Chapter III (2)

Mr. Merrick, however, seized the occasion to pass an eulogium on that church, in which he showed as much disregard for the facts of history as he did for the proven facts in this case. Perhaps he felt this vindication to be called for from the fact that most of the conspirators were Catholics in religion, and the further fact that the friends who waited and watched for the return of his client to Montreal after the assassination, and who, on his return, spirited him away and kept him secreted for five months and then helped him off to Italy, where he was found in the ranks of the Pope's army, and who voluntarily came before the court on his trial to testify, and to procure testimony in his behalf, were priests of that church. In his eulogium on that church he forgot to mention the fact that the Pope at an early period of the war acknowledged the Southern Confederacy and wrote a sympathizing letter to Jefferson Davis, in which he called him his dear son and denounced President Lincoln as a tyrant. He could scarcely have forgotten that the Pope of Rome had sought to take advantage of the arduous struggle in which our government was engaged for the preservation of its life, to establish a Catholic Empire in Mexico, and had sent Maximillian, a Catholic prince, to reign over that, at that time, unhappy people, under the protection of the arms of France, lent to the furtherance of his unholy purpose by the last loyal son of the church that ever occupied a throne in Europe. Perhaps he did not realize that it was God who frustrated that last grasp of the drowning man at a straw that eluded his grasp, by preparing for his holiness, the Pope, and for Louis Napoleon just at that moment the Franco-Prussian war, which resulted in the final loss of his temporal power to the Pope and with it his grip on the world, and of his empire and crown to the last servile supporter of his temporal pretensions. To claim for that church, as Mr. Merrick did, friendship to civil liberty, respect for the rights of conscience and of private judgment, and love for our republican institutions, is to ignore, or set at naught, all the dogmas of that church on the above questions and all the claims of the Papacy. Mr. Merrick manifestly thought that the attitude of the Catholic clergy toward the assassination of the President could be hidden from public view by his fulsome eulogy.

The appeals made by the eminent counsel for the prisoner to the political and religious prejudices of jurors was ably seconded all through the trial by the Jesuit priesthood of Washington City and the vicinity. It will be recalled by scores of people who attended the trial that not a day passed but that some of these were in the court-room as the most interested of spectators. That they were not idle spectators may be inferred from the fact that whenever it seemed necessary to the prisoner's counsel to find witnesses to contradict any testimony that was particularly damaging to their cause they were always promptly found, and were almost uniformly Catholics in religion, as shown by their own testimony on their cross-examination. It was a remarkable fact, also, that these witnesses were scarcely ever able to come from under the fire of Judge Pierrepont's searching cross-examinations uncrippled, and also that when they took the risk of bringing two witnesses in rebuttal of the same testimony their witnesses uniformly killed each other off before they got through the ordeal that tests the truthfulness of witnesses--the cross-examination. Other outside influences were brought to bear on jurors, such as these: Father John B. Menu, from St. Charles College, spent a day in the court-room, sitting beside the prisoner all day, thus saying to the jury, "You see which side I am on." A great many of the students from the same college also visited the trial, it being vacation, and they uniformly took great pains to show their sympathy with the prisoner by shaking hands with him. The press also was prostituted almost daily by publishing cunningly devised paragraphs impugning the motives of the government in the prosecution and management of the case. Thus were the prejudices of jurors appealed to and efforts also made to pervert public opinion.

I have quoted thus at length from Mr. Merrick's argument to show, first the animus of the defense toward the government, and especially toward the Judge Advocate General, Joseph Holt, and the Secretary of War at time of the assassination, Edwin M. Stanton. These two officers of the government need no vindication at my hands before the loyal people of this country, as they were never denounced by any but rebels, whose especial venom against them would be the strongest presumptive evidence of their virtue and efficiency. A purer man, a truer patriot, a braver, more intelligent and able officer than Gen. Joseph Holt never will grace the pages of American history. He was only hated and denounced by rebels because of his faithfulness to duty and efficiency in its performance. Of Edwin M. Stanton, also, it is needless for me to say a word. His place is fixed in history, and his record cannot be blurred by the false and vile charges or insinuations of his enemies, for his enemies were only found amongst the enemies of his country, and precisely for the same reason that they were enemies of the Judge Advocate General. The charges here so boldly made that they stood between Mrs. Surratt and an appeal to the Executive for clemency, was shown to be false by Judge Pierrepont, who produced the official record of the trial of the conspirators, together with a paper signed by some members of the court recommending commutation of the sentence of Mrs. Surratt to imprisonment for life on account of her age and sex, and showed that this whole record had been laid before the President and a full cabinet, and that after mature discussion and consideration it had received their unanimous approval, with the exception of the request for the commutation of Mrs. Surratt's sentence which, though not a part of the record, was presented with it; and that the President's order for the execution of the sentence of the court had been written on the back of this very record.

