4
B51T
UNIVERSITY OF CALIFORNIA
LOS ANGELES
TRIAL OF THE CONSPIRATORS FOR THE ASSASSINATION OF
PRESIDENT LINCOLN, &c,
ARGUMENT
OP
JOHN A. BINGHAM,
SPECIAL JUDGE ADVOCATE,
IN REPLY TO TITE
ARGUMENTS OF THE SEVERAL COUNSEL FOR MARY E. SURRATT,
DAVID E. HEROLD, LEWIS PAYNE, GEORGE A. ATZERODT,
MICHAEL O'LAUGHLIN, SAMUEL A. MUDD, EDWARD
SPANGLER, AND SAMUEL ARNOLD, CHARGED
WITH CONSPIRACY AND THE MURDER
OF ABRAHAM LINCOLN, LATE
PRESIDENT OF THE
UNITED STATES.
Delivered June 27 and 28, 1S65, before the Military
Commission, Washington, O. t .
WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1865.
\
t:
ARGUMENT
JOHN A. BINGH AM,
SPECIAL JUDGE ADVOCATE
IN REPLY TO
THE SEVERAL ARGUMENTS IN DEFENCE OP MARY E. SURRATT AND
OTHERS, CHARGED WITH CONSPIRACY AND THE MURDER
OF ABRAHAM LINCOLN, LATE PRESIDENT OF
THE UNITED STATES, &c.
MAY IT PLEASE THE CouET : The conspiracy here charged and speci-
. fied, and the acts alleged to have been committed in pursuance thereof,
and with the intent laid, constitute a crime the atrocity of which has
sent a shudder through the civilized world. All that was agreed
upon and attempted by the alleged inciters and instigators of this
crime constitutes a combination of atrocities with scarcely a parallel
in the annals of the human race. Whether the prisoners at your bar
are guilty of the conspiracy and the acts alleged to have been done
in pursuance thereof, as set forth in the charge and specification, is a
question the determination of which rests solely with this honorable
court, and in passing upon which this court are the sole judges of the
law and the fact.
In presenting my views upon the questions of law raised by the
several counsel for the defence, and also on the testimony adduced
for and against the accused, I desire to be just to them, just to you,
just to my country, and just to my own convictions. The issue joined
involves the highest interests of the accused, and, in my judgment,
the highest interests of the whole people of the United States.
It is a matter of great moment to all the people of this country
that the prisoners at your bar be lawfully tried and lawfully convicted
or acquitted. A wrongful and illegal conviction or a wrongful and
illegal acquittal upon this dread issue would impair somewhat the
security of every man's life, and shake the stability of the republic.
467023
4
The crime charged and specified upon your record i$ not simply
the crime of murdering a human being, but it is the crime of killing
and murdering on the Uth day of April, A. D. 1865, within the mili-
tary department of Washington and the intrenched lines thereof, Abra-
ham Lincoln, then President of the United States, and commander-
in-chief of the army and navy thereof ; and then and there assault-
ing, with intent to kill and murder, William H. Seward, then Secre-
tary of State of the United States ; and then and there lying in wait
to kill and murder Andrew Johnson, then Vice President of the United
States, and Ulysses S. Grant, then lieutenant general and in command
of the armies of the United States, in pursuance of a treasonable
conspiracy entered into by the accused with one John Wilkes Booth,
and John H. Surratt, upon the instigation of Jefferson Davis, Jacob
Thompson, and George N. Sanders and others, with intent thereby
to aid the existing rebellion and subvert the Constitution and laws of
the United States.
The rebellion, in aid of which this conspiracy was formed and this
great public crime committed, was prosecuted for the vindication of
no right, for the redress of no wrong, but was itself simply a criminal
conspiracy and gigantic assassination. In resisting and crushing this
rebellion the American people take no step backward, and cast no
reproach upon their past history. That people now, as ever, proclaim
the self-evident truth that whenever government becomes subversive
of the ends of its creation, it is the right and duty of the people to
alter or abolish it; but during these four years of conflict they have
as clearly proclaimed, as was their right and duty, both by law and
by arms, that the government of their own choice, humanely and
wisely administered, oppressive of none and just to all, shall not be
overthrown by privy conspiracy or armed rebellion.
What wrong had this government or any of its duly constituted
agents done to any of the guilty actors in this atrocious rebellion?
They themselves being witnesses, the government which they as-
sailed had done no act, and attempted no act, injurious to them, or
in any sense violative of their rights as citizens and men; and yet for
four years, without cause of complaint or colorable excuse, the incit-
ers and instigators of the conspiracy charged upon your record have,
by armed rebellion, resisted the lawful authority of the government,
and attempted by force of arms to blot the republic from the map of
nations. Now that their battalions of treason are broken and flying
before the victorious legions of the republic, the chief traitors in this
great crime against your government secretly conspire with their
hired confederates to achieve by assassination, if possible, what they
have in vain attempted by wager of battle the overthrow of the
government of the United States and the subversion of its Constitu-
tion and laws. It is for this secret conspiracy in the interest of the
rebellion, formed at the instigation of the chiefs in that rebellion,
and in pursuance of which the acts charged and specified are alleged
to have been done and with the intent laid, that the accused are
upon trial.
The government in preferring this charge does not indict the whole
people of any State or section, but only the alleged parties to this un-
natural and atrocious conspiracy and crime. The President of the
United States, in the discharge of his duty as commander-in-chief of
the army, and by virtue of the power vested in him by the Constitu-
tion and laws of the United States, has constituted you a military
court, to hear and determine the issue joined against the accused,
and has constituted you a court for no other purpose whatever. To
this charge arid specification the defendants have pleaded, first, that
this court has no jurisdiction in the premises; and, second, not guilty.
As the court has already overruled the plea to the jurisdiction, it
would be passed over in silence by me but for the fact, that a grave
and elaborate argument has been made by counsel for the accused,
not only to show the want of jurisdiction, but to arraign the President
of the United States before the country and the world as a usurper of
power over the lives and the liberties of the prisoners. Denying the
authority of the President to constitute this commission is an aver-
ment that this tribunal is not a court of justice, has no legal existence,
and therefore no power to hear and determine the issue joined. The
learned counsel for the accused, when they make this averment by
way of argument, owe it lo themselves and to their country to show
how the President could otherwise lawfully and efficiently discharge
the duty enjoined upon him by his oath to protect, preserve, and de-
fend the Constitution of the United States, and to take care that the
laws be faithfully executed.
An existing rebellion is alleged and not denied. It is charged that
in aid of this existing rebellion a conspiracy was entered into by the
accused, incited and instigated thereto by the chiefs of this rebellion,
to kill and murder the executive officers of the government, and the
commander of the armies of the United States, and that this conspi-
racy was partly executed by the murder of Abraham Lincoln, and by
a murderous assault upon the Secretary of State; and counsel reply,
by elaborate argument, that although the facts be as charged, though
6
the conspirators be numerous and at large, able and eager to com-
plete the horrid work of assassination already begun within your
military encampment, yet the successor of your murdered President
is a usurper if he attempts by military force and martial law, as com-
mander-in-chief, to prevent the consummation of this traitorous con-
spiracy in aid of this treasonable rebellion. The civil courts, say
the counsel, are open in the District. I answer, they are closed
throughout half the republic, and were only open in this District
on the day of this confederation and conspiracy, on the day of the
traitorous assassination of your President, and are only open
at this hour, by force of the bayonet. Does any man suppose that if
the military forces which garrison the intrenchments of your cap-
ital, fifty thousand strong, were all withdrawn, the rebel bands
who this day infest the mountain passes in your vicinity would allow
this court, or any court, to remain open in this District for the trial
of these their confederates, or would permit your executive officers to
discharge the trust committed to them, for twenty-four hours?
At the time this conspiracy was entered into, and when this court
was convened and entered upon this trial, the country was in a state
of civil war. An army of insurrectionists have, since this trial begun,
shed the blood of Union soldiers in battle. The conspirator, by
whose hand his co-conspirators, whether present or absent, jointly
murdered the President on the 14th of last April, could not be
and was not arrested upon civil process, but was pursued by the
military power of the government, captured, and slain. Was this
an act of usurpation? a violation of the right guaranteed to that
fleeing assassin by the very Constitution against which and for the
subversion of which he had conspired and murdered the President ?
Who in all this land is bold enough or base enough to assert it ?
I would be glad to know by what law the President, by a military
force, acting only upon his military orders, is justified in pursuing,
arresting, and killing one of these conspirators, and is condemned for
arresting in like manner, and hy his order subjecting to trial, accord-
ing to the laws of war, any or all of the other parties to this same
damnable conspiracy and crime, by a military tribunal of justice a
tribunal, I may be pardoned for saying, whose integrity and impar-
tiality are above suspicion, and pass unchallenged even by the
accused themselves.
The argument against the jurisdiction of this court rests upon the
assumption that even in time of insurrection and civil war, no crimes
are cognizable and punishable by military commission or court-martial,
save crimes committed in the military or naval service of the United
States, or in the militia of the several States when called into the
actual service of the United States. But that is not all the argument :
it affirms that under this plea to the jurisdiction, the accused have
the right to demand that this court shall decide that it is not a ju-
dicial tribunal and has no legal existence.
This is"a most extraordinary proposition that the President, under
the Constitution and laws of the United States, was not only not au-
thorized but absolutely forbidden to constitute this court for the
trial of the accused, and, therefore, the act of the President is void,
and the gentlemen who compose the tribunal without judicial authority
or power, and are not in fact or in law a court.
That I do not misstate what is claimed and attempted to be estab-
lished on behalf of the accused, I ask the attention of the court to
the following as the gentleman's (Mr. Johnson's) propositions :
That Congress has not authorized, and, under the Constitution,
cannot authorize the appointment of this commission.
That this commission has, "as a court, no legal existence or au-
thority," because the President, who alone appointed the commission,
has no such power.
That his act "is a mere nullity the usurpation of a power not
vested in the Executive, and conferring ilo authority upon you."
We have had no common exhibition of law learning in this De-
fence, prepared by a Senator of the United States ; but with all his
experience, and all his learning, and acknowledged ability, he has
failed, utterly failed, to show how a tribunal constituted and sworn,
as this has been, to duly try and determine the charge and specifica-
tion against the accused, and by its commission not authorized
to hear or determine any other issues whatever, can rightfully en-
tertain, or can by any possibility pass upon, the proposition pre-
sented by this argument of the gentleman for its consideration.
The members of this court are officers in the army of the
United States, and by order of the President, as Commander-in-
Chief, are required to discharge this duty, and are authorized in this
capacity to discharge no other duty, to exercise no other judicial
power. Of course, if the commission of the President constitutes
this a court for the trial of this case only, as such court it is compe-
tent to decide all questions of law and fact arising in the trial of the
case. But this court has no power, as a court, to declare the au-
thority by which it was constituted null and void, and the act of ttie
8
President a mere nullity, a usurpation. Has it been shown by the
learned gentleman, who demands that this court shall so decide, that
officers of the army may lawfully and constitutionally question in this
manner the orders of their Commander-in- Chief, disobey, set them
aside, and declare them a nullity and a usurpation ? Even if it be con-
ceded that the officers thus detailed by order of the Commander-in -
Chief may question and utterly disregard his order and set aside his
authority, is it possible, in the nature of things, that any body of men,
constituted and qualified as a tribunal of justice, can sit in judgment
upon ihe proposition that they are not a court for any purpose, and
finally decide judicially, as a court, that the government which ap-
pointed them was without authority? Why not crown the absurdity
of this proposition by asking the several members of this court to
determine that they are not men living, intelligent, responsible
men ! This would be no more irrational than the question upon which
they are asked to pass. How can any sensible man entertain it?
Before he begins to reason upon the proposition he must take for
granted, and therefore decide in advance, the very question in dis-
pute, to wit, his actual existence.
So with the question presented in this remarkable argument for
the defence : before this court can enter upon the inquiry of the want
of authority in the President to constitute them a court, they must
take for granted and decide the very point in issue, that the President
had the authority, and that they are in law and in fact a judicial
tribunal ; and having assumed this, they are gravely asked, as such
judicial tribunal, to finally and solemnly decide and declare that they
are not in fact or in law a judicial tribunal, but a mere nullity and
nonentity. A most lame and impotent conclusion I
As the learned counsel seems to have great reverence for judi-
cial authority, and requires precedent for every opinion, I may
be pardoned for saying that the objection which I urge, against
the possibility of any judicial tribunal, after being officially quali-
fied as such, entertaining, much less judicially deciding, the pro-
position that it has no legal existence as a court, and that the
appointment was a usurpation and without authority of law, has been
solemnly ruled by the Supreme Court of the United States.
^ That court say : "The acceptance of the judicial office is a recogni-
tion of the authority from which it is derived. If a court should enter
upon the inquiry (whether the authority of the government which
established it existed,) and should come to the conclusion that the
government under which it acted had been put aside, it would cease
9
to be a court and be incapable of pronouncing a judicial decision upon
the question it undertook to try. If it decides at all, as a court, it
necessarily affirms the existence and authority of the government
under which it is exercising judicial power.": (Luther vs. Borden, 7
Howard, 40.)
That is the very question raised by the learned gentleman in his
argument that there was no authority in the President, by whose
act alone this tribunal was constituted, to vest it with judicial power
to try this issue ; and by the order upon your record, as has already
been shown, if you have no power to try this issue for want of author-
ity in the Commander*in- Chief to constitute you a court, you are no
court, and have no power to try any issue, because his order limits
you to this issue, and this alone.
It requires no very profound legal attainments to apply the ruling
of the highest judicial tribunal of this country, just cited, to the
point raised, not by the pleadings, but by the argument. This court
exists as a judicial tribunal by authority only of the President of the
United States ; the acceptance of the office is an acknowledgment of
the validity of the authority conferring it, and if the President had
no authority to order, direct, and constitute this court to try the ac-
cused, and, as is claimed, did, in so constituting it, perform an uncon-
stitutional and illegal act, it necessarily results that the order of the
President is void and of no effect; that the order did not and could
not constitute this a tribunal of justice, and therefore its members
are incapable of pronouncing a judicial decision upon the question
presented.
There is a marked distinction between the question here
presented and that raised by a plea to the jurisdiction of
a tribunal whose existence as a court is neither questioned
nor denied. Here it is argued, through many pages, by a learned
Senator, and a distinguished lawyer, that the order of the President,
by whose authority alone this court is constituted a tribunal of mili-
tary justice, is unlawful; if unlawful it is void and of no effect, and
has created no court; therefore this body, not being a court, can have
no more power as a court to decide any question whatever than have its
individual members power to decide that they as men do not in fact
exist.
It is a maxim of the common law the perfection of human reason
that what is impossible the law requires of no man.
How can it be possible that a judicial tribunal can decide the
10
question that it does not exist, any more than that a rational man can
decide that he does not exist?
The absurdity of the proposition so elaborately urged upon the
consideration of thi& court cannot be saved from the ridicule and con-
tempt of sensible men by the pr-etence that the court is not asked
judicially to decide that it is not a court, but only that it has no
jurisdiction; for it is a fact not to be denied that the whole argument
for the defence on this point is that the President had not the law-
ful authority to issue the order by which alone this court is constitu-
ted, and that the order for its creation is null and void.
Gentlemen might as well ask the Supreme CourfoT the United
States upon a plea to the jurisdiction to decide, as a court, that the
President had no lawful authority to nominate the judges thereof
severally to the Senate, and that the Senate had no lawful authority
to advise and consent to their appointment, as to ask this court to
decide, as a court, that the order of the President of the United States
constituting it a tribunal for the sole purpose of this trial was not
only without authority of law, but against and in violation of law. If
this court is not a lawful tribunal, it has no existence, and can no
more speak as a court than the dead, much less pronounce the judg-
ment required at its hands that it is. not a court, and that the Pres-
ident of the United States, in constituting it such to try the question
upon the charge and specification preferred, has transcended his
authority, and violated his oath of office.
Before passing from the consideration of the proposition of the
learned senator, that this is not a court, it is fit that I should notice
that another of the counsel for the accused (Mr. Ewing) has also ad-
vanced the same opinion, certainly with more directness and candor,
and without any qualification. His statement is, "You," gentlemen,
"are no court under the Constitution." This remark of the gentle-
man cannot fail to excite surprise, when it is remembered that the
gentleman, not many months since, was a general in the service of
the country, and as such in his department in the west proclaimed
and enforced martial law by the constitution of military tribunals for
the trial of citizens not in the land or naval forces, but who were
guilty of military offences, for which he deemed them justly punish-
able before military courts, and accordingly he punished them. Is
the gentleman quite sure, when that account comes to be rendered
for these alleged unconstitutional assumptions of power, that he will
not have to answer for more of these alleged violations of the rights
of citizens by illegal arrests, convictions, and executions, than any of
11
the members of this court? In support of his opinion that this is no
court, the gentleman cites the 3d article of the Constitution, which
provides "that the judicial power of the United States shall be vest-
ed in one supreme court, and such inferior courts as Congress may
establish," the judges whereof "shall hold their offices during good
behavior."
It is a sufficient answer to say to the gentleman, that the power of
this government to try and punish military offences by military tribu-
nals is no part of the "judicial power of the United States," under
the 3d article of the Constitution, but a power conferred by the 8th
section of the 1st article, and so it has been ruled by the Supreme Court
in Dyres vs. Hoover, 20 Howard, 78. If this power is so conferred
by the 8th section, a military court authorized by Congress, and con-
stituted as this has been, to 'try all persons for military crimes in
time of war, though not exercising "the judicial power" provided
for in the 3d article, is nevertheless a court as, constitutional as the
Supreme Court itself. The gentleman admits this to the extent of
the trial by courts-martial of persons in the military or naval ser-
vice, and by admitting it he gives up the point. There is no express
grant for any such tribunal, and the power to establish such a court,
therefore, is implied from the provisions of the 8th section,. 1st article,
that " Congress shall have power to provide and maintain a navy,"
and also ' ' to make rules for the government of the land and naval
forces." From these grants the Supreme Court infer the power to
establish courts- martial, and from the grants in the same 8th section,
as I shall notice hereafter, that " Congress shall have power to de-
clare war," and "to pass all laws necessary and proper to carry this
and all other powers into effect," it is necessarily implied that in
time of war Congress may authorize military commissions, to try all
crimes committed in aid of the public enemy, as such tribunals are
necessary to give effect to the power to make war and suppress insur-
rection.
Inasmuch as the gentleman (Gen. Ewing,) for whom, personally, I
have a high regard as the military commander of a western depart-
ment, made a liberal exercise, under the order of the Commauder-
in-Chief of the army, of this power to arrest and try military of-
fenders not in the land or naval forces of the United States, and
inflicted upon them, as I am informed, the extreme penalty of the
law, by virtue of his military jurisdiction, I wish to know whether he
proposes, by his proclamation of the personal responsibility awaiting
all such usurpations of judicial authority, that he himself shall be
subjected to the same stern judgment which he invokes against
others that, in short, he shall be drawn and quartered for inflicting
the extreme penalties of the law upon citizens of the United States
in violation of the Constitution and laws of his country ? I trust that
his error of judgment in pronouncing this military jurisdiction a usur-
pation and violation of the Constitution may not rise up in judgment
to condemn him, and that he may never be subjected to pains and
penalties for having done his duty heretofore in exercising this right-
ful authority, and in bringing to judgment those who conspired
against the lives and liberties of the people.
Here I might leave this question, committing it to the charitable
speeches of men, but for the fact that the learned counsel has been
more careful in his extraordinary argument to denounce the Presi-
dent as a usurper than to show how the court could possibly decide
that it has no judicial existence, and yet that it has judicial existence.
A representative of the people and of the rights of the people be-
fore this court, by the appointment of the President, and which ap-
pointment was neither sought by me nor desired, I cannot allow all
that has here been said by way of denunciation of the murdered Presi-
dent and his successor to pass unnoticed. This has been made the occa-
sion by the learned counsel, Mr. Johnson, to volunteer, not to defend the
accused, Mary E. Surratt, not to make ajudicial argument in her behalf,
but to make a political harangue, a partisan speech against his gov-
ernment and country, and thereby swell the cry of the armed legions
of sedition and rebellion that but yesterday shook the heavens with
their infernal enginery of treason and filled the habitations of the people
with death. As the law forbids a senator of the United States to re-
ceive compensation, or fee, for defending, in cases before civil or mili-
tary commissions, the gentleman volunteers to make a speech before
this court, in which he denounces the action of the Executive Depart-
ment in proclaiming and executing martial law against rebels in arms,
their aiders and abettors, as a usurpation and a tyranny. I deem it
my duty to reply to this denunciation, not for the purpose of present-
ing thereby any question for the decision of this court, for I have
shown that the argument of the gentleman presents no question for
its decision as a court, but to repel, as far as I may be able, the un-
just aspersion attempted to be cast upon the memory of our dead
President, and upon the official conduct of his successor.
I propose now to answer fully all that the gentleman (Mr. Johnson)
has said of the want of jurisdiction in this court, and of the alleged
usurpation and tyranny of the Executive, that the enlightened public
13
opinion to which he appeals may decide whether all this denunciation
is just whether indeed conspiring against the whole people, and
confederation and agreement in aid of insurrection to murder all the
executive officers of the government, cannot be checked or arrested
by the Executive power. Let the people decide this question ; and
in doing so, let them pass upon tho action of the senator as well as
upon the action of those whom he so arrogantly arraigns. His plea
in behalf of an expiring and shattered rebellion is a fit. subject for
public consideration and for public condemnation.
Let that people also note, that while the learned gentleman, (Mr.
Johnson,) as a volunteer, without pay, thus condemns as a usurpa-
tion the means employed so effectually to suppress this gigantic insur-
rection, the New York News, whose proprietor, Benjamin Wood, is
shown by the testimony upon your record to tiave received from the
agents of the rebellion twenty -five thousand dollars, rushes into the
lists to champion the cause of the rebellion, its aiders and abettors,
by following to the letter his colleague, (Mr. Johnson, ) and with greater
plainness of speech, and a fervor intensified, doubtless, by the twenty-
five thousand dollars received, and the hope of more, denounces the
court as a usurpation and* threatens the members with the conse-
quences 1
The argument of the gentleman to which the court has listened so
patiently and so long is but an attempt to show that it is unconsti-
tutional for the government of the United States to arrest upon mil-
itary order and try before military tribunals and punish upon convic-
tion, in accordance with the laws of war and the usages of nations, all
criminal offenders acting in aid of the existing rebellion. It does
seem to me that the speech in its tone and temper is the same as that
which the country has heard for the last four years uttered by the
armed rebels themselves angl by their apologists, averring that it was
unconstitutional for the government of the United States to defend by
arms its own rightful authority and the supremacy of its laws.
It is as clearly the right of tho republic to live and to defend its life
until it forfeits that right by crime, as it is the right of the individual
to live so long as God gives him life, unless he forfeits that right by
crime. I make no argument to support this proposition. Who is
there here or elsewhere to east the reproach upon my country that
for her crimes she must die ? Youngest born of the nations ! is she
not immortal by all the dread memories of the past by that sublime
and voluntary sacrifice of the present, in which the bravest and no-
blest of her sons have laid down their lives that she might live, giving
14
their serene brows to the dust of the grave, and lifting their hands
for the last time amidst the consuming fires of battle ! I assume, for
the purposes of this argument, that self-defence is as clearly the right
of nations as it is the acknowledged right x>f men, and that the Amer-
ican people may do in the defence and maintenance of their own
rightful authority against organized armed rebels, their aiders and
abettors, whatever free and independent nations anywhere upon this
globe, in time of war, may of right do.
All this is substantially denied by the gentleman in the remarkable
argument which he has here made. There is nothing further from
my purpose than to do injustice to the learned gentleman or to his
elaborate and ingenious argument. To justify what I have already
said, I may be permitted here to remind the court that nothing is
said by the counsel touching the conduct of the accused, Mary E.
Surratt, as shown by the testimony ; that he makes confession at the
end of his arraignment of the government and country, that he has
not made such argument, and that he leaves it to be made by her
other counsel. He does take care, however, to arraign the country
and the government for conducting a trial with closed doors and
before a secret tribunal, and compares th*e proceedings of this court
to the Spanish Inquisition, using the strongest words at his command
to intensify the horror which he supposes his announcement will
excite throughout the civilized world.
Was this dealing fairly by this government? Was there anything
in the conduct of the proceedings here that justified any such remark ?
Has this been a secret trial ? Has it not been conducted in open day
in the presence of the accused, and in the presence of seven gentle-
men learned in the law, who appeared from day to day as their
counsel? Were they not informed of the accusation against them?
Were they deprived of the right of challenge? Was it not secured
to them by law, and were they not asked to exercise it? Has any
part of the evidence been suppressed? Have not all the proceed-
ings been published to the world ? What, then, was done, or intended
to be done, by the government, which justifies this clamor about a
Spanish Inquisition ?
That a people assailed by organized treason over an extent of ter-
ritory half as large as the continent of Europe, and assailed in their
very capital by secret assassins banded together arid hired to do the
work of murder by the instigation of these conspirators, may not
be permitted to make inquiry, even with closed doors, touching the
nature and extent of the organization, ought not to be asserted by
15
any gentleman who makes the least pretensions to any knowledge of
the law, either common, civil, or military. Who does not know that
at the common law all inquisition touching crimes and misdemean-
ors, preparatory to indictment by the grand inquest of the state,
is made with closed doors? So2. C-f C-y
, In this trial no parties accused, nor their counsel, nor the reporters/
of 4 this court,. were at any time excluded from its deliberations when
any testimony was being taken ; nor has there been any testimony
taken in the case with closed doors, save that of a few witnesses, who
testiBed, not in regard to the accused or either of them, but in re-
spect to the traitors and conspirators not on trial, who were alleged
to have incited this crime. [Who is there to say that the American
people, in time of armed rebellion and civil war, have not the right
to make such an examination as secretly as they may deem neces-
sary, either in a military or civil court ?
I have said this, not by way of apology for anything the govern-
ment has done or attempted to do in the progress of this trial, but to
expose the animus of the argument, and to repel the Accusation against
my country sent out to the world by the counsel. From anything
that he has said, I have yet to learn that the American people have
not the right to make their inquiries secretly, touching a general con-
spiracy in aid of an existing rebellion, which involves their nationality
and the peace and security of all.
The gentleman then enters into a learned argument for the. purpose
of showing that, by the Constitution, the people of tho United States
cannot, in war or in peace, subject any person to trial before a mili-
tary tribunal, whatever may be his crime or offence, unless such per-
son be in the military or naval service of the United States. The
conduct of this argument is as remarkable as its assaults upon the
government are unwarranted, and its insinuations about the revival
of the Inquisition and secret trials are inexcusable. The court will
notice that the argument, from the beginning almost to its conclusion,
insists that no person is liable to be tried by military or martial law
before a military tribunal, save those in the land and naval service of
the United States. I repeat, the conduct of this argument of the
gentleman is remarkable. As an instance, I ask the attention, not
only of this court, but of that public whom he has ventured to address
in this tone and temper, to the authority of the distinguished Chancellor
Kent, whose great name the counsel has endeavored to press into his
service in support of his general proposition, that no person save
those in the military or naval service of the United States is liable to
16
be tried for any crime whatever, either in peace or in war, before a
military tribunal.
The language of the gentleman, after citing the provision of the Con-
stitution, ' ' that no person shall be held to answer for a capital or other-
wise infamous crime unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in tha
militia, when in actual service in time of war or public danger," is,
"that this exception is designed to leave in force, not to enlarge, the
power vested in Congress by the original Constitution to make rules
for the government and regulation of the land and naval forces; that
the land or naval forces are the terms used in both, have the same
meaning, and until lately have been supposed by every commentator
and judge to exclude from military jurisdiction offences committed by
citizens not belonging to such forces." The learned gentleman then
adds: "Kent, in a note to his 1st Commentaries, 341 , states , and
with accuracy, that 'military and naval crimes and offences, com-
mitted while the party is attached to and under the immediate au-
thority of the army and navy of the United States and in actual
service, are not cognizable under the common-law jurisdiction of the
courts of the United States.' ' I ask this court to bear in mind that
this is the only passage which he quotes from this note of Kent in
his argument, and that no man possessed of common sense, however
destitute he may be of the exact and varied learning in the law to
which the gentleman may rightfully lay claim, can for a moment en-
tertain the opinion that the distinguished chancellor of New York, in
the passage just cited, intimates any such thing as the counsel asserts,
that the Constitution excludes from military jurisdiction offences com-
mitted by citizens not belonging to the land or naval forces.
Who can fail to see that Chancellor Kent, by the passage cited,
only decides that military and naval crimes and offences committed
by a party attached to and under the immediate authority of the
army and navy of the United States, and in actual service, are not
cognizable under the common-law jurisdiction of the courts of the
United States ? He only says they are not cognizable under its <jom-
mon-law jurisdiction; but by that he does not say or intimate, what
is attempted to be said by the counsel for him, that ' ' all crimes
committed by citizens are by the Constitution excluded from military
jurisdiction," and that the perpetrators of them can under no circum-
stances be tried before military tribunals. Yet the counsel ventures
to proceed, standing upon this passage quoted from Kent, to say that,
"according to this great authority, every other class of persons and
every other species of offences are within the jurisdiction of the civil
courts, and entitled to the protection of the proceeding by present-
ment or indictment and the public trial in such a court."
Whatever that great authority may have said elsewhere, it is very
doubtful whether any candid man in America will be able to come
to the very learned and astute conclusion that Chancellor Kent, has
so stated in the note or any part of the note which the gentleman,
has just cited. If he has said it elsewhere, it is for the gentleman,
if he relies upon Kent for authority, to produce, the passage. But
was it fair treatment of this " great authority" was it not taking
an unwarrantable privilege with the distinguished chancellor and his
great work, the enduring monument of his learning and genius, to so
mutilate the note referred to, as might leave the gentleman at liberty
to make his deductions and assertions under cover of the great name
of the New York chancellor, to suit the emergency of his case, by
omitting the following passage, which occurs in the same note, and
absolutely excludes the conclusion so defiantly put forth by the counsel
to support his argument ? In that note Chancellor Kent says :
"Military law is a system of regulations for the government of the
armies in the service of the United States, authorized by the act of
Congress of April 10, 1806, known as the Articles of War, and naval
law is a similar system for the government of the navy, under the
act of Congress of April 23, 1800. But martial law is quite a distinct
thing, and is founded upon paramount necessity, .and proclaimed by
a military chief."
However unsuccessful, after this exposure, the gentleman appears
in maintaining his monstrous proposition, that the American people
are by their own Constitution forbidden to try the aiders and abettors
of armed traitors and rebellion before military tribunals, and subject
them, according to the laws of war and the usages of nations, to just
punishment, for their great crimes, it has been made clear from what
I have already stated that he has been eminently successful in muti-
lating this beautiful production of that great mind; which act of mu-
tilation every one knows is violative alike of the laws of peace and
war. Even in war the divine creations of art and the immortal pro-
ductions of genius and learning are spared.
In the same spirit, and it s.eems to me with the same unfairness as
that just noted, the learned gentleman has very adroitly pressed into
his service, by an extract from the autobiography of the war-worn
2B .
veteran and hero, General Scott, the names of the late Secretary of
War, Mr. Marcy, and the learned ex-Attorney General, Mr. Gushing.
This adroit performance is achieved in tins way: after stating the
fact that General Scott in Mexico proclaimed martial law for the
trial and punishment by military tribunals of persons guilty of
"assassination, murder, and poisoning," the gentleman proceeds to
quote from the Autobiography, "that this order, when handed to the
then Secretary of War (Mr. Marcy) for his approval, ' a startle at the
title (martial law order) was the only comment he then or ever made
on the subject,' and that it was 'soon silently returned as too explo-
sive for safe handling.' 'A little later (he adds) the Attorney Gen-
eral (Mr. Gushing) called and asked for a copy, and the law officer of
the government, whose business it is to speak on all such matters,
was stricken with legal dumbness." Thereupon the learned gentle-
man proceeds to say: "How\much more startled and more paralyzed
would these great men have been had they been consulted on such a
commission as this! A commission, not to sit in another country, and
to try offences not provided for in any law of the United States, civil
or military, then in force, but in their own country, and in a part
of it where there are laws providing for* their trial and punishment,
and civil courts clothed with ample powers for both, and in the daily
and undisturbed exercise of their jurisdiction."
