Mudd's aoquaintance with
Booth, or connection with the conspiracy, and having, I think, shown that
Ihere is no reliable evidence that he ever met Booth before the assassina-
tion but once on Sunday, and once the day following, in November last, I
will proceed to a consideration of the testimony relied on to show that he
knowingly aided the escape of the assassin.

First. Why did Booth go to Dr. Mudd's and stop there from daybreak
till near sundown on his flight ? I answer, because he had a broken leg
and needed a physician to set it. And as t© the length of the stay, the
wonder is he was able to ride off on horseback with his broken and swoUeB
limb at all — not that he took ten hours' rest. The Court will observe, from
the map in evidence, that Booth, taking Surrattsville in his route to Pope's
Creek, opposite Matthias Point, where he crossed the Potomac, CCaptain
Doherty, j travelled at least eight or ten miles out of his way, to go, after
leaving Surrattsville, by Dr. Mudd's. ("See Dyer's testimony} Would he
have gone that far out of his route to the Potomac crossing if he had not
broken his leg i Or was it part of his plan to break it ? Obviously, he
could not in advance have planned to escape by crossing the Putuxent, nor
to evade his pursTiers by lying concealed in Charles county, within six
hours' ride of Washington. He must, as a sane man, have contemplated
and planned escape across the Potomac into Virginia, and thence South
or abroad ; and it could never have been part either of the plan of abduc-
tion, or of that of assassination to go the circuitous route to a crossing of
the Potomac by Bryantown or Dr. Miidd's. So that the fact of Booth going
to the house of the accused, and stopping to get his leg set and to rest,
•does not necessarily lead to any conclusion unfavorable to the accused.

Booth got there^ with Herold, about daybreak, CFrank WashiBgton.}
He usually wore a moustache, fsee photograph, J, but he then wore heavy
whiskers, and had his face muffled in a shawl, so as to disguise him. The-
disguise was kept tip all day. fCol. Wells. J He was taken to a lounge in the
hall, and then to a front room up stairs, where- the broken bone was set,
where a fee of $2.5 was paid for the service, and where, it is probable, he
slept most of the day. They represented that the leg had been broken by
a fall of the horse ; that they had come from Bryantown, and were going
to Parson Wilmer's. After breakfast accused went to his field to work.
Herold, whom Mudd had never met, (Col. Wells, ^ cam« down to break-
fast and dinner with the family, and after dinner he and Mudd went oS to-
gether to the house of Mudd's father, to get a family carriage to take the
wounded man to the house of Parson Wilmer, five miles off, at Piney Chap-
el. fLovett Wells. ^ Now, can any man suppose for antoment that Mudd,
at this time, had the slightest susijicion or intimation of the awful tragedy
of the night before ? Could he, knowing or suspecting the crime or the
criminal, have thus recklessly given himself up to arrest and trial, by
publicly aiding the escape o^f the assassin? Could he have been ready to
expose his old father to suspicion by thus borrowing his carriage, whicb
would have been noticed by every man, woman and child on the road, to
carry off the assassin T Impossible ! I need nothing more of the Court
than its consideration of this fact,, to clear the accused of all suspicion
of having, up to that time, known or suspected that a crime had beeni
committed by the crippled stranger, whom he was thus openly and kindly
seeking to aid.

<But the carriag':! could not be got, and Mudd and Herold rode ofl' towards-
Bryaiitown to get one there. Colonel Wells thinks the accused told him
that Herold turned back when getting one and a half miles from the elder
Mudd's house, saying he could take his friend off on horseback. Betty
Briscoe and Eleanor Bloyce, however, say they saw a man riding towards
Bryantown with the accused, who turned back at the bridge at the edge
of the town.

Mudd made some purchases of calico and other articles, and heard of the
assassination. fBean.} It was not generally known then among the citizens
who was the assassin. CBean, Roby, Trotter, B. W. Gardiner, M. L. Mc-
Pherson, John McPherson. j In fact it was not generally known with cer-
tainty at the theatre, or in Washington, Friday night, whether Booth was
the murderer. ("Gobrlght.^ In Bryantown it was commonly understood
that Boyle, a noted desperado of that region, who assassinated Captain
Watkins last fall, was one of the assassins. ("M. L. McPherson, Bean, Trot-
ter, Roby.^ It was not known that the murderer had been tracked into-
that neighborhood. ("Bean, Dr. George Mudd.^ Lieutenant Dana told Dr.
George Mudd, Saturday afternoon, that Boyle assassinated Mr. Seward

and Booth the President, but that he thought Booth had not then got out
of Washington. Even next day CSundayJ it was reported there tliat it
was Edivin Bootli who killed the President.