These papers containing this whole record were handed to Mr. Merrick, who tossed them from him indignantly, afterwards assigning as his reason for doing so that he had learned to distrust everything that came from the Bureau of Military Justice. His real reason was that he did not desire to be estopped from reiterating the falsehoods he had so boldly proclaimed.

His denunciation of the Judge Advocate General for assisting the prosecution by furnishing them with witnesses, to prove facts found on his records, if he did indeed thus assist, is unmerited; as it is not only the duty of every private citizen, but of every public officer as well, to assist, if it be in his power to do so, in securing the ends of justice where crimes have been committed, and the safety, peace, and welfare of society put in jeopardy. His deliberate false assumption that the prosecution had put Mrs. Surratt on trial is worthy of note, as he himself dragged her case in even before a jury was impaneled; and his colleague, Mr. Jos. H. Bradley, Jr., in his opening speech, had also brought it up in such a way that the District Attorney was forced to notice it. It was evidently a premeditated scheme of the defense, and was done for the purpose of appealing to the prejudices of jurors, and of making political capital.

Mr. Merrick's portrayal of the scenes incident to the execution of Mrs. Surratt was a fine piece of eloquent and pathetic declamation. We cannot but deplore, however, that the fine sensibilities of the counsel had not found occasion for their display in the case of the widow and orphan child of the martyred President, rather than in the person of one proven guilty of complicity in his assassination, and of being so actively engaged in that tragedy that she had traveled twenty miles on that fatal Friday afternoon to carry, at Booth's request, a field glass which he had delivered to her for the purpose, to Surrattsville, to be deposited and delivered by Lloyd, at her request, along with the carbines and the whiskey, to the assassins on that night, when fleeing from the seat of their crime, and from offended justice. It is to be deplored that he had no tears for the crazed widow and orphan child of the murdered President, when he could find such a generous fountain for his murderers. Such, however, is the deplorable effect of political and religious prejudice on frail human nature, that it perverts our moral sensibilities and warps our judgment. Mr. Merrick could see nothing but innocence in the prisoner and his mother, although the proof of their guilt was piled mountain high. It will have been noticed that he unequivocally asserts that the Supreme Court of the United States had decided that the commission that tried the assassins was an illegal tribunal. We shall have occasion hereafter to show that this is untrue.

If the counsel for the defense was not aware of this fact, it was because they had failed to grasp the meaning of the decision to which they referred, and on which they relied.

It was neither fair nor honest in them, after dragging into the trial the question of Mrs. Surratt's guilt or innocence, and that for the purpose we have above indicated, to endeavor, in the face of the facts, to shift the burden of the responsibility for this on to the prosecution. It was equally dishonest to insinuate that the prosecution of John H. Surratt was not entered upon alone for the purpose of ascertaining his guilt or innocence, but in order that the false stories that had been published in regard to the course of the government in executing Mrs. Surratt might be set at rest. The most eloquent counsel for the defence, ably assisted by his colleagues, endeavored to put the government, and not the prisoner, on trial before the jury, and before the country. They uniformly and boldly asserted his innocence, whilst they arraigned the government for having murdered, according to one, and butchered according to another, an innocent woman; and also of being in this trial engaged in an endeavor to cover up the guilt of shedding her innocent blood, by shedding the blood of her innocent son. To cap the climax of their audacity Mr. Bradley, after reiterating the charges made by Mr. Merrick and Joseph H. Bradley, Jr., asked the jury, in making up their verdict, to make a written statement at the same time of their belief that Mrs. Surratt had been unjustly condemned, and found guilty upon insufficient evidence.

They charged the government with dishonesty in withholding Booth's diary from the commission; claiming that it would have proven Mrs. Surratt's innocence. They could not have failed to know, as able lawyers, that this diary was of no account whatever as evidence. It was no more admissible than was Atzerodt's confession, as every entry that was made in it was made with the almost certainty of his capture in view, and for the purpose of concealing the greatness of the conspiracy and its personnel. It was of no more value than was his declaration in favor of his fellow-conspirator, Herold, that he was an innocent man, made a few moments before he was shot.

In his argument on the defense of an _alibi_ set up by the prisoner, Mr. Merrick makes great account of the evidence of the detectives who visited and searched Mrs. Surratt's house at two o'clock on the morning of the 15th of April, that Mrs. Surratt declared that John was not there, and that she had not seen him for two weeks.

She claimed that he was in Montreal, and that she had received a letter from him on the day previous. They well knew that her declarations had no value as testimony, and that there was evidence flatly contradicting her statements.

