YALE UNIVERSITY
LIBRARY

"^'¦¦Jlls-Au- S: 3sld.-'A'm Ja'bhshere

THE ASSASSINATION

OF

PRESIDENT LINCOLN

TRIAL OF THE CONSPIRATORS

DAVID E. HEROLD,
MARY E. SUREATT,
LEWIS PAYNE,
GEORGE A. ATZERODT,

EDWARD SP ANGLER,
SAMUEL A. MUDD,
SAMUEL ARNOLD,
MICHAEL O'LAUGHLIN.

Containing the Orders coQTening the Commission ;
Eulee for its guidance ; Pleas of the accused to the Juris
diction of the Commission, and for Severance of Trial ;
Testimony io full concerning the Assassination, and
attending circumstances ; Flight, pursuit and capture of
John Wilkes Booth ; Attempted Assassination of Hon.
W. H. Seward, Secretary of State. Official Documents
and Testimony relating to the following plots : The
Abduction of the President and Cabinet, and carrying
them to SichmcLnd ; The Assassination of the President
and Cabinet ; The Murder of President Lincoln by pres-
entB of infected clothing; The introduction of pestilence
into Northern cities by clothing infected with Yellow
TeTCr and Small Pox ; Starvation and murder of Union

prisoners in Southern prisons; Attempted bnrning of
New Tork and other Northern cities ; Poisoning the
water of the Croton Beservoir, New Tork ; Raid on St.
Albans ; Contemplated raids on Buffalo, Ogdensbnrg,
etc. ; Burning of Steamboats on Western rivers, Govern
ment Warehouses, Hospitals, etc. ; Complicity of Jeffer
son Davis, Judah P. Benjamin, Jacob Thompson, George
N. Sanders, Beverley Tucker, 0. C. Clay, etc. ; Jacob
Thompson's banking account in Canada; The mining of
Libby Prison, and preparations to blow it up ; The '* dM-
organization of the North " by a system of terrorism
and infernal plots ; Arguments of Counsel for the
Accused ; Reply of Hon. J. A. Bingham, Special Judge
Advocate; Findings and Sentences of the Accused, etc.

COMPILED AND ARRANGED BY BENN PITMAN,

EECOEDEa TO THE COMMISSION.

¦pTTTjT TCJTT'p'nC!.
MOORE, WILSTACH & BALDWIN,
26 West Fourth Stebbt, Cinoinkati.
Nbw York, 60 Walker Street.
1865.

Zia. -VS»

Entered according to Act of Congress, in the year 1865,
Bt MOOEB, WILSTACH & BALDWIN,
In the Clerk's Office of the District Court of the United States for the Southern District of Ohio.

APPROVAL OF THE SECRETARY OF WAR, ETC.

Military Commissioh, Pbnitentiabt, Washinotoh, D. C, 1
Tuesday, June 20, 1865. f
iaio. Gen. JosEPn Holt, Judg6 Mvooate Omaral :
General — To satisfy the present public desire, and for future use and reference, it
B certainly desirable that an authentic record of the trial of the assassins of the
late President, as developed in the proceedings before the Military Commission, should
be published: such- record to include the testimony, documents introduced in evidence,
discussion of points of law raised during the trial, the addresses of the counsel for the
accused, the reply of the Special Judge Advocate, and the findings and sentences.
Messrs. Moore, Wilstach & Baldwin, publishers, of Cincinnati and New York, are
willing to publish the proceedings in respectable book shape, and I will arrange and
compile, on receiving your .approval.
I respectfully refer to the printed work, "The Indl4.napolis Treason Trials," as an
uidication that my part of the work will be performed with faithfulness and care.
Very respectfully, your obedient servant, BENN PITMAN.
Recorder to Commission.
Indorsed and approved by —
DAVID HUNTEB, Maj. Gon. V. S. Vols. LEWIS WALLACE, Maj. Gen. V. S. Tola.
AUGUBT V. KATJTZ, Brev. Maj. Gen. IT. S. Vols. KOBBKT S. FOSTEE, Brsy. Mnj. Gen. U. S. Vols.
ALBION P. HOWE, Brig. Gon. V. 8. Vols. T. M. HAEBIS, Brig. Gen. V. S. Vols.
JAMBS A. EKIN, Brey. Brig. Gen. U. 8. Vols. 0. H. TOMKINS, Brev. Ool. U. S. Army.
DAVID B. CLBNDENIN, Lieut. Col. 8th Ills. Oav. JOHN A. BINGHAM, Special Judge Advocate.
H. L. BUENBTT, Brey. Col. and Special Judge Advocate.
ButtEAtr OF MiLiTABT JUSTICE, Jiini 30, 1865.
By authority of the Secretary of War, the publication of the work referred to in the
foregoing letter, will be permitted, on the oondition'that it be made without cost to the
Government, and that it be prepared and issued under the superintendence of CoL
Burnett, who wUl be responsible to this Bureau for its strict accuracy.
J. HOLT, Judge Advocate General.
JuBQE Advocate's Oitice, Depaetment oe the Ohio, 1
Cincinnati, October 2, 1865. f
In obedience to the directions of the Secretary of War, through the Judge Advocate
General, I have superintended the compilation and publication, in book form, of the
record of the trial of the conspirators at Washington, for the assassination of the
late President, Abraham Lincoln, and the attempted assassination of the Secretary of
State, Mr. Seward, other members of the Cabinet, and Lieut. Gen. Grant, and hereby
certify to its faithfulness and accuracy. H. L. BURNETT,
Jui^e Advocate Dept. of the Ohio, and Special Jiidge Advocate of the Commission.
The entire testimony adduced at the trial of the assassins of President Lincoln ia
contained in the following pages. It has been arranged in narrative form, to avoid
unnecessary repetitions, and to present the facts testified to by each witness in a concise
and consecutive form. _ The phraseology is that of the witness; the only license taken
with the testimony has been its arrangement in'"historical sequence, both as to generals
and particulars.
Whenever the meaning of a witness was doubtful, or an evasive answer was given, or
whenever the language of the witness admitted of a double interpretation, or of no
interpretation at all, the questions of counsel, and the answers of the witness, have
been, retained. B. P.

Weitmorel&od 0. H.

TABLE OF CONTENTS.

Mayl.May 6.
May 9.
May 10.
May 11.
May 12.

May 12.

June 12.
June 13.
June 13.
May 20.

May 22.
June 27.
June 27.
May 13.
June 27.
June 23.
May 12.
May 12.
May 12.
May 29.
May 12.
May 12.
May 26.
May 12.
June 9.
Jane 13.

May 18.
May 18.
May 19.
May 20.
May 20.

June 5.
June 5.

Jtme2. June 16.

May 13.
Hay 13.
Hay 20.
UayU.

May 30.
MaySO.June 9.

EXBCUTlVK ORnxR  Ordering a MUitary Oommission 
Special Order No. 211  Couvening Commission to meet on the 8th of May 
First Session  Accused without counsel 
Second Session  Special Order No. 216; Charge and Specification; pleadings
of the accused; rules of proceeding 
Third Session  Counsel introduced 
EouRTH Session  Pleas to Jurisdiction; Pleas for Severance 
GENERAL CONSPIRACY.
BicHABD MONTOOMBBT  Acquainted with Thompson, Sanders, Clay^ Cleary, Tuclier,
Holcombe, etc., in Canada; thpir complicity ¦with the rebel
chiefs in the aasassiuationj firing of New Tork ; raids on
St. Albans, Rochester, Bufl^alo, Ogdensburg, etc 
Heealled  Letter from C. 0. Clay to J. P. Benjamin, at Richmond 
Itecalled  Time required to reach Washington from Montreal 
William H. Rohrer  Identified the handwriting of Clement 0. Clay 
SaSford Conoveb  Intimate with the rebel agents in Canada; Booth and Sur-
ratt iu Canada; Surratt just from Richmond; participa
tion in the assassination plot; rebel commissions for raid
ers ; descent on Chicago ; release of rebel prisoners 
BecalJed  Introduction of pestilence into the States by infected cloth
ing ; poisoning of the Orotou reservoir. New York ; assas
sination approved at Richmond 
Recalled  Testimony m the St. Albans case; seized in Canada and
made to disavow his testimony before the Commission 
Nathan Aitbeb  Accompanied Conover to Montreal; corroborated his state
ment 
James B. Merritt  Intimate with rebels in Canada; assassination and other
plots discussed and approved; approval of rebel chiefs in
Richmond 
Becalled  In Montreal after the assassination; rebels burning their
t papers 
George B. Htjtchinson  In Montreal with Dr. Merritt ; corroborated his statement...
Lieutenant-General U.S. Grant  Jacob Thompson in the rebel military service ; extent of the
Military Department of Washington ; civil courts open 
Samuel P. Jones  Assassination discussed by rebel soldiers and citizens 
Henry Von Steinackee  Met Booth in Virginia after the battle of Gettysburg ; assas
sination discussed at a meeting of rebel ofBeers 
Hosea B. Carter  Saw Booth with the rebel clique m Canada 
John Devent  Saw Booth in Montreal with Sanders; also in Washington on
the 14th of April, and at the theater 
William E. Wheelee  Saw Booth in Montreal, in conversation with Sanders 
Henrt Finegas  Sanders speaking of Booth as "bossing the job" 
Mrs Mary Hudspeth  Letters of conspirators found by her m New York 
Letters signed *' Charles Selby " and '*fteenea" 
Hon Chaeleb A. Dana  „  Identified the above letters as received from General Dix 
Letter from General Dix accompanying the letters 
Majoe T. T. Eckeet....^  Dateof "General Butler leaving New Tork, November 14th....
SECEBT CIPHER AND KEY.
Lieutenant William H. Teeet  Secret cipher found among J. W. Booth's efFeotB....„...... 
William Eaton  Found secret cipher in Booth a trunk at Is ational Hotel 
COLOSEL Jobeph'h.' Tayloe  Received the same from Lieutanent W. H. Terry...... 
Hon C a Dana  Fonndsecret cipher-key m Benjamin's office at Richmond....
Major T. T. Egkert. ...!..  '.  .'.... Secret cipher dispatches from rebels in Canada to Richmond.
ASSASSINATION CIPHER LBTTBB.
nHAULEa Duell  Letter signed "Number Five;" assassination plot 
jZSS Ferooson:.'!.;!!!."...":!!:.....".  HentifleS the letter found at Morehead City, N. 0 
THE "LON" LETTER.
Thaulm Dawson  Letter signed " Lon," addressed to " Friend Wilkes" 
EOMETPotDT..™."" .:...... ........V^^ Testified to facts referred to in the " Lon " letter 

PLOT TO OAPTBRB.
Sauuzl Ksapp Chesteb  Booth's confessions to Chester; plot to capture abandoned...
BOOTH'S OIL SPECULATIONS.
Joseph H. Simokds  Investments in, but no profits from, oil speculations 
JACOB THOMPSON'S BANK ACCOUNT.
RoRiRT Ansos Caupbell  Thompson's account with the Ontario Bank, Montreal;
Booth's account 

BOOTH AT THE NATIONAL HOTEL.
a. W. BuSKBB...^.  Dates of Booth's arrival and departure at National Hotel....
JEFFEESON DAVIS AND THE ASSASSINATION.
Ttot> it 'Raths  Receipt of telegram by Davis announcing the assassination. (V)

VI

Jane 8.
Juno 9.
June 9.
June 9.

May 18.

May 18.
May 18.
May 18.
May 20.

June 12.

June 27.
June 27.

May 22.
May 22.
May 22.
May 26.

May 27.
June 10.

May 29.

May 29.
May 29.

May 29.

May 26.
May 25.
May 25.
May ^.
May 26.
May 26.
June 10.

May 22.
May 25.
Hay 25.

June 16.
June 16.
June 16.

May 30.

May SO.
May 30.

May 13.
May,16.May 26.
May 26.
May 15.
May 22.
May 15.
May 15.
May 15.
May 15.
May 15.
May 16.
May 22.
May 16.
May 16.
May 22.
May 15.
May 19.

TABLE OF CONTENTS.
William L. Ceane  Testified to character of Lewis F. Bates 
Daniel H. Wilcox  *' " " 
Jules Soule  " " "  y'-m"'
Major T. T. Eckeet  L. F. Bates brought to Washington by order of Sec'y of War
PLOT TO DESTROY VESSELS, BUILDINGS, Etc.
Rev. W. H. Ryder  Letter from W. S. Oldham to Jeff. Davis; proposition for
general destruction of public and private United fatates
property; indorsed by Davis 
John Potts  Identified handwriting of Jefferson Davis 
Nathan Rice " " " 
Joshua T. Owen!.""'.!.".'.'.'."*.'.."'.''".'.'!!!!!!!!! As lio Professor McCnllough, referred to in the alDOve letter...
General Alexander J. Hamilton  As to W. S. Oldham, writer of the above letter 
BURNING OF STEAMBOATS, Etc.
,  Burning of U. S. transports, bridges, etc., and payment for
the same, by J. P. Benjamin, in Confederate gold 

PAGS 47

Edwasd Feazier..

CITY POINT EXPLOSION.

General T. D. Townsend..

,  ,. Paper signed *'John Maxwell," detailing particnlars of
torpedo explosion 
MILLION DOLLARS FOR ASSASSINATION.
John Oantlin  G. W. Gayle wants one million dollars for assassination pur
poses 
W. D. Graves  Identified the handwriting of G. W. Gayle 

Colonel R. B. Treat,
Major T. T. Eckert..
Frederick H. Hall..

PAPERS FROM THE REBEL ARCHIVES.
Proposal "to rid the country of some of her deadliest ene
mies;" referred, by direction of the "President," to the
Secretary of War ; from the archives of the rebel War
Department; surrendered by General Josepb E. Johnston
^ to Major-Gengral Schofield 
Lewis W. Chambeelatne  Identified the handwriting of B. W. Harrison, Private Secre
tary to Davis, and J. A. Campbell, rebel Assistant Secre
tary of War 
COMMISSIONS FOR RAIDERS.
George F. Edmtjnds  Confederate commissions granted to raiders 
Henry G. Edson  Threatened raids from Canada on Buffalo, Detroit, New

York, etc..

PLOT TO BURN NEW YORK CITY.
Colonel Martin Burke  Confession of Robert C. Kennedy 
INTRODUCTION OF PESTILENCE.
Godfrey Joseph Htams  Employed by Dr. Blackburn; details of operations 
W. L. Wall  Received and sold five trunks of infected clothing in Wash
ington 
A. Br£nner  Clerk to Wall & Co. ; forwarded statement of account 

STARVATION OF UNION PRISONERS.

Salome Marsh  At Libby Prison 
Frederick Memmert  At Libby Prisoii 
Benjamin Sweerer  At Belle Island 
William Ball  At Andersonville 
Charles Sweenay  At Libby, Belle Island, and Andersonville 
James YoTJNO  At Andersonville, Charleston, and Florence..
Lieutenant J. L. Ripple  At Andersonville 

MINING OF LIBBY PRISON.
Lieutenant Reuben Baetley  Torpedo buried under the center of the prison 
Erastus W. Ross  Placed there by order of the rebel Secretary of War 
John Latouche  Major Turner to fire it if U. S. troops came to Richmond..

THE BEN. WOOD DRAFT. ^
Daniel S. Eastwood.  Draft for $25,000 from Jacob Thompson's rebel funds 
George Wilkes  Identified the indorsement of Benjamin Wood, of New York.
Abram D. Russel  Identified the handwriting of Benjamin Wood 

DEFENSE.
Edward Johnson  Discussion on the admission of the testimony of Johnson;
impeaching the testimony of H. Von Steinacker 
OsoAR Heinbichb  Impeaching the testimony of H. Von Steinacker 
H. K. Douglas  " «« *» *» ii 
CIPHER LETTER " NUMBER FIVE."
Discussion  On rejecting cipher letter "Number Five" 

ASSASSINATION ANB ATTENDING CIRCUMSTANCES.

Robert B. Jones  Olerk'at tbe Kirkwood House: Booth's card left
William A. Browning;  Identified the card left by J. Wilkes Booth   '
Charles Dawson  Identified the handwriting of Booth  
Thomas L. Gardiner  Sale of one-eyed horse to Booth  
Brook Stabler  ;  Of Howard's stable; kept Surratt's horses  !'.' 
William E. Cleaver  Kept stable; one-eyed horie sold to Arnold. 
James W. Pumphret  Keptfstable; hired horse to Booth on the Uth 
Peter Taltavul  Kept restaurant ; Booth and Herold there on "t"he"i4th 
Sergeant Dye  In front of theater on mght of the Mth.. . 
John E. Buckingham  Door-keeper at Ford's on night of the Uth  
John F. Slbiohmann  Assifltant property man ; at theater on night of t'he'mh*"*
Joseph Burroughs— ' Peanuts"  Held Booth's horse in the alley on night of 14th,..
Recalled  Booth's stable in rear of theater  
Mary Ann Turner  Livedin roar of theater; saw Booth and Spang'ler'on'utir'
Mary Jane Anderson  „ ,, " *' "
James L, Maddox  Property man at Ford's; rented stable for Booth
James P. Ferguson  At theater on night of assassination  
Jamee j. GiFFORD  Stage carpenter; present on night of tho Uth  ! 

TABLE OP CONTENTS.

VU

May 16.
May 15.
May 15.
May 20.
May 15.
May 18.
May 15.
May 16.
May 16.
May 18.
May 18.
May 15.
May 17.

May 17.
May 16.
May 16.
May 13.
May 15.
May 16.
May 20.
May 17.
May 17.
May 16.
May 17.
May 17.
May 17.
May 23.
May 20.
May 31.

May 27.
May 30.
May 30.
May 30.
May 30.
May 30.
May 30.
May 31.
May 31.

May 19.
May 30.
May 19.
May 19.
May 15.
May 15.
May 16.
May 22.
May 16.
May 16.
May 22.
May 20.
May 15.
May 18.
May 15.

May 31.
May 31.
May 30.
May 31.
June 9.
June 3.
May .31.
May 81.
May 31.
June 13.
June 2.
May 31.
June 2.
June 2.
June 2.
June 12.
May 30.
June 2.
June 2.
June 2.
June 3.
June 2.
Jane 2.
Jane 2.
June 2.

Captain Theo. MoQowan  Present at theater on night of the Hth 
Major H. R. Rathbonb  In President's box on the Hth; stabbed by Booth 
William Withers, Je  Leader of orchestra: onstage; struck at by Booth 
Joseph B. Stewart  At theater on the 14th; pursued Booth  ',[
Job SIMMS  On the stage on niffht of^tbo assassination  ]
Becalted  Fitted up President's box on afternoon of the Hth 
John Milks  On the stage on night of the assasslnatiou 
De. Robert K. Stone  Attended the President after the aHSaaslnatlon 
William T. Kent  Eound the pistol in the President's box  .'...,
Isaac Jaquette  Found the wooden bar in the President's box 
Judge A. B. Olin  Visited theater on the 16th; examined President's box, etc.
DAVin C. Reed  Saw John H. Surratt in Washington on the 14th 
J. F. OuYLE  Statement by Booth, said to have been left for publication in
the National Intelliottncer 

PURSUIT AND CAPTURE OF BOOTH AND HEROLD.

John Fletcher  Hired a horse to Herold ; went in pursuit 
Sergeant Silas T. Cobb  On duty at Navy Yard bridge; stopped Booth and Herold 
Polk Gardiner  Met Booth and Herold on tne night of the Mth 
John M. Lloyd  Mrs. Surratt's visits to Surrattsville; Booth and Herold
there on the night of the assassination 
Recalled.

Lieutenant Alexander Lovett  At Dr. Mudd's on 18th and 21st of April  ,
Lieutenant D. D. Dana  " " " ^' 
William Williams  " " " •* 
Simon Gavacan  " *' " "  ,
Joshua Lloyd  " " " " 
Willie S. Jett  Met Booth and Herold at the Rappahannock on the 24th..
EvERTON J. Conger  At Garrett's barn ; Booth's death ; capture of Herold  ,
Sergeant Boston Corbett  " " *^ " " " 
Captain Edward P. Dohebty  " " " '* *' "  ,
Surgeon-General J. K. Barnes  Identification of Booth's body 
C. D. Hess  Manager of Grover's Theater; Booth's inquiries  ,

DEFENSE OF DAVID E. HEROLD.
Captain Eli D. Edmonds  Herold in Washington on the 20th and 2l6t of February..
Francis S. Walsh  Character of Herold; employed him as clerk 
James Nokes  Character of Herold 
William H. Keilotz  Herold at home in February..., 
Emma Herold  Herold in Washington on the 15th and 19th Febi'uary 
Mrs. Mary Jenkins  Herold in Washington on the 18th February 
Mas. Elizabeth Potts  Herold in Washington on the 19th and 20th February 
Dr. Charles W. Davis  Character of Herold light and trifling 
Da. Samuel A. H. McKim  Character of Herold 

EDWARD SP ANGLER.
Jacob RiTTERSPAUGH  Lodged at the same boarding-bouse as Spangler..
Becalled  At theater on the Uth; first to pursue Booth 
William Eaton  ;  Arrested Spangler at his boardiufr-bouso 

Charles H. Rosch  Found rope in Spangler's carpet-bag..
John E. Buckingham  Door-keeper at Ford s Theater 

John F. Sleichmann  Assistant property man; at theater on the 14th 
Joseph Burroughs — "Peanuts "  Received Booth's horse from Spangler on tbe night of 14th..
Becalled  Saw Booth and Spangler on the night of Uth 
Mary Ann Turner  Saw Booth and Spangler on the night of Uth 
Mary Jane Anderson  Saw Booth and Spangler on the night of Uth 
James L. Maddox  Propertyman; rented stable for Booth 
Joseph B. Stewart  Present at the theater; pursued Booth; saw Spangler 
Joe Simms  On tlko stage on the night of the assassination 
Recalled  Fitted up the President's box with Spangler 
John Miles  On the stage on the night of the assassination 

DEFENSE OF EDWARD SPANGLER.
0. D. Hess  Manager of Grover's Theater ; Booth's inquiries 
H. Clay I^'ord  Treasurer at Ford's Theater; decorated President's box 
James K. Ford  Business manager of Ford's Theater; present when the
President's messenger engaged the box 
John T. Ford  Proprietor of Ford's Theater; Spangler's duties on the
night of the 14th; Booth's characteristics....- 
Becalled  Character of Edward Spangler 
Joseph S. Sesbford  Ticket-seller; no private boxes sold on the Uth 
William Withers, Jr  Saw Booth rush through the door from the stage 
Henry M. Jambs  Position of Spangler on the stage on the Uth 
J. L. Debonay  Saw Spangler at his ^ost at the time of assassination 
Becalled  Described Booth's exit from the stage 
William R. Smith  Saw Booth's exit; pursued by Mr. Stewart  ....
J P Ferguson  Saw Booth's exit; pursued by Mr. Stewart 
JAMES Lamb  ¦  Use of rope found in Spangler's bag 
Jacob Ritterspaugh  Spangler's remarks at the time of assassination 
James Lamb {recalled)  Ritterapau^'s version of Spangler's remarks 
Louis J. Carland  RespectingRitterspaugh and Spangler after the assassination
James J'. Gifford  Ritterspaugh's statement; use of Spangler's rope 
Thomas J. Raybold  The locks on the boxes; Booth's occupying box at tbe
theater; arrangemput or box on the Uth 
Becalled  Condition of the keepers on boxes 7 and 8 
Henry E. Msbbick  Engaging box No. 7 
James O'Brien  Usher at Ford's Theater  "•—;¦-¦ 
Joseph P, K. Plant  Examination of keepers on box,es 7 and 8 
G W. Bunker  Gimlet in Booth's trunk 
Charles A. Boigi  Boarded at the same house as Spangler 
John Goejitheb  Boarded with Spangler 

VllI

TABLE OF CONTENTS,

May 13.
May 15.
May 13.
May 18.
May 19.
May 18.
May 22.
May 17.
May 19.
May 19.
May 19.
May 19,
June 3.

May 25.
May 25.
June 13.
May 25.
May 26.
May 25.
May 26.
May 26.
May 30.
Juno 2.
June 13.
May 30.
June 7.
June 12,
June 2.
June 13.
June 7.
June 7-
June 5.
May 30.
June 7,
May 25.
June 9.
May 25.
May 25.
May 27.
June 3.
May 25.
May 25.
May 25.
May 26.
May 26.
May 26.
June 13.
June 13.
June 13.
June 13.
June 3.

June 7.
Jane 7.
Jane 7.
June 7.
June 7.
Jane 7.
June 7.
June 2,
June 2.
June 5.
June 5.
June 5.

May 13,
May 13.
May 15.
May 27.
May 17.
May 18.
May 17.
May 18.
May 18.
May 25.
May 18.
May 18.
May 17.
May 17.
June 3.
Jane 6.

MRS. MARY E. SURRATT,
John M. Llotd...„  Mrs. Surratt at Surrattsville on Hth and Uth March 
Becalled  '* " *• *• " 
LoDis J. Weighmann  rGeneral conspiracy; complicity of Mrs. Surratt, Booth,
Becalled  J John H. Surratt, Atzerodt, Mudd, Herold, Payne; visit to
Becalhd  (_ Canada after the assassination 
A. R. Reeves  Identified telegram from Booth to Welchmann 
Miss Honora Fitzpatrick  Booth, Payne, and Atzerodt at Mrs. Surratt's 
Mrs. Emma Ofputt  Mrs. Surratt at Surrattsville; J. M. Lloyd 
Major H. W. Smith  Arrest of Mrs. Surratt and family; Payne's arrest 
B. C. Morgan  Arrest of Payne ; search of Mrs. Surratt's house 
W. M. Wermerskirch  "¦ *' *' '* " " 
Lieutenant John W. Dempsey  Photographs of rel^cl chiefs ; Booth's portrait concealed 
Becalled  Identified the photograph of Booth 

DEFENSE OF MRS. MART E. SURRATT.
George Cottingham  Lloyd's statement after his arrest 
Becalled  Conversation with Mr. Aiken (counsel) as to Lloyd's confes
sion 
Mrs. Emma Offutt  Correction of testimony given for the prosecution 
George H. Calvert  Identified his business letter to Mrs. Surratt 
Becalled  " " *' " " 
Bennett F. Gwynn  Received from Mrs. Surratt a letter for Mr. Nothey 
Becalled  Identified the letter 
John Nothey  Owed Mrs. Surratt money on purchase of land 
Joseph T. Nott  Lloyd's bar-keeper; Lloyd in liquor on the Uth 
Becalled  Conversation with Smoot respecting John H. Surratt 
Andrew Kallenbach  At Lloyd's house when Lloyd was arrested 
J. Z. Jenkins  Mrs. Surratt's loyalty and kindness to Union soldiers 
Becalled  Respecting his own loyalty 
Richard Sweeney  Lloyd drinking with him on the Uth 
James Lubby  Lloyd very drunk on the 14th 
J. V. Piles  Respecting the loyalty of J. Z. Jenkins 
J. C. Thompson  " " '* *' 
Dr. J. H. Blanford  *' " " *' 
William P, Wood  '* ** " " 
Miss Anna E, Surratt  Booth, Atzerodt, Payne, at Mrs. Surratt's; owns photo
graphs 
Becalled  Owns card with the motto ^^ Sic semper tyrannis;" photo
graphs of rebel chiefs a gift from her father 
Miss Honora Fitzpatrick  Purchased photograph of Booth with Misa Surratt 
Becalled  Mrs. Sucratt's eye-sight defective 
Mas. Eliza Holahan  Wood CPayne), Port Tobacco (Atzerodt), and Booth at Mrs.
Surratt's house; Mrs. Surratt's eyesight defective 
George B. Woods  Photographs of rebel leaders for sale 
Augustus S. Howell  Interviews with Weichmann; journeys to Richmond 
Miss Anna Ward  Received letters from John H. Surratt; eyesight 
Rev. B. F. Wiget  Mrs. Surratt's general character and loyalty 
Rev. Francis E. Boyle  " " '* " 
Rev. Charles H. Stonestreet  '* " *' " 
Rev. Peter Lanihan  " " ** "
Rev. N, D. Young  ** " *' *' 
William L. Hoyle  " " '* *' 
John T. Hoxton  Character of Mrs. Surratt; J. Z. Jenkins; W. A.. Evans 
William W. Hoxton  Character of Mrs. Surratt; loyalty of J. Z.Jenkins 
Rachel Semus  Character of Mrs. Surratt; defective eyesight 
Henry Hawkins  Mrs. Surratt's kindness; feeding Government horses 
David C. Reed  John H. Surratt iu Washington on the Uth of April 
TESTIMONY IN REBUTTAL.
John Ryan  Character of Louis J. Weichmann  , 
Frank Stith  " " " 
James P. Young  *' " " 
P. T. Ranspord  *' ¦* •' 
John T. Holahan  Booth, Payne, Atzerodt at Mrs. Surratt's: went to Canada
with L. J. Weichmann to identify John H. Surratt 
James McDevitt  Accompanied L. J. Weichmann to Canada 
Andrew Kallenbach  Jenkins threatened if he testified against him  "
E. L. Smoot  Disloyalty of Jenkins; Joseph T. Nott said John H. Surratt
knew all about the murder 
A. V. RoBY  Disloyalty of J. Z. Jenkins  \\\
dorley b. roby  ^  " " *' 
William A.Evans  " " *'  "*
John L. Thompson  Disloyalty of Mrs, Surratt 
GEORGE A. ATZERODT.
Robert R. Jones  Atzerodt at Kirkwood House on the Uth April 
John Lee  Contents of Atzerodt'a room at the Kirkwood House.. 
Lyman S. Spbague  Went to Atzerodt's room with John Lee  ',' 
Colonel W. B. Nevins  Atzerodt inquired respecting Vice-President Johnson!! 
John Fletcher  Hired horse to Atzerodt on the Uth April  
Washington Briscoe  Desired to sleep with him on night of the 14th 
John Greenaw ALT.  Atzerodt at Penn. House on night of Uth....  ] 
James Walker  Atzerodt at Penn. House on night of Uth 
Lieutenant W. R. Kbim  Roomed with Atzerodt at the Penn. House 
John Caldwell  Loaned Atzerodt $10 on his pistol 
William Clendbnin  Saw Atzerodt's knife picked up 
Marshal James L. McPhail  Atzerodt told where he threw away his knife  
Hezekiah Metz  Atzerodt and the assassination of General Grant  
Sergeant L. W. Gemmill  Arrested Atzerodt at the house of Richter  ,  
Marcus P. Norton  Ataerodt and O'Laughlin with Booth at National Hotel 
Becalled  Conversation between Booth aad Atzerodt 

TABLE OF CONTENTS.

IX

May SO.
June 2.
iuneS. lay 30.
May 30.
June 3.
May 30.
May 31.
May 30.
May 30.
May 31.
May 30.
JuueS.J une 8.
May 30.

May 19.
May 19.
May 19.
May 19.
May 19.
May 26.
May 19.
May 22.
May 20.
May 20.
May 19.
May 19.
May 19.
May 19.
May 19.
May 19.
May 17.
May 18.

June 2.
June 2.
June 13.
June 3.
June 3.
June 3.
June 12.
June 12.

June 14.
Jane 14.
June 14.
Jano 14.

May 16.
May 25.
May 25.
May 25.
May 25.
May 25.
May 25.
May 25.
May 18.
June 6.
June 5.
May 20.
May 20.
May 19.
May 19
Jane 3.

DEFENSE OF GEORGE A. ATZEEODT.
Oaptain Fbank Monroe  Atzerodt iu his charge on board the monitor 
Discussion  On admitting Atzerodt's confession in his defense 
Matthew J. Pope  Atzorodt went to his stable to soli a horse 
J DUN H. Bare  Met Atzerodt at Pope's restaurant 
James Kelleher  Atzerodt hired a small bay mare on 14th April 
Samuel Smith..*  Bay mare returned to stable about 11 o'clock 
Leonard J. Farwell  At Mr. Johnson's room on night of l-ith 
Miss Jane Herold  Does not recognize articles found at Kirkwood House 
P. H. Dooley  Articles found at Kirkwood House 
Somerset Leaman  Atzerodt at house ot Metz on Sunday, 16th April 
James E. Leaman  Talk about assassination of Lincoln, Seward, and Grant..
Hartman BlCHTER  Atzerodt at his house from Sunday till Thursday 
Samuel McAllister  Identified Atzerodt's pistol; Atzerodt's cowardice 
Alexaneer Brawner  Atzerodt's notorious cowardice 
Louis B, Harkins  Atzerodt's good nature; lacking in courage 
Washington Briscoe  Atzerodt remarkable for his cowardice 

LEWIS PAYNE.
Mrs. Martha Murray  Payne at Herndon House up to April Hth 
William H. Bell  At Mr. Seward's house on night of Uth; identified Payne at
General Augur's head-quarters 
Recalled  Identified the clothes worn by Payne 
Sergeant Georqe F. Kobinson  Attacked in Secretary Seward's room ; struggle with Payne;
identified hat and revolver picked up in the bed-room 
Recalled  Identified Payne in the clothes worn on the I4tll 
Major Augustus H. Sewaro  Struggle with Payne in Mr. Seward's bed-room; Frederick
Seward wounded; identified Payne, and hat left by him 
Surgeon-General J. K. Barnes  •• Description of the wounds of Mr. Seward, and of Mr. Fred
erick Seward 
Dr. T. 8. Verdi  Saw Mr, Seward, Mr. Frederick Seward, Major ieward.
Sergeant Uobinson, and Mr. Hansell after Payne's attack...
Borert Nelson  Identified the knife found near Mr. Seward's house 
Dr. John Wilson  Identified the knife found by Robert Nelson 
Thomas Price  Identified blood-stained coat found near Washington 
Colonel H. H. Wells  Identified the clothing and boots taken from Payne 
Charles H. Rosch  Identified articles taken from Payne when arrested 
Spencer M. Clark  Discovered the ink-mark on the boots worn by Payne to be
J. W. Booth 
EnWARn Jordan  Found the ink-mark to be J. W. Booth 
Stephen Marsh  Had no doubt the name was J. W. Booth 
Lieutenant John E. Toffey  Found the one-eyed horse on morning of the 15th 
RecaUed  Identified the horse at the Government stables 
DEFENSE OF LEWIS PAYNE.
Miss Margaret Branson  Payne attentive to the sick after the battle of Gettysburg;
boarded at her mother's house ; discussion on introduction
of testimony showing Payne's insanity 
Margaret Kaighn  Payne's conduct at Mrs. Branson's 
Dr. Charles H. Nichols  Causes and indications of iusanityj moral and mental 
Dr. James 0. Hall  Examined Payne with regard to his insanity 
John B. Hubbard  Payne's conversation since his imprisonment 
¦John E. Roberts  Payne desired to die 
Colonel W. H. H. McCall  Payne's physical condition  "¦•;¦—,-..  ¦¦¦¦;¦¦:  ¦¦
Mrs. Lucy Aira Grant  Saw the affray in which Payne saved the Uves of Union sol
diers; knew him as Lieutenant Powell 
John Grant  Corroborated his wife's statement 

IN KEBUTTAL.
Surgeon-General J. K. Barnes  Examined Payne with reference to his insanity..
Dr. James C. Hall  " '' ,^ ^^
Dr. Basil Morris  ' ,, „
Assistant-Surgeon George L. Porter

SAMUEL A. MUDD.
Colonel H, H. Wells  Dr. Samuel A. Mudd's statement after his arrest 
Mary Simms  Lived at Dr. Mudd's; rebels hiding in woods........ 
ElzeeEglent  Threats of sending him to Richmond; rebels hiding 
SYLYESTEii Eglent  Threats of sending him and tour other slaves to Richmond to
build batteries  ¦ 
Melvina Washington  Dr. Mudd's talk of President Lincoln ; sheltering rebels 
Milo Simms  Sheltering rebels ; took charge of John Surratt s horse 
Rachel Spencer  Eebels in the nines ; fed by. Dr. Mudd...  ...^...... 
William MarshaIl  Conversation between Benjamin Gardiner and Dr. Mudd 
Daniel J. Thomas  President, Cabinet, etc., to be. killed.............  v-;—;,—
Becalled  Did not ask for certificate entitling him to the reward for the
arrest of Dr. Mudd  ;"";'V;  ; 
William A Evans  Saw Mudd in Washington on the 1st or 2d of March; saw
him entering Mrs. Surratt's house 
Tnma H Ward .  Heard of the assassination at Bryantown, at one or two
'¦' ¦ o'clock on the 15th ; Booth the assassin 
TTtiank BlOYOE  Saw Dr. Mudd in Bryantown on the afternoon of the 15th....
Mrs Eleanor Bloyoe  Saw Dr. Mudd and gentleman riding into Bryantown on the
15th ; assassination known there that afternoon 
Meb BKCicr Bribooe  Saw Dr. Mudd and strange gentleman on road to Bryan-
MEB. BECKY J5RIS00K  town ; gentleman returned: TOr. Mudd Went ou to village...
Marcub P Norton  At National Hotel on the 3,d March; Dr. Mudd entered his
room, inciuiring for Booth.., 

TABLE OP CONTENTS-

May 26.
May 27.
May 27.
May 27.
May 30.
May 27.
May 27.
May 27.
May 27.
May 20.
May 30.
June 3.
May 29.
May 26.
June 6.
June 9.
Juno 8.
June 27.
June 9.
June 9.
May 27.
June 6.
June 8.
June 8.
May 30.
June 9.
June 9.
June 9.
June 9.

May 26.

May 27.
May 29.
May 26.
May 26.
May 20.

June 5.
June 5.
June 5.
June 5.
June 5,
June 5.
June 6.
June 6.
June 9.

May 29.
June 6.
June 6.

May 29.
May 29.
May 30.
May 30.
May 29.

May 29.
May 27.

May 27.
June 7.
June 3.
June 3.

Junes.
June 3.
June 5.
June 5.
June 5.
Tune 5.
June 5.
May 30.
May 30.

DEFENSE OF DR. SAMUEL A. MUDD.
John 0. Thompson  Booth at Dr. Queen's, in Novemher, wanting to buy lands;
>, — _ „ introduced him to Dr. S. A. Mudd  ,• 
DR. William T. Bowman  Booth at Bryantown, wanting to buy land and horses...........
Jeremiah Dyer  Sheltered in the pines, inl861; reputation of J. /. Jenh-ins,
_ „ character of Dr. Mudd  - 
Becalled  Knew J. H. Surratt  •  vr"V ';i"'"
Becalled  Went to Richmond to avoid arrest; took the oath ot alle
giance on his return from Virginia 
Alvin j. Brook  Knew of persons in the pines in 1861  ••••y  n-:  ¦¦•.
Frank Washington  Saw no one in the woods last year ; character of Mary bimms ,
Mudd's treatment of his servants 
Baptist Washington  No one slept in the woods last year 
Mrs. Mary Jane Simms  Neither of the Gwynns in the woods last year 
Bennett F. Gwynn  Reason for hiding in the pines 
William A. Mudd  No one hiding in the woods last year  ¦  •,";.",v"
Charles Bloyce  Saw no rebel soldiers at Dr. Mudd's; what the colored lolks
think of Mary and Milo Simms 
John H. Downing  Conversation between Dr. Mudd and D.J. Thomas 
Dr. .John C. Thomas  Mental and physical condition of D. J. Thomas 
James W. Richards  Thomas asked for a certificate 
William J. Watson  Conversation about the certificate for Thomas 
John C. Holland  Received no letter from Thomas in reference to Dr. Mudd's
treasonable talk 
Richard Edward Skinner  Thomas's reputation for veracity; his loyalty 
John L. Turner  Thomas's reputation; reputation of Dr. Mudd 
Polk Deakins  Reputation of D. J. Thomas for veracity and loyalty 
Jeremiah T. Munb  ;  " " *' *' *' 
Lemuel L. Orme  " ** ** ** '* 
John H. Baden  " '* ** " *' 
Eli j. Watson  '* *' *' '• '* 
Joshua S. Naylor  '* *' *' ** *' 
John Waters  Reputation of Dr. Mudd 
Dakiel W. Hawkins  " " *' 
Joseph Waters  " " " 
Frank Ward  *' " " 
DR. MUDD IN WASHINGTON DECEMBER 23, 1864.
Jeremiah T. Mudd  In Washington with Dr. Mudd; his character; saw Booth
at church at Bryantown in November or December; Dis
cussion on the admission of testimony ; Dr. Mudd's loyalty.
Becalled  Identified Dr. Mudd's handwriting 
J. H. Montgomery  Mudd asked him to bring a stove trom Washington 
Francis Lucas  " " " ¦ " " 
Samuel McAllister  , Examined the Penn. House register for Dr. Mudd's name....
Julia Ann Bloyce  Never saw John H. Surratt or rebel soldiers at Dr. Mudd's;
character of Mary and Milo Simms 
DR. MUDD'S WHEREABOUTS FROM 1st TO 6th MARCH.
Fannie Mudd  Dr. Mudd at home; three men slept in the pines in 1861;
have seen none there since  ~ 
Mrs. Emily Mudd  Dr. Mudd attended his sick sister; never saw Surratt or
Confederate soldiers at Dr. Mudd's 
Betty Washington  Dr. Mudd at home; character of Mary Simms 
Frank Washington ...;  " " *' " " 
John F. Davis  ,  Dr. Mudd home on tbe 3d of March 
Thomas Davis  Dr. Mudd attended him in March 
Henry L. Mudd, Jr  Saw Dr. Mudd daily from 2d to 5th March; Dr. Mudd had no
carriage 
Dr. j. H. Blanford  Saw Dr. Mudd 5th March; Mudd's father's carriage  ..'...'.
Miss Mary Mudd  Dr. Mudd at home 1st to 5th ; never saw Confederate soldiers
at Dr. Mudd's place 
DR. MUDD IN WASHINGTON MARCH 23d.
Thomas L. Gardiner  Accompanied Dr. Mudd to Washington 
Dr. Charles Allen  Dr. Mudd spent the evening at his office 
Henry A. Clark  Dr. Mudd took tea with him; afterward called on Dr. Allen.*
AT GIESBOBO APRIL 11th.
Henry L. Mudd, Jr.,  Went with Dr. Mudd; ownership of Dr. Mudd's farm.
Robert F. Martin  At his house 23d March ; a^ain in April  
Becalled  '.  At his house on llth April; saw Dr. Mudd in Washineton
December 24  ^
Discussion  On Dr. Mudd's object in visiting Washington..! 
Dr. j. H. Blanford  With Dr. Mudd llth April  \\\\ 

178178

iso

DR. MUDD'S ABSENCE FROM HOME.
Thomas Davis  Dr. Mudd from home three nights since January 9th- two
strange men at Dr. Mudd's 15th April  *
Betty Washington..  Dr. Mudd absent only three nights smce Christinas'.!!!!!!!!!!!!
AT BRYANTOWN APRIL 15th AND 16th.
George Booz  Saw Dr, Mudd return in the afternoon 
Becalled  Saw no one with Dr. Mudd  ] 
Susan Stewart  SawGeorge Booz meet Dr. Mudd  !! 
Primus Johnson  Saw Dr. Mudd on his way to Bryantown;" maii" followed
him; man returned alone 
Leonard S. Rosy  Heard of assassination on Saturday afternoouyiearupci't'rom
Dr. George Mudd who the assassin was; reputation of
Thomas 
Dr. Joseph Blanford  Bryantown road as seen from Book's house ....! 
E D R. Bean  Mudd in his store on the 15th  
John Acton  Saw Dr. Mudd on his way to Bryantown followed'JDV'aman"
the man returned alone  '
Mabon L. McPhereon  Heard of assassination on Saturday ; reputation of Th'um-iH'
John McPherson  Heard of assassination on Saturday; reputation of Dr ftr'^n
Mudd, D. J. Thomas, and Dr. Samuel A. Mudd
Peter Trotter  Assassination rumors; reputation of Thomas, etc 
John I. Langley  Heard of assassination on Saturday from soldiers 
Marcellus Gardiner  Assassination known, but not the name of the assassin 
Discussion ,..,.  Dr. Mudd's declaration concerning the assassination 

TABLE OF CONTENTS.

XI

May 29.
Juno 9.
June 5.
June 9.
June 10.
June 6.
May 29.
Juno 9.
June 9.
June 10.
June 10.
June 7.
June 8.
JuuQ 6.
June 9.

June 8.
June 8.
June 12.
June 12.
June 12.
June 9.
June 9.

May 9.
May 22.
May 15.
May 15.
May IS.
May 18.
May 15.
May 15.
May 1^.
May 16.
May 16.
May 16.
Jane 3.

May 25.
May 25.
May 25.
June 12.
May 25.
May 25.
May 25.
May 25.
June 3.
May 26.

May 18.

May 25.
May 18.
May 18.
May 25.
May 18.
May 18.

May 31.
May 31.
May 31.
June 2.
May 31 .
June 7.
June 6.
June 7.
May 16.
June 8.

June 8.

Dr. George. D, Mudd..,.,....  Reputation of Dr. S. A. Mudd as a citizen and as a master;
his loyalty; reputation of D. J. Thomas 
Becalled  Dr. S. A. Mudd's Btatoments to him  .'""
Benjamin Gardiner  Saw Dr. Mudd at church on Sunday 
Discussion  ;  On the admission of Dr. Mudd's statements  !!!!!!
Becalled.,.,...  Dr. Mudd's statements about the assassination 
Daniel E. Monroe  Rumor that Edwin Booth was the assassin; reputation of
D. J. Thomas... 
John F. Davis  At Dr. Mudd's on Tuesday after assassination 
JouN F. Hardy  Officers at Dr. Mudd's on Friday 
Jane Hekold  Did not know Dr. Mudd 
Mrs. Mary E, Nelson  Never hoard Dr. Mudd's name mentioned  .'.', 
Rev. Charles H. Stonestuket  Dr. S. A. Mudd at college 
L. A. Gobrtght  Assassin not positively known on the 15th  .'.'.'!!!.!!!!!!!!!'
James Judson Jarbok....<  Did not know Dr. Mudd; never at Mrs. Surratt's house;
loyalty of witness; discussion, etc 
Henry Burden  Reputation of Marcus P. Norton  , 
D. W. Middleton  Mr. Norton in tbe Supreme Court 3d March 
Judge A, B. Oun...  Reputation of Marcus P.Norton  ; 
Agreement  Between the Judge Advocate and Mr, Ewing as to the tcsU-
moiiy of John F. Watson, John R. Richardson, Thomas B.
Smith 

TESTIMONY IN REBUTTAL.

John F. Hardy  Conversation with Dr. Mudd on Saturday evening..
Francis R. Farrell  Conversation with Dr. Mudd on Saturday evening,.
Jacob Shavor  .-  Reputation of Marcus P; Norton 
Willis Hamtston  " " " 
Hon. Horatio King  ;  '* ** '* 
William Wheeler  '* " '• 
Silas H. Hodges  " '* '* 

MICHAEL O'LAUGHLIN.
William Wallace  The arrest of Michael O'Laughlin 
Marshal James L. McPhail  O'Laughlin in the rebel service 
Mrs. Mary Van Tine  Intimacy between Booth, O'Laughlin, and Arnold 
Billy Williams  Correspondence between Booth, O'Laughlin, and Arnold 
John Hapman  Telegram from Booth to O'Laughlin 
Edward C, Stewart  Another dispatch from Booth to O'Laughlin 
Samuel Streett  Booth and O'Laughlin in confidential talk. 
Bernard T. Early  In Washington with O'Laughlin on the 13th and 14th of
April ; O'Laughlin went to see Booth 
James B. Henderson  O'Laughlin visited Booth on the 14th 
David Stanton  O'Laughlin at the bouse of Sec'y of War on night of I3th 
Major KiLBURN Knox  '* " " *' " " 
John C. Hatter  '* " " " " " 
Marcus P. Norton  Saw Atzerodt and O'Laughlin with Booth at National 
DEFENSE OP MICHAEL O'LAUGHLIN.
Bernard J. Early  Came to Washington with O'Laughlin on 13th and Hth 
Edward Murphy  " " /^ " " " 
Becalled  O'Laughlin going to surrender himself. 
James B. Henderson,.  With O'Laughlin on tbe 13th and 14th 
Daniel Louqhran  With O'Laughlin on the 13th 
George Grillet  »  " " " 
Henry E. Purdy  O'Laughlin at his house at time of assassination 
John H. Puller  O'Laughlin slept with him on ni^ht of assassination 
John R. Giles  O'Laughlin at Penn. House on night of Uth 
P. H. Maulsby  , Booth and O'Laughlin schoolmates; O'Laughlin surrendered
himself 

SAMUEL ARNOLD.
Eaton G. Horner  Arrest of Arnold; discussion on admission of Arnold's
statement with regard to arms; meeting of conspirators
to abduct the President 
Voltaire Randall  Contents of Arnold's carpet-sack 
Lieut. William H. Terry  Letter signed "Sam" found in Booth's trunk 
William McPhail  Identified the writing of the letter as Arnold's 
George R. Magee  Discussion on admission of testimony as to Arnold being in
the rebel service 
James L. McPhail  Identified Arnold's handwriting 
Littleton P. D. Newman  Arnold received suspicious money letter 
DEFENSE OF SAMUEL ARNOLD.
William S. Arnold  Whereabouts of Arnold March 2l8t to April 1st 
Frank Arnold  Arnold went to Fortress Monroe April 1st 
Jacob Smith  ,  Saw Arnold daily from 20th to 30th March 
Charles B. Hall  Arnold employed as book-keeper 
George Craig  At Mr. Wharton's store with Arnold 
Minnie Pole  Saw Arnold in Baltimore March 20th, 27th, and 2dth 
Eaton G. Horner  Arnold's confession at Fortress Monroe 
John W. Wharton  Employed Arnold as clerk at timo of his arremt 
Discussion  On the daily reading of thR record 
"  On Mr. Aiken's proposal to offer in evidence an affidavit of
John McCuUough, contradicting a statement made by
Louis J. Weichmann 
Mr. Ewing offered in evidence a copy of General Orders No. 26, defining the Department of Wash
ington  • 

208
211211
211-2U

zu
June 8.
June 8.
June 8.
June 12.
June 12.

June 12.
June 12.
June 12.
June 14.
June 30.

TABLE OP CONTENTS.

A telegraphic dispatch from John McCuUough offered in evidence by Mr. Ewing 
l-roclamation of the President, dated September 25, 1862, with accompanying certificate of the Secro-
tary of War, dated May 30, 1865, offered in evidence by the Judge Advocate 
A copy of General Orders No. 100, Adjutant-General's Office, Washington, April 24, 1863, offered in
evidence by the Judge Advocate   /  v-
Extract from the Journal of the Senate of the United 'states "of 13th February, 1861, showing the
election of Abraham Lincoln and Hannibal Hamlin as President and Yice-President ; and from
the Journal of 8th February, 1865, showing the election of Abraham Lincoln and Andrew Johnson
BKlOAniER-gENERAL E. D. TowNSENR— Abraham Lincoln acted as President and Hannibal Hamlu
as Vice-President of the United States for four years preceding March 4, 1865; Andrew Johnson
n _?-^ J *' Vice-President until the death of Abraham Lincoln  ii—.-j"j-\;f: 
Certifled copy of the oath of office of Andrew Johnson as President of the United States...................
Copy of the resolution of the Senate appointing William H. Seward Secretary of State of the united
States 
Copy of William H. Seward's commis'sVoii as Secretary'of Stat^^ United States 
Discussion on the charges against the accused 
Finding and sentence of David E. Heeolu 
'* George A. Atzerodt 
** Lewis Payne 
" Mrs. Mary E. Surratt 
' Michael O'Laughlin 
Edward Spangler 
" Samuel Arnold 
.., .. Samuel A. Mudd 
President's approval of the findings and sentences 
Modification of the sentences of Bludd, Spangler, Arnold, and O'Laughlin 
Application for Writ of Habeas Corpus 
Argument on Jurisdiction by Hon. Eeverdy Johnson 
" " by Hon. Thomas Ewing, jr 
Argument in defense of David E. Herold 
' " Edward Spangler 
'' Mrs. Mary E. Surratt  '. 
* George A. Atzerodt 
" Lewis Payne 
^, '* Dr. Samuel A. Mudd 
" Michael O'Lauoulin and Samuel Arnolu 
Argument by Hon. John A. Bingham 

PAOS 213
243243

244244
244214 I I
244247243248
248248248219249
249249250251264268276289
300308318333351

APPENDIX.
Opinion of the Attorney-General  ,
Instructions for the Government of the Armies of the United States.
Proclamation of the President, September 25, 1862 
Affidavit of Louis J. Weichmann 
Affidavit of Captain George W. Dntton 

403
410419
420421

ALPHABETICAL INDEX OF WITNESSES.

Aoton, John 
Allen, Dr. Charles  ,
Anderson, Mrs. Mary J 
Arnold, Frank 
Arnold, W. S  ,
Auaer, Nathan  ,
Baden, John H  ,  ,
Ball, William  ,
Barnes, Surgeon-General J. K..

Barr, John H 
Bartiey, Lieutenant Beuben..
Bates, Lewis F 
Bean, E. D. E 
Bell, William H 

Blanford, Dr. J. H.

Bloyce, Charles 
Bloyce, Frank 
Bloyce, Julia A 
Bloyce, Mrs. Eleanor.,
Boigi, Charles A 
Boor, George  ,

Bowman, Dr. William J..
Boyle, Rev. Francis B....
Branson, Margaret 
Brawner, Alexander 
Brenner, A 
Briscoe, Mrs. Becky 
Briscoe, Washington 

Brook, Albin J 
Browning, W. B 
Buckingham, John E..
Bunker, G. W 

Burden, Henry 
Burke, Colonel Martin.
Burroughs, Joseph 

Caldwell, John  ,
Calvert, George H.,

Campbell, Robert Anson. .
Cantlin, John 
Carland, Louis J 
Carter, Hosea B 
Chamberlayne, Lewis W..
Chester, S. K 
Clark, Henry A 
Clark, Spencer M 

FBOS. \ 75

346095
157167 6246
154155

176
176

57
177
145

70
73
46

53 7475
148

45
51 3852
44
159

ssr. 20$ 197
240 240 188

151

203

195180
200203 183192
112
201
201 178136160153

153
181

112
216

126
126

108

197

Cleaver, William E...
Clendenin, William..
Cobb, Sergeant S. T..
Conger, Everton J....
Conover, Sanford 

Corbett, Sergeant Boston.,
Cottingham, George 

Courtney, John C.
Coyle, John F 
Craig, George 
Crane, William L..
Dana, C. A 

Dana, Lieutenant David D..
Davis, Dr. Charles W 
Davis, John F 

Davis, Thomas....
tt it
Dawson, Charles..

Deakins, Polk..
Debonay, J. L.,

Dempsey, Lieutenant John W.,

Devenay, John 
Doherty, Captain E. P 
Dooley, F.H 
Douglass, H. K 
Downing, J. H  ,
Duell, Charles 
Dye, Sergeant Joseph M..
Dyer, Jeremiah 

Early, Bernard J..

Eastwood, Daniel S..
Eaton, William 

Eckert) Major T. T.

Edmonds, Captain Eli, U. S. N..
Edmunds, George F 
EdsoD, Henry G 
Eglent, EUee 
Eglent, Sylvester 
Evans, William A... 

Farrell, Francis R..

psoi. 71
148 84
91
28 30
31
94

47 83
47404188

42 71

124124 3895

42 72

224 6341984141
4752 965353
171171143 174
218

(xiii)

XIV

ALPHABETICAL INDEX OF WITNESSES.

Farwell, Leonard J 
Ferguson, James 
Ferguson, James P 
" "
Finegas, Henry 
Fitzpatrick, Miss Honora 
" II
" • II
Fletcher, John., 
Ford, H. Clay 
Ford, James B 
Ford, John T 
U II
Frazier, Edward 
Fuller, John H 
Gardiner, Benjamin W 
II II
Gardiner, Marcellus 
Gardiner, Polk 
Gardiner, Thomas L. 
II II  ¦
Gavacan, Simon 
Gemmill, Sergeant L. W 
Gifford, James J 
11 11
Giles, John R 
Gobright, L. A 
Goenther, John 
Grant, John 
Grant, Lieutenant-General U. S.
Grant, Mrs. Lucy Ann 
Graves, W. D 
Greenawalt, John 
Grillett, George 
Gwynn, Bennett F 
II II
II It
Hall, Charles B 
Hall, Frederick H 
Hall, Dr. James C 
II If
Hamilton, Erig.-Gen. Alex. J....
Hamiston, Willis 
Hapman, John 
Hardy, John F  ,
II (I 
Harkins, Louis B 
Hatter, John C 
Hawkins, Daniel W 
Hawkins, Henry 
Heinrichs, Oscar 
Henderson, J. B 
II u  ,
Herold, Emma 
Herold, Jane 
II « 
Hess, C. D 
Hodges, Silas H 
Holahan, John T 
Holahan, Mrs. Eliza 
Holland, John C 
Horner, Eaton G 
II II 
Howell, Augustus S 
Hoxton, John T 
Hoxton, WUUam W 
Hoyle, William L 
Hubbard, John B 

42 76
39
121

83
145

49

8571
89
149 77

3751
146

52
167 48
220223 218
227

225

221 139

234

DEI". 151

106

132
132

100102
104
231211
211205

196

109
231213 112166166

230 126126182
241
164

213 153
189
247 66
229 96
152
213

132187
241 133137
137 136 165

Hudspeth, Mrs. Mary 
Hutchinson, George B 
Hyams, Godfrey Joseph 
James, Henry M 
Jarboe, James J 
Jaquette, Isaac 
Jenkins, J. Z 
It II 
Jenkins, Mrs. Mary. 
Jett, Willie S 
Johnson, Edward 
Johnson, Primus 
Jones, Robert R 
Jones, Samuel P  •
Jordan, Edward 
Kaighn, Margaret 
Kallenbach, Andrew 
II IC
Kent, William T 
Kelleher, James 
Keilotz, William H 
Keim, Lieutenant W. R 
King, Horatio 
Knox, Major Kilburn 
Lamb, James 
It ti
Lanihan, Rev. P 
Langley, John T 
Latouche, John 
Leaman, James E 
Leaman, Somerset 
Lee, John 
Lloyd, John M 
It It
Lloyd, Joshua 
Loughran, Daniel 
Lovett, Lieutenant Alexander... ...
Lucas, Francis 
Lusby, James 
Maddox, James L 
Magee, George R 
Marsh, Salome 
Marsh, Stephen  ,
Marshall, William 
Martin, R. F 
It "...
Maulsby, P. H 
McAllister, Samuel 
II It
McCall, Colonel W.'h.'h.."".!!".!!!!".'.
McDevitt, James A 
McGowan, Captain Theodore 
McKim, Dr. S. A. H 
McPhail, James L 
It It
It It   '
McPhail, William  ."!!!!!".'!!!
McPherson, John  ,
McPherson, Mason L 
Memmert, Frederick 
Merrick, Henry E 
Merritt, James B 
" "
Metz, Hezekiah  ..,
Middleton, D. W 
Miles, John 
Monroe, Daniel E 
Monroe, Captain Fraiik, X!. S. N.V.
Montgomery, J. H.. 

3937
54

82

90

144 37
159

141 82

147
220
226

62

144 858790
87

75
236 57
159172

140 78
148
222
239236

58 3537
149 81

ALPHABETICAL INDEX OF WITNESSES.