The accused left Bryantown about four o'clock to return home. Betty
Briscoe says the same man who had turned back at the bridge stopped in.
the edge of a branch, which the road crosses a couple of hundred yards
from the bridge, until Mudd returned from town, and then they rode off
together across the branch, "up the road." But Bouz says he saw Mudd
a couple of hundred yards beyond that crossing leisurely going through
the farm Booz lives on, by a near-cut which he usually travelled, alone ;
and that he would himself have probably noticed tue man at the crossing,
which was in full view of where he was, had he been waiting there ; and
would have certainly noticed him had he been with Mudd travelling the
main road, when Mudd turned into the cut-off through the farm — feut he
saw no one but the accused. Susan Stewart also saw Mudd in the by-road
returning home alone, and did not see any man going the main road, which
was in full view. I call the attention of the Court to the plat by which
the branch and these roads are shown, and to the fact that there is no road
turning off from the main road between Booz's place and Bryantown, ex-
cept the side road by Booz's house. If further refutation of the testimony
of Betty Briscoe on this point be required, it is found in the evidence of
Primus Johnson, who saw Herold pass the elder Mudd's in the main road,
going towards the house of the accused, and sometime after that, himself
caught a horse in the pasture, and rode towards Bryantown, and met and
passed Dr. Mudd coming leisurely from Bryantown, alone, at Booz's farm ;
and that from the time he saw Herold until he met and passed Mudd was
full an hour and a half. And in the evidence of John Acton, who was on
the roadside, three miles from Bryantown, when Herold passed, at between
three and four o'clock, and who remained there an hour, and Dr. Mudd
did not go by in that time. Acton also says, that, between the time Herold
and Mudd went towards Bryantown and the time Herold returned alone,
was but three-quarters of an hour. From the fact that Herold could not
have ridden to the bridge and back in that time, ("six milps,J) it seems
highly probable that he did not go to the bridge, but turned back about
where Colonel Wells thinks Mudd said he did. But however that may be
is not important, as it is certain from the evidence of these four witnesses
that Herold did not wait at the branch for Mudd's return from Bryantown.

As Mudd rode home, he turned out of his way to see his neighbor,
Hardy, fwho lives half-way between the house of the accused and Bryan-
town, j about some rail-timber he had engaged there. The house is not
in view of the road, a clump of pines intervening. He told Hardy and
Farrell of the news. Hardy says :

" He said to me that there was terrible news now, that the President and

Mr. Seward and Ms son had been assassinated the evening before. Some-
thing was said in that connection about Boyle ("the man who is said to
have killed Captain WatkinsJ assassinating Mr. Seward. I remember that
Booth's name was mentioned in the same connection, and I asked him if
Booth was the man who had been down there. His reply was that he did
not know whether it was that man or one of his brothers ; he understood
that he had some brothers. That ended the conversation, except that he
he said it was one of the most terrible calamities that could have hef alien the
country at this time.

"Q. Did you say that it was understood or said that Booth was the
assassin of the President ? A. There was some such remark made, but I
do not exactly remember the remark."

They both say he seemed heartily sorry for the calamity, and that he
said he had just come from Bryantown, and heard the news there. Hardy
says he stayed there only about ten minutes, and left just about sundown.
Farrell corroborates H ardy as to the conversation, except that he reports
nothing as to Boyle's name being mentioned ; but he says the conversation
was going on when he joined Hardy and Mudd. He says the house is less
than a quarter of a mile off the road, and that accused stayed there about
fifteen minutes.

Now, I ask the Court, what is there up to this point to indicate that
Mudd knew or had any suspicion that the broken-legged man was impli-
catt-d in the crime ? If there is anything in proof showing that fact, I fail
to find it. True, he had met Booth twice in November — five months before.
Had seen him that dark, cloudy morning, at day-break, faint with fatigue
and suffering, muflied in his shawl and disguised in a heavy beard ; had
ministered to him in the dim light of a candle, whose rays struggled with
the dull beams of the opening day; had seen him, perhaps, sleeping in the
darkened chamber, his moustache then shaved ofi', his beard still on, his
effort at concealment still maintained. CWells.J And here let me remind
the Court, that there is nothing in the evidence showing that Booth spoke
a ivord — but where either of the men are referred to as saying anything,
"the smaller man" was the spokesman. Let it be remembered too that
Booth was an actor, accustomed by years of professional practice to disguise
his person, his features, and his tones — so that if Mudd had been an inti-
mate associate, instead of a mere casual acquaintance, it would have been
easy for Booth to maintain a disguise even when subjected to close scru-
tiny under circumstances favorable to recognition. If the Court will also
consider with what delicacy a physician and a gentleman would naturally re-
frain from an obtrusive scrutiny of a patient coming to his house under
the circumstances, they will appreciate how easy it was for Booth to avoid
recognition, and how probable that Mudd had no suspicion who his patient
was. Had lie recognized Booth before he went to Bryantown, and heajrd