That she had received the letter as claimed, was true; but that that letter had been written for the very purpose of being used in the defence of an _alibi_ is evident from its contents, when considered in connection with the evidence in the case. It will be remembered that Wiechmann, who was a boarder in the house, answered the door-bell, when the detectives rang it for the purpose of demanding admittance, that they might search the house. He rapped at Mrs. Surratt's door and informed her as to who was at the door and what they had come for. Her answer was, "For God's sake, let them come in; I have been expecting them."[31] When they inquired for her son she said, "He is not here; I have not seen him for two weeks." This was a sufficient answer, but her guilty conscience would not let her stop here, she had to add, "There are a great many mothers who do not know where their sons are." Let us ask ourselves at this point, how many mothers in Washington City at that hour of that eventful night were lying awake expecting their houses to be searched by detectives? Our inner consciousness will unerringly dictate the answer, "Not one who was innocent of crime." It is only necessary to say, further, in regard to this defense set up, of an _alibi_, that although there is no more common defense resorted to by criminals, because there is none more easy of establishment, there was never perhaps in all the history of jurisprudence a weaker and more unsuccessful effort made to establish it than in this defense. The effort made by the prisoner to establish an _alibi_ showed plainly that he had endeavored to prepare for it, in anticipation for his defense, and that, in this preparation he had had able help. There is good reason to conclude that he and a half dozen other of his friends in Canada had found an opportunity to visit Canandaigua in disguise, for the purpose of doctoring up a hotel register to be used in evidence. The effort after all, proved a miserable failure.

That he went from Montreal to Elmira, N.Y., leaving the former place at two o'clock on the morning of the 12th of April, was admitted. There was evidence that he was in Elmira on the morning of the 13th, and two or three credible witnesses were found who swore that they saw him there either on the 13th or 14th. They were willing to conclude that it might have been on the 14th; but would not positively swear that it was. On the other hand the government produced two witnesses who identified him as a man whom they saw on the road making his way towards Baltimore, on the 13th, one of whom ferried him over the Susquehanna river, and stopped mid-stream to collect his fare, and so talked with him and had a good look at him. It was then proven by nearly a dozen witnesses that they saw him in Washington City on the 14th. So that the great preponderance of evidence was against the _alibi_; and so it legally failed. The defense was lame and weak at every point in the light of the evidence, which all tended to show the prisoner's guilt. It was only strong in the bold efforts of his counsel to scout all the testimony against him, and to have the jury accept their assertions of his innocence, backed by their weight of character as lawyers, in lieu of evidence, to establish his innocence, and in contumning and rejecting that which established his guilt.

They also made great complaint that they were not allowed to prove by John Matthews, the contents of the paper which he alleged was put into his hand by Booth, a few hours before the commission of his crime, with the request that he would, on the following day, upon certain contingencies, give it to the editor of the _National Intelligencer_ for publication, and which Matthews claimed to have destroyed. Of course they knew that nothing could be proven by this paper, much less by evidence as to its contents, yet, when it was not admitted by the court, they reserved an exception, and then in argument claimed that had they been allowed the benefit of this, they could have shown that the purpose of assassination was not formed until that day, and that neither the prisoner nor his mother was in it.

Matthews afterwards published what he said he desired to testify to, but was not permitted to do so by the Court. The statement that he claimed to be of Booth in this paper, gave the lie to Atzerodt's confession. These able lawyers knew full well that culprits, anticipating arrest and trial, could not be permitted to manufacture evidence in their own favor in advance. Yet they did not scruple to use, in an indirect way, in argument before the jury, this very testimony that had been excluded. Booth's diary, Booth's statement for publication, Atzerodt's confession, and the lecture of John H. Surratt, in which he makes his confession and statement of the affair, are all of a piece, and alike unworthy of credit, because they are all contradicted by sufficient and reliable testimony in every important particular. The eloquence of counsel in regard to the grave of Mrs. Surratt, who was buried in the grounds of the old arsenal, being a nameless grave, is wasted eloquence in the mind of every loyal man and woman in the country, as the heniousness of the crime of which she was convicted, made it fitting that she should sleep in a nameless grave, and that the spot of her resting-place be unknown, as an admonition to all traitors to their country, and its free institutions of government, and whose disloyalty fits them for the highest crimes that man can commit, of the infamy that awaits them in the just verdict of an outraged people. Mrs. Surratt's remains were given up to her daughter two years later, in 1869.

We will now give a few of the opening paragraphs of Judge Pierrepont's argument for the prosecution, in which he disposes of the outside and irrelevant matter that had been lugged into the defense, and out of which they had endeavored to make so much capital.