XV

Montgomery, Richard 
It II
It II  ^^
Morgan, R. C 
Mudd, Fannie  ,. 
Mudd,' George D 
It It
Mudd, jr., H. L.!!!!!!!!!!!"!!!!!!"!!!!!!
It II
11 It
Mudd, Jeremiah T 
ti (f
It It
Mudd, Miss Mary 
Mudd, Mrs. Emily 
Mudd, William A 
Murphy, Edward 
It It
Murray, Mrs. Martha 
Naylor, Joshua S 
Nelson, Mrs. Mary E 
Nelson, Robert 
Nevins, Colonel W. B 
Newman, L. P. D..^ 
Nichols, Dr. Charles H 
Nokes, James 
Norris, Dr. Basil 
Norton, Marcus P 
ti It
U ti
tt It
Nothey, John 
Nott, Joseph X 
It tt
O'Brien, James B 
Offutt, Mrs. Emma 
tt It
Olin, Judge A. B 
ft ft 
Orme, Lemuel L 
Owen, Joshua T 
Piles, John V 
Plant, Joseph P. K 
Pole, Minnie 
Pope, Matthew J 
Porter, Assistant Surgeon George L.
Potts, Mrs. Elizaljeth 
Potts, John 
Price, Thomas 
Pumphrey, James W 
Purdy, Henry E 
Purdy, Robert 
Randall, Voltaire 
Ransford, P. T 
Eathbone, Major Henry R 
Raybold, Thomas J 
It If 
Reeves, A. R 
Reed, David C 
It II .„ 
Eice, Nathan 
Richards, James W 
Richter, Hartman 
Ripple, Lieutenant J. L. 
Eitterspaugh, Jacob 
(I ft 
It " 
Eoberts, John E 
Eobinson, Sergeant George F 

PROS. 242628
122

154

158144
239

167 149150177
227

121 82

48

168 48
158 72
43
235 139 78

120 83
48

629797

165

198
206210 195 197
198187 190
192 195
193183
229 229 189
213

161 96

126 126127
111 125
217 188
129111
241 151 96

231

109111

138185 153

107 166

Robinson, Sergeant George F 
Boby, A. V 
Roby, Dorley B  .'..
Roby, Leonard S 
Rohrer, William H 
Roach, Charles H 
It 11
Rosa, Erastus W  ,
Russell, Abram D 
Russell, James E 
Ryan, John 
Ryder, Rev. W. H 
Semus, Rachel 
Sessford, Joseph S 
Seward, Major Augustus H 
Shavor, Jacob 
Simms, Joe 
It It
Simms, Mary 
Simms, Milo 
Simms, Mrs. Mary Jane 
Simonds, Joseph H  ,
Skinner, Richard E 
Sleichmann, John F 
Smith, Jacob 
Smith, Major H. W 
Smith, Samuel 
Smith, William R 
Smoot, E. L 
Soul6, Jules 
Spencer, Rachel 
Sprague, Lyman S 
Stabler, Brooke 
Stanton, David 
Stewart, Edward C 
Stewart, Joseph B 
Stewart, Susan 
Stith, Frank 
Stone, Dr. Robert King 
Stonestreet, Rev. Charles H 
It It
Streett, Samuel 
Surratt, Miss Anna E 
II It
Sweeney, Charles 
Sweeney, Richard 
Sweerer, Benjamin 
Taltavul, Peter 
Taylor, Colonel Joseph H 
Terry, Lieutenant William H 
tt 11 
Thomas, Daniel J 
fi ft 
Thomas, Dr. John C 
Thompson, John C 
ft ft 
Thompson, John L 
Toffey, Lieutenant John J 
ft ft 
Townsend, Brig.-Gen. E. D., U. S. A.
It ft <'
Treat, Colonel R. B 
Trotter, Peter 
Turner, John L 
Turner, Mary Ann 
Van Tine, Mrs. Mary J 
Verdi, Dr. F. S 
Von Steinacker, H  ,
Walker, James 

PROS. 156
142142 2898
158 62
6447
188 47

156
219 80 81
170172 45 73
121

141 47
172144 71
226223 79
138 81

224

6059 72
41 41
236 173
174

143159 160 50
244 51

76
222 167 38
147

XVI

ALPHABETICAL INDEX OF WITNESSES.

Wall, W. L 
Wallace, William 
Walsh, Francis S 
Ward, Miss Anna....
Ward, Frank 
Ward, John H 
Washington, Baptist.
Washington, Betty....,
II ",...,
Washington, Frank...
" "
Washington, Melvina.
Waters, John 
Waters, Joseph 
Watson, Eli J 
Watson, WiUiam J....
Weichmann, Louis J..

PROS. 67
221

176

171

113
118120

135189
181
194
201 181
194
189
J89 188
186

Wells, Colonel H. H..

Wermerskirch, Captain W. M..
Wharton, John W 
Wheeler, WilUam E 

Wiget, Rev. B. F 
Wilcox, Daniel H 
Wilkes, George 
Williams, Billy 
Williams, William 
Wilson, Dr. John 
Withers, jr., William..

Wood, WilUam P...
Woods, George B...
Toung, James 
Young, James P....
Toung, Rev. N. D..

PROS. 158
168123 89
221 47 64
223 88
158 .79

61
139

vit. 241 13S

104
130133

136

mOOEEDINaS

OP A

MILITARY COMMISSION,
Convened at Washington, D. C, by virtue of the following Orders:

Executive Chamber, \
Washington City, May 1, 1865. J
Whereas, the Attorney-General of the
United States hath given his opinion:
That the persons implicated in the murder
of the late President, Abraham Lincoln, and
the attempted assassination of the Honorable
William H. Seward, Secretary of State, and
in an alleged conspiracy to assassinate other
officers of the Federal Government at Wash
ington City, and their aiders and abettors,
are subject to the jurisdiction of, and lawfully
triable before, a Military Commission ;
It is ordered: Ist. That the Assistant
Adjutant-General detail nine competent mili
tary officers to serve as a Commission for the
trial of said parties, and that the Judge
Advocate General proceed to prefer charges
against said parties for their alleged offenses,
and bring them to trial before said Military
Commission ; that said trial or trials be con
ducted by the said Judge Advocate General,
and as recorder thereof, in person, aided by
such Assistant and Special Judge Advocates
as he may designate; and that said trials be
conducted with all diligence consistent with
the ends of justice : the said Commission to
ait without regard to hours.
2d. That Brevet Major-General Hartranft
be assigned to duty as Special Provost Mar
shal General, for the purpose of said trial,
and attendance upon said Commission, and
the execution of its mandates.
3d. That the said Commission establish
8uch order or rules of proceeding as may
avoid unnecessary delay, and conduce to the
ends of public justice.
[Signed] ANDBEW JOHNSON.

War Department, Adj't-General's Office, \
Washington, May 6, 1865. J

Special Orders, No. 211.

EXTRACT.

4. A Military Commission is hereby ap
pointed to meet at Washington, District of
2

Columbia, on Monday, the 8th day of May,
1865, at 9 o'clock A. M., or as soon there
after as practicable, for the trial of David E.
Herold, George A. Atzerodt, Lewis Payne,
Michael O'Laughlin, Edward Spangler, Sam
uel Arnold, Mary E. Surratt, Samuel A.
Mudd, and such other prisoners as may be
brought before it, implicated in the murder
of the late President, Abraham Lincoln, and
the attempted assassination of the Honorable
William H. Seward, Secretary of State, and
in an alleged conspiracy to assassinate other
officers of the Federal Government at Wash
ington City, and their aiders and abettors.

DETAIL FOR THE OOUBT.

S. Vol-

S. Vol-
Xautz,

Major-General David Hunter, U.
unteers. Major-General Lewis Wallace, U.
unteers. Brevet Major-General August "V.
U. S. Volunteers.
' Brigadier-General Albion P. Howe, U. S.
Volunteers. Brigadier-General Robert S. Foster, U. S.
Volunteers. Brevet Brigadier-General Cyrus B. Com-
stock, U. S. Volunteers.
Brigadier-General T. M. Harris, U. S. Vol
unteers. Brevet Colonel Horace Porter, Aid-de-
Camp. Lieutenan1>Colonel David E. Clendenin,
Eighth Illinois Cavalry.
Brigadier-General Joseph Holt, Judge Ad
vocate General U. S. Army, is appointed the
Judge Advocate and Recorder of the Com
mission, to be aided by such Assistant or
Special Judge Advocates as he may desig
nate. The Commission will sit without regard to
hours. ^
By order'of the President of the United
States [Signed] W. A. NICHOLS;
Assistant Atfjutant-General. (17)

18

THB CONSPIRACY TRIAL.

OOUET-EOOM, WABHnraTOJT, J>. C. 1
May 9, 1865, 10 o'clock A. M. /
The Commission met pursuant to the fore
going Orders.
All the members present; ^Iso the Judge
Advocate General.
The Hon. John A. Bingham, and Brevet
Colonel H. L. Burnett, Judge Advocate, were
then introduced by the Judge Advocate
General as Assistant or Special Judge Advo
cates. The accused, David E. Herold, George
A. Atzerodt, Samuel Arnold, Lewis Payne,
Michael O'Laughlin, Edward Spangler, Mary
E. Surratt, and Samuel A. Mudd, were then
brought into court, and being asked whether
they desired to employ counsel, replied that
they did.
To affiard the accused opportunity to secure
counsel, the Commission adjourned to meet
on Wednesday, May 10, at 10 o'clock A. M.

CouRT-KooM, Washington, D. C, "l
May 10, 1865, 10 o'clock A. M. J
The Commission met pursuant to adjourn
ment. Present, all the members named in the fore
going Order; also present the Judge Advo
cate General, and Assistant Judge Advocates
Bingham and Burnett.
The Judge Advocate General then read the
following Special Order:
War Department, Anj'T-GENERAL's Office, "i
Washington, May 9, 1865. j
Special Orders, No. 216.
EXTRACT.
******** 91. Brevet Brigadier-General Cyrus B.
Comstock, U. S. Volunteers, and Brevet
Colonel Horace Porter, Aid-de-Camp, are here
by relieved from duty as members of the
Military Commission, appointed in Special
Orders No. 211, paragraph 4, dated "War
Department, Adjutant-General's Office, Wash
ington, May 6, 1865," and Brevet Brigadier-
General James A. Ekin, U. S. Volunteers,
and Brevet Colonel C. H. Tomkins, !!.¦ 8.
Army, are detailed in their places respectively.
The Commission will be composed as fol
lows: Major-General David Hunter, U. S. Volun
teers. Major-General Lewis Wallace, U. S. Volun
teers. Brevet Major-General August V. Kautz, U.
S. Volunteers.
Brigadier-General Albion P. Howe, U. S.
Volunteers. Brigadier-General Robert S. Foster, U. S.
Volunteera Brevet Brigadier-General James A. Ekin,
U. S. Volunteers.
Brigadier-General T, M. H^arris, XJ. S.
Volunteers. Brevet Colonel 0. H. Tomkins, U. S. Army.
Lieutenant-Colonel David R. Clendenin,
Eighth Illinois Cavalry,

Brigadier-General Joseph Holt, Judgw Ad
vocate and Recorder. -t •. j
By order of the-' President of ih« I nited
^'*'''' [Signed] E D. T0WNS15ND.
Assistant Adjutant-General
All the members named in the foregoing
order being present, the Commission pro
ceeded to the trial of David E. Herold, George
A. Atzerodt, Lewis Payne, Michael O'Laugh
lin, Edward Spangler, Samuel Arnold, Mary
E. Surratt, and Samuel A. Mudd, who were
brought into court, and having heard read
the foregoing orders, tbe accused were asked
if they had any objection to any member
named therein, to which all severally replied
they had none.
The members of the Commission were
then duly sworn by the Judge Advocate Gen
eral, in the presence of the accused.
The Judge Advocate General, and Assist
ant Judge Advocates, Hon. John A. Bingham
and Brevet Colonel H. L. Burnett, were then
duly sworn by the President of the Commis
sion, in the presence of the accused.
Benn Pitman, E. Sutton, D. F. Murphy,
R. R. Hitt, J. J. Murphy, and Edward V.
Murphy, were duly sworn by the Judge
Advocate General, in the presence of the ac
cused, as reporters to the Commission.
The accused were then severally arraigned
on the following Charge and Specification :
CHARGE AND SPECIFICATION
AGAINST
DAVll) E. HEROLD, GEORGE A.
ATZERODT, LEWIS PAYNE, MI-
CHAEL O'LAUGHLIN, EDWARD
SPANGLER, SAMUEL ARNOLD,
MARY E. SURRATT, AND SAM
UEL A. MUDD.
CHARGE. — For maliciously, urdawfully, and
traitorously, and in aid of the the existing
armed rebellion against the United States of
America, on or before the 6th day of March,
A. D. 1865, and on divers other days between
that day and the \bth day of April, A. D.
1865, combining, confederating, and conspiring
together with one John H. Surratt, John Wilhei
Booth, Jefferson Davis, George N. Sanders,
Beoerly Tucker, Jacob Thompson, William C.
Cleary, dement C. Clay, George Harper,
George Toung, and others unknown, to kiA
and murder, within the Military Department
of Washington, and within the fortified am)
intrenched lines thereof, Abraham Lincoln,
late, and at the time of said combining, con
federating, and conspiring. President of the
United States of America, and CommanderAnr
Chief of the Army and Navy thereof; Andrea
Johnson, now Vice-President of the United
States aforesaid; William H. Seward, Secre
tary of State of the United States aforesaid;

CHARGE AND SPliCIFICATION.

19

and Ulysses S. Grant, Lieutenant-General of
the Army of the United States aforesaid, then
in command of the Armies of the United
States, under the direction of the said Abra
ham Lincoln; and in pursuance of and in
prosecuting said malicious, unlawful, and
traitorous conspiracy aforesaid, and in aid of
said rebellion, afterward, to-wit, on the 14th day
of April, A. D. 1865, within the Military
Department of Washington aforesaid, and
within the fortified and intrenched lines of
said Military Department, together with said
John Wilkes Booth and John H. Surratt,
maliciously, unlawfully, and traitorously mur
dering the said Abraham Lincoln, then Presi
dent of the United States and Commander-in-
Chief of the Army and Navy of the United
States, as aforesaid; and maliciously, unlaw
fully, and traitorously assaulting, with intent
io kill and murder, the said William H. Sew
ard, then Secretary of State of the United
States, as aforesaid; and lying in wait with
intent maliciously, unlawfully, and traitorously
to kill and murder the said Andrew Johnson,
then being Vice-President of the United States ; .
and the said Ulysses S. Grant, then being
Lieutenant-General, and in command of the
Armies of the United States, as aforesaid.
Specification. — In this: that they, the
said David E. Herold, Edward Spangler,
Lewis Payne, Michael O'Laughlin, Samuel
Arnold, Mary E. Surratt, George A. Atzerodt,
and Samuel A. Mudd, together with the said
John H. Surratt and John Wilkes Booth, in
cited and encouraged thereunto by Jefferson
Davis, George N. Sanders, Beverly Tucker,
Jacob Thompson, William C. Cleary, Clem
ent C. Clay, George Harper, George Young,
and others unknown, citizens of the United
States aforesaid, and who were then engaged
in armed rebellion against the United States
of America, within the limits thereof, did, in
aid of said armed rebellion, on or before the
6th day of March, A. D. 1865, and on divers
other days and times between that day and
the 15th day of April, A. D. 1865, combine,
confederate, and conspire together, at Wash
ington City, within the Military Department
of Washington, and within the intrenched
fortifications and military lines of the United
States, there being, unlawfully, maliciously,
and traitorously to kill and murder Abraham
Lincoln, then President of the United States
aforesaid, and Commander-in-Chief of the
Army and Navy thereof; and unlawfully,
maliciously, and traitorously to kill and yiur-
der Andrew Johnson, now Vice-President of
the said United States, upon whom, on the
death of said Abraham Lincoln, after the 4th
day of March, A. D. 1865, the office of Presi
dent of the said United States, and Com
mander-in-Chief of the Army and Navy
thereof, would devolve; and to unlawfully,
maliciously, and traitorously kill and murder
Ulysses S. Grant, then Lieutenant-General,
and, under the direction of the said Abraham

Lincoln, in command of the Armies of the
United States, aforesaid; and unlawfully, ma
liciously, and traitorously to kill and murder
William H. Seward, then Secretary of State
of the United States aforesaid, whose duty it
was, by law, upon the death of said President
and Vice-President of the United States afore
said, to cause an election to be held for electr
ors of President of the United States: the
conspirators aforesaid designing and intend
ing, by the killing and murder of the said
Abraham Lincoln, Andrew Johnson, Ulyesea
S. Grant, and William H. Seward, as afore
said, to deprive the Army and Navy of the
said United States of a constitutional Com
mander-in-Chief; and to deprive the Armies
of the United States of their lav?ful com
mander; and to prevent a lawful election of
President and Vice-President of the United
States aforesaid; and by the means aforesaid
to aid and comfort the insurgents engaged in
armed rebellion against the said United States,
as aforesaid, and thereby to aid in the subver
sion and overthrow of the Constitution and
laws of the said United States.
And being so combined, confederated, and
conspiring together in the prosecution of said
unlawful and traitorous conspiracy, on the
night of the 14th day of April, A. D. 1865, at
the hour of about 10 o'clock and 15 minutes
P. M., at Ford's Theater, on Tenth Street, in
the City of Washington, and within the mili
tary department and military lines aforesaid,
John Wilkes Booth, one of the conspirators
aforesaid, in pursuance of said unlawful and
traitorous conspiracy, did, then and there, un
lawfully, maliciously, and traitorously, and
with intent to kill and murder the said Abra
ham Lincoln, discharge a pistol then held in
the hands of him, the said Booth, the same
being then loaded with powder and a leaden
ball, against and upon the left and posterior
side of the head of the said Abraham Lin
coln ; and did thereby, then and there, inflict
upon him, the said Abraham Lincoln, then
President of the said United States, and
Commander-in-Chief of the Army and Navy
thereof, a mortal wound, whereof, afterward,
to-wit, on the 15th day of April, A. D. 1865,
at Washington City aforesaid, the said Abra
ham Lincoln died; and thereby, then and
there, and in pursuance of said conspiracy,
the said defendants, and the said John Wilkes
Booth and John H. Surratt, did unlawfully,
traitorously, and maliciously, and with the
intent to aid the rebellion, as aforesaid, kill
and murder the said Abraham Lincoln, Pres
ident of the United States, as aforesaid.
And in further prosecution of the unlawful
and traitorous conspiracy aforesaid, and of
the murderous and traitorous intent of said
conspiracy, the said Edward Spangler, on
said 14th day of April, A. D. 1865, at about
the same hour of that day, as aforesaid,
within said military department and the mil
itary lines aforesaid, did aid and assist tho
said John Wilkes Booth to obtain entrance

20

THE CONSPIRACY TRIAL.

to the box in said theater, in which said
Abraham Lincoln was sitting at the time he
was assaulted and shot, as aforesaid, by John
Wilkes Booth; and also did, then and there,
Rid said Booth in barring and obstructing
the door of the box of said theater, so as to
hinder and prevent any assistance to or res
cue of the said Abraham Lincoln against the
murderous assault of the said John Wilkes
Booth; and did aid and abet him in making
his escape after the said Abraham Lincoln
had been murdered in manner aforesaid.
And in further prosecution of said unlaw
ful, murderous, and traitorous conspiracy, and
in pursuance thereof, and with the intent as
aforesaid, the said David E. Herold did, on
the night of the 14th of April, A. D. 1865,
within the military department and military
lines aforesaid, aid, abet, and assist tho said
John Wilkes Booth in the killing and mur
der of the said Abraham Lincoln, and did,
then and there, aid and abet and assist him,
the said John Wilkes Bootli, in attempting
to escape through the military lines afore
said, and did accompany and assist the said
John Wilkes Booth in attempting to conceal
himself and escape from justice, after killing
and murdering said Abraham Lincoln as
aforesaid. And in further prosecution of said unlaw
ful and traitorous conspiracy, and of the in
tent thereof, as aforesaid, the said Lewis
Payne did, on the same night of the 14th
day of April, A. D. 1865, about the same
hour of 10 o'clock and 15 minutes P. M., at
the City of Washington, and within the mil
itary department and the military lines afore
said, unlawfully and maliciously make an
assault upon the said William H. Seward,
Secretary of State, as aforesaid, in the dwell
ing-house and bed-chamber of him, the said
William H. Seward, and the said Payne did,
then and there, with a large knife held in
his hand, unlawfully, traitorously, and in
pursuance of said conspiracy, strike, stab,
cut, and attempt to kill and murder the said
William H. Seward, and did thereby,, then
and there, and with the intent aforesaid, with
said knife, inflict upon the face and throat of
the said William H. Seward divers grievous
wounds. And the said Lewis Payne, in fur
ther prosecution of said conspiracy, at the
game time and place last aforesaid, did at
tempt, with the knife aforesaid, and a pistol
held in his hand, to kill and murder Fred
erick W. Seward, Augustus H. Seward, Em-
rick W. Hansell, and George F. Robinson,
who were then striving to protect and rescue
the said William H. Seward from murder by
the said Lewis Payne, and did, then and there,
with said knife and pistol held in his hands,
inflict upon the head of said Frederick W.
Seward, and upon the persons of said Augustus
H. Seward, Emrick W. Hansell, and George
F. Eobinson, divers grievous and dangerous
wounds, with intent, then and there, to kill
and murder the said Frederick W. Seward,

sell,

Augustus H. Seward, Emrick W. Han
and George F. Robinson.
And in further prosecution of said conspir-
acy and its traitorous ^nd murderous designs
the said George A. Atzerodt did on the nigh
of the 14th of April, A. p. 1865, and about
the same hour of the night aforesaid, within
the military department and the military lines
aforesaid, lie in wait for Andrew Johnson,
then Vice-President of the United States
aforesaid, with the intent unlawfully and ma
liciously to kill and murder him, the said
Andrew Johnson. _
And in the further prosecution of the con
spiracy aforesaid, and of its murderous and
treasonable purposes aforesaid, on the nights
of the 13th and 14th of April, A. D. 1865, at
Washington City, and within the military de
partment and the military lines aforesaid, the
said Michael O'Laughlin did, then and there,
lie in wait for Ulysses S. Grant, then Lieuten
ant-General and Commander of the Armies
of the United States, as aforesaid, with in
tent, then and there, to kill and murder 'the
said Ulysses S. Grant.
And in further prosecution of said conspir
acy, the said Samuel Arnold did, within the
military department and the military lines
aforesaid, on or before the 6th day of March,
A. D. 1 865, and on divers other days and times
between that day and the 15th day of April,
A. D. 1865, combine, conspire with, and aid,
counsel, abet, comfort, and support, the said
John Wilkes Booth, Lewis Payne, George A.
Atzerodt, Michael O'Laughlin, and their con
federates iu said unlawful, murderous, and
traitorous conspiracy, and in the execution
thereof, as aforesaid.
And in further prosecution of said conspir
acy, Mary E. Surratt did, at Washington
City, and within the military department and
military lines aforesaid, on or before the 6tfa
day of March, A. D. 1865, and on divers
other days and times between that day and
the 20th day of April, A. D. 1865, receive,
entertain, harbor, and conceal, aid and assist
the said John Wilkes Booth, David B. Her
old, Lewis Payne, John H. Surratt, Michael
O'Laughlin, George A. Atzerodt, Samuel Ar
nold, and their confederates, with the knowl
edge of the murderous and traitorous conspir
acy aforesaid, and with intent to aid, abet, and
assist them in the execution thereof, and in
escaping from justice after the murder of the
said Abraham Lincoln, as aforesaid.
And in further prosecution of said con
spiracy, the said Samuel A. Mudd did, at,
Washington City, and within the military de
partment and military lines aforesaid, on or
before the 6th day of March, A. D. 1865, and
on divers other days and times between that
day and the 20th day of April, A. D. 1865,
advise, encourage, receive, entertain, harbor,-
and conceal, aid and assist the said Johni
Wilkes Booth, David E. Herold, Lewis Payne
John H. Surratt, Michael O'Laughlin Georae
A. Atzerodt, Mary E. Surratt, and Samuel'.

RULES OP PROCEEDING.

21

Arnold, and their confederates, with knowl
edge of the murderous and traitorous con
spiracy aforesaid, and with the intent to aid,
abet, and assist them in the execution thereof,
and in escaping from justice after the murder
of the said Abraham Lincoln, in pursuance
of said conspiracy in manner aforesaid.
By order of the President of the United
States. J. HOLT,
Judge Advocate General.
Charge and Specification indorsed :
" Copy of the within Charge and Specifica
tion delivered to David E. Herold, George A.
Atzerodt, Lewis Payne, Michael O'Laughlin,
Samuel Arnold, Mary E. Surratt, and Samuel
A. Mudd, on the 8th day of May, 1865.
[Signed] "J. F. HARTRANFT,
Brev. Maj.-Gen. and Spec. Prov. Mar. Gen."
To the Specification, all the accused severally
pleaded  ''Not Guilty.'''
To the Charge  ''Not Guilty."
The Commission then considered the rules
and regulations by which its proceedings
should be conducted, and after discussion
adopted the following :
RULES OF PROCEEDING
ADOPTED BY THE MILITARY COMMISSION
CONVENED PUBSUANT TO SPECIAL
ORDERS Nos. 211 AND 216.
1. The Commission will hold its sessions
in the following hours: Convene at 10 A. M.,
and sit until 1 P. M., and then take a recess
of one hour. Resume business at 2 P. M.
2. The prisoners will be allowed counsel,
who shall file evidence of having taken the
oath prescribed by act of Congress, or shall
take said oath before being permitted to ap
pear in the case.
3. The examination of witnesses shall be
conducted on the part of the Government by
one Judge Advocate, and by counsel on the
part of the prisoners.
4. The testimony shall be taken in short
hand by reporters, who shall first take an
oath to record the evidence faithfully and
truly, and not to communicate the same, or
any part thereof^ or any proceedings on the
trial, except by authority of the presiding
officer. 5-. A copy of the evidence taken each day
shall be furnished the Judge Advocate Gen
eral, and one copy to the counsel of the
prisoners. 6. No reporters but th« official reporters
shall be admitted to the court-room. But
the Judge Advocate General will furnish
daily, in his discretion, to the agent of the
Associated Press, a copy of such testimony and
proceedings as may be published, pending the
trial, without injury to the public and the ends
of justice. Al* other publication of the evi
dence and proceedings ia forbidden, and wiU

be dealt with as contempt of Court, on the
part of all persons or parties concerned in
making or procuring such publication.*
7. For the security of the prisoners and
witnesses, and to preserve order and decorum
in the trial and proceedings, the presiding
officer will furnish a pass to counsel, wit
nesses, officers, and such persons as may be
allowed to pass the guard, and be present at
the trial. No person will be allowed to pass
the guard without such pass, which, for
greater precaution, will be countersigned by
the Special Provost Marshal in attendance
upon the Court.
8. The argument of any motion will, unless
otherwise ordered by the Court, be limited to
five minutes by one Judge Advocate, and
counsel on behalf of the prisoners. Objec
tions to testimony will be noted on the record,
and decided upon argument, limited as above,
on motions. When the testimony is closed,
the case will be immediately summed up by
one Judge Advocate, at the discretion of the
Judge Advocate General, and be followed or
opened, if the Judge Advocate General elects,
by counsel for the prisoners, and the argument
shall be closed by one Judge Advocate.
9. The argument being closed, the Court
will immediately proceed duly to deliberat-e
and make its determination.
10. The Provost Marshal will have the
prisoners in attendance during tlie trial, and
be responsible for their security. Counsel
may have access to them in the presence, but
not in hearing, of a guard.
11. The counsel for the prisoners will im
mediately furnish the Judge Advocate Gen
eral with a list of the witnesses required for
defense, whose attendance will be procured
in the usual manner.
To allow further time for the accused ta
secure and communicate with counsel, the
Commission adjourned to meet on Thursday,
May llth, at 10 o'clock A. M.
Court-Room, Washington, D. O.j 1
May 11, 1866, 10 o'clock A. M. /
The Commission met pursuant to adjournr
ment. All the members present ; also the Judge
Advocate, the Assistant Judge Advocates, and
all the accused.
The record of preceding session was read
and approved.
The accused, Samuel A. Mudd, applied for
permission to introduce Frederick Stone, Esq.,,
and Thomas Ewing, jr., Esq., as his counsel.
The accused, Mary E. Surratt, applied
for permission to introduce Frederick Aiken,,
Esq., and John W. Clampitt, Esq., as her

'* The testimony of Richard Montgomery, Sanford Con
over, and James B. Merritt was, for prudential reasons,
taken in secret session. At the opening of tho session, oiij
May 13th, the Judge Advocate announced that the testi
mony hereafter to be introdnced might be given to the pub
lic -without impropriety or embarrassment to the Govern
ment, and that the President of the Commission would
grant permits for admission to reporters and others tat
an extent not to interfere with the proceedings of thft
Commission.

22

THE CONSPIRACY TRIAL.

counsel, which applications were granted;
and the aforesaid counsel, having first taken,
in open Court, th« oath prescribed by act of
Congress, approved July 2, 1862, accordingly
appeared. To allow further time for the accused to
secure the attendance of counsel, the Cora-
mission adjourned, to meet on Friday, Mav
12th, at 10 o'clock A. M.

Court-Room, Washington, D. C . ¦>
May 12, 1865, 10 o'clock, A. M. ;
The Commission met pursuant to adjourn
ment All the members present; also the Judge
Advocate, the Assistant .Judge Advocates, the
accused, and Messrs. Ewing, Stone, Aiken,
and Clampitt, counsel for the accused.
The proceedings were read and approved.
The accused, David E. Herold, applied
for permission to introduce Frederick Stone,
Esq., as his counsel.
The accused, Samuel Arnold, applied for
permission to introduce Thomas Ewing, jr.,
Esq., as his counsel; which applications were
granted, and the aforesaid counsel accordingly
appeared. The accused, George A. Atzerodt, applied
for permission to introduce William E. Doster,
Esq., as his counsel.
The accused, Michael O'Laughlin, applied
for permission to introduce Walter S. Cox,
Esq., as his counsel.
The accused. Lewis Payne, applied for
permission to introduce William E. Doster,
Esq., as his counsel.
"The accused, Edward Spangler, applied
for permission to introduce Thomas Ewing,
jr., Esq., as his counsel; which applications
were granted, and Messrs. Doster, and Cox,
having first taken, in open Court, the oath
prescribed by act of Congress, approved July
2, 1862, accordingly appeared.
The accused, Mary E. Surratt, applied
for permission tb introduce the Hon. Reverdy
Johnson as additional counsel for her,
A member of the Commission (General T.
M. Harris) objected to the admission of Mr.
Johnson as counsel before the Commission,
on the ground that he did not recognize the
moral obligation of an oath designed as a
test of loyalty, or to enforce the obligation of
loyalty to the Government of the United
States, referring to a printed letter, dated Bal
timore, October 7, 1864, upon " the constitu
tionality, legal and binding effect and bearing
of the oath prescribed by the late Convention
of our State, to be taken by the voters of the
State as the condition and qualification of the
right to vote upon the New Constitution."
The letter, published over the signature of
the Hon. Reverdy Johnson, pending the adop
tion of the New Constitution of Maryland.
contained the following passage:
"Because the Convention transcended its
power, as I am satisfied it has, that is no
reason why the people should submit. On

the contrary, it should lead them to adopt
the only course left to redress the wrong.
The taking of tbe oath under such circum-
stances, argues no unwillingness to surrender
their rights. It is indeed the only way in
which they can protect them, and no moral
injunction will be violated by such a course,
because the exaction of the oath was beyond
the authority of the Convention, and, as a
law, is therefore void."
Mr. Johnson. The Convention called to
frame a new Constitution for the State was
called under the authority of an act of the
Legislature of Maryland, and under that
alone. By that legislation, their proceedings
were to be submitted to the then legal voters
of the State. The Convention thought that
they were themselves authorized not only to
impose as an authority to vote what was not
imposed by the then existing Constitution
and laws, but to admit to vote those who
were prohibited from voting by such Con
stitution and laws; and I said, in common
with the whole bar of the State, (and with
what the bar throughout the Union would
have said if they had been consulted,) that
to that extent they had usurped the author
ity under which alone they were authorized
to meet, and that, so far, the proceeding was
a nullity. They had prescribed this oath;
and all that the opinion said, or was intended
to say, was that to take the oath voluntarily
was not a craven submission to usurped au
thority, but was necessary in order to enable
the citizen to protect his rights under the
then Constitution, and that there was no
moral harm in taking an oath which the
Convention bad no authority to impose.
The objection being then withdrawn, Mr.
Johnson accordingly appeared as counsel for
Mrs. Mary E. Surratt.
The accused, David E. Herold, George A.
Atzerodt, Lewis Payne, Michael O'Laughlin,
Edward Spangler, Samuel Arnold, Mary E.
Surratt, and Samuel A. Mudd, severally,
through their counsel, asked leave to with
draw for the time their plea of " Not Guilty"
heretofore filed, so that they may plead to the
jurisdiction of the Commission.
The applications were granted.
The accused then severally offered a plea
to the jurisdiction of the Commission as fol
lows :
 one of the accused, for plea,
says that this court has no jurisdiction in the
proceeding against him, because he says he is
not, and has not been, in the military service
of the United States.
And, for further plea, the said 
says that loyal civil courts, in which all the
offenses charged are triable, exist, and are in
full and free operation in all the places where
the several offenses charged are alleged to
have been committed.
And, for further plea, the said  - 
says that the court has no jurisdiction in the

JURISDICTION OF THB COMMISSION.

23

matter of the alleged conspiracy, so far as it is
charged to have been a conspira,cy to murder
Abraham Lincoln, late President of the United
States, and William H. Seward, Secretary of
State, because he says said alleged conspiracy,
and all acts alleged to have been done in the
formation and in the execution thereof, are
in the charges and specifications alleged to
have been committed in the City of Washing
ton, in which city are loyal civil courts, in full
operation, in which all said offenses charged
are triable.
And the said  , for further plea,
eays this Court has no jurisdiction in the
matter of the crime of murdering Abraham
Lincoln, late President of the United States,
and William H. Seward, Secretary of State,
because he says said crimes and acts done in
execution thereof are in the charges and
specifications alleged to have been committed
in the City of Washington, in which city are
loyal civil courts, in full operation, in which
said crimes are triable.
Signed on behalf of the accused by counsel.
The Judge Advocate then presented the
following replication:
Now come the United States, and for an

swer to the special plea by one of the defend
ants,  , pleaded to the jurisdiction
of the Commission in this case, say that this
Commission has jurisdiction in the premises
to try and determine the matters in the Charge
and Specification alleged and set forth against
the said defendant,  .
J. HOLT,
Judge Advocate General
The Court was then cleared for deliberation,
and on being re-opened, the Judge Advocate
announced that the pleas of the accused had
been overruled by the Commission.
The accused then severally made applica
tion for severance as follows :
 , one of the accused, asks that
he be tried separate from those who are
charged jointly with him, for the reason that
he believes his defense will be greatly preju
diced by a joint trial.
Signed by counsel on behalf of accused.
The Commission overruled the application
for a severance.
The accused then severally pleaded :
To the Specification  "Not Guilty''
To the Charge  ''Not Guilty."

TESTIMONY
RELATING TO THE GENERAL CONSPIRACY.

EiCHAED Montgomery.
Witness for the Prosecution. — May 12, 1865.
I visited Canada in the summer of ,1864,
and, excepting the time I have been going
backward and forward, have remained there
until about two weeks ago. I know George
N. Sanders, Jacob Thompson, Clement C.
Clay, Professor Holcomb, Beverly Tucker,
W. C. Cleary, and Harrington. I have fre
quently met these persons, since the summer
of 1864, at Niagara Falls, at Toronto, St.
Catherines, and at Montreal. Thompson
passed by several other names, one of which
was Carson. Clay passed by the name of
Hope, also Tracy, and another was T. E.
Lacy. In a conversatio^i I had with Jacob
Thompson, in the summer of 1864, he said
he had his friends (Confederates) all over the
Northern States, who were ready and willing
. to go any lengths to serve the cause of the
South; and he added that he could at any
time have the tyrant Lincoln, and any other
of his advisers that he chose, put out of his
way; he would have but to point out the
man that he considered in his way, and his
friends, as he termed them, would put him
out of it, and not let him know any thing
about it if necessary; and that they would
not consider it a crime when done for the
cause of the Confederacy.
Shortly after Mr. Thompson told me what
he was able to do, I repeated the conversa
tion to Mr. Clay, who said, "That is so; we
are all devoted to our cause, and ready to
go any lengths — to do any thing under the
Bun to serve our cause."
In January of this year, I saw Jacob
Thompson in Montreal several times, in one
of these conversations he said a proposition
had been made to him to rid the world of
the tyrant Lincoln, Stanton, Grant, and some
others. The men who had made the propo
sition, he said, he knew were bold, daring
men, and able to execute any thing they
would undertake, without regard to the cost.
(24)

He said he was in favor of the proposition,
but had determined to defer his answer until
he had consulted with his Government at
Richmond, and he was then only waiting
their approval. He added that he thought
it would be a blessing to the people, both
North and South, to have these men killed.
I have seen Lewis Payne, the prisoner at
the bar, in Canada. I saw him at the Falls
in the summer of 1864. I saw him again,
and had some words with him, at the Queen's
Hotel in Toronto. I had had an interview
with Mr. Thompson, and on leaving the room
I met this man Payne in the passage way,
talking with Mr. Clement C. Clay. Mr. Clay
stopped me, and held my hand, finishing his
conversation with Payne in an undertone,
and when he left me for a moment he said,
"Wait for me; I will return." He then
went and spoke to some other gentleman
who was entering Mr. Thompson's door, and
then came back and bade me good-by, ask
ing where he could see me in half an hour.
I told him, and made an appointment to
meet him. While Mr. Clay was away, I
spoke to this man Payne, and asked Inm
who he was. I commenced talking about
some of the topics usually spoken of in con
versation among these men. He rather hesi
tated about telling me who he was. He said,
"0, I am a Canadian;" by which I under
stood that I was not to question him further.
In about half an hour afterward I asked Mr.
Clay who this man Payne was, and he said,
" What did he say?" I told him that he said
he was a Canadian. Mr. Clay laughed and
said, "That is so; he is a Canadian; and,"
he added, "we trust him."
The term " Canadian " was a common ex
pression among the Confederates there, and
was applied to those who were in the habit
of visiting the States ; and I understood from
Mr. Clay s laugh that their intercourse wa«
of a confidential nature.
I have been in Canada since the assas
sination. A few days after, I met Beverly
Tucker at Montreal. He said a great deal

TESTIMONY OP RICHARD MONTGOMERY.

25

about the wrongs that the South had re
ceived at the hands of Mr. Lincoln, and that
he deserved his death, and it was a pity he
did not meet with it long ago. He said it
was too bad that the boys had not been
allowed to act when they wanted to. "The
boys" was an expression applied to the Con
federate soldiers and others in their employ,
who engaged in raids, and who were to as
sassinate the President
1 related a portion of the conversation I
had had with Mr. Thompson to Mr. W. C.
Cleary, who is a sort of confidential secretary
to Mr. Thompson, and he told me that
Booth was one of the parties to whom
Thompson had reference; and he said, in re
gard to the assassination, that it was too bad
that the whole work had not been done; by
which I understood him to mean that they
intended to assassinate a greater number than
they succeeded in killing. Cleary remarked,
when speaking of his regret that the whole
work had not been done, "They had better
look out; we have not done yet" And he
added that they would never be conquered —
would never give up.
Cleary said that Booth had been there, visit
ing Thompson, twice in the winter; he thought
the last time was in December. He had also
been there in the summer.
Thompson told me that Cleary was posted
upon all his affairs, and that if I sought him
(Thompson) at any time, and he was away, I
might state my business to Mr. Cleary, and
it would be all the same ; that I could have
perfect confidence in him, and that he was
a very close-mouthed man.
On my return to Canada, a few days after
the assassination, I found that those parties
supposed that they were suspected of the
assassination. They expected to be indicted
in Canada, for a violation of the neutrality
law, a number of days before they were in-
dieted, and they told me they were destroy
ing a great many of their papers. Tucker
and Cleary both told me they were destroy
ing their papers. Tucker said, in an inter
view I had with him after my return, that
it was too had they had not been allowed to
act when they wanted to.
[A paper containing a secret cipher, found among J.
Wilkes Booth's effects, introduced in evidence, was here
]liand:ed to the witness. ]
I am familiar with two of the secret ciphers
used by the Confederates ; this is one of them.
I saw this cipher in 1864, in Mr. Clay's
Jiouse — the private house in which I was
stopping at St Catherines.
During my stay in Canada I was in the
service of the United States Government,
seeking to acquire information in regard to
the plans and purposes of the rebels who
were assembled there. To do this most
effectually, I adopted the name of James
Phompson ; and leading them to suppose this
was my correct name, I adopted some other
name at any hotel at which I might he

stopping. I was intrusted with dispatches
from these Confederates to take to Rich-
mond. I carried some to Gordonsville, with
instructions to send them from there. I re
ceived a reply to these dispatches, which I
carried back to Canada, bringing them
through Washington, and making them
known to the United States Government I
took no dispatches from the rebel Govern
ment to their agents in Canada without first
delivering them to the authorities at Wash
ington. I received a dispatch at Gordonsville from
a gentleman who represented himself as
being in the rebel State Department, and
sent by their Secretary of State. This disf
patch I delivered to Mr. Thompson in Octo
ber. Thompson, Clay, Cleary, and others
represented themselves as being in the service
of the Confederate Government
I frequently heard the subject of raids upon
our frontier, and the burning of cities, spoken
of by Thompson, Clay, Cleary, Tucker, and
Sanders. Mr. Clement C. Clay was one ot
the prime movers in the matter before- tb©
raids were started. They received his direct
indorsement He represented himself to me
as being a sort of representative of their Wm;
Department at Richmond. The men I have
reference to, more especially Mr. Clay and
Mr. Thompson, represented that they were
acting under the sanction of their Govern
ment, and as having full power to act with
reference to that; that they had full power tO!
do any thing that they deeemed expedient and
for the benefit of their cause.
I was in Canada when arrangements were
made to flre the City of New York. I left
Canada to bring the news to Washington,
two days before the attempt was made. It
originated in Canada, and had the full sanc
tion of these men.
Before the St. Albans' raid I knew of itr;
I was not, however, aware of the precise point
aimed at, but I informed the Government at
Washington that these men were aboutsetting
out on a raid of that kind. I also informed
the Government of the intended raids upon
Buffalo and Rochester, and by that meana
prevented them. I heard Mr. Clay say, in
speaking about the funds for paying these-
raids, that he always had plenty of money
to pay for any thing that was worth paying
for. I know that they had funds deposited
in several different banks. They transacted
considerable business with one which is, I
think, called the Niagara District Bank; ii
was almost opposite to Mr. Clay's residence'
in St Catherines.
With respect to George N. Sander's posi
tion, Mr. Clay told me I had better not tell
him all the things I was bent upon, n-or ali
the things they intrusted to me; that he was
a very good man to do their dirty nifork.
Those were Mr. Clay's words. Hei ss^
Sanders was associated with men that th^
could not associato with; but that he \19M'

26

THE CONSPIRACY TRIAL.

very useful in that way — a very useful man
indeed. When Mr. Jacob Thompson spoke to me
of the assassination, in January of this year,
he said he was in favor of the proposition
that had been made to him to put the
President, Mr. Stanton, General Grant, and
others out of the way; but had deferred
giving his answer until he had consulted his
Government at Richmond, and that he was
only waiting their approval. I do not know,
of my own knowledge, that he received an
answer; my impression, from what Beverly
Tucker said, was that he had received their
answer and their approval, and that they had
been detained waiting for that
Cross-examined by Mr. Aiken.
I am originally from New York City. I
received from the Confederate Government,
for going to Gordonsville with those dis-
Batches, equivalent to $150, in greenbacks.
reported that fact to the War Department
at Washington, and applied it on my ex
pense account as having been received
from the United States Government On my
return from Gordonsville, I handed the
original dispatches over to the authorities
here. All those they selected to go ahead
I carried on; all those they did not, they
retained.

Recalled for the Prosecution. — June 12.
A paper -
dvocate. ]

[ A paper was here handed to the witness by tho Judge
Ad' That paper I received from Clement C.
Clay, jr., on the evening of the 1st or 2d of
November, 1864. I saw Mr. Clay write a
very considerable portion of it myself, and a
part of the letter was written with my own
pen. It was written in his house, in St
Catherines, Canada West, which, I believe, is
on Park Street I delivered a copy of that
letter to the Hon. C. A. Dana, Secretary of
War, here in Washington. I was instructed
to deliver the original to Mr. Benjamin, Sec
retary of State of the Confederate States, if I
could get to Richmond, and to tell him that
I was informed of the names that were to be
inserted in the blanks in the original letter.
There are two or three such blanks left for
names. There was no signature to the letter,
which was omitted principally for my safety,
and also that, in the event of its being seized,
it could not be used as evidence against Mr.
Clay. Both of these reasons were given to
me by Mr. Clay. Mr. Clay left Canada about
the Ist of January.
[ The original of the following letter was then read and
pat in evidence:] St. Cathebinzb, C. W., November 1, 1864.
Hon. J. P. Benjamin, Secretary of State, Rich
mond, Virginia:
Sir: You have doubtless learned, through
the press of the United States, of the raid on
St Albans, Vermont, by about twenty-five
Confederate soldiers — nearly all of them es

caped prisoners-led by Lieutenant Bennett
H Young; of their attempts and failure to
burn the town; and of their robbery of three
banks there of the aggregate amount of about
$200,000; of their arrest m Canada by United
States forces, their commitment, and the pend
ing preliminary trial. There are twelve or
foSrteen of the twenty-five who have been
arrested, and are now in prison at Montreal,
where the trial for commitment for extradi

tion 13 now progressing.

A letter from Hon.

J. J. N. Abbott, the leading counsel for the
prisoners, dated Montreal, 28th October, says
to me: "We (prisoners' counsel) all think it
quite clear that the facts will not justify a cona-
mitment for extradition under the law as it
stands, and we conceive the strength of our
position to consist in the documents we hold,
establishing the authority of the raiders from
the Confederate States Government But
there is no doubt that this authority might
be made more explicit than it is, in so far as
regards the. particular acts complained of, and
I presume the Confederate Government will
consider it to be their duty to recognize offi
cially the acts of Lieutenant Young and his
party, and will find means to convey such
recognition to the prisoners here, in such a
form as can be proven before our courts. If.
this were accompanied or followed by a de
mand upon our Government that the pris
oners be set at liberty, I think a good effect
would be produced, although probably the
application would not be received by the au
thorities. There will be at least a fortnight's
time, and probably more, expended in the ex
amination of witnesses; so that there will be
plenty of time for any thing that may be
thought advisable to be done in behalf of the
prisoners." I met Mr. Young at Halifax, on my way
here, in May last He showed me letters
from men whom I know, by reputation, to be
true friends of States' rights, and therefore
of Southern independence, vouching for his
integrity as a man, his piety as a Christian,
and his loyalty as a soldier of the South.
After satisfying me that his heart was with us
in our struggle, and that he had suffered im
prisonment for many months as a soldier of
the Confederate States army, from which he
had escaped, he developed his plans for retal
iating on the enemy some of the injuries and
outrages inflicted upon the South. I thought
them feasible and fully warranted by the law
of nations, and therefore recommended him
and his plans to the Secretary of War. He
was sent back by the Secretary of War, with
a commission as Second Lieutenant, to exe
cute his plans and purposes, but to report to
Hon.  and myself We prevented his
achieving or attempting what I am sure he
could have done, for reasons which may be
fully explained hereafter. Finally, disap
pointed in his original purpose and in all the
subsequent enterprises projected, he proposed
to return to the Confederate States, via Hali*.

TESTIMONY OP RICHARD MONTaOMBRY.

27

fax, but passing through the New England
States, and burning some towns, and robbing
them of whatever lie could convert to the use
tf the Confederate Government. This I ap
proved as justifiable retaliation. He at
tempted to burn the town of St Albans,
Vermont, and would have succeeded but for
the failure of the chemical preparations with
which he was armed. Believing the town
was already fired in several places, and must
be destroyed, he then robbed the banks of all
the funds he could find — amounting to more
than $200,000. That he was not prompted
by selfish or mercenary motives, and tliat he
did not intend to convert the funds taken to
his own use, but to that of the Confederate
States, I am as well satisfied as I am that he
is an honest man, a true soldier, and patriot;
and no one who knows him well will ques
tion his title to this character. He assured
me, before going on the raid, that his efforts
would be to destroy towns and farm houses,
not to plunder or rob; but he said if, after
firing a town, he saw he could take funds
from a bank, or any house, which might in
flict injury on the enemy and benefit his own
Government, he would do so. He added,
most emphatically, that whatever he took
should be turned over to the government or
its representatives in foreign lands. My in
structions to him, oft repeated, were "to
destroy whatever was valuable ; not to stop
to rob; but if, after firing a town, he could
seize and carry off money, or treasury or
bank notes, he might do so, upon condition
that they were delivered to the proper au
thorities of the Confederate States." That
they were not delivered according to his
promise and undertaking was owing, I am
sure, to the failure of his chemical compound
to flre the town, and to the capture of him
self and men on Canadian soil, where they
were surprised and overpowered by superior
numbers from the United States. On show
ing me his commission and his instructions
from Mr. Seddon — which were, of course,
vague and indefinite — he said he was au
thorized to do all the damage he could to the
enemy in the way of retaliation. If this be
true, it seems to me the Confederate States
Government should not hesitate to avow his
act was |ully authorized as warrantable re
taliation. If the Government do not assume
the responsibility of this raid, I think Lieu
tenant Y. and his men will be given up to
the United States authorities. If so, I fear the
exasperated and alarmed people of Vermont
will exert cruel and summary vengeance
upon them before they reach the prison at
St. Albans.
The sympathies of nine-tenths of the Can
adians are with Young and his men; a ma
jority of all the newspapers justify or excuse
his act as merely retaliatory, and they desire
only the authority of the Confederate States
Government for it to refuse their extradition.
The refusal of extradition is fully warranted

by the like course of the United States in
many cases, cited lately in the Canadian pa
pers, which I can not now repeal, but which
you can readily find. The refusal of extra
dition would have a salutary political influ
ence, it is thought, both in the British Prov
inces and in England. I can not now explain
why. I trust, therefore, for the sake not only
of the brave soldiers who attempted this dar
ing exploit, (which has caused a panic through
out the United States bordering on Canada,
and the organization of forces to resist, as
well as the arbitrary and tyrannous order of
General Dix touching the coming Presidential
election,) but, for the sake of our cause and
country, that the President will assume the
responsibility of the act of Lieutenant Bennett
H. Young, and that you will signify it in such
form as will entitle it to admission as evidence
in the pending trial.
I send the special messenger who brings
this, that your answer may be brought back
by him within ten days or by llth instant
The final judgment can and will be post
poned for the action of the Confederate States
Government as long as possible — certainly
for ten days.
I avail myself of this opportunity to bring
to your notice the case of Captain Charles H.
Cole, another escaped prisoner of General For
rest's command, who was taken about six
weeks since in the Michigan, (the Federal war
steamer on Lake Erie,) and is charged with
an attempt at piracy, (for attempting to cap
ture the vessel,) with being a spy, etc. The
truth is, that he projected and came very near
executing a plan for the capture of that ves
sel and the rescue of the prisoners on John
son's Island. He failed only because of the
return of the Captain (Carter) of the Michi
gan a day sooner than expected, and the be
trayal (in consequence of C.'s return) of the
entire plot The only plausible ground for
charging him with being a spy is that he
was in Sandusky, on Johnson's Island, and
in the Michigan frequently, without having
on his person the Confederate uniform, but
wearing the dress of a private citizen. Mr.
 and I have addressed a letter to the
commandant at Johnson's Island, protesting
against his being treated as a spy for the
following reasons: "That he was in the ter
ritory of the United States as a prisoner
against his consent; that he escaped by
changing his garb; that he had no Confed
erate uniform when he visited Sandusky,
Johnson's Island, and the Michigan ; that he
did not visit them as an emissary from the
Confederate States ; that whatever _ he con
ceived, he had not executed any thing; that
he had conveyed no information to his Gov
ernment, and did not contemplate conveying
any information to the Government" His
trial has been postponed. I know not why,
or to what time. His exchange should be pro
posed, and notice given that any punishment
inflicted on him will be retaliated upon an

28

THE CONSPIRACT TRIAL.

officer of equal rank. He is a very brave
and daring soldier and patriot, and deserves
the protection of his Government
I wrote to you on the 14th of June; to the
President, 25th July ; and to you again on the
llth August and 12th September last I
trust you received those letters. Mr. H.
(who, I see, has gotten into the Confederate
States) has doubtless explained things here.
I have never received a line from you or any
person, except my brother, at Richmond.
I have not changed the views expressed in
my former communications. All that a large
portion of the Northern people — especially in
the North-west — want to resist the oppres
sions of the despotism at Washington, is a
leader. They are ripe for resistance, and it
may come soon after the Presidential election.
At all events, it must come, if our armies are
not overcome and destroyed or dispersed.
No people of the Anglo-Saxon blood can
long endure the usurpations and tyrannies
of Lincoln. Democrats are more hated by
Northern Republicans than Southern rebels,
and will be as much outraged and persecuted
if Lincoln is re-elected. They must yield to
a cruel and disgraceful despotism or fight
They feel it and know it
I do not see that I can achieve any thing
by remaining longer in this Province, and,
unless instructed to stay, shall leave here by
20th instant for Halifax, and take my chances
for running the blockade. If I am to stay
till spring, I wish my wife to join me under
flag of truce, if possible. I am afraid to
risk a winter s residence in this latitude and
climate. I need not sign this. The bearer and the
person to whom it is addressesd can identify
me. But I see no reasons why your response
should not be signed and sealed, so as to
make it evidence, as suggested, in respect to
the St Albans' raid. A statement of pris
oners' counsel has been sent by way of Hal
ifax and Wilmington, but it may never reach
you, or not in time for the deliverance of the
prisoners. This is my chief reason for send
ing this by one I can trust Please reply
promptly, and start the messenger back as
soon as possible. He will explain the char
acter of his mission. Send under a seal that
can not be broken without being discovered.
I am respectfully, your most obedient
servant N. B. See the Secretary of War (Mr. Sed
don) touching Young's case.
Recalled for the Prosecution. — June 13.
The time occupied to go by rail from Mon
treal to Washington City, is between thirty-
six and thirty-eight hours. The train which
leaves Montreal at 3 o'clock in the afternoon
connects with trains for Washington, so that
a person leaving at 3 o'clock on the afternoon
of the 12th, would certainly reach Washing
ton before daylight on the morning of the 14th.

William H. Rohreb.
For the Prosecution. — June 13.
I am acquainted with Clement C. C'ay, jr.,
formeriy of Uie United States Senate. I have
had opportunities for becoming well acquam^
ed with his handwriting 1 have examined
the paper that has been testified to by Richard
Montgomery, and from memory and com
parison, I have no hesitation in pronouncing
it the writing of Clement C. Clay.
Sanford Conover.
For the Prosecution. — May 20.
I was born in New York, and educated
there. Since October last, I have resided in
Montreal, Canada. Previous to that, I re
sided a short time in Baltimore. Before that,
I was conscripted, from near Columbia, S. C.,,
into the rebel service, but was detailed as a
clerk, and served as such in the rebel War
Department at Richmond, for upward of six
months. Mr. James A. Seddon was at that
time the rebel Secretary of War. I " ran the
blockade" from Richmond, by walking most
of the way. I rode on the cars to Hanover
Junction, and from there walked up through
Snickersville to Charlestown, Va., and from
there to Harper's Ferry, and so on.
While iu Canada, I was intimately ac
quainted with George N. Sanders, Jacob
Thompson, Clement C. Clay, Dr. Blackburn,,
Beverly Tucker, William C. Cleary, Lewis
Castlemau, Rev. M. Cameron, Mr. Porterfield,
Captain Magruder, General Frost of Misr
souri. General Carroll of Tennessee, and a
number of others of less note. Of the ac
cused who visited these persons, I knew John
Wilkes Booth and John H. Surratt Booth
I saw but once. That was in the latter part
of October last I think I saw him with
Sanders, and also at Mr. Thompson's. I saw
him principally about the St Lawrence Hall.
He was strutting about there, dissipating,
playing billiards, etc.
Surratt I saw in Montreal somewhere
about the 6th or 7th of April last, on sever^
successive days. Surratt is a man of about
five feet, nine, ten, or eleven inches; a spare
man, light complexioned, and light hair. 1
saw him in Mr. Thompson's room ; and, from
the conversation, Surratt had just brought dis
patches from Richmond to Mr. Thompson,
to which their conversation referred. One
dispatch was from Mr. Benjamin, the rebel
Secretary of State, and there was also a lettet
I think in cipher, from Mr. Davis. I had.
previously had some conversation with Mr.
Thompson on the subject of the plot to as
sassinate Mr. Lincoln and his Cabinet, and I
had been invited by Mr. Thompson to par
ticipate in the enterprise.
_ On the occasion when Surratt brought the
dispatches, Thompson laid his hand on them
and said, " This makes the thing all right,"
referring to the assent of the rebel authori
ties. Mr. Lincoln, Mr. Johnson, the Secr^

TESTIMONY OP SANFORD CONOVER.

