Chapter XXXI: Preface: To Appendix (7)

Booth proceeded to the theatre about nine 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 interview in her parlor, from which his retreating steps were heard, was walking the Avenue, booted and spurred, and doubtless consulting 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 proven 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 ten 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 draws nigh, he calls the time; and finally, when the fatal moment arrives, he repeats in a louder tone, "Ten minutes past ten o'clock!" Ten minutes past ten 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 President, 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 the 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 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 martyr 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 the physician of the venerable Secretary of State, sweeps by his servant, encounters his son, who protests that the assassin shall not disturb his father, prostrate 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 defenseless 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 literally hacking out his life by the persistence and courage of the attendant Robinson. He turns to flee, and, his giant arm and murderous 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.

Atzerodt, near midnight, returns to the stable of Naylor the horse which he had procured for this work of murder, having been interrupted in the execution of the part assigned him at the Kirkwood House by the timely coming of citizens to the defense of the Vice-President, and creeps into the Pennsylvania House at two o'clock in the morning with another of the conspirators, yet unknown. There he remained until about five 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 testimony 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 disclosing 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'Laughlin and Payne and Herold and Booth and John H. Surratt and, perchance, Harper and Caldwell, 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 Secretary 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 Bryantown with Mudd about three o'clock that afternoon, in the vicinity of which place he parted with him, remaining in the swamp, and was afterwards seen returning the same afternoon in the 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 defense 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 afternoon, 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 remained there, and what became of the horses which Booth and Herold rode to his house and which were put into his stable, are facts nowhere 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 Bryantown, on the evening of Saturday, in his conversation 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 moustache? 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 there last fall, _he 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 evidence 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 be 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 remember whether he said that this party shaved off his whiskers or his moustache, but he altered somewhat, or probably materially, his features." 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 conversation the fact proved, that he went with Herold towards Bryantown and left Herold outside of the town? How comes it that in this second conversation, on Sunday, insisted upon here with such pertinacity as evidence for the defense, 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 Booth who assassinated the President, and the fact which is now disclosed by his other confessions given in evidence for the prosecution, that it 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 evening 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 evening 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 secreting 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 evidences 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; 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, preparatory to the commission of this great crime, and who he knew, when he sheltered and concealed him in the woods on Saturday, was not 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 evidence, and by the law were wholly inadmissible, yet I state 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 suggestions 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 positively 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 admitted to Lloyd that he had been introduced to Booth last fall, and that this man who came to his house on Saturday, the 15th, remained there from about four o'clock in the morning until about four 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 Bryantown, 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 toward the barn, but that he did not see the other person at all after he left him in his own house about one o'clock. If this statement be true, how 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 four 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 November, 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 assassination. 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 upstairs 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 _then_ 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 that he heard for the first time on Sunday morning, or late in the evening of Saturday, that the President had been murdered! From 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 truthfully, 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 one 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 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 21st, 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_. I think it is fair to conclude that he did know Booth when we consider the testimony of Wiechmann, 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 direct 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; receiving them under cover of darkness on the morning after the assassination, concealing them throughout that day from the hand of offended 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 departure from the house of Mudd, across the Potomac in the neighborhood 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 they were traveling 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 Herold revisited him from time to time, until they were captured. At two 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 bill of exchange:--

"No. 1492. The Ontario Bank, Montreal Branch. Exchange for £61
12_s._ 10_d._ 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 12_s._
10_d._ 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 entrusted the care of the republic, the maintenance 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 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, in combination with Jefferson Davis, Jacob Thompson, George N. Sanders, Clement C. Clay, William C. Cleary, Beverly 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, Edward Spangler, Samuel Arnold, Mary E. Surratt, and Samuel A. Mudd, did, with intent to aid the existing rebellion and to subvert the Constitution and laws of the United States, in the month of October last and thereafter, combine, confederate, and conspire with Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young, and others unknown, to kill and murder, within the military department 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 his 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 conspiracy, so entered into by him and the accused, did, on the night of the 14th of April, 1865, within the military department of Washington, 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 George 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 Spangler did encourage, 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 confederated 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 republic, it is only because the conspirators were deterred by the vigilance and fidelity of the executive officers, whose lives were mercifully 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 by 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 common design. What these conspirators did in the execution of this conspiracy by the hand of one of their co-conspirators they did themselves; 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 agreement.