"May it please your honor, and gentlemen of the jury, I have not, in the progress of this long and tedious cause, had the opportunity as yet of addressing to you one word. My time has now arrived, 'Yea, all that a man hath will he give for his life.' When the book of Job was written, this was true, and it is just as true to-day. A man, in order to save his life, will give his property, will give his liberty, will sacrifice his good name, and will desert his father, his brother, his mother and his sister. He will lift up his hand before Almighty God and swear that he is innocent of the crime with which he is charged. He will bring perjury upon his soul, giving all that he hath in the world, and be ready to take the chances and jump the life to come; and so far as counsel place themselves in the situation of their client, and just to the degree that they absorb his feelings, his terror, and his purposes, just so far will counsel do the same.

"I am well aware, gentlemen, of the difficulties under which I labor in addressing you. The other counsel have all told you that they know you and that you know them. They know you in social life, and they know you in political affairs. They know your sympathies, your habits, your modes of thought, your prejudices even. They know how to address you, and how to awaken your sympathies, whilst I come before you a total stranger. There is not a face in those seats that I have ever beheld until this trial commenced, and yet I have a kind of feeling pervading me that we are not strangers.

"I feel as though we had a common origin, a common country, and a common religion, and that, on many grounds, we must have a common sympathy. I feel as though, if hereafter I should meet you in my native city, or in a foreign land, I should meet you, not as strangers, but as friends. It was not a pleasant thing for me to come into this case. I was called into it at a time ill-suited in every respect. I had just taken my seat in the convention called for the purpose of forming a new constitution for my State, and I was a member of the judiciary committee. The convention is now sitting, and I am now absent where I ought to be present. I feel, however, that I had no right to shirk this duty.

"The counsel asked whether I represented the Attorney General in this case. They had, perhaps, the right to ask, and so asking I give you the answer. There surely is no mystery about the matter. The District Attorney, feeling the magnitude of this case, felt that he ought to apply to the Attorney General for assistance in the prosecution of it, and he accordingly made the application. I have known the Attorney General for more than twenty years. Our relations have been most friendly, both in a social and professional point of view. The Attorney General conferred with the Secretary of State, who is, as you know, from my own State, and they determined to ask me to assist in the prosecution of this cause. On receiving a letter from the Secretary of State, I came to Washington, when I met him and the Attorney General. This is the way I happened to be here engaged in this case; and I may say that I am assured that there was no member of the cabinet but those two who ever heard or knew of my retainer until after my arrival here. I have simply tried to perform my duty as I best could, but I have, no doubt, failed to a great extent. A trial, protracted as this has been, and in such oppressive weather, is indeed a trial. It is a trial to the court, it is a trial to you, it is a trial to the counsel, it is a trial to health, it is a trial to patience, and it is a trial to temper.

"When the President of the United States was assassinated, I was one of a committee sent on by the citizens of New York to attend his funeral. When standing, as I did stand, in the east room by the side of that coffin, if some citizen sympathizing with the enemies of my country had, because my tears were falling in sorrow over the murder of the President, there insulted me, and I had at that time repelled the insult with insult, I think my fellow-citizens would have said to me that my act was deserving of condemnation; that I had no right, in that solemn hour, to let my petty passions or my personal resentments disturb the sanctity of the scene. To my mind the sanctity of this trial is far above that funeral occasion, solemn and holy as it was, and I should forever deem myself disgraced if I should ever allow any passion pf mine or personal resentment of any kind to bring me here into any petty quarrel over the murder of the President of the United States. I have tried to refrain from anything like that, and God helping me, I shall so endeavor to the end.

"To me, gentlemen, this prisoner at the bar is a pure abstraction. I have no feeling toward him whatever. I never saw him until I saw him in this room, and then it was under circumstances calculated to awaken only my sympathy. I never knew one of his kindred, and never expect to know one of them. To me he is a stranger. Toward him I have no hostility, and I shall not utter any word of vituperation against him. I came to try one of the assassins of the President of the United States, as indicted before you. I laid personal considerations aside, and I hope I shall succeed in keeping them from this cause, so far as I am concerned. I believe, gentlemen, that what you wish to know in this case is the truth. I believe it is your honest desire to find out whether the accused was engaged in this plot to overthrow this government and assassinate the President of the United States. My duty is to try to aid you in coming to a just conclusion. When this evidence is reviewed, and when it is honestly and fairly presented, when passions are laid aside, and when other people who have nothing to do with the trial are kept out of the case, you will discover that in the whole history of jurisprudence no murder was ever proved with the demonstration with which this has been proven before you. The facts, the proofs, the circumstances all tend to one point, and all prove the case, not only beyond a reasonable, but beyond any doubt.