29

tary of War. the Seoretiry of State, Judge
Chase, and General Grant were to be victims
of this plot
Mr. 'Thompson said, on one of these oc
casions, that it would leave the Government
entirely without a head. That there was no
provision in the Constitution of the United
States by which, if these men were removed,
they could elect another President Mr.
Welles (Secretary of the Navy) was also
named; but Mr. Thompson said it was not
worth while to kill him.
My first interview with Mr. Thompson
was at his room, in the St. Lawrence Hall
Hotel, Montreal, in the early part of February
last I had called on him to make some
inquiry about the intended raid on Ogdensburg,
N. Y., which had failed because the United
States Government had received intimation
of the intentions of the rebels, and were pre
pared for it Mr. Thompson said, "We will
have to drop it for a time, but we will catch
them asleep yet" And he added, " There is
a better opportunity, a better chance to im
mortalize yourself and save your country."
I told him I was ready to do any thing to
save the country, and asked what was to be
done. He said, "Some of our boys are go
ing to play a grand joke on Abe and Andy."
This led to explanations, when he informed
me it was to kill them, or rather " to remove
them from office." He said it was only re
moving them from office; that the killing of
a tyrant was no murder. Thompson had
blank commissions, and he told me then,
or subsequently, that he had conferred one
on Booth; that he had been commiissioned,
and that everybody that engaged in the enter
prise would be commissioned; so that, if it
succeeded or failed, if they escaped to Canada,
they could not be successfully claimed under
the Extradition Treaty.
I know, of my own personal knowledge,
that the commission conferred on Bennett
H. Young, the St Albans' raider, was a
blank commission, filled up and conferred by
Mr. Clay. The name attached to it, when it
came into the hands of these men from
Richmond, was that of James A. Seddon,
Secretary of War. I saw this commission,
and I was asked by Mr. Thompson as to the
genuineness of Seddon's signature, having
Been a clerk in his department I testified
before Judge Smith, in the presence of Mr.
Thompson, Sanders, Young, and Mr. Abbot,
the counsel in the case, that the signature
of Seddon was genuine. _ I am well ac
quainted with the handwriting of James A.
Seddon, and know that the blank commis
sion was in his handwriting.
These commissions were left blank, except
the signature of Seddon, the rebel Secretary
of War; the names were filled up in Canada.
These commissions were conferred at pleasure
upon those who engaged in any enterprise,
and it was understood to be a cover, so that
in case they were detected they could claim

that they were rebel soldiers, and to be pro
tected and treated as prisoners of war. Booth,
I believe, was specially commissioned for the
assassination project The commission of
Bennett H. Young was of this sort, and was
filled up and conferred by Mr. Clay.
On the day before, or the very day of the
assassination, I had a conversation with Mr.
Wm. C. Cleary, at the St Lawrence Hotel,
in Montreal. We were speaking of the re
joicings in the States over the surrender of
Lee and the capture of Richmond, etc , and
Cleary remarked that they would put the
laugh on the other side of their mouth in a
day or two. The conspiracy was talked of
at that time about as commonly as one would
speak of the weather.
Before this I had a conversation with
George N. Sanders, who asked me if I knew
Booth very well. He expressed some appre
hension that Booth would make a fizzle of
it; that he was dissipated and reckless, and
he was afraid the whole thing would prove
a failure. While in Canada I was a correspondent
of the New York Tribune. I communicated
to the New York Tribune the contemplated
assassination of the President and the in
tended raid on Ogdensburg. The assassina
tion plot they declined to publish, because
they had been accused of publishing sensa
tion stories. The plot of the assassination I
communicated in March last, and also in
February, I think; certainly before the 4th
of March.
I saw John H. Surratt in Montreal, about
the 7th to the 9th of April, within four or
five days of the assassination of the Presi
dent From the whole of his conversation I
inferred that he was to take his part in the
conspiracy on the President and his Cabinet,
whatever that conspiracy might be. I do
not remember that I heard any thing said
about money or compensation, but it was al
ways well understood that there was plenty
of money where there was any thing to be
done. At the time of this conversation I
understood that John H. Surratt was just
from Richmond.
In the conversation I had with Mr.
Thompson in February, he said that killing
a tyrant in such a case was no murder. He
asked me if I had ever read the work enti
tled "Killing, no Murder," a letter addressed
by Col. Titus to Oliver Cromwell. Mr. Ham
lin was also to have been included had the
scheme been carried out before the 4th of
March. In the conversation in April, Mr.
Hamlin was omitted, and Vice-President
Johnson put in his place.
There was a proposition before these par
ties to destroy the Croton Dam, by which the
City of New York is supplied with water. It
was supposed it would not only damage the
manufactories, but distress the people gener
ally very much. Mr. Thompson remarked
that they would have plenty of fires, and

30

THE CONSPIRACY TRIAL.

the whole city would soon be destroyed by a
general confiagration, without sending any
Kennedy or anybody else there ; and, he
added, if they had thought of this scheme
before, they might haye saved some necks.
That was said a few weeks ago, when Mr.
Thompson, Sanders, Castleman, Gen. Carroll,
and myself were present
I heard a great deal of talk about the
attempted descent upon Chicago last year;
that they had some eight hundred men con
cealed there; their object, as stated by
Thompson and others, was the release of
the rebel prisoners at Camp Douglas.
Cross-examined by Mr. Doster.
I do not think I ever saw either of the
prisoners, Atzerodt or Payne, in Canada.
Cross-examined by Mr. Aiken.
I left Richmond to go North in December,
1863. I afterward, while in Washington,
became a correspondent of the New York
Tribune, and in October of last year I went
to Canada in that capacity. I received com
pensation for my services as correspondent to
the Tribune, but have never received any pay
from the Government, nor the promise of
any, nor have I ever received any pay from
the Confederate Government The parties in
Canada did not know that I corresponded
with the Tribune. I was freely admitted to
their meetings and enjoyed their confidence.
My reason for communicating the intended
assassination to the Tribune, and not directly
to the Government, was that I supposed that
the relations between the editor and propri
etor of the Tribune and the Government were
such, that they would lose no time in giving
them information on the subject In regard
to the conspiracy, as well as to some other
secrets of the rebels in Canada, I requested
Mr. Gay of the Tribune to give information
to the Government, and I believe he has for
merly done so.
I met John H. Surratt in Mr. Thompson's
room, and once in Mr. Sander's room. I
spoke to Surratt, asking him what changes
there were in Richmond, and how the place
looked. While iu Canada I went by the
name of James Watson Wallace.
I heard the burning of the City of New
York discussed by these parties, but I knew
no particulars until after the attempt had
been made. I never heard the name of Mary
E. Surratt mentioned in any one of these
conferences. Cross-examined by Mr. Cox
In February, I think it was, I heard the
project of capturing the President and carry
ing him off to Richmond talked of When
Mr. Thompson first suggested that I should
participate in the attempted assassination, I
asked if it would meet with the approbation
of the Government at Richmond; he said he
thought it would, but he would know in a

was
receii

few days. That was early in February. It
as in April, in Surratt's presence, that he
ferred to the dispatches that had been re-
.oived from Richmond, part of which were
n cipher, as having furnished the assent
Recalled for the Prosecution.— May 22.
The Dr. Blackburn to whom I referred in
my previous testimony, is the same that
packed a number of trunks with infected
clothing, for the purpose of introducing pes
tilence into the States. I have seen him
a.ssociating with Jacob Thompson, George
N. Sanders, his son, Lewis Sanders, Ex-Gov.
Westcott of Florida, Lewis Castleman, Wil
liam C. Cleary, Mr. Porterfield, Capt Magru
der, and a number of rebels of less note. Dr.
Blackburn was there known and represented
himself as an agent of the so-called Confed
erate Government, just as Jacob Thompson
was an agent In June last, I knew of Dr.
Blackburn's trying to employ Mr. John
Cameron, who lived in Montreal, to accom
pany him to Bermuda, for the purpose of
taking charge of goods infected with yellow
fever to bring to the cities of New York,
Philadelphia, and, I understood, Washington.
Cameron declined to go, being fearful of
taking the yellow fever and dying himself.
Compensation to the amount of several
thousand dollars, he told me, had been of
fered him, which I understood was to be
paid by Dr. Blackburn, or by other rebel
agents. Mr. Jacob Thompson, I understood,
was the moneyed agent; the others drew on
him for what money they required. There
were other parties in Montreal that Dr.
Blackburn employed, or endeavored to em
ploy, whom I knew by sight, but do not re
member their names. There were two med
ical students. I heard Blackburn say that
he went from Montreal to Bermuda, or some
of the West India Islands, about a year ago
last June, for the express purpose of attend
ing cases of yellow fever, and collecting in
fected clothing, and forwarding it to Neif
York, but for some reason the scheme failed.
On one occasion, I remember, Jacob Thomp
son, Mr. Cleary, and, I think, Lewis Sanders,
were present when Dr. Blackburn spoke of
his enterprise. They all favored it, and were
all very much interested in it
It was proposed to destroy the Croton Dam
at New York. Dr, Blackburn proposed to
poison the reservoirs, and made a calcula
tion of the amount of poisonous matter it
would require to impregnate the water so
far as to render an ordinary draught poison
ous and deadly. He had taken the capacity
of the reservoirs, and the amount of water
that was generally kept in them. Strvchnine,
arsenic, prussic acid, and a number of others
were spoken of as the poisons which he pro
posed to use. Blackburn regarded the
scheme as feasible; Mr. Thompson, how
ever, feared it would be impossible to collect
so large a quantity of poisonous matter

TESTIMONY OP SANFORD CONOVER.

81

without exciting suspicion, and leading to the
detection of the parties. Whether the scheme
has been entirely abandoned or not, I do not
know; but so far as the blowing up of the
dam is concerned it has not been. Jacob
Thompson fully approbated the enterprise,
and discussed it freely, together with Mr.
Lewis Sanders, Mr. Cleary, and Mr. M. A.
Pallen of Mississippi, who had been a sur
geon in the rebel army. The matter was
discussed in June last, and I have heard it
spoken of since. When Mr. Thompson
made the suggestion that the collection of so
large an amount of poison might attract at
tention to the operation, Mr. Pallen and others
thought it could be managed in Europe.
Pallen is a physician.
Among others that I knew in Toronto was
Dr. Stuart Robinson, a Doctor of Divinity,
a refugee from Kentucky, where he had been
editor of a journal, called the True Presby
terian. He was present when some of these
schemes were being discussed. I remember
he approved of the poisoning of the Croton
water. He said any thing under heaven, that
could be done would be justifiable under
the circumstances. He is, regarded as one of
the most intense of all the traitors who have
taken refuge in Canada; he is, I believe,
related to the Breckinridges of Kentucky.
Dr. Robinson appeared to be on intimate
terms with Jacob Thompson and Dr. Black
burn. I saw John H. Surratt in Canada three or
four days after the assassination of the
President I saw him in the street with a
Mr. Porterfield. I learned immediately after
that Surratt was suspected ; that officers were
on his track; and that he had decamped.
Mr. Porterfield is a Southern gentleman,
now a British subject, having been made so,
I believe, by a special act of the Canadian
Parliament He has been for some time a
broker or banker there. He is the agent
who took charge of the St Albans plunder
for the Ontario bank, when prematurely
given up by Judge Coursol. Porterfield is
on very intimate terms with Thompson and
Sanders. When Mr. Thompson received the dis
patches from Richmond in April assenting
to the assassination, there were present Mr.
Surratt, General Carroll of Tennessee, I think
Mr. Castleman, and I believe there were one
or two others in the room, sitting farther
back. General Carroll participated in the
conversation, and expressed himself as more
anxious that Mr. Johnson should be killed
than anybody else. He said that if the
damned prick-louse were not killed by some
body, he would kill him himself His_ ex
pression was a word of contempt for a tailor,
so I have always understood. At this inter
view it was distinctly said that the enter
prise of assassinating the President was fully
confirmed by the rebel authorities at Rich
mond.

Booth, whom I saw on one occasion in
conversation with Sanders and Thompson,
went by the nick-name of " Pet" I so heard
him called by Mr. Thompson, I think; by
Cleary, I am sure, and by others.
The firing of New York City was recog
nized among these parties as having been
performed by the authority of the rebel Gov
ernment, and was by the direction of Mr.
Thompson. I so learned from Mr. Thomp
son, or at least from conversation in his pres
ence. Thompson said Kennedy deserved to
be hanged, and he was devilish glad he had
been, because he was a stupid fellow, and a
bungler, and had managed things badly.
I have always, in my convictions and feel
ings, been loyal to the Government of the
United States, and escaped from the rebel
service the flrst moment I had opportunity.
I know, of my own personal knowledge, that
Jefferson Davis was the head of the so-called
Confederate States, and was called its Presi
dent, and acted as such, controlling its armies
and civil administration.
Recalled for the Prosecution. — June 27.
[The following was read by the Judge Advocate from a
volume published in Montreal, by John Lovell, St. Nich
olas Street, 1865, entitled " Tlie St. Albans Bald; or. In
vestigation into the Charges against Lieutenant Bennett
H. Young and Command for their Acts at St. Albans, Vt.,
on tho 10th of October, 180-1," at page 21-2: ]
^ James Watson Wallace, of Virginia, on his
oath, saith : I am a native of Virginia, one of
the Confederate States. I resided in Jeffer
son, in the said State. I left that State in Oc
tober. I know James A. Seddon was Secretary
of War last year. Being shown and having
examined the papers M, N, and 0, I say that,
from my knowledge of his handwriting, the
signatures to said papers are the genuine
signatures of the said James A. Seddon. I
have seen him upon several occasions write
and sign his name. He has signed docu
ments, and afterward handed them to me, in
my presence. I never was in the Confeder
ate army. I was commissioned as Major to
raise a battalion. I have seen a number of
the commissions issued by the Confederate
Government, and the commission of Lieu
tenant Young, marked "M," is in the usual
form of all commissions issued in the army,
which are always signed by the Secretary of
War. I never served ; I was incapacitated
by an accident, and being then kidnapped by
the Northerners.
I was in Richmond in September last I
then visited the War Department It was
then notorious that the war was to be carried
into New England in the same way that the
Northerners had done in Virginia. When I
was in Virginia, I lived in my own house
until I was burned out, and my family were
turned out by the Northern soldiers.
The counsel for the United States object
to the whole of this evidence as illegal,
irrelevant, and foreign to the issue, and conse
quently decline to cross-examine.
[Signed] J. WATSON WALLACE.

32

THE CONSPIRACY TRIAL.

[ The witness proceeded :]
That contains my testimony in that case,
and a great deal more that 1 did not give.
It is compounded of the testimony of myself
and of a James Wallace, who also was ex
amined in that case. There was also a
William Pope Wallace, who gave testimony
in that case, and I do not know but a fourth
Wallace. The testimony of James Wal
lace is included in that of James Watson
Wallace, the name under which I was there
known. The testimony I gave on that oc
casion was correctly reported in the Witness;
I think also in the Montreal Transcript. In
the Gazette, and I think in the Telegraph,
the report was the same as appears in that
book, which was, I believe, printed from type
set up in the Telegraph office.
[ The following, cut from a newspaper, was then read by
the Judge Advocate, and afterward offered in evidence : ]
James Watson Wallace, sworn : I reside
at present in this city; have been here since
last October; formerly resided in the Con
federate States. I know James A. Seddon ;
he occupied the position of Secretary of War.
I should say the signatures to the papers M,
N, 0, are those of the said Seddon. I have on
several occasions seen the signature of James
A. Seddon, and have seen him on several
occasions sign his name; he has signed docu
ments in my presence, and handed them to
me after signing. I never belonged to the
Confederate army, but have seen many com
missions issued by the Confederate Govern
ment The commission of Lieutenant Young,
marked M, is in the usual form. The army
commissions are always signed by the Secre
tary of War. I have never seen a commis
sion with the signature of the President or
with the seal of the Government The Con
federate States, at the time I left the country,
had no seal; one had been, devised, but had
not been prepared.
[ The witness continued : ]
That paragraph appeared in either the
Witness or the Transcript, from one of which
papers it is cut, and was published immedi
ately after the trial, and correctly reports
the testimony I gave on that occasion.
After giving my testimony here on the
20th and 22d of May, I left this city and re
turned to Canada, under instructions from
Judge Holt to procure a certified copy of the
evidence before the Court in the St Albans
case. I met Beverly Tucker, G. N. Sanders,
his son, Lewis Sanders, General Carroll of
Tennessee, M. A. Pallen of Mississippi, Ex-
Governor Westcott of Florida, and a number
of others. I had conversations with them,
especially with Beverly Tucker and G. N.
Sanders, in reference to events here in Wash
ington, connected with the assassination, and
the trial of the assassins. At that time they
had not the slightest suspicion that I had been
a witness before this Commission. They there
fore received me with great cordiality, and the
subject of the trial was very freely discussed.

Beverly Tucker made the remark, after diB-
ner-I dined with them— that tha,t scoundrel
Stanton, and that blood-thirsty villain Holt,
might protect themselves as long as they re
mained in office, and could protect themselves
by a guard, but that would not always be the
case, and, by the Eternal, he had a large ac
count to settle with them. Sanders never
made such vehement threats as I have heard
Tucker and others make. Cleary threatened
the officers of the Government for the execu
tion of Beall. He said that Beall would have
been pardoned if it had not been for Judge
Holt; but, hesaid," blood shall follow blood;"
and added, "We 'have not done with them
yet" He boasted of it, and reminded me,
just after the killing of President Lincoln,
of what he had said on a former occasion;
namely, that retributive justice would come.
He considered the killing of the President as
an act of retributive justice.
I had been in Canada at my last visit but
a short time when the parties of whom I
have testified knew of my presence. I was
not then aware that my testimony had been
published, or I should 'not have gone there.
While sitting in a saloon, one of the Cana
dian rebels came in, and, discovering my pres
ence, immediately reported it to the rest;
then there came in more than a dozen — San
ders, Tucker, Carroll, and O'Donnel, the
man who boasted of setting fire to houses
in New York, and others. They at once
accused me of betraying their secrets in be
coming a witness before this Commission.
Not knowing at the time that my testimony
had been published, I denied having testi
fied. They insisted that it was so, and that
they would not be satisfied unless I would
give them a letter stating that I had not tes
tified. I knew that it was only by doing
something of that kind that I could get
away from them. It was then arranged that
I should go down to my hotel, and it was
my intention, if I got out of their hands, to
leave the place at once. When we got op
posite the St Lawrence Hall they said, "We
will go up here," O'Donnel had a room at
the St Lawrence Hall. Just as I had en
tered his room, Beverly Tucker came in and
said that a mere letter would not be suffi
cient; that, having testified before the Com
mission under oath, I must make an affidar
vit under oath, to make my denial equally
strong. This, at first, I declined to do, when
a dozen of them assailed me in the most furi
ous manner, and O'Donnel, drawing from his
pocket a pistol, said if I would not consent,
I could not leave that room alive. I still de
clined for a time, when Sanders said to' me,
"Wallace, you see what kind of hands you
are in ; I hope you will not be foolish enough
to refuse," It was under these circumstances
that I consented.
Mr. Kerr, who defended the St, Albans raid
ers, was sent for to prepare the statement, when
we adjourned to the room of Ex-Governor

THE SUPPRESSED TESTIMONY.

33

Westcott I then again declined giving my
oath to any statement, and again pi.-^tols
were held to my head by one of Morgan's
guerrill.TS, I do not know his name, but I
know him well as a rebel soldier, O'Don
nel also presented his pistol at me, and as
sured me I must take the consequences if I
v/ould not do as they desired me, Tho affi
davit was read to me in Westoott's room ; I,
however, paid little or no attention to it, and
I there signed it, and went through the cere
mony of taking an oath. They also brought
some other man in, accompanying Mr, Kerr,
Kerr had no knowledge of the menaces
under which I signed the paper, Beverly
Tucker said, before Kerr came, that in order
to make my deposition of any value, it must
seem that I did it willingly, and that I
must not manifest any unwillingness to sign
it before Kerr; if I did, they said they would
follow me to hell.
When Kerr brought the paper for me to
sign, I did so without any remark; although
the statements in the body of the paper are
absolutely false. The following, which ap
peared in the Montreal Telegraph, and after
ward in the New York World, is a copy of
the paper I signed,
[ The paper was put in evidence, ]
THE SUPPRESSED TESTIMONY.
Sxnford Conover v. James W. Wallace — Affi
davits of the real Wallace — Five Hundred
DoUars Reward offered for the Arrest of
Conover — What Thompson said about a
Proposition to Destroy Waterworks in North
ern Cities — Irderesting Depositions.
[ From the Montreal Evening Telegraph, June 10, ]
To the Editor of the Evening Telegraph:
Sir: Please publish my affidavit now
handed you, and the advertisement subjoined,
I will obtain and furnish others for publica
tion hereafter, I will add that if President
Johnson will send me a safe conduct to go
to Washington and return here, I will pro
ceed thither and go before the Military Court
and make profert of myself, in order that they
may see whether or not I am the Sanford
Conover who swore as stated,
JAMES W, WALLACE.
Montreal, June 8, 1865.
Phovince or Caxaoa, Distkict of Montkeal.
James Watson Wallace, of the city and
district of Montreal, counselor at law, being
duly sworn upon the Holy Evangelists, doth
depose and say : I am the same James Wat
son Wallace who gave evidence on the sub
ject of the St Albans raid, which evidence
appears on page 212 of the printed report of
the said case. I am a native of the county
of Loudon, in the Commonwealth of Vir
ginia, I arrived in Montreal in. the month
of October last past I resided during a por
tion of last winter and spring m houses m
Craig Street and Monique Street, in the city
3

of Montreal, I have seen and examined the
report of what is called the suppressed evi
dence before tho Court-martial now being
holden at Washington City on Mistress Sur
ratt, P.iyne, and others; and I have looked
carefully through the report of the evidence
in the New York p:ipers of a person calling
himself Sanford Conover, who deposed to
the facts th.it while in Montreal he went by
the name of James Watson Wallace, and
gave evidence in the St Albans raid investi
gation; that the said Sanford Conover evi
dently personated me before the said Court-
martial; that I never gave any testimony
whatsoever before the said Courtrmartial at
Washington City; that I never had knowl
edge of John Wilkes Booth, except seeing
him upon the stage, and did not know he
was in Montreal until I saw it published,
after the murder of President Lincoln; that!
never was a correspondent of the New York
Tribune ; that I never went under the name
of Sanford Conover; that I never had any
confidential communication with George N.
Sanders, Beverly Tucker, Hon. Jacob Thomp
son, General Carroll of Tennessee, Dr.. M.
A. Pallen, or any of the others therein men
tioned; that my acquaintance with every
one of these gentleman was slight; and, in
fine, I have no hesitation in stating that the
evidence of the said Sanford Conover person
ating me is false, untrue, and unfounded in
fact, and is from beginning to end a tissue
of falsehoods,
I have made this deposition voluntarily
and in justice to my own character and name,
[Signed] J, WATSON WALLACE,
Sworn to before me, at Montreal, this
eighth day of June, 1865.
G. SMITH, J. P.
I, -Alfred Perry, of Montreal, do hereby
certify that I "was present when the said
James Watson Wallace gave the above dep
osition, and that he gave it of his own free
will; and I further declare he is the same
individual who gave evidence before the
Honorable Justice Smith in the case of the
St Albans raiders. ALFRED PERRY
Montreal, June 9.
Extract from suppressed testimony given
at Washington before the Military Commis
sion by Sanford Conover, alias J. Watson
Wallace, On the first two days of the pro
ceedings, as published in the New York pa
pers: Q, State whether you did testify on the
question of the genuineness of that signature
of Seddon ?
A. I did,
Q. In what court?
A, I testified before Judge  that the
signature was genuine,
Q, State to the Court whether you are ac
quainted and familiar with the handwriting

¦'84

THE CONSPIRACY TRIAL.

of James A. Seddon, the rebel Secretary of
War ?
A. Yes, sir.
Q, State to the Court, upon your oath
here, whether the signature to the blank
commission you saw was his genuine signa
ture or not?
A, It was his genuine signature,
Q, Did you go to Canada by the name of
Samuel Conover?
A, No, sir.
Q, What name did you go there by?
A. James Watson Wallace.
[The witness continued:]
Of Alfred Perry, the person named in the
paper, I know nothing, I never heard of
such a person.
[The Judge Advocate here read the following, which
was put in evidence:]
Province of Canada, Distbict or Montbeal.
William Hastings Kerr, of the city and
district of Montreal, esquire, advocate, being
duly sworn, doth depose and swear that he
knows James Watson Wallace, late of Vir
ginia, but now and for the last seven months
resident in the city of Montreal, counselor
at law ; that he, this deponent, was one of
the counsel engaged for the defense in the
affair of the investigation before the Hon.
Judge Smith into the St Albans raid; that
he was present in Court, and examined the
said James Watson Wallace while the said
investigation was going on, a report of whose
testimony appears at page 12 of the printed
case, published by John Lovell, of the said
city of Montreal; that this deponent has fre
quently seen the said James Watson Wal
lace on private business, and has acted as the
said James Watson Wallace's professional
adviser in Montreal; that this deponent yes
terday saw the said James Watson Wallace
in the said city of Montreal ; that he was
present while the said James Watson Wal
lace denied that he, the said James Watson
Wallace, was the person who, under the name
of Sanford Conover, gave, before the Militarj'
Commission or Court-martial- now and for
some time past assembled in Washington,
evidence which has since been published as
the suppressed evidence in the New York
papers — he, the said James Watson Wal
lace, then and there declaring that some per
son had personated him, the same James
Wat«on Wallace, and had given testimony
which, from beginning to end, was a tissue
of falsehoods ; that this deponent was present
while the statements and denials of the said
James Watson Wallace were reduced to wrif^
ing in his presence, and signed by the said
James Watson Wallace, and sworn to by him
before G. Smith, Esq., one of her Majesty's
justices of the peace ; that the said James
Watson Wallace then and there declared
that he made the said affidavit voluntarily,
and in order to clear himself from any
suspicion of being the Sanford Conover in

question. And this deponent saith tliat no
force or violence was used tovrard the said
James Watson Wallace, nor were any men
aces or threats made use of toward him by
any one, but he seemed to be anxious to
make the said affidavit, and to use all means
in his power to discover the person who had
so personated him, the said James Watson
Wallace, before the Military Commission;
and further this deponent saith not, and hath
signed. WILLIAM H. KERR.
Sworn before me at Montreal, this ninth
day of June, eighteen hundred and sixty-five,
JAS. SMITH, J. S. C.
Five hundred dollars reward will be
given for the arrest, so that I can bring to
punishment, in Canada, the infamous and
perjured scoundrel who recently personated
me under the name of Sanford Conover, and
deposed to a tissue of falsehoods before th«
Military Commission at Washington.
JAMES W. WALLACE.'
[The witness continued ;]
That paper and its preparation is part of
the action referred to, and was prepared
under the threat to which I have testified
I can not say positively that those parties
attempted to detain me in Canada ; I only
know that I was rescued by the United States
Government, through the interposition of
Major-General Dix.
Nathan Atjsee.
For the Prosecution. — June 27.
I reside in New York, and am acquainted
with Sanford Conover, who has just testified;
I have known him eight or ten years; his
character for integrity and usefulness is good,
as far as I know. I recently accompanied
him to Montreal, in Canada, and was present
at an interview which he had with Beverly
Tucker, George N. Sanders, and that clique
of rebel conspirators. After we went into
O'Donnel's room, at Montreal, Mr. Cameron
gave each of us a paper containing the evi
dence Mr. Conover gave here in Washington
before the Commission, when he denied it
They told him he must sign a written paper
to that effect, and if he did not, he would not
leave the room alive. O'Donnel said that he
would shoot him likg a dog if he did not
Mr. Conover was first going to his hotel to
write the paper ; at first they agreed to this,
but when they got as far as St Lawrence
Hall, they made up their minds they would
not let him do this himself, and when they
went up stairs, at the St Lawrence Hall, they
would not allow me to go up. There were,
I think, twelve or fifteen of the conspira
tors together ; among them, Sanders, Tucker,
O'Donnel, Gen. Carroll, Pallen, and Cameron.
They all accompanied him for the purpose
of preventing his escape, and obliging him to
do what they required.

TESTIMONY OP JAMES B. MERRITT.

36

James B. Merritt.
For the Prosecution. — May 13.
I was born in Canada, while my parents
were on a visit there from their home, Oneida
county, New York. I am a physician, and
have resided for about a year in Canada;
part of the time at Windsor, and part at
North Dumfries, Waterloo county.
In October or November last, I met at
Toronto, George Young, formerly of Mor
gan's command ; a man named Ford, also
from Kentucky ; and another named Graves,
from Louisville. Young asked me if I had
seen Colonel Steele before leaving Windsor.
Steele was a rebel, and I understood had
been in the rebel service. He asked me if
Colonel Steele had said any thing to me in re
lation to the Presidential election. I told him
he had not; he then said, "We have some
thing on the tapis of much more importance
than any raids we have made or can make."
He said it was determined that Old Abe
should never be inaugurated ; that, I believe,
was his expression. They had plenty of
friends in Washington, he said ; and, speak
ing of Mr. Lincoln, he called him a "damned
old tyrant." I was afterward introduced to
George N. Sanders by Colonel Steele. I asked
Steele w,hat was going to be done, or how he
liked the prospects of the Presidential elec
tion, and he replied, " The damned old tyrant
never will serve another term if he is elected."
Mr. Sanders then said he (Lincoln) "would
keep himself mighty close, if he did serve an
other term."
About the middle of February, a meeting of
rebels was held in Montreal, to which I was in
vited by Captain Scott I should think there
were ten or fifteen persons present; among
them were Sanders, Colonel Steele, Captain
Scott, George Young, Byron Hill, Caldwell,
Ford, Kirk, Benedict, and myself. At that
meeting a letter was read by Sanders, which
he said he had received from "the Presi
dent of our Confederacy," meaning Jefferson
Davis, the substance of which was that if the
people in Canada and the Southerners in the
States were willing to submit to be governed
by such a tyrant as Lincoln, he did not wish
to recognize them as friends or associates;
and he expressed his approbation of what
ever measures they might take to accomplish
this object The letter was read openly in
the meeting by Sanders, after which it was
handed to those present, and read by them,
one after another. Colonel Steele, Young,
and Hill, and I think Captain Scott, read it
I did not hear any objection raised.
At that meeting Sanders named a number
of persons who were ready and willing, as
he said, to engage in the undertaking to re
move the President, Vice-President, the Cab
inet, and some of the leading Generals ; and
that there was any amount of money to ac
complish the purpose, meaning the assas
sination. Booth's name was mentioned, as

also were the names of George Harper,
Charles Caldwell, one Randall, and Harri
son, by which name Surratt was known, and
whom I saw in Toronto, Another person, I
think, spoken of by Sanders, was one they
called " Plug Tobacco," or Port Tobacco,
I think I saw the prisoner, D, E. Herold, in
Canada, Sanders said that Bootli was heart
and soul in this project of assassination, and
felt as much as any person could feel, for
the reason that he was, a cousin to Beall
that was hung in New York, He said that
if they could dispose of Mr, Lincoln, it would
be an easy matter to dispose of Mr. .John
son ; he was such a drunken sot, it would
be an easy matter to dispose of him in some
of his drunken revelries. When Sanders
read the letter, he also spoke of Mr, Seward.
I inferred that it was partially the language
of the letter. It was, I think, that if the
President, Vice-President, and Cabinet, or
Mr. Seward could be disposed of, it would
be satisfying the people of the North; that
they (the Southerners) had friends in the
North, and that peace could be obtained on
better terms than could be otherwise ob
tained; that they (the rebels) had endeavored
to bring about the war between the United
States and England, and that Mr, Seward,
through his energy and sagacity, had
thwarted all their efforts. This was sug
gested as one of the reasons for removing
him. On the evening of Wednesday, the 5th of
April last, I was in Toronto, and when on
my way to the theater, I met Harper and
Ford. They asked me to go with them and
spend the evening ; I declined, as I was going
to the theater. The next morning I was
around by the Queen's Hotel, where I saw
Harper, Caldwell, Randall, Charles Holt,
and a man called "Texas." Harper said
they were going to the States, and were
going to kick up the damnedest row that had
ever been heard of An hour or two after
ward I met Harper, and he said if 1 did
not hear of the death of Old Abe, and of the
Vice-President, and of General Dix, in less
than ten days, I might put him down as a
damned fool. This was the 6th of April,
Booth, I think, was mentioned as being in
Washington, They said they had plenty of
friends in Washington, and that there were
some fifteen or twenty going there. On Sat
urday, the 8th of April, I was at Gait, five
miles from which place Harper's mother
lives, and I ascertained there that Harper
and Caldwell had stopped there and had
started for the States.
When I found that they had left for
Washington, probably for • the purpose of
assassinating the President, I went to Squire
Davidson, a justice of the peace, to give in
formation and have them stopped. He said
that the thing was too ridiculously or su
premely absurd to take any notice of; it
would only appear foolish to give such inform-

36

THE CONSPIRACY TRIAL.

ation and cause arrests to be made on such
grounds; it was so inconsistent that no person
would believe it, and he declined to issue any
process. I was in Gait again on Friday after the
assassination, and I found from Mr. Ford
that Harper had been home on the day be
fore, and had started to go back to the States
again. Some time last fall, one Colonel Ashly, a
rebel sympathizer, and a broker at Windsor,
handed me a letter which he had ^-eceived
from Jacob Thompson, asking him for funds
to enable rebels to pay their expenses in going
to the States to make raids, as I understood;
and, referring to the letter, he asked me to
contribute. In February last I had a conversation with
Mr. Clement C, Clay in Toronto, I spoke to
him about the letter from Mr. Jefferson Davis
that Sanders had exhibited in Montreal; he
seemed to understand the nature and charac
ter of the letter perfectly, I asked him what
he thought about it He said he thought the
end would justify the means; that was his
expression, Surratt was once pointed out to me, in Feb
ruary, in Toronto; he was pointed out to me
by Scott, I think, while he and Ford and
myself were standing on the sidewalk,
I saw Booth in Canada two or three times;
I sat at the table with him once at the St
Lawrence; Sanders, Scott, and Steele were at
the same table, Sanders conversed with
Booth, and we all drank wine at Mr, Sanders's
expense, I have seen Booth a good many
times on the stage, and know him very well
by sight
[The witnessLheing here shown a photograph, identifiad
it as that of J. V/ilkes Booth. ]
I received a letter from General James B.
Fry, the Provost Marshal General, stating
that he had received a letter written by Squire
Davidson, giving information of my visit to
him for the purpose of having Harper and
(Js-ldwell arrested,
[ The following letter was then read, and put in evi
dence ; ] WaB DEPifrETMEXT, ")
Pbovost Mabshal General's Bureau, >
Washington, D, 0., April 2(J, l»(i6. J
Dr. J. B. Merritt, Ayr, Canada West :
Sir: I have been informed that you pos
sess information connected with a plot to
assassinate the President of the ynited States
and other prominent men of this Government
The bearer has been sent to present this let
ter to you, and to accompany you to this
city, if you will come. The Secretary of War
authorizes me to pledge you protection and
security, and to pay all expenses connected
with your journey both ways, and in addition
to promise a suitable reward if reliable and
useful information is furnished. Independent
of these considerations, it is hoped that the
cause of humanity and justice will induce
you to act promptly in divulging any thing
you may know connected with the recent

tragedy in this city, or with any other plots
yet in preparation. The bearer is directed to
pay all expenses connected with your trip.
I am, very respectfully.
Your obedient servant,
JAMES B. FRY,
Provost Marshal General
Cross-examined by Me. Stone.
The man called Harrison I saw in Canada
two or three times; I saw him once in a sa
loon, about the 15th or 20th of February; he
was pointed out to me by Mr, Brown, I think,
and I noticed him more particularly on ac
count of his name having been mentioned, in
connection with others, at the meeting in
Montreal. Cross-examined by Mr. Aiken.
I was on confidential terms with the rebels
in Canada because I represented myself as
a good Southerner. The letter from Jeffer
son Davis, which was read by Mr. Sanders,
was read to the meeting some time in Feb
ruary, and on the 10th of April I went to
see the justice of the peace; he refused to
accede to my request I then called upon the
Judge of the Court of Assizes ; made my
statement to him, and he said I should have
to go to the grand jury. I flrst communi
cated this information to the Government, I
think, two weeks ago to-day, since the as
sassination of the President, though I under
stood the Government was in possession of
the information before I communicated it
direct' I saw Surratt in Toronto about the 20th
of last February ; he was pointed out to me
on the street, and passed down by me. Ford,
who was with me, and who was present at
the meeting held in Montreal, said, "Doctoij, -
that is Surratt" He is a man five feet, six,
seven, or eight inches, slim, and wore a dark
moustaciie, and was dressed in ordinary
clothes, like any gentleman would be, I think
of a dark color. I am not positive that it
was Surratt, because I do not know the man.
I knew of the project to burn the City of
New York. I heard it talked of in Windsor,
and communicated the information to Colonel
Hill, of Detroit, before the attempt was made. :
It was communicated to me by Robert Drake,--!
and a man named Smith, both formerly of
Morgan's command. They both had been
to Chicago to attend the Presidential Conven
tion there. They told me, after their return,
that they went there for the purpose of re
leasing the rebel prisoners at Camp Douglas.
I continued my intimacy with these rebel
sympathizers for the purpose of giving inform
ation, when I should find it of importance.
Nine-tenths of the people in Canada are rank
rebel sympathizers, and my practice was
mostly among Southerners. I have never re
ceived a dollar from the Government for fur
nishing any information from Canada, nor
have 1 ever received any thing from the rebels

TESTIMONY OP LIEUTENANT-GENERAL GRANT.

37

for services rendered them, I have proof in
my pocket from the Provost Marshal at De
troit, that I furnished valuable information
without any remuneration.
Recalled for the Prosecution. — June 27.
On Friday, the 2d of June, I was in Mon
treal. At the St Lawrence Hall I saw
General Carroll, I introduced myself to
him as Dr. Merrill of Memphis, There was
a large family of Merrills residing there, who
were physicians. He expressed considerable
gratification at seeing me, and he introduced
me to Governor Westcott, and we conversed
in reference to this trial. These men were
not aware that I had testified before this
Commission. My testimony was not pub
lished there until Tuesday, the 6th of June.
Mr, Beverly Tucker said, in that conversation,
that they had friends in Court, and were per
fectly posted as to everything that was going
on at this trial. Tucker said they had burned
all the papers they had received from Rich
mond, for fear some Yankee would break into
their room and steal them, and use them
against them in this trial. In that interview,
I should state that Governor Westcott ex
pressed no disloyal sentiments, and took no
part in the conversation.
George B. Hutchinson.
For the Prosecution. — June 23.
I am a native of England, and was an en
listed man in the service of the United States,
from the 12th of June, 1861, to the 12th of
November, 1862. I have resided in Canada
for the last seven months. I have seen Clem
ent C. Clay, Beverly Tucker, George N, San
ders, and others of that class several times.
I last saw Clement C. Clay at the Queen's
Hotel, Toronto, about the 12th or 13th of
February. On the 2d of June, and on the morning of
' the 3d, I saw Dr. Merritt in conversation with
Beverly Tucker, at the St Lawrence Hall in
Montreal. I heard Beverly Tucker say, in
reply to a remark of Dr. Merritt, that he had
burned all the letters, for fear some Yankee
son of a bitch might steal them out of his
room, and use them in testimony against
him. They were at the time speaking about
this trial, and the charges against them.
They were talking to Dr. Merritt as to one to
whom they gave their confidence.
Lieutenant-General U. S. Grant.
For the Prosecution. — May 12.
Since the 4th of March, 1864, I have been
in the command of the armies of the United
States. I met Jacob Thompson, formeriy
Secretary of the Interior under President
Buchanan's administration, when the army
was lying opposite Vicksburg, at what is
called Milliken's Bend and Young's Point
A little boat was discovered coming up near

the opposite shore, apparently surreptitiously,
and trying to avoid detection. A little tug
was sent out from the navy to pick it up.
When they got to it, they found a little white
flag sticking out of the stern of the row-boat,
and Jacob Thompson in it They brought
him to Admiral Porter's flag-ship, and I was
sent for to meet him. 1 do not recollect the
ostensible business he had. There seemed
to be nothing at all important in the visit,
but he pretended to be under a flag of truce,
and he had therefore to be allowed to go back
again. That was in January or February
of '63; and it was the first flag of truce we
had through. He professed to be in the
military service of the rebels, and said that
he had been offered a commission — any thing
that he wanted ; but, knowing that he. was
not a military man, he preferred having some
thing more like a civil appointment, and he
had therefore taken the place of Inspector-
General, with the rank of Lieutenant-Colonel,
in the rebel service.
The military department of Washington
embraces all the defenses of the city on both
sides of the river.
[The commission of Lieutenant-General Grant, dated
March 4, 1804, accompanied by General Orders No. 08, was
here offered iu evidence.]
Cross-examination by Mr, Aiken.
All the civil courts of the city are in op
eration. I am not prepared to say exactly,
to what point the Department of Washing
ton extends ; any troops that belong to the
command of Major General Augur, who com
mands the Department of WashingtoUj sent
out to any pojnt, would necessarily remain un
der his command. Martial law, I believe, ex
tends to all the territory south of the railroad
that runs across from Annapolis, running
south to the Potomac and Chesapeake.
I understand that martial law extends
south of Annapolis, although I have never
seen the order. Samuel P. Jones.
For the Prosecution. — May 12.
I resided in Richmond during a part of
the war. I have often heard the officers and
men of the Confederate army conversing re
specting the assassination of President Lin
coln. I have heard it discussed by rebel offi
cers as they were sitting around their tents.
They said they would like to see him
brought there ,dead or alive, and they thought
it could be done. I heard a citizen make the
remark that he would give from his private
purse ten thousand dollars, in addition to the
Confederate amount offered, to have the Presi
dent of the United States assassinated, and
brought to Richmond, dead or alive. I
have, besides that, heard sums offered to be
paid, with the Confederate sum, for any per
son or persons to go north and assassinate
the President I judge, from what I heard.

38

THE CONSPIRACY TRIAL.

that there was an amount offered by the
Government in their trashy paper, to assas
sinate any officials of the United States
Government that were hindering their cause,
Henry Von Steinacker.
^For the Prosecution. — May 12.
I was in the Confederate service as an en
gineer officer iu the Topographical Depart/
ment, with the pay of an engineer, and was
on the staff of General Edward Johnson, Al
together I was in the service nearly three
years. In the summer of '63, being at Swift
Run Gap, near Harrisonburg, I was over
taken by three citizens, and rode with them
some eighteen or twenty hours. The name
of one was Booth and another Shepherd,
[A photograph of John Wilkes Booth being shown to
the witness, he identified a resemblance between it and
the person referred to. The photograph was olfered in
evidence,] I was asked by Booth, and also by the
others, what I thought of the probable suc
cess of the Confederacy, I told them, after
such a chase as we had just had from Get
tysburg, I thought it looked very gloomy.
Booth replied, " That is nonsense. If we
only act our part, the Confederacy will gain
its independence. Old Abe Lincoln must go
up the spout, and the Confederacy will gain
its independence any how," By this expres
sion I understood he meant the President
must be killed. He said that as soon as the
Confederacy was nearly giving out, 'or as soon
as they were nearly whipped, that this would
be their final resource to gain their inde
pendence. The other two engaged in the
conversation, and assented to Booth's senti
ments. They- being splendidly mounted, and my
horse being nearly broken down, they left
me the next day. Three or four days after
ward, when I came to the camp of the Second
Virginia Regiment, I found there three citi
zens, and was formally introduced by Cap
tain Randolph to Booth and Stevens. That
evening there was a secret meeting of the
officers, and the three citizens were also pres
ent I was afterward informed of the pur
pose of the meeting by Lieutenant Cockrell
of the Second Virginia Regiment, who was
present. It was to send certain officers on
"detached service" to Canada and the "bord
ers " to release rebel prisoners, to lay Northern
cities in ashes, and finally to get possession
of the members of the Cabinet and kill the
President This "detached service'' was a
nickname in the Confederate army for this
sort of warfare. I have heard these things
spoken of, perhaps, a thousand times before
I was informed it was the purpose discussed
at this meeting, but I always considered it
common braggadocio. I have freely heard it
spoken of in the streets of Richmond among
those connected with the rebel Government
Cockrell belonged, I believe, to the Second
Virginia Regiment, and to the same com

pany to which Captain Beall belonge-i, who
was executed at Governor's Island. CocKrell
told me that Beall was on " detached serv
ice," and that we would hear of him.
I have heard mention made of the exist
ence of secret orders for certain purposes to
assist the Confederacy. One I frequently
heard of was called a Golden Circle, and
several times I heard the name of the " Sons
of Liberty."
[No cross-examination.]
Hosea B. Carter.
For the Prosecution. — May 29.
I reside in New Hampshire, I was at the
St Lawrence Hall, Montreal, Canada, from
the 9th or 10th of September till the 1st of
February last, I met George N, Sanders,
Clement C. Clay, Beverly Tucker, Dr. Black
burn, Dr, Pallen, J. Wilkes Booth, General
Carroll from Memphis, an old gentleman from
Florida that wore a cue — I think his name was
Westcott — a Dr. Wood, a gentleman named
Clark, and many others whose names I do
not now recollect I do not remember that I
saw Jacob Thompson there. I saw him at
Niagara Falls on the 17th of June, Some
twenty or thirty Southerners boarded at the
St Lawrence Hall, and usually associated
together, and very little with other people
who came there, either English or American.
I frequently observed George N. Sanders
in intimate association with Booth, and others
of that class, in Montreal. I used to see a
man named Payne nearly every morning. I
think they called him John. He was one of
the Payne brothers, two of whom were arrested
for the St Albans raid ; but Lewis Payne, the
accused, I do not think I have seen before.
Dr. Blackburn came to the St Lawrence
Hall when the Donegana Hotel closed, which
was about the 20th of October last He
seemed to associate on terms of intimacy
with all those I have named, but Booth.
Whether he came there before Booth I can
not say, Blackburn was one of that cliqueot
men who were known there as Confederates.
Cross-examined by Mr. Doster.
I heard that the Paynes to whom I have
referred originally came from Kentucky, and
that they had been in the counterfeiting busi
ness. I think I have seen Cleary in Canada
in company with John Payne. I have seen
them in company with Sanders and Tuckel
and Blackburn every day.
John Devbny.
For the Prosecution. — May 12.
I have resided in Washington, off and on, for
a year or two. I was formerly a Lieutenant
in company "E," Fourth Maryland Et>gi-
ment I was before that employed in Adams's
Express company. In July of 1863, I was
in Montreal, and left there the 3d or 4th of

TESTIMONY OF MRS. MARY HUDSPETH.

February of this year. I was well acquainted
with John Wilkes Booth. The first time I
saw him in Canada he was standing in the
St Lawrence Hotel, Montreal, talking with
George N. Sanders. I believe that was in the
month of October. They were talking con
fidentially, and drinking together. I saw them
go into Dowley's and have a drink together.
I also saw in Canada, at the same time, Jacob
Thompson of Mississippi, who was Secretary
of the Interior under the administration of
President Buchanan. I also saw Mr. Clement
C. Clay of Alabama, formerly United States
Senator, Mr. Beverly Tucker, and several
others who were pointed out to me; but I
was not personally acquainted with those
gentlemen. I spoke to Booth, and asked him
if he was going to play there, knowing that
he was an actor. Hesaid he was not I then
said, " What are you going to do ? " Hesaid,
" I just came here on'i.a pleasure trip." The
Other Southerners, whose names I have men
tioned, I have seen talking with Sanders, but
I can not say positively that I saw them talk
ing with Booth.
The next time I saw Booth was on the
steps of the Kirkwood House, in this city, on
the night of the 14th of April, between 6 and
6 o'clock. He was going into the hotel as I
was standing talking to a young man named
Callan. As Booth passed into the hotel, he
turned round and spoke to me, and I asked
him when he came from Canada. He said
he had been back here for some time, and was
going to stay here for some time, and would
see me again, I asked, " Are you going to
play here again?" He replied, "No, I am
not going to play again ; I am in the oil busi
ness," I laughed at his reply, it being a
common joke to talk about the oil business,
A few minutes afterward I saw him come
down the street on horseback, riding a bay
horse. I noticed particularly what kind of
a looking rig he had on the horse, though I
know not what made me do it 'The next I
saw of him wap when he jumped out of the
box of the theater, and fell on one hand and
/ one knee, when I recognized him. He fell
with his face toward the audience, I said,
" He is John Wilkes Booth, and he has shot
the President" I made that remark right
there, That is the last I ever saw of him,
when he was running across the stage. I
heard the words " Sic semper iyrannus" shouted
in the President's box before I saw the man.
He had a knife in his hand as he went across
the stage. If he made any remark as he
went across the stage I did not notice it The
excitement was very great at the time.
William E. Wheeler.
For the Prosecution. — May 12.
I reside in Chickopee, Massachusetts. I
was at Montreal, Canada, in October or No
vember last, when I saw John Wilkes Booth,
who was standing in front of the St Lawrence

Hall, Montreal. I spoke to Mr. Booth, and
asked him if he was going to open the the
ater there. He said he was not He left mo,
and entered into conversation with a person
who was pointed out to me as George N.
Sanders. [No cross-examination.]
Henry Finegas.
For the Prosecution. — May 26.
I reside in Boston, Mass., and have been
in the United States service since the rebel
lion as a commissioned officer. In ths
month of February last I was in Montreal,
Canada, and remained there eleven days.
While there I knew well, by sight, George
N. Sanders, William C. Cleary, and other
men of that circle, but did not make their
acquaintance personally. On one occasion
I heard a conversation between George N.
Sanders and Wm. C, Cleary; it took place
at the St Lawrence Hall on the 14th or 15th
of February, I was sitting in a chair, and
Sanders and Cleary walked in from the door;
they stopped about ten feet from me, and I
heard Cleary say, "I suppose tjiey are get
ting ready for the inauguration of Lincoln
ne.xt month," Sanders said, "Yes; if the boys
only have luck, Lincoln won't trouble them
much longer," Cleary asked, "Is every
thing well?" Sanders replied, " 0, yes; Booth
is bossing the job."
Cross-examined by Mr. Aiken.
The conversation took place about 5
o'clock in the evening. Sanders and Cleary
were standing close together, conversing in
rather a low tone of voice, I thought I never
was introduced to Sanders or Cleary, but have
been introduced to men who claimed to be
escaped prisoners from camps in the North.
I knew Sanders and Cleary by sight well; I
saw them testify in court in the St Albans
raid case. Cleary is a middle-sized man,
sandy complexion, sandy hair; carries his
neck a little on one side, and has reddish
whiskers. Sanders is a short-sized, low, thick
set man, with grayish curly hair, a grayish
moustache, and very burly form.
I left Montreal on the 17th of February.
I first communicated this information to the
Government a few days ago, but spoke of it
to two or three parties some time ago. I did
not consider it of any importance at the
time, but looked upon it as a piece of brag
gadocio.
Mrs. Mary Hudspeth.
For the Prosecution. — May 12.
In November last, after the Presidential
election, and on the day General Butler loft
New York, as I was riding on the Third
Avenue cars, in New York City, I overheard
the conversation of two men. They were
talking most earnestly. One of them said he
would leave for Washington the day after to-

40

THE CONSPIRACY TRIAL.

morrow. The other was going to N'ewburg,
or Newbern, that night One of the two was
a young man with false whiskers. This I
observed when a jolt of the car pushed his
hat forward and at the same time pushed
his whiskers, by which I observed that the
front face was darker than it was under t-he
whiskers. Judging by his conversation, he
was a young man of education, Th'e other,
whose name was Johnson, was not I no
ticed that the hand of the younger man was
very beautiful, and showed that lie had led
a life of ease, not of labor. They exchanged
letters while in the car. When the one who
had the false whiskers put back the letters
in his pocket, I saw a pistol in his belt I
overheard the younger say that he would
leave for Washington the day after to-mor
row; the other was very angry because it
had not fallen on him to go to Washington.
Both left the cars before I did. After
they had left, my daughter, who was with
me, picked up a letter which was lying on
the fioor of the car, immediately under where
they sat, and gave it to me; and I, thinking
it was mine, as I had letters of my own to
post at the Nassau Street Post-office, took it
without noticing that it was not one of my
own. When I got to the broker's, where I
was going with some gold, I noticed an en
velope with two letters in it
[Exhibiting an envelope with two letters,]
These are the letters, and both were con
tained in one envelope. After I examined
the letters and found their character, I took
them first to General Scott, who asked me to
read them to him. He said he thought they
were of great importance, and asked me to
take them to General Dix, I did so.
[The following letters were then read to the Commis
sion, and offered in evidence:]
Dear Louis ; The time has at last come
that we have all so wished for, and upon you
every thing depends. As it was decided be
fore you left, we were to cast lots. Accord
ingly we did so, and you are to be the Char
lotte Corday of the nineteenth century.
When you remember the fearful, solemn vow
that was taken by us, you will feel there is
no drawback — Abe must die, and now. You
can choose your weapons. The cup, the
knife, the bullet. The cup failed us once, and
might again. Johnson, who will give this,
has been like an enraged demon since the
Mieeting, because it has not fallen upon him
to rid the world of the monster. He says
the blood of his gray-haired father and his
noble brother call upon him for revenge, and
revenge he will have; if he can not wreak it
upon the fountain-head, he will upon some
of the blood-thirsty Generals. Butler would
suit him. As our plans were all concocted
and well arranged, we separated, and as I am
writing-^on my way to Detroit — I will only
s^ that all rests upon you. You know
where to find your friends. Your disguises
are so perfect and complete, that without one

knew your face, no police telegraphic dispatch
would catch you. The English gentleman,
Harcourt, must not act hastily. Remember
he has ten days. Strike for your home,
strike for your country; bide your time, but
strike sure. Get introduced, congratulate
him listen to his stories — not many more
will' the brute tell to earthly friends. Do
any thing but fail, and meet us at the ap
pointed place within the fortnight Inclose
this note, together with one of poor Leenea.
I will give the reason for this when we meet
Return bv Johnson. I wish I could go to
you, but duty calls me to the West; you will
probably hear from me in Washington. San
ders is doing us no good in Canada.
Believe me, your brother in love,
CHARLES SELBY.
St. Louis, October 21, 1E64.
Dearest Husband : Why do you not come
home? You left ine for ten days only, and
you now have been from home more than
two weeks. In that long time, only sent
me one short note — a few cold words — and
a check for money, which I did not require.
What has come over you? Have you for
gotten your wife and child? Baby calls for
papa until my heart aches. We are so lonely
without you, I have written to you again
and again, and, as a last resource, yesterday
wrote to Charlie, begging him to see you and
tell you to come home. I am so ill, not able
to leave my room ; if I was, I would go to
you wherever you were, if in this world.
Mamma says I must not write any more, as
I am too weak, Louis, darling, do not stay
away any longer from your heartrbroken wife.
LEENEA.
Hon. Charles A. Dana.
For the Prosecution. — June 9.
The letters found and testified to by Mrs.
Hudspeth, came to me by mail at the War
Department, inclosed in one from General Dix
The letter from General Dix bears date No
vember 17th, and 1 received it, I suppose, the
next day. On receiving the letters I took them
to the President, Mr, Lincoln, who looked at
them, but I do not think he made any spe
cial remark; he seemed to attach very little
importance to them. Two or three days
after the assassination of the President, I was
sent by the Secretary of War to find them.
I went over to the White House and searched
in the President's private desk, where I found
them. I kept them for some time, and after
ward delivered them to Judge Bingham.
The President received a great many com
munications- of a similar nature, but he
seems to have attached more importance to
these than any others, because I found them
among his papers in an envelope marked, in
his own handwriting, "Assassination." The
two letters just put in evidence, are those
that were inclosed in the letter from General
Dix; and the letter from General Dix is in

IDENTIPICATION OP KEY TO SECRET CIPHER.

41

his own handwriting, with which I am fa
miliar. [The following letter ftom General Dix was then read
and put iu evidence :]
HEAD-(iUABTERS, DepAKTMENT OP THE EAST, l
New Yorlc City, 17th November, 18G-1. J
C. A. Dana, Esq.— il/y Dear Sir: The in
closed was picked up in a Third Avenue
railroad car. I should have thought the
whole thing got up for the Sunday Mercury,
but for the genuine letter from St Louis
in a female hand. The Charles Selby is
obviously a manufacture. The party who
dropped the letter was heard to say he
would start for Washington Friday night
He is of medium size; has black hair and
whiskers, but the latter are believed to be
a disguise. He had disappeared before the
letter was picked up and examined.
Yours truly, JOHN A. DIX.
Cross-examined by Mr. Aiken.
The authorities of the War Department
are in the habit of receiving a great many
foolish letters from anonymous correspond
ents and others; some of a threatening char
acter, and others making extraordinary prop
ositions. Major T. T. Eckert.
For the Prosecution. — June 13.
An order was sent forward to General But
ler at New York for his troops to leave on
the llth of November. General Butler made
application for leave to remain until the next
Monday ; the Secretary of War replied to the
application, "You have permission to remain
until Monday, the 14th of November."

IDENTIFICATION OF KEY TO SECRET
CIPHER.
Lieutenant William H. Tbeey.
For the Prosecution. — May 18.
I am attached to the Provost Marshal's
Office in this city. On the night of the as
sassination, Mr- Eaton placed in my hands
certain papers which he had taken from the
trunk of J. Wilkes Booth, at the National
Hotel. FA paper containing a secret cipher was handed to the
witness.] This is one of the papers I received from
Mr. Eaton ; it was in that envelope, on which
Colonel Taylor marked the word "Important,"
and signed his initials to it
William Eaton.
For the Prosecution. — May 18.
On the night of the 14th of April, after the
assassination, I went, under authority of the
War Department, to the National Hotel, to
take charge of Booth's trunk and its con

tents, I took all the papers to the Provost
Marshal's Office, and placed them in the hands
of Lieutenant Terry.
Colonel Joseph H. Taylor.
For the Prosecution. — May 19.
I am on duty at the Head-Quarters of
the Department of Washington.
[A paper containing a secret cipher was handed to tho
witness,] I received this paper, on the night of the
14th of April last, from Lieutenant Terry,
an officer on duty in the Provost Marshal's
Office, who had been sent by me to examine
Booth's trunk, where it was found among
Booth's papers.
Hon, C. a. Dana.
For the Prosecution. — May 20.
I am Assistant Secretary of War. 1 was
in Richmond, Va., on Wednesday, the 5th
of April — Richmond being evacuated ou the
3d. On the 6th of April I went into the
office of Mr. Benjamin, the rebel Secretary
of State. On the shelf, among Mr. Benja
min's books and other things, I found this
secret cipher key.
[The secret cipher key is a model consisting of a cylin
der six inches in length, and two and one-half in diam
eter, fixed in a frame, the cylinder having the printed key
pasted over it. By shiltiug the pointers fixed over the
cylinder on the npper portion of the frame, according to a
certain arrangement previously agreed upon, the cipher
letter or dispatch can readily be deciphered. The model
was put in evidence.]
I saw it was a key to the official rebel
cipher, and as we had a good many of them
to decipher at different times at the War De
partment, it seemed to me of interest, and I
therefore brought it away. Mr, Benjamin's
offices consist of a series of rooms in suc
cession. His own office was the inmost of
all; the next room, where his library was, and
which seemed to have been occupied by his
most confidential clerk or assistant, was the
one in which I found several interesting docu
ments, and this cipher model among them.
I sent it to Major Eckert at the War Depart
ment, who has charge of the ciphers there.
Major T. T. Eckert.
For the Prosecution. — May 20.
[A secret cipher, found among the effects of J, Wilkea
Booth, already in evidence, was here handed to the wit
ness ; also the secret cipher model just testified to,]
I have examined the secret cipher found in
Booth's trunk, and the other cipher just testi
fied to by the Assistant Secretary of War, and
find they are the same.
Cipher dispatches from the rebel authori
ties have from time to time fallen^ into my
hands, and as I am somewhat familiar with
them, they have been referred to me for ex
amination. Some of the dispatches referred
to me were worked on the same plan.
[The witness here produced cipher dispatches hearing
date October 13th and 19th.l

42

THE CONSPIRACY TRIAL.

These dispatches which I hold in my hand
are copies and translations of certain cipher
dispatches which came from Canada ; they
passed through the War Department in this
city, where copies were taken of them, and
the originals forwarded to Richmond. These
dispatches are written in the cipher to which
this model and the paper found in Booth's
trunk furnish the key.
[^The dispatches were then read as fellows, and pnt in
•vidence:] OCTOBEE 13, 1854.
We again urge the immense necessity of
our gaining immediate advantages. Strain
every nerve for victory. We now look upon
the re-election of Lincoln in November as
almost certain, and we need to whip his
hirelings to prevent it Besides, with Lin
coln re-elected and his armies victorious, we
need not hope even for recognition, much less
the help mentioned in our last Holcombe
will explain this. Those figures of the
Yankee armies are correct to a unit Our
friend shall be immediately set to work as you
direct OCTOBEE 19, 1864.
Your letter of the 13th instant is at hand.
There is yet time enough to colonize many
voters before November. A blow will shortly
be stricken here. It is not quite time. Gen
eral Longstreet is to attack Sheridan without
delay, and then move North, as far as practi
cable, toward unprotected points.
This will be made instead of movement
before mentioned.
He will endeavor to assist the Republicans
in collecting their ballots. Be watchful, and
assist him.

CIPHER LETTER.
Charles Duell.
For the Prosecution. — June 5.
I reside in Washington. I was recently
engaged in business, driving piles at More-
head City, N. C. While there, I found a let
ter floating in the water; it was in cipher.
My attention. was first called to it by Mr.
Ferguson, who was working there. The en
velope was addressed "John W. Wise." I
made inquiries relative to the person to whom
it was addressed, but I could hear of no one
of that name in North Carolina.
[The translation of the letter was here read, and the
original put in evidence.] Washinotok, April the 15, '6.5.
Dear John: I am happy to inform you
that Pet has done his work well. He is safe,
and Old Abe is in hell. Now, sir, all eyes
are on you. You must bring Sherman —
Grant is in the hands of Old Gray ere this.
Red Shoes showed lack of nerve in Sew
ard's case, but fell back in good order.

Johnson must come. Old Crook has him in
charge. , , j -n
Mind well that brother s oath, and you wiU
have no difficulty; all will be safe, and en
joy the fruit of our labors.
We had a large meeting last night AU
were bent in carrying out the programme to
the letter. The rails are laid for safe exit
Old  , always behind, lost the pop at
City Point
Now, I say again, the lives of our brave offi
cers, and the life of the South depend upon
the carrying this programme into effect No.
Two will give you this. It's ordered no mors
letters shall be sent by mail. When you
write, sign no real name, and send by soms
of our friends who are coming home. W«
want you to write us how the news was re
ceived there. We receive great encourage
ment from all quarters, I hope there will
be no getting weak in the knees. I was in
Baltimore yesterday. Pet had not got there
yet Your folks are well, and have heard
from you. Do n't lose your nerve.
C. B. No. FIVE
The letter just read, is, I believe, a correct
translation of the cipher.
Cross-examined by Mr. Aiken.
In making the translation I had the as
sistance of a gentleman in North Carolina,
who told me he had seen the cipher before.
We first supposed, by its beginning with a
W, that it was dated at Wilmington, The
first evening we tried it with Wilmington,
but we could not make out any thing. The
next evening we tried the word "Washing
ton," and "April," and made an alphabet,
and stuck figures and characters under the
letters of the alphabet, and proceeding in
that way we at length worked it out.
James Ferguson.
For the Prosecution. — June 5.
I have recently been at Morehead City,
N. C, where I have been working under Mr.
Duell. While there, I discovered a letter
fioating in the water when we were at work,
and called his attention to it The letter
which has been read is the same as was
picked up ; and I identify the envelope as the
same. We found it either on the 1st or
2d of May last

THE "LON" LETTER.
Charles Dawson.
For the Prosecution. — June 2.
I am a clerk at the National Hotel in
this city. In looking among the initials for a
letter for a gentleman whose name begins with
B, I found a letter addressed " J. W. B."

THB "LON LETTER."

43

The initials struck me as being rather pe
culiar, and I took the letter unopened to
Judge Advocate Bingham, about the 24th
pf May.
[The letter was read as follows, and it and the envelope
were put in as evidence:]

[P. 0. stamp.]
OwmberUmdt May S.

ENVELOPE.