27 "■■"^

there that name connected with the ' ' terrible calamity, ' ' would he have
jogged quietly home, stopping to chat with Booz, to look after his rail-
timber, to talk of the names of the assassins with his neighbors ? Unless
the Court start out with the hypothesis of guilt, and substitute unsuppor-
ted suspicion for proof — which I respect them too highly to fear for a mo-
ment they will do — they cannot charge him with a recognition of Booth
before he returned home from Bryantown.

Hardy says it was about sundown when Mudd left ; Farrell says about
five o'clock. He had two miles to ride home. It must have been sundowu
when he g»t home, and the men had just gone. Betty Washington says
that three or four minutes after Herold ("the last of the twoj disappeared
towards the swamp, Mudd came through the hall to the kitchen, and was
then first seen by her after his return from Bryantown. The other ser-
vants had not come from the field when the men started — and we are
therefore left to that one witness to show that the statement of Simon
Gavacan, one of the detectives, who says ">^e thinks" Mudd said he went
with them part of the way, is incorrect. It is inconsistent, too, with
Mudd's statement to Col. Wells on the subject, which is as follows : "The
Doctor said that as he came back to the house he saw the person that he
afterwards supposed to be Herold passiug to the left of the house, and to-
wards the barn or the stable ; that he did not see the other person at all after
he left him at the house, which was about one o'clock, I think." This
statement, and that of Betty Washington, last above quoted, coincide with
and strengthen each other.

It is true Dr. Mudd did say to all who asked him that he had shown
Herold the way to Parson Wilmer's by the short route, bat this was in the
morning, soon after the parties reached the house, and before the idea of the
carriage appears to have been suggested. This is shown by the statement
of Colonel Wells, who says that the accused, in the same conversation in
whir.h he said that Booth and Herold had just gone from the house as he came
tip, told him that ; "Herold, the younger of them, asked him the direct
route to Piney Chapel, Dr. Wilmer's, saying that he was acquainted with
Dr. Wilmer." He described the main travelled road, which leads to the
right of his house, and was then asked if there was not a shorter or nearer
road. He said, "Yes, there is a road across the swamp that is about a
mile nearer, I think ;" he said it was five miles from his house to Piney
Chapel by the direct road and four miles by the marsh, and undertook to
give him ("as he saidj) a description by which they could go by the nearer
route. He said that the directions were these : they were to pass down
by his barn, inclining to the left, and then pass straight forward in a new
direction across the marsh, and that on passing across the marsh they
would come to a hill ; keeping over the hill, they would come in sight of
the roof of a barn, and letting down one or two fences they would reach
the direct road."

The accused meant, of course, that this inqtiiry and explanation occurred
before his return to the house from Bryantown— and so Col. Wells under-
stood him, for he so in effect says. The statement of the accused to Dr.
Geo. Mudd, the next day alter Booth left, is to the same effect. He said :
" That these parties stated that they came from Bryantown, and were in-
quiring the way to the Rev. Dr. Wilmer's " — thus putting their inquiry
for the route to Parsan Wilmer's in direct connection with their early ex-
planation as to whence they came.

I have no doubt that Gavacan, the detective, recollects an inference which
he, and perhaps also his associate detective, Williams, drew from Dr. Mudd
saying that he had shown Herold the route to Parson Wilmer's, that he
showed it as Booth and Herold were leaving. But the inferences of detec-
tives, under the strong stimulus of prosijective rewards, are inferences
generally of guilt ; and that these gentlemen were not free from the weak-
nesses of their profession, aud that they grossly misrepresented Dr. Mudd
in other important statements, will presently be shown to the satisfaction
of the Court.