"This has been, as I have already stated, a very protracted case. The evidence is scattered. It has come in link by link, and as we could not have witnesses here in their order when you might have seen it in its logical bearings, we were obliged to take it as it came; and now it becomes my duty to put it together and show you what it is. I shall not attempt, gentlemen, to convince you by bold assertions of my own. I fancy I could make them as loudly and as confidently as the counsel on the other side, but I am not here for that purpose. The counsel are not witnesses in the cause. We have come here for the purpose of ascertaining whether under the law and on the evidence presented, this man arraigned before you is guilty as charged. I do not think it proper that I should tell you what I think about everything that may arise in the case, or that I should tell you that I know that this thing is so, and that the other is another way. My business is to prove to you from this evidence that the prisoner is guilty. If I do that I shall ask your verdict. If I do not do that, I shall neither expect nor hope for it."

"I listened, gentlemen, to the two counsel who have addressed you for several days, without one word of interruption. I listened to them respectfully and attentively. I knew their earnestness, and I know the poetry that was brought into the case, and the feeling and the passion that was attempted to be excited in your breasts, by bringing before you the ghost trailing her calico dress and making it rustle against these chairs. I have none of these powers which the gentlemen seem to possess, nor shall I attempt to invoke them. I have come to you for the purpose of proving that this party accused here was engaged in this conspiracy to overthrow this government, which conspiracy resulted in the death of Abraham Lincoln, by a shot from a pistol in the hands of John Wilkes Booth. That is all there is to be proven in this case.

"I have not come here for the purpose of proving that Mrs. Surratt was guilty or that she was innocent, and I do not understand why that subject was lugged into this case in the mode that it has been; nor do I understand why the counsel denounced the military commission who tried her, and thus indirectly censured, in the severest manner, the President of the United States. The counsel certainly knew when they were talking about that tribunal, and when they were thus denouncing it, that President Johnson, President of the United States, ordered it with his own hand; that President Johnson, President of the United States, signed the warrant that directed the execution; that President Johnson, President of the United States, when that record was presented to him, laid it before his cabinet, and that every single member voted to confirm the sentence, and that the President with his own hand, wrote his confirmation of it, and with his own hand signed the warrant. I hold in my hand the original record, and no other man, as it appears from that paper, ordered it. No other one touched this paper; and when it was suggested by some of the members of the commission that in consequence of the age and the sex of Mrs. Surratt it might possibly be well to change her sentence to imprisonment for life, he signed the warrant for her death with the paper right before his eyes--and there it is (handing the paper to Mr. Merrick). My friend can read it for himself.

"My friends on the other side have undertaken to arraign the government of the United States against the prisoner. They have talked very loudly and eloquently about this great government of twenty-five or thirty millions of people being engaged in trying to bring to conviction one poor young man, and have treated it as though it was a hostile act, as though two parties were litigants before you, the one trying to beat the other. Is it possible that it has come to this, that, in the city of Washington, where the President has been murdered, that when under the form of law, and before a court and jury of twelve men, an investigation is made to ascertain whether the prisoner is guilty of this great crime, that the government are to be charged as seeking his blood, and its officers as lapping their tongues in the blood of the innocent? I quote the language exactly. It is a shocking thing to hear. What is the purpose of a government? What is the business of a government? According to the gentleman's notion, when a murder is committed the government should not do anything towards ascertaining who perpetrated that murder; and if the government did undertake to investigate the matter and endeavor to find out whether the man charged with the crime is guilty or not guilty the government and all connected with it must be expected to be assailed as 'blood hounds of the law,' and as seeking 'to lap their tongues in the blood of the innocent.' Is that the business of government, and is it the business of counsel under any circumstances thus to charge the government? What is government for? It is instituted for your protection, for my protection, for the protection of us all. What could we do without it? Tell me, my learned and eloquent counsel on the other side, what would you do without a government? What would you do in this city? Suppose, for instance, a set of young men, who choose to lead an idle life, say to themselves that it is not right that some rich man living here should be enjoying his hoarded wealth, and they break into his house at night and steal therefrom. My learned friend would say, when you came to prosecute them for that robbery, 'What! would you have this great and generous government of twenty-five or thirty millions of people pursue these poor young men, who merely tried to break into the house of one of your citizens and steal his money? Should not this government be generous and let them go? Oh, yes! Let them off. Well, they are let off, and a few days afterward they break into the house of my friend, Mr. Merrick, for the purpose of stealing his money, when he, a brave man, undertakes to resist them, and in doing so they strike him down in death. Oh, generous government! with twenty-five or thirty millions of people, let the young men off. Why should a great and generous government with all its powers be pursuing the young men who thus murdered Mr. Merrick while attempting to prevent a robbery at his house?