J. W. B.,
National Hotel,
Washington, D. O.
South Beanch Bbibge, April 6, 1865.
Friend Wilkes : I received yours of March
12th, and reply as soon as practicable. I saw
French, Brady, and others about the oil specu
lation. The subscription to- the stock amounts
to $8,000, and I add $1,000 myself, which is
about all I can stand. Now, when you sink
your well go deep enough; don't fail, every
thing depends on you and your helpers. If
you can't get through on your trip, after you
strike He, strike through Thornton Gap, and
cross by Capon, Romney's, and down the
Branch, and I can keep you safe from all
hardships for a year. I am clear of all sur
veillance, now that infernal Purdy is beat I
hired that girl to charge him with an out
rage, and reported him to old Kelly, which sent
him in the shade, but he suspects to (too)
damn much now. Had he better be silenced
for good? I send this up by Tom, and if he
don't get drunk you will get it the 9th; at all
events, it can't be understood if lost I can't
half write. I have been drunk for two days.
Don't write so much highfalutin next time.
No more; only Jake will be at Green's with
the funds. Burn this.
Truly, yours, LON.
Sue Guthrie sends much love.
The only guest at the National Hotel that
I knew of to whom the initials J. W. B. be
longed was John Wilkes Booth. Any letters
addressed to Mr. Booth in full would be put
into his box, as he had a room at the house.
These being mere initials, the letter was put
in with sundry letters for those who had no
room in the house.
Robert Purdy.
For the Prosecution. — June 16.
I reside in Marshall County, West Virginia,
near the Ohio River. I have been in the
service of the United States since the llth of
December, 1861. Since the 23d of August
last, I have belonged to a scouting company.
The letter signed " Lon " I never saw until
it was published in the public papers. I
have no knowledge whatever by whom it was
written. I have heard of French, who is re
ferred to in the letter, but I do not know of
any one named Brady living on South Branch..
There is a man in that region of country
named Lon ; his full name is Leonidas Mc-
Aleer, but he generally goes by the name of

Lon. I have seen his handwriting. He
showed me some notes that he said he had
been black-mailed about The writing of
the letter resembles his. I am the Purdy re
ferred to in the letter.
I captured a rebel spy a few miles from
Lon's house. I understood he was to meet
Lon McAleer that day to carry information
there. I flanked the field and captured him,
in company with two men named Darnduff,
and a very reliable colored scout belonging to
General Kelly. Lon McAleer had been play
ing both sides, loyal and disloyal; but as he
had been lately bragging of his Unionism, I
thought he would be glad to learn that the
great rebel spy had been captured, so I rode
down to him and told him. He cursed me
for capturing the man, and said I should
have taken his money and let him go. He
said, when he went out and saw a small
squad of rebels who could do no great dam
age to the railroad, he did not report it; but
when he saw a force that could operate
against Cumberland and New Creek, he al
ways reported it A day or two after that, I
overtook a girl near his house. I halted her
and searched her, and found her carrying let
ters. This was in the winter, in January, I
think. A charge, such as that alluded to in
the letter was made against me, but it was
entirely false, and I afterward went to Mc
Aleer to get the thing settled, McAleer had
a white servant named Tom, a deaf man, who
afterward married this girl. I have heard
he drinks.
I do not know any person of the name of
Green in that neighborhood; but there are
Greens some seventy or eight miles off, and
there may be other families of that name that
I do not know of.
The route through Thornton Gap, crossing
by Capon, Romney's, and down the Branch,
is an obscure route, of which I never knew
till lately. It passes right through by Green's
house at Thornton Gap, Green's reputation
is that of a very disloyal man,
I do not know the Sue Guthrie mentioned,
but I have ascertained that she is a lady who
lived with Mr, French, I once wrote a letter
to French, warning him that some deserters
from our army were going to commit robbery
at his house. It was then that McAleer told
me that French was his father-in-law.
Cross-examined by Mr. Aiken.
I am acting for the, Government as detec
tive and scout I have been charged with
writing that letter myself I was at South
Branch Bridge in January last South Branch
empties into the Potomac River, and is from
twenty-one to twenty-three miles from Cum
berland. There is a railroad through South
Branch to Cumberland, People at South /
Branch Bridge are not in the habit of taking
their letters to Cumberland to mail. They
generally take them to Green Spring Run,
about one and three-fourths miles above.

44

THE CONSPIRACY TRIAL.

PLOT TO CAPTURE.
Samuel Knapp Chester. /
For the Prosecution. — May 12.
I am by profession an actor, and have
known J. Wilkes Booth a great many years.
For six or seven years I have known him
intimately. In the early part of November
last I met him in New York, and asked him
why he was not acting. He told me that he
did not intend to act in this portion of the
country again; that he had taken his ward
robe to Canada, and intended to run the
blockade, I saw him again on the 24th or
25th of November, about the time we were
to play "Julius Ccesar" in New York, which
we did play ou the 25th, I asked him where
his wardrobe was; he said it was still in
Canada, in charge of a friend, I think he
named Martin in Montreal,
He told me he had a big speculation on
hand, and asked me to go in with him, I
met him on Broadway as he was talking
with some friends. They were joking with
him about his oil speculations. After he left
them, he told me he had a better speculation
than that on hand, and one they wouldn't
laugh at Some time after that I met him
again, and he asked me how I would like to
go in with him. I told him I was without
ineans, and therefore could not He said
that didn't matter; that he always liked me,
and would furnish the means. He then re
turned to Washington, from which place I
received several letters from him. He told
me he was speculating in farms in lower
Maryland and Virginia; still telling me that
he was sure to coin money, and that I must
go in with him.
About the latter part of December, or early
in January, he came to New York, and called
on me at my house. No. 45 Grove Street He
asked me to take a walk with him which I
did. We went into a saloon known as the
"House of Lords," on Houston Street, and
remained there perhaps an hour, eating and
drinking. We afterward went to another
saloon under the Revere House, after which
we started up Broadway. He had often
mentioned his speculation, but would never
mention what it was. If I would ask him,
he would say he would tell me by-and-by.
When we came to the corner of Bleecker
Street, I turned and bade him good night
He asked me to walk further with him, and
we walked up Fourth Street, because he said
Fourth Street was not so full of people as
Broadway, and he wanted to tell me about
that speculation. When we got into the un
frequented portion of the street, he stopped
and told me that he was in a large conspiracy
to capture the heads of the Government, in
cluding the President, and to take them to
Richmond. I asked him if that was the
speculation that he wished me to go into.
He said it was. I told him I could not do it ;

that it was an impossibility ; and asked him
to think of my family. He said he had two
or three thousand dollars that he could leave
them. He urged the matter, and talked with
me, I suppose, half an hour; but I still re
fused to give my assent Then he said to
me, "You will at least not betray me; " and
added, "You dare not" He said he could
implicate me in the affair any how. 'The
party he said were sworn together, and if I
attempted to betray them, I would be hunted
down through life. He urged me further.
saying I had better go in, I told him "No,'
and bade him good night, and went home.
He told me that the affair was to take
place at Ford's Theater in Washington, and
the part he wished me to play, in carrying
out this conspiracy, was to open the back
door of the theater at a signal. He urged
that the part I would have to play would be
a very easy affair, and that it was sure to suo-
ceed, but needed some one connected or ao-
quainted with the theater. He said every
thing was in readiness, and that there were
parties on the other side ready to co-operate
with them. By these parties I understood
him to mean the rebel authorities and others
opposed to our Government He said there
were from fifty to one hundred persons en
gaged in the conspiracy.
He wrote to me again from Washington
about this speculation; I think it must have
been in January, I did not keep my letters.
Every Sunday I devoted to answering my
correspondence and destroying my letters.
In January I got a letter from him, saying
I must come. This was the letter in which
he told me his plan was sure to succeed. I
wrote back, saying that it was impossible,
and I would not come. Then by return mail,
1 think, I got another letter, with fifty dollars
inclosed, saying, I must come, and must be
there by Saturday night I did not go, nor
have I been out of New York since last
summer. The next time he came to New
York, which I think was in February, he
called on me again, and asked me to take a
walk with him, and I did so. He then told
me that he had been trying to get another
party, one John Matthews, to join him, and
when he told Matthews what he wanted, the
man was very much frightened, and would
not join him ; and he said he would not have
cared if he had sacrificed him, I told him
I did not think it was right to speak in that
manner. He said no; but Matthews was a
coward, and was not fit to live. He then
urged me again to join, and told me I must
do so. He said there was plenty of money
in the affair; and that, if I joined, I never
vvould want for money again as long as I
lived. He said the President and some of
the heads of the Government came to the
theater very frequently during Mr. Forrest's
engagements. I desired him not to again
mention the affair to me, but to think of my
poor family. He said he would ruin me in

BOOTH S OIL SPECULATIONS.

45

the profession if I did not go. I told him
I could not help that, and begged him not to
mention the affair to me.
When he found I would not go, he said he
honored my mother and respceted my wife,
and he was sorry he had mentioned this
affair to me; but told me to make my mind
easy, and he would trouble me no more. I
then returned him the money he had sent
me. He told me he would not allow me to
do so, but that he was so very short of funds,
and that either he or some other party must
go to Richmond to obtain means to carry out
their designs.
On Friday, one week previous to tho assas
sination, I saw him again in New York, We
were in the " House of Lords," sitting at a
table. We had not been there long before
he exclaimed, striking the table, "What an
excellent chance I had to kill the President,
if I had wished, on inauguration day 1 "
He said he was as near the President on
that day as he was to me.
Cross-examination by Me, Ewing.
Booth spoke of the plot to capture the
President, not to assassinate him, and to
take him to Richmond. By the expression
"other side," I understood him to mean
across the lines — across the Potomac.
Booth did not say any thing as to the means
he had provided or proposed to provide for
conducting the President after he should be
seized. On one occasion he told me that he
was selling off his horses; that was after he
had told me he had given up this project of
the capture. It was, I think, in February
that he said he had abandoned the idea of
capturing the President and the heads of the
Government The affair, he said, had fallen
through, owing to some parties backing out
It was on Friday, the 7th of April, one week
previous to the assassination, that he said
what an excellent chance he had had for
killing the President

BOOTH'S OIL SPECULATIONS.
Joseph H. Simonds.
For the Prosecution. — May 13.
1 was acquainted with J, Wilkes Booth in
his lifetime, and was his business agent, par
ticularly in the oil region, I did some little
business for him in the City of Boston, but it
was very little, and was entirely closed up
before I left there,
Mr, Booth's interest in the oil speculations
was as follows: He owned a third undivided
interest in a lease of three and a half acres
on the Alleghany River, near Franklin. The
land interest cost $4,000. He paid $2,000—
that being one-half of it He also purchased,
for $1,000, an interest in an association there
owning an undivided thirtieth of a contract

That is all that he ever absolutely purchased.
There was money spent for expenses on this
lease, previous to his purcha.se of the land
interest lie never realized a dollar from
any interest possessed in the oil region. His
speculations were a total loss.
The first interest he acquired in any way
was in December, 1803, or January, 1864. I
accompanied him to the oil regions in June,
1864, for the purpose of taking charge of his
business there. The whole amount invested
by him in this Alleghany River property, in
every way, was about $5,000, and the other
investment was about $1,000, making $6,000
in all.
His business was entirely closed out there
on the 27th of September, 1864
One of the conveyances was made to his
brother, Junius Brutus Booth, which was
without compensation ; but a consideration
was mentioned in the deed. The other
transfer was to me, and it was done in con
sideration of my services, for which I never
received any other pay. There was not a
dollar paid to J, Wilkes Booth at all for
these conveyances, and he paid all the ex
penses on the transfer and the conveyances.

JACOB THOMPSON'S BANK ACCOUNT,
Robert Anson Ca.mpbell,
For the Prosecution. — May 20.
I reside in Montreal, Canada, and am first
teller of the Ontario Bank, of that city,
I know Mr, Jacob Thompson very well.
His account with the Ontario Bank I hold
in my hand. It commenced May 30, 1864,
and closed April 11, 1865, Prior to May
30th, he left with us sterling exchange, drawn
on the rebel agents in Liverpool, for collection.
The first advice we had was May 30th,
when there was placed to his credit £2,061
175, Ud, and £20,618 lis. 4d, amounting to
$109,965,63, The aggregate amount of the
credits is $649,873,28, and there is a balance
still left to his credit of $1,766,23; all the
rest has been drawn out Since about the
first of March he has drawn out $300,000, in
sterling exchange and deposit Receipts, On
the 6th of April last there is a deposit re
ceipt for $180,000. The banks in Canada
give deposit receipts, which are paid when
presented, upon fifi^een days' notice. On the
8th of April he drew a bill of £446 12s, Id.,
and on the same day £4,000 sterling. On
the 24th of March he drew $100,000 in ex
change; at another time $19,000. This ster-
liug exchange was drawn to his credit, and
also the deposit receipt
Mr. Jacob Thompson has left Montreal
since the 14th of April last I heard him
say that he was going away. He used to
come to the bank two or three times a week,
and the last time he was in he gave a check

4'6

THE CONSPIRACY TRIAL.

to the hotel-keeper, which I cashed, and he
then left the hotel. His friends stated to me
that he was going to Halifax, overland. Nav
igation was not open then, and I was told
that he was going overland to Halifax, and
thence to Europe. I thought it strange at
the time that he was going overland, when
by waiting two weeks longer he could have
taken the steamer; and it was talked of in
the bank among the clerks.
The account was opened with Jacob
Thompson individually ; the newspaper re
port was that he was financial agent of the
Confederate States. We only knew that he
brought Sputhern sterling exchange bills,
drawn on Southern agents in the old coun
try, and brought them to our bank for col
lection. How they came to him we did not
know. He was not, as far as I know, en
gaged in any business in Canada requiring
these large sums of money. He had other
large money transactions in Canada, I knew
of one transaction of $50,000, that came
through the Niagara District Bank, at St
Catherines; a check drawn to the order of
Mr, Clement C, Clay, and deposited by him
in that bank; they sent it to us, August 16,
J1864, to put it to their credit
Thompson has several times bought from
us United States notes, or greenbacks. On
August 25th he bought $15,000 in green
backs, and on July 14th, $19,125. This was
the amount he paid in gold, and at that time
the exchange was about 55. I could not say
what the amount of greenbacks was, but that
is what he paid for it in gold. On March
14th, last, he bought $1,000 worth of green
backs at 44|, for which he paid $552.20 in
gold. On the 20th of March he bought
£6,500 sterling at 9J. He also bought drafts
on New York in several instances.
J. Wilkes Booth, the actor, had a small
account at our bank. I had one or two
transactions with him, but do- not remember
more at present. He may have been in the
bank a dozen times ; and I distinctly remem
ber seeing him once. He has still left to his
credit $455, arising from a deposit made by
him, consisting of $200 in $20 Montreal bills,
and Davis's check on Merchants' Bank of
$255. Davis is a broker, who kept his office
opposite the St Lawrence Hall, and is, I
think, from either Richmond or Baltimore.
When Booth came into the bank for this
exchange, he bought a bill of exchange for
£61 and some odd shillings, remarking, " I
am going to run the blockade, and in case I
should be captured, can my capturers make
use of the exchange?" I told him they
could not unless he indorsed the bill, which
was made payable to his order. He then
said he would take $300, and pulled out that
amount, I think, in American gold. I figured
up what $300 would come to at the rate of
exchange — I think it was 9^ — and gave him
a bill of exchange for £61 and some odd
Bhillings.

ITha bills of exchange found on Booth's body at tin
time of his capture were^here exhibited to the witness.]
Those are the Ontario Bank bills of ex
change that were sold to Booth, bearing date
October 27, 1864.

BOOTH AT THE NATIONAL HOTEL
G. W. Bunker.
For the Prosecution. — May 12.
I am a clerk at the National Hotel in this
city. John Wilkes Booth has been in the
habit of stopping at that hotel when he came
to the city. From the register, which I have
examined, I find that Booth was not at the
National Hotel during the month of October,
1864. He arrived in the evening of Novem
ber 9th, and eccupied room "20; " left on an
early train on the morning of the llth; re
turned November 14th, in the early part of
the evening, and left on the 16th. His next
arrival was December 12th; left December
17th by the morning train ; he arrived again
December 22d; left on the 24th ; arrived De
cember 31; left January 10th; arrived again
January 12th ; left on the 28th ; arrived again
February 22d ; occupied room " 231," in con>
pany with John T. H. Wentworth and John
McCuUough. Booth left February 28th in
8:15 A. M. train, closing his account to date,
inclusive. His name does not appear on the
register, but another room is assigned to him,'
and his second account commences March
1st, without any entry on the register of that
date. On the 2d, 3d, and 4th he is called at
8 o'clock A, M, ; 21st of March, pays $50 on
account, and left that day on 7:30 P, M. train ;
arrived again March 25th — room "231;" took
tea, and left April 1st on an afternoon train;
arrived April 8th, room "228," and remained
there until the assassination of the President
[The attention of the witness was directed to the prison
ers at the bar.]
The only one of the accused I know is the
one with the black whiskers and imperial,
[pointing to the accused, Michael O'Laughlin.]
I do not know his name, but know him by
sight He frequently called on Booth at the
hotel. I do not think I saw him the last
few days of Booth's stay there.
[A certified memorandum of the above dates, copied
from the register of the National Hotel, was here offered
m evidence.]

JEFF. DAVIS AND THE ASSASSINA
TION.
Lewis F. Bates.
For the Prosecution. — May 30.
I reside in Charlotte, N. C, where I have
resided a little over four years. I am Super
intendent of the Southern Express Company
for the State of North Carolina. I am a
native of Massachusetts. On the 19th of

PLOT TO DESTROY STEAMERS, GUN-BOATS, ETC.

47

April, Jefferson Davis stopped at my house
in Charlotte, when he made an address to the
people from the steps of my house. While
speaking, a telegram from John C. Breckin
ridge was handed him.
[The following telegram was here road to tho Commis-
iLon:] Geeensboeo, April 10, 1665.
His Excellency President Davis:
President Lincoln was assassinated in the
theater in Washington on the night of the
llth instant Seward's house was entered on
the same night, and he was repeatedly stabbed,
and is probably mortally wounded,
JOHN C. BRECKINRIDGE.
In concluding his speech, Jefferson Davis
read that dispatch aloud, and made this re
mark, " If it were to be done, it were better
it were well done." I am quite sure these are
the words he used.
A day or two afterward, Jefferson Davis
and John C. Breckinridge were present at my
house, when the assassination of the President
was the subject of conversation. In speak
ing of it, John C. Breckinridge remarked
to Davis, that he regretted it very much ;
that it was very unfortunate for the people
of the South at that time. Davis replied,
"Well, General, I don't know, if it were to
be done at all, it were better that it were well
done ; and if the same had been done to Andy
Johnson, the beast, and to Secretary Stanton,
the job would then be complete." No re
mark was made at all as to the criminality
of the act, and from the expression used by
John C. Breckinridge, I drew the conclusion
that he simply regarded it as unfortunate for
the people of the South at that time.
J. C. Courtney.
For the Prosecution. — May 30.
I reside in Charlotte, N. G, and am en
gaged in the telegraphing business, in connec
tion with the Southern Express Company,
The telegram to which Mr, Bates has just
testified is a true copy of the message that was
transmitted to Jefferson Davis on the 19th of
April last, and signed John C. Breckinridge,
I was standing by the- operator when the
message was received. Jefferson Davis re
ceived the message at Mr. Bates's house in
Charlotte, to which place he had come from
Green sburg or Concord, where he had stopped
the night before. James E. Russell.
For the Prosecution. — June 9.
I reside in Springfield, Mass. I have
known Lewis F. Bates for about twenty-five
years. For the last five years I have not
known any thing of his whereabouts, until I
learned from him that he had been living in
Charlotte, N. C. He was in business as bag
gage-master on the Western Railroad, Massa

chusetts, while I was conductor, and I never
heard any thing against his reputation for
truth. William L. Crane.
For the Prosecution. — June, 9.
I am the agent of Adams's Express Com
pany in New York Eastern Division. I have
known Lewis F. Bates since 1848, and have
never heard any thing against his reputation
as a man of truth and integrity.
Daniel H. Wilcox:
For the Prosecution, — June 9.
I left the South a year ago last April. I
have known Mr. L, F, Bates for two or three
years quite intimately; he occupied a position
of great trust and responsibility, and is a man
of truth and integrity. He bore the best
reputation possible. His character is without
reproach, as far as I know.
Jules Soule.
For the Prosecution. — June 9.
I reside in the city of New York at
present; for the past few years I have lived
in Columbia, S. C. I knew Mr. L. F. Bates;
he bore the reputation of a truthful and re
liable man, in every respect, to the best of
my knowledge. We have been intimately
connected in business for the last three or
four years. The position he occupied was
one of high responsibility and trust
Major T. T. Eckert.
For the Prosecution. — June 9.
Mr. L. F. Bates was brought here by the
order of the Secretary of War.

PLOT TO DESTOY STEAMERS, GUN
BOATS, ETC.
Rev. W. H. Ryder.
For the Prosecution. — May 18.
I reside in Chicago. On the 9th of April
I left that city for Richmond, Va.; arrived
there the 14th, and remained there until the
21st of that month. While there I visited
the State Capitol, and found the archives of
the so-called Confederate States scattered
about the floor; and, in common with others,
took as many of these as I chose. I collected
quite a number of papers in different rooms
and from ftmong the rubbish. There were
one or two persons with me, and, as we
handled the papers, any thing that seemed
important or interesting we put into our
pockets. Among the papers so found was
this letter.

48

THE CONSPIRACY TRIAL.

[The following letter was then read and offered in evi
dence:] ElCHMoNn, February 11, 1865.
His Excellency Jefferson Davis, Pres't C. S. A.
Sir: When Senator Johnson of Missouri
and myself waited on you a few days since,
in relation to the prospect of annoying and
harassing the enemy by means of burning
their shipping, towns, etc., there were several
remarks made by you upon the subject that
I was not fully prepared to an.swer, but which,
upon subsequent conference with parties pro
posing the enterprise, I find can not apply as
objections to the sche-me.
1. The combustible material .consiets of
several preparations and not one alone, and
can be used without exposing the party using
them to the least danger of detection what
ever. The preparations are not in the hands
of McDaniel, but are in the hands of Pro
fessor McCuUough, and are known but to
him and one other party, as I understand.
2. There is no necessity for sending persons
in the military service into the enemy's coun
try; but the work may be done by agents,
and. in most cases, by persons ignorant of the
facts, and therefore innocent agents,
I have seen enough of the effects that can
be produced to satisfy me, that, in most cases,
without any danger to the parties engaged,
and in others but very slight, we can — 1,
Burn every vessel that leaves a foreign port
for the United States, 2. We can burn every
transport that leaves the harbor of New
York or other Northern port, with supplies
for the armies of the enemy in the South,
3. Burn every transport and gunboat on the
Mississippi River, as well as devastate the
country of the enemy, and fill his people with
terror and consternation, I am not alone of
this opinion, but many other gentlemen are
as fully and thoroughly impressed with the
conviction as I am, I believe we have the
means at our command, if promptly appro
priated and energetically applied, to demor
alize the Northern people in a very short time.
For the purpose of satisfying your mind upon
the subject, I respectfully, but earnestly, re
quest that you will have an interview with
General Harris, formerly a member of Con
gress from Missouri, who, 1 think, is able,
from conclusive proofs, to convince you that
what I ha>» suggested is perfectly feasible
and practicable.
The deep interest I feel for the success of
our cause in this struggle, and the conviction
of the importance of availing ourselves of
every element of defense, must be my excuse
for writing you, and requesting you to invite
General Harris to see you. If you should see
proper to do so, please signify the time when
it will be convenient for you to see him,
I am, respectfully, your obedient servant,
W. S. OLDHAM.
indorsement.
Hon, W, S. Oldham. Richmond, February
12, 1865. In relation to plans and means for

burning the enemy's shipping, towns, etc.
Preparations are in the hands of Professor
McCuUough, and are known to only one other
party. Asks the President to have an in
terview with General Harris, formerly _a
member of Congress from Missouri, on the
subject SECOND indorsement.
Secretary of State, at his convenience, please
see General Harris, and learn what plan he
has for overcoming the difficulty heretofore
experienced. "- D
20 Feb'y, '65.
Rec'd Feb'y 17, 1865.
John Potts.
For the Prosecution. — May 18.
I am chief clerk in the War Department,
which position I have filled for upward of
twenty years. While Jefferson Davis was
Secretary of War, I had abundant opportuni
ties of becoming acquainted with his hand
writing, and became perfectly familiar with
it In my belief, the indorsement on that
letter just read is in his handwriting,
Nathan Rice,
For the Prosecution. — -May 18.
I was requisition clerk eight years ago,
when Jefferson Davis was Secretary of War,
and every day he had to sign the requisitions
that came to* me. The indorsement on the
letter signed W. S, Oldham, I should think,
was in the handwriting of Jefferson Davis.
I had ample opportunities of becoming ac
quainted with his handwriting, seeing from
ten to twenty-five signatures of his every day,
and sometimes they were signed in my pres
ence,
Joshua T, Owen.
For the Prosecution. — May 18,
I have known Professor McCuUough, 1
suppose, for twenty years ; he was Professor
of Chemistry at Princeton College. At Jef
ferson College, Pennsylvania, where I grad
uated about 1839 or 1840, he was Professor
of Mathematics, and if my recollection serves
me, he was Assayer at the Mint, Philadelphia.
He has, I believe, been at Richmond during
the rebellion, in the service of the Confed
erates. He had attained some distinction as
a chemist, perhaps more in that than in any
thing else.
General Alexander J, Hamilton.
For the Prosecution. — May 20.
I am a citizen of the State of Texas, and
was formerly a member of Congress from
that state. I am perfectly familiar with tbe
handwriting of Williamson S. Oldham. The
letter which has just been introduced in evi
dence, signed W. S. Oldham, is in his hand-

DESTRUCTION OP STEAMBOATS, ETC.

49

writing. At the time of writing this letter,
he was a member of the Senate of the so-
called Confederate States. I so conclude,
because I was present, in 1801, when he was
elected for six years, by the rebel Legislature
of Texas, to a seat in Ihe Senate of the rebel
(Tovernment, and since then I have seen re
ports of many speeches of his, and resolutions
and . bills introduced by him into the rebel
."Senate.

DESTRUCTION OF STEAMBOATS, Etc.
Edward Frazier.
For the Prosecution, — June 8.
I am a steamboat man, and have been
making St Louis my home for the last nine
or ten years. During 1864 1 knew of the
operations of Tucker, Minor Majors, Thomas
L, Clark, and Colonel Barrett of Missouri,
for burning boats carrying Government freight,
transports, and other vessels on the Missis
sippi, Ohio, and other rivers. These men
were in tbe service of the Confederate Gov
ernment I knew of the following steamboats
having been been burned by the operations
of these parties: the Imperial, Hiawatha, the
Robert Campbell, the Louisville, the Daniel
G, Taylor, and others, besides some in New
Orleans that I do not know the name of
The Imperial was one of the largest and
finest transports on the western waters. In
the case of the burning of the Robert Camp
bell, which was destroyed in the stream, when
under way, at Milliken's Bend, twenty-five
miles above Vicksburg, there was a consid
erable loss of life. The agent who destroyed
this boat was on board. These boats were
all owned by private individuals.
The operations of these men were to in
clude Government hospitals, store-houses, and
every thing appertaining to the army, A
United States hospital at Louisville was
burned in June or July of 1864, I do not
know who burned it, but a man named Dil
lingham claimed compensation for it
I was in Richmond from the 20th to the
25th or 26th of August last, when I had an
interview with the rebel Secretary of War,
the Secretary of State, and Mr. Jefferson
Davis. Thomas L. Clark, Dillingham, and
myself called there in connection with the
boat burning, and put in claims to Mr. James
A. Seddon, the rebel Secretary of War, Mr,
Clark introduced me to Mr, Seddon, He told
me that he had thrown up that business ; that
it was now in the hands of Mr Benjamin,
We went to him, and Mr, Benjamin looked
at the papers we brought him, and asked me
if I knew any thing about them. I told him
that I did, and that I believed they were all
right He asked me if I was from St Louis ;
I told him I was. He then asked Mr. Clark
if he knew me to be all right, and he said I
had been represented to him by Mr. Majors

as being all right Mr. Benjamin told us all
three to call next day. We did so, when he
said he had shown those papers to Jefferson
Davis, and he (Benjamin) wanted to know
if we would not take $30,000 and sign re
ceipts in full. We told him we would not
Mr Benjamin then said that if Dillingham
was to claim this in Louisville, he wanted a
statement of it We went back to the hotel,
and I wrote the statement myself It read
that Mr. Dillingham had been hired by Gen
eral Polk, and that he had been sent to
Louisville expressly to do that work — namely,
burn the hospital. It was then talekd over,
with Mr. Benjamin, and we made a settle
ment with him for $50,000; $35,000 down in
gold, and $15,000 on deposit, to be paid in
four months, provided the claims proved cor
rect The money was paid by a draft on
Columbia for $34,800 in gold, and $200 in
gold we got in Richmond. We received the
gold on the draft at Columbia.
While at Richmond Mr. Benjamin told me
that Mr, Davis wanted to see me. I went in
with Benjamin to see Mr, Davis, and we sat
and talked. The conversation first was about
what was called the Long Bridge, between
Nashville and Chattanooga, Mr, Davis
wanted to know what I thought about de
stroying it He said they had been think
ing about it, and of sending some one to have
it done. I told him I knew of the bridge,
though I did not, for I had never been there;
but I did not know what to think about de
stroying it He said I had better study it
over. Finally, I told him I thought it could
be done, Mr. Benjamin, I believe it was,
who flrst remarked that he would give
$400,000 if that bridge was destroyed, and
asked me if I would take charge of it I
told him I would not, unless the passes were
taken away from those men that were now
down there; and Mr, Davis said it should be
done. The conversation then turned on the
burning of the steamboats, I told Mr, Davis
that I did not think it was any .use burning
steamboats, and he said no, he was going to
have that stopped. The next day I saw an
order in the paper taking away passes issued
on or before the 23d of August These passes
were permits to do this kind of work.
I asked Mr, Davis if it would make any dif
ference where the work of destroying bridges
was done. He said it did not; it might be
done in Illinois, or any place; that we might
destroy 'railroad bridges, commissary and
quarter-master stores — any thing appertain
ing to the army, but as near Sherman's base
as possible; that Sherman was the man wlio
was doing more harm than any body else at
that time.
I presume Mr. Davis knew that the pay I
received was for the work I had done; he
knew I had received money there.
The papers we presented were statements
written out by Mr, Clark, of the services
rendered and the amount claimed.

50

THE CONSPIRACY TRIAL.

Mr. Davis seemed fully aware of what we
had done, and he did not condemn it Mr.
Majors and Barrett belonged to an organiza
tion known as the O, A. K,, or Order of
American Knights.
Q, Will you state, if you think proper to
do so, whether you are also a member of
that order? You are not bound to state it,
if the answer will criminate you in any way,
[The witness declined to answer.]
I understood that Colonel Barrett held the
position of Adjutant-General of this organi
zation, of the Sous of Liberty, for the State
of Illinois, I do not know that Majors and
Barrett were in Chicago in July last, but Mr,
Majors left St Louis, either in Ju-ne or July,
to go to Canada, and I presume went there
by way of Chicago.

THE CITY POINT EXPLOSION.
Brig,-Gbn. E. D. Townsend, U. S. A.
For the Prosecution, — June 12.
I was well acquainted with G. J. Rains,
who resigned as Lieutenant-Colonel of the
Fifth Regiment of United States Infantry in
1861. He has, I understand, since then been
Brigadier-General in the rebel service, I
am acquainted with his handwriting, and, to
the best of my knowledge and belief, the sig
nature to the indorsement now shown to me
is in his handwriting,
[The following letter, with the indorsement, was then
r«ad and put in evidence:] RiCHMONn, December 16, 1864.
Capt, Z, McDaniel, Com! ding Torpedo Co.:
Captain: I have the honor to report that,
in obedience to your order, and with the
means and equipment furnished me by you,
I I left this city 26th July last, for the line of
the James River, to operate with the "Hozo-
logical Torpedo" against the enemy's vessels
navigating that river. I had with me Mr. R,
K. Dillard, who was well acquainted with the
localities, and whose services I engaged for
the expedition. On arriving in Isle of Wight
County on the 2d of August, we learned of
immense supplies of stores being landed at
City Point; and, for the purpose, by stratagem,
of introducing our machine upon the vessels
there discharging stores, started for that point
We reached there before daybreak, on the
9th of August last, with a small amount of
provisions, having traveled mostly by night,
and crawled upon our knees to pass the east
picket line. Requesting my companion to re
main behind about half a mile, I approached
cautiously the wharf, with my machine and
powder covered by a small box. Finding the
Captain had come ashore from a barge then
at the wharf, I seized the occasion to hurry
forward with my box. Being halted by one
of the wharf sentinels, I succeeded in passing
him by representing that the Captain had
ordered me to convey the box on board.

Hailing a man f.L-om the barge, I put the ma
chine in motion, and gave it in his charga
He carried it aboard. The maga.zine con
tained about twelve pounds of_ powder. Re
joining my companion, we retired to a safb
distance to witness the effect of our effort In
about an hour the explosion occurred. Its
effect was communicated to another barge
beyond the one operated upon, and also to a
large wharf building containining their stoj-es,
(enemy's,) which was totally destroyed. The
scene was terrific, and the effect deafened my
companion to an extent from which he has
not recovered. My own person was severely
shocked, but I am thankful to Providence
that we have both escaped without' lasting
injury. We obtained and refer you to the
inclosed slips from the enemy's newspapers,
which afford their testimony of the terribla
effects of this blow. The enemy estimate the
loss of life at fifty-eight killed and one hun
dred and twenty-six wounded, but we have
reason to believe it greatly exceeded that
The pecuniary damage we heard estimated
at four millions of dollars; but of course we
can give you no account of the extent of it
exactly, I may be permitted. Captain, here
to remark that, in the enemy's statement, a
party of ladies, it seems, were killed by tliis
explosion. It is saddening to me to realizt
the fact that the terrible effects of war induce
such consequences ; but when I remember the
ordeal to which our own women have been
submitted, and the barbarities of the enemy's
crusade against us and them, my feelings are'
relieved by the reflection that while this
catastrophe was not intended by us, it amounts
only, in the providence of God, to just re
taliation. This being accomplished, we returned to
the objects of our original expedition. We
learned that a vessel (the Jane Duffield) was
in Warwick River, and, with the assistance
of Acting-Master W. H, Hinds, of the Con
federate States navy, joined a volunteer party
to capture her. She was boarded on the 17th
September last, and taken without resistance.
We did not destroy her, because of the effect
it might have had on the neighboring citizens
and our own further operations. At the in
stance of the Captain she was bonded, he
offering as a hostage, in the nature of security
to the bond, one of his crew, who is now
held as a prisoner of war on this condition in
this city.
In the meanwhile we operated on the James,
as the weather and moon co-operated, but
without other success than the fear with which
the enemy advanced, and the consequent re
tarding of his movements on the river. We
neared success on several occasions. Finding
our plan of operations discovered by the
enemy, and our persons made known and
pursued by troops landed from their boats at
Smithfield, we deemed it best to suspend oper
ations in that quarter and return to report to
you, officially, our labors. Your orders were

MILLION DOLLARS FOR ASSASSINATION.

51

to remain in the enemy's lines as long as we
could do so; but 1 trust this conduct will
meet your approval. The material unused has
been safely concealed. I have thus. Captain,
presented you in detail the operations con
ducted under your orders and the auspices of
your company, and await further orders.
Very respectfully, your obedient servant,
JOHN MAXWELL.
INDORSEMENTS. Decomher 17, 1864.
Report of J. Maxwell, of Captain Z. M«-
Daniel's Company, Secret Service, of his oper
ations on James River.
Respectfully forwarded to Brigadier-General
Rains. Z. MoDANIEL,
Captain Company A, Secret Service,
roa. Bn., KicHMoND, Ta,, 1
December 17, 1864. J
For Hon. Secretary of War :
Present,
Respectfully forwarded, with remark that
John Maxwell dnd R. K, Dillard were sent
by Captain McDaniel into the enemy's lines
by my authority, for some such purpose, and
the supposition was strong, as soon as the
tremendous explosion occurred at City Point,
on the 9th August last, that it was done
through their agency, but, of course, no re
port could be made until the parties returned,
which they did on Wednesday last, and gave
an account of their proceedings.
This succinct narrative is but an epitome
of their operations, which necessarily implies
secrecy, for the advantage of this kind of
service, as well as their own preservation.
John Maxwell is a bold operat-or and well
calculated for such exploits, and also his co
adjutor, R. K. Dillard.
G. J. RAINS,
Brigadier General, Sup't.

MILLION DOLLARS FOR ASSASSINA
TION.
John Cantlin.
For the Prosecution,^June 27.
I reside at Selma, Alabama, and am a
printer. I was foreman of the Selma Dis
patch in December last
[The following advertisement, purporting to have been
clipped from the Selma Dispatch, was then read by the
Judge Advocate, and offered in evidence :]
" One Million Dollars Wanted to have
Peace by the 1st of March. — If the citizens
of the Southern Confederacy will furnish me
with the cash, or good securities for the sum
of one million dollars, I will cause the lives
of Abraham Lincoln, Wm. H. Seward, and
Andrew Johnson to be taken by the 1st of
March next. This will give us peace, and
satisfy the world that cruel tyrants can not
live in a 'land of liberty.' If this is not
accomplished, nothing will be claimed beyond

the sum of fifty thousand dollars in advance,
which is supposed to be necessary to reach
and slaughter the three villains.
"I will give, myself, one thousand dollars
toward this patriotic purpose. Every one
wishing to contribute will address Box X,
Cahawba, Alabama.
"December 1, 1864."
That advertisement was published in the
Selma Dispatch, and, as far as I remember,
at the date named. It was inserted four or
five times; the manuscript passed through
my hands, and was in the handwriting of
Mr. G. W. Gayle, of Cahawba, Ala. His
signature was on the manuscript, to indicate
that he was the author, and was responsible
for it I am familiar with his handwriting.
The Selma Dispatch had a circulation of
about eight hundred copies, and exchanged
with most, if not all, the Richmond papers.
Mr. Gayle is a lawyer of considerable
reputation, and is distinguished, even in
Alabama, for his extreme views on the sub
ject of slavery and the rebellion, and as an
ardent supporter of the Confederacy.
W. D. Graves.
For the Prosecution. — June 27.
I reside in Selma. Alabama, and am a
printer. I was engaged in the office of the
Selma Dispatch in December last, and
remember seeing an advertisement published
iu that paper, signed "X," bearing date
December 1st, 1864, headed, "One Million
of Dollars Wanted, to have Peace by the
First of March." I saw the manuscript
from which the advertisement just testified
to was set up. It was in the handwriting
of Colonel G. W. Gayle ; I am well acquainted
with it, having seen it frequently in articles
we had published before.

PROPOSALS TO RID THE COUNTRY
" OF SOME OF HER DEADLIEST
ENEMIES."
Colonel R. B. Treat
For the Prosecution, — May 22.
I am Chief Commissary of the Army of
the Ohio, and have recently been on duty in
the State of North Carolina. The army
with which I have been connected captured
a variety of boxes said to contain archives
of the so-called Confederate States. They
were delivered up by General Joseph A.
Johnston, at Charlotte, N. C.
A letter was sent to General Schofield at
Raleigh from General Johnston at Charlotte,
stating that he had in his possesion there
the records and archives of the Confederacy,
which he was ready to deliver on General
Schofield's sending an .officer to receive
them. The day following, an officer on the

52

THE CONSPIRACY TRIAL.

General's staff was sent to Charlotte, who
received them and brought them to Raleigh.
From that point I brought them here, and
delivered them at the War Department to
Major Eckert, Acting Assistant Secretary of
W&Tc,
Major T. T. Eckert.
For the Prosecution, — May 22.
Yesterday morning I received at the War
Department certain boxes from Colonel
Treat, purporting to contain the archives or
records of the War Department of the so-
called Confederate States. Some of these
boxes, by my direction, have been opened
by Mr, Frederick H, Hall, and their contents
have undergone an examination by him.
Frederick H, Hall,
For the Prosecution. — May 22.
I have opened certain of the boxes deliv
ered to Major Eckert, containing the archives
of the so-called Confederate States. From
the box. marked "Adjutant and Inspector-
General's Office; Letters received July to
December, 1864," I took this letter.
[The following letter was then read and offered in evi
dence :] MONTGOMEBT, WHITE SULPHUB SPBTNQS, VA.
To his Excellency the President of the Confed
erate States of America :
Dear Sir: I have been thinking some
time that I would make this communication
to you, but have been deterred from doing
so on account of ill health. I now offer you
ray services, and if you will favor me in my
designs, I will proceed, as soon as my health
will permit, to rid my country of some of her
deadliest enemies, by striking at the very
heart's blood of those who seek to enchain
her in slavery. I consider nothing dishon
orable having such a tendency. All 1 ask
of you is to favor me by granting me the
necessary papers, etc., to travel on while
within the jurisdiction of the Confederate
Government. I am perfectly familiar with
the North, and feel confident that I can
execute any thing I undertake. I am just
returned now from within their lines. I am
a lieutenant in General Duke's command,
and I was on the raid last June in Kentucky
under General John H, Morgan, I and all
of my command, excepting about three or
four, and two commissioned officers, were
taken prisoners; but finding a good oppor
tunity, while being taken to prison, I made
my escape from them. Dressing myself in
the garb of a citizen, I attempted to pass
out through the mountain; but finding that
impossible, narrowly escaping two or three
times from being retaken, I shaped my
course north and went through to the Canadas,
from whence, by the assistance of Colonel
J. P. Holcombe, I succeeded in making my
way around and through the blockade; but

having taken the yellow fever, etc, at Ber
muda, I have been rendered unlit for service
since my arrival.
I was reared up in the State of Alabama,
and educated at its university. Both the
Secretary of War and his assistant,^ Judge
Campbell, are personally acquainted with
my father, William J. Alston, of the Fifth
Congressional District of Alabama, having
served in the time of the old Congress, in the
years 1849-50-51.
If I do any thing for you, I shall expect
your full confidence in return. If you do
this, I can render you and my country very
important service. Let me hear from you soon,
I am an.xious to be doing something, and
having no command at pi-esent, all, or nearly
all, being in garrison, I desire that you favor
me in this a short time. I would like to
have a personal interview with you, in order
to perfect the arrangements before starting
I am, very respectfully.
Your obedient servant,
Lieut. W. ALSTON.
INDORSEMENTS.
A, 1,390. Lieutenant W. Alston, Mont
gomery, Sulphur Springs, Va. [No date.]
Is lieutenant in General Duke's command.
Accompanied raid into Kentucky and was cap
tured, but escaped into Canada, from whence
he found his way back. Been in bad health.
Now offers his services to rid the country
of some of its deadliest enemies. Asks for
papers to permit hinl to travel within the
jurisdiction of this Government Would like
to have an interview and explain.
Respectfully referred, by direction of the
President, to the Honorable Secretary of War.
BURTON W. HARRISON,
Private Secretary.
Received November 29, 1864.
Recorded book A. A. G. 0., December 15,
1864. A. G. for attention.
By order. J. A. CAMPBELL, A. S. W.
Lewis W. Chamberlayne.
For the Prosecution. — May 26.
I reside at Richmond, Virginia, arid have
been on duty as a clerk in the War Department
of the Confederate States. While so acting,
I became acquainted with the handwriting
of John A, Campbell, rebel Assistant Secre
tary of War, and late Judge of the Supreme
Court of the United States; also, with that
of Burton W. Harrison, the IPrivateiSecretary
of Jefferson Davis. I have examined the
letter of Lieutenant W. Alston, and the
irtdorsements thereon, and the indorsement,
" Respectfully referred, by direction of the
President, to the Honorable Secretary of'
War," is, to the best of my knowledge and
belief, in the handwriting of Burton W
Harrison, who was recognized in the Wai

COMMISSIONS FOR RAIDERS.

53

OfHce at Richmond as the private secretary
of Jefferson Davis.
The other indorsement,
" A. G. for attention. -,
"By order.
[Signed] "J. A. Campbell, A. S. W."
is in the handwriting of Judge Campbell.

COMMISSIONS FOR RAIDERS.
George F. Edmunds.
i''or the Prosecution, — May 27.
I reside at Burlington, Vt, and am coun
selor at law. At the recent trial of the St
Albans raiders that took place in Canada,
I appeared as counsel in behalf of the Gov
ernment of the United States.
In the performance of my duty there, I
became acquainted with Jacob Thompson,
William C. Cleary, Clement C. Clay, George
N. Sanders, and others of that clique. They
assumed to be officers of the Confederate
Government in defending these raiders, I
have no personal knowledge of their real
authority, but they were notoriously under
stood there to be the representatives of the
rebel cause. Mr. Cleary was examined as a
witness on the part of the defendants ; he
represented that the persons engaged in this
raid were acting under, the authority of the
Confederate Government All those who
testified stood upon that defense.
The volume entitled "The St' Albans
Raiders, or Investigation into the Charges
against Lieutenant Bennett H. Young, and
Command for their acts at St Albans, Vt,
on the 19th of October, 1864, compiled by
L. N, Benjamin, B, C, L,, printed at Montreal
by John Lovell," contains, on page 216, a copy
<rf a paper marked R, the original of which
was given in evidence at the trial, on the part
of the defendant, Mr. Young, and others, I
examined the original very critically, and I
am able to swear that this is substantially a
copy, and I have no doubt it is a literal one,
[The following was then read and put in evidence :]

A,|

CONTEnEBATE STATES Or AMEEICA,
Wab Depabtbient,
Bichmond, Va., June 16, 1864,
To Lieutenant Bennett H, Toung :
Lieutenant: You have been appointed
temporarily first lieutenant in the provisional
army for special service.
You will proceed, without delay, to the
British Provinces, where you will report to
Messrs. Thompson ^nd Clay for instructions.
You will, under their direction, collect
together such Confederate soldiers who have
escaped from the enemy, not exceeding twenty
in number, as you may deem suitable for the
purpose, and will execute such enterprises as
may be intrusted to you. You will take care
to commit no violation of the local law, and

to obey implicitly their instructions. You
and your men will receive from these gentle
men transportation, and the customary rations
and clothing, or the commutation therefor,
JAMES A. SEDDON,
Va., June 16. Secretary of War.
Bennett H. Young, who was on trial, pro
duced that document as his authority for the
acts he did at St Albans.
Henrt G. Edson.
For the Prosecution. — June 10.
I reside at St Albans, Vt, and am an at
torney and counselor at law. I was in
Canada during the judicial investigations in
connection with the St Albans raid, acting as
counsel in behalf of the bank and the United
States, I saw there George N, Sanders, Ja
cob Thompson, Clement C. Clay, and others
of that circle of rebels,
I heard a conversation between George N,
Sanders and other parties at St John's, in re
gard to movements in the States contemplated
by the rebel authorities, I made a memo
randum in my diary of this conversation at
the time.
In speaking of the so-called St Albans raid,
George N, Sanders said he was ignorant of it
before it occurred, but was satisfied with it.
He said that it was not the last that would
occur; but it would be followed up by the
depleting of many other banks, and the burn
ing of many other towns on the frontier, and
that many Yankee sons of  (using a
course, vulgar expression) would be killed.
He said that they had their plans perfectly
organized, and men ready to sack and burn
Buffalo, Detroit, New York, and other places,
and had deferred them for a time, but would
soon see the plans wholly executed; and any
preparation that could be made by the Gov
ernment to prevent them would not, though
it might defer them for a time. He made
other statements in connection with the case;
that he had hired a house in St John's,
which he intended to furnish himself, to ac
commodate his friends and attorneys; that
he had employed twenty or thirty counsel in
Canada, Sanders claimed to be acting as an agent
of the so-called Confederate Government
He said that he had retained the counsel who
had acted in the case, and that Mr Clement
C. Clay, from the Clifton House, was also to
aid.

PLOT TO BURN NBW YORK CITY.
Colonel Martin Burke.
For the Prosecution, — May 29.
I knew Robert C. Kennedy, who was
hanged in New York in March last I had
charge of him and had him hung. I hold
in my hand a confession made by him in

54

THE CONSPIRACY TRIAL.

my presence, a day or so before his execu
tion. [The following was then read and put in evidence :]

CONFESSION OF ROBERT C. KENNEDY.
After my escape from Johnson's Island, I
went to Canada, where I met a number of
Confederates, They asked me if I was will
ing to go on an expedition, I replied, "Yes,
if it is in the service of my country," They
said, "It is all right," but gave no intima
tion of its nature, nor did I ask for any, I
was then sent to New York, where I staid
some time. There were eight men in our
party, of whom two fied to Canada, After
we had been in New York three weeks, we
were told that the object of the expedition
was to retaliate on the North for the atroc
ities in the Shenandoah Valley. It was de
signed to set fire to the city on the night of
the Presidential election; but the phospho
rus was not ready, and it was put off until
the 25th of November. I was stopping at
the Belmont House, but moved into Prince
Street I set fire to four places — in Barnum's
Museum, Lovejoy's Hotel, Tammany Hotel,
and the New England House. The others
only started fires in the house where each
was lodging, and then ran off. Had they all
done as I did, we would have had thirty-two
flres, and played a huge joke on the fire de
partment I know that I am to be hung for
setting fire to Barnum's Museum, but that
was only a joke. I had no idea of doing it
I had been drinking, and went in there with
a friend, and, just to scare the people, I
emptied a bottle of phosphorus on the floor.
We knew it would n't set flre to the wood,
for we had tried it before, and at one time
concluded to give the whole thing up.
There was no flendishness about it After
setting fire to my four places, I walked the
streets all night, and went to the Exchange
Hotel early in the morning. We all met
there that morning and the next night My
friend and I had rooms there, but we sat in
the office nearly all the time, reading the
papers, while we were watched by the de
tectives, of whom the hotel was full. I ex
pected to die then, and if I had, it would
have been all right; but now it seems rather
hard, I escaped to Canada, and was glad
enough when I crossed the bridge in safety,
I desired, however, to return to my com
mand, and started with my friend for the
Confederacy, via Detroit Just before enter
ing the city, he received an intimation that
the detectives were on the lookout for us,
and, giving me a signal, he jumped from the
cars, I didn't notice the signal, but kept on,
and was arrested in the depot
I wish to say that killing women and
children was the last thing thought of We
wanted to let the people of the North under
stand that there were two sides to this war,
and that they can't be rolling in wealth and

comfort, while we at the South are bearing
all the hardships and privations.
In retaliation for Sheridan's atrocities in
the Shenandoah Valley, we desired to destroy
property, not the lives of women and chil
dren, although that would, of course, have
followed in its train.
^Done in the presence of
Lieut-Col. martin BURKE,
And J. HOWARD, Jr.
March 24, 10:30 P. M.

INTRODUCTION OF PESTILENCE
Godfrey Joseph Hyams.
For the Prosecution, — May 29.
I am a native of London, England, but
have lived South nine or ten years. During
the past year, I have resided in Toronto,
Canada. About the middle of December,
1863, I made the acquaintance of Dr. Black
burn ; I was introduced to him by the Rev.
Stewart Robinson, at the Queen's Hotel, in
Toronto. I knew him by sight previously,
but before that had had no conversation
with him. I knew that he was a Confeder
ate, and was working for the rebellion. Dr.
Blackburn was then about to take South
some men who had escaped from the Fed
eral service, and I asJjed to go with him.
He asked me if I wanted to go South and
serve the Confederacy. I said I went He
then told me to come up stairs; he wanted
to speak to me. He took me up stairs to ,
a private room, and pledged his word, as a
Freemason, and offered his hand in friend
ship, that he would never deceive me; he said
he wanted to confide to me an expedition,
I told him I would not care if I did. He
said I would make an independent fortune
by it, at least $100,000, and get more honor
and glory to my name than General lee,
and be of more assistance to the Confederate
Government, than if I was to take one hun
dred thousand soldiers to reinforce General
Lee. I pledged my word that I would go,
if I could do any good. He then told me
he wanted me to take a certain quantity of
clothing, consisting of shirts, coats, and un
derclothing into the States, and dispose of
them by auction. I was to take them to
Washington City, to Norfolk, and as far
South as I could possibly go, where the Fed
eral Government held possession and had the
most troops, and to sell them on a hot day
or of a night; that it did not matter what
money I got for the clothes; I had just to
dispose of them in the •best market, where
there were most troops, and where they
would be most effective, and then come
awa)-. He told me I should have $100,000 for
my services; $60,000 of it directly after I
returned to Toronto; but he said that would

INTRODUCTION OF PESTILENCE.

55

not be a circumstance to what I should get
He said I might make ten times $100,000.
I was to stay in Toronto, and go on with
my legitimate business, until I heard from
him. He told me to keep quiet, and if I
moved anywhere, I was to inform Dr. Stuart
Robinson where I went to, and he would
telegraph for me, or write to me through
him. Some time in the month of May, 1864,
I went to my work, and worked on until the
8th day of June, 1864; it was on a Satur
day night; I had been out to take a pair
of boots home to a customer of mine; and
when I returned home, my wife had a letter
for me from Dr. Blackburn, which Dr. Stu
art Robinson had left in passing there. I
read tbe letter, and went out to see Dr. Rob
inson. I asked him what I was to do about
it; he said he did not know any thing at all,
about it; that he did not want to furnish any
means to commit an overt act against the
United States Government He advised me
to borrow from Mr. Preston, who keeps a
tobacco manufactory in Toronto, enough
money to take me to Montreal, which I did,
I went down to Montreal, and there got
money from Mr, Slaughter, according to the
directions contained in the letter. The letter
instructed me, to proceed from Montreal to
Halifax to meet Dr. Blackburn ; it was dated
" Havana, May 10, 1864." I went to Hal
ifax, to a gentleman by the name of Alexan
der H. Keith, jr, and remained under his
care until Dr. Blackburn arrived in the
steamer Alphia, on the 12th of July, 1864,
When Dr, Blackburn arrived, he sent to the
Farmer's Hotel, where I was staying, for me.
I went to see him, and he told me that
the goods were on board the steamer Alphia,
and that the second officer on the steamer
would go with me and get the goods off, as
they had been smuggled in from Bermuda,
Mr. Hill, the second officer, told me to get
an express wagon and take it down to Cu-
nard's steamboat wharf; I did so, and there
got eight trunks and a valise, I was directed
to take them to my hotel, and put them in
a private room. I put them in Mr. Doran's
private sitting-room,
I then went around to Dr. Blackburn and
told him I had got the goods off the steamer.
He told me that the five trunks tied up with
ropes were the ones for me to take, and asked
me if I would take the valise into the States,
and send it by express, with an accompany
ing letter, as a donation to President Lin
coln. I objected to taking it, and refused
to do it I then took three of the trunks
and the valise around to his hotel. He was
then staying at the Halifax Hotel. The
trunks had Spanish marks upon them, and
he told me to scrape them off; and that Mr.
Hill would go with me the next morning,
and make arrangements with some captain
of a vessel to take them. There were two
vessels there running to Boston, and I was

to smuggle the trunks into Boston. The
next morning I went down with Mr. Hill to
the vessels.
Mr. Hill had a private conversation with
Captain McGregor, the captain of the first
vessel to whom we applied, and he refused
to take the goods. We then went to see
Captain John O'Brien of the bark Halifax.
Hill told him that I had some presents in
my trunks, consisting of silks, satin dresses,
etc, that I wanted to take to my friends.
The Captain and Mr. Hill had a private
conversation, and when the Captain came
out, he consented to take them. I was to
give him a twenty-dollar gold piece for
smuggling them in. I put them on board
the vessel that day, and he stowed them
away. The vessel laid five days at Boston
befo).e he could get a chance to get them off,
but he finally succeeded in getting them off,
and expressed them to Philadelphia, where
I received them, and brought them to Bal
timore. I then took out the goods, which
were very much rumpled, smoothed them
out, and arranged them, bought some new
trunks, and repacked them, and brought
them to this city.
Dr. Blackburn, by way of caution, asked
me before leaving if I had had the yellow
fever; and on my saying "No," he said,
" You must have a preventive against
catching it. You must get some camphor
and chew it, and get some strong cigars, the
strongest you can get, and be sure to keep,
gloves on when handling the things." He
gave me some cigars that he said he had
brought from Havana, which he said were
strong enough for any thing.
When I arrived in this city, I turned over
five of the trunks to Messrs. W. L. Wall &
Co., commission merchants in this city, and
four to a man by the name of Myers from
Boston, a sutler in Sigel's or Weitzel's
division. He said he had some goods which
he was going to take to N^bern, North
Carolina, and I told him that I haijl a lot
of goods that I wanted to sell, and t6 make
the best market I could for them, I would
turn them over to him on commission. I
also told him I would shortly have more,
and mentioned that I bad disposed of some
to Wall & Co., of this city.- Dr. Blackburn
told me, when I was making arrangements,
that I should let the jJarties to whom t
disposed my goods know that I would have
a big lot to sell, as it, was in contemplation to
get together about a million dollars' worth
of goods and dispose of them in this way.
Dr. Blackburn stated that his object in
having these goods disposed of in different
cities, was to destroy the armies or anybody
that they came in contact with. All these
goods, he told me, had been carefully infected
in Bermuda with yellow fever, small-pox,
and other contagious diseases. The goods in
the valise, which were intended for President

to make an arrangement with either of them ' Lincoln I understood him to say, had been

56

THE CONSPIRACY TRIAL.

infected both with yellow fever and small
pox. This valise I declined taking charge
of, and turned it over to him at the Halifax
Hotel, and I afterward 'heard that it had
been sent to the President
On the five trunks that I turned over to
W. L. Wall & Co,, I got an advance of $100.
Among these flve trunks there was one that
was always spoken of by Blackburn to me
as "Big No, 2," which he said I must be sure
to have sold in Washington.
On disposing of the trunks, I immediately
left Washington, and went straight through
until I got to Hamilton, Canada, In the
waiting-room there I met Mr, Holcombe and
Mr, Clement C, Clay, They both rose, shook
hands with me, and congratulated me upon
my safe return, and upon my making a for
tune. They told me I should be a gentleman
for the future, instead of a working-man and
a mechanic. They seemed perfectly to under
stand the business in which I had been
engaged, Mr. Holcombe told me that Dr,
Blackburn was at the Donegana Hotel in
Montreal, and that I had better telegraph to
him, stating that I had returned.
As Dr, Blackburn had requested me to
telegraph to him, as soon as I got into
Canada, I did so; and the next night, be
tween 11 and 12 o'clock, Dr, Blackburn
came up and knocked at the door of my Jiouse,
I was in bed at the time. I looked out of
the window and saw Dr, Blackburn there.
Said he, " Come down, Hyams, and open the
door; you're like all damned rascals who
have been doing something wrong — you're
afraid the devil is after you." He was in
company with Bennett H. Young, I came
down an'd let him in. He asked me how I
had disposed of the goods, and' I told him,
" Well," said he, " that is all right, as long as
big No, 2 went into Washington; it will kill
them at sixty yards' distance," I then told
the Doctor that every thing had gone wrong at
my home in my absence; that I needed some
funds; that my family needed money. He
said he would go to Colonel Jacob Thompson
and make arrangements for me to draw upon
him for any amount of money I required.
He then said that the British authorities had
solicited his services in attending to the yellow
fever that was then raging in Bermuda; that
he was going on there ; and that as soon as he
came back he would see me, I went up to
Jacob Thompson the next morning, and
told him what Dr, Blackburn had said. He
said, "Yes; Dr, Blackburn had been there,
and had made arrangements for me to draw
$100 whenever it was shown that I had made
disposition of the goods according to his
direction," I told him I needed money; that
I had been so long away from home that
every thing I had was gone, and I wanted
money to pay my rent, etc. He said, "I will
give you $50 now, but it is against Dr,
Blackburn's request; when you show me that
you have sold the goods, I will give you the

balance." He asked me to give him a
receipt, which I did: "Received of Jacob
Thompson he sum of $50, on account of
Dr. Blackburn." That was about the llth
or 12th of August last The next day I
wrote to Messrs, Wall & Co,, of Washington,
desiring them to send me an account of the
sales, and the balance due me. When I
received their answer, I took it up to show
to Colonel Thompson, He then said he was
perfectly satisfied I had done my part, and
gave me a check for $50 on the Ontario
Bank, I gave him a receipt : "Received
from Jacob Thompson $100, in full, on
account of Dr, Luke P, Blackburn."
I told Jacob Thompson of the large sum
which "Dr. Blackburn had promised me for
my services, and that he and Mr. Holcombe
had both told me that the Confederate Gov
ernment had appropriated $200,000 for the
purpose of carrying it out; but he would not
pay me any thing more.
When Dr, Blackburn returned from Bei>
muda, I wrote to him at Montreal, and told
hint I wanted some money, and that he
ought to send me some ; but he made no reply
to my letter, I was then sent down to Mon
treal with a comrnission for Bennett H,
Young, to be used in his defense in the St
Albans raid case, I there met Dr, Black
burn, He said I had written some hard letr
ters to him, abusing him, and that he had no
money to give me. He then got into his car
riage at the door, and rode off to some races, I
think, and never gave me any more satisfao-
tion. As I wanted money before leaving for the
States, I went to the Clifton House, Niagara,
Dr, Blackburn told me he had no money
with him then, but that he would go to Mr.
Holoombe and get some, as he had Confed
erate funds with him. Blackburn said that
when I returned he would get the money for
the expedition, from either Holcombe or
Thompson, it did not matter which. From
this, and from Holcombe and Clay both
shaking hands with me, and congratulating
me at Hamilton upon my safe return, I
thought, of course, they knew all about it
I do not know that Dr. Stuart Robinson
knew of the business in which I was engaged,
but he took good care of me while I was
at Toronto, in the fall, and until Dr.
Blackburn wrote for me in the spring; Etnd
when he gave me Dr. Blackburn's letter, he
told me to borrow the money from Mr.
Preston to take me to Montreal, as he said
he did not want to commit an overt act
against the United Stales Government him
self Mr. Preston lent me $10 to go to
Montreal. On arriving at that place, accord
ing to the directions in Dr. Blackburn's
letter, I went to Mr. Slaughter to get the
means to take me to Halifax, Mr, Slaughter
was short of funds, and had only $25 that he
could give me. He said that I had better go
to Mr. Holcombe, who was staying at the
Donegana Hotel, and he would give me the

STARVATION 01? UNION PRISONERS.