I think I may safely say, without stopping to make any special ref-
erences, that the official career of the late Secretary of War (Mr.
Murcy) gave no indication that he ever doubted or denied the con-
stitutional power of the American people, acting through their duly
constituted agents, to do any act justified by the laws of war, for the
suppression of a rebellion or to repel invasion. Certainly there is
nothing in this extract from the Autobiography which justifies any
such conclusion. He was startled, we are told. It may have been
as much the admiration he had for the boldness and wisdom of the
conqueror of Mexico as any abhorrence he had for the trial and pun-
ishment of "assassins, poisoners, and murderers," according to the
laws and usages of war.
But the official utterances of the ex- Attorney General, Gushing,
with which the gentleman doubtless was familiar when he prepared
this argument, by no means justify the attempt here made to quote
him as authority against the proclamation and enforcement of mar-
tial law in time of rebellion and civil war. That distinguished man,
not second in legal attainments to any who have held that position,
has left an official opinion of record touching this subject. Referring
19
to what is said by Sir Mathew Hale, in his History of the Common
Law, concerning martial law, wherein he limits it, as the gentleman
has seemed by the whole drift of his argument desirous of doing, and
says that it is "not in truth and in reality law, but something in-
dulged rather than allowed as a law the necessity of government,
order, and discipline in an army," Mr. Gushing makes this just criti-
cism : "This proposition is a mere composite blunder, a total mis-
apprehension of the matter. It confounds martial law and laiv mili*
tary: it ascribes to the former the uses of the latter ; it erroneously
assumes that the government of a body of troops is a necessity more
than of a body of civilians or citizens. Jt confounds and confuses all
the relations of the subject, and is an apt illustration of the incom-
pleteness of the notions of the common-law jurists of England in re-
gard to matters not comprehended in that limited branch of legal
science. * * *, Military law, it is now perfectly understood in
England, is a branch of the law of the land, applicable only to certain
acts of a particular class of persons and administered by special
tribunals; but neither in that nor in any other respect essentially
differing as to foundation in constitutional reason from admiralty,
ecclesiastical, or indeed chancery and common law. *
It is the system of rules for the government of the army and navy
established by successive acts of Parliament. * * *
Martial law, as exercised in any country by the commander of a
foreign army, is an element of the jus belli,
" It is incidental to the state of solemn war, and appertains to the
law of nations. * Thus, while the armies of the United
States occupied different provinces of the Mexican republic, the
respective commanders were not limited in authority by any local
law. They allowed, or rather required, the magistrates of the coun-
try, municipal or judicial, to continue to administer the laws of the
country among their countrymen ; but in subjection, always, to the
military power, which acted summarily and according to discretion,
when the belligerent interests of the conqueror required it, and
which exercised jurisdiction, either summarily or by means of mili-
tary commissions for the protection or the punishment of citizens of
the United States in Mexico." Opinions of Attorneys General, vol.
viii, 3G6-369.
Mr. Gushing says, "That, it would seem, was one of the forms of
martial law ;" but he adds, that such an example of martial law ad-
ministered by a foreign army in the enemy's country "does not en-
20
lighten us in regard to the question of martial law in one's own coun-
try, and as administered by its military commanders. That is a case
which the law of nations does not reach. Its regulation is of the do-
mestic resort of the organic laws of the country itself, and regarding
which, as it happens, there is no definite or explicit legislation in the
United States, as there is none in England.
"Accordingly, in England, as we have seen, Earl Grey assumes that
when martial law exists it has no legal origin, but is a mere fact of
necessity, to be legalized afterwards by a bill of indemnity, if there,
be -occasion. I am not prepared to say that, under existing laws,
such may not also be the case in the United States." Ibid., 370.
After such a statement, wherein ex-Attorney General Gushing very
clearly recognizes the right of this government, as also of England,
to employ martial law as a means of defence in a time of war, whether
domestic or foreign, he will be as much surprised when he reads the
argument of the learned gentleman, wherein he is described as being
struck with legal dumbness at the mere mention of proclaiming martial
law, and its enforcement by the commander of our army in Mexico,
as the late Secretary of War was startled with even the mention of
its title.
Even some of the reasons given, and certainly the power exercised
by the veteran hero himself, would seem to be in direct conflict with
the propositions of the learned gentleman.
The Lieutenant General says, he " excludes from his order cases
already cognizable by court-martial, and limits it to cases not pro-
Tided for in the act of Congress establishing rules and articles for the
government of the armies of the United States." Has not the gen-
tleman who attempts to press General Scott into his service argued
and insisted upon it, that the commander of the army cannot subject
the soldiers under his command to any control or punishment what-
ever, save that which is provided for in the articles ?
It will not do, in order to sustain the gentleman's hypothesis, to say
that these provisions of the Constitution, by which he attempts to
fetter the power of the people to punish such offences in- time of war
within the territory of the United States, may be disregarded by an
officer of the United States in command of its armies, in the trial and
punishment of its soldiers in a foreign war. The law of the United
States for the government of its own armies follows the flag upon
every sea and in every land.
The truth is, that the right of the people to proclaim and execute
martial law is a necessary incident of war, and this was the right
21
exercised, and rightfully exercised, by Lieutenant General Scott in
Mexico. It was what Earl Grey has justly said was a "fact of ne-
cessity," and I may add, an act as clearly authorized as was the act
of fighting the enemy when they appeared before him.
In making this exception, the Lieutenant General followed the rule
recognized by the American authorities on military law, in which
it is declared that "many crimes committed even by military officers,
enlisted men, or camp retainers, cannot be tried under the rules and
articles of war. Military commissions must be resorted to for such
cases, and these commissions should be prdered'by the same authority,
be constituted in a similar manner, and their proceedings be con-
ducted according to the same general rules as general courts-mar-
tial." Benet, 15.
There remain for me to notice, at present, two other points
in this extraordinary speech: first, that martial law does not warrant
a military commission for the trial of military offences that is, offences
committed in time of war in the interests of the public enemy, and
by concert and agreement with the enemy; and second, that martial
law does not prevail in the United States, and has never been declared
by any competent authority.
It is not necessary, as the gentleman himself has declined to argue
the first point, whether martial law authorizes the organization of
military commissions by order of the Commander-in- Chief to try such
offences, that I should say more than that the authority just cited by
me shows that such commissions are authorized under martial law,
and are created by the commander for the trial of -all such offences,
when their punishment by court-martial is not provided for by the
express statute law of the country.
The second point, that martial law has not been declared by any
competent authority, is an arraignment of the late murdered Pres-
ident of the United States for his proclamation of September 24,
1862, declaring martiailaw throughout the United States; and of which,
in Lawrence's edition of Wheaton on International Law, p. 522, it is
said, " Whatever may be the inference to be deduced either from
constitutional or international law, or from the usages of European
governments, as to the legitimate depository of the power of suspend-
ing the writ of habeas corpus, the virtual abrogation of the judiciary
in cases affecting individual liberty, and the establishment as matter
of fact in the United States, by the Executive alone, of martial law,
not merely in the insurrectionary districts, or in cases of military
occupancy, but throughout the entire Union, and not temporarily,
22
but as an institution as permanent as the insurrection on which it
professes to be based, and capable on the same principle of being
revived in all cases of foreign as well as civil war, are placed beyond
question by the President's proclamation of September 24, 1862. "
That proclamation is as follows :
"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
"A PROCLAMATION.
" Whereas it has become necessary to call into service not only volunteers,
but also portions of the militia of the States, by a draft, in order to suppress
the insurrection existing in the United States, and disloyal persons are not ade-
quately restrained by the ordinary processes of law from hindering this measure,
and from giving aid and comfort in various ways to the insurrection : Now,
therefore, be it ordered, that during the existing insurrection, and as a necessary
means for suppressing the same, all rebels and insurgents, their aiders and abet-
tors, within the United States, and all persons discouraging volunteer enlist-
ments, resistipg militia drafts, or guilty of any disloyal practice, affording aid
and comfort to rebels, against the authority of the United States, shall be
subject to martial law, and liable to trial and punishment by courts-martial or
military commission.
" Second. That the writ of habeas corpus is suspended in respect to all per-
sons arrested, or who are now, or hereafter during the rebellion shall be, impris-
oned in any -fort, camp, arsenal, military prison, or other place of confine-
ment, by any military authority, or by the sentence of any court martial or
military commission.
" In witness whereof, I have hereunto set my hand, and caused the seal of
the United States to be affixed.
" Done at the city of Washington, this 24th day of September, A. D. 1862,
and of the independence of the United States the eighty-seventh.
"ABRAHAM LINCOLN.
" By the President :
" WILLIAM H. SEWARD,
" Secretary of State,"
This proclamation is duly certified from the War Department to be
in full force and not revoked, and is evidence of record in this case;
and but a few days since a proclamation of the President, of which
this court will take notice, declares that the same remains in full force.
has been said by another of the counsel for the accused (Mr.
Stone) in his argument, that, admitting its validity, the proclamation
to have effect with the insurrection, and is terminated by it.
true the proclamation of martial law only continues during
the insurrection; but inasmuch as the question of the existence of
23
4
an insurrection is a political question, the decision of which belongs
exclusively to the political department of the government, that de-
partment alone can declare its existence, and that department alone
can declare its termination, and by the action of the political depart-
ment of the government every judicial tribunal in the land is con-
cluded and bound.' That question has been settled for fifty years
in this country by the Supreme Court of the United States : First,
in the case of Brown vs. The United States (8 Cranch;) also in the prize
cases (2 Black, 641.) Nothing more, therefore, need be said upon
this question of an existing insurrection than this: The political de-
partment of the government has heretofore proclaimed an insurrection,
that department has not yet declared the insurrection ended, and the
event on the l4th of April, which robbed the people of their chosen
Executive, and clothed this land in mourning, bore sad but over-
whelming witness to the fact that the rebellion is not ended. The
fact of the insurrection is not an open question to be tried or settled
by parol, either in a military tribunal or in a civil court.
The declaration of the learned gentleman who opened the defence,
(Mr. Johnson,) that martial law has never been declared by any com-
petent authority, as I have already said, arraigns Mr. Lincoln for a
usurpation of power. Does the gentleman mean to say that, until
Congress authorizes it, the President cannot proclaim and enforce
martial law in the suppression of armed and organized rebellion ? Or
does he only affirm that this act of the late President is a usurpation?
The proclamation of martial law in 1862 a usurpation ! though
it armed the people in that dark hour of trial with the means of de-
fence against traitorous and secret enemies in every State and dis>
trict of the country; though by its use some of the guilty were brought
to swift and just judgment, and others deterred from crime or driven
to flight; though by this means the innocent and defenceless were
protected; though by this means the city of the gentleman's residence
was saved from the violence and pillage of the mob and the torch of
the incendiary. But, says, the gentleman, it was a usurpation, for-
bidden by the laws of the land !
The same was said of the proclamations of blockade issued April
19 and 27, 1861, which declared a blockade of the ports of the insur-
gent States, and that all vessels violating the same were subjects of
capture, and, together with the cargo, to be condemned as prize. In-
asmuch as Congress had not then recognized the fact of civil war,
these proclamations were denounced as void. The Supreme Court
decided otherwise, and affirmed the power of the Executive thus to
24
subject property on tbe seas to seizure and condemnation. I read
from that decision :
"The Constitution confers upon the President the whole executive
power; he is bound to take care that the laws be faithfully executed;
he is Commander-in-chief of the army and navy of the United States
and of the militia of the several States when called into the actual
service of the United States. * * Whether the President, m ful-
filling his duties as -commander-m-chief in suppressing an insurrec-
tion, has met with such armed hostile resistance, and a civil war of
such alarming proportions as will compel him to accord to them the
character of belligerents, is a question to be decided by him, and this
court must be governed by the decisions and acts of the political
department of the government to which this power was intrusted.
He must determine what degree of force the crisis demands.
"The proclamation of blockade is itself official and conclusive evi-
dence to the court that a state of war existed which demanded and
authorized a recourse to such a measure under the circumstances pe-
culiar to the case." (2 Black, 670.)
It has been solemnly ruled by the same tribunal, in an earlier case,
" that the power is confided to the Executive of the Union to deter-
mine when it is necessary to call out the militia of the States to repel
invasion," as follows : "That he is necessarily constituted the judge
of the existence of the exigency in the first instance, and is bound to
act according to his belief of the facts. If he does so act, and
decides to call forth the militia, his orders for this purpose are in
strict conformity with the provisions of the law ; and it would seem
to follow as a necessary consequence, that every act done by a sub-
ordinate officer, in obedience to such orders, is equally justifiable.
The law contemplates that, under such circumstances, orders shall be
given to carry the power into effect ; and it cannot therefore be a
correct inference that any other person has a just right to disobey
them. The law does not provide for any appeal from the judgment
of the President, or for any right in subordinate officers to review his
decision, and in effect defeat it. Whenever a statute gives a dis-
cretionary power to any person, to be exercised by him upon his own
opinion of certain facts, it is a sound rule of construction, that the
statute constitutes him the sole and exclusive judge of the existence
of those facts." (12 Wheaton, 31.)
In the light of these decisions, it must be clear to every mind that
the question of the existence of an insurrection, and the necessity of
calling into requisition for its suppression both the militia of the
25
States and the army and navy of the United States, and of proclaim-
ing martial law, which is an essential condition of war, whether
foreign or domestic, must rest with the officer of the government who
is charged by the express terms of the Constitution with the per-
formance of this great duty for the common defence and the execu-
tion of the laws of the Union.
But it ia further insisted by the gentleman in this argument, that
Congress has not authorized the establishment of military commissions,
which are essential to the judicial administration of martial law and
the punishment of crimes committed during the existence of a civil
war, and especially, that such commissions are not so authorized to try
persons other than those in the military or naval service of the United
States, or in the militia of the several States, when in the actual service
of the United States. The gentleman's argument assuredly destroys
itself, for ho. insists that the Congress, as the legislative department
of the government, can pass no law which, either in peace or waiy can
constitutionally subject any citizen not in the land or naval forces- to
trial for crime before a military tribunal, or otherwise than by a jury
in the civil courts.
Why does the learned gentleman now tell us that Congress has
not authorized this to be done, after declaring just as stoutly that
by the fifth and sixth amendments to the Constitution no such military
tribunals can be established for the trial of any person not in the
military or naval service of the United States, or in the militia when
in actual service, for the commission of any crime whatever in time
of war or insurrection? It ought to have occurred to the gentle-
man when commenting upon the exception in the fifth article of the
Constitution, that there was a reason for it very different from that
which he saw fit to assign, and that reason, manifestly upon the face
of the Constitution itself, was, that by the eighth section of the first
article, it is expressly provided, that Congress shall have power to
make rules for the government of the land and naval forces, and to
provide for organizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the service of the
United States, and that, inasmuch as military discipline and order are
as essential in an army in time of peace, as in time of war, if the
Constitution would leave this power to Congress in peace, it must
make the exception, so that rules and regulations for the government
of the array and navy should be operative in time of peace as well as
in time of war ; because the provisions of the Constitution give the
right of trial by jury IN TIME OF PEACE, in all criminal prosecutions
2G
by indictment, in terms embracing every human being that may be
held to answer for crime in the United States : and therefore if the
eighth section of the first article was to remain in full force IN TIME OP
PEACE, the exception must be made ; and accordingly, the exception
was made. But by the argument we have listened to, this court is
told, and the. country is told, that IN TIME OP WAR a war which in-
volves in its dread issue the lives and interests of us all the guaran-
tees of the Constitution are in full force for the "benefit of tho^e who
conspire with the enemy, creep into your camps, murder in cold blood,
in the interests of the invader or insurgent, the commander-in-chief of
your army, and secure to him the slow and weak provisions of the civi}
law, while the soldier; who may, when overcome by the demands of
exhausted nature, which cannot be resisted, have slept at his post, is
subject to be tried upon the spot by a military tribunal and shot. The
argument amounts to this: that as military courts and military trials of
civilians in time of war are a usurpation and tyranny, and as soldiers
are liable to such arrests and trial, Sergeant Corbett, who shot Booth,
should be tried and executed by sentence of a military court ; while
Booth's co-conspirators and aiders should be saved from any such in-
dignity as a military trial ! I confess that I am too dull to compre-
hend the logic, the reason, or the sense of such a conclusion ! If there
is any one entitled to this privilege of a civil trial, at a remote period,
and by a jury of the District, IN TIME OP CIVIL WAR, when the foundations
of the republic are rocking beneath the earthquake tread of armed
rebellion, that man is the defender of the republic. It will never do
to say, as has been said in this argument, that the soldier is not lia-
ble to be tried in time of war by a military tribunal for any other
offence than those prescribed in the rules and articles of war. To
my mind, nothing can be clearer than that citizen and soldier alike,
in time of civil or foreign war, after a proclamation of martial law,
are triable by military tribunals for all offences of which they may be
guilty, in the interests of, or in concert with, the enemy..
These provisions, therefore, of yaur Constitution for indictment and
trial by jury in civil courts of all crimes are, as I shall hereafter show,
Bilent and inoperative in time of war when the public safety requires it.
The argument to which I have thus been replying, as the court
will not fail to perceive, nor that public to which the argument is ad-
dressed, is a 1-ibored attempt to establish the proposition, that, by the
Constitution of the United States, the American people cannot 7 even
in a civil war the greatest the world has ever seen, employ martial
law and military tribunals as a means of successfully asserting their
27
authority, preserving their nationality, and securing protection to
the lives and property of all, and especially to the persons of those to
whom they have committed, officially, the great trust of maintaining
the national authority. The gentleman says, with an air of perfect
confidence, that he -denies the jurisdiction of military tribunals for
the trial of civilians in time of war, because neither the Constitution
nor laws justify, but on the contrary repudiate them, and that all the
experience of the past is against it. I might content myself with
saying that the practice of all nations is against the gentleman's con-
clusion. The struggle for our national independence was aided and
prosecuted by military tribunals and martial law, as well as by arms.
The contest for American nationality began with . the establishment,
very soon after the firing of the first gun at Lexington on the 19th
day of April, 1775, of military tribunals and martial law. On the
30th of June, 1775, the Continental Congress provided that "whoso-
ever, belonging to the continental army, shall be convicted of holding
correspondence with, or giving intelligence to the enemy, either in-
directly or directly, shall suffer such punishment as by a cpurt-martial
shall be ordered." "This was found not sufficient, inasmuch as it did
not reach those civilians who, like certain civilians of our day, claim
the protection of the civil law in time of war against military arrests
and military trials for military crimes. Therefore, the same Con-
gress, on the 7th of November, 1775, amended this provision 1 by
striking out the words "belonging to the continental army," and
adopting the article as follows:
"AH persons convicted of holding a treacherous correspondence with, or giving
intelligence to the enemy, shall suffer death or such other punishment as a gen-
eral court-martial shall think proper."
And on the 17th of June, 1776, the Congress added an additional
rule
" That all persons, not members of, nor owing allegiance to, any of the United
States of America, who should be found lurking as spies in or about the fortifi-
cations or encampments of the armies of the United States, or any of them, shall
suffer death, according to the law and usage of nations, by the sentence of a
court-martial, or such other punishment as a court-martial shall direct."
Comprehensive as was this legislation, embracing as it did
soldiers, citizens, and aliens, subjecting all alike to trial for their mili-
tary crimes by the military tribunals of justice, according to the law
arid the usage of nations, it was found to be insufficient to meet that
most dangerous of all crimes committed in the interests of the enemy
by citizens in time of war the crime of conspiring together to assas-
sinate or seize and carry away the soldiers and citizens who were
loyal to the cause of the country. Therefore, on the 27th of Febru-
ary, 1778, the Congress adopted the following resolution :
" Resolved, That whatever inhabitant of these States shall kill, or seize, or take
any loyal citizen or citizens thereof and convey him, her, or them to any place
within the power of the enemy, or shall ENTER INTO ANY COMBINATION for such
purpose, or attempt to carry the same into execution, or hath assisted or shall
assist therein ; or shall, by giying intelligence, acting as a guide, or in any
manner whatever, aid the enemy in the perpetration thereof, he shall suffer
death by the judgment of a court-martial as a traitor, assassin, or spy, if the
offence be committed within seventy miles of the headquarters of the grand or
other armies of these States where a general officer commands." Journals of
Congress, vol. ii, pp. 459, 460.
So stood the law until the adoption of the Constitution of the
United States. Every well-informed man knows that at the time of
the passage 6f these acts, the courts of justice having cognizance of
all crimes against persons, were open in many of the States, and that
by their several constitutions and charters, which were then the
supreme law for the punishment of crimes committed within their
respective territorial limits, no man was liable to conviction but by
the verdict of a jury. Take, for example, the provisions of the con-
stitution of North Carolina, adopted on the 10th of November, 1776,
and in full force at the time of the passage of the last resolution by
Congress above cited, which provisions are as follows:
" That no freeman shall be put to answer any criminal charge but by indict-
ment, presentment, or impeachment."
' That no freeman shall be convicted of any crime but by the unanimous
verdict of a jury of good and lawful men in open court, as heretofore used."
This was the law in 1778 in all the States, and the provision for a
trial by jury every one knows meant a jury of twelve men, impan-
elled and qualified to try the issue in a civil court. The conclusion
is not to be avoided, that these enactments of the Congress under the
Confederation set aside the trial by jury within the several States, and
expressly provided for the trial by court-martial of "any of the in-
habitants" who, during the revolution, might, contrary to the pro-
visions of said law, and in aid of the public enemy, give them
intelligence, or kill any loyal citizens of the United States, or enter
into any combination to kill or carry them away. How conies it, if
the argument of the counsel be true, that this enactment was
passed by the Congress of 1778, when the constitutions of the several
29
States at that day as fully guaranteed trial by jury to every person
held to answer for a crime, as does the Constitution of the United
States at this hour? Notwithstanding this fact, I have, yet to learn
that any loyal man ever challenged, during all the period of our con-
flict for independence and nationality, the validity of that law for the
trial, for military offences, by military tribunals, of all offenders, as the
law, not of peace, but of war, and absolutely essential to the prosecu-
tion of war. I may be pardoned for saying that it is the accepted
common law of nations, that martial-Taw is, at all times and every-
where, essential to the successful prosecution of war, whether it be a
civil or a foreign war. The validity of these acts of the Continental
and Confederate Congress I know was challenged, but only by men
charged with the guilt of their country's blood.
Washington, the peerless, the stainless, and the just, with whom God
walked through the night of that great trial, enforced this just and
wise enactment upon all occasions. On the 30th of September, 1780,
Joshua H. Smith, by the order of General Washington, was put upon
his trial before a court-martial, convened in the State of New York,
on the charge of there aiding and assisting Benedict Arnold, in a
combination with the enemy, to take, kill, and seize such loyal citizens
or soldiers of the United States as were in garrison at West Point.
Smith objected to the jurisdiction, averring that he was a private citi-
zen, not in the military or naval service, and therefore was only amen-
able to the civil authority of the State, whose constitution had guaran-
teed the right of trial by jury to all persons held to answer for crime.
(Chandler's Criminal Trials, vol. 2, p. 187.) The constitution of New-
York then in force had so provided; but, notwithstanding that, the
court overruled the plea, held him to. answer, and tried him. I re-
peat, that when Smith was thus tried by court-martial, the constitu-
tion of New York as fully guaranteed trial by jury in the civil courts
to all civilians charged and held to answer for crimes within the limits
of that State, as does the Constitution of the United States guarantee
such trial within the limits of the District of Columbia. By the
second of the Articles of Confederation each State retained "its
sovereignty," and every power, jurisdiction, and right not expressly
delegated to the United States in Congress assembled. By those
articles there was no express delegation of judicial power; therefore
the States retained it fully.
If the military courts, constituted by the commander of the army of
the United States under the Confederation, who was appointed only by
a resolution of the Congress, without any express grant of power to
30
authorize it his office not being created by the act of the people in
their fundamental law had jurisdiction in every State to try and put
to death "any inhabitant" thereof who should kill any loyal citizen
or enter into "any combination" for any such purpose therein iu
time of war, notwithstanding the provisions of the constitution and
laws of such States, how can any man conceive that under the Con-
stitution of the United States, which is the supreme law over every
State, anything in the constitution and laws of such State to the con-
trary notwithstanding, and the supreme law over every Territory of the
republic as well, the Commander-in-chief of the army of the United
States, who is made such by the Constitution, and by its supreme au-
thority clothed with the power and charged with the duty of direct-
ing and controlling the whole military power of the United States in
time of rebellion or invasion, has not that authority ?
I need not remind the court that one of the marked differences be-
tween the Articles of Confederation and the Constitution of the United
States was, that, under the Confederation, the Congress was the sole
depository of all federal power. The Congress of the Confederation,
said Madison, held "the command of the army." (Fed., No. 38.) Has
the Constitution, which was ordained by the people the better "to
insure domestic tranquillity and to provide for the common defence, ''so
lettered the great power of .^elf-defence against armed insurrection
or invasion that martial law, so essential in war, is forbidden by
that great instrument? I will yield to no man in reverence for or
obedience to the Constitution of my country, esteeming it, as I do, a
new evangel to the nations, embodying the democracy of the New
Testament the absolute equality of all men before the law, in respect
of those rights of human nature which are the gift of God, and there-
fore as universal as the material structure of man. Can it be that
this Constitution of ours, so divine in its spirit of justice, so benefi-
cent in its results, so full of wisdom and goodness and truth, under
which we became one people, a great and powerful nationality, has,
in terms or by implication, denied to this people the power to crush
armed rebellion by war, and to arrest and punish, during the exist-
ence of such rebellion, according to the laws of war and the usages
of nations, secret conspirators, who aid and abet the public enemy ?
Here is a conspiracy, organized and prosecuted by armed traitors
and hired assassins, receiving the moral support of thousands
iu every State and district, who pronounced the war for the
Union a failure, and your now murdered but immortal Commander-in-
Chief a tyrantj the object of which conspiracy, as the testimony
31
shows, was to aid the tottering rebellion-which struck at the nation's
life. It is in evidence that Davis, Thompson, and others, chiefs in
this rebellion, in aid of the same, agreed and conspired with others to
poison the fountains of water which supply your commercial metrop-
olis, and thereby murder its inhabitants; to secretly deposit in the
habitations of the people and in the ships in your harbors inflammable
materials, and thereby destroy them by fire; to murder by the slow
and conouming torture of famine your soldiers, captive in their hands;
to import pestilence in infected clothes to be distributed in your cap-
ital and camps, and thereby murder the surviving heroes and defend-
ers of the republic, who, standing by the holy graves of your unre-
turning brave, proudly and defiantly challenge to honorable combat
and open battle all public enemies, that their country may live; and,
finally, to crown this horrid catalogue of crime, this sum of all human
atrocities, conspired, as charged upon your. record, with the accused
and John Wilkes Booth and John H. Surratt, to kill and murder in
your capital the executive officers of your government and the com-
mander of your armies. When this conspiracy, entered into by these
traitors, is revealed by its attempted execution, and the foul and
brutal murder of your President in the capital, you are told that it is
unconstitutional, in order to arrest the further execution of the con-
spiracy, to interpose the military power of this government for the
arrest, without civil process, of any of the parties thereto, and for
their trial by a military tribunal of justice. If any such rule had
obtained during our struggle for independence, we never would have
been a nation. If any such rule had been adopted and acted upon
now, during the fierce struggle of the past four years, no man can
say that our nationality would have thus long survived.
The whole people of the United States by their Constitution have
created the office of President of the United States and commander-
in-chief of the army and navy, and have vested, by the terms of thai
Constitution, in the person of the President and cornmander-in-chief,
the power to enforce the execution of the laws, and preserve, protect,
and defend the Constitution.
The question may well be asked : If, as commander-in-chief, the
President may not, in time of insurrection or war, proclaim and ex-
ecute martial law, according to the usages of nations, how he can
successfully perform the duties of his office execute the laws, pre-
serve the Constitution, suppress insurrection, and repel invasion?
Martial law and military tribunals are as essential to the successful
prosecution of war as are men, and arms, and munitions. The Cousti-
totion of the United States has vested the power to declare war and
raise armies and navies exclusively in the Congress, and the power
to prosecute the war and command the army and navy exclusively in
the President of the United States. As, under the Confederation,
the commander of the army, appointed only by the Congress was
by the resolution of that Congress empowered to act as he might think
proper for the good and welfare of the service, subject only to such
restraints or orders as the Congress might give ; so, under the Con-
stitution, the President is, by the people who ordained that Consti-
tution and declared him commander-in-chief of the army and navy,
vested with full power to direct and control the army and navy of
the United States, and employ all the forces necessary to preserve,
protect, and defend the Constitution and execute the laws-, as enjoined
by his oath and the very letter of the Constitution, subject to no
restriction or direction save such as Congress may from time to time
prescribe.
That these powers for the common defence, intrusted by the Con-
stitution exclusively to the Congress and the President, are, in time of
civil war or foreign invasion, to be exercised without limitation or
restraint, to the extent of the public necessity, and without any in-
tervention of the federal judiciary or of State constitutions or State
laws, are facts in our history not open to question.
The position is not to be answered by saying you make the Ameri-
can Congress thereby omnipotent, and clothe the American Execu-
tive with the asserted attribute of hereditary monarchy the king
can do no wrong. Let the position be fairly stated that the Con-
gress and President, in war as in peace, are but the agents of the
whole people, and that this unlimited power for the common defence
against armed rebellion or foreign invasion is but the power of the
people intrusted exclusively to the legislative and executive depart-
ments as their agents, for any and every abuse of which these agents
are directly responsible to the people and the demagogue cry of an
omnipotent Congress, and an Executive invested with royal preroga-
tives, vanishes like the baseless fabric of a vision. If the Congress,
corruptly, or oppressively, or wantonly abuse this great trust, the
people by the irresistible power of the ballot hurl them from place.
If the President so abuse the trust, the people by their Congress
withhold supplies, or by impeachment transfer the trust to better
hands, strip him of the franchises of citizenship and of office, and
declare him forever disqualified to hold any position of honor, trust,
or power under the government of his country.
33
I can understand very well why men should tremble at the exercise
of this great power by a monarch whose person, by the constitution
of his realm, is inviolable, but I cannot conceive how any American
citizen, who has faith in the capacity of the whole people to govern
themselves, should give himself any concern on the subject. Mr.
Hallam, the distinguished author of the Constitutional History of
England, has said :
"Kitigs love to display the divinity with which their flatterers invest them
in nothing: so much as in the instantaneous execution of their will, and to stand
revealed, as it were, in the storm and thunderbolt when their power breaks
through the operation of secondary causes and awes a prostrate nation without
the intervention of law."
How just are such words when applied to an irresponsible monarch 1
how absurd, when applied to a whole people 1 , acting through their
duly appointed agents, whose will, thus declared, is the supreme law,
to awe into submission and peace and obedience, not a* prostrate
nation, but a prostrate rebellion ! The same great author utters the
fact which all history attests, when he says :
" It has been usual for all governments during actual rebellion to proclaim
martial law for the suspension of civil jurisdiction ; and this anomaly, I must
admit," he adds, " is very far from being less indispensable at such unhappy
seasons where the ordinary mode of trial, is by jury, than where the right of
decision resides in the court." Const. Hist., vol. i, ch. 5, p. 326.
That the power to proclaim martial law and fully or partially sus-
pend the civil jurisdiction, federal and state, in time of rebellion or
civil war, and punish by military tribunals all offences committed in
aid of th,e public enemy, is conferred upon Congress and the Execu-
tive, necessarily results from the unlimited grants of power for the
common d-efence to which I have already briefly referred. I may
be pardoned for saying that this position is not assumed by me for
the purposes of this occasion, but that early in the first year of this
great struggle for our national life I proclaimed it as 9, representa-
tive of the people, under the obligation of my oath, and, as I then
believed, and still believe, upon the authority of the great men who
formed and fashioned the wise and majestic fabric of American gov-
ernment.
Some of the citations which I deemed it my duty at, that time to
make, and some of which I now reproduce, have, I am pleased to
say, found a wider circulation in books that have since been pub-
lished by others.