"Why should the officers of the government be 'lapping their tongues in the blood of the innocent?' Suppose this view as to the duty of a government were universally entertained, what would be the result? How long would your government last? How long would you hold a dollar of property? How long would the safety of your daughters be secure? How long would the life of your sons, who stand in resistance to lust and rapine, be safe? I have never heard such shocking sentiments uttered in relation to the duty of government from any human lips, or from any writer on the face of the earth. We have been told here that our government has nothing of divinity that hedges it about; that it is only the government of man's making. The Bible tells us that all government is of God; that the powers that be are ordained of God; and I can tell you, gentlemen, if such are the sentiments of this country that there is no divinity and no power of God that hedges about this government, its days are numbered, its condemnation is already written, and it will lie in the dust before many years have rolled by. No government that is not of God will last. It will soon come to naught. No other government ever did long exist. No other government can exist. Every government which is a government of the people is of God, and the powers that be are ordained of God. When you come together to the polls, and you elect as the ruler of this great nation a President, he is made so by the sanction of your votes, and in that act the voice of the people becomes the voice of God. I repeat, a government which is thus instituted is ordained of God, and it is as much hedged about as that of any king that ever reigned on England's throne. Is it possible that our countrymen will say that the government which we thus have made, which our fathers established, and which we are thus cherishing, has nothing of divinity hedging it about?

"Does it rest alone on human whim, without having anything sacred about it, and without any protection of the Almighty over it? If so, let me again repeat, its days are numbered; it will soon pass away. Once there was an empire in Rome. It was an empire which was in its day the greatest which the human mind had ever reared; but it did not believe, or rather ceased to believe, that there was a God who ruled; that government was of God; and they ceased to punish great crimes, such as treason, rapine, and murder, and it happened a very short time after they ceased to inflict punishment for such crimes--ceased to exercise the powers which belong to government--that the Roman empire tumbled into ruins.

"It was trampled down by the barbarians, and now not a son of the Cæsars lives on the face of the earth, and not a descendant of a Roman matron exists anywhere in this wide universe. The empire perished, and crumbled into dust; nothing but its ashes remain. And thus will it ever be whenever a people cease to obey God, and cease to think that government is of God. Let us see what the Bible says on this subject; what views were entertained in the Old Testament, and what in the New." Mr. Pierrepont then read from 1st Samuel, chapter xv, as follows:--

"'Samuel also said unto Saul, the Lord sent me to anoint thee to be king over his people, over Israel; now therefore hearken thou unto the voice of the words of the Lord.

"'Thus saith the Lord of hosts, I remember that which Amalek did to Israel, how he laid wait for him in the way, when he came up from Egypt.

"'Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.

"'And Saul gathered the people together, and numbered them in Telaim, two hundred thousand foot-men, and ten thousand men of Judah.

"'And Saul came to a city of Amalek, and laid wait in the valley.

"'And Saul said unto the Kenites, go, depart, get you down from among the Amalekites, lest I destroy you with them; for ye showed kindness to all the children of Israel, when they came up out of Egypt. So the Kenites departed from among the Amalekites.

"'And Saul smote the Amalekites, from Havilah _until_ thou comest to Shur, that is over against Egypt.

"'And he took Agag, the king of the Amalekites, alive, and utterly destroyed all the people with the edge of the sword.

"'But Saul and the people spared Agag, and the best of the sheep, and of the oxen, and of the fatlings, and of the lambs, and all _that was_ good, and would not utterly destroy them; but every thing _that was_ vile and refuse, that they destroyed utterly.

"'Then came the word of the Lord unto Samuel, saying, It repenteth me that I have set up Saul _to be_ king; for he is turned back from following me, and hath not performed my commandments. And it grieved Samuel, and he cried unto the Lord all night.

"'And when Samuel rose early to meet Saul in the morning, it was told Samuel, saying, Saul came to Carmel, and behold, he set him up a place, and is gone about, and passed on, and gone down to Gilgal.

"'And Samuel came to Saul, and Saul said unto him, blessed be thou of the Lord; I have performed the commandment of the Lord.

"'And Samuel said, what meaneth then this bleating of sheep in mine ears, and the lowing of the oxen which I hear?

"'And Saul said, they have brought them from the Amalekites; for the people spared the best of the sheep, and of the oxen, to sacrifice unto the Lord thy God, and the rest we have utterly destroyed.

"'Then Samuel said unto Saul, stay, and I will tell thee what the Lord hath said to me this night. And he said unto him say on.

"'And Samuel said, when thou _wast_ little in thine own sight, _wast_ thou not _made_ the head of the tribes of Israel, and the Lord anointed thee king over Israel?