57

oalance. I went to the hotel and sent up my
name. Mr. Holcombe had heard of my
name, and he sent for me to come up, I
told him that I wanted some money to take
me to Halifax; he asked me how much I
wanted; I told him as much as would make
up $40; he said, "You had better take $50;"
but as I did not want that much, I only took
enough to make up $40. When I came to
Washington to dispose of the goods, which
was on the 5th of August, 1864, I put up at
the National Hotel; registered my name as
J. W. Harris, under which name I did
business with Wall & Co.
W. L. Wall.
For the Prosecution, — May 29.
I am an auction and commission merchant
in this city. In August last, while I was out
of town, a person named Harris called at my
store, and told my book-keeper that he had
some shirts that he wanted to sell at auction,
and asked him if he would sell them the next
morning. The clerk told him he would,
Harris then asked for an advance of $100.
The money was given him, and the shirts
were sold the next morning.
A. Bbennbb,
For the Prosecution. — May 29.
During last summer I was a clerk in the
service of Mr. Wall, of this city. In the
month of August a man named J. W. Harris
came to the store late one evening. I sup
posed him to be a sutler returning home.
He said he had some twelve dozen shirts and
some coats, which he asked me to sell. I
advanced him $100 on them, and sold them
the next morning. They were packed in five
trunks. On the 1st of September he wrote from
Toronto, for an account of sales and the bal
ance of the money, as follows:
Messrs, Wall & Co,, Auction and Commission
Merchants :
Gentlemen: On Friday, the 5th of August,
last month, I left in your care five trunks,
containing one hundred and fifty fancy woolen
shirts and twenty-flve coats, to be sold at auc
tion on the next morning, and business call
ing me to Toronto, I have not been able to
go to the States since. I beg most respects
fully that you will send me an account of
sales, and a check on New York for the pro
ceeds, I have written before, but I have re
ceived no answer, I shall come over in Oc
tober, about the 10th, with some five or six
thousand pairs of boots and shoes.
Yours most respectfully,
J. W. HARRIS,
Care of Post-office Box No, 126, Toronto, C. W,
I sent him the following account of the
sales, and the balance of the money :

Sales on Account of J. W. Habbib, Esq.
06 shirts, purchased by Stelgler A; Solgel  $184 40
9 coats, purchased by Walker  4 60
3 trunks, purchased by Wm, Smith  1 60
2 trunks, purchased by Hand  2 60
SldJ 90
April 6. Cash  «>00 00
Sept. 6. Com., duty, and war tax  14 29
** Cash, per balance  2S 61
$142 90 $142 90
The shirts I bought were tossed into the
trunks promiscuously, and I supposed the
packing had been done in a hurry. When
I first opened the trunks I was in doubt
about the money I had advanced being a
safe investment, but a close inspection of the
clothing showed it to be new, and that it had
not been worn.

STARVATION OF UNION PRISONERS.
Salome Marsh.
For the Prosecution, — May 25.
I entered the United States service in 1861
as Lieutenant of the Fifth Maryland Volun
teer Infantry, and served until the 31st of
August, 1864, At the time I quit the service
I held the rank of Lieutenant-Colonel,
While Major, I was a prisoner of war,
conflned at Libby Prison, from the 15th of
June, 1863, to the 21st of March, 1864.
I was captured near Winchester, on the
Martinsburg road, on the 15th of June. I
was then in General Milroy's command, and
at the time of my capture I was in command
of my regiment. I was captured by General
Ewell's corps, of the rebel army. I was
taken to Winchester, and, on account of ill
health, was kept there two weeks in hospital.
I was somewhat sick at the time of my cap-
lure, from excessive duty, exposure, etc. At
the expiration of two weeks my health some
what improved. I was then compelled to
march to Staunton in a feeble condition ; and
on the road was treated very kindly by the
officer in charge of the squad. I arrived in
Libby Prison, and was incarcerated there.
The rations we received there when I flrst
arrived were small, but such as they gave us
at first were tolerably fair. There was about
one loaf of bread allowed to two men — half
a loaf per man — and, I judge, about four
ounces of meat, and about three spoonfuls
of rice. That constituted the ration that we
received at first After I had been there
about four months, the meat was stopped,
and we only received it occasionally. Then
they took the bread from us, and gave us
instead what they called corn-bread, but it
was of a very coarse character. I have
known the officers there to be without meat
for two or three weeks at a time, and receive
nothing but the miserable corn-bread that
they gave us. Occasionally they would dis
tribute some few potatoes, but of the very
worst character, rotten, etc., such as the men

58

THE CONSPIRACY TRIAL,

could hardly eat This continued for some
time. The officers held a meeting there in
regard to the treatment we were receiving,
and a letter was sent to General Ould, the
rebel Commissioner of Exchange, signed by
Colonel Streight, I think, who was chairman
of the meeting at the time, complaining of
our treatment, and asking that we should re
ceive better treatment. General Ould sent a
written reply, stating that our treatment was
good enough, better than their prisoners were
receiving in our prisons, at Fort Delaware
and other places.
When I had been there some five months, I
was taken sick with the dropsy, for the want
of proper nourishment, proper diet, etc., and
was quite ill, and was sent to the hospital.
I remained there some few weeks. During
my stay in the hospital I saw some enlisted
men brought in from Belle Isle. The con
dition of these men was horrible in the ex
treme. I am satisfied from their appearance
that they were in a starving condition. Out
of a squad of forty that were brought in, at
least from eight to twelve died the first night
they were brought there. I asked the As
sistant Surgeon in charge of the officers' de
partment of the hospital — I forget his name ;
he was very kind to us, though, and very
much of a gentleman — what was the matter
with these men. He stated that their condi
tion was owing to the want of proper treat
ment; that they did not receive the nourish
ment that they ought to have for such men.
I suppose I had been in that hospital about
two weeks when two of the officers made
their escape. Major Turner, the keeper of
Libby Prison — who was a very passionate
man, and very insulting to the officers, al
ways insulting in his remarks whenever he
had occasion to speak to any of them, and
very ungentlemanly — took it into his head to
remove us from that place, and take us back
to Libby Prison. He had a room washed
out for us in Libby, and removed us to that
room while it was in a wet condition, al
though some of the officers who were in the
hospital were in a dying state. We were
placed in that wet room and compelled to
remain there twenty-four hours, without cot,
bed, or any thing else to lie upon, and with
out a morsel to eat, as a punishment, be
cause those two men had escaped. The
treatment generally to prisoners was of a very
harsh character.
Colonel Powell spoke to Turner in regard
to the treatment he had inflicted upon those
men. Colonel Powell said he thought it was
wrong to punish a parcel of sick and dying
men for the sake of two who had attempted
to escape. His reply was, as near, as I can
recollect, "It is too damned good for you."*
The only opportunity I had of knowing
the treatment enlisted men received, was from

• In contrast with the above, and to show how Gonfed-
Wftte prisoners were treated in ** Northern " prisond, we

seeing those men that were brought to the
hospital while' I was there. They were in an
emaciated condition, and their whole appear
ance indicated that they were suffering for
want of food, and were in a state of starva
tion. I noticed that, though in a tottering
and feeble condition, they were eager to ob
tain something to eat, and would grasp at
any thing that was offered them in the shape
of victuals ; and I am satisfied that the pris
oners brought to the hospital died simply of
neglect, and the want of proper food — of
starvation. The only reason that I could hear from the
rebel authorities for their treatment of Union
prisoners, was that it was a matter of retal
iation ; they said that their prisoners were
treated in a worse manner than we were.
As to the quantity of food given us, a man
might possibly live on what they gave us at
first, although it was not near what we
would call a full ration. Subsequently, the
quantity given could not possibly support life
for any length of time. The corn-bread
which they gave us was corn-meal and bran;
it was very coarse, baked in a rough condi-
dition, and very often we had to live on that
and water alone for days at a time.
Frederick Memmeet.
For the Prosecution, — May 25.
I have held the rank of Captain in the
United States service for two years and ten
months. On the 15th of June, 1863, I was
taken prisoner, and was exchanged on the
1st of May, 1864. I was confined in the Libby
Prison, and the treatment we received there
was simply awful,
. When we went there first, we had half a
loaf of wheat-bread, between three and four
ounces of meat, and about two lablespoon-
fuls of rice. That was continued for about

give the following extract from a letter received by Hi
during the progress of this trial :
"Baltimobe, June 21,1865,
* * * *'When South Carolina took the fatal step of
secession, I was lecturing in the University of Virginia.
having an engagement which would have paid me £500 for
two weeks more work. I cast in my lot with the Southern
Confederacy, and with that was wrecked on the *Lee*
shore. "I was taken prisoner on the 25th of January, 1864, and
held as a prisoner of war until the 5th of June, 1865, when
I was released, and took the oath of allegiance to the
United States. Fourteen months of my imprisonment were
spent as superintendent of a prisoners' school at Point
Lookout. This school had a library of 3,000 volumes,
mostly school books. There were 1,200 pupils and 50 teach
ers. We taught many poor fellows to read and write who
had never understood such mysteries before.
' ' But we did not confine ourselves to the lower branches.
We taught all the English branches, Latin, Greek, French,
German, and mathematics through trigonometry.
" I was appointed agent for the distribution of supplies
furnished by tho C. S. for the prisoners at Point Lookout,
and as such distributed over $200,000 worth of goods. Af
terward I was promoted to the high position of * Mayol
of the City of Canvas,' and was charged with the duty of
maintaining law and order among my 22,000 comrade!.
Thus 1 have passed sixteen long mouths a prisoner "

STARVATION 01? UNION PRISONERS.

59

four months; afl«r that the treatmfe'ht was
very bad. We had a meeting, at which
Colonel Streight presided, and of which Col
onel Irvine, who was afterward our Assist
ant Exchange Commissioner, was Secretary.
We sent a communication to Judge Ould,
which he sent to the rebel Secretary of War,
Seddon. We received for answer that they
could do nothing for us ; that it was good
enough for Yankees; that their prisoners
were treated just as badly as we were; and
that they could not help us in any way. We
then sent another communication, asking
them to give us our money, (which they had
taken away from us when we came to the
Libby,) that we might have something to
buy food with, but they would not do that
I had my money hid under my shoulder-
straps, and kept it there ; but the others had
given theirs up, and it was never returned.
We often had no meat for twenty days.
After I had been there four months, they
stopped the meat for five or six days, and
gave us bread and water, a little beans and
rice. At this time we got half a loaf of corn-
bread, or about ten ounces, I guess. When
I left Libby, we had had nothing but corn-
bread and water for twenty days. The pris
oners were very much reduced and emaciated
by this treatment, and a great many of them
had the scurvy.
The bearing of the keepers of the prison
was rough and insulting, and they abused us
in every way they could, I went to the hos
pital two or three times when our Lieutenant-
Colonel died, a.nd the prisoners who were
brought in looked awful; I can not find any
word -to describe how they looked. Their
condition was the result of starvation.
After the battle of Chickamauga, and the
wounded prisoners from the West were brought
in, I saw some fifteen or sixteen amputated
cases placed on a cart, and a rope tied around
them, so that they could not fall off; and they
were carried in that way from the depot to
the hospital, although right opposite Libby,
not more than one thousand yards off, I
guess, there were twenty or twenty-flve am
bulances not in use.
At the time I left Libby, I had the scurvy
so badly that I could hardly walk, and I
have been sick pretty much ever since; and,
though I have now recovered, I still feel it,
and have not the strength I used to have.
When Turner, the keeper of the prison,
came up, which was very seldom, we spoke
to him about ameliorating the condition of
the prisoners. We also spoke to a committee
from their Senate that was appointed to go
through the Libby and examine our condi
tion; they reported fai'orably, although we
showed them the bread we got, and told them
we received no meat, and little of any thing
else. I went to Turner once and told him I
wan'tedTW get some medicine; that I was get
ting worse, and could hardly walk; and that

the doctor would not give me any. Turner
said he had not got any. His words were,
"You can not have any; it don't make any
difference to me. What the hell have I to do
with it?" When I told him that I had
nothing to eat, and no money to buy any
thing, he said, "That's good enough for
Yankees." We once remonstrated with Dick Turner,
who was an inspector there, and told him
that we did not get any thing to eat, and how
things were. He said, "That's good enough
for you. Our prisoners are just as badly
treated by your fellows as you are here, and
you have no business to come down here. I
wish to kill you off. If I had the command,
I would hang every God damned one of
you." Benjamin Sweerer.
For the Prosecution, — May 25.
I am Color-sergeant of the Ninth Mary
land Regiment I was captured ou the I8th
of October, 1863, and was held prisoner at
Belle Island for over five months, and seven
days at Scott's Building. There were about
thirteen thousand prisoners, about half of
whom were provided with shelter; the rest
were just on the naked sands of the island.
I lay there two months without ever putting
my head under shelter, although it was in
the winter time. The treatment of the pris
oners was brutal, and we had not half enijugh
to live on. There were twenty-five pounds
of meat, the biggest part of which was bone,
served out for a hundred men, and corn-bread
with the husks ground up in it Not having
fuel enough to warm us, and not provisions
enough to live on, I saw, the men freezing to
death on the island. I saw them starving to
death ; and, after they were dead, I saw them
lying, for eight or nine days, outside of the
intrenchments, where we were kept, and the
hogs eating them. We were refused permis
sion to bury them. I asked myself, as a
favor, to be allowed to bury our prisoners,
and was refused permission. I spoke to
Lieutenant Bossieux, who had charge of the
island, about the treatment of our men ; and
he told me he had nothing to do with it; that
it was in accordance with the orders he had
received from Major Turner, the keeper of
the rebel prison. The deaths of the pris
oners were caused mostly by starvation. I
helped to carry out from ten to fifteen and
twenty a day.
A great many of the prisoners, to my
knowledge, volunteered to work at shoe-mak
ing and building a furnace on the island, in
order to support themselves.
When I came home I weighed one hundred
and twenty-three pounds; my ordinary weight
in health is one hundred and seventy or one
hundred and eighty. I do not think I could
have lasted a month longer there; I was
pretty nearly gone when I left.

60

THE CONSPIRACY TRIAL.

William Ball.
For the Prosecution, — May 25^
I enlisted in the service of the United
States in April, 1862, and was captured by
the enemy on the 7th of May, 1864. I was
a prisoner of war at Andersonville, Georgia,
eleven months and twenty-three days. At
the time I was there, there were about thirty-
two thousand prisoners. The treatment of
the prisoners was poor indeed; they were
turned into a swamp, with no shelter what
ever, and were stripped of all their clothing,
blankets, hats, caps, shoes, money, and what
ever they had. Where we were confined
there was no shelter and no trees, although
there were plenty of pine woods about there.
The encampment was nothing but an open
Bwamp, with a hill on each side.
Every morning, about nine or ten o'clock,
they would bring a wagon on the ground, with
corn-meal and some bacon. Of the corn-meal,
which was ground up, cobs and all, and was full
of stones and one thing and another, they gave
each man half a pint, and two ounces of ba
con, which was all alive, rancid, and rotten,
and a half spoonful of salt 'This was to
last us twenty-four hours. Once in a while
we would get hold of a good piece of bacon,
but that was not often. The provisions served
out to us were of such a character that po
man would eat them unless he was in a
starving condition ; and from the amount and
character of the food served out, it would not
be possible to sustain human life for any
length of time.
The effect of this treatment upon the health
of the prisoners was very bad ; it killed them
off rapidly. The deaths averaged from sixty
to a hundred a day ; and one day one hundred
and thirty-three died. These deaths were
caused principally by starvation. There was
some remonstrance addressed to the rebel
authorities by the prisoners in regard to their
treatment; but they said they did the best
they could for them, and they did not care a
damn whether the Yankees died or not
I remember Howell Cobb visiting Ander
sonville some time in February. He is the
man who was formerly the Secretary of the
Treasury. He made some very bitter re
marks, in a speech to the rebels, in reference
to our prisoners. As to our treatment, he
said that was the best that could be done for
us; but if the authorities liked to do better
they probably could, but they did not seem to
care much about it I remember he made
some reference in his speech to a plan on
hand to burn and plunder Northern cities.
The heat in the open sun was very intense,
amd the water was very poor indeed. You
could get water by digging down half a foot
There was a'place a little way above into
which they threw all the dirt and garbage
that came from Andersonville, and the water
we were obliged to drink ran through all this
filth. Whether this was designed or not, I

do not know, but they did not seem to cara
A committee from the prisoners was sent to
Captain Wirz, who was in command of the
interior of the prison, in respect to this, and
he said he did not care a damn whether the
water ran through the garbage or not, or
whether we got any or none.
When we first went there, there were on an
average as many as six or eight of the prison
ers shot every day. If a man would stick
his nose half a foot over the line, he would
,be shot It was said the rebel soldiers were
rewarded with thirty days' furlough for shoot
ing a Yankee; and I never heard of their
wantonness in shooting our soldiers being re
buked by the rebel authorities.
The treatment of the prisoners in the hos
pital was very poor. All they would giv«
them was pilch-pine pills; pitch-pine pills for
diarrhea, and pitch-pine pills for the scurvy,
the head-ache, or anything else. These pills
were made out of the pilch that runs out of the
trees there, and a little vinegar. They got no
medicine. Medicines, it was said, were sent
there by the Confederate Government, but
they were sold by the doctor in charge for
greenbacks. The money that was taken from the prison
ers was never returned to them — not a cent of
it When I was captured, they took my shoes
off, and I walked bare-foot on the pike from
near Waterford to Gordonsville, and then they
took my money and clothes. I had nothing
but a pair of drawers and shirt for nine
months in Andersonville. I lay there for
this whole nine months in the open field
without a bit of shelter; and there were thou
sands in the same fix. The men would di«
there in the morning, and by night nobody
could go within fifty feet of them. They had
to be put into the wagons with long wooden
pitch-forks, when they were carried off and
put into the trenches.
Colonel Gibbs was in command of the post,
and Captain Wirz was in command of the
interior of the prison. Clothing that was
sent to Andersonville by our Government,
consisting of blankets, pants, socks, and other
things, Wirz took himself, and put into his
own house, and sold.
Up to March 24th, when I left Anderson
ville, 16,725 of the prisoners had died ; that
was the number I took from the books myself,
and there were at that time about 1,500 not
able to be moved. It was the rations they got
that brought on their sickness, and when they
got sick they could not eat the stuff served
out, and, of course, they starved. As to
medical treatment, there was nothing <-t all
of any benefit ,
Charles Sweeney.
For the Prosecution, — May 26.
My present home is in the State of New
York. I was a private in the United States
service, and was captured by the rebels twice.

STARVATION OP UNION PRISONERS.

61

The flrst time I was taken prisoner, I was con
fined two months and ten days at Libby; the
second time I was a prisoner fifteen months,
of which I spent two months in Belle Isle hos
pital, near Richmond; about six months at
Andersonville, in Georgia; and the rest of the
time at Savannah.
At Belle Isle I had less than half a pound
of bread a day, and once in a while got a lit
tle rice soup. For about six weeks I do not
believe I had a piece of meat as big as my two
fingers-. When I went to the hospital, the
bread was a little better, but there was very
little meat They pretty nearly starved me,
For about four or five months after I got to
Andersonville they gave me a pretty good
ration of the kind it was. I had all I wanted
to eat of corn-meal, but the bacon was pretty
strong. After August they began to cut
down our ration, and our allowance was very
short Old Captain Wirz told the guard that they
must shoot every Yankee caught with his
baud or his head over the dead-line; and
Uiat for every man shot the guard would
get a furlough of thirty days; so they
used to kill our men as though they were
brutes. I had a brother at Andersonville, who was
very sick and dying. For about eight days,
to my knowledge, he had notHing to eat He
could not eat their corn-meal, and what they
gave him, for it was not fit for a dog to eat
1 had a little money that I used to gather
about the camp, and I bought a few biscuits
for him, but I could not get enough to feed
him on long, and he lay in his tent and
starved. I went to the doctor and told him
my brother was dying, and asked him to see
him; but he said, "No, I can not do it"
Before he died, my brother said, "Keep good
courage; stick to your Government; never
take an oath to that Government" I told
him I would, and I have done it
I made my escape ; but after I got over
the stockade, they caught me, took me back,
and gagged me for six hours. It was very
cold, and when I got up I could hardly walk,
and I was sick in the hospital; but in the
month of June I was able to be up, and I
thought I would try again to make my es
cape and get to Sloneman, who was making
a raid, I heard. I got out of the hospital,
and traveled that night in the swamps and
mud, clear up to my neck, and made four
miles. The pickets, however, caught me,
and took me back to Captain Winder. He
told them to put me in the stockade, with a
ball and chain ; and at Wirz's head-quarters
I was put in the stockade all day in the hot
sun, with my arms stretched out The sun
affected me so much that the next day I was
sick, and for six days I could neither eat nor
drink any thing. It is God only who has let
me live this long.
General Cobb came there on the 4th day

of March. He preached up to the guard the
way the war was going on. The guards
around there were only old men and boys
that never knew any thing. He said to them,
" You see this big graveyard ; all those in the
stockade will be in the graveyard before long."
He expc'oted we were all going to be starved
to death, if we were held long enough. He
said they would all perish before Ihey would
come back to the Union again. He also said
they would hang Old Abe if they caught
him, as he supposed Old Abe would hang
him if he caught him.
James Young.
For the Prosecution, — May 26.
I was a prisoner of war nine months and
two days. I was confined in Andersonville,
Ga,, and Charleston and Florence, S, C. At
Andersonville the greater portion of the
rations were cooked, but in a very inferior
way — corn-bread and mush, boiled rice and
boiled bacon. The ration of bread for the
day was about four inches long, three wide,
and two thick ; with that we got about two or
three ounces of boiled pork. The effect of
this stinted diet upon the health of the men
was very injurious; they were wasting and
dying all the time. The number of deaths
for August, I understood, was three thousand
and forty-four. We were exposed to the sun,
without any shelter, though there was wood
land all around us. The stockade, where we
were was chopped out of it but we were all
exposed. The heat during the day was ex
treme, but the nights were cool.
The water was very poor; it was infected
by the garbage and filth through which it
ran. At Florence I heard some hard threats
made against the "Yanks," as they called
us. Our cavalry were raiding, destroying
their country, they said, and they would
starve us, they said, in retaliation. We re
ceived worse treatment at Florence than at
Andersonville, and got less rations. The
amount of food was not sufficient to sustain
life for any long period of time. Men that
were destitute of any little means of their
own, or had no watches or trinkets that they
could sell, kept running down till they diedL
I had some money, and I bought some extra
provisions, and kept my health tolerably
good. At Charleston I was imprisoned about three
weeks. We were treated very well there,
with the exception of the shooting of our
men inside the inclosure by the guai'ds; that
occurred often, and seemed to be encouraged
by the officers, I never knew of a man being
rebuked^r punished for such shooting. At
Andersonville the general report in camp was
that the rebel authorities offered their men a
thirty days' furlough for every "Yank" they
would shoot inside of the stockade.

«2

THE CONSPIRACY TRIAL.

Lieutenant J. L. Ripple.
For the Prosecution. — Jitne 10.

I entered the United States service, in the
Thirty-Ninth Illinois, as a private, on the
28th of October, 1861. I was a prisoner of
war for six months at Andersonville, Ga. The
character of the food furnished to the pris
oners was poor, and the quantity very small.
We got only half a pint of corn-meal daily,
and from two to four ounces of meat The
result was the prisoners died in large num
bers, occasioned, without doubt, in many
cases, by starvation and the horrible treat
ment they received,
I heard rebel officers approve of .the kind
of treatment we received; they said it was
food enough for us. I remember Captain
^irz saying, on the 1st of July, "It is good
enough for you; I wish you'd all die." The
location of the camp at Andersonville, and
the arrangements to which the prisoners were
subjected,' seemed to show that the Confed
erate authorities intended the infliction of all
possible suffering, short of putting the men
to death. At Millen it was somewhat better,
A pack of blood-hounds was kept at An
dersonville, and I heard some of the men
who went after them say that some of the
prisoners who had escaped were pursued and
torn by the blood-hounds.
While at Andersonville I knew Quarter
master Hume. I heard him say, previous to
the election, that if Mr, Lincoln were re
elected, he would not live to be inaugurated.
He said that a party North would attend to
him, and to Mr, Seward also. . I also heard a
lieutenant, who was in charge of the guard,
say something to the same effect

MINING OF LIBBY PRISON.
Lieutenant Reuben Bartlet.
For the Prosecution. — May 22.
I have been in the United States service
since 1862, and since August the 3d have been
in the signal corps. I was confined in Libby
Prison from the 3d of March to the 16th of
July, 1864, and at other prisons until the 10th
of December, 1864.
On being taken to Libby, we were informed,
when taken into the hall, that the place had
been mined. The next morning we were taken
into a dungeon in the cellar part of the build
ing. In going to the door of the dungeon,
we had to go round a place where there was
fresh dirt in the center of the cellar. The
guard would allow no person to pass over it
or near it On inquiring why, we were told
that that was the place where the torpedo
had been placed. It remained there while
we were in the dungeon, and for some time
after we were taken up stairs.
I learned also from the officers who accom

panied and had charge of us that Jie torpedo
was buried there. It was always spoken of
as the torpedo. The place that had been dug
out was about six feet in diameter. 'The
ground was a little raised, as if the dirt had
been dug out and put back again. It was
directly under the center of the prison._ Rebel
officers and others told us that the prison had
been mined on account of Colonel Dahl-
gren's raid, and that if we succeeded in get
ting into the city, they would blow up the
prisoners rather than liberate them.
Erastus W. Ross.
For the Prosecution, — May 25.
I was in the service of the rebel Govern
ment; I was conscripted and detailed as a
clerk at the Libby Prison, and never served
in the army.
In March, 1864, General Kilpatrick was
making a raid in the direction of Richmond.
About that time the prison was mined. I
saw the place where I was told the powder
was buried under the prison; it was in the
middle of the building. The powder was put
there secretly in the night; I never saw it,
but I saw the fuse; it was kept in the office
safe. I was away at my uncle's the night
the powder was placed there, and was told of
it the next morning by one of the colored
men at the prison. There were two sentinels
near the place to prevent any person's
approaching it. The excavation made was
about the size of a barrel-head, and the earth
was thrown up loosely over it Major Tur
ner, the commandant of the prison, had
charge of the fuse. He told me that the
powder was there, and that the fuse was to
set it off; that it was put there for the secu
rity of the prisoners, and if the army got in,
it was to be set off for the purpose of blowing
up the prison and the prisoners.
The powder was secretly taken out in
May, and the whole building was then shut
up. The prisoners had all been sent to
Macon, Georgia.
I suppose the powder was placed there by
the authority of General Winder, or the
Secretary of War. Major Turner said he
was acting under the authority of the rebel
War Department, though I never saw anf
writi..- orders about it
John Latouche.
For the Prosecution. — May 25.
I was First Lieutenant in Company B,
Twenty-fifth Virginia Battalion, C. S. A. I
was detailed to post duty in Richmond, to
regulate the details of the guards of the
military prisons there, and in March, 1864,
I was on duty at Libby Prison. Major
Turner, the keeper of the prison, told me he
was going to see General Winder about the
guard. On his return he told me that General
Winder himself had been to see the Secretary

THE BEN, WOOD DRAFT.

63

of War, and t. » t they were going to put
powder under tht prison. In the evening of
the same day, uie powder was brought
There were two kegs, of about twenty-flve
pounds each, and a box which contained, I
suppose, about as much as the two kegs. A
hole was dug in the center of the middle
basement, and the powder was put down
there. The box, when put in, just came
level with the ground, and the place was
covered over with gravel. I did not see any
fuse to it then. I placed a sentry over this
powder, so that no accident might occur;
and the next day Major Turner, who had
charge of the fuse, showed it to us in his
office; he showed it to evei-ybody there. It
was a long fuse, made of gutta-percha; such
a one as I had never seen before.
In May, I think it was. Major Turner
went South, and all the prisoners were sent
out of the Libby building proper to the
South; and General Winder sent a note
down to the office, with directions to take up
the powder as privately or as secretly as
possible; I forget the exact word. The note
was delivered into my hands for the in
spector of the prison, to whom I either gave
or sent it I afterward heard Major Turner
sa.y that, in the event of the raiders coming
into Richmond, he would have blown up the
place. I understood him to say that those
were his orders.

THE BEN. WOOD DRAFT.
Daniel S. Eastwood.
For the Prosecution, — June 16.
I am assistant manager of the Montreal
branch of the Ontario Bank, Canada. I
was officially acquainted with Jacob Thomp
son, formerly of Mississippi, who has for
some time been sojourning in Canada, and
have knowledge of his account with our
bank, a copy of which was presented to this
Commission by Mr. Campbell, our assistant
teller. The moneys to Mr. Thompson's credit
accrued from the negptiation of bills of
exchange, drawn by the Secretary of the
Treasury of the so-called Confederate States,
on Frazier, Trenholm & Co., of Liverpool,
They were, understood to be the flnancial
agents of the Confederate States at Liverpool,
and the face of the bills, I believe, bore that
inscription. Among the dispositions made
from that fund, by Jacob Thompson, was
$25,000; paid in accordance with the follow
ing requisition:
4329, Montreal, Aug. 10th, 1864.
Wanted from the Ontario Bank, 3 days sight,
On N.York, „ , „
Favor Benjamin Wood, l-sg,,
$26,000 ^ J
For  current funds.
10,000
Dellv. 60 p. c. -V M.
Ex. 16,000.

[The requisition, having been road, was put in evidence.]
The "$10,000" underneath the $25,000,
is the purchase money in gold of $25,000
worth of United States funds.
At Mr, Thompson's request, the name of
Benjamin Wood was erased, (the pen just
being struck through it,) and my name, as
an officer of the bank, written immediately
beneath it, that the draft might be negotiable
without iDutting any other name to it
I have in my hand, it having been ol>
tained from the cashier of the City Bank in
New York, the original draft for the $25,000,
for which that requisition was made by Mr,
Thompson, in the name of Benjamin Wood.
It reads :

$25,000.

THE ONTARIO BANK.

No. 4,329.

MOSTHEAL, 10th AUGUST, 1864.
At thrle days' sight, please pay to tjie order of D. S.
Eastwood, in current funds, twenty-five thousand dollars,
value received, and charge the same to account of this
branch. To the Cashier, H.T. Stanus,
City Bank, Manager
New Tork.

{U. S. IKTEB. KEV. ")
2 cte. y
Bank Check, j

INDORSED :
Pay to the Hon, Benj. Wood, Esq.,
or Order. J), S, EASTWOon,
B, Wood.

[The draft, having been read, was put in evidence,]
I found this draft in the hands of the
payee of the City Bank, in New York, and
I understand from the cashier it has been
paid. '
Mr. Thompson was frequently in the
habit of drawing moneys in the name of an
officer of the bank, so as to conceal the
person for whom it was really intended. A
good deal of Thompson's exchange was
drawn in that way, so that there is no indi
cation, except from the bank or the locality
on which the bill was drawn, to show where
use was to be made of the funds. Large
amounts were drawn for, at his instance, on
the banks of New York, but we were not
acquainted with the use they were put to.
The Benjamin Wood, to whom the draft
was made payable, is, I believe, the member
of Congress, and the owner of the New York
News, [Jacob Thompson's bank account, already in evidence,
was handed to the witness,]
This is a copy of Jacob Thompson's
banking account with us, as testified to by
Robert Anson Campbell, I see in the ac
count, entries of funds that were used for
the purpose of exchange on New York and
'so on London, The item, $180,000, on the
6th of April, 1865, was issued in deposit
receipts, which may be used anywhere,
John Wilkes Booth purchased a bill of
exchange at our bank, about the beginning
of October, and made a deposit at the same ¦
time, which remains undrawn to this day.
t do not know of his having been in our
lank but once. John H. Surratt's name I
ever heard mentioned.

64

THE CONSPIRACY TRIAL.

Cross-examined by Me. Aikbn.
I do not remember any drafts cashed at
our bank in favor of James Watson Wallace,
Richard Montgomery, or James B. Merritt
I have no recollection of the names.
George Wilkes.
i''or the Prosecution. — June 16.
I am acquainted with Benjamin Wood of
New York, and am familiar with his hand
writing. [The $25,000 draft was here handed to the witness.]
The signature at the back of that bill of
exchange I should take to be his. At the
date of this bill Benjamin Wood was a mem
ber of Congress of the United States, He
was editor and proprietor of the New York
News; so he told me himself The paper.

I have heard, has been recently managed
by John Mitchell, late editor or assistant
editor of the Richmond Examiner and the
Richmond Enquirer.
Abram D. Russel.
For the Prosecution. — June 16.
I am City Judge for the City of New York,
judge of the highest criminal court in the
State. I am acquainted with Benjamin
Wood of the City of New York, and also
with his handwriting.
[The bill of exchange was here handed to the witness.]
The indorsement on this bill of exchange
is in the handwriting of Benjamin Wood. I
have no doubt it is his. He was at that time
member of Congress of the United States and
editor and proprietor of the New York News.

D E F E ]Nr S E.

TESTIMONY TO IMPEACH H. VON
STEINACKER, MAY 30.
[Edwaep Johnson was called as a witness for the de
fense on the part of Mary E, Surratt, On appearing on
the stand. General Howe said :]
Mr, President: It is well known to me,
and to very many of the officers of the army,
that Edward Johnson, the person who is now
introduced as a witness, was educated at the
National Military Academy at the Govern
ment expense, and that, since that time, for
years he held a commission in the army of the
United States, It is well known in the army
that it is a condition precedent to receiving
a commission, that the officer shall take the
oath of allegiance and fidelity to the Gov
ernment In 1861 it became my duty as
an officer to fire upon a rebel party, of
which this man was a member, and that
party fired upon, struck down, and killed
loyal men that were in the service of the
Government Since that time, it is notori
ous to all the officers of the army that the
man who is introduced here as a witness,
has openly borne arms against the United
States, except when he has been a prisoner
in the hands of the Government He is
brought here now as a witness to testify be
fore this Commission, and he comes with
his hands red with the blood of his loyal
countrymen, shed by him or by his assist-
¦ ance, in violation of his solemn oath as a
man, and his faith as an officer. I submit
to this Commission that he stands in the eye
of the law as an incompetent witness, because
he is notoriously infamous. To offer as a

witness a man of this character, who has
openly violated the obligation of his oath,
and his faith as an officer, and to adminis
ter the oath to him and present his testimony,
is but an insult to the Commission, and an
outrage upon the administration of justice.
I move, therefore, that this man, Edward
Johnson, be ejected from the Court as an
incompetent witness on account of his no
torious infamy, on the grounds I have
stated. General Ekin. I rise, sir, to second the
motion, and I am glad the question is now
presented to the Commission. I regard the
gentleman clearly incompetent as a witness
That one who has been educated, nourished,
and protected by the Government, and, in
direct violation of his oath, has taken up
arms against the Government, should present
himself as a witness before this Commission,
I regard as the hight of impertinence, and
I trust, therefore, that the motion will be
adopted without a moment's hesitation.
Mr. Aiken. I was not aware that the fact
of a person's having borne arms against the ,
United States disqualified him from becom
ing a witness in a court of justice ; and, there
fore, it can not be charged upon me, that I
designed any insult to the Commission in in
troducing General Johnson as a witness
here. It will be recollected that Mr. Jett,
who has also borne arms against the Gov
ernment, was introduced here as an impor-
tantwitness by the prosecution; and he, ao-
cording to his own statement, had never"
taken the oath of allegiance, and his testi
mony, at that time, was not ejected to.

TESTIMONY TO IMPEACH H. VON STEINACKER.

65

General Kautz. This is not a volunteer
witness, is he ?
Mr. Aiken. No, sir.
The Judge Advocate. If it please the
Court, the rule of law on this point is, that
before a witness can be renderd so infamous
as to become absolutely incompetent to tes
tify, he must have been convicted by a judi
cial proceeding, and the record of his convic
tion must be presented as a basis of his
rejection. All evidences of his guilt that
fall short of that conviction affect only his
i-redibility. This Court can discredit him
just as far as they please upon that ground;
but I do not think the rule of law, as now
understood, would authorize the Court to de
clare him an incompetent witness, and inca
pable of testifying, however unworthy of
credit he may be.
General Wallace, For the sake of the
character of this investigation, for the sake
of public justice — not for the sake of the
person introduced as a witness, but for the
persons who are at the bar on trial — I ask
the General who makes tlie motion to with
draw it
General Howe. On the statement of the
•ludge Advocate General, that this witness is
technically and legally a competent witness,
[ withdraw the objection.
Examined by Mr, Aiken.
[The witness, being duly sworn by the Judge Advocate,
testified as follows:]
I am, at present, a United States prisoner
of war, confined at Fort Warren, Boston
Harbor. 1 was captured at Nashville about
the 15th of December last Since February,
1863, I have been a Major-General in the
Confederate States army,
I am acquainted with the man who went
by the name of Henry Von Steinacker, He
was a private on engineer duty; but was not
an officer either of the engineers, the staff, or
of the line. He belonged to the Second Vir
ginia Infantry, of the Stonewall Brigade,
which was one of the brigades of my divi
sion. In the month of May, 1863, a man
accosted me in Richmond, on the Capitol
Square, by my rank and name, and with the
rank I had borne in the United States army,
as Major Johnson; he told me he had served
under me as a private, and applied to me
for a position in the engineer corps. He
told me that he was a Prussian by birth,
and an engineer by education. It was not
in my power to give him a position, and he
left me that evening. He afterward made
a second application to me for a position.
I was then ordered off to my division at
Fredericksburg, and in about a week after
my arrival there this man appeared in my
camp again, and made application for a po
sition in the engineer corps, or on my staff,
I told him I could not give him a position

in either; but if he would enlist himself as
a private, and if he was what he represented
himself, an engineer and draftsman, I would
put him on duty, as a private, under an en
gineer officer of my staff. Under these con
ditions he enlisted. I attached him to head
quarters, and assigned him to special duty
under an engineer officer. Captain Oscar
Hendricks, with whom he acted as drafts
man and assistant from that time until he
left. Q, Was he the subject of a court-martial
at any time in your camp; and, if so, for
what? Judge Advocate Bingham. I object to the
question. The record of such a court-mar
tial would be the only competent evidence of
conviction, and if the record were here, it
would not impart any verity. I do not think
there were any courts in Virginia in those
days that could legally try a dog.
Mr. Aiken. Under the circumstances, pa
rol testimony of the fact is the best that can
be offered, and therefore I presume it will
not be seriously objected to.
[ The Commission sustained the objection. ]
Soon after the battle of Gettysburg, our
encampment was near Orange Court-House,
Orange County, Virginia, I know nothing
of, and never heard of, any secret meeting
of the officers of the Stonewall Brigade, at
the camp of the Second Virginia Regiment.
I never knew of any plans discussed for the
assassination of the President of the United
States, and I never heard his assassination
alluded to by any officer of my division as
an object to be desired ; nor did I ever hear,
while in the South, of a secret association
called the Knights of the Golden Circle, or
Sons of Liberty, nor have I ever known of
any one- belonging to them, or reputed to
belong to them.
I never saw John Wilkes Booth, and never
heard of him till after the assassination of
the President
I do not know that H, Von Steinacker
was a member of General Blenker's staff',
though he told me he was; but he also told
me that he was a deserter from the United
States service, or that he attempted to desert
and had been apprehended.
Cross-examined by Assistant Judge Advooatb
Bingham.
I graduated at West Point Military Acad
emy in 1838, and was in the United States
service till the breaking out of the rebellion.
My rank at that time was that of Captain
and Brevet Major of the Sixth Infantry.
United States army. I tendered my resig
nation in May, I think, and received notice
of its acceptance in June, 1861. I then went
to my home in Virginia, and in a few weeks
I entered the Confederate States service, in
which I have since remained.

66

THE CONSPIRACY TRIAL,

Oscar Heinrichs.
For the accused, Mary E. Surratt, — May 30.
Examined by Mr. Aiken.
I served as engineer officer on the staff of
General Edward Johnson, and on the staff
of other general officers of the Confederate
States army.
I am acquainted with Henry Von Stein
acker ; he was detailed to me as draftsman
shortly after General Johnson took command
of my divison, and I employed him as such.
He had neither the rank nor the pay of an
engineer officer,
I am not acquainted with J, Wilkes Booth,
the actor, I never saw a person calling him
self by that name in our camp; nor did any
secret meeting of officers ever, to my knowl
edge, take place in that camp, where_ plans
for the assassination of President Lincoln
were discussed,
H, K. Douglas.
For the accused, Mary E, Surratt. — May 30.
Examined by Mr. Aiken.
I have held several commissions in the
Confederate States service ; my last was that
of Major and Assistant Adjutant-General.
During the last campaign I served on the
staff of six general offiers — Generals Edward
Johnson, Early, Gordon, Pegram, Walker,
and Ramsey.
I know a man named Von Steinacker ; he
was in the Second Virginia Infantry, the
Stonewall Brigade. At the battle of Gettys
burg I was wounded and taken prisoner, and
remained prisoner for nine months, I did
not see Steinacker in camp after I returned
to duty, but I got a letter from him.
I do not know of any secret meeting being
held in our camp for the discussion of plans
for the assassination of the President of the
United States.
I wish to say of the officers of that brigade,
that their integrity as men, and their gal
lantry as soldiers, would forbid them from
being implicated in any such plot as the as
sassination of Mr, Lincoln ; and in their be
half I desire to say, that I do not believe the}'
knew any thing about it, or in the least de
gree sympathized with so unrighteous an
act, Steinacker acknowledged to me, on several
occasions, that he was a deserter from the
Northern army. I have never heard of the
existence of any secret treasonable societies,
organized for the assassination of the Presi
dent of the United States. I never was a
member of the Knights of the Golden Circle
or Sons of Liberty, nor do I know of any of
the General's staff being connected with that
organization. I never heard it declared in
Richmond that President Lincoln ought to
be assassinated.

Mr, Ewing, I move that the cipher letter
introduced in evidence, June 5th, and its
translation, be rejected as testimony, and that
it be so entered upon the record. My reason
is a twofold one. In the flrst place, I really
believe the letter to be fictitious, and to bear
upon its face the evidence that it is so. In
the second place, it is testimony that is wholly
inadmissible under the plainest rules of evi
dence. It is not signed ; the handwriting was
not proved ; it was in cipher ; it was not shown
at all that it was traced to anybody proved
or charged to be connected with this con
spiracy, or that it was in the possession of
anybody shown or charged to be connected
with this conspiracy. The rule in regard to
declarations in cases of conspiracy is, that
they may be admitted when they are declara
tions of one of the conspirators. This is not
shown to be the declaration of one of the con
spirators ; and when the declarations are those
of a conspirator, they must accompany some
act of the conspiracy, being not merely a
declaration of what had been done, or was
going to be done, but some declaration con
nected with an act done in furtherance of the
common design. The rule is very succinctly
stated in Benet on Military Law and Courtp-
Martial, page 289 :
"In like manner, consultations in further
ance of a conspiracy are receivable in evi
dence, as also letters, or drafts of answers to
letters, and other papers found in the pos
session of co-conspirators, and which the jury
may not unreasonably conclude were written
in prosecution of a common purpose, to which
the prisoner was a" party. For the same
reason, declarations or writings explanatory
of the nature of a common object, in which
the prisoner is engaged, together with others,
are receivable in evidence, provided they
accompany acts done in the prosecution of
such an object, arising naturally out of these
acts, and not being in the nature of a subse
quent statement or confession of them. But
where words or vpritings are not acts in them
selves, nor part of the res gestm, but a mere re
lation or narrative of some part of the trans
action, or as to the share which other persons
have had in the execution of a common de
sign, the evidence 'is not within the principle
above mentioned; it altogether depends on
the credit of the narrator, who is not before
the court, and therefore it can not be received."
In this case, it is a declaration not only of
some person who is not shown to be connected
with the conspiracy, but it is a declaration of
some person whose existence nobody knows
any thing of— -a nameless man. The letter is
as completely unconnected with the subject of
investigation as the loosest newspaper parar
graph that could be picked up anywhere.
Assistant Judge Advocate Bingham, If the
Court please, there is a great deal in what the
gentleman says that exactly states the law of
conspiracy; but there is one thing I beg him
to notice, that while that limitation which he

DISCUSSION ON THE MOTION TO REJECT CIPHER LETTER,

67

ha,-i named obtains in regard to third persons,
there are two principles of the law touching
conspiracy which are just about as old as the
crime itself, and as old as the common law,
which itself is the growth of centuries —
namely, that every declaration made, whether
it is in the formation of a conspiracy, in the
prosecution of a conspiracy, before it is sliown
to have been organized, or after it is shown
to be completed, is always evidence against
the parly himself
There is an allegation in the charge and
specification that this conspiracy was entered
into with the p-arties named, and with others
unknown, which is also a mode of proceed
ing known to the administration of justice
wherever the common law obtains. There is
a rule in connection with this that can not be
challenged, and that is that the declarations
of parties who are neither indicted nor on
trial, are admissible in the trial of those who
are indicted and upon trial touching the con
spiracy. In the first place, you find it proved,
liyond any question of doubt, that Booth,
during the month of October, 1864, was in
Canada, plotting this assassination with the
declared agents of this revolt You find that
about the 14th of November, 1864, after he
had so plotted this assassination with those
who had weighed him out the price of blood,
he is on his way to Washington City for the
purpose of hiring his assistants ; he is in the
City of New York; he is in conversation with
one of his co-conspirators, and, in my judg
ment, with one of them who' is now v/ithin
the hearing of my voice.
In that conversation they disclosed the fact
that they are conspirators, as detailed by the
witness who was present, Mrs, Hudspeth.
Upon one of them the lot has fallen to go to
Washington, to carry out the conspiracy, to
hire the assassins — to go to Washington to
strike the murderous blow in aid of this re
bellion ; and what of the other ? The other
has been ordered, according to the testimony,
to go to Newbern, North Carolina — Newbern,
which became the doomed city afterward
among these conspirators for the importa
tion of pestilence. After the introduction of
proof of this sort against these unknown
conspirators, who are numbered by fifties
and hundreds, as Booth himself testified
when he was .trying to hire with' his money
a man who could not be hired to do murder,
Mr, Chester — after such facts as these are
proved, in the very vicinity of Newbern this
infernal thing is found floating as a waif on
the waters, bearing witness against these
villains. Although you can not prove the
writer of it, I say it is admissible in evidence.
It is alleged that there are conspirators here
unknown. There are facts here to prove
that one of them was to go to Newbern,
The letter is found in the vicinity of New
bern, in North Carolina, at the dock in
Morehead City. The foundation has been
laid for the introduction of it

Allow me to say one other word in this
connection. There are, I know, some rules
of law that draw very harshly on conspira
tors that are engaged in crime. It may seem
very hard that a man is to be affected in the
remotest degree by a letter written by an
other who is not upon his trial, or a letter
that has never been delivered, which could
only speak from the time of its delivery;
and yet the gentleman knows very well that
upon principle it has been settled that a let
ter written and never delivered is admissible
upon the trial of conspirators.
Mr, Ewing, Written by a co-conspirator.
Assistant Judge Advocate Bingham. Of
course. But the fact that it was written by
a co-conspirator is patent on its face, and
gathered from the other facts in proof in the
case. The point about it is that he is an
unknown conspirator. Suppose it had been
found iu possession of Booth, addressed to
him through the post-office, instead of being
sent by hand, as the cipher letter shows they
must do, because the detectives are on their
track; suppose it had been found in the pos
session of Booth, will any man say that it
would not be admissible in evidence against
him and everybody else who conspired with
him in this infernal plot? What difference
does it make that it had not reached him, or
the other hired assassin, that was on the
track of Sherman, to creep into his tent and
murder him, as they crept into the tent of
the Commander-in-chief of your army and
murdered him, I say it is evidence.
Mr. Cox, If the Court will allow me, I de
sire to submit a word in support of the mo
tion made by General Ewing. When it was
announced that a cipher letter was about to
be offered in evidence, the counsel for the de
fense took it for granted that it belonged to
that general class of evidence relating to the
machinations of the rebel agents in Canada,
which had been generally admitted here
without objection. The counsel for the de
fense have had no objection to the exposure
of those machinations; their only concern
has been to show that their clients were not
involved in them. The whole of the evidence
of this description of a secret character here
tofore has been evidence relating to the con
trivances and machinations of the rebel
agents in Canada, either on their own re
sponsibility, or in connection with the author
ities in Richmond. Therefore, no objection
was made to the introduction of that evi
dence ; nor was it perceived, until the letter
was read before the Court, that it purported
to come from somebody in immediate coiv
nection with the act of assassination itself
Therefore the counsel were taken by surprise,
and allowed the letter to be read to theCourt
without objection, without even inspecting it,
as they had a right to do, if they desired to
submit objections to its introduction as evi
dence. The rule stated by the learned Judge Ad-

68

THE CONSPIRACY TRIAL.

vocate is undoubtedly true, in general, that
the declarations of conspirators are admissi
ble in evidence against their co-conspirators;
but that is subject to this limitation, that the
conspiracy must first be established between
the author of the declaration, whether oral
orwritten, and the party accused. That con
spiracy being first proved by evidence aliunde,
by other proof than the declaration itself,
then the declaration may be offered in evi
dence to show the scope and design of the
conspiracy ; and if it had been established
that this letter emanated from somebody be
tween whom and any one of the accused the
conspiracy had been established, unquestion
ably it would have been evidence against the
accused, supposing it to be made in the pros
ecution of the conspiracy. But there has not
been a particle of proof produced to the
Court showing that the letter did emanate
either from Booth, or any one of bis associ
ates. The logic of my learned friend on the
other side seems to be this: It is sufficiently
established, at least by prima facie evidence
before the Court, that Booth was engaged in
a conspiracy with some unknown persons;
this letter comes from an unknown person;
ergo,, it is a letter from somebody connected
with Booth in this conspiracy.
Assistant Judge Advocate Bingham. Not
all the iQgic.
Mr. Cox, But, as far as it goes, it seems to
be the logic of the other side. He says the
charge is that these accused were engaged in
a conspiracy with somebody unknown ; this
letter comes from somebody unknown; there
fore it is admissible in evidence. That is
about the substance of it I submit to the
Court that this is chop-logic. The rule of
law is that the author of a declaration must
first be shown, and when a letter is produced
here, and read in evidence, it must be first
shown whose the handwriting is; that it is
really the production of somebody whose
declarations, oral or written, are evidence
against the accused; and until that is proved
the letter is clearly inadmissible.
If the Court will look at the face of the
letter, although that is a matter for argu
ment, in case it is fairly before the Court as
evidence, I think the Court will perceive
that it does bear on its very face the marks
of fabrication. The letter is picked out of
the water at Morehead City, no more blurred,
I think, than any paper on this table. It
looks as if it had been written and dropped
in the water immediately before it was found,
for the very purpose of being picked up
by the Government agents, to be used as
evidence. It declares that, "Pet" (who, 1
suppose, is intended to mean Booth) "has
done his work well," "We had a large
meeting last night" (the Friday night when
these conspirators were fiying from the city
for their lives,) " I was in Baltimore yester
day." That was Friday. " Pet had not got
there." Of course he had not got there when

the work of conspiracy was to he done that
very night, Friday; yet this letter assumes
that he had done the work before, and was
to get there "yesterday," Friday, in Balti
more. Every thing about it is suspicious.
That, however, is a matter of argument to
the Court, as a question of evidence, when
it is before the Court as evidence. In support
of the motion of my learned friend, 1 submit
that the letter was read and admitted in
evidence by surprise; it is not legitimate evi
dence, and therefore should be so entered
upon the record.
Assistant Judge Advocate Bingham. I
have only to say that the motion of the
learned counsel will come more fitly when he
makes his final argument It is competent
for him to say then to the Court, " You arc
not entitled to consider this evidence;" but I
object to commencing the argument of the
case in the middle of the trial, and asking the
Court to decide a part of the case at one time,
and another part of it at another. That is a
new system of practice.
In regard to the remarks of my learned
friend who has just spoken, his tongue cer
tainly tripped, and he forgot himself, when he'
said that, in cases of conspiracy, written
evidence could not be admitted without prov
ing the handwriting, I asked him, and
challenged him, to produce a single authority
that showed any such limitation, where a
paper was found relating to the conspiracy,
no matter who wrote it Will the gentleman
say here that because we did not prove who
wrote the cipher that was found in Booth's
possession, which accords exactly with the
cipher found in Davis's or Benjamin's posses
sion at Richmond, it is not evidence? It is
no matter who wrote it; he had it, and let
him account for his possession of it, and let
him account for the uses he was making of
it This letter jvas found on the premises
under the control and occupied by the enemy,
who were engaged in this conspiracy. The
gentleman said that "Pet" is referred to in
the letter. He is, and it is proved that " Pet"
is the name by which Booth was known
among his co-conspirators in Canada ; it is so
proved by Conover, How would Conover
know any thing about the contents of this
letter? Who has proved that he was in
North Carolina at the time of the flight?
'Ihe letter is dated Washington, April 15th,
which is the day after the murder, and the
day of the death of the President of the
United States, It does not follow, by any
means, that it was written in Washington;
but that is what is on its face. Now, let us >
see whether there is any thing of this sup
posed contradiction on the face of it
" I am happy to inform you that Pet has
done his work well. He is safe, and Old
Abe is in hell."
Is there any contradiction here in dates,
or time, or fact ? Did not Abraham Lincoln
die on the morning of the 15th of April, and

DISCUSSION ON THE MOTION TO REJECT CIPHER LETTER.

is not that in proof? The conclusions of
this miserable monster, of course, are not
statements of facts; but, monster as he is, he
knows enough to state the fact, which he
does state, that " Pet has done his work
well," after their method of well-doing, and
that his victim, Abraham Lincoln, is dead.
That is the fact that he states; there is no
contradiction there. " Now, sir, all eyes are
on you." Who? "You." "You must bring
Sherman. Grant is in the hands of Old Gray
ere this." Who in America knew that, ex
cept a man in this conspiracy, on the 15th of
April? Mr. Cox. We do not know that it was
written on that day.
Assistant Judge Advocate Bingham. We
are taking things as we find them. " Red
Shoes showed lack of nerve in Seward's
case, but fell back in good order." Who
knew in what sort of order he fell back, ex
cept a co-conspirator? We know who Red
Shoes was. He did fall back.
Mr. Cox When was the letter found?
Assistant Judge Advocate Bingham. On
the second day of May.
Mr. Cox "Three weeks after.
Assistant Judge Advocate Bingham. Yes;
but the gentleman assumes in his criticism
that it bears date the day it purports to
have been written. "Johnson must come.
Old Crook has him in charge," Who knew
on the 15th of April who had him in charge ?
"Mind well that brother's oath," Who
knew then about the oath ? It is all abund
antly proved here, however, "And you will
have no difficulty. All will be safe, and en
joy the fruit of our labors." That is, the
price. '' We had a large meeting last night
All were bent on carrying out the programme
to the letter." The gentleman says there is
a contradiction. Wherefore? "The rails
are laid for safe exit Old  , always be
hind — missed the pop at City Point I say
again, the lives of our brave officers, and
the life of the South, depend on carrying
this programme into effect" Which was the
original design. "Number 2 will give you
this. When you write sign no real name.
I was in Baltimore yesterday. Pet had not
got there yet" The gentleman says there
is a contradiction. Wherefore? Was not
"yesterday" until midnight at least of the
Uth of April ? "I was in Baltimore yester
day." Assuming that he was in Washing
ton on the 15tli, he was in Baltimore the day|

before the day of the murder. "Pet had
not got there yet" Where? At midnight
yesterday, under cover of the same darkness
which he sought when he inflicted the mor
tal wound upon Abraham Lincoln, If he
had got the benefit of the trains, everybody
knew he would have been there " yesterday.''
Where is the contradiction?
I submit to the Court that this is no time
to decide the effect of this letter upon the
case or upon the Court
Mr. Cox. The argument of the learned
counsel for the Government is, that the
handwriting of a letter need not be proved
when it is found in the custody of parties
implicated in the conspiracy. That I may
admit, but that assumes the whole question.
The letter was not found in the custody of
any person. It was found floating upon the
water, and non constat that the letter may
not have been written the very day when it
was found, and a few minutes before it was
found; and written by somebody who had
possessed himself of sufficient knowledge of
the facts charged against the conspirators
to enable him to fabricate a letter specious
on its face, -and appearing to have some bear
ing on the conspiracy itself
Assistant Judge Advocate Bingham. Par
don me for saying to the gentleman, that
while his statement is correctly made as re
gards what I said, I did also say, in that
connection, that we must lay a foundation,
and show that it had been in the custody
of one of the conspirators. I think we have
done it by showing that "Pet" was the
name of one of the party; by showing that
the object of the conspiracy, as narrated in
the letter, was the object agreed upon; by
showing that that was not a matter of
notoriety, nor a matter known to anybody
except the conspirators themselves on the
day of its date; and by showing that all the
evidence in this case, so far as this letter
can be understood to-day, corroborates the
fact which I assert, that the writer of the
letter, on the 15th day of April, was a party
to this conspiracy — a fact clearly enough
shown, I think, to hang him if he were
found with that paper in his pocket, though
no man knew his name, and no man ever
testified about the writer, unless he could
explain how he came by it.
The Commission overruled the motion of
Mr. Ewing

TESTIMONY
RELATING TO JOHN WILKES BOOTH, AND CIRCUM
STANCES ATTENDING THE ASSASSINATION.

Robert R. Jones.
For the Prosecution. — May 13.
I am a clerk at the Kirkwood House in
this city. The leaf exhibited to the Com
mission is from the register of the Kirkwood
House, . It contains the name of G, A, Atze
rodt, Charles County.
[The leaf from the hotel register was offered in evidence , ]
It appears from the register that Atzerodt
took room No, 126 on the morning of the
14th of April last, I think before 8 o'clock
in the morning, I was not present when
his name was registered, and did not see
him until between 12 and 1 in the day. 1
recognize Atzerodt among the accused. That
is the man, I think.
[The witness here pointed to the accused, G, A. Atze
rodt.] I went to the room occupied by Atzerodt
after it had been opened by Mr. Lee, on the
night of the 15th of April, and I saw all the
articles that were found there, I can not
identify the knife, though it was similar to
the one just shown me. It was between the
sheet and the mattress. The bed had not
been occupied on the night of the J4th, nor
had the chambermaid been able to get into
the room the next day. A young man spoke
to Atzerodt when I saw him standing at the
office counter, I do not know his name.
Atzerodt before that asked me if any one
had inquired for him within a short time.
From the book it appears that Atzerodt paid
one day in advance. I had never seen him
in the hotel before.
During that day I gave a card of J.
Wilkes Booth to Colonel Browning, Mr.
Johnson's secretary. It was put in his box,
I am not positive that I received it from J,
Wilkes Booth, although I may have done so.
Cross-examination by Mb. Doster.
I do not think I could identify the par
ticular pistol found in Atzerodt's room. It
(70)

was quite a large one, such as cavalry offi
cers wear, and was loaded and capped.
William A. Browning.
For the Prosecution. — May 16.
1 am the private secretary of President
Johnson. Between 4 and 5 o'clock in the
afternoon of the 14th of April last, I left the
Vice-President's room in the Capitol, and
went to the Kirkwood House, where we
both boarded. On going to the office of the
hotel, as was my custom, I noticed a card in
my box, which was adjoining that of Mr
.Johnson's, and Mr, Jones, the clerk, handed
it to me. It was a very common mistake in
the office to put cards intended for me into
the Vice-President's box, and his would find
their way into mine; the boxes being to
gether, [A card was here handed to the witness.]
I recognize this as. the card found in my
box. The following is written upon it in
pencil :
Don't vrish to disturb you; are you at
home? J. WILKES BOOTH.
[The card was offered in evidence.]
I had known J. Wilkes Booth when he
was playing in Nashville, Tenn. ; I met him
there several times; that was the only ac
quaintance I had with him.
When the card was handed to me, I re
marked to the clerk, "It is from Booth; is
he playing here?" I thought perhaps he
might have called upon me, having known
me; but when his name was connected with
the assassination, I looked upon it differ
ently. Cross-examined by Mr. Doster.
The Vice-President was, I believe, at the
Capitol the greater part of the forenoon of
that day. He was at dinner at the Kirk
wood at 5 o'clock, and I do not think he
was out afterward. He was in his room for

THE ASSASSINATION.