Now, if Mudd did not know, when he talked with Hardy about the as-
sassination, and spoke of Booth in connection with it, that the assassin was
at his house — as I think the evidence shows he did not — then when did he
first suspect it ? Col. Wells says his inference was, from something the ac-
cused said, that he suspected the crippled man to be Booth before he left
the premises. The evidence not only shows that when Mudd returned
Booth had gone out of sight, but it also shows what fact it was that, added
to the undue excitement of the strangers, and to the fact that the crippled
man shaved off his moustache, thoroughly aroused his suspicion. It was the
fact that his ivife said to him, after they left, that as the crippled man came doivn to
go his false whiskers became detached from his face. CLieut. Lovett.J When
she told him this, and what he said or proposed to do, was not shown by
the prosecution, and, by the rules of evidence, could not be by the defence.
But that was a fact which could not probably have been communicated to
Mudd by his wife until Booth had gone.

In the evidence adduced as to Mudd's subsequent conduct and state-
ments, I need only call the attention of the Court to two points, for in it
there is nothing else against him : 1st. He did not tell on Tuesday that the
boot was there, far down in ihe leg of which was found by the officers "J.
Wilkes," written in pale ink. I answer, the boot was not found by his
wife until several days after the assassin left, and was then found in sweep-
ing under the bed. CHardy.J We have every reason to suppose it was
not found tintil after Tuesday, for the accused, on Friday, before a ques-
tion was asked or a word communicated to him, told of the boot himself, and
had it produced^ and said, in presence of his wite, it was found by her after
the officers were there before. ("Hardy. )

2d. Of tlie three detectives who went to the house of accused Tuesday,
Williams says : Accused denied throughout that twe men had be«n there ; yet
hesaysoncross-examiaation, that accused, in "^he same conversation, pointed
■out the route the men had taken towards Wilmer's. Ganacm said he at
first denied two men. had passed there, and then admitted it. Lloyd says
Jie denied it from beginning to end, oh Tuesday. But Lieut. Lovei', wlio
went with and in command of these detectives, speaking of this interview
•on Tuesday, says : " Wejirst asked luliether there had been any strangers at
his house, and he said there ware." The three detectives are manifestly
mistaken ^ either from infirmity of memory, or from some less pardonable
cause, they have failed to recol ect and truthfully render what Dr. Muid
did say en that subject.

The commentators upon th« law of evidence give a ciutioi whii-h it
may be well for the Court to ob.-erve. They admonish us how easy it is
for a corrupt witness to falsify a conversation of a person aojusel, and as
the accused cannot be heard, how ditS.;ult, if mt impo.-^sible, contradiction
is. How easy for an honest witness to misunderstand, or in repealing
what was said to substiuite his own language or inference tor the language
which was really used, and thus change its whole meaning and import.
In no case can the caution be more pertinent than in this. The very
phrenzy «.f madness ruled the hour. Reason was swallowed up in pitri-
■otic passiou, and a feverish and intense excitement prevailed most unfa-
vorable to a calm, correct hearing and faithful repetition of what was sair],
•especially by the suspected. Again, and again, and again the accused was
catechized by detectives, each of whom was vieing with the other as to
which should make the most important discoveries, and each mxkiug the
examination with a preconceived opinion of guilt, and witli an eager desire,
if not determination, to find in what might be said the proofs of guilt.
Again, the witnesses against the accused have testified under the strong
stimulus of promised reward for information leading to arrests and fol-
lowed by convictions. ("See order of Secretary of War.J At anytime and
an any community an advertisement of rewards to informers would be
likely to be responded to — at a time, and on an occasion like this, it
WQuld be a miracle if it failed of effect. In view of these considerations,
the Court cannot be too vigilant in its scrutiny of the evidonce of these
detectives, or too circumspect in adjusting the influence to be given to it.
No more efi'ective refutation of this statement, that Mudd denied on
Tuesday that two strangers had been at his house, can be given, than to
ask how came Lieut. Lovett and the detectives at Dr. Mudd's ? Thay did
not scent out the track for themselves. They were at Bryautown on Sat-
urday and were at fault, and had they been let alone would probably have
remained at fault, and not have gone to Dr. Mudd's. By whom and when
was the information given which brought them there ? Tlie next morn-
4