"'And the Lord sent thee on a journey, and said, go and utterly destroy the sinners of the Amalekites, and fight against them until they be consumed.

"'Wherefore then didst thou not obey the voice of the Lord, but didst fly upon the spoil, and didst evil in the sight of the Lord.

"'And Saul said unto Samuel, yea, I have obeyed the voice of the Lord, and have gone the way which the Lord sent me, and have brought Agag, the king of Amalek, and have utterly destroyed the Amalekites.

"'But the people took of the spoil, sheep and oxen, the chief of the things, which should have been utterly destroyed to sacrifice to the Lord thy God in Gilgal.

"'And Samuel said, hath the Lord as great delight in burnt offerings and sacrifices as in obeying the voice of the Lord? Behold to obey is better than sacrifice, and to hearken than the fat of rams.

"'For rebellion _is as_ the sin of witchcraft, and stubbornness is as iniquity and idolatry; because thou hast rejected the word of the Lord, he hath also rejected thee from being king.

"'And Saul said unto Samuel, I have sinned, for I have transgressed the commandment of the Lord, and thy words; because I feared the people, and obeyed their voice.

"'Now, therefore, I prayed thee, pardon my sin, and turn again with me that I may worship the Lord.

"'And Samuel said unto Saul, I will not return with thee; for thou hast rejected the word of the Lord, and the Lord hath rejected thee from being king over Israel.

"'And as Samuel turned about to go away, he laid hold upon the skirt of his mantle, and it rent.

"'And Samuel said unto him, the Lord hath rent the kingdom of Israel from thee this day, and hath given it to a neighbor of thine, _that is_ better than thou.

"'And also the strength of Israel will not lie nor repent; for he is not a man that he should repent.

"'Then he said, I have sinned; _yet_ honor me now, I pray thee, before the elders of my people, and before Israel, and turn again with me, that I may worship the Lord thy God.

"'So Samuel turned again after Saul, and Saul worshiped the Lord.

"'Then said Samuel, bring ye hither to me Agag, the king of the Amalekites. And Agag came unto him delicately. And Agag said, surely the bitterness of death is past.

"'And Samuel said, as thy sword has made women childless, so shall thy mother be childless among women. And Samuel hewed Agag in pieces before the Lord in Gilgal.

"'Then Samuel went to Ramah; and Saul went up to his house to Gibeah of Saul.

"'And Samuel came no more to see Saul until the day of his death; nevertheless, Samuel mourned for Saul; and the Lord repented that he had made Saul king over Israel.'"

Mr. Pierrepont then read from the eighteenth chapter of St. Matthew as follows:--

"'Woe unto the world because of offences, for it must needs be that offences come; but woe unto that man by whom the offence cometh.... It were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.'

"Such was the order in the times of this Book. All government is of God. The powers that be are ordained of God. Now, from whom come those words? Not from the Old Testament, but they come from the meek and lowly Jesus, the Saviour of the world, who died for you, for me, for all. It is true as the counsel have said, that God is a God of mercy; but he says: 'Though I am a God of mercy, I will by no means clear the guilty.' Now the counsel who has addressed you, you will remember, said in his speech, with great earnestness: 'We have had blood enough; let us have peace.' The question before you, gentlemen, is not about blood. The question is not about peace. The question before you is whether you have not had murder enough, and assassination enough, and crime enough, to enable us to have at least once before a civil tribunal in this land a trial and a verdict. Not a single one of all those engaged in the conspiracy has been tried before a civil tribunal; and the question now is, have you not had enough of this murder, enough of this assassination, to have at least one jury of the country say so, and to say that we will stop it? You and I have nothing to do with the consequences. All we have to do is to do our duty, and ascertain whether the man is guilty. You do not punish the man; I do not punish the man. I have not a feeling toward him of punishment, and you have no such feeling. The duty does not lie with you, nor with me; we have nothing to do with that. The question for us is to see whether this man is guilty of this violation of the law of the land as charged; and if so, to so declare; and then, if for any cause, the Executive sees fit to show leniency, he will show it. If he does not, he will not. It is not for you or for me to have to say what the leniency should be. It is not for you or for me to have anything to say upon that question. Our business is, I repeat, to ascertain whether he is guilty of this violation of the law, and if he is guilty, so to say, and then afterward to say whatever we thought fit to be said with regard to any leniency. Our duty is, and the duty of the court is, to find out that one fact, and to have you pronounce your verdict, under your oath, according to the facts as you find them.