71

the bahuice of the evening. I was there, I
think, up to 6 or 7 o'clock, when I left, and
did not return until about 11 or 12 o'clock,
after the assassination. Charles Dawson.
For the Prosecution. — May 26.
I am acquainted with the handwriting of
J, Wilkes Booth, and the signature on the
card shown to me is undoubtedly that of
John Wilkes Booth.
Thomas L. Gardiner.
For the Prtsecution. — May 26.
I saw at the Government stables in this
city. Seventeenth and I Streets, a dark-bay
one-eyed horse on the 8th of this month. It
is the same horse that was sold some time
in the latter part of November, by my
uncle, George Gardiner, to a man named
Booth, Booth came to my uncle's with
Dr, Samuel A, Mudd, and Booth selected
this one out of three horses my uncle had
for sale. In accordance with this request, I
delivered it to him the next morning at
Bryantown. Booth and Dr, Mudd oame on
horseback, and after the ' purchase they left
together. Booth made the agreement, and
Dr, Mudd took no. part or interest in the
purchase that I saw.
Cross-examined by Mr. Stone.
My uncle's house is but a short distance
iVom Dr, Mudd's, not over a quarter of a
mile. Booth said he wanted a horse to run
in a light buggy to travel over the lower
counties of Maryland, that he might look at
the lands, as he desired to buy some. My
uncle told him he had but one horse that
he could recommend as a buggy-horse, and
that he could not spare, as he wanted it for
his own use. He then offered to sell him a
young mare, but Booth said a mare would
not suit him. My uncle then said that he
had an old saddle-horse that he would sell
him if it would suit him. Booth examined
the horse, and said he thought it would
suit, as he only wanted it for one year. He
bought the horse, and paid for him.
llhink I have heard of Booth being in
the neighborhood of Bryantown some time
before that, but I never heard of his being
at Dr, Mudd's house. Our farms were ad
joining, and I very often saw Dr, Mudd;
sometimes two or three times a week.
Brooke Stabler.
For the Prosecution. — May 15.
I am manager at Howard's livery stable,
on G Street I was acquainted with J,
Wilkes Booth, John H. Surratt, and George
A. Atzerodt They were frequently at the
stable together; they almost always came

together, and were sometimes there three or
four times a day. Mr. Surratt kept two
horses at the stable, and Atzerodt rode out
occasionall}' with Surratt
I have in my hand a note from Mr, Sur
ratt, which reads:
Mr, Howard will please let the bearer, Mr
Atzerodt, have my horse whenever he wishes
to ride, also my leggings and gloves, and
oblige. Yours, etc.,
[Signed] J. H. SURRATT.
Feb. 22, 1865,
This note was sent to the stable by Mrs,
Surratt, and I put it on file. Atzerodt sev
eral times rode horses from that order. It
was afterward rescinded.
In the early part of April, Atzerodt told
me that John H. Surratt had been to Rich
mond, and that in coming back he got into
difficulty; that the detectives were after him;
but he thought he would soon be relieved
from the difficulty.
On the 31st of March, Atzerodt took away
from the stable a horse blind of one eye, a
fine racking horse, and another smaller bay
horse, under an order from John H. Surratt
S'urratt claimed the horses, but Booth paid
for their keep. Atzerodt afterward brought
these horses back to the stable to sell them
to Mr, Howard, but failing to sell them, he
took them away. The horse now at the
Government stable, corner Seventeenth and
I Streets, is the same one-eyed bay horse that
Atzerodt took away on the 31st of March,
and brought back for sale some days after
ward. William E. Cleaver.
For the Prosecution. — May 22.
I keep a livery stable on Sixth Street, in
this city. In January last, J. Wilkes Booth
kept a one-eyed bay horse at my stable, part
of the time, for about a month. On the 30th
of January he sold the horse to the prisoner,
Samuel Arnold, so Booth told me, and Ar
nold paid me eight dollars for the eight days
that the horse remained there after the sale.
John H. Surratt used to hire horses from
me in January last, to go down into the
country to parties. He was generally with
Mr. Booth, but after three or four visits down
the country, Booth left word that Mr. Sur
ratt was to have his horse any time he came
for it,
I have seen Atzerodt at our stable once;
he was there with horses for sale, I have
seen the one-eyed horse now at the Govern
ment stables on Seventeenth and I Streets,
and it is the same that Arnold bought of
Booth. Cross-examined by Mr. Ewing.
I have only seen Arnold twice ; on the 8th
of February when he paid me, and once
since.

72

THE CONSPIRACY TRIAL,

Jambs W. Pumphry.
For the Prosecution. — May 15.
I reside in Washington City, and keep a
livery stable. I was acquainted with J,
Wilkes Booth, He came to my stable about
12 o'clock of the 14th of April last, and en
gaged a saddle-horse, which he said . he
wanted about 4 or half-past 4 that day. He
had been in the habit of riding a sorrel
horse, and he came to get it, but that horse
was engaged, and he had in its place a small
bay mare, about fourteen or fourteen and a
half hands high. She was a bay, with black
legs, black mane and tail, and a white star
in the forehead, I think the off front foot
had white spots. I have never seen the mare
since. He asked me to give him a tie-rein
to hitch the horse. I told him not to hitch
her, as she was in the habit of breaking the
bridle. He told me he wanted to tie her
while he stopped at a restaurant and got a
drink. I said, " Get a boy at the restaurant
to hold her." He replied that he could not
get a boy. "0," said I, "you can find plenty
of bootblacks about the streets to hold your
horse," He then said, " I am going to Gro
ver's Theater to write a letter; there is no
necessity of tying her there, for there is a
stable in the back part of the alley; 1 will
put her there," He then asked where was
the best place to take a ride to; I told him,
" You have been some time around here, and
you ought to know," He asked, "How is
Crystal Spring?" "A very good place," I
said, "but it is rather early for it" "Well,"
said he, " I will go there after I get through
writing a letter at Grover's Theater," He
then rode off, and I have never seen Booth
since. About six weeks before the assassination,
Booth called at my stable, in company with
John H. Surratt He said he wanted a good
saddle-horse, I said, " Before you get him
you will have to give me reference; you are
a stranger to me," He replied, " If you
do n't know me you have heard of me; I am
John Wilkes Booth," Mr, Surratt spoke up
and said, " This is John Wilkes Booth, Mr,
Pumphry; he and I are going to take a
ride, and I will see that you are paid for the
horse." I let him have the horse, and I was
paid. Cross-examined by Mr, Aiken.
Mr. Surratt never came to my place with
Booth after the first time, I do not know
any of the prisoners at the bar.
Peter Taltavul.
For the Prosecution. — May 15.
I was acquainted with ,Tohn Wilkes
Booth, I kept the restaurant adjoining
Ford's Theater, on the lower side. Booth
came into my restaurant on the evening of
the Hth of April, I judge a little after 10

o'clock, walked up to the bar, and called
for some whisky, which I gave him ; he
then called for some water, which I also
gave him; he placed the money on the
counter and went out I saw him go out
of the bar alone, as near as I can judge, '
from eight to ten minutes before I heard the
cry that the President was assassinated.
I am acquainted with the prisoner, Her
old ; have known him since he was a boy,
I saw him on the night of the murder, or
the night previous to that; he c.ame into my
place and asked me if Mr. Booth had been
there that afternoon, I told him ITiad not
been there myself in-the afternoon, when he
asked, "Was he not here this evening?" I
said, "No, sir;" and he went out
Cross-examined by Mr, Stone.
I can not positively swear as to whether
that was Thursday or Friday evening. I
think Herold came alone to the bar. I did
not see anybody come in there with him.
As near as I can recollect, the time was be
tween 6 and 7 o'clock.
Sergeant Joseph M. Dye.
For the Prosecution. — May 15.
On the evening of the Mth of April last,
I was sitting in front of Ford's Theater, about
half past 9 o'clock, I observed several per*
sons, whose appearance excited my suspicion,
conferring together upon the pavement The
flrst who appeared was an elegantly-dressed
gentleman, who came out of the passage,
and commenced conversing with a ruffianly-
looking fellow; then another appeared, and
the three conversed together. It was then
drawing near the second act The one that
appeared to be the leader, the well-dressed
one, said, "I think he will come out now,"
referring to the President, I supposed. The
President's carriage was standing in front of
the theater. One of the three had been
standing out, looking at the carriage, on the
curbstone, while I was sitting there, and
then went back. They watched awhile, and
the rush came down; many gentlemen came
out and went in and had a drink in the sa
loon below. After the people went up, the
best-dressed gentleman stepped into the sa
loon himself; remained there long enough
to get a drink, and came out in a style as
if he was becoming intoxicated. He stepped
up and whispered to this ruffian, (that is, '
the miserablest-looking one of the three),
and went into the passage that leads to the
stage from the street Then the smallest
one stepped up, looked at the clock in the
vestibule, called the time, just as the best-
dressed gentleman appeared again. Then
he started up the street, remained there
awhile, and came down again, and called
the time again. I then began to think there
was something goiqg on, and looked toward

THE ASSASSINATION,

73

this man as he called the time. Presently
he went up again, and then came down and
called the time louder. I think it was ten
minutes after 10 that he called out the last
time. He was announcing the time to the
other two, and then started on a fast walk
up the street, and the best dressed one went
inside the theater.
I was invited by Sergeant Cooper to have
some oysters; and we had barely time to
get seated in the saloon and order the oys
ters, when a man came rushing in and said
the President was shot
[A photograph of J. Wilkes Booth was handed to the
witness.] That was the well-dressed man ; but his
moustache was heavier and his hair longer
than in the photograph, but these are his
features exactly.
The ruffianly man I saw was a stout
man, with a rough face, and had a bloated
appearance; his dress had been worn a con
siderable time. The prisoner, Edward Span
gler, has the appearance of the rough-looking
man, except that Jie had a moustache.
The one that called the time was a very
neat gentleman, well dressed, and he had a
moustache, I do not see him among the
prisoners. He was better dressed than any
I see here. He had on one of the fashion
able hats they wear here in Washington,
with round top and stiff brim. He was not
a very large man, about flve feet, six inches
high; his coat was a kind of drab color, and
his hat was black.
Cross-examined by Mr. Ewing.
During the half hour or more that I sat
in the front of the theater, the man in
slouched clothes was there; he stood on the
pavement at the end of the passage. His
moustache was black, and he had on a
slouched hat, one that had been worn some
time, I did not pay particular attention so
as to observe the color of his dress. Booth
entered the theater the last time at the front
door; he Whispered to the man, and left
him, and went into the theater by the front
door. I did not see the man in the slouched
dress change his position, because I was
observing Booth. 'The other man went up
the street on a fast walk. I suppose it was
about flfteen minutes after Booth entered
the theater, that we heard the news of the
assassination, while we were in the saloon.
John E, Buckingham.
For the Prosecution. — May 15.
I am night door-keeper at Ford's Theater.
In the daytime I am employed at the Wash
ington Navy Yard.
I know John Wilkes Booth by sight
About 10 o'clock on the evening of the 14th
he came to the theater, walked in and went
out again, and returned in about two or
three minutes. He came to me and asked

what time it was. I told him to step into
the lobby and he could see. He stepped out
and walked in again, entering by the door
that leads to tho parquette and dress-circle;
came out again, and then went up the stair
way to the dress-circle. The last I saw of
him was when he alighted on the stage from
the box, and ran across the stage with a
knife in his hand. He was uttering some
sentence, but I could not understand it, being
so far from him.
Cross-examined by Mr. Ewing.
I know the accused, Edward Spangler. I
am perfectly satisfied that he was not in
front of the theater during the play on the
night of the 14th of April; had he come
out, I must have seen him. I have never
known Spangler wear a moustache.
John F. Sleichmann.
For the Prosecution, — May 15.
I am assistant property man at Ford's
Theater, and have to set the furniture, etc., on
the stage. I was at the theatpr on the night
of the assassination of the President About
9 o'clock that night I saw John Wilkes
Booth. He came up on a horse, and entered
by the little back door to the theater. Ned
Spangler was standing by one of the wings,
and Booth said to him, " Ned, you '11 help me
all you can, won't you?" and Ned said, "0
yes." Those were the first words that I heard.
I just got a glimpse of Booth after the
President was shot, as I was going out at the
the first entrance on the right-hand side near
the prompter's place. I saw Booth on the
afternoon of the 14th, between 4 and 5
o'clock, in the restaurant next door. I went in
to look for James Maddox, and I saw Booth,
Ned Spangler, Jim Maddox, "Peanuts," and
a young gentleman by the name of John
Mouldey, I think, drinking there.
Cross-examined by Mr. Ewing,
Booth spoke to Spangler right by the back
door I saw his horse through the open
door, but as it was dark I could not see if any
one was holding it
1 was on the stage that night, except when
I had to go down to the apothecary's store to
get a few articles to use in the piece, and when
1 went into the restaurant next door. Span
gler's business on the stage is shoving the
scenes. I went to the front of the theater
by the side entrance, on the left-hand sid&
When I was in front, I noticed the Presi
dent's carriage there, but did not see Spangler;
had he been there, I guess I should have seen
him. I have never seen Spangler wear a
moustache, I was in front of the theater two
or three times, but was on the stage during
the third act I think it was ten or fifteen
minutes before the close of the second act
that I was in the restaurant next door.
About ten minutes, I suppose, after the

74

THE CONSPIRACY TRIAL.

assassination, Spangler was standing on the
stage by one of the wings, with a white hand
kerchief in his hand. He was very pale, and
was wiping his eyes. I do not know whether
he was crying or not.
Booth was very familiar with the actors
and employees of the theater, and was back
ward and forward in the theater frequently.
He had access to the theater at all times, and
came behind the scenes, and in the green-room,
and anywhere about the theater, j ust as though
he was in the employment of Mr. Ford,
When Booth spoke to Spangler, they were
about eight feet from me, but Booth and
Spangler were not more than two or three feet
apart After Booth had spoken, he went
behind the scenes. I do not know whether
Booth saw me, but he could have seen me
from where he was standing; no one else was
by at the time that I noticed, Spangler is, I
think, a drinking man; whether he was in
liquor that night I do not know,
Joseph Burroughs, alias " Peanuts,"
For the Prosecution. — May 16,
I carry bills for Ford's Theater during
the daytime, and stand at the stage-door at
night I knew John Wilkes Booth, and used
to attend to his horse, and see that it was
fed and cleaned. His stable was immediately
back of the theater. On the afternoon of
the 14th of April, he brought his horse to
the stable, between 5 and 6 o'clock. He
hallooed out for Spangler; when he came,
Booth asked him for a halter. He had none,
and sent Jake up stairs after one, Jim Mad
dox was down there too. Between 9 and
10 o'clock that night, I heard Deboney call
ing to Ned that Booth wanted him out in the
alley, I did not see Booth come up the
alley on his horse, but I saw the horse at the
door when Spangler called me out there to
hold it When Spangler told me to hold the
horse, I said I could not; I had to go in to
attend to my door. He told me to hold it,
and if there was any thing wrong to lay the
blame on him; so I held the horse, I held
him as I was sitting over against the house
there, on a carpenter s bench,
I heard the report of the pistol, I was still
out by the bench, but had got off when Booth
came out He told me to give him his horse.
He struck me with the butt of a knife, and
knocked me down. He did this as he was
mounting his horse, with one foot in the
stirrup; he also kicked me, and rode off im
mediately, I was in the President's box that afternoon
when Harry Ford was putting the flags
around it Harry Ford told me to go up with
Spangler and take out the partition of the
box; that the President and General Grant
were coming there. While Spangler was at
work removing it he said, " Damn the Presi
dent and General Grant" I said to him,
"•What are you damning the man for — a man

that has never done any harm to you ? " He
said he ought to be cursed wh«;n he got so
many men killed.
I only saw one horse in the stable when I
was there between 5 and 6 o'clock, and I
was not there afterward. There was another
horse there some days before. Booth brought
a horse and buggy there; it was a little horse;
I do not remember the color. The fellow that
brought the horse there lived at the Navy
Yard, I think he used to go with Booth
very often. I do not see him among the
prisoners. [Probably Herold, though the witness failed to recognize
him among the prisoners and the guards.]
I saw Booth as he came out of the small
door. 1 did not see anybody else. I did not
see Spangler come in or go out while I was
sitting at the door.
Cross-examined by Mr. Ewing.
It was about six or eight minutes after
Deboney called Spangler that Spangler called
me. I was sitting at the first entrance on the
left, attending to the stage-door. I was there
to keep strangers out, and prevent those coming
in who did not belong there.
When I was not there, Spangler used to
hitch up Booth's horse, and hold him or feed
him. Between 5 and 6 that evening, Span
gler wanted to take the saddle off IBooth's
horse, but Booth would not let him ; then he
wanted to take the bridle off', but Booth
would not agree to it; so Spangler ju.st put a
halter round the horse's neck, but he took
the saddle off afterward.
I was out in front of the theater that night
while the curtain was down ; I go out between
every act When the curtain is up, I go in
side, I did not see Booth in front of the the
ater that night, nor Spangler, I never saw
Spangler wear a moustache.
Booth was about the theater a great deal;
he sometimes entered on Tenth Street, and
sometimes from the back. The stable where
Booth kept his horses is about two hundred
yards from the back entrance to the theater.
When 1 went' to hold the horse for Booth
that night, 1 think they- were playing the flrst
scene of the third act
Spangler always worked on the left-hand
side of the stage; that is the side the Presi
dent's box was on, and it was on that side' I
attended the door. When I was away, Span
gler used to attend the door for me ; that was
the door that went into the alley from Tenth
Street A man by the name of Simmons
worked with Spangler on that side of the
stage, and on the other side, Skeggy, Jake,
and another man worked. While the play
was going on, these men were always about
there. It was their business to shove the
scenes on. They usually staid on their own
side of the stage, but when a scene stood the
whole of the act, they might go round on the
other side; sometimes they would go out, but
not very often.

THB ASSASSINATION.

7S

Recalled for the Prosecution. — May 22,
The stable in the rear of the theater was
fitted up for Booth in January, by Spangler
and a man by the name of George, It was
raised up a little higher for the buggy, and
two stalls put in it Booth occupied that
stable until the assassination. First he had
a saddle-horse, which he sold ; then he got
a horse and buggy. The buggy he sold on
Wednesday before the assassination, Ned
Spangler, the prisoner, sold it for him.
Cross-examined by Mr. Ewing.
I do not know to whom Spangler sold it
Booth and Gifford told Spangler on the
Monday, to take it to the bazar on Mary
land Avenue; but he could not get what he
wanted for it there, and sold it afterward to
a man that kept a livery stable.
Mart Ann Turner (colored.)
For the Prosecution. — May 16.
I reside in the rear of Ford's Theater;
my front-door fronts to the back of the
theater. I knew John Wilkes Booth when
I saw him. I saw him on the afternoon of
the 14th, standing in the back-door of Ford's
Theater, with a lady by his side. Between
7 and 8 o'clock that night, he brought a horse
up to the back door of the theater, and,
opening it, called "Ned" three times.
Ned came to him, and I heard him say,
in a low voice, "Tell Maddox to come here,"
When Maddox came, Booth said something
in a very low voice to him, and I saw Maddox
reach out his hand and take the horse.
Where Ned went I can not tell. Booth
then weiit into the theater. After the assas
sination, I heard the horse going very rapidly
out of the alley, I ran immediately to my
door and opened it, but he was gone. The
crowd then came out, and thie man, Ned,
came out of the theater.
[The witness here identified the accused, Edward
Slangier.] When I saw him, I said, "Mr. Ned, you
know that man Booth called you." Said he,
" I know nothing about it"
Mary Jane Anderson (colored.)
For the Prosecution. — May 16.
I live right back of Ford's Theater, ad
joining Mrs. Turner's house. I knew John
Wilkes Booth by sight I saw him on the.
morning of the 14th of April down by the
stable, and again between 2 and 3 o'clock in
the afternoon, standing in the theater back
door, in the alley, talking to a lady, I stood
in my gate and looked right wishful at him.
He and this lady were pointing up and
down the alley, as if they were talking about
it They stood there a considerable- time,
and then Booth went into the theater.
After I had gone up stairs that night, a
carriage drove up, and after that I heard a

horse step down the alley. I looked out of the
window, and it seemed as if the gentleman
was leading the horse down the alley. He did
not go further than the end of it, and in a few
minutes he came back up to the theater door,
holding his horse by the bridle. He pushed
the door open, and said something in a low
voice, and then in a loud voice he called
"Ned" four times. There was a colored
man up at the window, who said, " Mr, Ned,
Mr, Booth wants you," This is the way I
came to know it was Mr, Booth, for it was
dark and I could not see his face. When
Ned came, Mr, Booth said, in a low voice,
"Tell Maddox to come here,"
Then Ned went back and Maddox came
out, and they said something to each other.
Maddox then took off the horse from before
my door, round to where the work bench
was, that stood at the right side of the house.
They both .then went into the theater. The
horse stood out there a considerable time,
and kept up a great stamping. After awhile,
the person who held the horse kept walking
backward and forward ; I suppose the horse
was there an hour and a half altogether.
Then I saw Booth come out of the door
with something in his hand, glittering. He
came out of the theater so quick that it
seemed as if he but touched the horse,
and it was gone like a flash of lightning. I
thought to myself that the horse must surely
have run off' with the gentleman. Presently
there was a rush out of the door, and I heard
the people saying, "Which way did he go?"
1 asked a gentleman what was the matter,
and he said the President was shot I asked
who shot him. Said-he, " The man who went
out on the horse,"
I went up to the theater door, and saw
Mr, Spangler, When he came out, I said
to him, "Mr, Spangler, that gentleman called
you." Said he, " No, he did n't" Said I,
"Yes, he did." He said, "No, he didn't
call me." He denied it, and I kept on say
ing so. Cross-examined by Mr. Ewing.
When Mr. Maddox took the horse round
out of my sight, I could not see who held
him. He came back after a little while, and
went into the theater again. Mr Spangler
came out when Booth called him, and told
hira to tell Maddox to come out, but I am
not certain that Spangler came out again.
Jambs L. Maddox
For the Prosecution. — May 22.
I was employed at Ford's Theater as
property man. In December last, I rented
from Mrs. Davis, for John Wilkes Booth, the
stable where he kept his horse up to the
time of the murder of President Lincoln.
Mr. Booth gave me the rent money monthly,
and I paid it to Mrs. Davis.
I saw Harry Ford decorating the Presi-

76

THE CONSPIRACY TRIAL.

dent's box on the afternoon of the Uth of
April, but do not remember seeing any one
else in the box. I was in there but once.
I saw Joe Simms, the colored man, coming
from Mr. Ford's room, through the alley
way, carrying on his head the rocking-chair
that the President was to use in the evening.
I had not seen that chair in the box this
season; the last time I saw it before that
afternoon was in the winter of 1863, when
it was used by the President on his first visit
to the theater. Cross-examined by Mr. Ewing.
My duties require me to be on the stage
while the performance is going on, unless, as
sometimes happened, there is nothing at all
to do, when 1 go out My business is to see
that the furniture is put on the stage aright,
and to get the actors any side properties that
may be required for use in the play.
The passage way by which Booth escaped
is usually clear. Only when we are playing
a heavy piece, and when in a hurry, do we
run things in there. The "American Cousin,"
which was performed on that night, is not a
heavy piece, and the passage would therefore
be clear of obstruction.
Spangler's position on the stage was on
the left-hand side, facing the audience, and
the same side that the President's box was
on. I saw Spangler during nearly every
scene. If he had not been at his place, I
should certainly have missed him. If he
had missed running off a single scene, I
should have known it Sometimes a scene
lasts twenty minutes, but in the third act
of the "American Cousin" there are seven
scenes, the way Miss Keene plays it, and had
Spangler been absent five minutes after the
flrst scene of this act we should have noticed
it In the second act, I guess, he has a half
hour, and in the flrst scene of the third act
he has twenty-five minutes, and after this the
scenes are pretty quick.
I was at the front of the theater during the
second act, but did not see Spangler there.
I have never seen Spangler wear a moustache
during the two years that I have known him.
I was in the first entrance to the stage, the
side the President's box is on, at the moment
of the assassination. Three or four minutes
before that, while the second scene of the
third act was on, I crossed the stage with the
will, and saw Spangler in his place. After
the pistol was fired, I caught a glimpse of
Booth, when he was about two feet off the
stage. I ran on the stage and heard a call
for water; I ran and brought a pitcher full,
and gave it to one of the officers. I did not
see Spangler after that, that I remember,
until the next morning. I may have seen
him, but not to notice him.
I heard about 12 o'clock that the Presi
dent was coming to the theater that night; I
was told so by Mr. Harry Ford. I heard a
young man, one of the officers connected with

the President's house, say that night that ha
had come down that morning and engaged
the box for the President
James P. Ferguson.
For the Prosecution. — May 15.
I keep a restaurant, adjoining Ford's
Theater, on the upper side. I saw J. Wilkes
Booth, on the afternoon of the 14th, between
2 and 4 o'clock, standing by the side of
his horse — a small bay mare; Mr. Maddox
was standing by him talking. Booth re
marked, "See what a nice horse I have got;
now watch, he can run just like a cat; " and,
striking his spurs into his horse, he went off
down the street
About 1 o'clock Mr. Harry Ford came
into my place and said, " Your favorite. Gen
eral Grant, is to be at the theater to-night,
and if you want to see him you had better go
and get a seat." I went and secured a seat
directly opposite the President's box, in the
front dress-circle. I saw the President and
his family when they came in, accompanied
by Miss Harris and Major Rathbone.
Somewhere near 10 o'clock, during the sec
ond scene of the third act of "Our American
Cousin," I saw Booth pass along near the
President's box, and then stop and lean
against the wall. After standing there a
moment, I saw him step down one step, put
his hands on the door and his knee against
it, and push the door open — the flrst door
that goes into the box. I saw no more of
him until he made a rush for the front of the
box and jumped over. He put his left hand
on the railing, and with his right he seemed
to strike back with a knife. I could see the
knife gleam, and the next moment he was
over the box. As he went over, his hand
was raised, the handle of the knife up, the
blade down. The President sat in the left-
hand corner <if the box, with Mrs. Lincoln
at his right Miss Harris was in the right-
hand corner. Major Rathbone sitting back at
her left, almost in the corner of the box. At
the moment the President was shot, he was
leaning his hand on the railing, looking down
at a person in the orchestra; holding the flag
that decorated the box aside to look between
it and the post, I saw the flash of the pistol
right back in the box. As the person jumped
over and lit on the stage, I saw it was Booth.
As he struck the stage, he rose and exclaimed,
" Sic semper tyrannus / " and ran directly across
the stage to the opposite door, where the actors
come in.
I heard some one halloo out of the box,
"Revenge for the South 1" I do not know
that it was Booth, though I suppose it must
have been; it was just as he was jumping
over the railing. His spur caught in the blue
part of the flag that was stretched around the
box, and, as he went over, it tore a piece of
the flag, which was dragged half way across
the stage on the spur of his right heel

THE ASSASSINATION.

77

Just as Booth went over the box, I saw
the President raise his head, and then it hung
back. I saw Mrs. Lincoln catch his arm,
and I was then satisfied that the President
was hurt By that time Booth was across
the stage. A young man named Harry
Hawk was the only actor on the stage at
tlie time.
I left the theater as quickly as I could,
and went to the police station on D Street,
to give notice to the Superintendent of Police,
Mr, Webb, I then ran up D Street to the
house of Mr, Peterson, where the President
was taken. Colonel Wells was standing on
the steps, and I told him that I had seen it
all, and I knew the man who jumped out of
the box.
Next morning I saw Mr, Gifford, who said,
"You made a hell of a statement about what
you saw last night; how could you see the
flash of the pistol when the ball was shot
through the door?" On Sunday morning
Miss Harris, accompanied by her father,
.ludge Olin, and Judge Carter, came down to
the theater, and I went in with them. We
got a candle and examined the hole in the
door of the box through which Mr, Gifford
said the ball had been shot It looked to
me as if it had been bored by a gimlet, and
then rimed round the edge with a knife. In
iieveral places it was scratched down, as if
the knife had slipped. After this examina
tion, I was satisfied that the pistol had been
fired in the box.
Mr. Gifford is the chief carpenter of the
theater, and I understood had full charge
of it I recollect when Richmond was sur
rendered I said to him, "Have you not got
any flags in the theater?" He replied, " Yes,
I have; I guess there is a flag about" I
said, "Why do you not run it out on the
roof?" He answered, " There 's a rope, is n't
that enough ?" I said, " You are a hell of
a man, you ought to be in the Old Capitol,"
He did n't like me any how.
Cross-examined by Mr. Ewing.
We looked for the bar that had been used
to fasten the box-door, but could not find it
I know Mr. Spangler very well. I never
saw him wear a moustache, that I recollect,
James J. Gifford,
For the Prosecution. — May 19.
I was the builder of Ford's Theater, and
am stage-carpenter there. I noticed Mr
Harry Clay Ford in the President's box, on
the Mth of April last, putting flags out ; I
think I saw Mr, Raybold with him. When
I was in the box on Saturday, the 15th, I
saw the large rocking-chair. I do not know
whether or not it has been previously used
tills season, but I saw it there last season. It
was part of a set of furniture — two sofas and
two high-backed chairs — one with rockers and
one with castors. I have sometimes seen the

one with castors in the box this season, but
not the rocking-chair. The last time I saw
the chair before it was placed in-the Presi
dent's box was in Mr. Ford's room, adjoining
the theater.
On Monday morning, after the assassina
tion, I was trying to find out how the door of
the President's box had been fastened, when
I first saw the mortise in the wall The
Secretary of War came down to the theater
to examine the box, and he told me to bring
a stick and fit it in the door. I found that
a stick about three feet six inches long, if
pressed against it, would prevent the door
from being opened on the outside, but if the
door was shaken, the stick would fall. The
mortise in the plastering looked as though it
had been recently made, and had the appear
ance of having been made with a knife. Had
a chisel or hammer been used, it would have
made a sound, but with a knife it could have
been done quietly. It might have required
some ten or fifteen minutes to make it I
had not been in the box, I think, for a week.
Had the marks been there then, I think I
should have observed it, as I am particular
in looking around to see the place is clean.
It was the duty of Mr, Rayboltd,the up
holsterer, to decorate the box; but he had a
stiff neck, and got Mr, Clay Ford to do it for
him, so he told me afterward.
At the-moment of the assassination I was
in front of the theater ; twenty minutes before,
I was behind the scenes where I saw Spangler;
he was then waiting for his business to change
the scene,
> Cross-examined by Mr. Ewing,
The passage on each side of the entrances
is always kept free. The entrances are al
ways more or less filled with tables, chairs,
etc, ¦ The passage way through which Booth
passed to the outer door is about two feet
eight inches to three feet wide; some places a
little wider, some a little narrower; but it is
never obstructed, except by people when they
have a large company on the stage; never by
chairs, tables, etc. It is necessary to keep
this passage way clear to allow the actors and
actresses to pass readily from the green-room
and dressing-rooms to the stage, I was on
the stage until the curtain went up at each
act, and saw Spangler there each time. The
last time I saw him was about half-past 9
o'clock. I was in front of the theater a part of the
time between the second and third acts. I
did not see Spangler in front of the theater
at all; I do not think he could have been
there without my knowing it, because the
scenes would have gone wrong had he left
the stage for any length of time. I never
knew Spangler to wear a moustache.
In the play of the "American Cousin " there
are, I believe, some five or six scenes in each
act, and Spangler's presence on the stage
would have been indispensable to the per-

78

THE CONSPIRACY TRIAL.

formance, Ritterspaugh was on duty with
Spangler on his side of the stage that night
I know nothing more of Booth's connection
with Span-gler than that it was friendly.
Everybody about the house, actors and ail,
were friendly with Booth ; he had such a
winning way that he made every person like
him. He was a good-natured, jovial kind of
man, and the people about the house, as far
as I know, all liked him. He had access to
the theater by all the entrances, just as the
employees of the theater had, Spangler ap
peared to be a sort of drudge for Booth, doing
such things as hitching up his horse, etc.
Captain Theodore MoGowan.
For the Prosecution. — 3iay 15,
I was present at Ford's Theater on the
night of the assassination, I was sitting in
the aisle leading by the wall toward the door
of the President's box, when a man came and
disturbed me in my seat, causing me to push
my chair forward to permit him to pass ; he
stopped about three feet from where I was
sitting, and leisurely took a survey of the
house, I looked at him because he happened
to be in my line of sight He took a small
pack of visiting-cards from his pocket, select
ing one and replacing the others, stood a
second, perhaps, with it in his hand, and then
showed it to the President's messenger, who
was sitting just below him. Whether the
messenger took the card into the box, or,
after looking at it, allowed him to go in, I
do not know; but, in a moment or two more,
I saw him go through the door of the lobby
leading to the box, and close the door.
After I heard the pistol fired, I saw the
body of a man descend from the front of the
box toward the stage. He was hid from my
sight for a moment by the heads ,of tho.se
who sat in the front row of the dress-circle,
but in another moment he reappeared, strode
across the stage toward the entrance on the
other side, and, as he passed, I saw the gleam
ing blade of a dagger in his right hand. He
disappeared behind the scenes in a moment,
and I saw him no more.
I know J. Wilkes Booth, but, not seeing
the face of the assassin fully, I did not at the
time recognize him as Booth.
Major Henry R, Rathbone.
For the Prosecution, — May 15,
On the evening of the 14th of April last,
at about twenty minutes past 8 o'clock, I, in
company with Miss Harris, left my residence
at the corner of Fifteenth and H Streets, and
joined the President and Mrs, Lincoln, and
went with them, in their carriage, to Ford's
Theater, on Tenth Street On reaching the
theater, when the presence of the President
became known, the actors stopped playing,
the band struck up " Hail to the Chief," and
the audience rose and received him with vocif

erous cheering. The parly proceeded along
in the rear of the dress-circle and entered the
box that had been set apart for their recep
tion. On entering the box, there was a large
arm-chair that was placed nearest the audi
ence, farthest from the stage, which the Pres
ident took and occupied during the whole
of the evening, with one exception, when he
got up to put on his coat, and returned and
sat down again. When the second scene of
the third act was being performed, and while
I was intently observing the proceedings
upon the stage, with my back toward the
door, I heard the discharge of a pistol behind
me, and, looking round, saw through the
smoke a man between the door and the Pres
ident The distance from the door to where
the President sat was about four feet At
the same time I heard the man shout some
word, which I thought was "Freedom!" I
instantly sprang toward him and seized him.
He wrested himself from my grasp, and
made a violent thrust at my breast with a
large knife. I parried the blow by striking
it up, and received a wound several inches
deep in my left arm, between the elbow and
the shoulder. The orifice of the wound was
about an inch and a, half in length, and
extended upward toward the shoulder sev
eral inches. The man rushed to the front of
the box, and I endeavored to seize him again,
but only caught his clothes as he was leap^
ing over the railing of the box. The clothes,
as I believe, were torn in the attempt to hold
him. As he went over upon the stage, I
cried out, "Stop that man." I then turned
to the President; his position was not
changed ; his head was slightly bent forward,
and his eyes were closed. I saw that he was
unconscious, and, supposing him mortally
wounded, rushed to the door for the purpose
of calling medical aid.
On reaching the outer door of the passage
way, I found it barred by a heavy piece of
plank, one end of which was secured in the
wallj and the other resting against the door.
It had been so securely fastened that it re
quired considerable force to remove it This
wedge or bar was about four feet from the
floor. Persons upon the outside were beat
ing against the door for the purpose of enter
ing, I removed the bar, and the door was
opened. Several persons, who represented
themselves as surgeons, were allowed to
enter, I saw there Colonel Crawford, and
requested him to prevent other persons from
entering the box,
I then returned to the box, and found the
surgeons examining the President's person.
They had not yet discovered the wound. As
soon as it was discovered, it was determined
to remove him from the theater. He was
carried out, and I then proceeded to assist
Mrs, Lincoln, who was intensely excited, to
leave the theater. On reaching the head of
the stairs, I requested Major Potter to aid
me in assisting Mrs. Lincoln across the

THE ASSASSINATION,

79

street to the house where the President was
being conveyed. The wound which 1 had
received had been bleeding very profusely,
and on reaching the house, feeling very faint
from the loss of blood, 1 seated myself in
the hall, and soon after fainted away, and
was laid upon the floor. Upon the return
of consciousness I was taken to my resi
dence. In a review of the transactions, it is my
confldent belief that the time which elapsed
between the discharge of the pistol and the
time when the assassin leaped from the box
did not exceed thirty seconds. Neither Mrs,
Lincoln nor Miss Harris had left their seats,
[A bowie-knife, with a heavy seven-inch blade, was
exhibited to the witness, stains of blood being still upon
tho blade.]
This knife might have made a wound sim
ilar to the one I received. The assassin
held the blade in a horizontal position, I
think, and the nature of the wound would
indicate it; it came down with a sweeping
blow from above,
[The knifo was offered in evidence,]
William Withers, Je,
For the Prosecution, — May 15,
I am the leader of the orchestra at Ford's
Theater, I had some business on the stage
with our stage-manager on the night of the
Hth, in regard to a national song that I had
composed, and I went to see what costume
they were going to sing it in. After talking
with tho panager, I was returning to the
orchestra, when I heard the report of a pis
tol. I stood with astonishment, thinking
why they should flre off a pistol in " Our
American Cousin." As I turned round I
heard some confusion, and saw a man run
ning toward me with his head down, I did
not know what was the matter, and stood
completely paralyzed. As he ran, I could
not get out of his way, so he hit me on the
leg, and turned me round, and made two
cuts at me, one in the neck and one on the
side, and knocked me from the third en
trance down to the second. The scene saved
me. As I turned, I got a side view of him,
and I saw it was John Wilkes Booth. He
then made a rush for the back door, and' out
he went I returned to the stage and heard
that the President was killed, and I saw him
in the box apparently dead.
Where I stood ou the stage was not more
than a yard from the door. He made one
plunge at the door, which I believe was
shut, and instantly he was out The door
opens inward on the stage, but whether he
opened it, or whether it was opened for him,
I do not know, I noticed that there was
nothing to obstruct his passage out, and this
seemed strange to me, for it was unusual.
Cross-examined by Me. Ewing.
On that night the passage seemed to be
clear of every thing. I do not think it

wanted many minutes until the scene changed,
and it was a time in the scene when the
stage and passage way would have been
somewhat obstructed by some of the scene-
.shifter.'j, and the actors in waiting for the
next scene, which requires their presence,
I never remember seeing Spangler wear a
moustache. Joseph B. Stewart.
For the Prosecution. — May 20.
I was at Ford's Theater on the night of
the assassination of the President I was
sitting in the front seat of the orchestra, on
the right-hand side. The sharp report of
a pistol at about half-past 10 — evidently a
charged pistol — startled me, I heard an ex
clamation, and simultaneously a man leaped
from the President's box, lighting on the
stage. He came down with his back slight
ly toward the audience, but rising and turn
ing, his face came in full view. At the
same instant I jumped on the stage, and the
man disappeared at the left-hand stage en
trance, 1 ran across the stage as quickly as
possible, following the direction he took,
calling out, "Stop that man!" three times.
When about twenty or twenty-five feet from
the door through which the man ran, the
door slammed to and closed. Coining up to
the door, I touched it first on the side
where it did not open; after which I ciught
hold at the proper place, opened the door,
and passed out The last time that I exclaimed
"Stop that man," some one said, "He is
getting on a horse at the door;" and almost
as soon as the words reached my ears I
heard the tramping of a horse. On opening
the door, after the temporary balk, I per
ceived a man mounting a horse. The moon
was just beginning to rise, and I could see
any thing elevated better than neai the
ground. The horse was moving with a
quick, agitated motion — as a horse will do
when prematurely spurred in mounting —
with the reins di'awn a little to one side,
and for a moment I noticed the horse describe
a kind of circle from the right to the left 1
ran in the direction where the horse was head
ing, and when within eight or ten feet from
the head of the horse, and almost up with
in reach of the left fiank, the rider brought
hira round somewhat in a circle from the
left to the right, crossing over, the horse's
feet rattling violently on what seemed to be
rocks, I crossed in the same direction, aim
ing at the rein, and was now on the right
flank of the horse. He was rather gaining
on me then, though not j'et in a forward \
movement I could have reached his flank
with my hand when, perhaps, two-thirds of
the way over the Slley, Again he backed
to the right side of the alley, brought the
horse forward and spurred him; at the same
instant he crouched forward, down over the
pummel of the saddle. The horse then went

80

THE CONSPIRACY TRIAL,

forward, and soon swept rapidly to the left,
up toward F Street I still ran after the
horse some forty or flfty yards, and com
manded the person to stop. All this occu
pied only the space of a few seconds.
After passing the stage, I saw several per
sons in the passage way, ladies and gentle
men, one or two men, perhaps five persons.
Near the door on my right hand, I saw
a person standing, who seemed to be in the
act of turning, and who did not seem to be
moving about like the others. Every one
else that I saw but this person, seemed in
tensely excited, literally bewildered ; they
were all in a terrible commotion and moving
about, except this man. As I approached
the door, and only about fifteen feet from it,
this person was facing the door; but, as I
got nearer, he partially turned round, moving
to the left, so that I had a view of him as he
was turning from the door and toward me,
[The witness was directed to look at the prisoners, to see if
he recognized among them the person he saw standing at
the door,]
That man [pointing to Edward Spangler]
looks more like the person I saw near the
door than anybody else I see here. He re
calls the impression of the man's visage as
I passed him. When the assassin alighted
on the stage, I believed I knew who it
was that had committed the deed; that it
was J, Wilkes Booth, and I so informed
Richards, Superintendent of the Police, that
night I knew Booth by sight very well,
and when I was running after him, I had
no doubt in my mind that it was Booth,
and should have been surprised to find that
it was anybody else, I felt a good deal
vexed at his getting away, and had no doubt
when I started across the stage that I could
catch him. From the time I heard the door
slam until I saw the man mounting his
horse, was not over the time I could make
two steps,
I am satisfied that the person I saw in
side the door was in a position and had an
opportunity, if he had been disposed to do so,
to have interrupted the exit of Booth, and
from his manner, he was cool enough to
have done so. This man was nearest of all
to the door, and could have opened -and
gone out before I did, as it would have been
bat a step to the right and a reach to open it
Cross-examined by Mr, Ewing,
The man I have spoken of stood about
three feet from the door out of which Booth
passed; I noticed him just after the door
slammed. From the position in which he
stood, he might have slammed it without my
noticing it The lock of the door, as I ap
proached it, was on the right-hand side, the
hinges to the left If ••the door had been
open and I had not been stopped, I could
have got the range of the horse outside.
As 1 passed out of the door, a person, a
small person, passed behind me, directly

under my right elbow, [the witness was a tall
man,] and as I approached the horse at the
nearest point, some one ran rapidly out of the
alley. 'The one who passed me is not so tall
as Spangler by, perhaps, four or five inches.
I did not notice that the person whom I now
suppose to be Spangler wore whiskers or a
moustache; my impression is that he was
slightly bearded. It-was his visage, the side
face, that struck me. I do not undertake to
swear positively that the prisoner, Edward
Spangler, is the person I saw near that door;
but I do say that there is no one among
these prisoners, who calls that man to my
mind, except the one who, I am told, is Mr.
Spangler; but I am decided in my opinion,
that Spangler resembles the person I saw
there. As I got to the door. Booth was just com
pleting his balance in the saddle, I think,
from his position and the motion of the
horse, that the moment he got one foot in
the stirrup he spurred the horse, and, hav
ing the rein drawn more on one side than
the other, lost control of him for the moment,
so far as making him take a straight for
ward movement ; he was circling round,
moving with a quick sort sort of motion, ap
parently making more exertion than head
way, but still going pretty fast
Hearing the report of a loaded pistol, and
seeing the man jump from the President's
box with a dagger in his hand, my impres
sion was that the person had assassinated,
or attempted to assassinate, the President,
and every effort I made after I started to get
upon the stage was under this conviction;
so much so that I stated to the people in the
tenement houses in the rear, before 1 returned
to the theater, that the person who went off
on that horse had shot the President
Joe Simms (colored,)
For the Prosecution, — May 15.
I have worked at Ford's Theater for the past
two years. On the day of the President's
assassination, during the performance, while
I was up on the flies to wind up the curtain,
I heard the fire of a pistol, and looking down
I saw Booth jump out of a private box down
on to the stage, with a bowie-knife in his
hand, and then making his escape across the
stage. Between 5 and 6 o'clock that day,
I was in front of the theater, when I saw
Booth go into the restaurant by the side of
the theater. Spangler was sitting out in front,
and Booth invited him to take a drink, I did
not hear a word spoken between them. Booth
and Spangler were very intimate, I have
often seen them together, and drinking to
gether. Cross-examined by Mr, Ewing,
Spangler had charge of Booth's horses.
There was a young man hired by Booth, but
I suppose Mr. Booth thought he might not

THE ASSASSINATION.

81

do right by his horses, so he got Spangler to
see to their being fed and watered.
Spangler's place on the stage is at the back
part of the stage, next to the back-door lead
ing out to the side alley. The President's box
is on the left-hand side as you look toward
the audience. My position is on the files on
the opposite side of the President's box, and
Mr. Spangler's place was on the opposite side
below, the side the President's box is on. I
.saw him in the first act I do not remember
seeing him in the second, but I wafljiot look
ing for him. When I saw Mr, Spangler, he
had his hat on. I never saw him wear a
moustache. Mr. Spangler was on the stage
attending to his business as usual that night
He was obliged to be there. From my position
on the flies I could see him very well
Recalled for the Prosecution. — May 18.
On the afternoon of the day of the assas
sination, I saw Mr. Harry Ford and another
gentleman flxing up the box. Mr. Ford told
me to go to his bed-room and get a rocking-
chair, and bring it down and put it in the Presi
dent's box. I did so. The chair had not been
there before this season. It was a chair with
a high back to it and cushioned. Mr. Span
gler was at the theater during the afternoon.
He worked there altogether, the same as I did.
Cross-examined by Mr, Ewing.
I did not notice Mr. Spangler there in the
afternoon, but his business was to be there. It
was about 3 o'clock in the afternoon when
Mr. Harry Ford and, I think, Mr. Bucking
ham were in the private box. I did not see
Spangler in the President's box in the after
noon, nor did I see him when I came away
from the private box.
John Miles (colored.)
For the Prosecution. — May 15.
I work at Ford's Theater. I was there
on the day of the assassination of the Presi
dent About 3 o'clock in the afternoon Booth
put his horse in the stable, and Ned Spangler
and Jim Maddox were with him. The stable
is not more than five yards from the theater.
Between 9 and 10 o'clock that night, J,
Wilkes Booth brought a horse from the stable,
and, coming to the back door of the theater,
called " Ned. Spangler " three times. When
Booth first called Spangler, some person told
him that Booth called him, and he ran across
the stage to him. I saw nothing more of
Spangler or Booth until I heard the pistol go
off. In a minute or two I heard the sound
of a horse's feetgoing out of the alley. Before
this I saw a boy holding the horse in the
alley, perhaps for fifteen minutes. That was
»fl«r Booth had called Spangler.
Cross-examined by Mr. Ewing.
When Booth called Spangler I was up on
the flies, about three and a half stories from
6

the stage. It was, I think, in the third act;
and from the time Booth brought his horse
there until the President was shot was, I ,
think, about three-quarters of an hour, I
I was at the window pretty nearly all the
time. From the time Booth brought the
horse until he went away, and from the time
I looked out of the window, John Peanut-i
was lying on the bench holding the horse; 1
did not see any one else holding it
John Peanuts attended to Mr. Booth's
horses. I have seen Spangler hold Booth's
horses or hitch them up, but I never saw him
put any gearing on them. Spangler's place
on the stage was on the same side as the
President's box, and he was there when Booth
called him. There was, another man work
ing with Spangler to help him shove the
scenes. After the President was shot, I came down
the stairs, and I saw Spangler out there at
the door Booth went out of There were, I
think, two or three other or more men out
there, some of whom were strangers. When
I came down, I went toward the door, and
Spangler came out, and I asked him who it
was that held the horse, and he said, " Hush !
do n't say any thing about it; " and I did n't
say any more, though I knew who it was,
because I saw the boy holding the horse.
Spangler, I suppose, when he said this, was
about a yard and a half from the door, out
side the door. Spangler appeared to be. ex
cited; every person appeared to be very much
excited. By the time I got down stairs, the
door through which Booth had pa,s8ed was
open. I never saw Spangler wear a moustache.
Dr. Robeet King Stonb.
For the Prosecution — May 16.
I am a practicing physician in this city,
and was the family physician of the late
President of the United States.
I was sent for by Mrs. Lincoln immedi
ately after the assassination. I arrived in a
very few moments, and found that the Presi
dent had been removed from the theater to
the house of a gentleman living directly op
posite; and had been carried into the back
room of the residence, and was there placed
upon a bed. I found a number of gentle
men, citizens, around him, and, among oth
ers, two assistant surgeons of the army, who
had brought him over from the theater, and
had attended to him. They immediately
gave the case over to my care, knowing my
relations to the family. I proceeded to ex
amine the President, and found that he had
received a gun-shot wound in the back part
of the left side of his head, into which I car
ried my finger. I at once informed those
around that the case was a hopeless one;
that the President would die; that there was
no positive limit to the duration of his life;
that his vital tenacity was very strong, and he
would resist as long as any. man could ; but

82

THE CONSPIRACY TRIAL.

that death certainly would soon close the
scene. I remained with him, doing what
ever was in my power, assisted by my friends;
but, of course, nothing could be done, and
he died from the wound the next morning
at about half-past 7 o'clock. It was about
a quarter past 10 that I reached him,
Ther next day, previous to the process of
embalmment, an examination was made in the
presence of Surgeon-General Barnes, Dr, Cur
tis, and Dr, Woodward, of the army. We
traced the wound through the brain, and the
ball was found in the anterior part of the
same .side of the brain, the left side; it was
a large ball, resembling those which are shot
from the pistol known as the Derringer ; an
unusually large ball — that is, larger than
those used in the ordinary pocket revolvers.
It was a leaden hand-made ball, and was
flattened somewhat in its passage through
the skull, and a portion had been cut off in
going through the bone, I marked the ball
"A, L,," the initials of the late President,
and in the presence of the Secretary of War,
in his office, inclosed it in an envelope, sealed
it with my private seal, and indorsed it with
my name. The Secretary inclosed it in an
other envelope, which he indorsed in like
manner, and sealed with his private seal. It
was left in his custody, and he ordered it to
be placed among the archives of his depart
ment [An official envelope, sealed with the ofiBcial seal of the
Secretary of War, was here opened by the Judge Advo
cate in the presence of the witness, from which was taken
a Derringer pistol and an envelope containing a leaden
ball in two pieces,]
This is the ball which I extracted from
the head of the President; I recognize it
from the mark which I put upon it with my
pen-knife, as well as from the shape of the
ball. This smaller piece is the fragment
which was cut off in its passage through the
skull. The ball was flattened, as I have be
fore described,
[The ball was then offered in evidence.]
William T. Kent.
For the Prosecution, — May 16.
About three minutes after the President
was shot, I went into his box; there were
two other persons there and a surgeon, who
asked me for a knife to cut open the Presi
dent's clothes. On leaving the theater I
missed my night-key, and thinking I had
dropped it in pulling out my knife, I hurried
back, and on searching round the floor of
the box, I knocked my foot against a pistol,
which I picked up, and, holding it up, 1 cried
out, " I have found the pistol," I gave it up
to Mr, Gobright, the agent of the Associated
Press. The next morning I went round to
the police station and identified it there.
[A Derringer pistol, about six inches in length, was
handed to the witness.]
This is the pistol I picked up in the Pres-
'dent's box on the night of the 14th of April.
[The pistol was offered in evidence.]

ISjIAC Jacquette.
For the Prosecution. — May 18.
I was present at Ford's Theater on the
night of the assassination. Soon after the
President was carried out, I went to the box
with several others,
[A wooden bar, about two inches square and three feet
long, was handed to the witness,]
This wooden bar was lying on the fioor
inside of the first door going into the box.
I picked it up and took it home with me.
There was an officer stopping at my boarding-
house, and he wanted a piece of it, which I
sawed off for him, but he concluded after
ward not to take it It is nearly covered
with spots of blood which were fresh at the
time when I found it
[The bar was offered in evidence.]
Judge A. B. Olin.
For the Prosecution, — May 18.
On Sunday, the 16th of April, accompanied
by Miss Harris, I visited Ford's Theater, and
made an examination of the President's box,
doors, locks, etc. My attention was called to
the incision into the wall that was prepared
to receive the brace that fitted into the corner
of the panel of the outer door ; the brace
was not there. The door opens into the
passage leading to the box at an angle with
the wall, and a brace, fitted against the wall
to the corner of the door, fastens the door
very securely. I discovered that, and looked
for the remains of the plastering that had
been cut from the wall to make this incision.
That, so far as I could observe, had been
carefully removed from the carpet, where it
must have fallen, as it was cut by some
sharp instrument
The indentation upon the panel of the
door where the brace might have been fixed
from against the wall, was quite perceptible,
and the brace was so fixed that it would be
very difficult to remove it from the outside,
I think it could not have been done without
breaking the door down. The more pressure
that was made upon it from the outside, or
the dress-circle, the firmer it would have been
held in its place.
It had been said that the pistol was dis
charged through the panel of the door As
the passage way is somewhat dark, I pro
cured a light and examined very carefully
the hole through the door. I discovered at
once that that was made by some small in
strument in the first place, and was, as I
supposed, cut out then by a sharp instrument
like a penknife; and, by placing the light
near the door, I thought I saw marks of f
shaip cutting knife used to clean out the hole
I examined to see if I could discover th(
chips that must have been made by boring
and cutting this small hole, but they had
been removed. It was a freshly-cut hole,
the wood apparently being as fresh as it
would have been the instant it was cut

PURSUIT AND CAPTURE OF BOOTH AND HEROLD.

88

I then discovered that the clasp which fas
tens the bolt of the outer door had been
loosened, The upper screw holding the clasp
had been loosened in such a way that when
the door was locked I could push it open
with my forefinger,
I then placed the chair in which the Pres
ident sat in the position, as nearly as Miss
Harris could recollect, it had occupied on
the night of the assassination. Seating my
self in it, and closing the door, it was found
that my head — about midway from the base
to the crown — would be in the range of the
eye of a person looking through the hole
in the door. It was a large high-backed
arm-chair, with satin cushions, not a rock
ing-chair, I think. David C, Heed,
For the Prosecution. — May 15.
On the 14th of April, about 2 o'clock, as
I was standing just below the National
Theater, I saw John H, Surratt, and we
bowed to each other as he passed, I am
quite positive that it was John H, Surratt
He was dressed in a country-cloth suit of
drab, very fine in its texture and appearance,
and very genteelly got up, I took particular
notice of his clothing, for it was my business
to make clothes. He had a little, round-
crowned drab hat He was on foot, but I
particularly noticed he wore a pair of new,
brass-plated spurs, with very large rowels,
I have known John H, Surratt a great
while, I knew him when quite a boy, at his
father's house, and have seen him out gun-
See testimony of C.

ning. He had grown pretty much out of my
recollection ; still I knew him, though I had
no intimacy with him.
Cross-examined by Mr, Aiken,
I last saw John H. Surratt before the Mth
of April, I think, in October. In appearance,
John H. Surratt is light complexioned, with
rather singular colored hair; it is not red, it
is not white, it is a kind of sandy. It was
cut rounded, so as to lay low on his collar,
and a little heavy, I did not notice whether
he wore a moustache or a goatee, for I was
more interested in his clothing,
I never saw him in that dress before. In
hight, I suppose he is about five feet, ten
inches; he is not a stout man, but rather
delicate, I do not suppose he would weigh
over one hundred and forty pounds, judging
from his build. In walking, he stoops a
little. He was on the same side of the
avenue that I was, and passed within three
feet of me, I am as certain that it was
Surratt as that I stand here.
John F. Coyle.
For the Prosecution, — May 17.
I am connected with the National Intelli
gencer. I knew J. Wilkes Booth in his
lifetime, though not intimately.
The statement that Booth, on the night
before the assassination, wrote an article in
which he set forth the reasons for his crime,
and left it with one of the editors of the Na
tional Intelligencer, is not correct No such
paper was ever received, to my knowledge,
D. Hess, page 99.

PURSUIT AND CAPTURE OF BOOTH AND HEROLD.