ing after the startling news of the assassination reached hiim, the acciised
went to Dr. George Mudd, a man of spotless integrity and veracity, and of
loyalty unswerving through all the perilous and distressing scenes of the-
border war, and fully informed him of all th-at had occurred — the arrival
of the two strangers, the time and circumstances under which they came,
what he had done for them, the suspicions he entertained, when they de-
parted, and what route they had taken ; and requested him, on his be-
half and in his name, to communicate this- information to th« military au-
thorities on his return that day to Bryantown. Dr. George Mudd did
m-ake the communication as requested, on Monday morning, to Lieut. Dana,,
and further informed him. of Dr. Saml. Mudd' s desire to be sent for for any
further information which it might be in his powe^r to give. In conse-
quence of this, and of this alone, Lieut. Lovett and the detectives did,.
on Tuesday, go to tlie house of the accused, accompanied by Dr. George
Mudd, who prefaced his introduction by informing the accused that, in'
accordance with his request, he had brought Lieut. Lovett and the detec-
tives to confer with him in. reference to the strangers who had bee-i at h's
house Saturday. Of these facts- there is no doubt or di&pute. They
stand too prominently upon the record to be ignored or evaded. But for>
this information the detectives woald not have been at the house- of the
accused at all. They came at his request, and when they came it i.s ab-
surd and idle to- say that he denied, almost m the presence of Dr. George
Mudd, who- had been his messenger, and was then in the house, that the
two strangers had been there. On the contrary, the evidence shows he
imparted all he knew, and pointed oiat the rouite which the strangers took
when they left — bu-t which Lieiit. Lovett and tlie detectives did not at once
pursue, because they chose to consider his statement uncandid, and in-
tended to put them, upon a false scent. Indeed, so accurate was the des-
cription givt^n by the accused to Lieut. Lovett, Tuesday, of the persons
who had been at his house, that the Lieutenant, says he wus satisfied, from
Mudd^s description, they were Booth and Herold.

It was in great part by reason of Dr. Mudd's having delayed from Satur-
day night until Sunday noon to send to the authorities at Bi-yantowu in-
formation as to the suspected persons who had been at his hO'ttse, that he
was arrested and charged; as a conspirator ; and yet I assert this recoid
shows he moved more promptly in communicating his Int'ormratien than
they did in acting on it. Bis message was communicated to Lieut. Dana
Monday morning. Tuesday^, Lieut. Lovett and the detectives came,, and
that officer got such information from Dr. Mudd as convinced h\xa the sus-
pected persons were Booth and Herold, and yet it was not until' Col. Wells
.came, on Saturday, that au energetic effort was made to find the ron-te of
the assassin. Oil that day. Dr. Miudd himself went with that ©fflcer, and'
followed the tracks on the route mddcated bajQud the marsh iuto a pieao-

•of plottgTtied ground, where the tracks were lost. But Col. Wells had got
the general direction, and it was in consequence of the information sent
"by the accused to the authorities the day after Booth left his house that
Sie vvas tracked to the Potomac.

But th« evidence does not show that Dr. Mudd delayed at all in commu-
nicating his information, for it does not show when his wife told him of the
fa'se whisker of the crippled man. But, admit she told him on Saturday
evening, as soon as the men left. It was foiar miles to Bryantown, and his
wife may have feared to be left alone that night. Boyle, who haunted
that neighborhood, was understood by Dr. Mudd to have been one of the
assassins, (Hardyjj and may not his or his wife's fears of the vengeance
-O'' that desperado have prevented him communicating his suspicions direct
and in pers"n to the officer at Bryantown ? He told Dr, Greorge Mudd nexfc
■day, when asking him to go to the authorities with the information, to
caution" them not to let it be publicly known that he had volunteered the
statement, lest he might be assassinated in revenge for having done it.

Having thus presented and discussed somewhat in detail the testimony
in this case, I now ask the indulgence ©f the Court while I briefly review
-some of its leading features.

Booth and Mw.dd met first in November last at church, near Bryantown,
-casually, and but for a few minutes. Their conversation was in presence
of many others, including men of un<juestioned loyalty. Next morning,
Booth left Dr. Queen's, rode by Mudd's, talked of buying his farm, go'thim
to show him over to Gardiner's, a quarter of a mile off, where he bought a
.horse, Mudd manifesting no interest in the purchase. They rode away to-
gether towards Mudd's house, and towards Bryantown, where Gardiner
found Booth next morning at the village hotel. Booth was again at Dr,
Queen's in the middle of December. But the evidence shows that he did
not go into Mudd's neighborhood, or seek or see him. So far as we dare
speak from the evidence — and we should dare speak from nothing else —
that is all the intercourse between Mudd and Booth in that neighborhood
before the assassination.