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 nature of the indictment is, provided the offense involve a conspiracy. Upon indictment for murder, for instance, if it appear that others, together with the prisoner, conspired to perpetrate the crime, the act of one done in pursuance of that intention would be evidence against the rest." (1 Whar. 706.) To the same effect are the words of Chief Justice Marshall, before cited, that whoever leagued in a general conspiracy, performed any part, however MINUTE, or however REMOTE, 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 erroneous 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 Constitution, whether assailed secretly or openly, by hosts armed with gold, or armed with steel.

THE CONTROVERSY BETWEEN PRESIDENT JOHNSON AND JUDGE HOLT.

_A Paper read by_ GEN. HENRY L. BURNETT, _late U. S. V., at a Meeting of the Commandery, State of New York, Military Order, Loyal Legion, April 3, 1889_.

Perhaps no incident connected with the trial of the assassins of President Lincoln created more general interest--was so much discussed and commented upon by the public press, or aroused deeper feeling of antagonism and bitterness between two public men, than the charge by President Johnson that the Judge Advocate General, Judge Holt, had withheld or suppressed the recommendation to mercy of Mrs. Surratt, signed by five members of the commission, when he represented to him, the President, the record for his official action. While this charge had circulation and was asserted in the press during the time Mr. Johnson was occupying the presidential office, Mr. Johnson never openly made the charge until after his term had expired, some time in 1873.

No graver charge could be made against a public officer than this against Judge Holt, and, if true, no more cruel and treacherous betrayal of a public trust was ever committed by a man in high official position. It would be murderous in intent and effect. This charge rested, so far as human testimony went, upon the solemn assertion alone of President Johnson, and, if untrue, was one of the most cruel wrongs ever perpetrated by one man against another. I propose to give a brief abstract of the testimony produced by Judge Holt to disprove this charge, and also a statement of my connection with, and what little personal knowledge I had of the matter.

In a communication addressed to the Washington _Chronicle_, dated August 25, 1873, Judge Holt gives a copy of a letter addressed by him to the Secretary of War, on the 14th of that month, in which he sets forth evidence tending to disprove the charge originating with Andrew Johnson, of his suppression of the petition, signed by five of the nine members of the commission, recommending, in consideration of her age and sex, a commutation of the death sentence of Mary E. Surratt to imprisonment for life in the penitentiary. The petition read as follows: "To the President: The undersigned, members of the military commission appointed to try the persons charged with the murder of Abraham Lincoln, etc., respectfully represent that the commission have been constrained to find Mary E. Surratt guilty, upon the testimony, of the assassination of Abraham Lincoln, late President of the United States, and to pronounce upon her, as required by law, the sentence of death; but in consideration of her age and sex, the undersigned pray your Excellency, if it is consistent with your sense of duty, to commute her sentence to imprisonment for life in the penitentiary."

In a letter dated February 11, 1873, addressed to Hon. John A. Bingham, one of the special Judge Advocates during the trial, Judge Holt states: "In the discharge of my duty when presenting that record to President Johnson, I drew his attention to that recommendation, and he read it in my presence, and before approving the proceedings and sentence. He and I were together alone when this duty on his part and on mine was performed.... The President and myself having, as already stated, been alone at the time, I have not been able to obtain any positive proof on the point, although I have been able to collect circumstantial evidence enough to satisfy any unbiased mind that the recommendation was seen and considered by the President, when he examined and approved the proceeding and sentence of the court. Still, in a matter so deeply affecting my reputation and official honor, I am naturally desirous of having the testimony in my possession strengthened as far as practicable, and hence it is that I trouble you with this note. While I know that the question of extending to Mrs. Surratt the clemency sought by the petition was considered by the President at the time mentioned, I have, in view of its gravity, been always satisfied that it must have been considered by the Cabinet also; but from the confidential character of Cabinet deliberations I have thus far been denied access to this source of information." He then proceeds to inquire whether or not he (Judge Bingham) had any conversation with Secretary Seward or Mr. Stanton in reference to this petition, and if so to please give him as nearly as he (Judge Bingham) could, all that Secretary Seward or Mr. Stanton had said upon the subject.