John Fletcher.
For the Prosecution. — May 17.
David E. Herold came to our stable, in
company with the prisoner, Atzerodt, about
a quarter to 1 o'clock, on the 14th of
April, and engaged a horse, which he told
me to keep for him, and he would call for it
at 4 o'clock. At a quarter past 4 he
came and asked me how much I would
charge him for the hire of the horse. I
told him five dollars. He wanted it for
four. I told him he could not have it for
that He knew the horse, and inquired for
that particular one. I went down to the
stable with him, and told him to take a mare
that was in the stable; but he would not
have her. I then told him I would give
him the other horse. He then wanted to

see the saddles and bridles. I showed him a
saddle, and he said it was too small. Then
I showed him another. That suited him
very well, only that it had not the kind of
stirrups he wanted. The stirrups were cov
ered with leather, and he wanted a pair of
English steel stirrups. He then wanted to
see the bridles. I took him into the office
and showed him the bridles, and he picked
out a double-reined bridle. Before he mounted
the horse he asked me how late he could
stay out with him, I told him he could
stay out no later than 8 o'clock, or 9, at
furthest After that hour I became very
uneasy about the horse, and wanted to see
about it before I closed up the stable; and
that is how I got to see Atzerodt and Herold.
At about 10 o'clock, having a suspicion
that Herold was going to take the horse

84

THE CONSPIRACY TRIAL.

away, I went across E Street, and up Four
teenth Street, till I came upon Pennsylvania
Avenue, close to Willard's, where I saw
Herold riding the roan horse. He seemed
as if he was coming down from the Treasury
upon the Avenue, He was passing Four
teenth Street; the horse was pulling to get
to the stable, for he was a horse very well
acquainted with the stable, I suppose Her
old knew me by the light of the lamp, for
he turned the horse around, and I hallooed to
him, "You get off that horse now; you
have had it long enough;" but he put spurs
to it, and went, as fast as the horse could
go, up Fourteenth Street, making no reply to
me. He was a very fast horse, and all the
time used as a lady's saddle-horse ; any one
could ride him, he was so gentle and nice;
his pace was a single foot rack. He would
trot if you would let the bridle go slack. He
was a light roan horse, black tail, legs, and
mane, and close on fifteen hands high, I
kept sight of bim until he turned to the east
of F Street That was about twenty-five
minutes past 10,
I then returned to the stable for a saddle
and bridle and horse myself, and went
along the avenue until I came to Thirteenth
Street; went up Thirteenth Street to E; along
E until I came to Ninth, and turned down
Ninth Street to Pennsylvania Avenue again,
1 went along the avenue to the south side of
the Capitol. I there met a gentleman, and
Asked him if he had passed any one riding on
horseback. He said yes, and that they were
riding very fast I followed on until 1 got to
the Navy Yard bridge, where the guard
halted me, and called for the sergeant of the
guard. He came out, and I asked him if a
roan horse had crossed that bridge, giving
him a description of the horse, saddle, and
bridle, and the man that was riding. He
said, "Yes, he has gone across the bridge,"
"Did he stay long here?" I asked. He re
plied, "He said that he was waiting for an
acquaintance of his that was coming on; but
he did not wait, and another man came
riding a bay horse or a bay mare, right after
tiim,' " Did he tell you his name?" " Yes,
toe said his name was Smith," I asked if I
could cross the bridge after them. He said,
" Yes, you can cross, but you can not return."
I said, " If that is so, I" will not go," So I
(turned around and came back to the city
lagain. When I came to Third Street, I
flocked at my watch, and it wanted ten min-
lutes to 12. I rode pretty fast going down to
(the Navy Yard, but I rode slowly coming
iback. I went along E Street until I got to
Fourteenth Street, and inquired of the fore-
iman at Murphy's stable, by the name of
iborsey, whether this roan horse had been
put up there. He said, "No; but," said he,
"you had better keep in, for President Lin
coln is shot and Secretary Seward is almost
dead." I then returned to the stable, put
up the horse, came outside of the office

window, and sat down there; it was half-past
1 o'clock. Cross-examined by Mr. Stone.
When I caught sight of Herold on the
horse, near Willard's, the horse seemed some
what tired, and as if he wanted to go to the
stable, and appeared as if he had been ridden
a right smart distance. He was then going
an easy kind of pace. I am quite satisfied
that it was Herold I saw on my horse,
I became acquainted with Herold by his
calling at our stable, about the 5th or 6th of
April, inquiring for the man Atzerodt, but he
did not inquire for him by name; he wanted
to know if the man that kept the horse in
the side stable had been there that day. He
came to our stable every day, from about the
5th or 6th of April until the 12th, inquiring
for Atzerodt, and I saw him ride with him.
One day Atzerodt went out riding, and sent
the horse back by Herold, and the next day
Atzerodt asked, " How did he bring the horse
back?" and if he rode him fast
Sergeant Silas T. Cobb.
For the Prosecution. — May 16,
On the night of the Mth of April, I was
on duty at the Navy Yard bridge. At about
half-past 10 or 11 o'clock, a man approached
rapidly on horseback. The sentry challenged
him, and I advanced to see if he was a proper
person to pass.
I asked him, " Who are you, sir?" He
said, " My name is Booth," I asked him
where he was from. He made answer, " From
the city," "Where are you going?" I said;
and he replied, " I am going home." I asked
him where his home was. He said it was in
Charles. I understood by that that he meant
Charles County. I asked him what town.
He said he did not live in any town. I said,
" You must live in some town." Said he, "I
live close to Beantown ; but do not live in the
town." I asked him why he was out so late;
if he did not know the rule that persons were
not allowed to pass after 9 o'clock. He said
it was new to him; that he had had some
where to go in the city, and it was a dark
night, and he thought he would have the
moon to ride home by. The moon rose that
night about that time. I thought he was a
proper person to. pass, and I passed him.
[A photograph of J. Wilkes Booth was shown tho wit
ness.] That is the man that passed first He rode
a small-sized horse, rather an under-sized
horse, I should think, a very bright bay, with
a shining skin, and it looked as though he
had just had a short burst — a short push —
and seemed restive and uneasy, much more
so than the rider. In all, I had some three
or four minutes' conversation with him before
I allowed him to pass.
In perhaps flve or seven, or, at the outside,
ten minutes, another person came along. He

PURSUIT AND CAPTURE OF BOOTH AND HEROLD.

86

did no 1. seem to be riding so rapidly as the
flrst, or his horse did not shovir signs of it as
much as the flrst I asked who he was, and
he said that his name was Smith, and that he
was going home ; that he lived at the White
Plains. 1 asked him how it was that he was
out so late. He made use of a rather indeli
cate expression, and said that he had been in
bad company. I brought him up before the
guard-house door, so that the light shone full
ill his face and on his horse.
[The accused, David E. Herold, was directed to stand up
for identification.]
He is very near the size of the second
horseman ; but, I should think, taller, al
though I can not be sure, as he was on
horseback. He had a lighter complexion
than this man. After his explanation, I
allowed him to pass. He rode a medium-
sized, roan horse. I should think the horse
was going at a heavy racking pace, or some
thing like that The horse did not move
like a trotting horse. He carried his head
down. Afterward, a third horseman rode up, and
made inquiry after a roan horse ; after a man
passing on a roan horse. He made no in
quiry about the other horseman who had
passed flrst He did not seem to have any
business on the other side of the bridge that
I considered of sufficient importance to pass
him, and so I turned him back.
I do not think the moon was up at that
time, but rose after the horsemen had gone
forward.
Polk Gardiner.
For the Prosecution, — May 16.
On the night of the 14th of April last, I
was on the Bryantown road, coming to
Washington, and about 11 o'clock, when on
Good Hope Hill, I met two horsemen, one
about half a mile behind the other, and both
riding very fast The flrst, who was on a
dark horse, I think a bay, asked me if a
horseman had passed ahead; he then asked
me the road to Marlboro, and if it did not
turn to the right I told him no; to keep
the straight road.
As the second horseman rode u^, a lot of
teamsters were passing at the time, and I
heard him ask them whether a horseman
had passed ahead; I do not know whether
he asked them or me; I did not answer.
He rode a roan horse, a light horse, a roan or
an iron-gray. Cross-examined by Mr. Cox.
I met the flrst horseman two miles and a
half or three miles from the city, half-way
up the hill. It was not over flve or ten
minutes before the second horseman came
along. Both of them were riding very fast
I got off the hill entirely before I met the
second man.

John M. Lloyd.
For the Prosecution, — May 13.
I reside at Mrs. Surratt's tavern, Surratts
ville, and am engaged in hotel-keeping and
farming. Some five or six weeks before the
assassination of the President, John H. Sur
ratt, David E. Herold, and G. A. Atzerodt came
to my house, Atzerodt and Surratt drove
up to my house in the morning flrst, and
went toward T. B., a post-office about five
miles below there. They had not been gone
more than half an hour, when they returned ,
with Herold. All three, when they came
into the bar-room, drank, I think. John
Surratt then called me into the front parlor,
and on the sofa were two carbines, with
ammunition ; also a rope from sixteen to
twenty feet in length, and a monkey-wrench.
Surratt asked me to take care of these things,
and to conceal the carbines. I told him
there was no place to conceal tEem, and~I~
ardliorw'isB-fo''Ee5irmroh-tluH|ar-»e~0^
'£o6k~m^ein"tO""a room I"Bad heverTTeeiPtH,
iTnmediately above the store-room,_, in , the
back"3aFt o!nffie~t5uiTding, He shpwe.djn^
where I could put them underneath the joists
of the second floor of the main building,
I put them in there according to his direc
tions. I stated to Colonel Wells that Surratt put
them there, but I carried the arms up and
put them in there myself There was also
one cartridge-box of ammunition. Surratt
said he just wanted these articles to stay for
a few days, and he would call for them.
On the Tuesday before the assassination of
the President, I was coming to Washington,
and I met Mrs. Surratt, on the road, at Union-
town, When she first broached the subject
to me about the articles at my place, I did
not know what she had- reference to. Then
she came out plainer, and asked me about
the "shooting-irons." I had myself forgot^
ten about their being there. I told her they
were hid away far back, and that I was
afraid the house might be searched. She
told me to get them out ready ; that they
would be wanted soon. I do not recollect
distinctly, the_ fixgLjjiiestJtacSRErpiiOffrme.^
Her languagejvas indistinct as if she wanted
tF35£IjiiK-att&njaonto somethin&-so-4&at
no one ekewould^under8tajidi--_Finally she
'cainS''^t BolHer with it, and said they
would be wanted soon. I told her that I
had an idea of having them buried; that
I was very uneasy about having them
there. On the 14th of April. I went to Marlboro
to attend a trial there ; and in the evening,
when I got home, which I should judge was
about 5 o'clock, I found Mrs, Surratt there.
She met me out by the wood-pile as I drove
in with some fish and oysters in my buggy.
She told me to have those shpoting-irons
ready that night, there would be some parties.
who would call for them. She gave me

86

THE CONSPIRACY TRIAL.

something wrapped in a piece of paper,
which I took up stairs, and found to be a
field-glass. She told me to get two bottles
of wliisky ready, and that these things were
to be called for that night
Just about midnight on Friday, Her
old came into the house and said, "Lloyd,
for God's sake, make haste and get those
things," I did not make any reply, but
went straight and got the carbines, supposing
they were the parties Mrs, Surratt had re
ferred to, though she didn't mention any
names. From the way he spoke he must
have been apprised that I already knew what
I was to give him, Mrs Surratt told me to
give the carbines, whisky, and field-glass. I
did not give them the rope and monkey-
wrench. Booth did n't come in, I did not
know him ; he was a stranger to me. He re
mained on his horse. Herold came into the
house and got a bottle of whisky, and took
it out to him, and he drank while sitting
on his horse, Herold, I think, drank some
out of the glass before he went out
I do not think they remained over five
minutes. They only took one of the car
bines. Booth said he could not take his, be
cause his leg was broken.
Just as they were about leaviug, the man
who was with Herold said, " I will tell you
sonie news, if you want to hear it," or some
thing to that effect I said, " I am not par
ticular ; use your own pleasure about telling
it" "Well," said he, "I am pretty certain
that we have assassinated the President and
Secretary Seward," I think that was his
language, as well as I can recollect Whether
Herold was present at the time he said that,
or whether he was across the street, I am
not positive ; I was much excited and un
nerved at the time.
The moon was shining when the men
came. The man whose leg was broken was
on a light-colored horse; I supposed it to be
a gray horse; in the moonlight. It was a
large horse, I suppose some sixteen hands
high ; the other, ridden by Herold, was a bay,
and not so large.
Between 8 and 9 o'clock the next morning
the news was received of the assassination
of the President, and I think the name of
Booth was spoken of as the assassin,
I have heard Atzerodt called by the nick
name of "Port Tobacco," I used to call
him " Miserable,'' and then I called him, for
a long time, "Stranger," I do not think I
had been acquainted with him over two
months before the assassination,
[Two carbines, Spencer rifles, were exhibited to the wit
ness,] The carbines were brought in covers. The
cover that is on this one looks like the cover
in which it was brought to me, I took the
cover off one, and the peculiar kind of
breech attracted my attention, never having
seen one like it before. They look like the
carbines that were brought to my place.

Cross-examined by Mr. Aiken,
I rented Mrs, Surratt's house at Surratts
ville, about the first of December last, and
Mrs, Surratt frequently came there after
that When I met Mrs, Surratt on the
Tuesday preceding the assassination, I was
coming to Washington, and she was going
to my place, I supposed, I stopped, and so
did she. I then got out and went to hev
buggy. It had been raining, and was very
muddy. I do not know that the word "car
bine" was mentioned, / She spoke, about'
those shooting-irons. It was a very quiclc
and hasty conversation, I am confident that
she named the shooting-irons on both oc
casions; not so positive about the first as
I am about the last; I know she did on
the last occasion,) On the Friday I do not
think Mrs, Surratt was there over ten min-
liieaj When I flrst drove up to the wood-yard,
Mrs, Surratt came out to where I was. The
first thing she said to me was, "Talk about
the devil, and his imps will appear," or
something to that effect I said, "I was not
aware that I was a devil before," "Well,"
said she, "Mr, Lloyd, I want you to have
those shooting-irons ready; there will be
parties here to-night whQ will call for them,"
At the same time she gave me something
wrapped up in a newspaper, which I did not
undo until I got up stairs.
The conversation I had with Mrs, Sur-
rat about the shooting-irons was while I was
carrying the fish and oysters into. the hoiise,
Mrs. Surratt then requested me to fix her
buggy for her The front spring bolts were
broken; the spring had become detached
from the axle, I tied them with some cord;
that was the only fixing I could give them.
Mrs. Offutt, my sister-in-law, was, I believe,
in the yard ; hut whether she heard the con
versation or not, I do not know.
The first information that I gave of this
occurrence was to Lieutenant Lovett and
Captain Cottingham, some time about the
middle of the week ; but I did not detail all
the circumstances, I told these officers that
it was through the Surratts that I had got
myself into the difficulty. If they had never
brought me on there, I never would have got
myself into difficulty, or words to |,hat jffeet:
and I gave full infqrfliatioa.-Q£-tbe~p3rti5i-
1 af8~t"g~^ttinel W elision the Saturday week ,
ftrttowin-gr " ' '
When Booth and Herold left my house.
they took the road toward T, B, ' Herold
came up toward the stable between me and
the other man, who was on the light-colored
horse, and they rode off at a pretty rapiil
gait. When Herold brought back the bottle
from which Booth had drank the whisky, he
remarked to me, " I owe you a couple of
dollars;" and said he, "Here,'' With that
he offered me a note, which next morning I
found to be one dollar, which just about paid

PURSUIT AND CAPTURE OF BOOTH AND HEROLD.

8'7

for the bottle of liquor they had just pretty
nearly drank.
I think I told Mrs. Offutt, after Mrs. Sur
ratt went away, that it was a field-glass she
had brought. She did not tell me that Mrs.
Surratt gave her a package.
By Mr. Doster.
I did not know his name to be Atzerodt
until, I suppose, two or three weeks at the
farthest By Mr. Stone.
Booth did not take a carbine with him,
I only brought one carbine down; Booth
said he could not carry his ; I had the car
bine then in my bed-chamber. It was no
great while after Mrs, Surratt left, when, ac
cording to her orders, I got them from the
store-room and carried them to my bed-room
to have them ready, I braughUJie-ea-fhine
and gavp it tn Hprnid hpfni-e thpyagid they-
had killed the President; they""never^ld me
thajTuhtil they were about riding offlpTwas
right smart in liquer that after^mTanJ
''HeF-'''*ri^ -*- K°^ moijso. — f-wrnt-farhfirtbe-
tv^gen 8 and 9 o'clock, an3'.slept very souu'

untiT' 12 "o'eioelfetj^ woke up just as the
clock struck 12, *a. good many soldiers came
there on Saturday, and on Sunday night
others came and searched the place. fWhen
they asked if I had seen two men pass that
way in the morning, I told them I had notJ
That is the only thing I blame myself abotTir
If I had given the information they asked
of me, I should have been perfectly easy re
garding it This is the only thing I am
sorry I did not do, /
Recalled for the Prosecution, — May 15,
Cross-examined by Mr, Aiken.
When the party brought the carbines to
my house, Mr. Surratt assisted me in carry
ing them up stairs, together with the cart
ridge-boxes, and they were immediately con
cealed between the joists and ceiling of an
unfinished room, where they remained until
that Friday when Mrs. Surratt gave me in
formation that they would be wanted that
night I then took them out, according to
her direction, and put them in my bed-room,
so as to have them convenient for any par
ties that might call that night jl was out
by the wood-pile when Mrs, Surratt handed
the package to mej I prepared two bottles
of whisky, accor'ding to her directions.
LlETTTBNANT ALEXANDER LoVETT.
For the Prosecution. — May 16.
On the day after the assassination of the
President, I went with others in pursuit of
the murderers. We went by way of Surratts
ville to the house of Dr. Samuel A, Mudd,
which is about thirty miles from Washington,
and about one-quarter of a mile or so off the
road that runs from Bryantown, arriving there

on Tuesday, the 18th of April, Dr, Mudd,
whom I recognize among the accused, did
not at first seem inclined to give us any satis
faction; afterward he went on to slate that
on Saturday morning, at daybreak, two stran
gers had come to his place; one of them
rapped at the door, the other remained on
his horse, Mudd went down and opened the
door, and with the aid of the young man
who had knocked at the door helped the
other, who had his leg broken, off his horse,
took him into his house and set his log.
On asking him who the man with the
broken leg was, he said he did not know;
he was a stranger to him. The other, he
said, was a young man, about seventeen or
eighteen years of age. Mudd said that one
of them called for a razor, which he fur
nished, together with soap and water, and the
wounded man shaved off his moustache.
One of our men remarked that this was sus
picious, and Dr. Mudd said it did look sus
picious. I asked him if he had any other
¦beard. He said, " Yes, he had a long pair of
whiskers," He said the men remained there

but for a short time, and I understood him
that they left in the course of the morning.
He said that the wounded man went off on
crutches that he (Mudd) had had made for
him. He said the other led the horse of the
injured man, and he (Mudd) showed them
the way across the swamp. He told me that
he had heard, at church, on Sunday morn
ing, that the President had been assassinated,
but did not mention by whom. We were
at his house probably an hour, and to the
last he represented that those men were en
tire strangers to him.
It was generally understood at this time
that Booth was the man who assassinated
the President; even the darkeys knew it; and
I was told by them that Booth had been there,
and that he had his leg broken.
On Friday, the 21st of April, I went to Dr.
Mudd's again, for the purpose of arresting
him. When he found we were going to search
the house, he said something to his wife, and
she went up stairs and brought down a boot
Mudd said he had cut it off the man's leg,
in order to set the leg, I turned down the
top of the boot, and saw the name "J.
Wilkes" written in it
I called Mudd's attention to it, and he
said he had not taken notice of it before.
Some of the men said the name of Booth
was scratched out, but I said that the name
of Booth had never been written,
[A long riding boot, for the left foot, slit up in front for
about eight inches, was exhibited to the witness,]
That is the boot
[The boot was offered in evidence.]
At the second interview, he still insisted
that the men were strangers to him, I made
the remark to him that his wife said she
had seen the whiskers detached from his
face, and I suppose he was satisfied then, for
he subsequently said it was Booth. After tve

88

THE CONSPIRACY TRIAL.

left his house, one of the men showed him
Booth's photograph, and Mudd remarked
that it did not look like Booth, except a lit
tle across the eyes. Shortly after that, he
said he had an introduction to Booth in No
vember or December last, at church, from a
man named Johnson or Thompson, On be
ing questioned, he said he had been along
with Booth in the country, looking up some
land, and was with him when he bought a
horse of Esquire Gardiner, last fall.
Although I was iu citizen's clothes at the
time, and addressed no threats to him. Dr.
Mudd appeared to be much frightened and
anxious. When asked what arms the men
had, Dr, Mudd stated that the injured man
had a pair of revolvers, but he said nothing
about the other having a carbine, or either
of them having a knife; his manner was
very reserved and evasive.
Cross-examined by Mr, Ewing.
At the time that Dr. Mudd was describing
to me the " two strangers " that had been
to his house, I did not tell him of my track
ing Booth ft-om Washington ; I did not men
tion Booth's name at all ; it was not my busi
ness to tell him whom I was after.
On my second visit, Dr, Mudd was out,
and his wife sent after him; I walked down
and met him, I was accompanied by spe
cial officers Simon Gavacan, Joshua Lloyd,
and William Williams, After we entered the
house, I demanded the razor that the man
had used. It was not until after we had
been in the house some minutes, and one of
the men said we should have to search the
house, that Dr. Mudd told us the boot had
been found, and his wife brought it to us,
I asked him if that might not be a false
whisker; he said he did not know. I asked
this because Mrs. Mudd had said that the
whisker became detached when he got to the
foot of the stairs. The Doctor never told me
that he had Booth up stairs; he told me he
was on the sofa or lounge,
Mudd stated, at our first interview, that
the men remained but a short time; after
ward his wife told me that they had staid
till about 3 or 4 o'clock, on Saturday after
noon. I asked Mudd if the men had much
money about them. He said they had con
siderable greenbacks; and, in this connection,
although I did not ask him if he had been
paid for setting the man's'leg, he said it was
customary to make a charge to strangers in
such a case. When Dr. Mudd said he had
shown the men the way across the swamps,
I understood him to refer to the swamps a
thousand yards in the rear of his own house.
He told us that the men went to the Rev,
Dr, Wilmer's, or inquired for Parson Wil-
mer's; that he took them to the swamps; that
they were on their way to Allen's Fresh ;
but I paid no attention to this at the time,
as I considered it was a blind to throw us off
our track. We, however, afterward searched

Mr, Wilmer's, a thing I did not like to do,
as I knew the man by reputation, and was
satisfied it was unnecessary. We tracked
the men as far as we could. We went into
the swamp and scoured it all over; I went
through it half a dozen times; it was not a
very nice job though. I first heard from
Lieutenant Dana that two men had been at
Mudd's house. I afterward heard from Dr.
George Mudd that a party of two had been
at Dr. Samuel Mudd's.
Cross-examined by Mit. Stone.
When we first went to Dr. Samuel Mudd's
house, we were accompanied by Dr. George
Mudd, whom we had taken from Bryantown
along with us. Our first conversation was
with the Doctor's wife. When we asked Dr.
Mudd whether two strangers had been there,
he seemed very much excited, and got as
pale as a sheet of paper, and blue about the
lips, like a man that was frightened at some
thing he had done. Dr. George Mudd wa»
present when I asked if two strangers had
been there. He had spoken to Dr, Samuel
Mudd previous to that He admn-ted that
two strangers had been there, and gave a
description of them.
In my first interview with Mudd on the
Tuesday, I did not mention the name of Booth
at all; and it was not till I had arrested him,
when on horseback, that he told me he was
introduced to Booth last fall, by a man
named Johnson or Thompson.
Lieutenant David D. Dana.
For the Prosecution, — May 20.
On Saturday, the day after the assassina
tion of the President, I sent a guard of four
men ahead of me to Bryantown, and they
arrived about half an hour before me. I
arrived there about 1 o'clock. I commu
nicated the intelligence of the assassination,
and the name of the assassin, to the citizens;
it spread through the village in a quarter of
an hour. Some of the citizens asked me if
I knew for a certainty it was J. Wilkes
Booth, and I told them yes, as near as a
person could know any thing.
William Williams.
For the Prosecution. — May 17,
On Monday, the 17tli of April, in com
pany with some cavalry, I proceeded to Sur
rattsville. On the next day, Tuesday, I ar
rived at Dr. Mudd's. He was not at home,
and his wife sent for him. I asked if any
strangers had been that way, and he said
there had not Some of the officers then
talked with him. I think he stated that he
first heard of the assassination of the Presi
dent at church, on the Sunday morning. He
seemed to be uneasy, and unwilling to give
us any information without being asked di
rectly.

PURSUIT AND CAPTURE OF BOOTH AND HEROLD,

89

On Friday, the 2l8t, we went there again
for the purpose of arresting Dr. Mudd. He
was not at home, but his wife sent for him.
I asked him concerning the two men who
had been at his house, one of them having a
broken leg. He then said that they had
been there. I asked him if those men were
not Booth and Herold. He said they were
not He said he knew Booth, having been
introduced to him last fall by a man by the
name of Thompson, I believe.
After we had arrested him, and were on
our way to Bryantown, I showed him Booth's
picture, and asked him if that looked like
the man who had his leg broken. After
looking at the picture a little while, he said
it did not; he did not remember the features;
after awhile, however, he said it looked
something like Booth across the eyes.
At our second visit to Dr. Mndd's house,
I informed Mrs. Mudd that we had to search
the hoHise She then said 
Mr. Ewing. You need not state what Mrs,
Mudd said.
The Judge Advocate. Any thing that was
said in Dr, Mudd's presence is admissible.
The witness continued. This was said, I
believe, in Dr, Mudd's presence. She said
that the man with the broken leg had left
"his boot in the bed. She then went and
brought the boot down. It was a long rid
ing-boot, with "J. Wilkes" and the maker's
name, "Broadway, N. Y.," written inside.
The boot was cut some ten inches from the
instep, Dr, Mudd said that the men had arrived
before daybreak, and that they went away
on foot between 3 and 4 o'clock on the af
ternoon of Saturday, He had set the man's
leg, and had had crutches made for him by
one of his men.
Cross-examined by Mr, Stone.
Lieutenant Lovett was present at this con
versation. I believe it was on Friday that
Dr. Mudd said that the first knowledge he
had of the assassination was received at
church on the Sunday before. I asked him
the question on Friday, if " two strangers "
had been there. He said that there had
been. Two men had come there at day
break; one, a smooth-faced young man, ap
parently seventeen or eighteen years of age,
and that he had set the leg of one of them.
They had come to his door and knocked,
alid he had looked out of the window up
stairs, and asked them who they were. I
believe he said their reply was that they
were friends, and wanted to come in. Dr.
Mudd then came down stairs, and, with the
assistance of the young man, got the wounded
man off his horse into the parlor, and ex
amined his leg on the sofa. The wounded
man had a moustache, he said, and pretty
long chin-whiskers. I asked him if he
thought the whiskers were natural. He
said he could not tell. The injured man

had a shawl round his shoulders. Dr. Mudd
said that on leaving they asked him the
road to Parson Wilmer's, and that he had
shown them the way down to the swamp.
I did not pay much attention to their going
to Parson Wilmer's at first, because I
thought it was to throw us off the track;
but we followed the road as far as we
could, after which we divided ourselves, and
went all through the diff'erent swamp roads.*
The road is not much frequented. We found
horses' tracks, but not such as satisfied me
that they were the tracks of these men, and
we heard nothing of them on the road. We
got to the Rev. Mr. Wilmer's, I think, on
the Wednesday evening. We were acting
under the orders of Major O'Beirne, ana-
Lieutenant Lovett had charge of our squad.
Simon Gavacan.
For the Prosecution. — May 17.
I was at Dr. Mudd's house on the fore
noon of Tuesday, the 18th of April, in pur
suit of the murderers: of the President We
inquired if two men passed there on the
Saturday morning after the assassination,
and Dr. Mudd said no. Then we inquired
more particularly if two men had been there,
one having his leg fractured. He said yes..
In answer to our questions, he told us that
they had come about 4, or half-past 4, on
Saturday morning, and rapped at his door;
that he was a little alarmed at the noise, but
came down and let them in; that he and the
other person assisted the man with the
broken leg into the house, and that he at
tended to the fractured leg as well as he
could, though he had^ not much facilities for
doing so. I believe he said the wounded
person staid on the sofa for awhile, and after
that was taken up stairs, and remained
there until between 3 and 5 o'clock in the
afternoon of Saturday, He said that he
went out with the other man to find a buggy
to take away the wounded man, but could
not get one, I understood him to say that
on leaving his house they first inquired: the
road to Allen's Fresh, and also to the Rev.
Dr. Wilmer's, and that he took them part
of the way to show them the road. He told
us he did not know the persons at all.
On Friday, the 2l8t, we went to Dr.
Mudd's again, for the purpose of arrest
ing him and searching his house. He was
not in, but his wife sent for hira. When
he came, we told him that we would have
to search his house. His wife then went up
stairs and brought down a boot and a razor>
Inside the leg of the boot we found the
words, " J. Wilkes." We asked him if he
thought that was Booth, and he said he
thought not. He said' the man had whis
kers on, but that he thought he shaved off
his moustache up stairs. When we inquired
of him if he knew Booth, he said that he
was introduced to him last fall by a man

90

THE CONSPIRACY TRIAL,

named Thompson, but he thought the man
who had been there was not Booth.
Cross-examined by Mr. Ewing.
Our conversation with Dr, Mudd lasted
probably an hour. He was asked questions
by all of us. Lieutenant Lovett was there
all the time. When Mrs, Mudd brought
down the boot and razor, we thought we
had satisfactory evidence that Booth and
Herold had been there, and did not search
the house further, I believe there was a
photograph of Booth shown to Dr, Mudd
on Tuesday, and he said he did not rec
ognize it, but said there was something
about the forehead or the eyes that resem
bled one of the parties.
Joshua Lloyd.
For the Prosecution. — May 16.
I was engaged with others in the pursuit
of the murderers of the President in the di
rection of Surrattsville. We got to Dr
Mudd's on Tuesday, the 18th. I asked him
if he had not heard of the President being
assassinated; he said yes. I then asked him
if he had seen any of the parties — Booth,
Herold, or Surratt; he said he had never
seen them.
On Friday, the 21st, at the second inter
view, he said two men came there about 4
o'clock on the Saturday morning, and re
mained there until about 4 in the afternoon.
They came on horseback; one of them had
a broken leg, and when they left his house
one was riding and the other walking, lead
ing his horse.
As we were sitting in the parlor, Mrs, Mudd
seemed very much worried, so did the Doc
tor, and he seemed to be very much excited.
At this interview Lieutenant Lovett and Mr,
Williams did most of the talking ; I was not
well, Dr, Mudd said that he had been in
company with Booth ; that he had been in
troduced to him by a man named Thomp
son, I think he said, at church. He offered
no explanation of his previous denial When
the men left, he said they went up the hill
toward Parson Wilmer's, and I think he said
he showed them the road. I understood
him to say that the man's leg was broken
by the fall of the horse.
Cross-examined by Mr. Stone.
It was late on Tuesday evening when we
were there. Each time that we went to his
house Dr, Mudd was out, but not far away,
for he was not long in returning with the
messenger sent for him. At the first inter
view, I asked if any strangers had passed
that way, and then if Booth and Herold had
passed; I described them to him, and the
horses they rode, and he denied either that
any strangers or Booth and Herold had
passed. The interview only lasted a few
minutes.

Booth's portrait was shown to Dr. Mudd.
He told us that Booth had been down there
last fall, when he was introduced to him by
Mr. 'Thompson. I think he said Booth was
there to buy some property.
Before he came to the house, Mrs, Mudd
brought us the boot, and when the Doctor
saw that we had the boot, he admitted that
Booth had been there. Dr. Mudd then
brought the razor down himself, and, gave it
to Lieutenant Lovett
Willie S. Jett.
For the Prosecution. — May 17.
I was formerly a member of the Ninth
Virginia Cavalry, More recently, I was sta
tioned in Caroline County, Virginia, as com
missary agent of the Confederate States Gov
ernment I was on my way from Fauquier
County (where I had been with Mosby's
command) to Caroline County, Virginia, in
company with Lieutenant Ruggles and a
young man named Bainbridge, At Port
Conway, on the Rappahannock, I saw a
wagon down on the wharf, at the ferry, on
the Monday week after the assassination of
President Lincoln, A young man got out of
it, came toward us, and asked us what com
mand we belonged to. We were all dressed
in Confederate uniform. Lieutenant Ruggles
said, " We belong to Mosby's command."
He then said, " If I am not inquisitive, can
I ask where you are going?" I spoke, then,
and replied, " That's a secret, where we are
going," After this we went back on the
wharf, and a man with crutches got out of
the wagon. One of us asked him what com
mand he belonged to, and he replied, " To
A. P, Hill's corps," Herold told us their
name was Boyd ; that his brother was wounded
below Petersburg, and asked if we would
take him out of the lines. We did not tell
him where we were going, Herold asked us
to go and take a drink, but we declined. We
then rode up to the house there, and having
tied our horses, we all sat down. After we
had talked a very short time, Herold touched
me on the shouHer and said he wanted to
speak to me; he carried me down to the
wharf, and said, " I suppose you are raising
a command to go South ?" and added that
he v^uld like to go along with us. At
length I said, " I can not go with any man
that I don't know any thing about" He
seemed very much agitated, and then re
marked, " We are the assassinators of the
President" I was so much confounded that
I did not make any reply then that I remem
ber. Lieutenant Ruggles was very near,
watering his horse; I called to him, and he
came there, and either Herold or myself re
marked to Lieutenant Ruggles that they were
the assassinators of the President Booth
then came up, and Herold introduced himself
to us, and then introduced Booth, Herold
passed himself off to us first as Boyd, and

PURSUIT AND CAPTURE OF BOOTH AND HEROLD.

91

said he wanted to pass under that name.
He afterward told us their true names were
Herold and Booth, but they kept the name
of Boyd. Booth, I remember, had on his
hand "J. W. B," We went back then to
the house, and sat down there some time on
the steps. Then we went across the river.
Booth rode Ruggles's horse, Herold was
walking. When we got on the other side of
the river, before they got out of the boat, I
got on my horse and rode up to Port Royal,
went into a house, and saw a lady, I asked
her if she could take in a wounded Confed
erate soldier, just as he represented himself to
me, for two or three days. She at first con
sented; then afterward she said she could
not I walked across the street to Mr. Cat-
litt's, but he was not at home. We then
went on up to Mr. Garrett's, and there we left
Booth, Herold and all of us went on up the
r(jad, then, to within a few miles of Bowling
Green, Bainbridge and Herold went to Mrs,
Clark's, and Ruggles and myself to Bowling
Green, The next day Herold came to Bow
ling Green, spent the day, had dinner, and
left in the evening, and that was the last
I saw of him, except the night that they
were caught, when I went down there; I saw
him the next morning in the custody of the
officers. I recognize the prisoner Herold as
the man that I saw with Booth.
Cross-examined by Mr, Stone.
Herold said he wanted us to help in get
ting Booth further South, but we had no fa
cilities ; and he seemed a good deal disap
pointed after we made known our real object,
that we were going on a visit. Booth was
not present when Herold told me they were
the assassinators of the President; when he
came iip, he said he would not have told,
that he did not intend telling. Herold did
not appear very self-possessed; his voice
trembled very much, and he was a good deal
agitated. His language was, " We are the
assassinators of the President;" and then,
pointing back to where Booth was standing,
he said, " Yonder is J. Wilkes Booth, the
man who killed the President," or he may
have said " Lincoln." I have never taken
the oath of allegiance, but am perfectly will
ing to take it Everton J. Congee.
For the Prosecution, — May 17.
I assisted in the pursuit of the murderers
of the President
Judge Advocate. Will you please take up
the narrative of the pursuit at the point where
you met with Willie Jett, and state what oc
curred until the pursuit closed.
Witness, On the night of the capture, I
found Jett in bed in a hotel in Bowling Green.
I told him to get up; that I wanted him_. He
put on his pants, and came out to me in the
front part of the room. I said, " Where are

the two men who came with you across the
river?" He came up to me and said, "Can I
see you alone?" 1 replied, "Yes, sir, you
can." Lieutenant Baker and Lieutenant
Doherty were with me. I asked them to go
out of the room. After they were gone, he
reached out his hand to me and said, " I know
who you want, and I will tell you where they
can be found," Said I, " That 's what I want
to know," He said, " They are on the road
to Port Royal, about three miles this side of
that" " At whose house are they ?" I asked.
"Mr, Garrett's," he replied; "I will go there
with you and show you where they are now,
and you can get them." I said, "Have you a
horse ? " " Yes, sir." " Get it, and get ready
to go," I said to him, "You say they are on
the road to Port Royal ? " " Yes, sir." I said
to him, " I have just come from there.'' He
stopped a moment, and seemed to be consider
ably embarrassed. Said he, " I thought you
came from Richmond, If you have come that
way, you have come past them, I can not
tell you whether they are there now or not"
I said it did not make any difference; we
would go back and see. He dressed; had his
horse saddled ; we gathered the party around
the house together, and went back to Mr.
Garrett's house. Just before we got to the
house, Jett, .riding with me, said, "We are
very near now to where we go through ; let us
stop here and look around. ' He and I rode
on together, I rode forward to find the gate
that went through to_ the house, and sent
Lieutenant Baker to open another, I went
back for the cavalry, and we rode rapidly up
to the house and barn, and stationed the men
around the house and quarters.
I went to the house and found Lieutenant
Baker at the door, telling somebody to strike
a light and come out I think the door was
open when I got there. The first individual
we saw was an old man, whose name was said
to be Garrett I said to him, " Where are
the two men who stopped here at your
house?" "They have gone," "Gone where?"
" Gone to the woods, ' " Well, sir, where
abouts in the woods have they gone?" He
then commenced to tell me that they came
there without his consent; that he did not
want them to stay. I said to him, " I do not
want any long story out of you; I just want
to know where these men have gone," He
commenced over again to tell me, and I turned
to the door and said to one of the men,
" Bring in a lariat rope here, and I will put
that man up to the top of one of those locust
trees." He did not seem inclined to tell.
One of his sons then came in and said, " Do n't
hurt the old man; he is scared; I will tell
you where the men are you want to find,"
Said I, " That is what I want to know ; where
are they?" He said, "In the barn."
We then left the house immediately and
went to the barn, and stationed the remaining
part of the,nien. As soon as I got there, I
heard somebody walking around inside on the

92

THE CONSPIRACY TRIAL.

hay. By that time another Garrett had come
ftom somewhere; and Lieutenant Baker said
to one of them, " You must go in the barn
and get the arms from those men." I think
he made some objection to it ; I do not know
certainly. Baker said, " They know you, and
you can go in." Baker said to the men inside,
"We are going to send this man, on whose
premises you are, in to get your arms, and you
must come out and deliver yourselves up." I
do not think there was any thing more said.
Garrett went in, and he came out very soon
and said, " This man says ' Damn you, you
have betrayed me,' and threatened to shoot
me." I said to him, " How do you know he
was going to shoot you?" Said he, "He
reached down to the hay behind him to get
his revolver^ and I came out" I then directed
Lieutenant Baker to tell them that if they
would come out and deliver themselves up,
very well; if not, in flve minutes we would
set the barn on fire. Booth replied : " Who
are you; what do you want; whom do you
want?" Lieutenant Baker said, "We want
you, and we know who you are; give up your
arms and come out." I say Booth ; for I
E resumed it was he. He replied, " Let us
ave a little time to consider it" Lieuten
ant Baker said, " Very well ; " and some ten
or fifteen minutes probably intervened between
that time and any thing further being said.
He asked again, " Who are you, and what do
you want ? " I said to Lieutenant Baker, " Do
not by any remark made to him allow him to
know who we are; you need not tell him who
we are. If he thinks we are rebels, or thinks
we are his friends, we will take advantage of
it ; we will not lie to him about it, but we need
not answer any questions that have any refer
ence to that subject, but simply insist on his
coming out, if he will." The reply was made
to him, " It do n't make any difference who
we are ; we know who you are, and we want
you; we want to take you prisoners." Said
hCj "This is a hard case; it may be I am to
be taken by my friends." Some time in the
conversation he said, "Captain, I know you
to be a brave man, and I believe you to be
honorable; I am a cripple. I have got but
one leg; if you will withdraw your men in
' line ' one hundred yards from the door, I will
come out and fight you." Lieutenant Baker
replied that he did not come there to fight;
we simply came there to make him a prisoner ;
we did not want any fight with him. Once
more after this he said, "If you'll take your
men fifty yards from the door, I'll come out
and fight you ; give me a chance for my life."
The same reply was made to him. His answer
to that was, in a singular theatrical voice,
" WeU, my brave boys, prepare a stretcher for
me." Some time passed before any further con
versation was held with him. In the mean
time I requested one of the Garretts to pile
some brush up against tbe corner of the barn —
pine boughs. He put some up there, and after

awhile came to me and said, " This man in
side says that if I put any more brush in
there he will put a ball through me.'' " Very
well," said I, " you need not go there again. '
After awhile Booth said, "There's a man in
here wants to come out" Lieutenant Baker
said " Very well ; let him hand his arms out,
and come out" Some considerable talk
passed in the barn; some of it was heard,
some not One of the expressions made use
of by Booth to Herold, who was in the barn,
was, " You damned coward, will you leave
me now? Go, go; I would not have you
stay with me." Some conversation ensued be!-
tween them, which I supposed had reference
to the bringing out of the arms, which was
one of the conditions on which Herold was to
come out It was not heard ; we could simply
hear them talking. He came to the door an4
said, " Let me out" Lieutenant Baker said
to him, "Hand out your arma" The reply
was, "I have none," He said, "You carried
a carbine, and you must hand it out" Booth
replied, "The arms are mine, and I have got
them." Lieutenant Baker said, "This man
carried a carbine, and he must hand it out"
Booth said, " Upon the word and honor of a
gentleman, he has no arms; the arms are
mine, and I have got them." I stood by the
side of the Lieutenant and said to him,
"Never mind the arms; if we can get one of
the men out, let us do it, and wait no longer."
The door was opened, he stuck out his hands ;
Lieutenant Baker took hold of him, brought
him out, and passed him to the rear. I went
around to the corner of the barn, pulled some
hay out, twisted up a little of it, about six
inches long, set fire to it, and stuck it back
through on top of the hay. It was loose,
broken-up hay, that had been trpdden upon
the barn-floor. It was very light, and blazed
very rapidly — lit right up at once,
I put my eye up to the crack next to the
one the flre was put through, and looked in,
and I heard something drop on the floor,
which I supposed to be Booth's crutch. He
turned around toward pie. When I flrst got
a glimpse of him, he stood with his back
partly to me, turning toward the front door. He
came back within flve feet of the corner of
the barn. The only thing I noticed he had
iu his hands when he came was a carbine.
He came back, and looked along the cracks,
one after another, rapidly. He could not see
any thing. He looked at the flre, and from
the expression of his face, I am satisfied he
looked to see if he could put it out, and
was satisfied that he could not do it;. it was
burning so much. He dropped his arm, re
laxed his muscles, turned around, and start
ed for the door at the front of the barn. I
ran around to the other side, and when
about half round I heard the report of a
pistol. I went right to the door, and went
into the barn and found Lieutenant Baker
looking at Bo'.ith, holding him, or raising
him up, I do not know which. I said to

PURSUIT AND CAPTURE OF BOOTH AND HEROLD.

93

him, " He shot himself" Said he, " No, he
did not, either." Said I, "Whereabouts is he
shot — in the head or neck?" I raised him
then, and looked on the right side of the
neck, and saw a place where the blood was
running out I said, "Yes, sir; he shot
himself" Lieutenant Baker replied very earn
estly that he did not I then said, " Let us
carry him out of here ; this will soon be
burning." We took him up and carried him
out on the grass, underneath the locust-trees,
a little way from the door. I went back
into the barn immediately to see if the fire
could be put down, and tried somewhat my
self to put it out, but I could not ; it was
burning so fast, and there was no water and
nothing to help with. I then went back.
Before this, I supposed him to be dead. He
had all the appearance of a dead man ; but
when I got back to him, his eyes and mouth
were moving. I called immediately for some
water, and put it on his face, and he somewhat
revived, and attempted to speak. I put my
ear down close to his mouth, and he made
several efforts to speak, and finally I under
stood him to say, "Tell mother I die for my
country." I said to him, " Is that what you
say?" repeating it to him. He said, "Yes."
They carried him from there to the porch of
Mr, Garrett's house, and laid him on an old
straw bed, or tick, or something. By that time
he revived considerably; he could then talk in
a whisper, so as to be intelligibly understood ;
he could not speak above a whisper. He
wanted water; we gave it to him. He wanted
to be turned on his face, I said to him
" You can not lie on your face ; " and he want
ed to be turned on his side ; we turned him
upon his side three times, I think, but he
could not lie with any comfort, and wanted
to be turned immediately back. He asked
me to put my hand on his throat and press
down, which I did, and he said, " Harder,"
I pressed down as hard as I thought neces
sary, and he made very strong exertions to
cough, but was unable to do so — no muscu
lar exertion could he make, I supposed he
thought' something was in his throat, and I
said to him, "Open your mouth and put out
your tongue, and I will see if it bleeds,"
Which he did. I said to him, " There is no
blood in your throat ; it has not gone through
any part of it there." He repeated two or
three times, " Kill me, kill me." The reply
was made to him, " We do n't want to kill
you; we want you to get well." I then took
what things were in nis pockets, and tied
them up in a piece of paper. He was not
then quite dead. He would — once, perhaps,
in flve minutes — gasp; his heart would al
most die out, and then it would commence
again, and by a few rapid beats would make
a slight motion. I left the body and the
prisoner Herold in charge of Lieutenant
Baker. I told him to wait an hour if Booth
was not dead ; if he recovered, to wait there
and send over to Belle Plain for a surgeon

from one of the gun-ships; and, if he died
in the space of an hour, to get the best con
veyance he could, and bring him on, ,
I staid there some ten minutes after that
was said, when the doctor there said he was
dead [A knife, pair of pistols, belt, holster, file, pocket com
pass, spur, pipe, carbine, cartridges, and bills of exchange
were shown to the wituesa.]
That is the knife, belt, and holster taken
from Booth ; the pistols I did not examine
with any care, but they looked like these.
That is the pocket compass, with the candle
grease on it, just as we found it; the spur I
turned over to Mr. Stanton, and I judge this
to be the one taken from Booth. That is
the carbine we took; it is a Spencer rifle,
and has a mark on the breech by which I
know it Both the pistols and carbine were
loaded, I unloaded the carbine myself in
Mr, Secretary Stanton's office, and these are
the cartridges that I took out; there was one
in the barrel, and the chamber was full.
These are the bills of exchange; I put my
initials on them.
[All these articles were put in evidence; also the bill of
exchange in triplicate. The Urst of the set was read aa
follows :]
No, 1492. THE ONTARIO BANK,
[Stamp.] Montreal Branch.
EXCHANQB FOB £61 12«. lOd,
Moiitreal, 27 Oct'r, 1864
Sixty days after- sight of this' first of exchange, (second
and third of the same tenor and date unpaid, ) pay to the'
order of J. Wilkes Booth sixty-one pounds twelve shil
lings and ten pence sterling. Value received, and charge

order of J. Wilkes Booth sixty-one pounds twelve shil
lings and ten pence sterling, V j '
to acc't of this office.
To Messrs. Glynn Mills & Co., London,
[Signed) H. STANTJS, Masaoer.
The farm of Mr. Garrett, in whose barn
Booth was captured and killed, is in Caroline
County, Va,, about three miles from Port
Royal, on the road to Bowling Green,
I had seen John Wilkes Booth in Wash
ington, and recognized the man who was
killed as the same. I had before remarked
his resemblance to his brother, Edwin Booth,
whom I had often seen play.
I recognize among the accused, the man
Herold, whom we took prisoner on that oc
casion, in the barn. We found on Herold a
small piece of a school map of Virginia,
embracing the region known as the Northern
Neck, where they were captured.
Cross-examined by Mr. Stone.
We found no arms on Herold. He had
some conversation with Booth while in the
barn, in which Booth called him a coward;
and when the question of delivering up the
arms was raised. Booth said that the arms
were all his. When Booth said, "There is
a man in here who wants to get out," I
think he added, "who had nothing to do
with it"
I think we got to Garrett's barn about 2
o'clock in the morning, and it was about
flfteen minutes past 3 that Booth was shot
and carried out on the grass.

94

THE CONSPIRACY TRIAL.

Serg't Boston Corbett.
For the Prosecution. — May 17.
The Judge Advocate. Conger has just de
tailed to the Commission the circumstances
connected with the pursuit, capture and kill
ing of Booth, in which, I believe, you were
engaged, I will ask you to state what part
you took in the capture and killing of Booth,
taking up the narrative at the point when you
arrived at the house.
Sergeant Boston Corbett, When we rode
up to the house, my commanding officer. Lieu
tenant Doherty, told me that Booth was in
that house, saying, " I want you to deploy the
men right and left around the house, and see
that no one escapes," Which was done. After
making inquiries at the house, it was found
that Booth was in the barn, A guard was
then left upon the house, and the main por
tion of the men thrown around the barn,
closely investing it, with orders to allow no
one to escape, 'We had been previously
cautioned to see that our arms were in readi
ness for use. After being ordered to surren
der, and told that the barn would be fired in
five minutes if he did not do so. Booth made
many replies. He wanted to know who we
took him for ; he said that his leg was broken ;
and what did we want with him ; and he was
told that it made no difference. His name
was not mentioned in the whole affair. They
were told that they must surrender as prison
ers. Booth wanted to know where we would
take them, if they would give themselves up
as prisoners. He received no satisfaction,
but was told that he must surrender uncondi
tionally, or else the barn would be fired. The
parley lasted much longer than the time first
set; probably a full half hour; but he posi
tively declared that he would not surrender.
At one time he made the remark, " Well, my
brave boys, you can prepare a stretcher for
me;" and at another time, "Well, Captain,
make quick work of it; shoot me through
theheart," orwords to that effect; and thereby
I knew that he was perfectly desperate, and
did not expect that he would surrender.
After awhile we heard the whispering of
another person — although Booth had pre
viously declared that there was no one there
but himself — who proved to be the prisoner
Herold. Although we could not distinguish
the words, Herold seemed to be trying to per
suade Booth to surrender. After awhile, he
sang out, " Certainly," seeming to disdain to
do so himself Said he, " Cap, there is a
man in here who wants to surrender mighty
bad," Then I suppose words followed inside
that we could not here. Herold, perhaps,
thought he had better stand by him, or some
thing to that effect Then Booth said, " 0,
go out and save yourself, my boy, if you can ; "
and then he said, " I declare before my Maker
that this man here is innocent of any crime
whatever," seeming willing to take all the
blame on hinjself and trying to clear Herold.

He was told to hand out his arms. Herold
declared that he had no arms, and Booth de
clared that the arms all belonged to him, and
that the other man was unarmed. He was
finally taken out without his arms.
Immediately after Herold was taken out,
the detective, Mr, Conger, came round to the
side of the barn where I was, and passing me,
set fire to the hay through one of the cracks
of the boards a little to my right I had
previously said to Mr, Conger, though, and
also to my commanding officer, that the pos-
sition in which I stood left me in front of
a large crack — you might put your hand
through it — and I knew that Booth could
distinguish me and others through these
cracks in the barn, and could pick us off if
he chose to do so. In fact, he made a re
mark to that effect at one time. Said he,
" Cap, I could have picked off three or four
of your men already if I wished to do so.
Draw your men off fifty yards, and I will
come out," or such words. He used such
language many times. When the fire was
lit, which was almost immediately after,
Herold was taken out of the barn. As the
flame rose, he was seen. We could then dis
tinguish him about the middle of the barn,
turning toward the flre, either to put the flre
out or else to shoot the one who started it; I
did not know which ; but he was then coming
toward me, as it were, a little to my right — a
full front breast view, I could have shot him
then much easier than when I afterward did,
but as long as he was there, making no dem
onstration to hurt any one, I did not shoot
him, but kept my eye on him steadily.
Finding the flre gaining upon him, he
turned to the other side of the barn, and got
toward where the door was, and as he got
there I saw him make a movement toward
the door. I supposed he was going to fight
his way out. One of the men, who was watch
ing him, told me that he aimed the carbine at
me. He was taking aim with the carbine,
but at whom I could not say. My mind was
upon him attentively to see that he did no
harm, and when I became impressed that it
was time I shot him, I took steady aim on
my arm, and shot him through a large crack
in the barn. When he was brought out I
found that the wound was made in the neck,
a little back of the ear, and came out; a little
higher up on the other side of the head.
He lived, I should think, until about 7 o'clock
that morning ; perhaps two or three hours
after he was shot I did not myself hear
him speak a word after he was shot, except
a cry or shout as he fell. Others, who were
near him and watching him constantly, said
that he did utter the words which were pub
lished. I recognize the prisoner Herold among the
accused as the man we took out of the barn.
I had never seen Booth before, but from a re
mark made by my commanding officer, while
on the boat going down to Belle Plain, that

PURSUIT AND CAPTURE OP BOOTH AND HEROLD.

9a

Booth's leg was broken, I felt sure it was
Booth that I fired at ; for when the men in the
barn were summoned to surrender, the reply
of the one who spoke was that his leg was
broken, and that he was alone. I knew also,
from his desperate language, that he would
not be taken alive, and such remarks, that it
was Booth, for I believe no other man would
act in such a way.
Cross-examined by Mr. Stone.
From the conversation in the barn, I judge
that Herold was at first anxious to surrender,
and upon Booth's refusing to do so, I rather
thought he desired to stay with him ; but I can
not say whether it was before or after that
that Booth declared before his Maker that the
man with him was innocent of any crime
whatever, I wish to state here, as improper motives
have been imputed to me for the act I did,
that I twice offered to my commanding officer,
Lieutenant Doherty, and once to Mr, Conger,
to go into the barn and take the man, saying
that I was not afraid to go in and take him ;
it was less dangerous to go in and fight him
than to stand before a crack exposed to his
fire, where I could not see him, although he
could see me; but I was not sent in. Im
mediately when the fire was lit, our positions
were reversed ; I could see him, but he could
not see me. It was not through fear at all
that I shot him, but because it was my im
pression that it was time the man was shot;
for I thought he would do harm to our men
in trying to fight his way through that den, if
I did noi
Capt. Edward Doherty.
For the Prosecution, — May 22.
I had command of the detachment of the
Sixteenth New York Cavalry that captured
Booth and Herold.
Judge Advocate. The circumstances of the
capture having been fully detailed by other
witnesses, I will ask you to state the part you
took, if any, in the capture of the prisoner
Herold, and all he said on that occasion.
Witness. There had been considerable con
versation with reference to the arms that Booth
and Herold had inside of Garrett's barn.
We requested Booth and Herold to come
out of the barn. Booth at first denied that
there was anybody there but himself, but
finally he said, " Captain, there is a man here
who wishes to surrender awful bad," Mr,
Baker, one of the detectives who was there,
said, "Let him hand out his arms." I stood
by the door and said, " Hand out your arms
and you can come out" Herold replied, " I
have no arms." Mr. Baker said, " We know
exactly what you have got" I said, "We
had better let hira out ' Mr. Baker said,
"No, wait until Mr. Conger comes here." I
said "No; open that door," directing a man
to open the door; " I will take that man out

myself" The door was opened, and I directed
Herold to put out his hands; 1 took hold of
his wrists and pulled him out of the barn. I
then put my revolver under my arm and ran
my hands down him to see if he had any
arms, and he had none. I then said to him.
" Have you got any weapons at all about
you?" He said, "Nothing at all but this,"
pulling out of his pocket a piece of a map of
Virginia. Just at this time -the shot was
fired and the door thrown open, and I dragged
Herold into the barn with me. Booth had
fallen on his back. The soldiers and two de
tectives who were there went into the barn
and carried out Booth, I took charge of
Herold ; and when I got him outside he said,
" Let me go away ; let me go around here; I
will not leave; I will not go away," Said I,
" No, sir." Said he to me, " Who is that that
has been shot in there in the barn ? " " Why,"
said I, "you know well who it is." Said he,
"No, I do not; he told me his name was
Boyd," Said I, " It is Booth, and you know
it" Said he, "No, I did not know it; I did
not know that it was Booth,"
I then took him and tied him by the hands
to a tree opposite, about two yards from where
Booth's body was carried, on the verandah
of the house, and kept him there until we
were ready to return. Booth in the mean time
died, and I sewed him up in a blanket Previ
ous to this I had sent some cavalry for the
doctor; and we got a negro who lives about a
mile from there, with a wagon, and put the
body on board the wagon, and started for Belle
Plain, Herold told me afterward that he met
this man by accident about seven miles from
Washington, between 11 and 12 o'clock on the
night of the murder. He said that after they
met they went to Mathias Point, and crossed
the Potomac there. He did not mention the
houses at which they stopped, Dr, Stewart's
house was mentioned by some one as a place
at which they had stopped, but whether it was
by Herold or not I do not remember.
Cross-examined by Mr, Stone.
Booth said, while in the barn, that he was
the only guilty man, and that this man Herold
was innocent, or words to that effect Herold
made no resistance after he was captured,
Surgeon-General J, K. Barnes.
For the Prosecution, — May 20,
I examined the body of J. Wilkes Booth
after his death, when he was brought to this
city. He had a scar upon the large muscle
of the leftside of his neck, three inches below
the ear, occasioned by an operation performed
by Dr, May of this city for the removal of a
tumor some months previous to Booth's death.
It looked like the scar of a burn instead of
an incision, which Dr, May explained by the
fact that the wound was torn open on the stage
when nearly well.

96

THE CONSPIRACY TRIAL.

DEFENSE OF DAVID E. HEROLD.

Captain Eli D. Edmonds, U. S. N. — May 27.
By Mr. Stone.
I know David E, Herold, one of the pris
oners; I saw him at his home in Washing
ton on the 20th and 21st of February. I am
positive in my recollection of it
Francis S. WALSH.^itfay 30.
I reside in Washington, on Eighth Street,
east. I have known the prisoner, David E.
Herold, since he was a boy ; have known him
intimately since October, 1863. I am a
druggist, and employed Herold as a clerk
eleven months. During this time, he lived
in my house, and I knew of nothing, ob
jectionable in his character. He was light
and trifling in a great many things, more
like a boy than a man, but I never saw any
thing to flnd fault with in his moral char
acter. He was temperate in his habits, and
regular in his hours. He was easily per
suaded and led, more than is usually the
case with young men of his age ; I considered
him boyish in every respect I should sup
pose him to be about twenty-two years of age.
James Nokes, — May 30.
By Mr. Stone.
I have lived in Washington since 1827;
r>3side in that part called the Navy Yard. I
have known the prisoner, Herold, from his
birth — about twenty-three years, I believe.
With his family I have been intimate for
eighteen or nineteen years; there are seven
children living, I believe, and he is the only
boy. I have always looked upon him as a
light and trifling boy; that very little relia
bility was to be placed in him ; and I consider
him more easily influenced by those around
liim than the generality of young men of his
age. I have never heard him enter into any
argument on any subject in the world, like
other young men; all his conversation was
light and trifling.
William H. Keilotz. — May 30.
By Mr. Stone.
I have lived next door to Mr. Herold for
thirteen years, and know the prisoner, David

E. Herold, well. During last February, I
was home, my wife being sick, and I saw the
prisoner a good deal then ; I may have seen
him every day, except, perhaps, four or five.
I consider his character very boyish. I see
him often with boys; he is very fond of
their company, and never associates with
men. He is fond of sport, gunning, dogs, etc.
Emma Herold. — May 30.
By Mr. Stone.
I am sister of David E. Herold. I know
that my brother was home on the 15th of
February last; I remember it from my hav
ing sent him a valentine, which he received
on the 15th ; and my sisters talked with bim
about it. I also knew that he was at home
on the 19th of February; it was the Sunday
after Valentine's day. I remember taking a
pitcher of water up stairs, and my brother
met me in the passage and wanted it; but
I would not give it to him; he then tried to
take it from me, and we both got wet from
the water being spilled. He was also at
home between those days.
Mrs. Mary Jenkins. — May 30.
By Mr. Stone.
I know the prisoner, David E. Herold.
He was at my house on the 18th of February
last, and received my rent I have his re
ceipt of that date to show it
Mrs. Elizabeth Potts. — May 30.
By Mr. Stone.
I know the accused, David E. Herold. I
can not say whether he was in Washington
on the 20th of last February, but I know
he was there on the 19th, for he came to
my house for his money. As I was not
prepared, I told him I would send it to him
the next day, which I did, and I have his
receipt for the money, dated the 20th.
Dr. Charles W. Davis. — May 31.
By Mr, Stone.
I reside in Washington City, near the
Navy Yard. I was formerly in the Quarter
master's Department on General Wool's

TESTIMONY CONCERNINS ED-WARD SPANGLER.

97

staff. I have known the prisoner, Ilerold,
from early boyhood, having lived a great part
of the time next door. At present I live
four or five squares off, but I see him fre
quently. I do not know that I can describe
his character in better terms than to say that
he is a boy; he is trifling, and always has
been. There is very little of the man about
him. From what I know of him, I should
say he is very easily persuaded and led ; I
should think that nature had not endowed
him with as much intellect as the generality
of people possess, I should think his age is
about twenty-two or twenty-three, but I con
sider him far more of a boy than a man.

Dr. Samuel A Hv MoKim. — May 31.
By Mr. Stone.
I reside in Washington City, the eastern
part I am acquainted with the prisoner,
Herold; can scarcely say when I did not
know him; I have known him very well for
the last six years, I consider him a very
light, trivial, unreliable boy ; so much so
that I would never let him put up a prescrip
tion of mine if I could prevent it, feeling con
fldent he would tamper with it if he thought
he could play a joke on anybody. In
mind, I consider him about eleven years of
age.

TESTIMONY CONCERNING EDWARD SPANGLER.