What was there in that to attract attention or excite remark towards
Mudd m-ore than to Dr. Queen or Mr. Gardiner, or any other gentleman ia
Charles county, to whom Booth had been introduced, and with whom he
had conv-ersed ? All that is shown to have passed between them was per-
fectly natural and harmless, and nothing is to be presumed which was not
shown. True, they miyht htxx-e talked of and plotted assassination ; but
did they? Is there, in the intercourse which had thus far occurred, any
incident from which such a deduction could be drawn, orwhich would jus-
tify a sut^picion that any such thing was thought of or hinted at ? Nor did
th«y ever meet again anywhere before the assassination, unless the testi-

monj of "Weiclimann fs to be aceepted as true, wtiicli, upon tliis. poirrf^
at least, is quite unworthy of credence. He swears to having met Dr,
Mud.:l and Booth in the City of VVashingto-n, about the middle of Janu-
ary— ;eitainly after the halidajs. But it is in pFoof by many witoesseSy
who cauDot be mistaken, bave not been impeasclied, and wlio unquestiona-
bly stated the truth, that Dr. Mudd was froin hon e but one night from the
23d of Dee-mber to the 23d ef -• arch, and that nigkt at a party in his owit
neighborhood. If this be so, and there is no reason tod&ubt it, then Weich-
mann's statement cannot be true. The mildest thing that ca^n be said of
liini, as of Norton, is, that he was mistaken in the man. That which was-
attemytt^'d to be shown by this contradicted witness (Weiclimann) was, that
Dr. Mudd aitd Booth, who were aloiost strangers to each other, met Sur-
ratt, to whom Booth was unknown, at the National Hotel, and within half
an hour alter tiie meeting plotted the assassination of the President, h?s
Cabinet, th« Vice President, aixl General Grant — all this in Washington,
and in the presence of a man whom one of the supposed conspirators knew
to be an employee of the War Departnient. and had reason to believe was
a Government detective ! It is monstrous to believe any such thing oc-
curred. It outrages all that we have learned of the philofophy of human
nature, all that we know of the motives and principles of human actions.
And yet, if Mudd was not then and there inducted into the plot, he never
was. He never saw Booth again until after the assassination, and never
saw any af the other conspirators at all. Twice, then, and twice only —
unless the Court shall accept tne testimony of Weichman against the clear
proofs of an alibi, and then only three times — he and Booth had met. None
of these meetings occurred later than the 15th of January. They are shown
to have been accidental and hrief. The parties had but little conversation,
and po-rtions of that little have been repeated to the Court. So far as it has
been disclosed, it was as innocent as the prattle of children, and not a word
was breathed that can be tortured into criminality — not a word or an act
that betokens malign purposes. Against how many scores of loyal per-
sons, even in this community, may stronger evidence be adduced than
against Mudd, if the mere fact of meeting and conversing with Booth is to
be accepted as evidence of guilt ? Booth was a guest at the National Ho-
tel— intelligent, agreeable, of attractive manne?, with no known blemish
on his character as a man or a citiaen. He had the entree of the drawing-
rooms, and mingled freely with the throngs that assembled there. Hia
society, so far from being shunned, was cotirted ; and the fairest ladies of
the land, the daughters of distinguished statesmen and patriots, deemed it
no disparagement to them to accept his escort and attentions. It is not
extravagant to say, that hundreds of true, Union-loving, loyal people in
this and in other cities, were on terms of cordial and intimate association
with him. And why should they not have been ? He was tinder no sus-

picion. They diidi vol shun him. Why should Mudd ? And why shall
what was innocent in them be held proof of gnilt in him ? Let it be re-
membered in this connection, that Dr. JMudd's house was searched ami his
pajiers seized ; that Surratt's house was seized and searched ; that all the
eflects of Booth, Atzerodt, Ajnold, Herold, Spangler, and Mrs. Surratt, that
could be found, were seized and examined ; and that among them all not
a letter, a note, a memorandum, not the scrape of a pen by any person or
in any form, has been found implicating Dr. Mudd. Let it further be re-
membered, that all these persons have been subjected to repeated exaiui-
nations, under appalling circumstances, by various officials of the Govern-
ment, eager to catch the faintest intimation of Mudd's complicity, and that
not one of them has mentioned or Ifinted at his name. Let it also be re-
membered, that anonymous letters have been picked up in railroad-cars,
found in pigeon-holes at hotels, rescued from the waves, and that the con-
tinent has been traversed and the ocean vexed in search of proofs of the
conspiracy, its instigators, leaders, and abettors, and that in all this writ-
ten and oral testimony there is not a word making the remotest allusion to
Dr. Mudd. The probabilities are as a thousand to one that he never knew,
or heard, or imagined, of a purpose, much less plotted in a conspiracy,
either to capture or to assassinate the Piesident. There is not only a fail-
ure to show his connection affirmatively, but, if the rules of law be revers-
ed, and guilt pre umed until innocence be shown, then, 1 say, he has car-
ried his proofs in negation of complicity to a point as near demonstration
as it is possible for circumstantial evidence to reach. I oi»ce more concede,
that Cif the Court accept Weichmann's statement^ it is pasaihU he may
have talked treason and plotted assassination with Booth and Surratt, but
it is indefinitely removed from the probable ; and neither liberty nor life is
to be forfeited upon either probabilities or possibilities. I cannot bring
myself to fear that this Commission will sanction what, in my judgment,
would be so shocking and indefensible a conclusion.