When the Constitution was on trial for its deliverance before the
34
people of the several States, its ratification was opposed on the
ground that it conferred upon Congress and the Executive unlimited
power for the common defence. To all such objectors and they were
numerous in every State that great man, Alexander Hamilton, whose
words will live as long as our language lives, speaking to the listening
people of all the States and urging them riot to reject that matchless
instrument which bore the name of Washington, said :
" The authorities essential to the care of the common defence are these : To
raise armies ; to build and equip fleets; to prescribe rules for the government
of both; to direct their operations; to provide for their support. These pow-
ers ought to exist WITHOUT LIMITATION ; because it is impossible to foresee or
define the extent and variety of national exigencies, and the correspondent ex-
tent and variety of the means which may be necessary to satisfy them.
"The circumstances that endanger the safety of nations are infinite; and
for this reason no constitutional shackles can wisely be imposed on the power
to which the care of it is committed. * * This power ought
to be under the direction of the same councils which are appointed to preside
over the common defence. * * It must be admitted, as a ne-
cessary consequence, that there can be no limitation of that authority which is
to provide for the defence and protection of the community, in any manner es-
sential to its efficacy; that is, in any 'matter essential to the formation, direction,
or support of the national forces."
He adds the further remark : " This is one of those truths which, to a cor-
rect and unprejudiced mind, carries its own evidence along with it; and may
be obscured, but cannot be made plainer by argument or reasoning. It rests
upon axioms as simple as they are universal the means ought to be propor-
tioned to the end; the persons from whose agency the attainment of any end is
expected ought to possess the means by which it is to be attained." Fcdcral-
t&t, No. 23.
In the same great contest for the adoption of the Constitution
Madison, sometimes called the Father of the Constitution, said:
" Is the power of declaring Avar necessary? No man will answer this ques-
tion in the negative. * * Is the power of raising armies and
equipping fleets necessary ? * . * * It is involved in the power
of self-defence. ^ * * With what color of propriety could
the force necessary for defence be limited by those who cannot limit the force of
The means of security can only be regu-
lated by the means and the danger of attack. * * * It is in
vain to oppose constitutional barriers to the impulse of self-preservation. It is
worse than in vain, because it plants in the Constitution itself necessary usur-
pations of power." Federalist, No. 41.
With this, construction, proclaimed both by the advocates and oppo-
35
nents of its ratification, the Constitution of the United States was ac-
cepted and adopted, and that construction has been followed and
acted upon, by every department of the government to this day.
It was as well understood then in theory as it has since been
illustrated in practice, that the judicial power, both federal, and
State, had no voice and could exercise no authority in the conduct
and prosecution of a war,, except in subordination to the political de-
partment of the government. The Constitution contains the signifi-
cant provision, ' ' The privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion or invasion the public
safety may require i-t."
What was this but a declaration, that in time of rebellion, or in-
vasion, the public safety is the highest law ? that so far as necessary
the civil courts (of which the Commander-in-Chief, under the direction
of Congress, shall be the sole judge) must be silent, and the rights
of each citizen, as secured in time of peace,' must yield to the wants,
interests, and. necessities of the nation? Yet we have been gravely
told by the gentleman, in his argument, that the maxim, salus populi
supremaestlex, is but fit for a tyrant's use.. Those grand. men, whom
God taught to Build the fabric of empire, thought otherwise,
when they put that maxim into the Constitution of their country. It
is very clear that the Copstitution recognizes the great principle
which underlies the structure of society and of all civil government ;
that no man lives for himself alone, but each for all ; that, if need be, some
must die, that the State may live, because at best the individual is but
for to-day, while the commonwealth is for all time, I agree with the
gentleman in the maxim which he borrows from Aristotle, "Let tlie
public weal be under the protection of the law ;" but I claim that in
war, as in peace, by the very tefrns of the Constitution of the coun-
try, the public safety is under the protection of the law; that the
Constitution .itself has- provided for the declaration of war for the com-
mon defence, to suppress rebellion, to repel invasion, and, by express
terms, has declared that whatever is necessary to make the prosecu-
tion of the war successful, may be done, and ought to be done, and
is therefore constitutionally lawful.
Who will dare to say that in time of civil war "no person shall be
deprived of life, liberty, and property, without due process of law ?"
This is a provision of your Constitution than which there is none
more just or sacred in it; it is, however, only the law of peace, not
of war. In peace, that wise provision of the Constitution must be,
and is, enforced by the civil courts ; in war, it must be, and is, to a
36
great extent, inoperative and disregarded. The thousands slain by
your armies in battle were deprived of life " without due process of
law." All spies arrested, convicted, and executed by your military
tribunals in time of war are deprived of liberty and life "without
due process of law ;' ; all enemies captured and held as prisoners of
war are deprived of liberty "without due process of law j" all owners
whose property is forcibly seized and appropriated in war are de-
prived of their property " without due process of law." The Con-
stitution recognizes the principle of common law, that every man's
house is his castle; that his home, the shelter of his wife and children,
is his most sacred possession; and has therefore specially provided,
" that no soldier shall in time of peace be quartered in any house,
without the consent of its owner, nor in "time of war, but in a manner
to be prescribed by law. [Ill Amend. ;] thereby declaring that, in time
of war, Congress may by law authorize, as it has done, that without
the consent and against the consent of the owner, the soldier may be
quartered in any man's house, and upon any man's hearth. What I
have said illustrates the proposition, that in time of war the civil tribu-
nals of justice are wholly or partially silent, as the public safety may re-
quire; thatthe limitations and provisions of the Constitution in favor
of life, liberty and property are therefore wholly or partially sus-
pended. In this I am sustained by an authority second to none with
intelligent American citizens. Mr. John Quincy Adams, than whom
a, purer man or a wiser statesman never ascended the chair of the
chief magistracy in America, said in his place in the House of Rep-
resentatives, in 183G, that:
" In tin- authority given to Congress by the Constitution of the United States
to declare war, all the powers incident to war are by necessary implication con-
ferred upon the government of the United States. Now the powers incidental
to war are derived, not from their internal municipal source, but from the laws
and usages of nations. Then; are, then, in the authority of Congress and of the
Executive two classes of powers altogether different in their nature and often
incompatible with each other, the war power and the peace power. The peace
power is limited by regulations and restricted by provisions prescribed within
the Constitution itself. The war power is limited only by the laws and usage
of nations. This power is tremendous; it is strictly constitutional, but it
breaks down every. barrier so anxiously erected for the protection of liberty, of
property, and of life."
If this be so, how can there be trial by jury for military offences
in time of civil war? If you cannot, and do not, try the armed
enemy before you shoot him, or the captured enemy before you ira-
37
prison him, why should you be held to op.en the civil courts and try
the spy, the conspirator, and the assassin, in the secret service of
the public enemy, by jury, before you convict and punish him ?
Why not clamor against holding imprisoned the captured armed
rebels, deprived pf their liberty without due process of law ? Are
they not citizens ? Why not clamor against slaying for their crime
of treason, which is cognizable in the civil courts, by your rifled
ordnance and the leaden hail of your musketry in battle, these public
enemies, .without trial by jury? Are they not citizens ? Why is the
clamor confined exclusively to the trial by military tribunals of jus-
tice of traitorous spies, traitorous conspirators, and assassins hired to
do secretly what the armed rebel attempts to do openly murder
your nationality by assassinating its defenders and its executive bffi-
cers ? Nothing can be clearer than that the rebel captured prisoner,
being a citizen of the republic, is as much entitled to trial by jury
before he is committed to prison, as the spy, or the aider and abettor
of the treason by conspiracy ttnd assassination, being a citizen, is
entitled to such trial by jury, before he is subjected to the just
punishment of the law for his great crime. I think that in time of
war the remark of Montesquieu^ touching the civil judiciary, is true :
that "it is next to nothing. " Hamilton well said, "The Executive
holds the sword of the community ; the judiciary has no direction of
the strength of society ; it has neither force nor will ; it has judg-
ment alone, and is dependent for the execution of that upon the arm
of the Executive." The people of these States so understood the
Constitution, and adopted it, and intended thereby, without limita-
tion or restraint, to empower their Congress and Executiye-to author-
ize by law, and execute by force, whatever the public safety might
require, to suppress rebellion or repel invasion.
Notwithstanding all that has been said by the counsel for the ac-
cused to the contrary, the Constitution has received this construction
from the day of its adoption to this hour. The Supreme Court of
the United States has solemnly decided that the Constitution has con-
ferred upon the government authority to employ all the means neces-
sary to the faithful execution of all the powers which that Constitu-
tion enjoins upon the government of the United States, and upon
every department and every officer thereof. Speaking of that pro-
vision of the Constitution which provides that ' ' Congress shall have
power to make all laws that may be necessary and proper to carry
into effect all powers granted to the gftvernment of 'the United States,
or to any department or officer thereof," Chief Justice Marshall, in
38
bis great decision in- the case of McCulloch vs. State of Maryland,
says :
"The powers given to the government imply the ordinary means of execu-
tion, and the government, in all sound reason and fair interpretation, must have
the choice of the means which it deems the most convenient and appropriate to
the execution of the power. * * * The powers of the government
were given for the welfare of the nation; they were intended to endure for ages
to come, and to be adapted to the various crises in human affairs. To prescribe
the specific means by which government should, in all future time, execute its
upwer, and to confine the choice of means to such narrow limits as should not
leave it in the power of Congress to adopt any which might be appropriate and
conducive to the end, would be most unwise and pernicious." (4 Wheaton, 420.)
Words fitly spoken ! which illustrated at the time of their utterance
the wisdom of the Constitution in providing this general grant of
power to meet every possible exigency which the fortunes of war
might cast upon the country, and the wisdom of which words, in
turn, has been illustrated to-day by the gigantic and triumphant
struggle of the people during the last four years for the supremacy
of the Constitution, and in exact accordance with its provisions. In
the light of these wonderful events, the words of Pinckney, uttered
when the illustrious Chief Justice had concluded this opinion, "The
Constitution of my country is immortal!" seem to have become words of
prophecy. Has not this great tribunal, through the chief of all
its judges, by this luminous and profound reasoning, declared that
the government may by law authorize the Executive to employ, in
the prosecution of war, the ordinary means, and all the means neces-
sary and adapted to the end? And in the other decision, before re-
ferred to, in the 8th of Cranch, arising during the late war with
Great Britain, Mr. Justice Story said :
" When the legislative authority, to whom the right to declare war is con-
fided, has declared war in its most unlimited manner, the executive authority,
to whom the execution of the war is confided, is bound to carry it into effect.
lie has a discretion vested in him as to the manner and extent, but he cannot
lawfully transcend the rules of warfare established among civilized nations.
He cannot lawfully exercise powers or authorize proceedings which the civil-
ized world repudiates and disclaims. The sovereignty, as to declaring war and
limiting its effects, rests with the legislature. The sovereignty as to its execu-
tion rests with the President." (Brown vs. United States, 8 Cranch, 153.)
Has the Congress, to whom is committed the sovereignty of the
whole people to declare war, by legislation restricted the President,
39
or attempted to restrict him, in the prosecution of this war for the
Union, from exercising all the "powers" and adopting all the "pro-
ceedings" usually approved and employed by the civilized world ?
He would, in my judgment, be a bold man who asserted that Con-
gress has so legislated; and the Congress which should by law fetter
the executive arm when raised for the common defence would, in
my opinion, be false to their oath. That Congress may prescribe
rules for the government of the army and navy and the militia when
in actual service, by articles of war, is an express grant of power in
the Constitution, which Congress has rightfully exercised, and which
the Executive must and does obey. That Congress may aid the
Executive by legislation in the prosecution of a war, civil or foreign,
is admitted. That Congress may restrain the Executive, and arraign,
try, and condemn him for wantonly abusing the great trust, is ex-
pressly declared in the Constitution. That Congress shall pass all
laws NECESSARY to enable the Executive to execute the laws of the
Union, suppress insurrection, and repel invasion, is one of the express
requirements of the Constitution, for the performance of which the
Congress is bound by an oath.
What was the legislation of Congress when treason fired' its first
gun on Sumter? By ( the act of 1795 it is provided that whenever
the laws of the United States shall be opposed, or the execution
thereof obstructed, in any State, by combinations too powerful to be
suppressed by the ordinary course of judicial proceeding or by the
powers vested in the marshals, it shall be lawful by this act for the
President to call forth the militia of such State, or of any other State or
States, as may be necessary to suppress such combinations and to cause
the laws to be executed. (1st Statutes at Large, 424.) By the act of
1807 it is provided that in case of insurrection or obstruction to the
laws, either of the United, States or of any individual- State or Terri-
tory, where it is lawful for the President of theUnited States to call forth
the militia for the purpose of suppressing such insurrection or of caus-
ing the laws to be duly executed, it shall be lawful for him to employ
for such purpose such part of the land or naval forces of the United
States as shall be judged necessary. (2d Statutes at Large, 443.)
Can any one doubt that by these acts the President is clothed with
full power to determine whether armed insurrection exists in any
State or Territory of the Union ; and if so, to make war upon it with
all the force he may deem necessary or be able to command ? By the
simple exercise of this great power it necessarily results that he may,
in the prosecution of the war for the suppression of such insurrec-
40
tion. suspend as far as may be necessary the civil administration of
justice by substituting in its stead martial law, which is simply the
common law of war. If in such a moment the President may make
no arrests without civil warrant, and may inflict no violence or pen-
alties on persons (as is claimed here for the accused,) without first
obtaining the verdict of juries and the judgment of civil courts, then
is this legislation a mockery, and the Constitution, which not only
authorized but enjoined its enactment, but a glittering generality
and a splendid- bauble. Happily the Supreme Court has settled all
controversy on this question. In speaking of the Rhode Island -insur-
rection, the court say :
" The Constitution of the United States, as far as it has provided for an
emergency of this kind and authorized the general government to interfere ill
the domestic concerns of a State, has treated the subject as political in its na-
ture and placed the power in the hands of that department."
" By the act of 1795 the power of deciding whether the exigency has arisen
upon which the government of the United States is bound to interfere is given
to the President."
The court add :
" When the President has acted and called out the militia, is a circuit court
of the United States authorized to inquire whether his decision was right 1 If
it could, then it would become the duty of the court, provided it came to the
conclusion that the President had decided incorrectly, to discharge those who
were arrested or detained by the troops in the service of the United States."
* "If the judicial power extends so far, the guarantee con-
tained in the Constitution of the United States is a guarantee of anarchy and
not of order." " Yet if this right does not reside in the
courts when the coifflict is raging, if the judicial power is at that time bound
to follow the decision of the political, it must be equally bound when the con-
test is over. It cannot, when peace is restored, punish as offences and crimes
the acts which it before recognized and was bound to recftgnize as lawful."
Luther vs. Borden, 7 Howard, 42, 43.
If this be law, what becomes of the volunteer advice of the vol-
unteer counsel, by him given without money and without price, to
this court, of their responsibility their personal responsibility, for
obeying the orders of the President of the United States in trying
persons accused of the murder of the Chief Magistrate and com-
mander-in-chief of the army and navy of the United States in time
of rebellion, and in pursuance of a conspiracy entered into with the
public enemy? I may be pardoned for asking the attention of the
court to a further citation from this important decision, in which the
court say, the employment of military power to put down an armed
41
insurrection "is essential to the existence of every government, and
is as necessary to the States of this Union as to any other govern-
ment j and if the government of the State deem the armed opposition
so formidable as to require the use of military force and the declara-
tion of MARTIAL LAW, we see no ground upon which this court can
question its authority." (Ibid.) This decision in terms declared that
under the' act of 1795 the President had power to decide and did
decide the question so as to exclude further inquiry whether the
State government which thus employed force and proclaimed mar-
tial law was the government of the State, and therefore was per-
mitted to act. If a State may do this, to, put down armed, insurrec-
tion, may not the federal government as well ? The reason of the
man who doubts it may justly be questioned. I but quote the .lan-
guage of that tribunal, in another case before cited, when I say the
Constitution confers upon the President the whole executive power.
We have seen that the proclamation of blockade made by the Pres-
ident was affirmed by the Supreme Court as a lawful and. valid act,
although its direct effect was to dispose of the property of whoever
violated it, whether citizen or stranger. It is difficult to perceive
what course of reasoning can be adopted, in the light of that decision,
which will justify any man in saying that the President had not the
like power to proclaim martial law in time of insurrection against the
United States, and to establish, according to the customs of war among
civilized nations, military tribunals of justice for its enforcement, and
for the punishment of all crimes committed in the interests of the
public enemy-
These acts of the President have, however, all been legalized by
the subsequent legislation of Congress, although the Supreme Court
decided, in relation to the proclamation of blockade, that no such
legislation was necessary. By the act of August 6, 1861, ch. 63,
sec. 3, it is enacted that
"All the acts, proclamations, and orders of the President of the United States,
after the 4th of March, 1861, respecting the army and navy of the United States,
and calling out, or relating to, the militia or volunteers from the States, are
hereby approved in all respects, legalized, and made valid to the same extent
and with the same effect as if, they had been issued and done under the previous
express authority and direction of the Congress of the United States." (12
Stat. at Large, 326.)
This act legalized, if any such legalization was necessary, all that
the President had done from the day of his inauguration to that hour,
in the prosecution of the war for the Union. He had suspended the
42
privilege of the writ of habeas corpus, and resisted its execution when
issued by the Chief Justice of the United States; he had called out and
accepted the services of a large body of volunteers for a period not
previously authorized by law; he had declared a blockade of the
southern ports; he had declared the southern States in insurrection:
he had ordered the armies to invade them and suppress it; thus ex-
er^isin^, in accordance with the laws of war, power over the life, the
liberty, and the property of the citizens. Congress ratified it and
affirmed it.
In like manner and by subsequent legislation did the Congress rat-
ify and affirm the proclamation of martial law of September 25, 1862.
That proclamation, as the court will have observed, declares that
durinf the existing insurrection all rebels and insurgents, their aiders
and abettors within the United States, and all persons guilty of any
disloyal practice affording aid and comfort to the rebels against the
authority of the United States, shall be subject to martial law and
liable to trial and punishment by courts-martial or military commission;
and second, that the writ of habeas corpus is suspended in respect to
all persons arrested, or who arc now, or hereafter during the rebel-
lion shall be, imprisoned in any fort, <fcc.. by any military authority,
or by the sentence of any court-martial or 'military commission.
One would suppose that it needed no argument to satisfy an intel-
ligent and patriotic citizen of the United States that, by the ruling
of the iSupreme Court cited, so much of this proclamation as declares
that all rebels and insurgents, their aiders and abettors, shall be sub-
ject to martial law and be liable to trial and punishment by court-
martial or military commission, needed no ratification by Congress.
Every step that the President took against rebels and insurgents \vas
taken in pursuance of the rules of war and was an exercise of martial
law. Who says that he should not deprive them, by the authority of
this law, of life and liberty? Are the aiders and abettors of these in-
surgents entitled to any higher consideration than the armed insur-
gents themselves? It is against these that the President proclaimed
martial law, and against all others who were guilty of any disloyal
practice affording aid and comfort to rebels against the authority of
the United States. Against these he suspended the privilege of the
writ of habeas corpus; and these, and only such as these, were by
that proclamation subjected to trial and punishment by court-martial
or military commission.
That the Proclamation covers the offence charged here, no man will,
or dare, for a moment deny. Was it not a disloyal practice ? Was
43
it not aiding and abetting the insurgents and rebels to enter into a
conspiracy with them to kill and murder, within your capital and
your intrenched camp, the Commander-in'- Chief of our army, your
Lieutenant General, and the Vice-President, and the Secretary of
State, with intent thereby to aid the rebellion, and subvert the
Constitution and laws of the United States? But it is said that the
President could not establish a court for their trial, and therefore
Congress must ratify and affirm this Proclamation. I have'said be-
fore that such an argument comes with ill grace from the lips of him
who declared as solemnly that neither by the Congress nor by the
President could either the rebel himself or his aider or abettor be
lawfully and constitutionally subjected to trial by any military tri-
bunal, whether court-martial or military commission. But the Con-
gress did ratify, in the exercise of the power vested in them, every
part of this Proclamation. I have said, upon the authority of the
fathers of the Constitution, and of its judicial interpreters, that
Congress has power by legislation to aid the Executive in the sup-
pression of rebellion, in executing the laws of the Union when re-
sisted by armed insurrection, and in repelling invasion.
By the act of March 3, 1863, the Congress of the United States,
by the first section thereof, declared that during the present rebellion
the President of the United States, whenever in his judgment the
public safety may require it, is authorized to suspend the writ of
habeas corpus in any case throughout the United States or any part
thereof. By the fourth section of the same act it is declared that
anv order of the President, or under his authority, made at any time
during the existence of the present rebellion, shall be a defence in all
courts to any action or prosecution, civil or .criminal, pending or to
be commenced, for any search, seizure, arrest, or imprisonment, made,
done, or committed, or acts omitted to "be done, under and by virtue
of such order. By the fifth section it is provided, that, if any suit or
prosecution, civil or criminal, has been or shall be commenced in
any State court against any officer, civil or military, or against any
other person, for any arrest or imprisonment made, or other trespasses
or wrongs done or committed, or any act omitted to be done at any
time during the present rebellion, by virtue of or under color of any
authority derived from or exercised by or under the President of the
United States, if the defendant shall, upon appearance in such court,
file a petition stating the facts upon affidavit, &c. , as aforesaid, for the
removal of the cause for trial to the circuit court of the United States,
it shall be the duty of the State court, upon his giving security, to
44
proceed no further in the cause or prosecution. Thus declaring that
all orders of the President, made at any time during the existence of
the present rebellion, and all acts done in pursuance thereof, shall be
held valid in the courts of justice. Without further inquiry, these
provisions of this statute embrace Order 141, which is the proclama-
tion of martial law, and necessarily legalize every act done under it,
either before the passage of the act of 1863 or since. Inasmuch as
that Proclamation ordered that all rebels, insurgents, their aiders and
abettors, and persons guilty of any disloyal practice affording aid
and comfort to rebels against the authority of the United States, at
any time during the existing insurrection, should be subject to martial
law, and liable to trial and punishment by a military commission, the
sections of .the law just cited declaring lawful all acts done in pursu-
ance of such order, including, of course, the trial and punishment by
military commission of all such offenders, as directly legalized this
order of the President as it is possible for Congress to legalize or au-
thorize any executive act whatever. (12 Stat. at Large, 755-' 6.)
But after assuming and declaring with great earnestness in his
argument that no person could be tried and convicted for such crimes
by any military tribunal, whether a court-martial or a military com-
mission, save those in the land or naval servrce in time of war, the
gentleman makes the extraordinary statement that the creation of a
military commission must be authorized by the legislative department,
and demands, if there be any such legislation, "let the statute be
produced." . The statute has been produced. The power so to try,
says the gentleman, must be authorized by Congress, when the de-
mand is made for such authority. Does not the gentleman thereby
give up his argument, and admit, that if the Congress has so author- %
ized the trial of all aiders and abettors of rebels or insurgents for
whatever they do in aid of such rebels and insurgents during the in-
surrection, the statute and proceedings under it are lawful and
valid ? I have already shown that the Congress have so legislated
by expressly legalizing Order No. HI, which directed the trial of all
rebels, their aiders and abettors, by military commission. Did not
Congress expressly legalize this order by declaring that the' order
shall be a defence in all courts to any action or prosecution, civil or
criminal, for acts done in pursuance of it? No amount of argument
could make this point clearer than the language of the statute itself.
But, says the gentleman, if there be a statute authorizing trials by
military commission, "Let it be produced."
By the act of March 3, 1863, it is provided in section thirty that
45
in time of war, insurrection, or rebellion, murder and assault with
intent to kill, &c.,when committed by persons in the military service,
shall be punishable by the sentence of a court-martial or military
commission, and the punishment of such offences shall never be less
than those inflicted by the laws of the State or District in which they
may have been committed. By the 38th section of the same act,
it is provided that all persons who. in time of war or rebellion against
the United States, shall be found lurking or acting as spies in or
about the camps, &c., of the United States, or elsewhere, shall be
triable by a military commission, and shall, upon conviction, suffer
death. Here is a statute which expressly declares that all persons,
whether citizens or strangers, who in time of rebellion shall be found
acting as spies, shall suffer death upon conviction by a military com-
mission. Why did not the gentleman give us some argument upon
this law ? We have seen that it was the existing law of the United
States under the Confederation. Then, and since, men not in.the land
or naval forces- of the United States have suffered -death for this
offence upon conviction by courts-martial. If it was competent for
Congress to authorize their trial by courts-martial, it was equally
competent for Congress to authorize their trial by military commis-
sion, and accordingly they have done so. By the same authority the
Congress may extend the jurisdiction of military commissions over
all military offences or crimes committed in time of rebellion or war
in aid of the public enemy ; and it certainly stands with right reason,
that if it were just to subject to death, by the sentence of a military
commission, all persons who should be guilty merely of lurking as
spies in the interests of the public enemy in time of rebellion, though
they obtained no information, though they inflicted no personal
injury, but were simply overtaken and detected in the endeavor to
obtain intelligence- for the enemy, those who enter into conspiracy
with the enemy, not only to lurk as spies in your camp, but to lurk
there as murderers and assassins, and who, in pursuance of that con-
spiracy, commit assassination and murder upon the Cornmander-in-
Chief of your army within your camp and in aid of rebellion, should
be subject in like manner to trial by military commission. (Stat. at
Large 12, 736-' 7, ch. 8.)
Accordingly, the President having so declared, the Congress, as we
have stated, have affirmed that his order was valid, and that all per-
sons acting by authority, and consequently as a court pronouncing
such sentence upon the offender as the usage of war requires, are jus-
tified by the law of the land. With all respect, permit me to say
46
ttat the learned gentleman has manifested more acumen and ability
in his elaborate argument by what he has omitted to say than by any-
thin- which he has said. By the act of July 2, 1864, cap. 215, it is
provided that the commanding general in the field, or the commander
of the department, as the case may be, shall have power to carry into
execution all sentences against guerilla marauders for robbery, arson,
burglary, &c., and for violation of the laws and customs of war, as
weU as sentences against spies, mutineers, deserters, and murderers.
From the legislation I have cited, it is apparent that military com-
missions are expressly recognized by the la\v-inaking power ; that
they are authorised to try capital offences against citizens not in the
service of the United States, and to pronounce the sentence of death
upon them ; and that the commander of a department, or the com-
manding general in the field, may carry such sentence into execution.
But, says the gentleman, grant all this to be so ; Congress has not
declared in what manner the court shall be constituted. The answer
to that objection has already been anticipated in the citation from
Benet, wherein it appeared to be the rule of the law martial that in
the punishment of all military offences not provided for by the written
law of the laud, military commissions are constituted for that purpose
by the authority of the commanding officer or the Commander-in-
Chief, as the case may be, who selects the officers of a court-martial ;
that they are similarly constituted, and their proceedings conducted
according to the same general rules. That is a part of the very law-
martial which the President proclaimed, and which the Congress has
legalized. The Proclamation has declared that all such offenders
shall be tried by military commissions. The Congress has legalized
the same by the act which I have cited ; arid by every intendment it
must be taken that, as martial law is by the Proclamation declared to
be the rule by which they shall be tried, the Congress, in affirming
the act of the President, simply declared that they should be tried
according to the customs of martial law ; that the commission should
be constituted by the Commander-in- Chief according to the rule of
procedure known as martial law; and that the penalties inflicted
should bo in accordance with the laws of war and the usages of na-
tions. Legislation no more definite than this has been upon your
statute-book since the beginning of the century, and has been held
by the Supreme Court of the United States valid for the punishment
of offenders.
By the 32d article of the act of 23d April, 1800, it is provided that
"all crimes committed by persons belonging to the navy which are
not specified in the foregoing articles shall be punished according to
47
the laws and customs in such cases at sea." Of this article the Su-
preme Court of the United States say, that when offences and crimes
are not given in terms or by definition the want of it may be supplied
by a comprehensi\ r e enactment such as the 32d article of the rules
for the government of the navy; which means that courts-martial
have jurisdiction of such crimes as are not specified, but which have
been recognized to begrimes and offences by the usages in the navies
of all nations, and that they shall be punished according to the laws
and customs of the sea. (Dynes vs. Hoover, 20 Howard, 82.)
But it is a fact that must not be omitted in the reply which I make
to the gentleman's argument, that an effort was made by himself and
others in the Senate of the United States, on the 3d of March last, to
condemn the arrests, imprisonments, &c., made by order of the-
President of the United States in pursuance of his proclamation, and
to reverse, by the judgment of that body, the law which had been
before passed affirming his action, which effort most signally failed.
Thus we see that the body which by the Constitution, if the
President had been guilty of the misdemeanors alleged against him in
this argument of the gentleman, would, upon presentation of such
charge in legal form against the President, constitute the high court
of impeachment for his trial and condemnation, has decided the ques-
tion in advance, and declared upon the occasion referred to, as they
had before declared by solemn enactment, that this order of the
President declaring martial law and the punishment of all rebels and
insurgents,, their aiders and abettors, by military commission, should
be enforced during the insurrection, as the law of the land, and that the
offenders should be tried, as directed, by military commission. It may
be said that this subsequent legislation of Congress, ratifying and
affirming what had been done by the President, can have no validity.
Of course it cannot if neither the Congress nor the Executive can
authorize the proclamation and enforcement of martial law in the
suppression of rebellion for the punishment of all persons committing
military offences in aid of that rebellion. Assuming, however, as the
gentleman seemed to assume, by asking for the legislation of Con-
gress, that there is such power in Congress, the Supreme Court of
the United States has solemnly affirmed that such ratification is
valid. (2 Black, 671.)
The gentleman's argument is full of citations of English precedent.
There is a late English precedent bearing upon this point the power
of the legislature, by subsequent enactment, to legalize executive
orders, arrests, and imprisonment of citizens that I beg leave to
commend to his consideration. I refer to the statute of 11 and 12
48
Victoria, ch. 35, entitled "An act to empower the lord lieutenant,
or other chief governor or governors of Ireland, to apprehend and de-
tain until the first day of March, 1849, such persons as he or they
shall suspect of conspiring against her Majesty's person and, govern-
ment " passed July 25, 1848, which statute in terms declares that
all and every person and persons who is, are, or shall be, within that
period, within that part of the United Kingdom of England and Ire-
land called Ireland at or on the day the act shall receive her Majesty's
roval assent, or after, by warrant for high treason or treasonable
practices, or suspicion of high treason or treasonable practices, signed
by the lord lieutenant, or other chief governor or governors of Ire-
laud for the time being, or his or their chief secretary, for such causes
as aforesaid, may be detained in safe custody without bail or main
prize, until the first day of March, 1849; and that no judge or justice
shall bail or try any such person or persons so committed, without
order from her Majesty's privy council, until the said first day of
March, 1849, any law or statute to the contrary notwithstanding.
The 2d section of this act provides that, in cases where any persons
have been, before the passing of the act, arrested, committed, or de-
tained for such cause by warrant or warrants signed by the officers
aforesaid, or either of them, it may be lawful for the person or per-
sons to \vhom such warrants have been or shall be directed, to detain
such person, or persons in his or their custody in any place whatever
in Ireland; and that such person or persons to whom such warrants
have been or shall be directed shall be deemed and taken, to all in-
tents and purposes, lawfully authorized to take into safe custody and
be the lawful jailers and keepers of such persons so arrested, com-
mitted, or detained.
Here the power of arrest is given by the act of Parliament to the
governor or his secretary; the process of the civil courts was wholly
suspended; bail was denied and the parties imprisoned, and this not
by process of the courts, but by warrant of a chief governor or his
secretary; not for crimes charged to have been committed, but for be-
ing suspected of treasonable practices. Magna charta it seems op-
poses no restraint, notwithstanding the parade that is made about it
in this argument, upon the power of the Parliament of England to
legalise arrests and imprisonments made before the passage of the
act upon an executive order.and without colorable authority of statute
law, and to authorize like arrests and imprisonments of so many of
six million of people as such executive officers might suspect of trea-
sonable practices.