Judge Bingham replied under date of February 17, 1873, and among other things said:--

"Before the President had acted upon the case, I deemed it my duty to call the attention of Secretary Stanton to the petition for the commutation of sentence upon Mrs. Surratt, and did call his attention to it, before the final decision of the President. After the execution, the statement which you refer to was made that President Johnson had not seen the petition for the commutation of the death sentence upon Mrs. Surratt. I afterwards called at your office, and, without notice to you of my purpose, asked for the record of the case of the assassins; it was opened and shown me, and there was then attached to it the petition, copied and signed as hereinbefore stated. Soon thereafter I called upon Secretaries Stanton and Seward and asked if this petition had been presented to the President before the death sentence was by him approved, and was answered by each of those gentlemen that the petition was presented to the President, and was duly considered by him and his advisers before the death sentence upon Mrs. Surratt was approved, and that the President and Cabinet, upon such consideration, were a unit in denying the prayer of the petition; Mr. Stanton and Mr. Seward stating that they were present.

* * * * *

"Having ascertained the fact as stated, I then desired to make the same public, and so expressed myself to Mr. Stanton, who advised me not to do so, but to rely upon the final judgement of the people."

In replying to this letter, Judge Holt very justly remarks: "It would have been very fortunate for me indeed could I have had this testimony in my possession years ago. Mr. Stanton's advice to you was, under all the circumstances of the case, most extraordinary.

* * * * *

"The asking you 'to rely upon the final judgment of the people,' and at the same time withholding from them the proof on which the judgment--to be just--must be formed, was a sad, sad mockery."

The next is a letter from ex-Attorney General Speed, dated March 30, 1873, in which he says: "After the finding of the military commission that tried the assassins of Mr. Lincoln and before their execution, I saw the record of the case in the President's office, and attached to it was a paper, signed by some of the members of the commission, recommending that the sentence against Mrs. Surratt be commuted to imprisonment for life; and according to my memory, the recommendation was made because of her sex.

"I do not feel at liberty to speak of what was said at Cabinet meetings. In this I know I differ from other gentlemen, but feel constrained to follow my own sense of propriety."

So that it is most clear from this statement of Attorney General Speed, unless he, without interest or motive, stated a most deliberate falsehood, that Judge Holt did not "withhold" or "suppress" the recommendation to mercy, but carried it with the record and "_attached to it_," as Mr. Speed says, and delivered it in the President's office. Certainly every intelligent mind will concede that this testimony of Mr. Speed utterly disposes of the charge of Andrew Johnson that Judge Holt "suppressed" or "withheld" this recommendation to mercy. If Mr. Johnson did not see it or read it when in his office, that was his neglect, his failure to perform a solemn official duty. But on this question of his having _read_ and _considered_ it, how stands the evidence? Judge Holt states that he drew his attention to it, and that Mr. Johnson read it in his presence. Judge Bingham says both Mr. Stanton and Mr. Seward stated to him that this petition had been presented to the President and was duly considered by him and his advisers before the death sentence upon Mrs. Surratt was approved. Under date of May 27, 1873, James Harlan, a former member of Mr. Johnson's Cabinet, addressed a letter to Judge Holt, in which he said: "After the sentence and before the execution of Mrs. Surratt, I remember distinctly the discussion of the question of the commutation of the sentence of death pronounced on her by the Court to imprisonment for life had by members of the Cabinet in presence of President Johnson. I can not state positively whether this occurred at a regular or a called meeting, or whether it was at an accidental meeting of several members, each calling on the President in relation to the business of his own department. The impression on my mind is, that the only discussion of the subject by members of the Cabinet, which I ever heard, occurred in the last-named mode, there being not more than three or four members present--Mr. Seward, Mr. Stanton, and myself, and probably Attorney General Speed and others--but I distinctly remember only the first two. When I entered the room, one of these was addressing the President in an earnest conversation on the question whether the sentence ought to be modified on account of the sex of the condemned. I can recite the precise thought, if not the very words, used by this eminent statesman, as they were impressed on my mind with great force at the time, and I have often thought of them since, viz.: 'Surely not, Mr. President, for if the death penalty should be commuted in so grave a case as the assassination of the head of a great nation, on account of the sex of the criminal, it would amount to an invitation to assassins hereafter to employ women as their instruments, under the belief that if arrested and condemned, they would be punished less severely than men. An act of executive clemency on such a plea would be disapproved by the government of every civilized nation on earth.'"

Judge Harlan adds that he made inquiry at the time, and "was told that the whole case had been carefully examined by the Attorney General and the Secretary of War; and that the only question raised was whether the punishment shall be reduced on account of the sex of the party condemned. I do not remember that any differences of opinion were expressed on that point."