"There are one or two other things that I must notice before I come to the main question. One of these is in regard to the attacks which were made by counsel yesterday upon the learned District Attorney and myself. Have you seen anything in the conduct of the District Attorney in this case that was improper? Have you seen anything but an earnest desire to discharge his duty? If I understood the counsel aright yesterday, he said that if he should stand in the place and should have done as the District Attorney had, he would expect the women, as they passed him, to gather their skirts and pull them aside, lest they be contaminated by the touch. I did not at that time know why there was so much bitterness of feeling thus expressed, but I have been shown since last night this record called the 'Rebellion Record,' and I find in it that on the 5th of January, 1861, Edward C. Carrington, now District Attorney, issued to the public a stirring letter calling out the militia of this District for the purpose of aiding in the protection of the government of the United States; calling upon them to rally; and they did rally at his call. The fact of this native born citizen of Virginia, one of your own number and living in your midst, having thus early and practically taken the side in favor of the government, when even his own State had deserted him, of course would be likely to call down the greatest bitterness and hatred against this loyal and noble citizen on the part of a certain class. We have been told, gentlemen, by the counsel upon the other side, that the Judge Advocate General had done a great many wrong things in his life. We have been told that the military commission which Mr. Johnson had established, and he alone, had done wrong things in their prosecution; and we have been told, likewise, that the Supreme Court of the United States had decided that this commission was illegal. Now you would hardly expect an eminent lawyer to make such a statement unless he believed it. But he is wholly mistaken. No court in the United States has declared this commission to have been illegal. There is no such decision on record--not any.

"Some of these very persons are now in confinement, and if the Supreme Court of the United States had declared the commission that tried them illegal, why should they now, in a time of profound peace, be kept in prison? If such were the case would not an application have been immediately made by my learned brother for a writ of _habeas corpus_ to release them? But nothing of the kind is done. And why? Because no such decision has ever been pronounced. No court has, and in my judgment no court will, pronounce this commission, thus formed by the President of the United States, to have been illegal."

As this is a question of the gravest importance we all ought to know whether, as claimed twice in the arguments of defendant's counsel, the military commission which tried the conspirators and assassins has been decided by the Supreme Court of the United States to have been an illegal tribunal. Judge Pierrepont, as we have seen, asserts boldly that in his judgment no such decision had ever been given by that tribunal, or ever would be. That the counsel for the defense did not really so understand it he clearly shows by the fact that they had never asked for a writ of _habeas corpus_ in behalf of those who were working out the sentence of the commission. To his opinion I will now add that of Judge Fisher as given in his charge to the jury. It is as follows:--

"You have been told, gentlemen, in the argument of this case, that those who were tried before that military commission, and hung upon its findings, were themselves the victims of a base and disgraceful conspiracy to murder. Brave, gallant, and honest soldiers of their country have been held up before you as inhuman butchers of innocent men. It has been said in support of this denunciation, that the Supreme Court of the United States have, in the case of Milligan, declared that the military court which tried Herold and others for the murder of Abraham Lincoln was an illegal tribunal, organized without law, without right, and without warrant in the Constitution--a mere convocation of military men, having no right to try the cause committed to them by President Johnson; and it has been said that it was convoked not to try but to condemn.

"In my humble judgment the Supreme Court has made no such decision. If so, why have not the prisoners now confined upon the Dry Tortugas for complicity in the greatest crime of the age been released from their confinement? They have sympathizing friends enough to have applied any such decision in the direction of their deliverance, and they would not have remained there a week after the decision had been made to the effect that they were unlawfully restrained of their liberty. If I understand the decision in Milligan's case aright, it went upon the ground that the commission which tried Milligan was not organized in obedience to the act of Congress providing for the punishment of such crimes as he was charged with committing, and the opinion of the majority of the court went upon the additional ground that no hostile foot had ever pressed the soil of Indiana at the time when he was arraigned before a military tribunal there, and that, therefore, that tribunal which condemned him for acts of treason committed in that State had no authority to try him, notwithstanding the whole nation was involved in the most terrible struggle for its life. The majority opinion being thus predicated upon a misapprehension of historic truth, we could not, perhaps, have looked for a more rightful deduction.

"Unprepared, however, as all loyal hearts were for such an announcement, the American people would be even yet more astounded to have it declared by any court in this country that the commander-in-chief of the army and navy, the President of the United States, has not the power in time of war to institute a military commission for the purpose of trying a gang of spies and traitors who have found their way within the intrenched encampments of the nation's capital to take the life of the chief of the army and navy, to assassinate all the heads of the executive departments, in the interest of the pretended government with which the federal government was engaged in war. They who maintain such a doctrine profess to defend it upon the ground that no such power is delegated by the constitution, as _they_ did who could find no warrant there to coerce seceding States into submission to the federal authority; but the day has passed by when honest statesmen will longer, if they ever did, regard the sovereignty of the federal Union as possessing no powers save those expressly enumerated in the Constitution.