49
But, says the gentleman, whatever may be the precedents, English
or American, whatever may be the provisions of the Constitution,
whatever may be the legislation of Congress, whatever may be the
proclamations and orders of the President as commander-in-chief, it is a
usurpation and a tyranny in time of rebellion and civil war to subject
any citizen to trial for any crime before military tribunals, save such
citizens as are in the land or naval forces, and against this usurpa-
tion, which he asks this court to rebuke by solemn decision, he appeals
to public opinion. I trust that I set as high value upon enlightened
public opinion as any man. I recognize it' as the reserved power of
the people which creates and dissolves armies, which creates and
dissolves legislative assemblies, which enacts and repeals fundamental
laws, the better to provide for personal security by the due adminis-
tration of justice. To that public opinion upon this very question of
the usurpation of authority, of unlawful arrests, and unlawful im-
prisonments, and unlawful trials, condemnations, and executions t/y
the late President of the United States, an appeal has already
been taken. On this very issue the President was -tried before
the tribunal of the people, that great. nation of freemen who cover
this continent, looking out upon Europe from their eastern and upon
Asia from their western homes. That people came to the consideration
of this issue not unmindful of the fact that the first struggle for the
establishment of our nationality could not have been, and was not, suc-
cessfully prosecuted without the proclamation and enforce/ment of
martial law, declaring, as we have seen, that any inhabitant who,
during that war, should kill any loyal citizen, or enter into any. com-
bination for that purpose, should, upon trial and conviction before a
military tribunal, be sentenced as an assassin, traitor, or spy, and
should suffer death, and that in this last struggle for the maintenance
of American nationality the President but followed the example of
the illustrious Father of his Country. Upon that issue the people
passed judgment on the 8th day of last November, and declared that
the charge of usurpation was false.
From this decision of the people there lies no appeal on this earth.
Who can rightfully challenge the authority of the American people
to decide such questions for themselves? The voice of the people,
thus solemnly proclaimed, by, the omnipotence of the ballot, in favor
of the righteous order of their murdered President, issued by him
for the common defence, for the preservation of the Constitution, and
for the enforcement of the laws of the Union, ought to be accepted,
and will be accepted, I trust, by all just men, as the voice of God. j
4B
50
MAT IT PLEASE THE COURT: I have said thus much touching the right
of the people, under their Constitution, in time of civil war and re-
bellion, to proclaim through their Executive, with the sanction and
approval of their Congress, martial law, and enforce the same according
to the usage of nations.
I submit that it has been shown that, by the letter and spirit
of the Constitution, as well as by its contemporaneous construction,
followed and approved by every department of the government, this
right is in the people ; that it is inseparable from the condition of
war, whether civil or foreign, and absolutely essential to its vigorous
and successful prosecution ; that according to the highest authority
upon constitutional law, the proclamation and enforcement of martial
law are "usual tinder all governments in time of rebellion;" that our
own ] ighest judicial tribunal has declared this, and solemnly ruled
iuat the question of the necessity for its exercise rests exclusively
with Congress and the President ; and that the decision of the politi-
cal departments of the government, that there is an armed rebellion
and a necessity for the employment of military force and martial law
in its suppression, concludes the judiciary.
In submitting what I have said in support of the jurisdiction of this
honorable court, and of its constitutional power to hear and determine
this issue, I have uttered my own convictions ; and for their utter-
ance in defence of my country, and its right to employ all the means
necessary for the common defence against armed rebellion and secret
treasonable conspiracy in aid of such rebellion, I shall neither ask
pardon nor offer apology. I find no words with which more fitly to
conclude all I have to say upon the question of the jurisdiction and
constitutional authority of this court than those employed by the
illustrious Lord Brougham to the House of Peers in support of the
bill before referred to, which empowered the lord lieutenant of
Ireland, and his deputies, to apprehend and detain, for the period of
seven months or more, all such persons within that island as they
shpuld suspect of conspiracy against her Majesty's person and govern-
ment. Said that illustrious man : "A friend of liberty I have lived,
and such will I die ; nor care I how soon the latter event may
happen, if I cannot be a friend of liberty without being a friend of
traitors at the same time a protector of criminals of the deepest
dye an accomplice of foul rebellion and of its concomitant, civil
war, with all its atrocities and all its fearful consequences." (Han-
sard's Debates, 3d series, vol. 100, p. 635.)
51
MAY IT PLEASE THE COURT : It only remains for me to sum up the
evidence, and present my views of the law arising upon the facts in
the case on trial. The questions of fact involved in the issue are :
First, did the accused, or any two of them, confederate and con-
spire together as charged ? and
Second, did the accused, or any of them, in pursuance of such con-
spiracy, and with the intent alleged, commit either or all of the sev-
eral acts specified ?
If the conspiracy be established, as laid, it results that whatever was
said or done by either of the parties thereto, in the furtherance or exe-
cution of the common design, is the declaration or act of all the other
parties to the conspiracy; and this, whether the other parties, at the
time such words were uttered or such acts done by their confederates,
were present or absent here, within the intrenched lines of your
capital, or crouching behind the intrenched lines of Richmond, or
awaiting the results of their murderous plot against their country, its
Constitution arid laws, across the border, under the shelter of the
British flag.
The declared and accepted rule of law in case,s of conspiracy is
that
"In prosecutions for conspiracy it is an established rule that
where several persons are proved to have combined together for the
same illegal purpose, any act done by one of the party, in pursuance
of the original concerted plan, and in reference to the common object,
is, in the contemplation of law as well as in sound reason, the act of
the whole party; and, therefore, the proof of the act will be evidence
against any of the others, who were engaged in the same general
conspiracy, without regard to the question whether the prisoner is
proved to have been concerned in the particular transaction."
(Phillips on Evidence, p. 210.)
The same rule obtains in cases of treason: "If several persons
agree to levy war, some in one place and some in another, and one
party do actually appear in arms, this is a levying of war by all,
as well those who were not in arms as those who were, if it were
done in pursuance of the original concert, for those who made the
attempt were emboldened by the confidence inspired by the general
concert, and therefore these particular acts are in justice imputable
to all the rest." (I East., Pleas of the Crown, p. 97; Roscoe, 84.)
In Ex parte Bollman and Swartwout, 4 Cranch, 126, Marshall, Chief
Justice, rules: "If war be actually levied that is, if a body of men be
52
actually assembled, for the purpose of effecting, by force, a treasonable
purpose, all those who perform any part, however minute, or hoivever
remote from the scene of action, and who are actually leagued in the
general conspiracy, are to be considered as traitors."
In United States vs. Cole et al, 5 McLean, 601, Mr. Justice McLean
says: "A conspiracy is rarely, if ever, proved by positive testimony.
When a crime of high magnitude is about to be perpetrated by a
combination of individuals, they do not act openly but covertly and se-
cretly. The purpose formed is known only to those who enter into
it. Unless one of the original conspirators betray his companions
and give evidence against them, their guilt can be proved only by cir-
cumstantial evidence. * * It is said by some writers on evidence
that such circumstances are stronger than positive proof. A witness
swearing positively, it is said, may misapprehend the facts or swear
falsely, but that circumstances cannot lie.
"The common design is the essence of the charge ; and this may
be made to appear when the defendants steadily pursue the same
object, whether acting separately or together, by common or differ-
ent means, all leading to the same unlawful result. And where
prima facie evidence has been given of a combination, the acts or con-
fessions of one are evidence against all. * * It is reasonable that
where a body of men assume the attribute of individuality, whethei
for commercial business or for the commission of a crime, that the
association should be bound by the acts of one of its members, in
carrying out the design."
It is a rule of the lasv, not to be overlooked in this connexion, that
the conspiracy or agreement of the parties, or some of them, to act
in concert to accomplish the unlawful act charged, may be established
either by direct evidence of a meeting or consultation for the illegal
purpose charged, or more usually,- from the very nature of the case,
by circumstantial evidence. (2 Starkie, 232.)
Lord Mansfield ruled that it was not necessary to prove the actual
fact of a conspiracy, but that it might be collected from collateral
circumstances. (Parson's Case, 1 W. Bkckstone, 392.)
"If," says a great authority on the law of evidence, " on a charge
of conspiracy, it appear that two persons by their acts are pursuing
the same object, and often by the same means, or one performing
part of the act, and the other completing it, for the attainment of the
same object, the jury may draw the conclusion there is a conspiracy.
If a conspiracy be formed, and a person join in it afterwards, he is
equally guilty with the original conspirators." (Roscoe, 415.)
53
"The rule of the admissibility of the acts and declarations of any one
of the conspirators, said or done in furtherance of the common de-
sign, applies in cases as well where only part of the conspirators are
indicted, or upon trial, as where all are indicted and upon trial.
Thus, upon an indictment for murder, if it appear that others, together
with the prisoner, conspired to commit the crime, the act of one,
done in pursuance of that intention, will be evidence against the
rest." (2d Starkie, 237.)
They are all alike guilty as principals. (Commonwealth vs. Knapp,
9 Pickering, 496.; 10 Pickering, 477; 6 Term Reports, 528; 11 East.,
584.)
What is the evidence, direct and circumstantial, that the accused,
or either of them, together with John H. Surratt, John "Wilkes Booth,
Jefferson Davis, George N. Sanders, Beverley Tucker, Jacob Thomp-
son, William C. Cleary, Clement C. Clay, George Harper, and
.George Young, did Combine, confederate, and -conspire, in aid of the
existing rebellion, as charged, to kill and murder, within the military
department of Washington, and within the fortified and intrenched
lines thereof, Abraham Lincoln, late, and, at the time of the- said
combining, confederating, and conspiring, President of 1 the United
States of America and commander-in-chief of the army and navy
thereof; Andrew Johnson, Vice President of the United States;
William H. Seward, Secretary of State of 'the United States; and
Ulysses S. Grant, lieutenant general of the armies thereof, and then
in command, under the direction of the President?
The time, as laid in the charge and specification^ when this con-
spiracy was entered into, is immaterial, so that it appear by the evi-
.dence that the criminal combination and agreement were formed be-
fore the commission of the acts alleged. That Jefferson 'Davis, one
of the conspirators named, was the acknowledged chief and leader of
the existing rebellion against the government of the United States,
and that Jacob Thompson, George N. Sanders, Clement C. Clay,
Beverley Tucker, and others named in the specification, were his duly
accredited and authorized agents to act in the interests of said rebel-
lion, are facts established by the testimony in this case beyond all
question. That Davis, as the leader of said rebellion, gave to those
agents, then in Canada, commissions in blank, bearing the official
signature of his war minister, James A. Seddon, to be by them filled
up and delivered to such agents as they might employ to act in the
interests of the rebellion within the United States, and intended to
be a cover and protection for any crimes they might therein commit
54
in the service of the rebellion, is also a fact established here, and
which no man can gainsay. Who doubts that Kennedy, whose
confession, made in view of immediate death, as proved here,
was commissioned by those accredited agents of Davis to burn
the city of New York? that he was to have attempted it on
the night of the presidential election, and that he did, in com-
bination with his confederates, set fire to four hotels in the
city of New York on the night of the 25th of November last?
Who doubts "that, in like manner, in the interests of the rebellion
and bv the authority of Davis, these his agents also commissioned
Bennett H. Young to commit arson, robbery, and the murder of un-
armed citizens, in St. Albans, Vermont? Who doubts, upon the
testimony shown, that Davis, by his agents, deliberately adopted the
system of starvation for the murder of our captive soldiers in his
hands ; or that, as shown by the testimony, he sanctioned the burn-
ing of hospitals and steamboats, the property of private persons,
and paid therefor from his stolen treasure the sum of thirty-five
thousand dollars in gold? By the evidence of Joseph Godfrey Hyams
it is proved that Thompson the agent of Jefferson Davis paid him
money for the service he rendered in the infamous and fiendish pro-
ject of importing pestilence into our camps and cities to destroy the
lives of citizens and soldiers alike, and into the house of the Presi-
dent for the purpose of destroying his life. It may be said, and
doubtless will be said, by the pensioned advocates of this rebellion,
that Hyams, being infamous, is not to be believed. It is admitted
that ho is infamous, as it must be conceded that any man is infamous
who either participates in such a crime or attempts in anywise to
extenuate it. But it will be observed that Hyams is supported by.
the testimony of Mr. Sanford Conover, who heard Blackburn and the
other rebel agents in Canada speak of this infernal project, and by
the testimony of Mr. Wall, the well-known auctioneer of this city,
whose character is unquestioned, that he received this importation of
pestilence, (of course without any knowledge of the purpose,) and
that Hyams consigned the goods to him in the name of J. W. Harris
a fact in itself an acknowledgment of guilt ; and that he received
afterwards a letter from Harris, dated Toronto, Canada West, Decem-
ber 1, 1864, wherein Harris stated that he had not been able to
come to the States since his return to Canada, and asked for an
account of the sale. He identifies the Godfrey Joseph Hyams
who testified in court as the J. W. Harris who imported the pes-
tilence. The very transaction shows that Hyams' s statement is
55
truthful. He gives the names of the parties connected with this
infamy, (Clement C. Clay, Dr. Blackburn, Rev. Dr. Stuart Robin-
son, J. C. Holcombe all refugees from the confederacy in Canada,)
and states that he gave Thompson a receipt for the fifty dollars paid
to him, and that he was by occupation a shoemaker ; in none of which
facts is there an attempt to discredit him. It is not probable that a
man in his position in life would be able to buy five trunks of cloth-
ing, ship them 'all the way from Halifax to Washington, and then
order them to be sold at auction, without regard to price, solely upon
his own account. It is a matter of notoriety that a part of his state-
ment is verified by the results at Newbern, North Carolina, to
which point, he says, a portion of the infected goods were shipped,
through a sutler ; the result of which was, that nearly two thousand
citizens and soldiers died there about that time with the yellow fever.
That the rebel chief, Jefferson Davis, san-ctioned these crimes,
committed and attempted through the instrumentality of his accred-
ited agents in Canada Thompson, Clay, Tucker, Sanders, CleaVy,
&c. upon the persons and property of the people of the north, there
is positive proof on your record. The letter brought from Richmond,
and taken from the archives of his late pretended government there,
dated February 11, 1865, and addressed to him by a late rebel sena-
tor from Texas, W. S. Oldham, contains the following significant
words : "When senator Johnson, of Missouri, and myself waited on
you a few days since, in relation to the project of annoying and har-
assing the enemy by means of burning their shipping, towns, &c.,
<fcc., there were several remarks made by you upon the subject,
which I was not fully prepared to answer, but which, upon sub-
sequent conference with parties proposing the enterprise, I find
cannot apply as objections to the scheme. First, the 'combusti-
ble materials' consist of several preparations, and not one alone,
and can be used without exposing the party using them to the
least danger of detection whatever. * * * Second, there is no
necessity for sending persons in the military service into the enemy's
country, but the work may be done by agents. * * * I have
seen enough of the effects that can be produced to satisfy me that
in most cases, without any danger to the parties engaged, and in
others but very slight, we can, first, burn every vessel that leaves a
foreign port for the United States ; second, we can burri every trans-
port that leaves the harbor of New York, or other northern port,
with supplies for the armies of the enemy in the south ; third,
burn every transport and gunboat on the Mississippi river, as well
56
as devastate the country of the enemy, and fill his people with ter-i
ror and consternation. * * * For the purpose of satisfying your
mind upon the subject, I respectfully, but earnestly, request that you
will give an interview with General Harris, formerly a member of
Congress from Missouri, who, I think, is able, from conclusive proofs,
to convince you that what I have suggested is perfectly feasible and
practicable."
No one can doubt, from the tenor of this letter, that the rebol Davis
only wanted to be satisfied that this system of arson and murder
could be carried on by his agents in the north successfully and with-
out detection. With him it was not a crime to do these acts, but
only a crime to be. detected in them. But Davis, by his indorsement
on this letter, dated the 20th of February, 18G5. bears witness to
his own complicity and his own infamy in this proposed work of de-
struction and crime for the future, as well as to his complicity in
what had before been attempted without complete success. Ken-
nedy, with his conlederates, had failed to burn the city of New York.
"The combustibles" which Kennedy had employed were, it seems,
defective. This was "a difficulty to be overcome." Neither had
he been able to consummate the dreadful work without subjecting
himself to detection. This was another "difficulty to be overcome."
Davis, on the 20tli of February, 18G5, indorsed upon this letter these
words : "Secretary of State, at his convenience, see General Harris
and learn what plan he has for overcoming the difficulties heretofore ex-
perienced. J. U."
This indorsement is unquestionably proved to be the handwriting
of Jefferson Davis, and it bears witness on its face that the monstrous
proposition met his approval, and that he desired his rebel Secretary
of State, Benjamin, to see General Harris and learn how to over-
come the d'jfivulty heretofore experienced, to wit : the inefficiency of
"the combustible materials" that had been employed, and the lia-
bility of his agents to detection. After this, who will doubt that he
had endeavored, by the hand of incendiaries, to destroy by fire the
property and lives of the people of the north, and thereby "fill them
with terror and consternation;" that he knew his agents had been
unsuccessful ; that he knew his agents had been detected in their
villany and punished for their crime ; that he desired through a more
perfect "chemical preparation," by the science and skill of Professor
McCulloch, to accomplish successfully what had before been unsuc-
cessfully attempted?
The intercepted letter of his agent, Clement C. Clay, dated St.
57
Catherine's, Canada "West, November 1, 1864, is an acknowledgment
and confession of what they had attempted, and a suggestion made
through J. P. Benjamin, rebel Secretary of State, of what remained
to be done, in order to make the "chemical preparations" efficient.
Speaking of this Bennett II. Young, he says : "You have doubtless
learned through the press of the United States of the raid on St; Albans
by about twenty-five confederate soldiers, led by Lieutenant Bennett H.
Young; of their attempt and failure to burn the town; of their robbery
of three banks there of the aggregate amount of about two hundred
thousand dollars ; of their arrest in Canada, by United States forces ; of
their commitment and the pending preliminary trial." He makes ap-
plication, in aid of Young and his associates, for additional documents,
showing that they acted upon the authority of the Confederate States
government, taking care to say, however, that he held such authority at
the time, but that it ought to be more explicit, so far as regards the par-
ticular acts complained of. He states that he met Young at Halifax in
May, 18G4, who developed his plans for retaliation on the enemy; that
he, Clay, recommended him to the rebel Secretary of War; that aftef
this "Young was sent back by the Secretary of War with a commission
as second lieutenant to execute his plans and purposes, but to report to
Hon. and myself," Young afterwards "proposed passing
through New England, burning some towns and robbing- them of
whatever he could convert to the use of the confederate government.
This I approved as justifiable retaliation. He attempted to burn the
town of St. Albans, Vermont, and would have succeeded but for the fail-
ure of the chemical preparation with which he was armed. He then
robbed the banks of funds amounting to over two hundred thousand
dollars. That he was not prompted by selfish or mercenary motives
I am as well satisfied as I am that he is an honest man. He assured
me before going that his effort would be to destroy towns and farm-
houses, but not to plunder or rob; but he said if, after firing a town,
he saw he could take funds from a bank or any house, and thereby
might inflict injury upon the enemy and benefit his own government,
he would do so. He added most emphatically, that w/iatever he took
should be turned over to the government or its representatives in for-
eign lands. My instructions to him were, to destroy whatever was
valuable; not to stop to rob, but if, after firing a town, he could seize
and carry off money or treasury or bank notes, he might do so upon
condition that they were delivered to the proper authorities of the
Confederate States" that is, to Clay himself.
When he wrote this letter it seems that this accredited agent of
Jefferson Davis was as strongly impressed with the usurpation and
despotism of Mr. Lincoln's administration as some of the advocates of
his aiders and abettors seem to be at this day ; and he indulges in the
following statement : 4 ' All that a large portion of the northern people,
especially in the northwest, want to resist the oppressions of the des-
potism at Washington is a leader. They are ripe for resistance, and
it may come soon after the presidential election. At all events, it must
come, if our armies are not overcom'e, or destroyed, or dispersed.
No people of the Anglo-Saxon blood can long endure the usurpations
and tyrannies of Lincoln." Clay does not sign the despatch, but
indorses the bearer of it as a person who can identify him and give
his name. The bearer of that letter was the witness Richard Mont-
gomery, who saw Clay write a portion of the letter, and received it
from his hands, and subsequently delivered it to the Assistant Secre-
tary of War of the United States, Mr. Dana. That the letter is in
Clay's handwriting is clearly proved by those familiar with it. Mr.
Montgomery testifies that he was instructed by Clay to deliver this
letter to Benjamin, the rebel Secretary of State, if he could get
through to Richmond, and to tell him what names to put in the
blanks.
This letter leaves no doubt, if any before existed in the mind of
any one who had read the letter of Oldham and Davis' s indorsement
thereon, that " the chemical preparations" and " combustible mate-
rials" had been tried and had failed, and it had become a mutter of
great moment and concern that they should be so prepared as, in the
words of Davis, " to overcome the difficulties heretofore experi-
enced ;" that is to say, complete the work of destruction, and secure
the perpetrators against personal injury or detection in the perform-
ance of it.
It only remains to be seen whether Davis, the procurer of arson
and of the indiscriminate murder of the innocent and unoffending
necessarily resultant therefrom, was capable also of endeavoring to
procure, and in fact did procure, the murder, by direct assassination,
of the President of the United States and others charged with the duty
of maintaining the government of the United States, and of suppressing
the rebellion in which this arch-traitor and conspirator was engaged.
The official papers of Davis, captured under the guns of our victo-
rious army in his rebel capital, identified beyond question or shadow
of doubt, and placed upon your record, together with the declara-
tions and acts of his co-conspirators and agents, proclaim to all the
world that he was capable of attempting to accomplish his treasonable
59
procuration of the murder of the late President, and other chief of-
ficers of the United States, by the hands of hired assassins.
In the fall of 1864 Lieutenant W. Alston addresses to "his excel-
lency" a letter now. before the court, which contains the following
words :
' ' I now offer you my services, and if you will favor me in my designs,
I will proceed, as soon as my health will permit, to rid my country of
some of her deadliest enemies, by striking at the very hearts' blood of
those who seek to enchain her in slavery. I consider nothing dishon-
orable having such a tendency. All I ask of you is, to favor me by
granting me the necessary papers. &c., to travel on. * * * *
lam perfectly familiar with the north, and feel confident that I can
execute anything I undertake. I was in the raid last June in Ken-
tucky, under General John H. Morgan; ' * * * was taken pris-
oner; * * * escaped from them by dressing myself in the ga'rb
of a citizen. * * * I went through to the Canadas, from whence,
by the assistance of Colonel J. P. Holcomb, I succeeded in working my
way around and through the blockade. * * * I should like to
have & personal interview with you in order to perfect the arrange-
ments before starting."
Is there any room to doubt that this was a proposition to assas-
sinate, by the hand of this man and his associates, such persons in the
north as he deemed the "deadliest enemies" of the rebellion? The,
weakness of the man who for a moment can doubt that such was the
proposition of the writer of this letter is certainly an object of com-
miseration. What had Jefferson Davis to say to this proposed assas-
sination of the " deadliest enemies" in the north of his great treason ?
Did the atrocious suggestion kindle in him indignation against the
villain who offered, with his own hand, to strike the blow ? Not
at all. On the contrary, he ordered his private secretary, on the
29th of November, 1864, to indorse upon the letter these words:
"Lieutenant W. Alston; accompanied raid into Kentucky, and was cap-
tured, but escaped into Canada, from whence he found his way back.
Now offers his services to rid the country of some of its deadliest ene-
mies; asks for papers, &c. Respectfully referred, by direction of the
President, to the honorable Secretary of War." It is also indorsed,
for attention, "By order. (Signed) J. A.Campbell, Assistant Secre-
tary of War."
Note the fact in this connexion, that Jefferson Davis himself, as
well as his subordinates, had, before the date of this indorsement,
concluded that Abraham Lincoln was "the deadliest enemy" of the
60
rebellion. You hear it in the rebel camp in Virginia in 1863, declared
by Booth, then and there present, and assented to by rebel officers,
that "Abraham Lincoln must be killed." You hear it in that
slaughter- pen in Georgia, Andersonville, proclaimed among rebel
officers, who, by the slow torture of starvation, inflicted cruel and
untimely death on ten thousand of your defenders, captives in their
hands whispering, like demons, their horrid purpose, "Abraham
Lincoln must be killed." And in Canada, the accredited agents of
Jefferson Davis, as early as October, 1864, and afterwards, declared
that " Abraham Lincoln must be killed" if his re-election could not
be prevented. These agents in Canada, on the 13th of October,
1864, delivered, in cipher, to be transmitted to Richmond by Richard
Montgomery, the witness, whose reputation is unchallenged, the fol-
lowing communication :
"OCTOBER 13, 1864.
"We again urge the immense necessity of our gaining immediate
advantages. Strain every nerve for victory. We now look upon
the re-election of Lincoln in November as almost certain, and we
need to whip his hirelings to prevent it. Besides, with Lincoln re-
elected, and his armies victorious, we need not hope even for recog-
nition, much less the help mentioned in our last. Holcomb will ex-
plain this. Those figures of the Yankee armies are correct to a
unit. Our f fiends shall be immediately set to tvork as you direct. 1 '
To which an official reply, in cipher, was delivered to Mont-
gomery by an agent of the state department in Richmond, dated
October 19, 1864, as. follows :
" Your letter of the 13th instant is at hand. There is yet time
enough to colonize many voters before November. A blow will shortly
be stricken here. It is not quite time. General Longstreet is to
attack Sheridan without delay, and then move north as far as practi-
cable toward unprotected points. This will be made instead of
movement before mentioned. He will endeavor to assist the repub-
licans in collecting their ballots. Be watchful and assist him."
On the very day of the date of this Richmond despatch Sheridan
was attacked, with what success history will declare. The court
will not fail to notice that the re-election of Mr. Lincoln is to be pre-
vented if possible, by any and every means. Nor will they fail
to notice that flokomb is to "explain this" the same person
who, in Canada, was the friend and advisor of Alston, who pro-
posed to Davis the assassination of the "deadliest enemies" of the
rebellion.
In the despatch of the 13th of October, which was borne by Mont-
gomery, and transmitted to Richmond in October last, you will find
these words : "Our friends shall be immediately set to work as
you direct.'' Mr. Lincoln is the subject of that despatch. Davis is
therein notified that his agents in Canada look upon the re-election
of Mr. Lincoln in November as almost certain. In this connexion
he is assured by those agents, that the friends of their cause are to
b" set to work as Davis had directed. The conversations, which are
proved by witnesses whose character stands unimpeached, disclose
what "work" the " friends" were to do under the direction of Davis
himself. Who were these "friends," and what was "the work"
which his agents, Thompson, Clay, Tucker and Sanders had been
directed to set them at? Let Thompson answer for himself. In a
conversation with Richard Montgomery in the summer of 1864,.
Thompson said that "he had his friends, confederates, all over the
northern States, who were ready and willing to go any lengths for
the good of the cause of the south, and he could at any time have
the tyrant Lincoln, of any other of his advisers that he chose, put out
of his. way; that they would not consider it a crime when done for the
cause of the confederacy.' ' This conversation was repeated by the
witness in the summer of 1864 to Clement C. Clay, who immediately
stated : " That is so ; we are all devoted to our cause and ready to go
any length to do anything under the sun."
At and about the time that these declarations of Clay and Thomp-
son were made, Alston, who made the proposition, as we have seen, to
Davis, to be furnished with papers to go north and rid the confederacy
of some of its "deadliest enemies," was in Canada. He was doubt-
less one of the "friends" referred to. As appears by the testimony
of Montgomery, Payne, the prisoner at your bar, was about that time
in Canada, and was seen standing by Thompson's door, engaged in
a conversation with Clay, between whom and the witness some words
were interchanged, when Clay stated he (Payne) was one of their
friends "we trust him." It is proved beyond a shadow of doubt
that in October last John Wilkes Booth, the assassin of the President,
was also in Canada and upon intimate terms with Thompson, Clay,
Sanders, and other rebel agents. Who can doubt, in the light of the
events which have since transpired, that he was one of the "friends"
to be " set to work," as Davis had already directed not, perhaps, as
yet to assassinate the President, but to do that other work vvhich is
suggested in the letter of Oldham, indorsed by Davis in his own
hand, and spread upon your record the work of the secret incendiary,
which was to " fill the people of the north with terror and conster-
nation." The other "work" spoken of by Thompson putting the
tyrant Lincoln and any of his advisers out of the way, was work doubt-
less to be commenced only after the re-election of Mr. Lincoln, which
they had already declared in their despatch to their employer, Davis,
was with them a foregone conclusion. At all events, it was not until
after the presidential election in November that Alston proposed to
Davis to go north on the work of assassination ; nor was it until :.rter
that election that Booth was found in possession of the letter which
is in evidence, and which discloses the purpose to assassinate the
President. Being assured, however, when Booth was with them
in Canada, as they had already declared in their despatch, that the
re-election of Mr. Lincoln was certain, in which event there would be no
hope for the confederacy, they doubtless entered into the arrangement
with Booth as one of their "friends," that as soon as that fact was
determined he should go "to work," and as soon as might be "rid
the confederacy of the tyrant Lincoln and of his advisers."
That these persons named upon your record, Thompson, Sanders,
Clay, Cleary, and Tucker, were the agents of Jefferson Davis, is
another fact established in this case beyond a doubt. They made
affidavit of it themselves, of record here, upon the examination of
their "friends," charged with the raid upon St. Albans, before
Judge Smith, in Canada. It is in evidence also by the letter of Clay,
before referred to.
The testimony, to which I have thus briefly referred, shows, by the
letter of his agents, of the 13th of October, that Davis had before
directed those agents to set his friends to work. By the letter of
Clay it seems that his direction had been obeyed, and his friends
had been set to work, in the burning and robbery and murder at St.
Albans, in the attempt to burn the city of New York, and in the
attempt to introduce pestilence into this capital and into the house of
the President. It having appeared, by the letter of Alston, and the
indorsement thereon, that Davis had in November entertained the
proposition of sending agents, that is to say, "friends," to the north
to not only "spread terror and consternation among the people" by
means of his "chemical preparations," but also, in the words of that
letter, " to strike," by the hands of assassins, " at the heart' s blood' '
of the deadliest enemies in the north to the confederacy of traitors ;
63
it has also appeared by the testimony of many respectable witnesses,
among others the attorneys who represented the people of the United
States and the State of Vermont, in the preliminary trial of the
raiders in Canada, that Clay, Thompson, Tucker, Sanders and Cleary
declared themselves the agents of the confederacy. It also clearly
appears by the correspondence referred to, and the letter of Clay,
that they were holding, and at any time able to command, blank com-
missions from Jefferson Davis to authorize their friends to do what-
ever work they appointed them to do, in the interests of the rebel-
lion, by the destruction of life and property in the north.
If a prima facie case justifies, as we have seen by the law of evi-
dence it does, the introduction of all declarations and acts of any of
the parties to a conspiracy, uttered or done in the prosecution of the
common design, as evidence against all the rest, it re.sults, that what-
ever was said or done in furtherance of the common design, after this
month of October, 1864, by either of these agents in Canada, is
evidence not only against themselves, but against Davis as well, of
his complicity with them in the conspiracy.
Mr. Montgomery testifies that he met Jacob Thompson in January,
at Montreal, when he said that "a proposition had been made to him
to rid the world of the tyrant Lincoln, Stanton, Grant, and some others ;
that he knew the men who had made the proposition were bold,
daring men, able to execute what they undertook ; that he himself
was in favor of the proposition, but had determined to defer his
answer until he had consulted his government at Richmond ; that he
was then only awaiting their approval." This was about the middle
of January, and consequently more than a month after Alston
had made his proposition direct to Davis, in writing, to go north
and rid their confederacy of some of its "deadliest enemies." It was
at the time of this conversation that Payne, the prisoner, was seen
by the witness standing at Thompson's door in conversation with
Clay. This witness also shows the intimacy between Thompson,
Clay, Cleary, Tucker, and Sanders.
A few days after the assassination of the President, Beverley Tucker
said to this witness "that President Lincoln deserved his death long
ago ; that it was a pity he didn't have it long ago, and it was too
bad that the boys had not been allowed to act when they wanted to."