This is indirect but very conclusive evidence that the petition was attached to the record submitted to the President and examined by the Attorney General and Secretary of War; and that the subject of the mitigation of Mrs. Surratt's sentence was considered by the President and these members of his Cabinet, because in no part of the record was there the slightest allusion to the question of clemency to Mrs. Surratt, or to any of the other convicted persons, except in the petition signed by the five members of the Court.

The next is a letter from the Rev. J. George Butler, pastor of St. Paul's Church, Washington. Under date of December 5, 1868, in describing an interview he had with President Johnson, he says: "The interview occurred during a social call upon the family of the President in the evening, a few hours after the execution.

"I had been summoned by the Government, I then being a hospital chaplain, to attend upon Atzerodt, and was present at the execution.

"Concerning Mrs. Surratt, the remarks of the President, by reason of their point and force, impressed themselves upon my memory. He said, in substance, that very strong appeals had been made for the exercise of executive clemency; that he had been importuned; that telegrams and threats had been used; but he could not be moved, for, in his own significant language, Mrs. Surratt '_kept the nest that hatched the eggs_.'

"The President further stated that no plea had been urged in her behalf, save the fact that she was a _woman_, and his interposition upon that ground would license female crime."

This harmonizes entirely with the "thought" which Secretary Harlan heard uttered with so much force by a member of the Cabinet in Mr. Johnson's presence--either Mr. Stanton or Mr. Seward--and from his language, "this eminent statesman," I take it to have been Mr. Seward.

The Rev. Mr. Butler adds: "I feel it due to a Christian soldier and personal friend (General Eakin) to make this statement, showing clearly that at the time of the execution the President's judgment wholly accorded with the judgment of the military commission; and that no appeals could then change his purpose to make 'treason odious.'"

General R. D. Mussey, under date of August 19, 1873, writes to Judge Holt:--

"In a few days after the assassination I was detailed for duty with Mr. Johnson and acted as one of his secretaries, and was an inmate of his household until some time in the fall of 1865.

"About the time the military court that tried Mrs. Surratt concluded its labors, I was, if I remember aright, for some days the only person acting as private secretary at the White House, my associate being absent on a visit.

"On the Wednesday previous to the execution (which was on Friday, July 7, 1865), as I was sitting at my desk in the morning, Mr. Johnson told me that he was going to look over the findings of the Court with Judge Holt, and should be busy and could see no one. I replied, 'Very well, sir, I will see that you not interrupted,' or something to that effect, and continued my work. I think it was two or three hours after that that Mr. Johnson came out of the room where he had been with you, and said that the papers had been looked over and a decision reached. I asked what it was. He told me, approval of the findings and sentence of the Court; and he then gave me the sentences as near as he remembered them, and said that he had ordered the sentence where it was death to be carried into execution on the Friday following. I remember looking up from my desk with some surprise at the brevity of this interval, and asking him whether the time wasn't rather short. He admitted that it was, but said that they had had ever since the trial began for 'preparation'; and either then or later on in the day spoke of his design in making the time short, so that there might be less opportunity for criticism, remonstrance, etc. I do not pretend to use his precise language as to this, but the purport of it was that 'it was a disagreeable duty, and there would be endeavors to get him not to perform it, and he wished to avoid them as much as possible.' ... I am very confident, though not absolutely assured, that it was at this interview Mr. Johnson told me that the Court had recommended Mrs. Surratt to mercy on the ground of her sex (and age, I believe). But I am certain he did so inform me about that time; and that he said he thought the grounds urged insufficient, and that he had refused to interfere; that if she was guilty at all, her sex did not make her any the less guilty; that he, about the time of her execution, justified it; that he told me there had not been women enough hanged in this war."

This evidence would seem to establish most conclusively that the "petition" was not only attached to the record, and delivered by Judge Holt at the President's office in the Executive Mansion, but that he read the same and afterward considered and discussed it with at least three members of his Cabinet; and intelligent charity can reach no further than to say that President Johnson, when he charged Judge Holt with having withheld this recommendation to mercy when he delivered the record of the trial at the President's Mansion, made a cruel and untruthful charge; and that when he asserted in 1873 that he had not seen, read, or heard of this recommendation to mercy, at the time he approved the sentences on the 5th day of July, 1865, had forgotten the facts--that his "forgettery" was much better than his memory.