If he and Booth had, at the alleged meeting in .January, confederated for
the perpetration of one of the most stupendous and startling crimes in
the annals of human depravity, who can doubt that frequent meetings and
consultations would thereafter have occurred, and that they would have
increased in frequency the as time for the consumm'Btion of the atrocious
plot approached ? Yet, though within six hours' ride of each other, they
had no meetings, no consultations, no intercourse, no communication, no
concert, but were in total ignorance of each other's movements and pur-
poses. Mudd was here the 23d of March, but he was not here for the pur-
pose of seeing Booth, nor did he see him. He made no inquiry for him ;
did not call at his hotel ; saw none of his associates ; did no'^speak of him ;
did not, so far as appears, even think of him. On the 11th of April, only
three days before the frightful tragedy was enacted, Mudd was at Giesboro,

in sight of Washington. Booth was then at the National Hotel ; and if
Mudd was leagued with him, that was the time of all others, from the con-
ception to tlie consummation of tlie deed, wlien he would have seen and
couferied with him. If Aludd was a conspirator, he knew of Booth's pres-
ence here then ; yet he did not come to the cit>' — did not inquire for
Booth, see him, liold comiuunioation with him, learn whether he was
in Washington or Bobtou, Nassau or London. Three days only be-
fore the frightful tragedy — three days before the world was astounded by
its enactment ! Imagine, if you can — if he Was a conspirator — what a tu-
mult of thought and emotion must have agitated him then — what doubts
and misgivings — whst faltering and rallying of res(dution — what invoca-
tions to "stop up the access and passage to remorse" — and tlien ask your
own hearts and judgments if it is natural, or possible, that, at such a mo-
ment and under such circumstances, he could quietly have transacted the
business that brought him to Giesboro, then turn his back upon Washing-
ton, inditFerent to the failure or success of the events with which his own
life, the happiness of his family, and all that was dear to him on earth,
were bound up? If a conspirator, he knew what had been, and what was
to be, done. He knew that the hour for the bloody business was at hand,
and that everything depended upon the secrecy and success of its execu-
tion. Yet he was indiflerent. He sought no interview with his supposed
confederates — gave them no counsel or assistance — took no precautions for
security — gave no signs of agitation or concern — but, in sight of the place
and the agents selected for the enactment of the horrible deeds, turned his
back upon them all, with an indifference that bordered upon idiocy, quietly
trafficked at Giesboro, and returned to the seclurion of his family and farm.
You know, gentlemen, that this is impossible. You know that it could
not have happened without outraging every law of human nature and hu-
man action. You know that at such an hour his soul would have been
shaken with the maddest storm and tempest of passion, and that no mere
business affair on earth could have seduced his thoughts for a moment
from the savage slaughter he had in hand. It would have engrossed all
his thoughts, and shaped all his actions. No one can, in the strong light
of the evidence, believe he was a conspirator.

I then confidently conclude that Dr. Mudd cannot be convicted as a
principal in the felony. He did not participate in its commission, and was
more than thirty miles distant from the scene when it was committed. He
cannot be convicted as an accesso'y before the fact, for the evidf-nce fails
to show that he had any knowledge or suspicion of an intention to commit
it. If, then, he is to be held responsible at all, it is an accessory after the
fact. Does the evidence implicate him in that character ? What is an
accessory aftet the fact ?

An accessory after the fact is when a person, knowing a felony to have

been committed, receives, relieves, comforts, or assists him whom he knows
to be the felon. He must know that the felon is guilty to make him an
accessory. (T Chit. Criin Law, 2t>4.J

Any assistance given to him to hinder his being apprehended, tried, or
punished, is sufficient to convict the offender — as lending him a horse to
escape his pursuers ; but the assistance or support must be given in order
to favor an illegal escape. ("1 Chit. Crim. Law, 265. J If a man receives,
hacbars, or otherwise assists to elude justice, one whom he knows to be guiUij
of felony, he becomes thereby an accessory after the fact in the felony. CI
Bishop's Crim. Law, 487. j Obviously, a man to be an accessory after the
fact must be aware of the guilt of his principal ; and, therefore, one canno'
become an accessory by helping to escape a prisoner convicted of felony,
unless he has notice of the conviction, or at least of the felony committed. ("1
Bishop's Crim. Law, 488. J The charge against an accessory consists of two
pai'ts : First, of the felonious situation of the principal ; and, secondly, of the
guilty knowledge and couduct of the accessory. It will thus be seen that
knowledge of ixe crime committed, and of the guilt of the principal who is <iidtd,
and aid aLd assistance ajter acquiring that knowledge, are all necessary to
charge one as accessory after the fact.