This remark undoubtedly had reference to the propositions made
in the fall to Thompson, and also to Davis, to rid the south of its
deadliest enemies by their assassination. Cleary, who was accredited
by Thompson as his confidential agent, also stated to this witness
64
that Booth was one of the party to whom Thompson had referred in
the conversation in January, in which he said he knew the men who
were ready to rid the world of the tyrant Lincoln, and of Stanton and
Grant. Cleary also said, speaking of the assassination, " that it was
a pity that the whole work had not been done," and added, " they
had better.look out we are not done yet ;" manifestly referring to the
statement made by his employer, Thompson, before in the summer,
that not only the tyrant Lincoln, but Stanton and Grant, and others
of his advisers, should be put out of the way. Cleary also stated to
this witness that Booth had visited Thompson twice in the winter, the
last time in December, and had also been there in the summer.
Sanford Conover testified that he had been for some time a clerk
in the war department at Richmond; that in Canada he knew Thomp-
son, Sanders, Cleary, Tucker, Clay, and other rebel agents ; that he
knew John H. Surratt and John "Wilkes Booth ; that he saw Booth
there upon one occasion, and Surratt upon several successive days ;
that he saw Surratt (whom he describes) in April last, in Thompson's
room, and also in company with Sanders ; that about the 6th or 7th
of April Surratt delivered to Jacob Thompson a despatch brought
by him from Benjamin at Richmond, enclosing one in cipher from
Davis. Thompson had before this proposed to Conover to engage in
a plot to assassinate President Lincoln and his cabinet, and on this
occasion he laid his hand upon these despatches and said, "This
makes the thing all right," referring to the assent of the rebel au-
thorities, and stated that the rebel authorities had consented to the
plot to assassinate Lincoln, Johnson, the Secretary of War, Secretary
of State, Judge Chase, and General Grant. Thompson remarked fur-
ther that the assassination of these parties would leave the govern-
ment of the United States entirely without a head ; that there was
no provision in the Constitution of the United States by which they
could elect another President, if these men were put out of the way.
In speaking of this assassination of the President and others,
Thompson said that it was only removing them from office, that the
killing of a tyrant was no murder. It seems that he had learned pre-
cisely the same lesson that Alston had learned in November, when
he communicated with Davis, and said, speaking of the President's
assassination, "he did not think anything dishonorable that would
serve their cause." Thompson stated at the same time that he had
conferred a commission on Booth, and that everybody engaged in the
enterprise would be commissioned, and if it succeeded, or failed, and
they escaped into Canada, they could not be reclaimed under the ex-
65
tradition treaty. The fact that Thompson and other rebel agents held
blank commissions, as I have said, has been proved, and a copy of
one of them is of record here.
This witness also testifies to a conversation with William C. Cleary,
shortly after the surrender of Lee's army, and on the day before
the President's assassination, at the St. Lawrence hotel, Montreal,
when speaking of the rejoicing in the States over the capture of
Richmond, Cleary said, "they would put the laugh on the other side
of their mouth in a day or two." These parties knew that Conover
was in the secret of the assassination, and talked with him about it
as freely as they would speak of the weather. Before the assassina-
tion he had a conversation also with Sanders, who asked him if he
knew Booth well, and expressed some apprehension that Booth would
"make a failure of it; that he was desperate and reckless, and he was
afraid the whole thing would prove a failure."
Dr. James D. Merritt testifies that George Young, one of the par-
ties named in the record, declared in his presence, in Canada, last
fall, that Lincoln should never be inaugurated; that they had friends
in Washington, who, I" suppose, were some of the same friends re-
ferred to in the despatch of October 13, and which Davis had di-
rected them " to set to work." George N. Sanders also said to him
"that Lincoln would keep himself mighty plose if he did serve
another term;" while Steele and other confederates declared that the
tyrant never should serve another term. He heard the assassination
discussed at a meeting of these rebel agents in Montreal in February
last. " Sanders said they had plenty of money is accomplish the as-
sassination, and named over a number of persons who were ready and
willing to engage in undertaking to remove the President, Vice
President, the cabinet; and some of the leading generals. At this
meeting he read a letter which he had received from Davis, which
justified him in making any arrangements that he could to accom-
plish the object." This letter the witness heard read, and it, in sub-
stance, declared that if the people in Canada and the southerners in
the States were willing to submit to be governed by such a tyrant a&
Lincoln, he didn't wish to recognize them as friends. The letter waa
read openly; it was also handed to Colonel Steele, George Young,
Hill, and Scott, to be read. This was about the middle of February
last. At this meeting Sanders named over the persons who were
willing to accomplish the assassination, and among the persons thus
named was Booth, whom the witness had seen in Canada in October;
5s
66
also George Harper, one of the conspirators named on the record,
Caldwell, Randall, Harrison, and Surratt.
The witness understood, from the reading of the letter, that if the
President Vice -President, and cabinet could be disposed of it would
satisfy the people of the north that the southerners had friends in
the north that a peace could be obtained on better terms ; that the
rebels hud endeavored to bring about a war between the United
States and England, and that Mr. Seward, through his energy and
sagacity, had thwarted all their efforts; that was given as a reason for
removing him. On the 5th or 6th of last April this witness met
George Harper, Caldwell, Randall, and others, who are spoken of in
this meeting at Montreal as engaged to assassinate the President and
cabinet, when Harper said they were going to the States to make a
row such as had never been heard of, and added that "if I (the
witness) did not hear of the death of Old Abe, of the Vice-President,
and of General Dix in less than ten days, I might put him down as a
fool. That was on the 6th of April. He mentioned that Booth was
iu Washington at that time. He said they had plenty of friends in
Washington, and that some fifteen or twenty were going."
This witness ascertained, on the 8th of April, that Harper and
others had left for the States. The proof is that these parties could
come through to Washington from Montreal or Toronto in thirty-six
hours. They did come, and within the ten days named by Harper
the President was murdered ! Some attempts have been made to
discredit this witness, (Dr. Merritt,) not by the examination of wit-
nesses in court, not by any apparent want of truth in .the testimony.
but by the ex parte statements of these rebel agents in Canada and
their hired advocates in the United States. There is a statement
upon the record, verified by an official communication from the War
Department, which shows the truthfulness of this witness, and that
is, that before the assassination, learning that Harper and his asso-
ciates had started for the States, informed as he was of their purpose
to assassinate the President, cabinet, and leading generals, Merritt
deemed it his duty to call, and did call, on the 10th of April, upon a
justice of the peace in Canada, named Davidson, and gave him the
information, that he might take steps to stop these proceedings. The
correspondence on this subject with Davidson has been brought into
court. Dr. Merritt testifies, further, that after this meeting in Mon-
treal he had a conversation with Clement C. Clay, in Toronto, about
the letter from Jefferson Davis which Sanders had exhibited, in which
conversation Clay gave the witness to understand that he knew the
67
nature of the letter perfectly, and remarked that he thought "the end
would justify the means." The witness also testifies to the presence
of Booth with Sanders in Montreal last fall, and of Surratt in Toronto
in February last.
The court must be satisfied, by the manner of this and other wit-
nesses to the transactions in Canada, as well as by the fact that they
are wholly uncontradicted in any material matter that they state, that
they speak the truth, and that the several parties named on your
record, Davis, Thompson, Cleary, Tucker, Clay, Young, Harper,
Booth, and John H. Surratt did combine and conspire together in
Canada to kill and murder Abraham Lincoln, Andrew Johnson, Wil-
liam H. Seward, and Ulysses S. Grant. That this agreement was
substantially -entered into by Booth and the agents of Davis in Canada
as early as October there cannot be any doubt. The language of
Thompson at that time and before was, that he was in favor of the
assassination. His further language was, that he knew the men who
were ready to do it ; and Booth, it is shown, was there at that time,
and, as Thompson's secretary says, was one of the men referred to
by Thompson.
The fact that others, besides the parties named on the re-cord, were,
by the terms of the conspiracy, to be assassinated, in nowise affects
the case now on trial. If it is true%that these parties did conspire to
murder other parties, as. well as those named upon the record, the
substance of the charge is proved.
It is also true that if, in pursuance of that conspiracy, Booth,
confederated with Surratt and the accused, killed and murdered
Abraham Lincoln, the charge and specification is proved literally as
stated on your record, although their conspiracy embraced other
persons. In law the case stands, though it may appear that the con-
spiracy was to kill and murder the parties named in the record and
others not named in the record. If the proof is that the accused,
with Booth, Surratt, Davis,. <fcc., conspired to kill and murder one or
more of the persons named, the charge of conspiracy is proved .
The declaration of Sanders, as proved, that there was plenty of
money to carry out this assassination, is very strongly corroborated
by the testimony of Mr. Campbell, cashier of the Ontario Bank, who
states that Thompson, during the current year preceding the assassi-
nation, had upon deposit in the Montreal branch of the Ontario Bank
six hundred and forty-nine thousand dollars, besides large sums to
his credit in other banks in the province.
There is a further corroboration of the testimony of Couover as to
68
the meeting of Thompson and Surratt in Montreal, and the delivery
of the despatches from Richmond, on the 6th or 7th of April, first,
in the fact which is shown by the testimony of Cheste*, that in the
winter or spring Booth said he himself or some other party must go
to Richmond, and, second, by the letter of Arnold dated 27th of March
last, that he preferred Booth's first query, that he would first go to
Richmond and see how they would take it, manifestly alluding to the
proposed assassination of the President. It does not follow because
Davis had written a letter in February which, in substance, approved
the general object, that the parties Were fully satisfied with it; be-
cause it is clear there was to be some arrangement made about the
funds ; and it is also clear that Davis had not before as distinctly ap-
proved and sanctioned this act as his agents either in Canada or here
desired. Booth said to Chester, "We must have money ; there is
money in this business, and if you will enter into it I will place three
thousand dollars at the disposal of your family; but I have no money
myself, and must go to Richmond," or one of the parties must go, "to
get money to carry out the enterprise." This was one of the arrange-
ments that was to be " made right in Canada." The funds at Thomp-
son's disposal, as the banker testifies, were exclusively raised by drafts
of the secretary of the treasury of the Confederate States upon Lon-
don, deposited in their bank to the. credit of Thompson.
Accordingly, about the 27th of March, Surratt did go to Richmond.
On the 3d of April he returned to Washington, and the same day
left for Canada. Before leaving, he stated to Weichmarm that when
in Richmond he had had a conversation with Davis and with Benjamin.
The fact in this connexion is not to be overlooked, that on or about
the day Surratt arrived in Montreal, April 6, Jacob Thompson, as the
cashier of the Ontario Bank states, drew of these confederate funds the
sum of one hundred and eighty thousand dollars in the form of cer-
tificates, which, as the bank officer testifies, "might be used any-
where."
What more is wanting? Surely no word further need be spoken
to show that John Wilkes Booth was in this conspiracy ; that John
H. Surratt was in this conspiracy ; and that Jefferson Davis and his
several agents named, in Canada, were in this conspiracy. If any
additional evidence is wanting to show the complicity of Davis in it,
let the paper found in the possession of his hired assassin Booth
come to bear witness against him. That paper contained the secret
cipher which Davis used in his state department at Richmond,
which he employed in communicating with his agents in Canada,
69
and which they employed in the letter of October 13, notifying
him that "their friends would be set to work as lie had directed."
The letter in cipher found in Booth's possession is translated here by
the use of the cipher machine now in court, which, as the testimony
of Mr. Dana shows, he brought from the rooms of Da vis' s' state de-
partment in Richmond. "Who gave Booth this secret cipher ? Of
what use was it to him if he was not in confederation with Davis ?
But there is one other item of testimony that ought, among honest
and intelligent people at all conversant with this evidence, to end all
further inquiry as to whether Jefferson Davis was one of the parties,
with Booth, as charged upon this record, in the conspiracy to assassi-
nate the President and others. That is, that on the fifth day after the
assassination, in the city of Charlotte, North Carolina, a telegraphic
despatch was received by him, at the house of Mr. Bates, from John
C. Breckinridge, his rebel secretary of war, which despatch is pro-
duced here, identified by the telegraph agent, and placed upon your
record in the words following :
"GREENSBORO', April 19, 1865.
' ' His Excellency President Davis :
"President Lincoln was assassinated in the theatre in "Washington
on the night of the 14th inst. Seward's house was entered on the
same night and he was repeatedly stabbed, and is probably mortally
wounded.
"JOHN C. BRECKINRIDGE."
At the time this despatch was handed to him, Davis was addressing
a meeting from the steps of Mr. Bates' s house, and after reading the
despatch to the people he said: " If it were to be done, it were better
it were well done." Shortly afterwards, in the house of the witness,
in the same city, Breckinridge, having come to see Davis, stated his
regret that the occurrence had happened, because he deemed it un-
fortunate for the people of the south at that time. Davis replied, re-
ferring to the assassination, "Well, general, I don't know ; if it were
to be done at all, it were better that it were well done ; and if the
same had been done to Andy Johnson, the beast, and to Secretary
Stanton, the job would then be complete."
Accomplished as this man was in all the arts of a conspirator, he
was not equal to the task as happily, in the good providence of God,
no mortal man is of concealing, by any form of words, any great
crime which he may have meditated or perpetrated either against
his government or his fellow-men. It was doubtless furthest from
70
Jefferson Davis' s purpose to make confession, and yet he did make a
confession. His guilt demanded utterance; that demand he could not
resist ; therefore his words proclaimed his guilt, in spite of his pur-
pose to conceal it. He said, ' if it were to be done, it were Letter it
were icell done." Would any man ignorant of the conspiracy be
able to devise and fashion such a form of speech as that ? Had not
the President been murdered ? Had he not reason to believe that
the Secretary of State had been mortally wounded ? Yet he was not
satisfied, but was compelled to say, "it were better it were well
djne" that is to say, all that had been agreed to be done had not
been done. Two days afterwards, in his conversation with Breckin-
ridge, he not only repeats the same form of expression, " if it were to
be done it were better it were loell done," but adds these words : ' 'And if
the same had been done to Andy Johnson, the beast, and to Secretary
Stantou, the job would then be complete. ' ' He would accept the assassina-
tion of the President, the Vice President, of the Secretary of State and
the Secretary of War, as a complete execution of the "job," which
he had given out upon contract, and which he had " made all right,''
so far as the pay was concerned, by the despatches he had sent to
Thompson by Surratt, one of his hired assassins. Whatever may
be the conviction of others, my own conviction is that Jefferson
Davis is as clearly proven guilty of this conspiracy as is John Wilkes
Booth, by whose hand Jefferson Davis inflicted the mortal wound
upon Abraham Lincoln. His words of intense hate, and rage, and
disappointment are not to be overlooked that the assassins had not
done their work well ; that they had not succeeded in robbing the
people altogether of their constitutional Executive and his advisers ;
and hence he exclaims, "If they had killed Andy Johnson, the beast!"
Neither can he conceal his chagrin and disappointment that the War
Minister of the republic, whose energy, incorruptible integrity, sleep-
less vigilance, arid executive ability had organized day by day, month
by month, and year by year, victory for our arms, had escaped the
knife of the hired assassins. The job, says this procurer of assassina-
tion, was not well done ; it had been better if it had been well done !
Because Abraham Lincoln had been clear in his great office, and had
saved the nation's life by enforcing the nation's laws, this traitor de-
clares he must be murdered; because Mr. Seward, as the foreign sec-
retary of the country, had thwarted the purposes of treason to plunge
his country into a war with England, he must be murdered; because,
upon the murder of Mr. Lincoln, Andrew Johnson would succeed to
the presidency, and because he had been true to the Constitution and
71
government, faithful found among the faithless of his own State,
clinging to the falling pillars of the republic when others had fled,
he must be murdered; and because the Secretary of War had taken
care, by the faithful discharge of his duties, that the republic
should live and not die, he must be murdered. Inasmuch as these
two faithful officers were not also assassinated, assuming that the
Secretary of State was mortally wounded, Davis could not conceal his
disappointment and chagrin that the work was not'" well done," that
"the job was not complete ! "
Thus it appears by the testimony that the proposition made to
Davis was to kill and murder the deadliest enemies of the confederacy
not to kidnap them, as is now pretended here ; that by the declaration
of Sanders, Tucker, Thompson, Clay, Cleary, Harper and Young, the
conspirators in Canada, the agreement and combination among them
was to kill and murder Abraham Lincoln, William H. Seward, .Andrew
Johnson, Ulysses S. Grant, Edwin M. Stanton, and others of his ad-
visors, and not to kidnap them ; it appears from every utterance of
John Wilkes Booth, as well as from the Charles Selby letter, of which
mention will presently be made, that, as early as November, .the
proposition with him was to kill and murder, not to kidnap.
Since the first examination of Conover, who testified, as the court
will remember, to many important facts against these conspirators
and agents of Davis in Canada among others, the terrible and fiend-
ish plot disclosed by Thompson, Fallen, and others, that they had as-
certained the volume of water in the reservoir supplying New York
city, estimated the quantity of poison required to render it deadly,
and intended thus to poison a whole city Conover returned to Can-
ada, by direction of this court, for the purpose of obtaining certain
documentary evidence. There, about the 9th of June, he met Bev-
erley Tucker, Sanders, and other conspirators, and conversed with
them. Tucker declared that Secretary Stanton, whom he denounced
as "a scoundrel," and Judge Holt, whom he called "a bloodthirsty
villain," "could protect themselves as long as they remained in
office by a guard, but that would not always be the case, and, by the
Eternal, he had a large account to settle with them." After this,
the evidence of Conover here having been published, these parties
called upon him and asked him whether he had been to Washington,
and had testified before this court. Conover denied it ; they insisted,
and took him to a room, where, with drawn pistols, they compelled
him to consent to make an affidavit that he had been falsely person-
ated here by another, and that he would make that affidavit before a
Mr. Kerr, who would witness it. They then called in Mr. Kerr to
certify to the public that Conover had made such a denial. They
also compelled this witness to furnish for publication an advertise-
ment offering a reward of five hundred dollars for the arrest of the
"infamous and perjured scoundrel" who had recently personated
James W. Wallace under the name of Sanford Conover, and testified
to a tissue of falsehoods before the military commission at Washing-
ton, which advertisement was published in the papers.
To these facts Mr. Conover now testifies, and also discloses the
fact that these same men published, in the report of the proceedings
before Judge Smith, an affidavit purporting to be his, but which he
never made. The affidavit which he in fact made, and which was
published in a newspaper at that time, produced here, is set out sub-
stantially upon your record, and agrees with the testimony upon the
same point given by him in this court.
To suppose that Conover ever made such an affidavit voluntarily
as the one wrung from him as stated is impossible. Would he ad-
vertise for 'his own arrest and charge himself with falsely personating
himself? But the fact cannot evade observation, that when these
guilty conspirators saw Conover' s testimony before this court in the
public prints, revealing to the world the atrocious plots of these
felon conspirators, conscious of the truthfulness of his statements,
they cast about at once for some defence before the public, and de-
vised the foolish and stupid invention of compelling him to make an
affidavit that he was not Sanford Conover, was not in this court,
never gave this testimony, but was a practicing lawyer in Montreal!
This infamous proceeding, coupled with the evidence before detailed,
stamps these ruffian plotters with tbe guilt of this conspiracy.
John Wilkes Booth having entered into this conspiracy in Canada,
as has been shown, as early as October, he is next found in the city
of New York on the llth day, as I claim, of November, in disguise,
in conversation with another, the conversation disclosing to the wit-
ness, Mis. Hudspeth, that they had some matter of personal interest
between them ; that upon one of them the lot had fallen to go
to Washington- upon the other to go to Newbern. This Avitnese,
upon being shown the photograph .of Booth, swears "that the face
is the same" as that of one of those men, who she says was a
young man of education and culture, as appeared by his conversation,
and who had a scar like a bite near the jaw-bone. It is a fact proved
here by the Surgeon General that Booth had such a scar on the side
of his neck. Mrs. Hudspeth heard him say he would leave for Wash-
73
ington the day after to-morrow. His companion appeared angry be-
cause it had not fallen on him to go to Washington. This took place
after the presidential election in November. She cannot fix the
precise date, but says she was told that General Butler left New York
on that day. The testimony discloses that General Butler r s army
was on the llth of November leaving New York. The register of
the National Hotel shows that Booth left Washington on the early
morning train, November 11, and that he returned to this city on the
14th. Chester testifies positively to Booth's presence in New York
early in November. This testimony shows most conclusively that
Booth was in New York on the llth of November. The early morn-
ing train on which he left Washington would reach New York early
in the afternoon of that day. Chester saw him there early in No-
vember, and Mrs- Hudspeth not only identifies his picture, but de-
scribes his person. The scar upon his neck near his jaw was peculiar
and is well described by the witness as like a bite. On that day
Booth had a letter in his possession which he accidentally dropped
in the street car in the presence of Mrs. Hudspeth, the witness, who
delivered it to Major General Dix the same day, and by whom, as
his letter on file before this court shows, the same was transmitted
to the War Department November 17, 1864. That letter contains
these words :
" DEAR Louis : The time has at last come that we have all so wished
for, and upon you everything depends. As it was decided, before
you left, we were to cast lots, we accordingly did so, and you are to
be the Charlotte Corday of the 19th century. When you remember
the fearful, solemn vow that was taken by us, you will feel there is no
drawback. Abe must die, and now. You can choose your weapons
the cup, the knife, the bullet. The cup failed us once, and might again.
Johnson, who will give this, has been like an enraged demon since the
meeting, because it has not fallen upon him. to rid the world of the
monster. * * * You know where to find your friends. Your
disguises are so perfect and complete that without one knew your
face, no police telegraphic despatch would catch you. The English
gentleman, Harcourt, must not act hastily. Remember he has ten
days. Strike for your home, strike for your country bide your time,
but strike sure. Get introduced ; congratulate him ; listen to his
stories ; (not many more will the brute tell to earthly friends;) do
anything but fail, and meet us at the appointed place within the
fortnight. You will probably hear from me in Washington. San-
ders is doing us no good in Canada.
"CHAS. SELBY."
74
The learned gentleman, (Mr. Cox,) in his very able and care-
fully considered argument in defence of O'Laughlin and Arnold, at-
tached importance to this letter, and doubtless very clearly saw its
bearing upon the case, and therefore undertook to show that the wit-
ness, Mrs. Hudspeth, must be mistaken as to the person of Booth.
The gentleman assumes that the letter of General Dix, of the 17th
of November last, transmitting this letter to the War Department,
reads that the party who dropped the letter was heard to say that he
would start to Washington on Friday night next, although the word
" next" is not in the letter, neither is it in the quotation which the
gentleman makes, for he quotes it fairly; yet he concludes that this
would be the 18th of November.
Now the fact is, the 1 1th of November last was Friday, and the
register of the National Hotel bears witness that Mrs. Hudspeth is not
mistaken-; because her language is, that Booth said he would leave for
Washington day after to-morrow, which would be Sunday, the 1 3th,
and if in the evening, would bring him to Washington on Monday, the
14th of November, the day on which, the register shows, he did re-
turn to the National Hotel. As to the improbability which the gen-
tleman raises, on the conversation happening in a street car, crowded
with people, there was nothing that transpired, although the conver-
sation was earnest, which enabled the witness, or could have enabled
any one, in the absence of this letter, or of the subsequent conduct
of Booth, to form the least idea of the subject-matter of their conver-
sation. The gentleman does not deal altogether fairly in his remarks
touching the letter of General Dix; because, upon a careful examina-
tion of the letter, it will be found that he did not form any such judg-
ment as that it was a hoax for the Sunday Mercury, but he took care
to forward it to the Department, and asked attention to it; when, as
appears by the testimony of the Assistant Secretary of War, Mr.
Dana, the letter was delivered to Mr. Lincoln, who considered it im-
portant enough to indorse it with the word "Assassination," and file
it in his office, where it was found after the commission of this crime,
and brought into this court to bear witness against his assassins.
Although this letter would imply that the assassination spoken of
was to take place speedily, yet the party was to bide Ms time. Though
he had entered into the preliminary arrangements in Canada, al-
though conspirators had doubtless agreed to co-operate with him in
the commission of the crime, and lots had been cast for the chief part in
the bloody drama, yet it remained for him, as the leader and principal
of the hired assassins, by whose hand their employers were to strike
75
the murderous blow, to collect about him and bring to Washington
such persons as would be willing to lend themselves for a price to
the horrid crime and likely to give the necessary aid and support in
its consummation. The letter declares that Abraham Lincoln must die,
and now, meaning as soon as the agents can be employed and the
work done. To that end you will bide your time. Bat, says the gen-
tleman, it could not have been the same conspiracy charged here to
which this letter refers. Why not? It is charged here that Booth
with the accused and others conspired to kill and murder Abraham
Lincoln that is precisely the conspiracy disclosed in the letter.
Granted that the parties on trial had not then entered into the com-
bination; if they at any time afterward entered into it they became
parties to it, and the conspiracy was still the same. But, says the gen-
tleman, the words of the letter imply that the conspiracy was to be
executed within the fortnight. Booth is directed, by the name of
Louis, to meet the writer within the fortnight. It by no means follows
that he was to strike within the fortnight, because he was to meet
his co-conspirator within that time, and any such conclusion is ex-
cluded by the words ' ' Bide your time. ' ' Even if the conspiracy was to
be executed within the fortnight, and was not so executed, and the
same party, Booth, afterwards by concert and agreement with the ac-
cused and others did execute it by "striking sure" and killing the
President, that act, whenever done, would be but the execution of the
same conspiracy. The letter is conclusive evidence of so much of this
conspiracy as relates to the murder of President Lincoln. As Booth
was to do anything but fail, he immediately thereafter sought out
the agents to enable him to strike sure, and execute all that he had
agreed with Davis and his co-confederates in Canada to do to mur-
der the President, the Secretary of State, the Vice President, Gen-
eral Grant, and Secretary Stanton.
Even Booth's co-conspirator, Payne, now on his trial, by his defence
admits all this, and says Booth had just been to Canada, ' ' was filled
with a mighty scheme, and was lying in wait for agents." Booth
asked the co-operation of the prisoner Payne, and said : "I will give
you as much money as you want; but first you must swear to stick
by me. It is in the oil business." This you are told by the accused
was early in March last. Thus guilt bears witness against itself.
We find Booth in New York in November, December, and January,
urging Chester to enter into this combination, assuring him that there
was money in it; that they had "friends on the other side;" that if
he would only participate in it he would never want for money while
76
he lived, and all that was asked of him was to stand at and open the
back door of Ford's theatre. Booth, in his interviews with Chester,
confesses that he is luithout money himself] and allows Chester to re-
imburse him the $50 which he (Booth) had transmitted to him in a letter
for the purpose of paying his expenses to Washington as one of the
parties to this conspiracy. Booth told him, although he himself was
penniless, ' ' there is money in this we have friends on the other side ;' '
and if you will but engage, I will have three thousand dollars de-
posited at once for the use of your family.
Failing to secure the services of Chester, because his soul recoiled
with abhorrence from the foul work of assassination and murder, he
found more willing instruments in others whom he gathered about
him. Men to commit the assassinations, horses to secure speedy
and certain escape, were to be provided, and to this end Booth,
with an energy worthy of a better cause, applies himself. For this
latter purpose he told Chester he had already expended $5, 000. In
the latter part of November, 1864, he visits Charles county, Mary-
land, and is in company with one of the prisoners, Dr. Samuel A.
Mudd, with whom he lodged over night, and through whom he pro-
cures of Gardner one of the several horses which were at his dis-
posal, and used by him and his co-conspirators in Washington on the
night of the assassination.
Some time in January last, it is in testimony, that the prisoner
Mudd introduced Booth to John H. Surratt; and the witness Weich-
mann ; that Booth invited them to the National Hotel ; that when
there, in the room to which Booth took them, Mudd went out into the
passage, called Booth out and had a private conversation with him,
leaving the witness and Surratt in the room. Upon their return to
the room Booth went out with Surratt, and upon their coming in all
three, Booth, Surratt, and Samuel A. Mudd, went out together and
had a conversation in the passage, leaving the witness alone. Up to
the time of this interview it seems that neither the witness nor Sur-
ratt had any knowledge of Booth, as they were then introduced to
him by Dr. Mudd. Whether Surratt had in fact previously known
Booth it is not important to inquire. Mudd deemed it necessary,
perhaps a wise precaution, to introduce Surratt to Booth ; he also
deemed it necessary to have a private conversation with Booth shortly
afterwards, and directly upon that to have a conversation together
with Booth and Surratt alone. Had this conversation, no part ot
which was heard by the witness, been perfectly innocent, it is not to
be presumed that Dr. Mudd, who was an entire stranger to Weich-
77
niann, would have deemed it necessary to hold the conversation se-
cretly, nor to have volunteered to tell the witness, or rather pre-
tend to tell him, what the conversation was ; yet he did say to the
witness, upon their return to the room, by way of apology, I suppose,
for the privacy of the. conversation, that Booth had some private
business with him, and wished to purchase his farm. This silly de-
vice, as is often the case in attempts at deception, failed in the exe-
cution ; for it remains to be shown how the fact that Mudd had pri-
vate business with Booth, and that Booth wished to purchase ,his
farm, made it at all necessary or even proper that they should both
volunteer to call out Surratt, who up to that moment was a stranger
to Booth. What had Surratt to do with Booth's purchase of Mudd's
farm ? And if it was necessary to withdraw and talk by themselves
secretly about the sale of the farm, why should they disclqse the fact
to the very man from whom they had concealed it ?
Upon the return of these three parties to the room, they seated
themselves at a table, and upon the back of an envelope Booth traced
lines with a pencil, indicating, as the witness states, the direction of
roads. Why was this done ? As Booth had been previously in that
section of country, as the prisoner in his defence has taken great
pains to show, it was certainly not necessary to anything connected
with the purchase of Mudd's farm that at that time he should be
indicating the direction of roads to or from it; nor is it made to ap-
pear, by anything in this testimony, how it comes that Surratt, as the
witness testifies, seemed to be as much interested in the marking out
of these roads as Mudd or Booth. It does not appear that Surratt
was in anywise connected with or interested in the sale of Mudd s
farm. From all that has transpired since this meeting at the hotel,
H would seem that this plotting the roads was intended, not so much
to show the road to Mudd's farm, as to point out the shortest and
safest route for flight from the capital, by the houses of all the parties
to this conspiracy, to their "friends on the other side."
But, says the learned gentleman, (Mr. Ewing,) in his very able argu-
ment in defence of this prisoner, why should Booth determine that
his flight should be through Charles county ? The answer must be
obvious, upon a moment's reflection, to every man, and could not
possibly have escaped the notice of the counsel himself, but for the
reason that his zeal for his client constrained him to overlook it. It
was absolutely essential that this murderer should have his co- conspira-
tors at convenient points along his route, and it does not appear in
evidence that by the route to his friends, who had then fled from
78
Richmond, which the gentleman (Mr. Ewing) indicates as the more
direct, but of which there is not the slightest evidence whatever,
Booth had co-conspirators at an equal distance from Washington.
The testimony discloses, further, that on the route selected by him
for his flight there is a large population that would be most likely to
favor and aid him in the execution of his wicked purpose, and in
making his escape. But it is a sufficient answer to the gentleman's
question, that Booth's co-conspirator Mudd lived in Charles county.
To return to the meeting at the hotel. In the light of other facts
in this case, it must become clear to the court that this secret meet-
ing between Booth, Surratt, and Mudd was a conference looking to
the' execution of this conspiracy. It so impressed the prisoner it so
impressed his counsel, that they deemed it necessary and absolutely
essential to their defence to attempt to destroy the credibility of the
witness Weichmann.
I may say here, in passing, that they have not attempted to impeach
his general reputation for truth by the testimony of a single witness,
nor have they impeached his testimony by calling a single witness to
discredit one material fact to which he has testified in this issue.
Failing to find a breath of suspicion against Weichmann' s character,
or to contradict a single fact to which he testified, the accused had to
fly to the last resort, an alibi, and very earnestly did the learned
counsel devote himself to the task.
It is not material whether this meeting in the hotel took place on
the 23d of December or in January. But, says the counsel, it was
after the commencement or close of the Congressional holiday. That
is not material ; but the concurrent resolution of Congress shows
that the holiday commenced on the 22d December, the day before
the accused spent the evening in Washington. The witness is not
certain about the date of this meeting. The material fact is, did this
meeting take place either on the 23d of December or in January last ?
Were the private interviews there held, and was the apology made,
as detailed, by Mudd and Booth, after the secret conference, to the
witness ? That the meeting did take place, and that Mudd did ex-
plain that these secret interviews, with Booth first, and with Booth
and Surratt directly afterward, had relation to the sale of his farm,
is confessedly admitted by the endeavor of the prisoner, through his
counsel, to show that negotiations had been going on between Booth
and Mudd for the sale of Mudd's farm. If no such meeting was held,
if no such explanation was made by Mudd to Weichmann, can any
man for a moment believe that a witness would have been called here
79
to give any testimony about Booth having negotiated for Mudd's farm ?
"What conceivable connexion has it with this case, except to show
that Mudd's explanation to Weichmann for his extraordinary conduct
was in exact accordance with the fact ? Or was this testimony about
the negotiations for Mudd's farm intended to show so close an inti-
macy and intercourse with Booth that Mudd could not fail to recog-
nize him when he came flying for aid to his house from the work of
assassination? It would be injustice to the able counsel "to suppose
that.
I have said that it was wholly immaterial whether -this conversa-
tion took place on the 23d of December or in January ;' it is in evi?
dence that in both those months Booth was at the National Hotel ;
that he occupied a room there ; that he arrived there on the 22d
and was there on the 23d of December last, and also on the 12th day
of January. The testimony of the witness is, that Booth said
he had just come in. Suppose this conversation took place in
December, on the evening of the 23d, the time when it is proved by
J. T. Mudd, the witness. for the accused, that he, in company with
Samuel A. Mudd, spent the night in Washington city. Is there any-
thing in the testimony of that or any other witness to show that the
accused did not have and could not have had an interview with Booth
on that evening? J. T. Mudd testifies that he separated from' the
prisoner, Samuel A. Mudd, at the National Hotel early in the evening
of that day, and did not meet him again until the accused came in for
the night at the Pennsylvania House, where he stopped. Where was
Dr. Samuel A. Mudd during this interval ? What does his witness know
about him during that time ? How can he say that Dr. Mudd did not
go up on Seventh street in company with Booth, then at the National ;
that he did not on Seventh street meet Surratt and Weichmann ; that
he did not return to the National Hotel ; that he did not have this in-
terview, and afterwards meet him, the witness, as he testifies, at the
Pennsylvania House ? Who knows that the Congressional holiday
had not in fact commenced on that day ? What witness has been
called to prove that Booth did not on either of those occasions occupy
the room that had formerly been occupied by a member of Congress,
who had temporarily vacated it., leaving his books there ? Weich-
mann, I repeat, is not positive as to the date, he is only positive as
to the fact ; and he disclosed voluntarily, to this court, that the date
could probably be fixed by a reference to the register of the Penn-
sylvania House ; that register cannot, of course, be conclusive of
whether Mudd was there in January or not, for the very good reason
that the proprietor admits that he did not know Samuel A. Mudd,
therefore Mudd might have registered by any other name. Weich-
mann does not pretend to know that Mudd had registered at all.
If Mudd was here in January, as a party to this conspiracy,
it is not at all unlikely that, if he did register at that time
in the presence of a man to whom he was wholly unknown,
his kinsman not then being with him, he would register by a false
name. But if the interview took place in December, the testimony
of Weichmann bears as strongly against the accused as if it had hap-
pened in January. Weichmann says he does not know what time was
occupied in this interview 7 at the National Hotel; that it probably
lasted twenty minutes; that, after the private interviews between
Mudd and Surrattand Booth, which were not of very long duration, had
terminated, the parties went to the Pennsylvania House, where Dr.
Mudd had rooms, and after sitting together in the common sitting-
room of the hotel, they left Dr. Mudd there about 10 o'clock p. rn.,
who remained during the night. Weichmann' s testimony leaves
no doubt that this meeting on Seventh street and interview at the
National took place after dark, and terminated before or about 10
o'clock p. m. His own witness, J. T. Mudd, after stating that he
separated from the accused at the National Hotel, says after he had
got through a conversation with a gentleman of his acquaintance, he
walked down the Avenue, went to several clothing stores, and "after
a while" walked round to the Pennsylvania House, and "very soon
after" he got there Dr. Mudd came in, and they went to bed
shortly afterwards. What time he spent in his "walk alone" on the
Avenue, looking at clothing; what period he embraces in the terms
"after awhile," when he returned to the Pennsylvania House, and
"soon after" which Dr. Mudd got there, the witness does not
disclose. Neither does be intimate, much less testify, that he saw
Dr. Mudd when he first entered the Pennsylvania House on
that night after their separation. How does he know that Booth and
Surrat and Weichmann did not accompany Samuel A. Mudd to that
house that evening? How does he know that the prisoner and
those persons did not converse together some time in the sitting-
room of the Pennsylvania Hotel ? Jeremiah Mudd has not testified
that he met Doctor Mudd in that room, or that he was in it him-
self. He has, however, sworn to the fact, which is disproved by no
one, that the prisoner was separated from him long enough that
evening to have had the meeting with Booth, Surratt, and Weich-
mann, and the interviews in the National Hotel, and at the Pennsyl-
vania House, to wnich Weichmann has testified? Who is there to
disprove it? Of what importance is it whether it was on the 23d day
of December or in January? How does that aifect the credibility of'
Weichmann? He is a man, as I have before said, against whose
reputation for truth and good conduct they have not been 1 able to
bring one witness. If this meeting did by possibility take place that
night, is there anything to render it improbable that Booth, and Mudd,
and Surratt did have the conversation at the National Hotel to which
Weichmann testifies ? Of what avail, therefore, is the attempt to
prove that Mudd was not here during January, if it was clear that he
was here on the 23d of December, 18G4, and had this conversation
with Booth ? That this attempt to prove an alibi during January has
failed, is quite as clear as is the proof of the fact that the prisoner
was here on the evening of the 23d of December, and present in the
National Hotel, where Booth stopped. The fact that the prisoner,
Samuel A. Mudd, went with J. T. Mudd on that evening to the Na-
tional Hotel, and there separated from him, is proved by his own
witness, J. T. Mudd; and that he did not rejoin him until they retired
to bed in the Pennsylvania House is proved by the same witness, and
contradicted by nobody. Does any one suppose there would have
been such assiduous care to prove that the prisoner was with his
kinsman all the time on the 23d of December in Washington, if they
had not known that Booth was then at the National Hotel, and that a
meeting of the prisoner with Booth, Surratt, and Weichmann on that
day would corroborate and confirm Weichmann' s testimony in every
material statement he made concerning that meeting ?
The accused having signally failed to account for his absence after
he separated from his witness, J. T. Mudd, early in the evening of
the 23d of December, at the National Hotel, until they had again
met at the Pennsylvania House, when they retired to rest, he now
attempts to prove an alibi as to the month of January. In this he
has failed, as he failed in the attempt to show that he could not
have met Booth, Surratt, and Weichmann on the 23d of December.
For this purpose the accused calls Betty Washington. She had
been at Mudd's house every night since the Monday after Christmas
last, except when here at court, and. says that the prisoner, Mudd,
has only been away from home three nights during that time. This
witness forgets that Mudd has not been at home any night or day
since this court assembled. Neither does she account for the three
nights in which she swears to his absence from home. First, she
GB
82
says he went to Gardner's party ; second, he went to Giesboro,
the a to Washington. She does not know in what month he was
away, the second time, all night. She only knows where he went,
from what he and his wife said, which is not evidence; but she does
testify that when he left home and was absent over night, the second
time, it was about two or three weeks after she came to his house,
which would, if it were three weeks, make it just about the 15th of
January, 1865; because she swears she came to his house on the first
Monday after Christmas last, which was the 26th day of December;
so that the 15th of January would be three weeks, less one day, from
that time; and it might have been a week earlier according to her
testimony, as, also, it might have been a week earlier, or more, by
Weichmann's testimony, for he is not positive as to the time. What
I have said of the register of the Pennsylvania House, the headquar-
ters of Mudd and Atzerodt, I need not here repeat. That record
proves nothing, save that Dr. Mudd was there on the 23d of Decem-
ber, which, as we have seen, is a fact, along with others, to show
that the meeting at the National then took place. I have also called
the attention of the court to the fact that if Mudd was at that house
again in January, and did not register his name, that fact proves
nothing; or, if he did, the register only proves that he registered
falsely; either of which facts might have happened without the
knowledge of the witness called by the accused from that house, who
does not know Samuel A. Mudd personally.
The testimony of Henry L. Mudd, his brother, in support of this
alibi, is, that the prisoner was in Washington on the 23d of March,
and on the 10th of April, four days before the murder ! But he does
not account for the absent night in January, about which Betty
Washington testifies. Thomas Davis was called for the same pur-
pose, but stated that he was himself absent one night in January,
aJ;er the 9th of that month, and he could not say whether Mudd was
there on that night or not. He does testify to Mudd's absence over
night three times, and fixes one occasion on the night of the 26th of
January. In consequence of his o\vn absence one night in January,
this witness cannot account for the absence of Mudd on the night
referred to by Betty Washington.
This matter is entitled to no further attention. It can satisfy no
one, and the burden of proof is upon the prisoner to prove that he
was not in Washington in January last. How can such testimony
convince any rational man that Mudd was not here in January, against
the evidence of an unimpeached witness, who swears that Samuel A.
83
Mudd was in Washington in the month of Januar} r ? Who that has
been examined here as a witness knows that he was not ?
The Rev. Mr. Evans swears that he saw him in Washington last
winter, and that at the same time he saw Jarboe, the one coming out
of, and the other going into, a house on H street, which he was in-
formed on inquiry was the house of Mrs. Snrratt. Jarboe is the
only witness called to contradict Mr. Evans, and he leaves it in extreme
doubt whether he does not corroborate him, as he swears that he was
here himself last winter or fall, but cannot state exactly the time.
Jarboe' s silence on questions touching his own credibility leaves no
room for any one to say that his testimony could impeach Mr. Evans,
whatever he might swear.
Miss Anna H. Surratt is also called for the purpose of impeaching
Mr. Evans. It is sufficient to say of her testimony on that point that
she swears negatively only that she did not see either of the persons
named at her mother's house. This testimony neither disproves, nor
does it even tend to disprove, the fact put in issue by Mr. Evans.. No
one will pretend, whatever the form of her expression in giving her
testimony, that she could say more than that she did not know the
fact, as it was impossible that sfie could know who was, or who was
not, at her mother's house, casually, at a period so remote. It is not
my purpose, neither is it needful here, to question in any way the
integrity of this young woman.
It is further in testimony that Samuel A. Mudd was here on the 3d
day of March last, the day preceding the inauguration, when Booth
was to strike the traitorous blow ; and it was, doubtless, only
by the interposition of that God who stands within the shadow
and keeps watch above his own, that the victim of this conspiracy
was spared that day from the assassin's hand that he might complete
his work and see the salvation of his country in the fall of Richmond
and the surrender of its great army. Dr. Mudd was here on that
day (the 3d. of March) to abet, to encourage, to nerve his co-conspira-
tor for the commission of this great crime. He was carried away by
the awful purpose which possessed him, and rushed into the room of
Mr. Norton at the National Hotel in search of Booth, exclaiming ex-
citedly: "I'm mistaken; I thought this was Mr. Booth's room." He
is told Mr. Booth is above, on the next floor. He is followed by Mr.
Norton, because of his rude and excited behavior, and being fol-
lowed, conscious of his guilty errand, he turns away, afraid of him-
self and afraid to be found in concert with his fellow confederate.
84
Mr. Norton identifies the prisoner, and has no doubt that Samuel A.
Mudd is the man.
The Rev. Mr. Evans also swears that, after the 1st and before
the 4th day of March last, he is certain that within that time, and on
the 2d or 3d of March, he saw Dr. Mudd drive into Washington city.
The endeavor is made by the accused, in order to break down this
witness, by proving another alibi. The sister of the accused, Miss
Fanny Mudd, is called. She testifies that she saw the prisoner at
breakfast in her father's house, on the 2d of March, about 5 o'clock
in the morning, and not again until the 3d of March at noon. Mrs.
Emily Mudd swears substantially to the same statement. Betty
Washington, called for the accused, swears that he was at home all
day at work with her on the 2d of March, and took breakfast at home.
Frank Washington swears that Mudd was at home all day ; that he
saw him when he first came out in the morning about sunrise from
his own house, and knows that he was there all day with them.
Which is correct, the testimony of his sisters or the testimony of
his servants? The sisters say that he was at their father's house for
breakfast on the morning of the 2d of March ; the servants say he
was at home for breakfast with them on that day. If this testimony
is followed, it proves one alibi too much. It is impossible, in the
nature of things, that the testimony of all these four witnesses can
be true.
Seeing this weakness in the testimony brought to prove this second
alibi, the endeavor is next made to discredit Mr. Norton for truth ;
and two witnesses, not more, are called, who testify that his reputa-
tion for truth has suffered by contested litigation between one of the
impeaching witnesses and others. Four witnesses are called, who
testify that Mr. Norton's reputation for truth is very good ; that he
is a man of high character for truth, and entitled to be believed
whether he speaks under the obligation of an oath or not. The late
Postmaster General, Hon. Horatio King, not only sustains Mr. Nor-
ton as a man of good reputation for truth, but expressly corroborates
his testimony, by stating that in March last, about the 4th of March,
Mr. Norton told him the same fact to which he swears here : that a
man came into his room under excitement, alarmed his sister, was
followed out by himself, and went down stairs instead of going up ;
and that Mr. Norton told him this before the assassination, and about
the time of the inauguration. What motive had Mr. Norton at that
time to fabricate this statement ? It detracts nothing from his testi-
mony that he did not at that time mention the name of this man to
85
his friend, Mr. King ; because it appears from his testimony and
there is none to question the truthfulness of his statement that at
that timo he did not know his name. Neither does it take from the
force of this testimony, that Mr. Norton did not, in communicating
this matter to Mr. King, make mention of Booth's name ; because
there was nothing in the transaction, at. the time, he being ignorant
of the name of Mudd, and equally ignorant of the conspiracy between
Muddand Booth, to give the least occasion for any mention of Booth
or of the transaction further than as he detailed it. With such cor-
roboration, who can doubt the fact that Mudd did enter the 'room of
Mr. Norton, and was followed by him, on the 3d of March last? Can
he be mistaken in the man ? Whoever looks at the prisoner care-
fully once will be sure to recognize him again.
For the present I pass from the consideration of the testimony
showing Dr. Mudd' 8 connection with Booth in this conspiracy, with
the remark that it is in evidence, and I think established, both by the
testimony adduced by the prosecution and that by the prisoner,
that since the commencement of this rebellion John H. Surratt vis-
ited the prisoner's house ; that he concealed Surratt and other rebels
and traitors in the woods near his house, where for several days ho
furnished them with food and bedding; that the shelter of the woods
by night and by day was the only shelter that the prisoner dare furnish
these friends of his; that in November Booth visited him and remained
overnight; that he accompanied Booth at that time to Gardner's,
from whom he purchased one of the horses used on the night of the
assassination to aid the escape of one of his confederates; that the
prisoner had secret interviews with Booth and Surratt, as sworn to by
the witness Weichmann, in the National Hotel, whether on the 23d
of December or in January is a matter of entire indiiference; that he
rushed into Mr. Norton's room on the 3d of March in search of Booth;
and that he was here again on the 10th of April, four days before the
murder of the President. Of his conduct after the assassination of
the President, which is confirmatory of all this his conspiring with
Booth and his sheltering, concealing, and aiding the flight of his co-con-
spirator, this felon assassin I shall speak hereafter, leaving him for the
present with the remark that the attempt to prove his character has
resulted in showing him in sympathy with the rebellion, so cruel that
he shot one of his slaves and declared his purpose to send several of
them to work on the rebel batteries in Richmond.
What others, besides Samuel A. Mudd and John H. Surratt and
Lewis Payne, did Booth, after his return from Canada, induce to join
86
him in this conspiracy to murder the President, the Vice President,
the Secretary of State, and the Lieutenant General, with the intent
thereby to aid the rebellion and overthrow the government and laws
of the United States ?
On the 10th of February the prisoners Arnold and O'Laughlin came
to Washington and took rooms in the house of Mrs. Vantyne; were
armed; were there visited frequently by John Wilkes Booth, and
alone; were occasionally absent when Booth called, who seemed
anxious for their return would sometimes leave notes for them, and
sometimes a request that when they came in they should be told to
come to the stable. On the 18th of March last, when Booth played
in "The Apostate," the witness, Mrs. Vantyne, received from,
O'Laughlin complimentary tickets. These persons remained there
until the 20th of March. They were visited, so far as the witness
knows, during their stay at her house only by Booth, save that on a
single occasion an unknown man came to see them, and remained
with them over night. They told the witness the) 7 were in the "oil
business. ' J With Mudd, the guilty purpose was sought to be con-
cealed by declaring that he was in the "land business;" with
O'Laughlin and Arnold it was attempted to be concealed by the pre-
tence that they were in the " oil business." Booth, it is proved,
had closed up all connexion with oil business last September. There
is not a word of testimony to show that the accused, O'Laughlin and
Arnold, ever invested or sought to invest, in any way or to any
amount, in the oil business; their silly words betray them; they
forgot when they uttered that false statement that truth is strong,
next to the Almighty, and that their crime, must find them out was
the irrevocable and irresistible law of nature and of nature's God.
One of their co-conspirators, known as yet only to the guilty par-
ties to this damnable plot and to the Infinite, who will unmask and
avenge all blood-guiltiness, comes to bear witness, unwittingly, against
them. This unknown conspirator, who dates his letter at South
Branch Bridge, April G, 18G5, mailed and postmarked Cumberland,
Maryland, and addressed to John Wilkes Booth, by his initials,
" J. W. B., National Hotel, Washington, D. 0.," was also in the "oil
speculation." In that letter he says :
"FniEXD WILKES : I received yours of March 12th, and reply as soon as prac-
ticable. I saw French, Brady, and others about the oil speculation. The sub-
scription to the stock amounts to eight thousand dollars, and I add one thousand
myself, which is about all I can stand. Now, when you sink your well, go
deep enough; don't fall ; everything depends upon you and your helpers.
87
If you cannot get through on your trip after you strike oil, strike through
Thornton gap and across by Capon, Romney, and down the Branch. I can
keep you safe, from all hardships for a year. I am clear of all surveillance now
that infernal Purdy is beat. * * *
" I send this by Tom, and if he don't get drunk you will get it the 9th. At
all events, it cannot be understood if lost. * * *
"No more, only Jake will be at Green's toith the funds. (Signed) LON."
That this letter is not a fabrication is made apparent by the testi-
mony of Purdy, whose name occurs in the letter. He testified that
he had been a detective in the government service, and that he had
been falsely accused, as the letter recites, and put under arrest ; that
there was a noted rebel by the name of Green living at Thornton
gap; that there was a servant, who drank, known as "Tom," in the
neighborhood of South Branch Bridge ; that there is an obscure route
through the gap, and as described in the letter ; and that a man com-
monly called "Lon" lives at South Branch Bridge. If the court are
satisfied and it is for them to judge that this letter was written
before the assassination, as it purports to have been, and on the day
of its date, there can be no question with any one who reads it that the
writer was in the conspiracy, and knew that the time of its execution
drew nigh. If a conspirator, every word of its contents is evidence
against every other party to this conspiracy.
Who can fail to understand this letter? His words, "go deep
enough," "don't fail," "everything depends on you and your
helpers," "if you can't get through on your trip after you strike oil,
strike through Thornton gap," &c., and "I can keep you safe from
all hardships for a year, " necessarily imply that when he "strikes
oil" there will be an occasion for a flight ; that a trip, or route, has
already been determined upon; that he may not be able to go through
by that route; in which event he is to strike for Thornton gap, and
across by Capon and Romney, and down the branch, for the shelter
which his co-conspirator offers him. "I am clear of all surveillance
now" does any one doubt that the man who wrote those words
wished to assure Booth that he was no longer watched, and that
Booth could safely hide with him from his pursuers ? Does any one
doubt, from the further expression in this letter, "Jake will be at
Green's with the funds," that this was a part of the price of blood,
or that the eight thousand dollars subscribed by others, and the one
thousand additional, subscribed by the writer, were also a part of the
price to be paid ?
"The oil business," which was the declared business of O'Laughlin
88
and Arnold, was the declared business of the infamous writer of
this letter; was the declared business of John H. Surratt; was the
declared business of Booth himself, as explained to Chester and
Payne; was " the business" referred to in his telegrams to 0' Laugh-
lin, and meant the murder of the President, of his cabinet, and of
General Grant. The first of these telegrams is dated Washington,
13th March, and is addressed to M. O'Laughlin, No. 57 North Exeter
street, Baltimore, Maryland, arid is as follows: "Don't you fear to
neglect your business ; you had better come on at once. J. Booth."
The telegraphic operator, Hoffman, who sent this despatch from
Washington, swears that John Wilkes Booth delivered it to him in
person on the day of its. date; and tho handwriting of the original
telegram is established beyond question to be that of Booth. The
other telegram is dated Washington, March 27, addressed "M.
O'Laughlin, Esq., 57 North Exeter street, Baltimore, Maryland,' 7 and
is as follows : "Get word to Sam. Come on with or without him
on Wednesday morning. We sell that day sure ; don't fail. J.
Wilkes Booth. 7 ' The original of this telegram is also proved to be in
the handwriting of Booth. The sale referred to in this last telegram
was doubtless the murder of the President and others the "oil
speculation," in which the writer of the letter from South Branch
Bridge, dated April G, had taken a thousand dollars, and in which
Booth said there was money, and Sanders said there was money,
and Atzerodt said there was money. The words of this telegram,
" get word to Sam," mean Samuel Arnold, his co-conspirator, who
had been with him during all his stay in Washington, at Mrs. Van-
tyne's. These parties to this conspiracy, after they had gone to
Baltimore, had additional correspondence with Booth, which the
court must infer had relation to carrying out the purposes of their
confederation and agreement. The colored witness, Williams, testifies
that John Wilkes Booth handed him a letter for Michael O'Laughlin,
and another for Samuel Arnold, in Baltimore, some time in March
last; one of which he delivered to O'Laughlin at the theatre in Balti-
more, and the other to a lady at the door where Arnold boarded in
Baltimore.
Their agreement and co-operation in the common object having
been thus established, the letter written to Booth by the prisoner
Arnold, dated March 27, 1865, the handwriting of which is proved
before the court, and which was found in Booth's possession after the
assassination, becomes testimony against O'Laughlin, as well as
89
against the writer Arnold, because it is an act done in furtherance
of their combination. That letter is as follows:
" DEAU JOHN : Wns business so important that you could not remain in
Baltimore till I saw you ? I came in as soon as I could, but found you had
gone to Washington. I called also to see Mike, but learned from his mother
he had gone out with you and had not returned. I concluded, therefore, he
had gone with you. How * inconsiderate you have been! When I left you,
you stated that we would not meet in a month or so, and therefore I made appli-
cation for employment, an answer to which I shall receive during the week. I
told my parents I had ceased with you. Can I then, under existing circum-
stances, act as you request? You know full well that the government suspi-
cions something is going on there, therefore the undertaking is becoming more
complicated. Why not, for the present, desist] for various reasons, which, if
you look into, you can readily see without my making any mention thereof.
You nor any one can censure me for my present course. You have been its
cause, for how can I now come after telling them I had left you ? Suspicion
rests upon me now from my whole family, and even parties in the country. I
will be compelled to leave home any how, and how soon I care not. None, no,
not one, were more in favor of the enterprise than myself, and to-day would be
there had you not done as you have. By this, I mean manner of proceeding.
I am, as you well know, innced. I am, you may say, in rags, whereas, to-day, I
ought to be well clothed. I do not feel right stalking about with means, and
more from appearances a beggar. I feel my dependence. But, even all this
would have been, and was, forgotten, for I w.as one with you. Time more pro-
mtious will arrive yet. Do not act rashly or in haste. I would prefer your
first query, ' Go and see how it will be taken in llichmond,' and ere long I
shall be better prepared to again be with you. I dislike writing. Would
sooner verbally make known my views. Yet your now waiting causes me thus
to proceed. Do not in anger peruse this. Weigh all I have said, and, as a ra-
tional man and a friend, you cannot censure or upbraid my conduct. I sin-
cerely trust this, nor aught else that shall or may occur, will ever be an obsta-
cle to obliterate our former friendship and attachment. Write me to Baltimore,
as I expect to be in about Wednesday or Thursday; or, if you can possibly
come on, I will Tuesdiiy meet you at Baltimore at B.
" Ever, I subscribe myself, your friend,
SAM."
Here is the confession of the prisoner Arnold, that he was one with
Booth in this conspiracy; the further confession that they are suspected
by the government of their country, and the acknowledgment that since
they parted Booth had communicated, among other things, a suggestion
which leads to the remark in this letter, "I would prefer your first
query, ' Go and see how it will be taken at Richmond, ' and ere long
90
I shall be better prepared to again be with you." This is a declara-
tion that affects Arnold, Booth, and O'Laughlin alike, if the court
are satisfied, and it is difficult to see how they can have doubt on the
subject, that the matter to be referred to Richmond is the matter of
the assassination of the President and others, to effect which these
parties had previously agreed and conspired together. It is a matter
in testimony, by the declaration of John H. Surratt, who is as clearly
proved to have been in this conspiracy and murder as Booth himself,
that about the very date of this letter, the 27th of March, upon the
suggestion of Booth, and with his knowledge and consent, he went
to Richmond, not only to see "how it would be taken there," but to
get funds with which to carry out the enterprise, as Booth had already
declared to Chester in one of his last interviews, when he said that he
or "some one of the party" would be constrained to go to Richmond
for funds to carry out the conspiracy. Surratt returned from Rich-
mond, bringing with him some part of the money for which he went,
and was then going to Canada, and, as the testimony discloses, bring-
ing with him the despatches from Jefferson Davis to his chief agents
in Canada, which, as Thompson declared to Conover, made the pro-
posed assassination "all right." Surratt, after seeing the parties
here, left immediately for Canada and delivered his despatches to
Jacob Thompson, the agent of Jefferson Davis. This was done by
Surratt upon the suggestion, or in exact accordance with the sugges-
tion, of Arnold, made on the 27th of March in his letter to Booth just
read, and yet you are gravely told that four weeks before the 27th of
March Arnold had abandoned the conspiracy.
Surratt reached Canada with these despatches, as we have seen,
about the 6th or 7th of April last, when the witness Conover saw
them delivered to Jacob Thompson and heard their contents stated
by Thompson, and the declaration from him that these despatches
made it "all right." That Surratt was at that time in Canada is not
only established by the testimony of Conover, but it is also in evi-
dence that he told Weichmann on the 3d of April that he was going
to Canada, and on that day left for Canada, and afterwards, two let-
ters addressed by. Surratt over the fictitious signature of John Har-
rison, to his mother and to Miss Ward, dated at Montreal, were re-
ceived by them on the 14th of April, as testified by Weichmann and
by Miss Ward, a witness called for the defence. Thus it appears
that the condition named by Arnold in his Jotter had been complied
with. Booth had "gone to Richmond," in the person of Surratt,
"to see how it would be taken." The rebel authorities at Rich-
91
mond had approved it, the agent had returned, and Arnold was, in his
own words, thereby the better prepared to rejoin Booth in the prose-
cution of this conspiracy.
To this end Arnold went to Fortress Monroe. As his letter ex-
pressly declares, Booth said when they parted, "we would not
meet in a month or so, and therefore I made application for employ-
ment an answer to which I shall receive during the week." He
did receive the answer that week from Fortress Monroe, and went
thereto await the "more propitious time," bearing with him the
weapon of death which Booth had provided and ready to obey his
call, as the act had been approved at Richmond and been made " all
right." Acting upon the same fact that the conspiracy had been ap-
proved in Richmond and the funds provided, O'Laughlin came to
Washington to identify General Grant, the person who was to be-
come the victim of his violence in the final consummation of this
crime General Grant, whom, as is averred in the specification, it
had become the part of O'Laughlin by his agreement in this conspir-
acy to kill and murder. On the evening preceding the assassination
the 13th of April by the testimony of three reputable witnesses,
against whose truthfulness not one word is uttered here or elsewhere,
O'Laughlin went into the house of the Secretary of War, where Gen-
eral Grant then was, and placed himself in position in the hall where he
could see him, having declared before he reached that point to one
of these witnesses that he wished to see General Grant. The house
was brilliantly illuminated at the time; two at least of the witnesses'
conversed with the accused and the other stood very near to him,
took special notice of his conduct, called attention to it, and suggested
that he be put out of the house, and he was accordingly put out by
one of the witnesses. These witnesses are confident, and have no
doubt, and so swear upon their oaths, that Michael O'Laughlin is the
man who was present on that occasion. There is no denial on the
part of the accused that he was in Washington during the day and
during the night of April 13, and also during the day and during the
night of the J4th; and yet, to get rid of this testimony, recourse is
had to that common device an alibi', a device never, I may say,
more frequently resorted to than in this trial. But what an alibi I
Nobody is called to prove it, save some men who, by their own
testimony, were engaged in a drunken debauch through the evening.
A reasonable man who reads their evidence can hardly be expected
to allow it to outweigh the united testimony of three unimpeached
and unimpeachable witnesses who were clear in their statements,
who entertain no doubt of the truth of what they say, whose oppor-
tunities to know were full and complete, and who were constrained to
take special notice of the prisoner by reason of his extraordinary
conduct.
These witnesses describe accurately the appearance, stature, and
complexion of the accused, but because they describe his clothing as
dark or black, it is urged that as part of his clothing, although dark,
was not black, the witnesses are mistaken. O'Laughlin and his
drunken companions (one of whom swears that he drank ten times
that evening) were strolling in the streets and in the direction
of the house of the Secretary of War, up the Avenue; but you
are asked to believe that these witnesses could not be mistaken
in saying they were not off the Avenue above 7th street, or on K
street. I venture to say that no man who reads their testimony can
determine satisfactorily all the places that were visited by O'Laugh-
lin and his drunken associates that evening from 7 to 11 o'clock
p. m. All this time, from 7 to 11 o'clock p. m., must be accounted for
satisfactorily before the alibi can be established. Laughlan does not
account for all the time, for he left O'Laughlin after 7 o'clock,
and rejoined him, as he says, "I suppose about 8 o'clock." Grill et
did not meet him until half-past ten, and then only casually saw him
in passing the hotel. May not Grillet have been mistaken as to the
fact, although he did meet O'Laughlin after 11 o'clock the same
evening, as he swears?
Purdy swears to seeing him in the bar with Grillet about half-past
10, but, as we have seen by Grillet' s testimony, it must have been
after 11 o'clock. Murphy contradicts, as to time, both Grillet and
Purdy, for he says it was half-past 11 or 12 o'clock when he and
O'Laughlin returned to Rullman's from Platz's, and Early swears the
accused went from Rullman's to 2d street to a dance about a quarter-
past 11 o'clock, when O'Laughlin took the lead in the dance and stayed
about one hour. I follow these witnesses no further. They contra-
dict each other, and do not account for O'Laughlin all the time from
7 to 11 o'clock. I repeat that no man can read their testimony with-
out finding contradictions most material as to time, and coming to the
conviction that they utterly fail to account for O'Laughlin' s wherea-
bouts on that evening. To establish an alibi the witnesses must know
{he fact and testify to it. Laughlan, Grillet, Purdy, Murphy, and
Early utterly fail to prove it, and only succeed in showing that they
did not know where O'Laughlin was all this time, and that some of
93
them were grossly mistaken in what they testified, both as to time and
place. The testimony of James B. Henderson is equally unsatisfac-
tory. He is contradicted by other testimony of the accused as to
place. He says O'Laughlin went up the Avenue above 7th street, but
that he did not go to 9th street. The other witnesses swear he went
to 9th street. He swears h*e went to Canterbury about 9 o'clock,
after going back from 7th street to Rullman's. Laughlan swears that
O'Laughlin was with him at the corner of the Avenue and 9th street
at 9 o'clock, and went from there to Canterbury, while Early
swears that O'Laughlin went up as far as llth street, and returned
with him and took supper at Welcker's about 8 o'clock. If these
witnesses prove an alibi, it is really against each other. ' It is folly
to pretend that they prove facts which make it impossible that
O'Laughlin could have been at the house of Secretary Stantou, as
three witnesses swear he was, on the evening of the 13th of April,
looking for General Grant.