Now, let us apply the facts to the law, and see whether Dr. Mudd falls
within the rule. On the morning after the assassination, about daybreak,
Booth arrived at his house. Ue did not find the doctor on watch for
him, as a guilty accomplice, expecting his arrival, would have been, but'
he and all his household were in profound sleep. Booth came with a
broken leg, and his companion, Herold, reported that it had happened by
the fill of his horse, and that they had coiue from Bryantown, and were
going to Parson Wilmer's. The doctor rose from his bed, assisted Hooth into
the house, laid him upon a sofa, took him up stairs to a bed, set the trac^
tured bone, sent him a razor to shave himself, permitted him to remain there
to sleep and rest, and had a pair of rude crutches improvised for his use. For
all tliis he received the ordinary compensation for services rendered to stran
gers. He then went to his field to work. After dinner, while the day was
still dark, and Bootu still resting disguised in his chamber, Mudd left the
house with Ht-rold. Kven thougii he had known of the assassination, and that
his patient was the assassin, none of these acts of assistance would have made
him an accessory after the fact, "//"a person supply a felon with food, or
other necessaries for his sustenance, or professionally attend him sick or wounded,
though he knoiv him to be a felon, these acts will not be sufficient to make a party
an accessory after thefact.''^ ("Wharton's American Criminal Law, p. I'i.)
But he did not know, and had no reason to suspect, that his patient was a
fugitive murderer. The most zealous advocate would not venture to assert
that the evidence warrants such conclusion ; much less will it be assumed
by one acting under the solemn responsibilities of judge. Down, then, tQ

.36

the time Mudd left liorae vtith Herold, after dinner, the evidence affords no
pretext for asserting he was an accessory after the fact.

But if he TCas not then an accessory, he never was. It is shown -that
H<'rol I tiiriiei] Vmck on the way to Bryantown, and when Mudd returned
he an l^*)tli li:hl uo it And tlie evidence does not show tliat he suspected
the'.ii fl^ hiviti'; Ih'i-u ;. uilty of any wrong, until his wife told him, after
tiiey had >;oiie, th it th.^ wh'skers of the crippled man fell off as he came
down stairs to go. Tn;e, Bi)oih was guilty, and Mudd had sliown his com-
p.uuon the route to VVilni!-r's ; which was the only thing done by Mudd,
from first to last, that - ould have implicated him, even had he from thejirst
known the crime and tne criminal. But when he did that, he did not know
either ; for he did not know the crime until he went to Bryantown, nor
have even the least suspicion of the criminal, until after Booth had gone.
I have read you the law — the scienter must be shown. Things not appear-
ing and not existing stand be.fore the law in the same category ; and the
guilty knowledge not appearing in evidence, in the eye of the law it does
not exist. In this case it is not only not shown, but is negatived by the
evidence. The conclusion most unfavorable to Mudd which the evidence
can possibly justify is, that, having had his suspicions thoroughly aroused
Saturday night, he delayed until Sunday noon to communicate them to the
authorities. '■'■ If A knows B hath committed a felonij, hut doth not discover
it, this doth not make A an accessory after the fact. ^^ fist Hale's Pleas of the
Crown, 618.) " Merely sujferini/ a felon to escape will not charge the party so
doing — such amounting to a mere o7nission.^' CWhar. Am. Crim. Law, Td.)

Can, then. Dr. Mudd be convicted as a conspirator, or an accessory
before or after the fact, in the assassination ? If this tribunal is to be gov-
erned in its findings by the just and time-honored rules of law, lie cannot;
if by some edict higher than constitutions and laws, I know not what to
anticipate or how to defend him. With confidence in the integrity of pur-
pose of the Court and its legal advisers, I now leave the case to them.

THOMAS EWING, Jr.,

0/ Counsel for Samuel A. Mudd.

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Full text of "Charge and specification against David E. Herold, George A. Atzerodt, Lewis Payne, Michael O'Laughlin, John H. Surratt, Edward Spangler, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd"

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