Has it not, by the testimony thus reviewed, been established prima
facie that in the months of February, March, and April, 0' Laughlin
had combined, confederated, and agreed with John Wilkes Booth and
Samuel Arnold to kill and murder Abraham Lincoln, "William H.
Seward, Andrew Johnson, and Ulysses S. Grant? Is it not estab-
lished, beyond a shadow of doubt, that Booth had so conspired with
the rebel agents in Canada as early as October last; that he was in
search of agents to do the work on pay, in the interests of the re-
bellion, and that in this speculation Arnold and O'Laughlin had joined
as early as February ; that then, and after, with Booth and Surratt,
they were in the "oil business," which was the business of assassina-
tion by contract as a speculation ? If this conspiracy on the part of
O'Laughlin with Arnold is established even prima facie, the declara-
tions and acts of Arnold and Booth, the other conspirators, in fur-
therance of the common design, is evidence against O'Laughlin as
well as against Arnold himself or the other parties. The rule of law
is, that the act or declaration of one conspirator, done in pursuance or
furtherance of the common design, is the act or declaration of all
the conspirators. (1 Wharton, 706.)
The letter, therefore, of his co-conspirator, Arnold, is evidence
against O'Laughlin, because it is an act in the prosecution of the com-
mon conspiracy, suggesting what should be done in order to make it
effective, and which suggestion, as has been stated, was followed
out. The defence has attempted to avoid the force of this letter by
reciting the statement of Arnold, made to Homer at the time he
94
was arrested, in which he declared, among other things, that the
purpose was to abduct President Lincoln and take him south ; that
it was to be done at the theatre by throwing the President out of the
box upon the floor of the stage, when the accused was to catch him.
The very announcement of this testimony excited derision that such
a tragedy meant only to take the President and carry him gently
away ! This pigmy to catch the giant as the assassins hurled him to
the floor from an elevation of twelve feet ! The court has viewed the
theatre, and must be satisfied that Booth, in leaping from the Presi-
dent's box, broke his limb. The court cannot fail to conclude that
this statement of Arnold was but another silly device, like that of
"the oil business," which, for the time being, he employed to hide
from the knowledge of his captor the fact that the purpose was to
murder the President. No man can, for a moment, believe that any
one of these conspirators hoped or desired, by such a proceeding as
that stated by this prisoner, to take the President alive in the pres-
ence of thousands assembled in the theatre after he had been thus
thrown upon the floor of the stage, much less to carry him through
the city, through the lines of your army, and deliver him into the
hands of the rebels. No such purpose was expressed or hinted by
the conspirators in Canada, who commissioned Booth to let these as-
sassinations on contract. I shall waste not a moment more in combat-
ting such an absurdity.
Arnold does confess that he was a conspirator with Booth in this
purposed murder ; that Booth had a letter of introduction to Dr.
Mudd ; that Booth, O'Laughlin, Atzerodt, Surratt, a man with an
alias, "Mosby," and another whom he does not know, and himself,
were parties to this conspiracy, and that Booth had furnished them
all with arms. He concludes this remarkable statement to Homer
with the declaration that at that time, to wit, the first week of
March, or four weeks before he went to Fortress Monroe, he left the
conspiracy, and that Booth told him to sell his arms if he chose.
This is sufficiently answered by the fact that, four weeks afterwards,
he wrote his letter to Booth, whicli was found in Booth's possession
after the assassination, suggesting to him what to do in order to make
the conspiracy a success, and by the further fact that at the very
moment he uttered these declarations, part of his arms were found
upon his person, and the rest not disposed of, but at his father's
house.
A party to a treasonable and murderous conspiracy against the
government of his country cannot be held to have abandoned it be-
95
cause he makes such a declaration as this, when he is in the hands of
the officer of the law. arrested for his crime, and especially when his
declaration is in conflict with and expressly contradicted by his
written acts, and unsupported by any conduct of his which becomes
a citizen and a man.
If he abandoned the conspiracy, why did he not make known the
fact to Abraham Lincoln and his constitutional advisers tjhat these
men, armed with the weapons of assassination, were daily lying in
wait for their lives? To pretend that a man who thus conducts him-
self for weeks after the pretended abandonment, volunteering advice
for the successful prosecution of the conspiracy, the evidence of which
is in writing, and about which there can be no mistake, has, in fact,
abandoned it, is to insult the common understanding of men.
O'Laughlin having conspired with Arnold to do this murder, is,
therefore, as much concluded by the letter of Arnold of the 27th of
March as is Arnold himself. The further testimony touching 0' Laughlin,
that of Streett, establishes the fact that about the 1st of April he
saw him in confidential conversation with J. Wilkes Booth, in this city,
on the Avenue. Another man, whom the witness does not know, was in
conversation. O'Laughlin called Streett to one side, and told him Booth
was busily 'engaged with his friend was talking privately to his friend.
This remark of O'Laughlin is attempted to be accounted for, but the
attempt failed ; his counsel taking the pains to ask what induced
O'Laughlin to make the remark, received the fit reply : "I did not
see the interior of Mr. 0' Laughlin' s mind ; I cannot tell." It is the
province of this court to infer why that remark was made, and what
it signified.
That John H. Surratt, George A. Atzerodt, Mary E. Surratt, David
E.Herold, and Louis Payne, entered into this conspiracy with Booth,
is so very clear upon the testimony, that little time need be occu-
pied in bringing again before the court the evidence which establishes
it. By the testimony of Weichmann we find Atzerodt in February at
the house of the prisoner, Mrs. Surratt. He inquired for her or for
John when he came and remained over night. After this and before
the assassination he visited there frequently, and at that house bore
the name of "Port Tobacco," the name by which he was known in
Canada among the conspirators there. The same witness testifies
that he met him on the street, when he said he was going to visit
Payne at the Herndon House, and also accompanied him, along with
Herold and John H. Surratt, to the theatre in March to hear Booth
play in the Apostate. At the Pennsylvania House, one or two weeks
96
previous to the assassination, Atzerodt made the statement to Lieuten-
ant Keim, when asking for his knife which he had left in his room, a
knife corresponding in size with the one exhibited in court, " I want
that; if one fails I want the other," wearing at the same time his
revolver at his belt. He also stated to Greenawalt, of the Pennsyl-
vania House, in March, that he was nearly broke, but had friends
enough to give him as much money as would see him through, adding,
"I am going away some of these days, but will return with as much
gold as will keep me all my lifetime." Mr. Greenawalt also says
that Booth had frequent interviews with Atzerodt, sometimes in the
room, and at other times Booth would walk in and immediately go
out, Atzerodt following.
John M. Lloyd testifies that some six weeks before the assassina-
tion, Herold, Atzerodt, and John H. Surratt came to his house at Sur-
rattsville, bringing with them two Spencer carbines with ammuni-
tion, also a rope and wrench. Surratt asked the witness to take
care of them, and to conceal the carbines. Surratt took him into a
room in the house, it being his mother's house, and showed the wit-
ness where to put the carbines, between the joists on the second floor.
The carbines were put there according to his directions, and con-
cealed. Marcus P. Norton saw Atzerodt in conversation with Booth
at the National Hotel about the 2d or 3d of March ; the conversa-
tion was confidential, and the witness accidentally heard them talking
in regard to President Johnson, and say that "the class-of witnesses
would be of that character that there could be little proven by them."
This conversation may throw some light on the fact that Atzerodt
was found in possession of Booth's bank book !
Colonel Nevens testifies that on the 12th of April last he saw At-
zerodt at the Kirkwood House; that Atzerodt there asked him, a
stranger, if he knew where Vice President Johnson was, and where
Mr. Johnson's room was. Colonel Nevens showed him where the room
of the Vice President was, and told him that the Vice President was
then at dinner. Atzerodt then looked into the dining-room, where
Vice President Johnson was dining alone. Robert R. Jones, the
clerk at the Kirkwood House, states that on the 14th, the day of
the murder, two days after this, Atzerodt registered his name at the
hotel, G. A. Atzerodt, and took No. 126, retaining the room that
day, and carrying away the key. In this room, after the assassina-
tion, were found the knife and revolver with which he intended to
murder the Vice President.
The testimony of all these witnesses leaves no doubt that the
97
prisoner George A. Atzerodt entered into this conspiracy with Booth ;
that he expected to receive a large compensation for the service that
he would render in its execution ; that he had undertaken the assassi-
nation of the Vice President for a price ; that he, with Surratt and
Herold, rendered the important service of depositing the arms and
ammunition to be used by Booth and his confederates as a protection
in their flight after the conspiracy had been executed ; and that he
was careful to have his intended victim pointed out to him, and the
room he occupied in the hotel, so that when he came to perfdrm his
horrid work he would know precisely where to go and whom to
strike.
I take no further notice now of the preparation which this prisoner
made for the successful execution of this part of the traitorous and mur-
derous design. The question is, did he enter into this conspiracy ?
His language overheard by Mr. Norton excludes every other con-
clusion. Vice President Johnson's name was mentioned in that
secret conversation with Booth, and the very suggestive expression
was made between them that "little could be proved by the wit-
nesses." His confession in his defence is conclusive of his guilt.
That Payne was in this conspiracy is confessed in the defence
made by his counsel, and is also evident from the facts proved, that
when the conspiracy was being organized in Canada by Thompson,
Sanders, Tucker, Cleary, and Clay, this man Payne stood at the
door of Thompson ; was recommended and indorsed by Clay with the
words, " We trust him ;" that after coming hither he first reported
himself at the house of Mrs. Mary E. Surratt, inquired for her and for
John H. Surratt, remained there for four days, having conversation
with both of them ; having provided himself with means of disguise,
was also supplied with pistols and a knife, such as he afterwards
used, and spurs, preparatory to his flight ; was seen with John H.
Surratt, practicing with knives such as those employed in this deed
of assassination, and now before the court ; was afterwards provided
with lodging at the Herndon House, at the instance of Surratt ; was
visited there by Atzerodt, and attended Booth and Surratt to Ford's
theatre, occupying with those parties the box, as I believe and which
we may readily infer, in which the President was afterwards mur-
dered.
If further testimony be wanting that he had entered into the con-
spiracy, it may be found in the fact sworn to by Weichmann, whose
testimony 110 candid man will discredit, that about the 20th of March
Mrs. Surratt, in great excitement, and weeping, said that her son
7u
98
John had gone away not to return, when about three hours subse-
quently, in the afternoon of the same day, John H. Surratt re-
appeared, came rushing in a state of frenzy into the room, in his
mother's house, armed, declaring he would shoot whoever came into
the room, and proclaiming that his prospects were blasted and his
hopes gone ; that soon Payne came into the same room, also armed
and under great excitement, and was immediately followed by
Booth, with his riding-whip in his hand, who walked rapidly across
the floor from side to side, so much excited that for some time he did
not notice the presence of the witness. Observing Weichmann the
parties then withdrew, upon a suggestion from Booth, to an upper
room, and there had a private interview. From all that transpired
Qn that occasion, it is apparent that when these parties left the house
that day, it was with the full purpose of completing some act esseji-
tial to the final execution of the work of assassination, in conformity
with their previous confederation and agreement. They returned
foiled from what cause is unknown dejected, angry, and covered
with confusion.
It is almost imposing upon the patience of the court to consume
time in demonstrating the fact, which none conversant with the testi-
mony of this case can for a moment doubt, that John H. Surratt
and Mary E. Surratt were as surely in the conspiracy to murder the
President as was John Wilkes Booth himself. You have the frequent
interviews between John H. Surratt and Booth, his intimate relations
with Payne, his visits from Atzerodt and Herold, his deposit of the
arms to cover their flight after the conspiracy should have been exe-
cuted ; his own declared visit to Richmond to do what Booth himself
said to Chester must be done, to wit, that he or some of the party
rnustgo to Richmond in order to get funds to carry out the conspiracy ;
that he brought back with him gold, the price of blood, confessing
himself that he was there ; that he immediately went to Canada,
delivered despatches in cipher to Jacob Thompson from Jefferson
Davis, which were interpreted and read by Thompson in the presence
of the witness Conover, and in which the conspiracy was approved,
and, in the language of Thompson, the proposed assassination was
"made all right."
One other fact, if any other fact be needed, and I have done with
the evidence which proves that John H. Surratt entered into this
combination; that is, that it appears by the testimony of the witness,
the cashier of the Ontario Bank, Montreal, that Jacob Thompson,
about the day that these despatches were delivered, and while Sur-
; . 99
ratt was then present in Canada, drew from that bank of the rebel
funds there on deposit the sum of one hundred and eighty thousand
dollars. This being done, Surratt finding it safer, doubtless, to go
to Canada for the great bulk of funds which were to be distributed
amongst these hired assassins than to attempt to carry it through
our lines direct from Richmond, immediately returned to Washing-
ton and was present in this city, as is proven by the testimony of
Mr. Reid, on the afternoon of the \kth of April, the day of the assassi-
nation, booted and spurred, ready for the flight whenever the fatal
blow should have been struck. If he was not a conspirator and a
party to this great crime, how comes it that from that hour to. this
no man has seen him in the capital, nor has he been reported. any-
where outside of Canada, haying arrived at Montreal, as the testi-
mony shows, on the 18th of April, four days after the murder?
Nothing but his conscious coward guilt could possibly induce him to
absent himself from his mother, as he does, upon her trial. Being
one of these conspirators, as charged, every act of hia in the prosecu-
tion of this crime is evidence against the other parties to the con-
spiracy.
That Mary E. Surratt is as guilty as her son of having thus con-
spired, combined, and confederated to do this murder, in aid of this
rebellion, is clear. First, her house was the headquarters of
Booth, John H. Surratt, Atzerodt, Payne, and Herold. She is in-
quired for by Atzerodt ; she is inquired for by Payne ; and she is
visited by Booth, and holds private conversations with him. His
picture, together with that of the chief conspirator, Jefferson Davis,
is found in her house. She sends to Booth for a carriage to take her,
on the llth of April, to Surrattsville for the purpose of perfecting
the arrangement deemed necessary to the successful execution of the
conspiracy, and especially to facilitate and protect the conspirators
in their escape from justice. On that occasion Booth, having dis-
posed of his carriage, gives to the agent she employed ten dollars
with which to hire a conveyance for that purpose. And yet the pre-
tence is made that Mrs. Surratt went on the llth to Surrattsville ex-
clusively upon her own private and lawful business. Can any one
tell, if that be so, how it comes that she should apply to Booth for a
conveyance, and how it comes that he, of his own accord, having no
conveyance to furnish her, should send her ten dollars with which' to
procure it? There is not the slightest indication that Booth was
under any obligation to her, or that she had any claim upon him,
either for a conveyance or for the means with which to procure one,
100
except that he was bound to contribute, being the agent of the con-
spirators in Canada and Richmond, whatever money might be neces-
sary to the consummation of this infernal plot. On that day, the llth
of April, John H. Surratt had not returned from Canada with the
funds furnished by Thompson !
Upon that journey of the llth the accused, Mary E. Surratt,
met the witness John M. Lloyd at Uniontown. She called him;
he got out of his carriage and came to her, and she whispered to
him in so low a tone that her attendant could not hear her words,
though Lloyd, to whom they were spoken, did distinctly hear
them, and testifies that she told him he should have those ' ' shoot-
ing-irons" ready, meaning the carbines which her son and Herold
and Atzerodt had deposited with him, and added the reason,
"for they would soon be called for." On the day of the assas-
sination she again sent for Booth, had an interview with him in
her own house, and immediately went again to Surrattsville, and
then, at about six o' clock in the afternoon, she delivered to Lloyd a
field-glass and told him "to have two bottles of whiskey and the
carbines ready, as they would be called for that night." Having
thus perfected the arrangement she returned to Washington to her
own house, at about half-past eight o'clock in the evening, to await
the final result. How could this woman anticipate on Friday after-
noon, at six o'clock, that these arms would be called for and would
be needed that night unless she was in the conspiracy and knew the
blow was to be struck, and the flight of the assassins attempted and
by that route ? Was not the private conversation which Booth held
with her in her parlor on the afternoon of the 14th of April, just
before she left on this business, in relation to the orders she should
give to have the arms ready ?
An endeavor is made to impeach Lloyd. But the court will
observe that no witness has been called who contradicts Lloyd's
statement in any material matter; neither has his general character
for truth been assailed. How, then, is he impeached ? Is it claimed
that his testimony shows that he was a party to the conspiracy ?
Then it is conceded by those who set up any such pretence that
there was a conspiracy. A conspiracy between whom ? There can
be no conspiracy without the co-operation or agreement of two or
more persons. Who were the other parties to it? Was it Mary E.
Surratt? Was it John H. Surratt, George A. Atzerodt, David E.
Herold ? Those are the only persons, so far as his own testimony or
the testimony of any other witness discloses, with whom he had any
101
communication whatever on any subject immediately or remotely
touching this conspiracy before the assassination. His receipt and
concealment of the arms are, unexplained, evidence that he was in
the conspiracy.
The explanation is that he was dependent upon Mary E. Surratt;
was her tenant; and his declaration, given in evidence by the accused
herself, is that "she had ruined him, and brought this trouble upon
him." But because he was weak enough, or wicked enough, to be-
come the guilty depositary of these arms, and to deliver them on the
order of Mary E . Surratt to the assassins, it does not follow that he
is not to be believed on oath. It is said that he concealed the facts that
the arms had been left and called for. He so testifies himself, but he
gives the reason that he did it only from apprehension of danger to
his life. If he were in the conspiracy, his general credit being
unchallenged, his testimony being uncontradicted in any material
matter, he is to be believed, and cannot be disbelieved if his testi-
mony is substantially corroborated by other reliable witnesses. Is
he not corroborated touching the deposit of arms by the fact that the
arms are produced in court one of which was found upon the
person of Booth at the time he was overtaken and slain, and which is
identified as the same which had been left with Lloyd by Herold,
Surratt, and Atzerodt ? Is he not corroborated in the fact of the first
interview with Mrs. Surratt by the joint testimony of Mrs. Offut and
Lewis J. Weichmann, each of whom testified, (and they are contra-
dicted by no one,) that on Tuesday, the llth day of April, at Un'on-
town, Mrs. Surratt called Mr. Lloyd to come to her, which he did,
and she held a secret conversation with him ? Is he not corroborated
as to the last conversation on the 14th of April by the testimony of
Mrs. Offut, who swears that upon the evening of the 14th of April
she saw the prisoner, Mary E. Surratt, at Lloyd's house, approach
and hold conversation with him ? Is he not corroborated in the fact,
to which he swears, that Mrs. Surratt delivered to him at that time
the field-glass wrapped in paper, by the sworn statement of Weich-
mann that Mrs. Surratt took with her on that occasion two packages,
both of which were wrapped in paper, and one of which he describes
'as a small package about six inches in diameter? The attempt was
made by calling Mrs. Offut to prove that no such package was de-
livered, but it failed; she merely states that Mrs. Surratt delivered
a package wrapped in paper to her after her arrival there, and before
Lloyd came in, which was laid down in the room. But whether it
was the package about which Lloyd testifies, or the other package of
the two about which Weichmann testifies, as having been carried
there that day by Mrs. Surratt, does not appear. Neither does this
witness pretend to say that Mrs. Surratt, after she had delivered it
to her, and the witness had laid it down in the room, did not again
take it up, if it were the same, and put it in the hands of Lloyd.
She only knows that she did not see that done; but she did see Lloyd
with a package like the one she received in the room before Mrs.
Surratt left. How it came into his possession she is not able to state;
nor what the package was that .Mrs. Surratt first handed her; nor
which of the packages it was she afterwards saw in the hands of
Lloyd .
But there is one other fact in this case that puts forever at reot the
question of the guilty participation of the prisoner Mrs. Surratt in
this conspiracy and murder; and that is that Payne, who had lodged
four days in her house who during all that time had sat at her table,
and who had often conversed with her when the guilt of his great
crime was upon him, and he knew not where else he could so safely
go to find a co-conspirator, arid he could trust none that was not like
himself, guilty, with even the knowledge of his presence under
cover of darkness, after wandering for three days and nights, skulk-
ing before the pursuing officers of justice, at the hour of midnight,
found his way to the door of Mrs. Surratt, rang the bell, was admit-
ted, and upon being asked, "Whom do you want to see," replied,
" Mrs. Surratt." He was then asked by the officer Morgan, what he
came at that time of night for? to which he replied, ' ; to dig a gutter
in the morning; Mrs. Surratt had sent for him." Afterwards he said
"Mrs. Surratt knew he was a poor man and came to him." Being
asked where he last worked ? he replied, " sometimes on T street;"
and where he boarded? he replied, "he had no boarding-house, and
was a poor man who got his living with the pick," which he bore
upon his shoulder, having stolen it from the intrenchments of the
capital. Upon being pressed again why he came there at that time
of night to go to work, he answered that he simply called to see what
time he should go to work in the morning. Upon being told by the
officer who fortunately had preceded him to this house that he would
have to go to the provost marshal's office, he moved and did not
answer, whereupon Mrs. Surratt was asked to step into the hall and
state whether she knew this man. Raising her right hand she ex-
claimed, "Before God, sir, I have not seen that man before; I have
not hired him; I do not know anything about him." The hall was
brilliantly lighted.
103
If not one word had been said, the mere act of Payne in flying
to her house for shelter would have borne witness against her, strong
as proofs from Holy Writ. But when she denies, after hearing his
declarations, that she had sent for him, or that she had gone to him
and hired him, and calls her God to witness that she had never seen
him, and knew nothing of him, when, in point of fact, she had seen
him for four successive days in her own house, in the same clothing
which he then wore, who can resist for a moment the conclusion that
these parties were alike guilty ?
The testimony of Spangler' s complicity is conclusive and brief. It
was impossible to hope for escape after assassinating the President,
and such others as might attend him in Ford's theatre, without ar-
rangements being first made to aid the flight of the assassin and to
some extent prevent immediate pursuit.
A stable was to be provided close to Ford's theatre, in which the
horses could be concealed and kept ready for the assassin's use when-
ever the murderous blow was struck. Accordingly, Booth secretly,
through Maddox, hired a stable in rear of the theatre and connecting
with it by an alley, as early as the 1st of January last ; showing that
at that time he had concluded, notwithstanding all that has been said
to the contrary, to murder the President in Ford's theatre and pro-
vide the means for immediate and successful flight. Conscious of his
guilt, he paid the rent for this stable through Maddox, month by
month, giving him the money. He employed Spangler, doubtless for
the reason that he could trust him with the secret, as a carpenter to
fit up this shed, so that it would furnish room for two horses, and pro-
vided the door with lock and key. Spangler did this work for him.
Then, it was necessary that a carpenter having access to the theatre
should be employed by the assassin to provide a bar for the outer
door of the passage leading to the President's box, so that when he
entered upon his work of assassination he would be secure from in-
terruption from the rear. By the evidence, it is shown that Spangler
was in the box in which the President was murdered on the after-
noon of the 14th of April, and when there damned the President and
General Grant, and said the President ought to be cursed, he had got
so many good men killed ; showing not only his hostility to the Presi-
dent, but the cause of it that he had been faithful to his oath and
had resisted that great rebellion in the interest of which his life was
about to be sacrificed by this man and his co-conspirators. In perform-
ing the work which had doubtless been intrusted to him by Booth,
a mortise was cut in the wall. A wooden bar was prepared, one end
104
of which could be readily inserted in the mortise and the other
pressed against the edge of the door on the inside so as to prevent its
being opened. Spangler had the skill and the opportunity to do that
work and all the additional work which was done.
It is in evidence that the screws in "the keepers" to the locks
on each of the inner doors of the box occupied by the President were
drawn. The attempt has been made, on behalf of the prisoner, to
show that this was done some time before, accidentally, and with no
bad design, and had not been repaired by reason of inadvertence;
but that attempt has utterly failed, because the testimony adduced
for that purpose relates exclusively to but one of the two inner doors,
while the fact is, that the screws were drawn in both, and the addi-
tional precaution taken to cut a small hole through one of these doors
through which the party approaching and while in the private pas-
sage would be enabled to look into the box and examine the exact
posture of the President before entering. It was also deemed essen-
tial, in the execution of this plot, that some one should watch at the
outer door, in the rear of the theatre, by which alone the assassin
could hope for escape. It was for this work Booth sought to employ
Chester in January, offering $3,000 down of the money of his em-
ployers, and the assurance that he should never want. What Ches-
ter refused to do Spangler undertook and promised to do. When
Booth brought his horse to the rear door of the theatre, on the even-
ing of the murder, he called for Spangler, who went to him, when
Booth was heard to say to him, "Ned, you'll help me all you can,
won't you." To which Spangler replied, "Oh, yes."
When Booth made his escape, it is testified by Colonel Stewart,
who pursued him across the stage and out through the same door,
that as he approached it some one slammed it shut. Ritterspaugh,
who was standing behind the scenes when Booth fired the pistol and
fled, saw Booth run down the passage toward the back door, and pur-
sued him; but Booth drew his knife upon him and passed oat, slam-
ming the door after him. Ritterspaugh opened it and went through,
leaving it open, behind him, leaving Spangler inside, and in a position
from which he readily could have reached the door. Ritterspangh
also states that very quickly after he had passed through this door ho
was followed by a large man, the first who followed him, and who
was, doubtless, Colonel Stewart. Stewart is very positive that ho
saw this door slammed; that he himself was constrained to open it,
and had some difficulty in opening it. He also testifies that as he ap-
proached the door a man stood near enough to have thrown it to with
105
his hand, and this man, the witness believes, was the prisoner Span-
gler. Ritterspaugh has sworn that he left the door open behind him
when he went out, and that he was first followed by the large man,
Colonel Stewart. Who slammed that door behind Ritterspaugh? It
was not Ritterspaugh ; it could not have been Booth, for Ritterspaugh
swears that Booth was mounting his horse at the time; and Stewart
swears that Booth was upon his horse when he came out. That it was
Spangler who slammed the door after Ritterspaugh may not only be
inferred from Stewart's testimony, but it is made very clear by his own
conduct afterwards upon the return of Ritterspaugh to the stage.
The door being then open, and Ritterspaugh being asked which way
Booth went, had answered. Ritterspaugh says: "Then I came back
on the stage, where I had left Edward Spangler ; he hit me on the
face with his hand and said, 'Don't say which way he. went' I
asked him what he meant by slapping me in the mouth? He said,
'For God's sake, shut up.' "
The testimony of Withers is adroitly handled to throw doubt upon
these facts. It cannot avail, for Withers says he was* knocked in the
scene by Booth, and when he "come to" he got a side view of him.
A man knocked down and senseless, on "coming to' 7 might mistake
anybody by a side view for Booth.
An attempt has been made by the defence to discredit this testi-
mony of Ritterspaugh, by showing his contradictory statements to
Gifford, Carlan, and Lamb, neither of whom do in fact contradict
him, but substantially sustain him. None but a guilty man would
have met the witness with a blow for stating which way the assassin
had gone. A like confession of guilt was made by Spangler when
the witness Miles, the same evening, and directly after the assassina-
tion, came to the back door, where Spangler was standing with others,
and asked Spangler who it was that held the horse, to which Spangler
replied: "Hush; don' t say anything about it.' ? He confessed his
guilt again when he denied to Mary Anderson the fact, proved here
beyond all question, that Booth had called him when he came to that
door with his horse, using the emphatic words, "No, he did not; he
did not call me." The rope comes to bear witness against him, as
did the rope which Atzerodt and Herold and John H. Surratt had
carried to Surrattsville and deposited there with the carbines.
It is only surprising that the ingenious counsel did not attempt to
explain the deposit of the rope at Surrattsville by the same method
that he adopted in explanation of the deposit of this rope, some
sixty feet long, found in the carpet-sack of Spangler, unaccounted for
106
save by some evidence which tends to show that he may have carried
it away from the theatre.
It is not needful to take time in the recapitulation of the evidence,
which shows conclusively that David E. Herold was one of these con-
spirators. His continued association with Booth, with Atzerodt, his
visits to Mrs. Surratt' s, his attendance at the theatre with Payne,
Surratt, and Atzerodt, his connexion with Atzerodt on the evening
of the murder, riding with him on the street in the direction of and
near to the theatre at the hour appointed for the work of assassina-
tion, and his final flight and arrest, show that he, in common with all
the other parties on trial, and all the parties named upon your record
not upon trial, had combined and confederated to kill and murder in
the interests of the rebellion, as charged and specified against them.
That this conspiracy was entered into by all these parties, both
present and absent, is thus proved by the acts, meetings, declara-
tions, and correspondence of all the parties, beyond any doubt what-
ever. True it is circumstantial evidence, but the court will remember
the rule before recited, that circumstances cannot lie; that they are
held sufficient in every court where justice is judicially administered
to establish the fact of a conspiracy. I shall take no further notice
of the remark made by the learned counsel who opened for the defence,
and which has been followed by several of his associates, that, under
the Constitution, it requires two witnesses to prove the overt act of high
treason, than to say, this is not a charge of high treason, but of a treason-
able conspiracy, in aid of a rebellion, with intent to kill and murder
the executive officer of the United States, and commander of its armies,
and of the murder of the President in pursuance of that conspiracy,
and with the intent laid, &c. Neither by the Constitution, nor by
the rules of the common law, is any fact connected with this allega-
tion required to be established by the testimony of more than one
witness. I might say, however, that every substantive averment
against each of the parties named upon this record has been estab-
lished by the testimony of more than one witness.
That the several accused did enter into this conspiracy with John
Wilkes Booth and John H. Surratt to murder the officers of this gov-
ernment named upon the record, in pursuance of the wishes of their
employers and instigators in Richmond and Canada, and with intent
thereby to aid the existing rebellion and subvert the Constitution and
laws of the United States, as alleged, is no longer an open question.
The intent as laid was expressly declared by Sanders in the meet-
ing of the conspirators at Montreal in February last, by Booth in
107
Virginia and New York, and by Thompson to Conover and Mont-
gomery ; but if there were no testimony directly upon this point, the
law would presume the intent, for the reason that such was the
natural and necessary tendency and manifest design of the act itself.
The learned gentleman (Mr. Johnson) says the government has
survived the assassination of the President, and thereby would have
you infer that this conspiracy was not entered into and attempted to
be executed with the intent laid. With as much show of reason it
might be said that because the government of the United States has
survived this unmatched rebellion, it therefore results that the rebel
conspirators waged war upon the government with no purpose or
intent thereby to subvert it. By the law we have seen that without
any direct evidence of previous combination and agreement between
these parties, the conspiracy might be established by evidence of the
acts of the prisoners, or of any others with whom they co-operated,
concurring in the execution of the common design. (Roscoe, 416.)
Was there co-operation between the several accused in the exe-
cution of this conspiracy ? That there was is as clearly established
by the testimony as is the fact that Abraham Lincoln was killed and
murdered by John Wilkes Booth. The evidence shows that all of
the accused, save Mudd and Arnold, were in Washington on the 14th
of April, the day of the assassination, together with John Wilkes
Booth and John H. Surratt ; that on that day Booth had a secret
interview with the prisoner Mary E. Surratt; that immediately there-
after she went to Surrattsville to perform her part of the preparation
necessary to the successful execution of the conspiracy, and did
make that preparation ; that John H. Surratt had arrived here from
Canada, notifying the parties that the price to be paid for this
great crime had been provided for, at least in part, by the deposit
receipts of April 6th for $180,000, procured by Thompson of the
Ontario Bank, Montreal, Canada: that he was also prepared to keep
watch, or strike a blow, and ready for the contemplated flight; that
Atzerodt, on the afternoon of that day, was seeking to obtain a horse,
the better to secure his own safety by flight, after he should have
performed the task which he had voluntarily undertaken by contract
in the conspiracy the murder of Andrew Johnson, then Vice Presi-
dent of the United States; that he did procure a horse for that pur-
pose at Naylor's, and was seen about nine o'clock in the evening to
ride to the Kirkwood House, where the Vice President then was, dis-
mount, and enter. At a previous hour Booth was in the Kirkwood
108
House, and left his card, now in evidence, doubtless intended to be
sent to the room of the Vice President, and which was in these words:
"Don't wish to disturb you. Are you at home ? J. Wilkes Booth."
Atzerodt, when he made application at Brooks' s in the afternoon for
the horse, said to Weichmann, who was there, he was going to ride
in the country, and that "he was going to get a horse and send for
Payne." He did get a horse for Payne, as well as for himself; for it
is proven that on the 12th he was seen in Washington riding the
horse which had been procured by Booth, in company with Mudd,
last November, from Gardner. A similar horse was tied before the
door of Mr. Seward on the night of the murder, was captured after
the flight of Payne, who was seen to ride away, and which horse is
now identified as the Gardner horse. Booth also procured a horse on
the same day, took it to his stable in the rear of the theatre, where
he had an interview with Spangler, and where he concealed it.
Herold, too, obtained a horse in the afternoon, and was seen between
nine and ten o'clock riding with Atzerodt down the Avenue from the
Treasury, then up Fourteenth and down F street, passing close by
Ford's theatre.
O'Laughlin had come to Washington the day before, had sought
out his victim (General Grant) at the house of the Secretary of War,
that he might be able with certainty to identify him, and at the very
hour when these preparations were going on was lying in wait at
Rullman's, on the Avenue, keeping watch, and declaring, as he did,
at about 10 o'clock p. m., when told that the fatal blow had been
struck by Booth, " I don't believe Booth did it." During the day,
and the night before, he had been visiting Booth, and doubtless en-
couraging him, and at that very hour was in position, at a convenient
distance, to aid and protect him in his flight, as well as to execute
his own part of the conspiracy by inflicting death upon General
Grant, who happily was not at the theatre nor in the city, having
left the city that day. Who doubts that, Booth having ascertained
in the course of the day that General Grant would not be present at
the theatre, O'Laughlin, who was to murder General Grant, instead
of entering the box with Booth, was detailed to lie in wait, and watch
and support him.
His declarations of his reasons for changing his lodgings here and
in Baltimore, after the murder, so ably and so ingeniously presented
in the argument of his learned counsel, (Mr. Cox,) avail nothing
before the blasting fact that he did change his lodgings, and de-
clared "he knew nothing of the affair whatever." O'Laughlin,
109
who lurked here, conspiring daily with Booth and Arnold for
six weeks to do this murder, declares "he knew nothing of the
affair." O'Laughlin, who said he was "in the oil business," which
Booth and Surratt, and Payne and Arnold, have all declared
meant this conspiracy, says he "knew nothing of the affair."
O'Laughlin, to whom Booth sent the despatches of the 13th and 27th
of March O'Laughlin, who is named in Arnold's letter as one of
the conspirators, and who searched for General Grant on Thursday
night, laid in wait for him on Friday, was defeated by that Provi-
dence "which shapes our ends," and laid in wait to aid Booth
and Payne, declares "he knows nothing of the matter." Such a denial
is as false and inexcusable as Peter's denial of our Lord.
Mrs. Surratt had arrived at home, from the completion of her part
in the plot, about half-past eight o'clock in the evening. A few
moments afterwards she was called to the parlor and there had a
private interview with some one unseen, but whose retreating foot-
steps were heard by the witness Weichmann. This was doubtless
the secret and last visit of John H. Surratt to his mother, who had
instigated and encouraged him to strike this traitorous and murderous
blow against his country.
While all these preparations were going on, Mudd was awaiting
the execution of the plot, ready to faithfully perform his part in se-
curing the safe escape of the murderers. Arnold was at his post at
Fortress Monroe, awaiting the meeting referred to in his letter of
March 27th, wherein he says they were not "to meet for a month or
so," which month had more than expired on the day of the murder,
for his letter and the testimony disclose that this month of suspension
began to run from about the first week in March. He stood ready
with the arms which Booth had furnished him to aid the escape of the
murderers by that route, and secure their communication with. their
employers. He had given the assurance in that letter to Booth, that
although the government "suspicioned them," and the undertak-
ing was "becoming complicated," yet "a time more propitious would
arrive" for the consummation of this conspiracy in wtiich he "was
one" with Booth, and when he would "be better prepared to again
be with him."
Such were the preparations. The horses were in readiness for the
flight ; the ropes were procured, doubtless for the purpose of tying
the horses at whatever point they might be constrained to delay and
to secure their boats to their moorings in making their way across the
Potomac. The five murderous camp knives, the two carbines, the
110
eight revolvers, the Derringer, in court and identified, all were ready
for the work of death. The part that each had played has already
been in part stated in this argument, and needs no repetition.
Booth proceeded to the theatre about 9 o'clock in the evening, at
the same time that Atzerodt and Payne and Herold were riding the
streets, while Surratt, having parted with his mother at the brief in-
terview in her parlor, from which his retreating steps were heard,
was walking the Avenue, booted and spurred, and doubtless consult-
ing with O'Laughlin. When Booth reached the rear of the theatre,
he called Spangler to him, (whose denial of that fact, when charged with
it, as prof en by three witnesses, is very significant,) and received from
Spangler his pledge to help him all he could, when with Booth he
entered the theatre by the stage-door, doubtless to see that the way was
clear from the box to the rear door of the theatre, and look upon their
victim, whose exact position they could study from the stage. After this
view, Booth passes to the street, in front of the theatre, where, on
the pavement with other conspirators yet unknown, among them one
described as a low-browed villain, he awaits the appointed moment.
Booth himself, impatient, enters the vestibule of the theatre from the
front, and asks the time. He is referred to the clock, and returns.
Presently, as the hour of 10 o'clock approached, one of his guilty
associates called the time : they wait ; again, as the moments elapsed,
this conspirator upon watch called the time; again, as the appointed
hour drawsdigh, he calls the time; and finally, when the fatal moment
arrives, he repeats in a louder tone, "Ten minutes past 10 o'clock."
Ten minutes past 10 o'clock ! The hour has come when the red
right hand of these murderous conspirators should strike, and the
dreadful deed of assassination be done.
Booth, at the appointed moment, entered the theatre, ascended to
the dress-circle, passed to the right, paused a moment, looking down,
doubtless to see if Spangler was at his post, and approached the outer
door of the close passage leading to the box occupied by the Presi-
dent, pressed it open, passed in, and closed the passage door behind
him. Spangler' s bar was in its place, and was readily adjusted by Booth
in the mortise, and pressed against the inner side of the door, so that
he was secure from interruption from without. He passes on to the
next door, immediately behind the President, and there stopping,
looks through the aperture in the door into the President's box, and
deliberately observes th^e precise position of his victim, seated in the
chair which had been prepared by the conspirators as the altar for
the sacrifice, looking calmly and quietly down upon the glad and
Ill
grateful people whom by his fidelity he had saved from the peril which
had threatened the destruction of their government, and all they held
dear this side of the grave, and whom he had come upon invitation to
greet with his presence, with the words still lingering upon his lips
which he had uttered with uncovered head and uplifted hand before
God and his country, when on the 4th of last March he took again the
oath to preserve, protect, and defend the Constitution, declaring that
he entered upon the duties of his great office " with malice toward
none with charity for all." In a moment more, strengthened by the
knowledge that his co-conspirators were all at their posts, seven at
least of them present in the city, two of them, Mudd and Arnold, at
their appointed places, watching for his coming, this hired assassin
moves stealthily through the door, the fastenings of which had been
removed to facilitate his entrance, fires upon his victim, and the mar-
tyr spirit of Abraham Lincoln ascends to God.
"Treason has done his worst; nor steel, nor poison,
Malice domestic, foreign levy, nothing
Can touch him further."
At the same hour, when these accused and their co-conspirators in
Richmond and Canada, by the hand of John Wilkes Booth, inflicted
this mortal wound which deprived the republic of its defender, and
filled this land from ocean to ocean with a strange, great sorrow,
Payne, a very demon in human form, with the words of falsehood
upon his lips, that he was the bearer of a message from th'e physician
of the venerable Secretary of State, sweeps by his servant, encounters
his son, who protests that the assassin shall not disturb his father, pros-
trate on a bed of sickness, and receives for answer the assassin's blow
from the revolver in his hand, repeated again and again, rushes into the
room, is encountered by Major Seward, inflicts Wound after wound
upon him with his murderous knife, is encountered by Hansell and
Robinson, each of whom he also wounds, springs upon the defenceless
and feeble Secretary of State, stabs first on one side of his throat,
then on the other, again in the face, and is only prevented from lite-
rally hacking out his life by the persistence and courage of the
attendant Robinson. He turns to flee, and, his giant arm and mur-
derous hand for a moment paralyzed by the consciousness of guilt,
he drops his weapons of death, one in the house, the other at the
door, where they were taken up, and are here now to bear witness
against him. He attempts escape on the horse which Booth and
Mudd had procured of Gardner with what success has already been
stated.
112
Atzerodt, near midnight, returns to the stable of Naylor the horse
which he had procured for this work of murder, having been inter-
rupted in the execution of the part assigned him at the Kirkwood
House by the timely coming of citizens to the defence of the Vice
President, and creeps into the Pennsylvania House at 2 o'clock in the
morning with another of the conspirators, yet unknown. There he
remained until about 5 o'clock, when he left, found his way to
Georgetown, pawned one of his revolvers, now in court, and fled
northward into Maryland.
He is traced to Montgomery county, to the house of Mr. Metz, on
the Sunday succeeding the murder, where, as is proved by the tes-
timony of three witnesses, he said that if the man that was to follow
General Grant had followed him, it was likely that Grant was shot.
To one of these witnesses (Mr. Layman) he said he did not think
Grant had been killed: or if he had been killed, he was killed by a
man who got on the cars at the same time that Grant did ; thus dis-
closing most clearly that one of his co-conspirators was assigned the
task of killing and murdering General Grant, and that Atzerodt knew
that General Grant had left the city of Washington, a fact which is
not disputed, on the Friday evening of the murder, by the evening
train. Thus this intended victim of the conspiracy escaped, for that
night, the knives and revolvers of Atzerodt, and O'Laughliu, and Payne,
and Herold, and Booth, and John H. Surratt, and, perchance, Harper
and C aid well, and twenty others, who were then here lying in wait
for his life.
In the mean time, Booth and Herold, taking the route before agreed
upon, make directly after the assassination for the Anacostia bridge.
Booth crosses first, gives his name, passes the guard, and is speedily
followed by Herold. They make their way directly to Surrattsville,
where Herold calls to Lloyd, "Bring out those things," showing that
there had been communication between them and Mrs. Surratt after
her return. Both the carbines being in readiness, according to Mary
E. Surratt' s directions, both were brought out. They took but one.
Booth declined to carry the other, saying that his limb was broken.
They then declared that they had murdered the President and the Sec-
retary of State. They then make their way directly to the house of the
prisoner Mudd, assured of safety and security. They arrived early in
the morning before day, and no man knows at what hour they left.
Herold rode towards Bryan town with Mudd about 3 o'clock that after-
noon, in the vicinity of which place he parted with him, remaining in the
swamp, and was afterwards seen returning the same afternoon in the
113
direction of Mudd's house ; about which'time, a little before sundown,
Mudd returned from Bryantown towards his home. This village at
the -time Mudd was in it was thronged with soldiers in pursuit of the
murderers of the President, and although great care has been taken
by the defence to deny that any one said in the presence of Dr.
Mudd, either there or elsewhere on that day, who had committed this
crime, yet it is in evidence by two witnesses, whose truthfulness no
man questions, that upon Mudd's return to his own house, that after-
noon, he stated that Booth was the murderer of the President, and
Boyle the murderer of Secretary Seward, but took care to make the
further remark that Booth had brothers, and he did not know which
of them had done the act. When did Dr. Mudd learn that Booth
had brothers ? And what is still more pertinent to this inquiry, from
whom did he learn that either John Wilkes Booth or any of his
brothers had murdered the President ? It is clear that Booth remained
in his house until some time in the afternoon of Saturday ; that
Herold left the house alone, as one of the witnesses states, being seen
to pass the window; that he alone of these two assassins was in the
company of Dr. Mudd on his way to Bryantown. It does not appear
when Herold returned to Mudd' s house. It is a confession of Dr. Mudd*
himself, proven by one of the witnesses, that Booth left his house on'
crutches, and went in the direction of the swamp. How long he re- 1
mained there, and what became of the horses which Booth and Herold/
rode to his house, and which were put into his stable, are facts no-
where disclosed by the evidence. The owners testify that they have
never seen the horses since. The accused give no explanation of
the matter, and when Herold and Booth were captured they had
not these horses in their possession. How comes it that, on Mudd's
return from Bryantowu, on the evening of Saturday, in his conver-
sation with Mr. Hardy and Mr. Farrell, the witnesses before referred
to, he gave the name of Booth as the murderer of the President and
that of Boyle as the murderer of Secretary Seward and his son, and
carefully avoided intimating to either that Booth had come to his
house early that day, and had remained there until the afternoon;
that he left him in his house and had furnished him a razor with
which Booth attempted to disguise himself by shaving off his mous-
tache? How comes it, also, that, upon being asked by those ^two
witnesses whether the Booth who killed the President was the one
who had been there last fall, he answered that he did not know
whether it was that man or one of his brothers, but he understood
he had some brothers, and added, that if it was the Booth who was
SB
114
there last fall, lie knew that one, but concealed the fact that this man
had been at his house on that day and was then at his house, and
had attempted, in his presence, to disguise his person? He. was
sorry, very sorry, that the thing had occurred, but not so sorry
as to be willing to give any evidence to these two neighbors, who
were manifestly honest and upright men, that the murderer had
been harbored in his house all day, and was probably at that
moment, as his own subsequent confession shows, lying concealed
in his house or near by, subject to his call. This is the man
who undertakes to show by his own declaration, offered in evi-
dence against my protest, of what he said afterwards, on Sunday
afternoon, the 16th, to his kinsman Dr. George D. Mudd, to whom he
then stated that the assassination of the President was a most
damnable act a conclusion in which most men will agree with him,
and to establish which his testimony was not needed. But it is to
te remarked that this accused did not intimate that the man whom
he knew the evening before was the murderer had found refuge in
his house, had disguised his person, and sought concealment in the
swamp upon the crutches which he had provided for him. Why did
he conceal this fact from his kinsman? After the church services
were over, however, in another conversation on their way home, he
did tell Dr. George Mudd that two suspicious persons had been at
his house, who had come there a little before daybreak on Saturday
morning ; that one of them had a broken leg, which he bandaged ;
that they got something to eat at his house ; that they seemed to be
laboring under more excitement than probably would result from the
injury ; that they said they came from Bryantown, and inquired the
way to Parson Wilmer's ; that while at his house one of them called
for a razor and shaved himself. The witness says, "I do not remem-
ber whether he said that this party shaved off his whiskers or his
moustache, but he altered somewhat, or probably materially, his fea-
tures." Finally, the prisoner, Dr. Mudd, told this witness that he,
in company with the younger of the two men, went down the road
towards Bryantown in search of a vehicle to take the wounded man
away from his house. How comes it that he concealed in this con-
versation the fact proved, that he went with Herold towards Bryan-
town and left Herold outside of the town ? How comes it that in this
sectmd conversation, on Sunday, insisted upon here with such perti-
nacity as evidence for the defence, but which had never been called
for by the prosecution, he concealed from his kinsman the fact which
he had disclosed the day before to Hardy and Farrell, that it was
115
Booth who assassinated the President, and the fact which is now dis-
closed by his other confessions given in evidence for the prosecution
that jt was Booth whom he had sheltered, concealed in his house and
aided to his hiding place in the swamp ? He volunteers as evidence
his further statement, however, to this witness, that on Sunday eve-
ning he requested the witness to state to the military authorities that
two suspicious -persons had been at his house, and see if anything
could be made of it. He did not tell the witness what became of
Herold, and where he parted with him on the way to Bryantown.
How comes it that when he was in Bryantown on the Saturday eve-
ning before, when he knew that Booth was then at his house, and
that Booth was the murderer of the President, he did not himself
state it to the military authorities then in that village, as he well
knew ? It is difficult to see what kindled his suspicions on Sunday,
if none were in his mind on Saturday, when he was in possession of
the fact that Booth had murdered the President, and was then secre-
ting and disguising himself in the prisoner's own house.
His conversation with Gardner on the same Sunday at the church
is also introduced here to relieve him from the overwhelming evi-
dences of his guilt. He communicates nothing to Gardner of the
fact that Booth had been in his house ; nothing of the fact that he
knew the day before that Booth had murdered the President ; nothing
of the fact that Booth had disguised or attempted to disguise himself j
nothing of the fact that he had gone with Booth's associate, Herold,
in search of a vehicle, the more speedily to expedite their flight ;
nothing of the fact that Booth had found concealment in the woods
and swamp near his house, upon the crutches which he had furnished
him. He contents himself with merely stating "that we ought to
raise immediately a home guard, to hunt up all suspicious persons
passing through our section of country and arrest them, for there
were two suspicious persons at my house yesterday morning."
It would have looked more like aiding justice and arresting felons
if he had put in execution his project of a home guard on Saturday,
and made it effective by the arrest of the man then in his house who
had lodged with him last fall, with whom he had gone to purchase
one of the very horses employed in this flight after the assassination,
whom he had visited last winter in Washington, and to whom he had
pointed out the very route by which he had escaped by way of his
house, whom he had again visited on the 3d of last March, prepara-
tory to the commission of this great crime, and who he knew, when
he sheltered and concealed him in the woods on Saturday, was not
116
merely a suspicious person, but was, in fact, the murderer and assassin
of Abraham Lincoln. While I deem it my duty to say here, as I said
before, when these declarations uttered by the accused on Sunday,
the 16th, to Gardner and George D. Mudd, were attempted to be
offered on the part of the accused, that they are in no sense evi-
dence, and by the law were wholly inadmissible, yet I a tate it as my
conviction that, being upon the record upon motion of the accused
himself, so far as these declarations to Gardner and George D. Mudd
go, they are additional indications of the guilt of the accused, in
this, that they are manifestly suppressions of the truth and sugges-
tions of falsehood and deception ; they are but the utterances and
confessions of guilt.
To Lieutenant Lovett, Joshua Lloyd, and Simon Gavican, who, in
pursuit of the murderer, visited his house on the 18th of April, the
Tuesday after the murder, he denied positively, upon inquiry, that
two men had passed his house, or had come to his house on the
morning after the assassination. Two of these witnesses swear posi-
tively to his having made the denial, and the other says he hesitated
to answer the question he put to him ; all of them agree that he
afterwards admitted that two men had been there, one of whom had
a broken limb, which he had* set; and when asked by this witness
who that man was. he said he did not know that the man was a
stranger to him, and that the two had been there but a short time.
Lloyd asked him if he had ever seen any of the parties, Booth,
Herold and Surratt, and he said he had never seen them; while it
is positively proved that he was acquainted with John H. Surratt,
who had been in his house; that he knew Booth, and had introduced
Booth to Surratt last winter. Afterwards, on Friday, the 21st, he ad-
mitted to Lloyd that he had been introduced to Booth last fall,
and that this man, who came to his house on Saturday, the 15th, re-
mained there from about 4 o' clock in the morning until about 4 in the
afternoon; that one of them left his house on horseback, and the other
walking. In the first conversation he denied ever having seen these
men.
Colonel Wells also testifies that, in his conversation with Dr. Mudd
on Friday, the 21st, the prisoner said that he had gone to Bryan-
town, or near Bryantown, to see some friends on Saturday, and that
as he came back to his own house he saw the person he afterwards
supposed to be Herold passing to the left of his house towards the
barn, but that he did not see the other person at all after he left him
in his own house, about 1 o'clock. If this statement be true, how
117
did Dr. Mudd see the same person leave his house on crutches ? He
further stated to this witness that he returned to his own house about
4 o'clock in the afternoon; that he did not know this wounded man;
said he could not recognize him from the photograph which is of
record here, but admitted that he had met Booth some time in No-
vember, when he had some conversation with him about lands and
horses; that Booth had remained with him that night in November,
and on the next day had purchased a horse. He said he had not
again seen Booth from the time of the introduction in November up
to his arrival at his house on the Saturday morning after the assas-
sination. Is not this a confession that he did see John Wilkes Booth
on that morning at his house, and knew it was Booth ? If he did not
know him, how came he to make this statement to the witness : that
"he had not seen Booth after November prior to his arrival there
on the Saturday morning?"
He had said before to the same witness, he did not know the
wounded man. He said further to Colonel Wells, that when he went
up stairs after their arrival, he noticed that the person he supposed to
be Booth had shaved off his moustache. Is it not inferable from this
declaration that he tJien supposed him to be Booth ? Yet he declared
the same afternoon, and while Booth was in his own house, that Booth
was the murderer of the President. One of the most remarkable
statements made to this witness by the prisoner was t hat he heard for
the first time on Sunday morning, or late in the evening of Saturday,
that the President had been murdered ! Prom whom did he hear
it? The witness (Colonel Wells) volunteers his "impression" that
Dr. Mudd had said he had heard it after the persons had left his
house. If the "impression" of the witness thus volunteered is to be
taken as evidence and the counsel for the accused, judging from their
manner, seem to think it ought to be let this question be answered :
how could Dr. Mudd have made that impression upon anybody truth-
fully, when it is proved by Farrell and Hardy that on his return
from Bryantown, on Saturday afternoon, he not only stated that the
President Mr. Seward and his son had been assassinated, but that
Boyle had assassinated Mr. Seward, and Booth had assassinated the
President ? Add to this the fact that he said to this witness that he left
his own house at 1 o'clock, and when he returned the men were gone,
yet it is in evidence, by his own declarations, that Booth left his house
at four o'clock on crutches, and he must have been there to have seen
it, or he could not have known the fact.
Mr. Williams testifies that he was at Mudd's house on Tuesday, the
118
'18th of April, when he said that strangers had not been that way, and
also declared that he heard, for the first time, of the assassination of
the President on Sunday morning, at church. Afterwards, on Friday,
the 2 1st, Mr. Williams asked him concerning the men who had been at
his house, one of whom had a broken limb, and he confessed they had
been there. Upon being asked if they were Booth and Herold, he
said they were not that he knew Booth. 1 think it is fair to conclude
that he did know Booth, when we consider the testimony of Weich-
mann, of Norton, of Evans, and all the testimony just referred to,
wherein he declares, himself, that he not only knew him, but that he
had lodged with him, and that he had himself gone with him when
he purchased his horse from Gardner last fall, for the very purpose
of aiding the flight of himself, or some of his confederates.
All these circumstances taken together, which, as we have seen
upon high authority, are stronger as evidences of guilt than even di-
rect testimony, leave no further room for argument, and no rational
doubt that Doctor Samuel A. Mudd was as certainly in this conspiracy
as were Booth and Herold, whom he sheltered and entertained; re-
ceiving them under cover of darkness on the morning after the assas-
sination, concealing them throughout that day from the hand of of-
fended justice, and aiding them, by every endeavor, to pursue their
way successfully to their co-conspirator, Arnold, at Fortress Monroe,
and in which direction they fled until overtaken and Booth was slain.
We next find Herold and his confederate Booth, after their de-
parture from the house of Mudd, across the Potomac in the neigh-
borhood of Port Conway, on Monday, the 24th of April, conveyed in
a wagon. There Herold, in order to obtain the aid of Captain Jett,
Ruggles, and Bainbridge, of the confederate army, said to Jett, " We
are the assassinators of the President ;" that this was his brother
with him, who, with himself, belonged to A. P. Hill's corps ; that
his brother had been wounded at Petersburg ; that their names were
Boyd. He requested Jett and his rebel companions to take them
out of the lines. After this Booth joined these parties, was placed
on Ruggles's horse, and crossed the Rappahannock river. They
then proceeded to the house of Garrett, in the neighborhood of Port
Royal, and nearly midway between Washington city and Fortress
Monroe, where they were to have joined Arnold. Before these rebel
guides and guards parted with them, Herold confessed that they were
travelling under assumed names that his own name was Herold, and
that the name of the wounded man was John Wilkes Booth, "who
had killed the President." The rebels left Booth at Garrett' s, where
119
Herold revisited him from time to time, until they were captured
At 2 o'clock on Wednesday morning, the 26th, a party of United
States officers and soldiers surrounded Garrett's barn where Booth
and Herold lay concealed, and demanded their surrender. Booth
cursed Herold, calling him a coward, and bade him go, when Herold
came out and surrendered himself, was taken into custody, and is
now brought into court. The barn was then set on fire, when Booth
sprang to his feet, amid the flames that were kindling about him,
carbine in hand, and approached the door, seeking, by the flashing
light of the fire, to find some new victim for his murderous hand,
when he was shot, as he deserved to be, by Sergeant Corbett, in
order to save his comrades from wounds or death by the hands of
this desperate assassin. Upon his person was found the following
bin of exchange :
"No. 1492. The Ontario Bank, Montreal Branch. Exchange
for 6 1 12.s. 10d. Montreal, 27th October, 1864. Sixty days after
sight of this first of exchange, second and third of the same tenor
and date, pay to the order of J. Wilkes Booth 61 12s. 10d sterling,
value received, and charge to the account of this office. H. Stanus,
manager. To Messrs. Glynn, Mills & Co., London."
Thus fell, by the hands of one of the defenders of the republic, this
hired assassin, who, for a price, murdered Abraham Lincoln, bearing
upon his person, as this bill of exchange testifies, additional evidence
of the fact that he had undertaken, in aid of the rebellion, this work
of assassination by the hands of himself and his confederates, for such
sum as the accredited agents of Jefferson Davis might pay him or
them, out of the funds of the confederacy, which, as is in evidence,
they had in "any amount" in Canada for the purpose of rewarding
conspirators, spies, poisoners, and assassins, who might take service
under their false commissions, and do the work of the incendiary and
the murderer upon the lawful representatives of the American people,
to whom had been intrusted the care of the republic, the mainten-
ance of the Constitution, and the execution of the laws.
The court will remember that it is in the testimony of Merritt and
Montgomery and Conover, that Thompson, and Sanders, and Clay,
and Cleary, made their boasts that they had money in Canada for this
very purpose. Nor is it to be overlooked or forgotten that the officers
of the Ontario Bank at Montreal testify that during the current year
of this conspiracy and assassination Jacob Thompson had on deposit
in that bank the sum of six hundred and forty-nine thousand dollars,
and that these deposits to the credit of Jacob Thompson accrued
120
from the negotiation of bills of exchange drawn by the Secretary of
the Treasury of the so-called Confederate States on Frazier, Trenholm
& Co., of Liverpool, who were known to be the financial agents of the
Confederate States. With an undrawn deposit in this bank of four
hundred and fifty-five dollars, which has remained to his credit since
October last, and with an unpaid bill of exchange drawn by the same
bank upon London, in his possession and found upon his person, Booth
ends his guilty career in this work of conspiracy and blood in April,
1865, as he began it in October, 1864, iu combination with Jefferson
Davis, Jacob Thompson, George N. Sanders, Clement C. Clay, Wil-
liam C. Cleary, Beverley Tucker, and other co-conspirators, making
use of the money of the rebel confederation to aid in the execution
and in the flight, bearing at the moment of his death upon his person
their money, part of the price which they paid for his great crime,
to aid him in its consummation, and secure him afterwards from
arrest and the just penalty which by the law of God and the law of
man is denounced against treasonable conspiracy and murder.
By all the testimony in the case it is, in my judgment, made as clear
as any transaction can be shown by human testimony, that John
Wilkes Booth and John H. Surratt, and the several accused, David E.
Herold, George A. Atzerodt, Lewis Payne, Michael O'Laughlin, Ed-
ward Spangler, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd,
did, with intent to aid the existing rebellion and to subvert the Con-
stitution and laws of the United States, in the month of October last
and thereafter, combine, confederate, and conspire with Jefferson
Davis, George N. Sanders, Beverley Tucker, Jacob Thompson, Wil-
liam C. Cleary, Clement C. Clay, George Harper, George Young,
and others unknown, to kill and murder, within the military depart-
ment of Washington, and within the intrenched fortifications and
military lines thereof, Abraham Lincoln, then President of the United
States and commander-in-chief of the army and navy thereof; Andrew
Johnson, Vice President of the United States; William H. Seward,
Secretary of State ; and Ulysses S. Grant, lieutenant general, in
command of the armies of the United States ; and that Jefferson Davis,
the chief of this rebellion, was the instigator and procurer, through
bis accredited agents in Canada, of this treasonable conspiracy.
It is also submitted to the court, that it is clearly established by
the testimony that John Wilkes Booth, in pursuance of this conspi-
racy, so entered into by him and the accused, did, on the night of
the 14-th of April, 1865, within the military department of Washington,
121
and the intrenched fortifications and military lines thereof, and with
the intent laid, inflict a mortal wound upon Abraham Lincoln, then
President and Commander-in-chief of the army and navy of the United
States, whereof he died; that in pursuance of the same conspiracy
and within the said department and intrenched lines, Lewis Payne
assaulted, with intent to kill and murder, William H. Seward, then
Secretary of State of the United States; that Qeorge A. Atzerodt, in
pursuance of the same conspiracy, and within the said department,
laid in wait, with intent to kill and murder Andrew Johnson, then
Vice President of the United States; that Michael O'Laughlin, within
said department, and in pursuance of said conspiracy, laid in wait to
kill and murder Ulysses S. Grant, then in command of the armies of
the United States; and that Mary E. Surratt, David E. Herold,
Samuel Arnold, Samuel A. Mudd, and Edward Sparigler did en-
courage, aid, and abet the commission of said several acts in the
prosecution of said conspiracy.
If this treasonable conspiracy has not been wholly executed ; if the
^several executive officers of the United States and the commander of
its armies, to kill and murder whom the said several accused thus con-
federated and conspired, have not each and all fallen by the hands of
these conspirators, thereby leaving the people of the United States
without a President or Vice President; without a Secretary of State,
who alone is clothed with authority by the law to call an election to
fill the vacancy, should any arise, in the offices of President and Vice
President; and without a lawful commander of the armies of the re-
public, it is only because the conspirators were deterred by the vigi-
lance and fidelity of the executive officers, whose lives were merci-
fully protected on that night of murder by the care of the Infinite
Being who has thus far saved the republic and crowned its arms with
victory.
If this conspiracy was thus entered into b? the accused; if John
Wilkes Booth did kill and murder Abraham Lincoln in pursuance
thereof; if Lewis Payne did, in pursuance of said conspiracy, assault
with intent to kill and murder William H. Seward, as stated, and if
the several parties accused did commit the several acts alleged against
them in the prosecution of said conspiracy, then, it is the law that
all the parties to that conspiracy, whether present at the time of its
execution or not, whether on trial before this court or not, are alike
guilty of the several acts done by each in the execution of the com-
mon design. What these conspirators did in the execution of this
conspiracy by the hand of one of their co-conspirators they did them-
9 B
122
selves ; his act, done in the prosecution of the common design, was
the act of all the parties to the treasonable combination, because done
in execution and furtherance of their guilty and treasonable agree-
ment.
As we have seen, this is the rule, whether all the conspirators are
indicted or not ; whether they are all on trial or not. "It is not
material what the natprc of the indictment is, provided the offence
involve a conspiracy. Upon indictment for murder, for instance, if
it appear that others, together with the prisoner, conspired to per-
petrate the crime, the act of one done in pursuance of that intention
world be evidence against the rest." (1 Whar., 700.) To the same
effect are the words of Chief Justice Marshall, before cited, that who-
ever leagued in a general conspiracy, performed any part, however
MINUTE, or however EEMOTE, from the scene of action, are guilty as
principals. In this treasonable conspiracy, to aid the existing armed
rebellion, by murdering the executive officers of the United States
and the commander of its armies, all the parties to it must be held as
principals, and the act of one in the prosecution of the common design
the act of all.
I leave the decision of this dread issue with the court, to which
alone it belongs. It is for you to say, upon your oaths, whether the
accused are guilty.
I am not conscious that in this argument I have made any erro-
neous statement of the evidence, or drawn any erroneous conclusions;
yet I pray the court, out of tender regard and jealous care for the
rights of the accused, to see that no error of mine, if any there be,
shall work them harm. The past services of the members of this
honorable court give assurance that, without fear, favor, or affection,
they will discharge with fidelity the duty enjoined upon them by
their oaths. Whatever else may befall, I trust in God that in this, as
in every other American court, the rights of the whole people will
be respected, and that the Republic in this, its supreme hour of trial,
will be true to itself and just to all ready to protect the rights of
the humblest, to redress every wrong, to avenge every crime, to
vindicate the majesty of law, and to maintain inviolate the Constitu-
tion, whether assailed secretly or openly, by hosts armed with gold,
or armed with steel.
-
ID
University of California Library
Los Angeles
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