Jacob Ritterspaugh.
For the Prosecution, — May 19.
I know the prisoner, Edward Spangler.
He boarded where I did, at Mrs, Scott's, on
the corner of Seventh and G Streets. He had
no room in the house; he took his meals
there, and slept at the theater. He used to
keep his Valise at the house, and when the
detectives came and asked if Spangler had
any thing there, I gave it to thera. He had
no clothes there, nothing but that valise; I
do not know what it contained. I am com
monly called Jake about the theater.
Recalled for the Prosecution. — May 30.
I was a carpenter in Ford's Theater down
to the 14th of April last, and was there on
that night when the President was shot He
occupied the upper box on the left-hand side
of the stage, the right as you come in from
the front My business was to shift wings
on the stage and pull them off, and fetch
things out of the cellar when needed.
I was standing on the stage behind the scenes
on the night of the 14th, when some one
called out that the President was shot, and
directly I saw a man that had no hat on run
ning toward the back door.
He had a knife in his hand, and I ran to
stop him, and ran through the last entrance,
and as I came up to him he tore the door
open. I made for him, and he struck at me
with the knife, and I jumped back then. He
then ran out and slammed the door shut I
then went to get the door open quick, and I
thought it was a kind of fast; I could not
get it open. In a moment afterward I opened
the door, and the man had just got on his
horse and was running down the alley ; and
then I came in. I came back on the stage
where I had left Edward Spangler, and he hit
7

me on the face with the back of his hand,
and he said, " Do n't say which way he went"
I asked him what he meant by slapping me
in the mouth, and he said, " For God's sake,
shut up; " and that was the last he said.
The man of whom I speak is Edward
Spangler, the prisoner at the bar. I did not
see any one else go out before the man with
the knife. A tall, stout man went out after
me. Cross-examined by Mr. Ewing.
When I heard the pistol flred I was stand
ing in the center of the stage, listening to the
play, and Spangler was at the same place,
just about ready to shove off the scenes ; I
stood nearest the door. I am certain we both
stood there when the pistol was flred. I did
not at flrst know what had happened. Some
one called out " Stop that man; " and then I
heard some one say that the President was
shot, and not till then did I know what had
occurred. When I came back, Spangler was
at the same place where I had left him.
There was a crowd in there by that time, both
actors and strangers. When Spangler slapped
me there were some of the actors near who
had taken part in the play ; one they called
Jenny — I do not know what part she took —
was standing perhaps three or four feet from
me; I do not know whether she heard what
he said ; he did not say it so very loud. He
spoke in his usual tone, but he looked as if
he was scared, and a kind of crying, I
heard the people halloo, " Burn the theater I "
"Hang him and shoot him!" I did not,
that I know of, tell a number of persons what
Spangler said when he slapped me, I did not
tell either of the Messrs, Ford; I told it to
nobody but Gifford, the boss. At Carroll
Prison, the same week that I was released,
I told him that Spangler said I should not

m

THE CONSPIRACY TRIAL.

say which way the man went I told a de
tective that Spangler hit me in the mouth
with his open hand. I do not know his name ;
he was one of Colonel Baker's men ; had black
whiskers and moustache, and weighed about
one hundred and forty pounds, I should think.
He came up to the house where I board in
the afternoon of the day on which I was re
leased, and I told him then, I have no recol
lection of telling any one else, though I might
have said something at the table, and the rest
might have heard,
I saw Booth open the back door of the
theater and shut it, but I did not know who
he was then ; I did not see his face right I
was the flrst person that got to the door after
he left; I opened the door, but did not shut
it The big man that ran out after me might
have been five or six yards from me when I
heard him, or it might have been somebody
else, call out, "Which way?" I cried out,
"This way," and then ran out, leaving the
door open. By that time the man had got
on his horse and gone off down the alley. I
saw the big man outside, and have not seen
him since. I did not take particular notice
of him ; but he was a tolerably tall man. It
might have been two or three minutes after I
went out till I came back to where Spangler
was standing, and found him kind of scared,
and as if he had been crying, I did not say
any thing to him before he said that to me.
It was Spangler's place, with another man, to
shove the scenes on; he was where he ought to
be to do the work he had to do, I did not
hear any one call Booth's name. It was not
till the people were all out, and I came out
side, that I heard some say it was Booth, and
some say it was not Spangler and I boarded
together; we went home to supper together,
on the evening of the assassination, at 6
o'clock, and returned at 7.
William Eaton.
Recalled for the Prosecution, — May 19.
I arrested tbe prisoner, Edward Spangler,
in a house on the South-east corner, I think,
of Seventh and H ; I believe it was his board

ing-house. It was the next week. after the
assassination. I did not search him ; my
orders were to arrest him.
Charles H, Rosch,
For the Prosecution. — May 19.
After the arrest of the prisoner, Edward
Spangler, I went, in company with two of
the Provost Marshal's detectives, to the
house on the north-east corner of Seventh
and H Streets, where he took his meals.
When we inquired for his trunk, we were
told that he kept it at the theater; but the
man at the house handed us a carpetbag,
in which we found a piece of rope measur
ing eighty-one feet, out of which the twist
was very carefully taken. The bag was
locked, but we found a key that unlocked it
It contained nothing but the rope, some
blank paper, and a dirty shirt-collar. I was
not present when Spangler was arrested. I
went to his house between 9 and 10 o'clock
on the night of Monday, April 17.
Cross-examined by Mr. Ewing.
It was a man called Jake, apparently a
German, that told me it was Spangler's bag,
and that it was all he had at the house. He
said he worked at the theater with Spangler
There were two other persons there, board
ers I presume. We got the rope from a
bed-room on the second floor that faced
toward the south; the bag was right near
where Jake had his trunk. I am satisfied
that the coil of rope I see here now is the
same that I took from Spangler's carpet-bag
See testimony of
Jos, Burroughs alias "Peanuts,'' page 74
Mary Ann Turner  " 75
Mary Jane Anderson  " 75
James L, Maddox  " 75
Joseph B. Stewart  " 79
Joe Simms  " 80
John Miles  " 81
John E. Buckingham  " 73

DEFENSE OF ED-WARD SPANGLER.

99

DEFENSE OF EDWARD SPANGLER.

C. D. Hess.
For the Defense, — May 31.
By Mr. Ewing.
1 am manager of Grover's Theater, and I
have been in the habit of seeing John Wilkes
Booth very frequently. On the day before
the assassination he came into the office
during the afternoon, interrupting me and
the prompter of the theater in reading a
manuscript He seated himself in a chair,
and entered into a conversation on the gen
eral illumination of the city that night He
asked me if I intended to illuminate, I said
yes, I should, to a certain extent; but that
the next night would be my great night of
the illumination, that being the celebration
of the fall of Sumter. He then asked, " Do
you intend to" or " Are you going to invite
the President?" My reply, 1 think, was,
" Yes ; that reminds me I must send that
invitation." I had it in my mind for several
days to invite the Presidential party that
night, the 14th. I sent my invitation to
Mrs. Lincoln. My notes were usually ad
dressed to her, as the best means of accom
plishing the object
Booth's manner, and his entering in the
way he did, struck me as rather peculiar.
He must have observed that we were busy,
and it was not usual for him to come into
the office and take a seat, unless he was
invited. He did upon this occasion, and
made such a point of it that we were both
considerably surprised. He pushed the mat
ter so far that I got up and put the manu
script away, and entered into conversation
with him.
It is customary in theaters to keep the
passage-way between the scenes and the
green-room and the dressing-rooms clear, but
much depends upon the space there is for
storing scenes and furniture.
[The counsel was eliciting from the witness the position
of the box usually occupied by the President on visiting
Grover's Theater, and the nature of the leap that an assas
sin would have to make in endeavoring to escape from the
box, when objection was made to the testimony as irrele
vant.] Mr. Ewing, I wish merely to show that,
from the construction of Ford's Theater, it
would be easier for the assassin to effect his
escape from Ford's Theater than it would be
from Grover's. The purpose is plainly to
show that Ford's Theater was selected by
Booth, and why Ford's Theater is spoken of
by him as the one where he intended to
capture or assassinate the President, and to
relieve the employees of Ford's Theater, Mr.
Spangler among them, from the imputation
which naturally arises from Booth's selecting

that theater as the one in which to commit
the crime.
The Commission sustained the objection.
H. Clay Ford.
For the Defense,— May 31.
By Mr, Ewing,
On the 14th of April last I was treasurer
of Ford's Theater. I returned to the theater
from my breakfast about half-past 11 o'clock
that day, when my brother, James R, Ford,
told me that the President had engaged a
box for that night John Wilkes Booth was
at the theater about half an hour afterward
I do not know that the fact of the Presi
dent's going to the theater that night was
communicated to Booth, but I think it is
very likely he found it out while there, I
saw hira going down the street while I was
standing in the door of the theater; as he
came up he commenced talking to the parties
standing around. Mr. Raybold then went
into the theater and brought him out a let
ter that was there for him. He sat down on
the steps and commenced reading it Tiiis
was about 12 o'clock. He staid there per
haps half an hour. I went into the oflice,
and when I came out again he was gone,
I told Mr, Raybold about fixing up and
decorating the box for the President that
night, but he had the neuralgia in his face,
and I fixed up the box in his place, I found
two flags in the box already there, which 1
got Mr, Raybold to help me put up. An
other flag I got from the Treasury Depart
ment, It was the Treasury regimental flag,
I put this blue regimental flag in the center,
and the two American flags above. There
was nothing unusual in the decorations of
the box, except the picture of Washington
placed on the pillar in the middle of the
box. This had never been used before. We
usually used small flags to decorate the box ;
but as General Grant was expected to come
with the President, we borrowed this flag
from .the Treasury regiment to decorate
with. The furniture placed in the box consisted
of one chair brought from the stage and a
sofa, a few chairs out of the reception-room,
and a rocking-chair, which belonged to the
same set, I had brought from my bed-room.
This chair had been in the reception-room,
but the ushers sitting in it had greased it
with their hair, and I had it removed to my
room, it being a very nice chair. The only
reason for putting that chair in the box was
that it belonged to the set, and I sent for j I
to make the box as neat as possible

100

THE CONSPIRACY TRIAL.

I received no suggestions from any one as
to the decoration of the box, excepting from
Mr, Raybold and the gentleman who brought
the flag from the Treasury Department
All that Spangler had to do with the box
was to take the partition out There are two
boxes divided by a partition, which, when
the President attended the theater, was al
ways removed to make the box into one.
Spangler and the other carpenter,-Jake, re
moved it The President had been to the
theater, I suppose, about six times during the
winter and spring; three or four times during
Mr. Forrest's engagements, and twice during
Mr, Clark's engagement These are the
only times I remember,
I did not direct Spangler with respect to
the removal of the partition ; I believe Mr,
Raybold sent for him. While we were in
the box Spangler was working on the stage ;
I think he had a pair of flats down on the
stage, flxing them in some way, I called for
a hammer and nails; he threw up two or
three nails, and handed me the hammer up
from the stage, '
Spangler, of course, knew that the Presi-
. dent was coming to the theater that evening,
as he assisted in taking out the partition.
In decorating the box I used my penknife
to cut the strings to tie up the flags, and left
it there in the box.
Three or four times during the season
Booth had engaged box No, 7, that is part
of the President's box, being the one nearest
the audience. He engaged no other bo.x.
During the play that evening, the "Ameri
can Cousin," I was in the ticket>office of the
theater, I may have been out on the pave
ment in front two or three times, but I do
HOt remember. I did not see Spangler there.''
I never saw Spangler wear a moustache.
Cross-examined by Assistant Judge Advocate
Bingham.
None of the other boxes were occupied on
the night of the President's assassination,
and I do not remember any box being taken
on that night I certainly did not know
that the boxes were applied for, for that even
ing, and that the applicants were refused and
told that the boxes were already taken. The
applicants did not apply to me. Booth did
not apply to me, or to any one, for those
boxes, to my knowledge, nor did any one else
for him. There were four of us in the office
who sold tickets. There were not, to my
knowledge, any applications for any box ex
cept the President's, There may have been
applications without my knowledge,
I know nothing of the mortise in the wall
behind the door of the President's box. I
heard of it afterward, but have never seen it,
nor did I see the bar said to have been used
to fasten the door, nor did I see the hole
bored through the flrst door of the Presi
dent's" box, though I have since heard there
was one. I have not been in the box since.

The screws of the keepers of the lock to
the President's box, I understand, were burst
some time ago. They were not, to my
knowledge, drawn that day, and left so that
the lock would not hold the door on its be
ing slightly pressed. It was not done in my
presence, and if il was done at all, it was
without my knowledge.
I do not remember any conversation with
Mr, Ferguson before the day of the assassin
ation about decorating the theater in celebra
tion of some victory. By Mr. Aiken.
The letter that Booth received on the day
of the assassination, and read on the steps
of the theater, was a long letter, of either
four or eight pages of letter-paper — whether
one or two sheets I do not know, but it was
all covered with writing. He sat on the
steps while reading his letter, every now and
then looking up and laughing. It was while
Booth was there that I suppose he learned
of the President's visit to the theater that
evening. There were several around Booth,
talking to him, Mr, Giftbrd was there; Mr.
Evans, an actor, and Mr, Grillet, I remem
ber, were there at the time.
The President's visit to the theater that
evening could not have been known until 12
o'clock, unless it was made known by some
one from the Executive Mansion, ' It was
published in the Evening Star, but not in
the morning papers,
I am not acquainted with John H, Surratt
[Photograph of John H. Surratt exhibited to the wit
ness,] I never saw that person that I know of
By Mr. Ewing.
I have never, to my knowledge, seen the
prisoner, Herold.
The mortise in the passage-way was not
noticed by me; the passage was dark, and
when the door was thrown back against the
wall, as it was that day, I should not be
likely to notice it had it been there at that
time. Had the small hole been bored in
the door, or had the screws been loosened, it
is not likely I should have noticed them.
By the Court.
I might have stated in the saloon on Tenth
Street that the President was to be at the
theater that evening, and also that General
Grant was to be there.
James R. Ford.
For the Defense, — May 30.
By Mr. Ewing.
At the time of the assassination, I was
business manager of Ford's Theater. I was
first apprised of the President's intended visit
to the theater on Friday morning, at half-
past 10 o clock. A young man, a messenger
from the White House, came and engaged

DEFENSE OP EDWARD SPANGLER.

,101

the box. The President had been previously
invited to the theater that night, and I had
no knowledge of his intention to visit the
theater until the reception of that message.
I saw John Wilkes Booth about halfpast
12, two hours after I received this informa
tion, I saw him as I was coming from the
Treasury Building, on the corner of Tenth
and E Streets. I was going up E Street,
toward Eleventh Street; he was coming
from the direction of the theater.
Q. State whether, upon any occasion, you
have had any conversation with Booth as to
the purchase of lands, and, if so, where?
Assistant Judge Advocate Bingham. I ob
ject to the question.
Mr, Ewing, Testimony has already been
admitted on that point
Assistant Judge Advocate Bingham. I
know, but it is unimportant as to this man;
there is no question about this man in the
case. Mr. Ewing, It is very important as to one
of the prisoners.
Assistant Judge Advocate Bingham. This
witness can not be evidence for any human
being on that subject, no matter what Booth
said to him about it I object to it on the
ground that it is entirely incompetent, and
has nothing in the world to do with the case.
If this witness had been involved in it, I ad
mit it might be asked, with a view to excul
pate him from any censure before the public,
Mr, Ewing, The Court will recollect that
in Mr. Weichman's testimony there was evi
dence introduced by the prosecution of an
alleged interview between Dr. Mudd and
Booth at the National Hotel, in the middle
of January, which was introduced as a circum
stance showing his connection with the con
spiracy, which Booth is supposed to have
then had on foot The accused. Dr. Mudd,
is represented to have stated that the con
versation related to the purchase of his lands
in Maryland. I wish to show y>y this wit
ness that Booth spoke to him frequently,
through the course of the winter, of his
speculations, of his former speculations in
oil lands, which are shown to have been
actual speculations of the year before, and
of his contemplating the investment of money
in cheap lands in Lower Maryland. The
effect of the testimony is to show that the
statement, which has been introduced against
the accused. Dr. Mudd, if it was made, was
a. bona fide stateraent, and related to an actual
pending offer, or talk about the sale of his
farm to Booth.
Assistant Judge Advocate Bingham. The
only way, if the Court please, in which they
can do any thing in regard to this matter of
the declaration of Mudd, if it was made,
(and, if it was not made, of course it does
not concern anybody,) is simply to show by
legitimate evidence that there was such a ne
gotiation going on between himself and Booth.
The point I make is, that it is not legitimate

evidence, or any evidence at all, to introduce
a conversation between Booth and this wit
ness at another time and place. It is no
evidence at all, it is not colorable evidence,
and the Court have nothing in the world to
do with it It would be impossible to ask
the witness any questions that would be more
irrelevant or incompetent than the question
that is now asked him.
Mr. Ewing. I will state to the Court
further that it has already received testimony,
as explanatory of the presence of Booth in
Charles County, of his avowed object in
going there — testimony to which the Judge
Advocate made no objection, and which he
must have then regarded as relevant This
testimony is clearly to that point of explana
tion of Booth's visit in Lower Maryland, as
well as an explanation of the alleged conver
sation with Mudd in January.
Assistant Judge Advocate Bingham, The
difference is this: the defense attempted to
prove negotiations in Charles County, and
we thought we would not object to that; but
this is another thing altogether. It is an
attempt to prove a talk, irrespective of time
or place, or any thing else.
The Commission sustained the objection.
By Mr. E-wing.
Q. Do you know any thing of the visit
made by Booth into Charles County last
fall? A He told me 
Assistant Judge Advocate Bingham objected
to the witness giving the declarations of
Booth. The Witness. I have never known Booth
to go there.
, Q. Have you ever heard Booth say what
the purpose of any visit which he may
have made last fall to Charles County
was? Assistant Judge Advocate Bingham renewed
his objection.
The Commission sustained the objection.
By Mr. Aiken.
The notice in the Evening Star that an
nounced the President's intended visit to the
theater, also said that General Grant would
be there.
By Assistant Judge Advocate Burnett
I wrote the notice for the Star in the
ticketroffice of the theater about half-past
11 or 12 o'clock, and sent it to the office
immediately ; I at the same time carried one
myself to the National Republican, The
notice appeared in the Star about 2 o'clock.
Before writing the notice I asked Mr. Phil
lips, an actor in our establishment, who was
on the stage, to do it; he said he would after
he had finished writing the regular adver
tisements. I also spoke to my younger
brother about the propriety of writing it I
had not seen Booth previous to writing the

102

THE CONSPIRACY TRIAL.

notice, nor do I remember speaking to any
one else about it
By Mr, Aiken,
I had sent the notice to the Star office
before seeing Booth,
fExhibiting the photograph of John H. Surratt,]
I do not know Surratt I never remember
seeing him,
John McCuUough, the actor, left this city
the fourth week in January, He returned
with Mr, Forrest at his last engagement I
do not know exactly when, but about the
1st of April,
John T. Ford.
For the Defense. — May 31,
1 reside in Baltimore, and am proprietor
of Ford's Theater in the city of Washing
ton, The prisoner, Edward Spangler, has
been in my employ three or four years at
intervals, and over two years continuously,
Spangler was employed as a stage hand,
frequently misrepresented as the stage-car
penter of the theater. He was a laborer to
assist in shoving the scenery in its place,
as the necessity of the play required. These
were his duties at night, and during the day
to assist in doing the rough carpenter work
incidental to plays to be produced,
Q, State whether or not his duties were
such as to require his presence upon the
stage during the whole of a play,
A, Strictly so ; his absence for a moment
might imperil the success of a play, and
cause dissatisfaction to the audience. It is
very important to the effect of a play that
the scenery should be well attended to- in all
its changes; and he is absolutely important
there every moment from the time the cur
tain rises until it falls. There are intervals,
it is true, but he can not judge how long or
how brief a scene may be.
On Friday, the day of the assassination, I
was in Richmond, Hearing of the partial
destruction of that city by fire, I went there,
anxious to ascertain the condition of an
uncle, a very aged man, and my mother-in-
law, 1 did not hear of the assassination
until Sunday night, and then I heard that
Edwin Booth was charged with it On Mon
day morning I started for Washington by
the 6 o'clock boat While on the boat I saw
the Richmond Whig, which confirmed the
report I had heard of the assassination on
Sunday night
During the performance of the " American
Cousin," Spangler's presence on the stage
would be necessary. The first scene of the
third act is qjiick, only of a few moments'
duration. The second scene is rather a long
one, longer perhaps than any other scene in
that act, probably eight, ten, or twelve minutes
long, Spangler's presence would be neces
sary unless positively informed of the dura
tion of the scene.

The second act depends very much upon
the action and the spirit of the actors en
gaged in it Sometimes it is much more
rapid than at others. In the second act I
hardly think there is an inteival of more
than five or eight minutes between the times
that Spangler would have to move the. scenes.
His constant presence upon the stage would
be absolutely necessary if he attended to his
duties. In the intervals between the scenes, he
should be preparing for the next change, to
be ready at his scene, and to remain on the
side where the stage-carpenter had assigned
him his post of duty ; besides, emergencies
often arise during an act that require extra
services of a stage hand.
J. B, Wright was the stage-manager,
James J. Gifford the stage-carpenter. 'The
stage-manager directs, the stage-carpenter
executes the work belonging to the entire
stage. The duty of keeping the passage-way
clear and in a proper condition belongs to
Gifford's subordinates, the stage hands who
were on the side where this passage is. It is
the duty of each and every one to keep the
passage-way clear, and is as indispensable as
keeping the front door clear. The action of
the play might be ruined by any obstruction
or hinderance there.
My positive orders are to keep it always
clear and in the best order. It is the pas
sage-way used by all the parties coming from
the dressing-rooms. Where a play was per
formed like the "American Cousin," the
ladies were in full dress, and it was abso
lutely necessary that' there should be- no
obstruction there, in order that the play
should be properly performed. Coming from
the dressing-rooms and the green-room of the
theater, every one had to use that passage.
The other side of the stage was not used
more than a third as much, probably. Most
of the entrances by the actors and actresses
are made on the prompt side; but many are
essential to be made on the O. P. side. By
entrances to the stage, I mean to the pres
ence of the audience. The stage-manager
was a very exacting man in all those details,
and I haye always found the passage clear,
unless there was some spectacular play, in
which he required the whole spread of the
stage. Then at times it would be partly in
cumbered, but not enough so to prevent the
people going around the stage, or going to
the cellar-way and underneath, and passing
to the other side by way of the cellar.
The " American Cousin " was a very plain
play ; no obstruction whatever could be ex
cused on account of that play; it was all
what we call flats, except one scene. The
flats are the large scenes that cross the
stage. The prompt side, the side on which the
prompter is located, is the position of the
stage-carpenter, and opposite to where
Spangler worked, which is on the 0, P. side,

DEFENSE OF EDWARD SPANGLER.

103

opposite the prompter's place. Keeping the
passage-way clear would not be a duty of
Spangler's, unless he was specially charged
with it,
Spangler, I know, considered Baltimore
his home. He buried his wife there about a
year ago, or less, while in my employ. He
usually spent his summer months there,
during the vacation of the theater, chiefly in
crab-flshing, I have understood he was a
great crab-flsher; we used to plague him
about it
[Exhibiting a coil of rope found at Spangler's boarding-
house, in his carpet-bag,]
That rope might be used as a crab-line,
though it is rather short for that purpose.
Professional crab-flshers use much longer
ropes than this, four hundred or flve hun
dred feet long, though I have seen ropes as
short as this, which I understand is eighty
feet, used by amateurs in that sport The
rope is supported by a buoy, and to it are
attached smaller ropes or lines.
Spangler seemed to have a great admira
tion for J. Wilkes Booth ; I have noticed
tliat in my business on the stage with the
stage-manager. Booth was a peculiarly fascinating man,
and controlled the lower class of people,
such as Spangler belonged to, more, I sup
pose, than ordinary men would, Spangler
was not in the employ of Booth, that 1 know,
and only since the assassination have I heard
that he was in the habit of waiting upon
him, I have never known Spangler to wear
a moustache. I have known John Wilkes Booth since
his childhood, and intimately for six or seven
years. Q. State whether you have ever heard
Booth speak of Samuel K, Chester, and, if
BO, in what connection and where.
Assistant Judge Advocate Bingham, I
object to any proof about what he said in
regard to Chester.
Q. [By Mr. Ewing.J State whether or
not Booth ever applied to you to employ
Chester, who has been a witness for the pros
ecution, in your theater.
Aasistaiit Judge Advocate Bikg-hail That
I object to. It is certainly not competent to
introduce declarations of Booth made to any
body in the absence of a witness that may
be called, relative to a transaction of his, to
affect him in any way at all. I object to it
as wholly incompetent
Mr, Ewing. It is not to attack Chester,
may it please the Court, that I make this
inquiry, but rather to corroborate him; to
show that Booth, while manipulating Ches
ter to induce him to .go into a conspiracy for
the capture of the President, was actually at
the same time endeavoring to induce Mr.
Ford to employ Chester, in order that he
might get him here to the theater and use
him as an instrument; and it goes to affect
the case of several prisoners at the bar — ^the

case of the prisoner, Arnold, who in his con
fession, as orally detailed here, stated that the
plan was to capture the President, and Ches
ter corroborates that; and also to assist the
case of the prisoner, Spangler, by showing that
Booth was not able to get, or did not get, in
the theater any instruments to assist him in
the purpose, and was endeavoring to get
them brought there — men that he had pre
viously manipulated. I think it is legiti
mate. Assistant Judge Ad vocate Bingham. Noth
ing can be clearer, if the Court please, than
that it is utterly incompetent It is not a
simple question of relevancy here; it is ab
solute incompetency. A party who conspires
to do a crime may approach the most up
right man in the world with whom he has
been, before the criminality was known to
the world, on terms of intimacy, and whose
position in the world, was su'fch that he might
be on terms of intimacy with reputable gen
tlemen. It is the misfortune of a man that
is approached in that way; it is not his
crime, and it is not colorably his crime
either. It does not follow now, because
Booth chose to approach this man Chester,
that Booth is therefore armed with the
power, living or dead, to come into a court
of justice and prove on his own motion, or
on the motion of anybody else, what he may
have said touching that man to third per
sons. The law is too jealous of the reputa
tion and character of men to permit any
such proceedings as that
The Commission sustained the objection.
Q, Do you think that the leap from the
President's box upon the stage would be at
all a difficult one for Booth ?
A. I should not think so; I have seen
him make a similar leap without any hesi
tation, and I am aware that he usually in
troduced such a leap into the play of " Mac
beth." Q, Do you think, then, from your know
ledge of the physical powers of Booth, that
that leap was one that he would not need to
rehearse ?
A. I should not think a rehearsal of it was
needed. He was a very bold, fearless man;
he always had the reputation of being of
that character. He excelled in all manly
sports. We never rehearse leaps in the thea
ter, even when they are necessary to the
action of the play ; they may be gone over
the flrst time a play is performed, but it is
not usual. Booth had a reputation for being
a great gymnast He introduced, in some
Shakspearian plays, some of the most extra
ordinary and outrageous leaps — at least they
were deemed so by the critics, and were con
demned by the press at the time,
I saw him on one occasion make one of
these extraordinary leaps, and the Baltimore
Sun condemned it in an editorial the next
day — styling him " the gymnastic actor."
It was in the play of " Macbeth," the en-

104

THE CONSPIRACY TRIAL.

trance to the witch scene; he jumped from
a high rock down on the stage, as high or
perhaps higher than the box; 1 think nearly
as high as from the top of the scene ; and he
made the leap with apparent ease.
Booth was in the habit of frequenting
Ford's Theater at Washington. I seldom
visited the theater but what I found him
about or near it, during the day, while I was
there. I usually came down to the theater
three days a week, devoting the other three
to my business in Baltimore, and being there
between the hours of 10 and 3. I would
nearly always meet Booth there when he
was in the city. He had his letters directed
to the theater, and that was the cause of
..his frequent visits there, as I thought then.
The last time I saw Booth was some two or
three weeks before the assassination.
The last appearance of John McCuUough
at my theater in Washington was on the 18th
of March, the night, I believe, when the
"Apostate " was played, Mr, McCuUough
always appears with Mr. Forrest, and he has
since appeared in New York,
Cross-examined by Assistant Judge Advocate
Bingham,
I can not state positively that the private
boxes are locked when not in actual use ;
that is our cusfom in Baltimore. Mr, Gif
ford, who had control of the whole theater,
is the responsible party whom I should
blame for any thing wrong about the bo.xes.
We keep the boxes locked, and the keys in
the box-office ; here, I understand, the custom
is for the ushers to keep the keys, James
O'Brien was the usher of the dress-circle,
and James R, Ford and Henry Clay Ford
were the parties authorized to sell tickets for
those boxes that day.
Q. Do you know as a fact that none of
the boxes were occupied that night, except
that occupied by the President?
A. I have only heard so.
Q, Is the play of the "American Cousin '
a popular one? Does it attract considerable
audiences ?
A. It was, when originally produced, an
exceedingly attractive play ; of late years it
has not been a strong card, but a fair at
traction. Q. Is it not a very unusual thing, when
such plays are produced, for your private
boxes to be entirely empty?
A. Washington is a very good place for
selling boxes usually. They are generally in
demand, and nearly always two or three
boxes are sold.
Q, Can you recall any occasion on which
a play, so popular and attractive as that was,
presented when none of your private boxes,
save the one occupied by the President, was
used? A, I remember occasions when we sold
no boxes at all, and had quite a full house —
a good audience; but those occasions were

rare. My reason for constructing so many
boxes to this theater was, that usually pri
vate boxes were in demand in Washington —
more so than in almost any other city. It
is not a favorable place to see a performance,
but it is a fashionable place here to which
to take company.
Recalled for the Defenscf—June 9.
By Mr. Ewing.
I have known Edward Spangler for nearly
four years'. He has been in my employ most
of that time. He was always regarded as a
very good-natured, kind, willing man. His
only fault was in occasionally drinking more
liquor than he should have done, not so as
to make him vicious, but more to unfit him
to work. Since he has been in my employ
I never knew him to be in but one quarrel,
and that was through drink. He was always
willing to do any thing, and was a very good,
efficient drudge. He was considered a very
harmless man by the company around the
theater, and was often the subject of sport
and fun. I do not think he was intrusted
with the confidence of others to any extent
He had not many associates. He had no
self-respect, and was a man that rarely slept
in a bed; he usually slept in the theater.
I never knew any thing of his political senti
ments in this city ; never heard from him an
expression of partisan or political feeling.
In Baltimore he was known to be a member
of the American Order.
By Mr. Clampitt.
I never met J. Z, Jenkins except in Carroll
Prison. Joseph S, Sesspord.
For the Defense, — June, 3.
I was seller of tickets at Ford's Theater.
My business commenced about half-past 6 in
the evening.
None of the private boxes, except that
occupied by the party of the President, were
applied for on the evening of the assassina
tion, nor had any been sold during the day
that I know of
William Withers, Jr.
Recalled for the Defense, — May 31.
By Mr. Ewing.
The door leading into the alley from the
passage was shut when Booth rushed out
After he made the spring from the box, and
ran across the stage, he made a cut at me,
and knocked me down to the first entrance ;
then I got ei side view of him. The door was
shut, but it opened very easily; I saw that
distinctly. He made a plunge right at the
knob of the door, and out he went, and pulled
the door after him. He swung it as he went
out I did not see Booth during the day.

DEFENSE OF EDWARD SPANGLER.

105

Henry M. James.
For the Defense. — May 31.
By Mr. Ewing.
I was at Ford's Theater on the night of
the assassination. When the shot was fired,
I was standing ready to draw off the fiat,
and Mr. Spanglej was standing right opposite
to me on the stage, on the same side as
the President's box, about ten feet from me.
From his position he could not see the box,
nor the side of the stage on which Booth
jumped. I had frequently during the play
seen Spangler at his post I saw no one
with him. The passage-way was clear at
the time; it was our business to keep it clear;
it was more Spangler's business than mine.
I saw Spangler when the President entered
the theater. When the people applauded on
the President's entry, he applauded with
them, with both hands and feet He clapped
his hands and stamped his feet, and seemed
as pleased as anybody to see the President
come in.
I did not see Jacob Ritterspaugh near
Spangler that evening. He might have been
there behind the scenes, but I did not see
him. I can not say how long I staid in
my position after the shot was fired; it might
have been a minuta I did not see Spangler
at all after that happened.
By Assistant Judge Advocate Bingham.
Jacob Ritterspaugh was employed there,
and it was his business to be there behind
the scenes, though I did not see him.
J. L. Debonay.
For the Defense, — May 31.
By Mr. EwiNp.
I was playing what is called " responsible
utility" at Ford's Theater at the time of
the assassination. On the evening of the
assassination. Booth came up to the alley
door and said to me, " Tell Spangler to
come to the door and hold my horse." I did
not see his horse. I went over to where
Mr. Spangler was, on the left-hand side, at
his post, and said, " Mr. Booth wants you to
hold his horse." He then went to the door
and went outside, and was there about a
minute, when Mr. Booth came in. Booth
asked me if he could get across the stage. I
told him no, the dairy scene was on, and he
would have to go under the stage and come
up on the other side. About the time that
he got upon the other side, Spangler called
to me, "'Tell Peanut John to come here and
hold this horse; I have not time. Mr.
Gifford is out in the front of the theater, and
all the responsibility of the scene lies upon
me." I went on the other side and called
John, and John went there and held the
horse, when Spangler came in and returned
to his post

I saw Spangler three or four times that even
ing on the stage in his proper position. I saw
him about two minutes before the shot was
fired. He was on the same side I was on —
the same side as the President's box. About
five minutes after the shot was fired I again
saw Spangler standing on the stage, with a
crowd of people who had collected there.
I saw Booth when he made his exit I
was standing in the first entrance on the
left-hand side. When he came to the center
of the stage, I saw that he had a long knife
in his hand. It seemed to me to be a double-
edged knife, and looked like a new one. He
paused about a second, I should think, and
then went off at the first entrance to the
right-hand side. I think he had time to get
out of the back door before any person was
on the stage. It was, perhaps, two or three
seconds after he made his exit before I saw
any person on the stage in pursuit. The
first person I noticed was a tall, stout gentle
man, with gray clothes on, I think, and I
believe a moustache. Booth did not seem
to run very fast across the stage ; he seemed
to be stooping a little when he ran off.
The distance he ran would be about thirty-
five or forty feet; but he was off the stage
two or three seconds before this gentleman
was on, and of the two, I think Booth was
running the fastest. By Mr. Aiken.
I was at the theater at 12 o'clock that
day. I did not see Booth there.
Recalled for the Prosecution, — June 13.
When the shot was fired on the night of
the assassination, I was standing on the left-
hand side of the first entrance, the side the
President's box was on. About a minute and
a half or two minutes after Mr. Stewart left
the stage, or about time to allow of his getting
to the back door, I saw Spangler shove the
scene back to give the whole stage to the
people who came on. I do not know who
assisted him. Spangler then came to the
front of the stage with the rest of the people.
There was then a cry for water. I started
to the green-room, and he oame the same
way. About a half dozen of us went to get
some water to carry it to the private box.
When Booth wanted Spangler to hold his
horse, and I went over to tell him, Spangler
and Sleichman were standing close to each
other on the opposite side of the stage, the
side of the President's box. Spangler then
left; I saw him go out to Booth, and in about
a minute or a minute and a half Booth came
in, I heard no conversation between Spangler
and Booth. Booth met Spangler at the door,
and was standing at the door on the outside;
the door was about half open when Spangler
went out If any person had followed Span
gler I should have seen him. I was half-way
between the back door and the green-room,

106

THE CONSPIRACY TRIAL.

about eighteen or twenty feet distant, I sup
pose. Booth, when he came in, went under
the stage to the opposite side, and went out
of the side door; I went under the stage and
crossed with him. I did not see him speak
to any one. I was in front of the theater
about five minutes before the assassination;
I did not see Spangler there.
I have known Spangler for about six
months, I have never seen him wear a mous
tache. He is a man that has been a little
dissipated a considerable portion of his time —
fond of spreeing round. He is free in con
versation, especially when in liquor.
Cross-examined by the Judge Advocate.
When Booth passed under the stage, he
went through the little side passage, level with
the lower floor of the theater, that leads out
into Tenth Street; that side passage also
leads up to Mr, Ford's room. I went out
through that passage to the front of the
theater, and returned by the same way, and
had taken my place on the stage when the
pistol was flred. I was not doing any thing,
but was leaning up against the corner of the
scene at the time. We were waiting for the
curtain to drop, Mr, Harry Hawk was on
the stage at the moment, playing in a scene.
By Mr. Ewing.
I played in the piece, taking the part of
John Wigger, the gardener.
William R. Smith.
For the Defense. — June 2.
By Mr. Ewing.
I am Superintendent of the Botanical Gar
den, Washington, I was in Ford's Theater
at the time of the assassination, I saw J,
Wilkes Booth pass off the stage, and Mr,
Stewart get on it Mr, Stewart was among
the first to get on ; but my impression is that
Booth was off the stage before Mr. Stewart
got on it I did not notice him after he got
on the stage. J. P. Ferguson.
Recalled for the Defense. — May 31.
I saw the gentleman who first got upon the
stage after Booth got off. He was a large
man, dressed in light clothes, with a mous
tache. This gentleman was the first that got
upon the stage, and I suppose it was probably
two or three minutes — about that long — after
Booth went off the stage that this man went
out of the entrance. I saw no one else run
out of the entrance except Hawk, the young
man who was on the stage at the time Booth
jumped from the box. If any one had run
out of the entrance following Booth, I should
probably have seen him, because I thought
it was very singular that those who were near
the stage did not try to get on it

Cross-examined by Assistant Judge Advocath
Bingham.
I sat in the dress-circle on the north side,
the same side as the entrance through which
Booth passed. From the place where I sat I
could not distinctly see the mouth of the
entrance. James Lamb.
For the Defense. — June 2.
By Me. Ewing.
For over a year I have been employed at
Ford's Theater as artist and scene-painter.
[The rope found in Spangler's bag exhibited to the wit
ness,] I have seen ropes like this at the theater.
There are probably forty or fifty of such ropes
in use there. They are called border-ropes,
and are about seventy or eighty feet in length,
used for suspending the borders that hang
across the stage. The borders are long strips
of canvas, painted to represent some exteriors,
others interiors, and as they are required to
be changed for the scene that is on, they are
raised or lowered by means of such ropes as
these. This rope has the appearance of
having been chafed; a new rope would be a
little stiffer in its texture than this, I should
say this is a new rope, but has been in use,
though I can not detect any thing that would
lead me to say il has been in use as a border-
rope; if it had Jeen, there would have been
a knot fasteninj; at the end, or have the ap
pearance of having been tied.
Cross-examined by Assistant Judge Advooatb
Bingham,
I think it is a rope very similar to the
ones used at the theater, but I should be very
sorry to swear that it was one of them. I
should say the material was manilla.
I know John Wilkes Booth by sight I
never spoke a word to him in my life. I did
not hear him say any thing in March or
April last about the President I never was
in his company. By Mr. Ewing.
From an examination of the rope, I have
no reason to believe that it was not used as
a border-rope. 1 was in the theater the
whole of Saturday, the day after the Presi
dent was assassinated, from 10 o'clock until
the military guard took possession, and I saw
Spangler there several times during the day.
By Assistant Judge Advocate Bingham.
I saw him on the stage. Maddox, Jake,
Mr. Gifford, and Mr. Wright, the stage-man
ager, were in and out occasionally. Carland
was also there with Spangler, Maddox, and
myself, in the forenoon, loitering and-^alk-
ing about, sometimes sitting down ; there
was no companionship particularly. I have
not seen Spangler since until this morning.

DEFENSE OF EDWARD SPANGLER.

107

Jacob Ritterspaugh.
Recalled for the Defense, — June 2.
By Mr. Ewing.
When I was in the theater with Mr.
Lamb, the next day after the assassination,
I told him about Spangler slapping me and
saying, "Shut up; don't say which way he
went;" and on tbe night of the assassina
tion, when Carland came up to Mr, Gifford's
room, he woke me up and asked where Ned
was, I told him I did not know, and then
I told him that Ned had slapped me in the
mouth, and said, "Don't say which way he
went" As I was on the stage with Spangler on
the day of the assassination, we saw a man
in the dress-circle smoking a cigar. I asked
Spangler who it was, but he did not know ;
and I said we ought to tell him to go out;
but Spangler said he had no charge on that
side of the theater, and had no right to do
so. I took no more notice of him, and went
to my work again. After awhile I saw him
sitting in the lower private box, on the right-
hand side of the stage. He was looking at
us. I told Ned, and he spoke to him, and
then the man went out That was about 6
o'clock on the evening of the day on which
the President was assassinated. That was
about 6 o'clock in the evening.
Cross-examined by Assistant Judge Advocate
Bingham.
I never saw the man before. He wore a
moustache. I saw him first in the dress-
circle, then in the lower private box on the
right-hand side of the stage, the left-hand
when you come in from the front of the
theater. James Lamb.
Recalled for the Defense, — June 2.
I saw Ritterspaugh on the stage on Satur
day, the day following the President's assas
sination. Ritterspaugh was grumbling, and
saying that it was well for Ned that he
had n't something in his hand at the time.
I asked him why. He replied, " He struck
me last night a very hard blow, and he said
at the same time, 'Shut up; you know
nothing about it' " This was said in con
nection with Ritterspaugh having said it was
Booth that ran across the stage. Ritter
spaugh said he called out, "I know him; I
know who it was; it was Booth," or some
thing of that kind, and then Ned struck him
and said " Hush up ; be quiet What do
you know about it?" That was while Mr
Booth, or whoever it was, was leaving the
stage. It was when he was making his es
cape that this man Jake said he was rushing
up and made this exclamation, " That was
Booth ; I know him ; I know him ; I will
swear that was Booth ; " when Ned turned
round and struck him in the face with his

hatid. Ritterspaugh said, "It is well for
him I had not something in my hand to
return the blow." Then he represented
Spangler as saying, when he slapped him,
" Hush up ; hush up ; you know nothing
about it -VVhat do you know about it? Keep
quiet; " hushing him up.
Ritterspaugh did not say to me that when
Spangler hit him on the face he said, " Do n't
say which way he went" I am certain Rit
terspaugh did not say that to me, or words to
that effect
Cross-examined by Assistant Judge Advocate
Bingham.
Q. Can you tell just exactly the words he
did say, that you have sworn to already ?
A. Yes, sir.
Q. State them.
A. " Shut up; what do you know about it?
Hold your tongue."
Q. That is what Jake said ?
A. That is what Spangler said to Jake.
Q. Are you now reporting what Jake said,
or reporting what Spangler said ?
A, I am reporting what Spangler said and
what Jake said,
Q, We are not asking you for what Span
gler said ; we are asking you what Jake said.
State, if you please, what Jake said on that
occasion, and exactly what you have sworn
he said, and all he said,
A, I will, as near as I can recollect As he
told me, he said, " I followed out the party,
was close at his heels, or near to him, and I
said that is Booth, I know him ; I know
him ; " or words to that efl'ect, as near as can
be, Q, Jake said he followed out the party,
close to his heels ?
A, Near to him.
Q, And that he knew who that was ?
A. He did not say that he followed the
party. Q, I am asking you what he said. Did
you not swear just now that he said he fol
lowed the party close to his heels ?
A, He was near to hira.
Q, Did you or did you not swear that he
said he followed the party close to his heels?
A, You know whether I swore it or not
Q, I ask you whether you did swear to it
or not?
A, I say he did.
Q, Very well, then, stick to it Then
Jake said he followed the party close to his
heels ?
A, Yes, sir.
Q, And he knew who he was ?
A, Yes, sir,
Q, What more did Jake say? Did he
say he came back after following him close
to his heels ?
A, No ; he received a blow from Spangler,
and that shut him up,
Q, Do you swear now that Spangler fot
lowed the man close to his heels ?

108

THE CONSPIRACY TRIAL.

A. No, sir.
Q. Then how did they fix it ?
A. Spangler was standing in the way.
Q. "While Jake was following the man
close to his heels ?
A. No, not at all.
Q. How was that?
A. Spangler, I suppose —
Q. You need not state what you suppose.
State what Jake said. That is the only
question before the Court
A. That is what I have stated.
Louis J. Carland.
For the Defense, — June 12.
By Mr. Ewing.
I am acquainted with Jacob Ritterspaugh,
On the night of the assassination I went to
Mr. Gifford's room, and Ritterspaugh was
there asleep, I woke him up, and asked him
where Spangler was. He seemed frightened,
and thought I was Mr, Booth.
I asked him where Mr. Spangler was. He
told me he did not know where he was now ;
the last he had seen of Mr. Spangler was
when he was standing behind the scenes, and
that he did not know where he had gone;
that when the man was running past he had
said that was Mr. Booth, and Spangler had
slapped him in the mouth and said to him,
" You do n't know who it is ; it may be Mr.
Booth, or it may be somebody else."
He did not say then that Spangler slapped
him on the face with the back of his hand
and said, "Don't say which way. he went,"
nor any thing to that effect
I did not see Spangler until the next day;
then I saw him in the theater, on the stage.
When he went up stairs to bed on the Sat
urday night after the assassination, he said
there was some talk that the people were
going to burn the theater, and as he slept
very heavily, he was afraid to sleep up there ;
so I took him into my room, and he was
there all night He was put under arrest
that night in my room. At halfpast 9
o'clock ou Sunday morning the guard came
and relieved him, and when I was discharged
we both went into the street I went to
church, and in the afternoon saw Spangler
again in the street near the theater. We
walked round together that afternoon, and
in the evening went down to Mr. Bennett's,
and to Mr. Gurley's on C street Some one
came there and told him he was going to be
arrested, and I advised him at once to go
and see the detectives, and not have them
come after him when he was asleep and take
him out of his bed. I went to Mr. Barry,
one of the detectives, and asked him if there
was any such report at the police head-quar
ters, and he said no. I know that Spangler
had very little money those two days, for he
wanted to see Mr. Gifford to get some.
Booth frequented the theater very famil

iarly before the assassination. He was there
a great deal, and was very intimate with all
the employees, and called them by name. He
was a gentleman who would soon get ac
quainted, and get familiar with people on a
very short acquaintance.
[Bxhihiting to witness the rope found in Spangler's bag.)
We use just such ropes as that in the thea
ter to pull up the borders and scenes, and for
bringing up lumber to the top dressing-rooms,
because the stairs are too narrow. About
two weeks before the assassination, we used
such a rope as that to haul up some shelv
ing for my wardrobe, through the window, to
the fourth story ; Spangler and Ritterspaugh
brought it up. I do not know that the rope
we used was an extra one; there were a great
many ropes around the theater. I am not
qualified to judge about how much the rope
has been used ; this one does not look like an
entirely new rope; it is not such as I would
buy for a new one; it looks as if it had been
exposed out of doors, or in the rain.
Cross-examined by Assistant Judge Advocate
Bingham.
Spangler used to sleep in the theater before
the assassination, and he slept there on that
night, but not in the room he usually slept
in. On that night he slept in the carpenter's
shop attached to the theater. I do not know
where he slept on Sunday night
It was about 12 o'clock on Friday night
when I woke Ritterspaugh up; there was no
one with me, but a policeman stood in the
passage-way. Mr. Gifford's bed is in the
manager's office, on the first floor of the
green-room ; that is where I found Ritter
spaugh. He was frightened when I woke
him up, and thought it was Booth. He did
not say any thing to me about Booth draw
ing a knife on him. When I asked, " Where
is Ned ? " he said he did not know where he
was ; that he supposed he was up, I made
no reply, and he went on and said that when
Booth ran out through the passage-way, while
he and Ned were standing behind the scenes.
he made the remark, " That is Mr. Booth,'
and Ned slepped him in the mouth and said,
" You do n't know whether it is Mr. Booth,
or who it is." That is all that I remember
he said.
I never told it to any one but Mr. William
Withers, jr. I dined with him on the Sun
day after the assassination, and told him
then. By Me. Ewing.
The carpenter-shop is attached to the theater
just the same as my wardrobe is. It is not
in the theater building, but it is included in
the theater. You do not have to go into the
street to get to it You leave the theater,
and there is a passage-way to go up, the same
as we have to go to the green-room and the
dressing-rooms. Ritterspaugh had fully waked up when he

DEFENSE OF EDWARD SPANGLER.

109

t/jld me that; he stood up and recognized me.
He knew who it was before he began to
speak. The theater was guarded on Sunday night,
but any of the employees who slept there
could get in. Mr. Spangler had a pass from
the captain or officer of the guard to go in
and out when he liked, and on Saturday I
had a pass for that purpose.
James J. Gifford.
Recalled for the Defense, — May 30.
By Mr. Ewing.
On Monday evening of the week previous
to the assassination, I heard Booth tell Span
gler to take his horse and buggy down to
Tattersall's, the horse-market, and sell it I
presume Spangler sold it He brought the
man up with him, and asked me to count
the money and give him a receipt I took
the money and handed it over to Booth,
Q, State whether or not, since the assas
sination, and previous to his release from Car
roll Prison, Ritterspaugh told you at the
prison that the prisoner, Edward Spangler,
directly after the assassination of the Presi
dent in the theater, hit him in the face with
the back of his hand and said, " Do n't say
which way he went"
A, To the best of my knowledge, I never
heard him say so. He asked me if he could
amend the statement that he had made. He
said he had not told all he knew, and he
asked me if he could amend it I told him
certainly, but he ought to be particular and
state the truth of what he knew. That is all
the conversation we ever had regarding it
He told me he had made a misstatement, and
had not told all he knew. He did not say
what he had omitted; if he had, I should
surely have remembered it, for I have had
nothing but this case to think about since I
have been in the Old Capitol Prison.
If any thing was wrong about the locks on
the private boxes at the theater, it was the
duty of the usher to inform me, and for me
to have them repaired. No repairing was
done to any door leading to the President's
box since August or September of last year.
I have frequently heard of Spangler goings
crab-fishing, but 1 never saw him. He has
told me of going down to the Neck on the
Saturday night, and staying till Monday
morning; and I have heard othprs say that
they had gone crabbing with hira.
[Exhibiting to the witness the rope found in Spangler's
bag,] They use a line of that sort, with small
lines tied to it, about three feet apart, and
pieces of meat attached as bait The line is
trailed along, and as the crabs seize the bait
they are dragged along and taken. I have
seen ropes similar to this used, and sometimes
a little longer. As there is but little strain
upon the rope, it is not particular about the
size.

By Mr. Aiken.
I saw J. Wilkes Booth, about half-past 11
or 12 o'clock on the 14th, pass the stage en
trance and go to the front door. He bowed
to me, but we had no conversation.
Cross-examined by Assistant Judge Advooatb
Bingham.
It is fully three weeks ago that Ritter
spaugh said he was scared, and that he could
not tell what he was doing; but I do not re
member his precise words. He seemed to be
troubled about it, and asked me if he could
not make a correct statement, and I told him
certainly he could.
Thomas J. Raybold.
For the Defense, — June 2.
By Mr, Ewing,
I have been engaged at Ford's Theater
since the first Monday of December a year
ago, I was employed to take charge of the
house; to see to the purchasing of every
thing required in the house, and if any re
pairs were needed, they were done through
my order. In the absence of the Messrs,
Ford, I was in the box-office and sold the
tickets, I know of the lock on the door of box 8,
the President's box, as it is called, being
burst open during Mrs, Bowers's engagement
in March. On the 7th of March Mr. Mer
rick, of the National Hotel, asked me, while
at dinner, to reserve some seats in the orches
tra for some company, which I did. It is
customary, after the first act is over, for
reserved seats, which have not been occu
pied, to be taken by any person wanting
seats. Mr. Merrick did not come by the
end of the first act, and the seats were oc
cupied. Shortly afterward word was sent to
me in the front office, saying that Mr. Mer
rick and his friends were there, and inquiring
for the seats. I took them up stairs to a
private box. No. 6, but it was locked, and I
could not get in ; I went then to boxes 7 and
8, generally termed the President's box, and
they were also locked. I could not find the
keys, and I supposed the usher had them;
but he had left the theater, as he frequently
does, when the first act is over ; so I put my
shoulder against the door of No. 8, the box
nearest the stage, to force it open, but it did
not give way to that, and I stood from it
with my back and put my foot against it
close to the lock, and with two or three
kicks it came open. There is another lock
in the house to which I did the same thing
when I could not find the key. When the
President came to the theater, boxes 7 and
8 were thrown into one by the removal of
the partition between them. The door to
No. 8 — the one I burst open — was the one
always used, and was the door used on the

110

THB CONSPIRACY TRIAL.

night of the assassination. The other door
could not be used.
I do not know whether the lock was ever
repaired after I burst it open. It was my
place to report it to Mr Gifford and have it
repaired, but I never thought of it from that
time. I frequently entered the box afterward,
and always passed in without a key. I
never said a word to Mr, Gifford about re
pairing the lock, and never thought even of
examining it to see what condition it was
in. The locks were only used to keep per
sons out when the boxes were not engaged,
I have frequently had to order persons out
when the boxes were left open.
About two weeks prior to the 14th of
April, J, Wilkes Booth engaged a private
box, No, 4, at Ford's Theater, and in the
afternoon he came again to the office and
asked for an exchange of the box, and I
believe it was made to box 7, I can not be
positive whether it was box 7 or 8, that he
occupied that night, but I think it was 7,
It is the door leading into box 7 that has
the hole bored in it
To the best of my knowledge, there were
no tickets sold up to the time of the open
ing of the theater on the night of the assas
sination; I can not say positively, for I had
been sick with neuralgia for several days,
and was not in the office the whole of the
lay, I was there in the morning, between
10 and 11, when the messenger obtained
tickets for the President, and again in the
afternoon, but do not know of any applica
tions, and if there had been, I should have
seen when I counted the house at night,
which I did on the night of the assassina
tion, at 10 o'clock, as usual.
I saw Booth on the morning of the 14th
at the office; I do not know whether before
or after the box was engaged for the Presi
dent I know he got a letter from the office
that morning. Booth's letters were directed
to Mr, Ford's box at the post-office, and he
generally came every morning for them,
Mr Ford would get the letters as he came
from breakfast in the morning, and bring
them to the office, when the letters that
belonged to the stage would be sent there,
and those belonging to Booth would be called
for by hira.
The rocking-chair was placed in the posi
tion it occupied in the President's box simply
because, in any other position, the rockers
would have been in the way. When the
partition was taken down, it left a triangular
corner, and the rockers went into that cor
ner at the left of the balustrade of the box;
they were there out of the way. That was
the only reason why I put it there. I had
it so placed on two occasions before; last
winter a year ago, when Mr, Hackett was
playing, when tbe President was there. The
sofa and other parts of the furniture had
been used this last season, but up to that
night the chair had not

[Exhibiting to the witness the coil of rope fonnd In
Spangler's carpet-bag.]"
I can not swear that this rope has been
used at the theater, but we used such ropes
as this at the time of the Treasury Guard's
ball, from the lobby to the wings, to hang
the colors of different nations on. It is like
the kind of rope we use in the flies for
drawing up the different borders that go
across from one wing to the other. From its
appearance, I judge this rope has been used.
It would be lighter in color if it had not
been. Cross-examined by Assistant Judge Advocate
Bingham.
Any rope that was used about the theater,
I should judge, ought to stay there; I do
not think its proper place would be in a
carpet-sack half a mile off. We use a great
many such ropes ; and sometimes, when they
are taken down, they lie upon the scene-loft
until we need them again.
The outer door, or door of the passage to
the President's box, never had a lock on; I
do not think it has even a latch on. I do not
know whether the force I employed against
the door burst the lock or the keeper off; I
supposed at the time that it started the keeper.
The fastening on the door is of pine I be
lieve; I do not know whether it was split or
not; I did not examine it I did not touch
box 7.
The last time I was in the President's box
was on the morning after the assassination ;
I went in with some gentlemen to look at
the hole in the door, I did not see the
mortise in the wall, nor any piece of wood
to fasten the door with, nor did I see the
mortise the previous afternoon, I was there
but for about five minutes, while the flags
were being put up. The chair was in the
box when I went in to help put up the flags;
it was placed behind the door of box No, 7,
with the rockers in the corner toward the
audience. I did not see him in the box, but
my opinion is that the way the chair was
placed, the audience was rather behind the
President as he sat in the chair.
I can not say the precise day on which
Booth occupied box No, 7. Mr. Ford was the
one who sold him the box and exchanged it
There were ladies and men with Booth, I
think. By Mr. Ewing
I can not state whether it was after Booth
played Pescara that he occupied that box. To
the best of my recollection, it was about two
weeks before the assassination ; it might have
been more. He had the box on two oc
casions. Once when he engaged it, he did
not use it; he told me that the ladies at the
National Hotel had disappointed him.
I do not know any thing at all as to
whether Spangler got that rope from ths
theater rightfully or not

DEFENSE OF EDWARD SPANGLER.

Ill

Recalled for the Defense. — June 2.
By Mr. Ewing.
Since I was upon the stand, I have visited
Ford's Theater, and examined the keepers of
the locks of boxes Nos, 7 and 8, The lock
of box 8 is in the condition that I stated this
morning. It has been forced, and the wood
has been split by forcing the lock. The
screw in the keeper is tight, and the keeper
has been forced aside. The lock on the
door of box 7 has been forced, which I was
not aware of until I saw it just now. You
can take the upper screw out with your
flnger, and push it in and out; you can put
your thumb against it, and put it in to the
full extent of the screw. I can not say as
to its having been done with an instrument
It must have been done .by force; I know
that No. 8 wa^ done by force applied to the
outside of the door; the other has a similar
appearance. Cross-examined by Assistant Judge Advocate
Bingham.
The wood in box 7 is not split a particle.
The reason why I think force has been used
with that lock is, that if the screw was
drawn by a screw-driver, when it went back
again it would have to be put back by the
driver, but when force has been used, it
would make the hole larger, and you could
put the screw in and out just as you can the
screw in the door of box 7.
By Mr. Aiken.
I do not know John H. Surratt I do not
know any of the prisoners except Spangler,
He is the only one I ever saw with the ex
ception of one, [Herold,] whom I knew when
he was quite a boy.
Henry E. Merrick.
For the Defense, — June 2.
By Mr. Ewing,
I am a clerk at the National Hotel, Wash
ington, On the evening of the 7th of March,
in company with my wife, Mr, Marcus P,
Norton of Troy, N. Y,, Miss Engels, and
Mrs, Bunker, I went to Ford's Theater, Mr,
Raybold took us to a private box. We
passed down the dress-circle on the right-
hand side, and entered the flrst box; there
was a partition up at the time between the
two boxes, Mr, Raybold went to the office
for the key, but could not flnd it He then
placed his shoulder, I think, against the door
and burst it open. The keeper was burst
off I think; at least the screw that held
the upper part of the keeper came out, and
it whirled around, and hung by the lower
screw. Our books show that John, McCuUough,
the actor, left the National Hotel on the 26th
of March ; since then I have not seen him.

I have never known him to stop at any
other hotel than the National.
Cross-examined by Assistant Judge Advocate
Bingham,
Mr. McCuUough may have called on some
friend in the house, and I not see him, I
have not seen him since the 25tli of March,
It was the very flrst box that we went into
on visiting the theater ou the 7th of March ;
the partition was between the box we occu
pied and the one to our right, further on
toward the stage. The box nearest the stage
we did not enter at all. It was the very first
box we came to that we entered, and it
was the door of this box that was burst open.
The upper screw came out entirely, and the
keeper swung round on the lower screw, and
left the lock without any fastening at all,
James O'Brien.
For the Defense. — June 3.
I have been employed as clerk in the Quar
ter-master General's office, I also had an
engagement at night as usher at Ford's
Theater. Some time before the assassination I noticed
that the keeper of box 8 had been wrenched
off, I was absent one evening, at home sick,
and when I came next I found that the keeper
was broken off'; but, as the door shut pretty
tight, I never thought of speaking about it
You might lock the door, but if you were to
shove it, it would come open.
The keeper on box No. 7 appeared to be
all right ; I always locked that box. The
door of No, 8 was used when the Presidential
party occupied the box; when the party oc
cupying the Presidential box entered, the door
was always left open. The door of the pas
sage leading to the two boxes had no lock on
it, or fastening of any kind.
Joseph T. K. Plant.
For the Defense. — June 2.
By Mr, Ewing.
My occupation at present is that of a dealer
in furniture ; ever since I was fourteen years
old I have been, more or less, engaged in
cabinet work. I have visited Ford's Theater
to-day, and have examined the keepers on
boxes No, 7 and No. 8, To all appearances
they have both been forced. The wood-work
in box 8 is shivered and splintered by the
screws. In box 7, 1 could pull the screw with
my thumb and finger; the tap was gone clear
to the point, I could force it back with my
thi^mb. In box 4, which is directly under box
8, the keeper is gone entirely.
I should judge that the keepers in boxes 7
and 8 were made loose by force ; I could not
see any evidence of an instrument having
been used to draw the screws in either of
them.

112

THE CONSPIRACY TRIAL.

I noticed a hole in the wall of the passage
behind the boxes ; it had the appearance of
having been covered with something; I could
not see what, as no remnant of it was left, in
size about flve by seven and a half or eight
inches. I noticed also a hole, a little more
than one-fourth of an inch in diameter, in
the door of box 7. It is larger on the outside
than it is on the inside. The left side of the
hole feels rough, as if cut by a gimlet, while
the lower part on the right-hand side appears
to have been trimmed with a penknife or
some sharp instrument The hole might, I
think, have been made by a penknife, and
the roughness might have been caused by the
back of the knife.
G. W. Bunker.
For the Defense, — June 2.
I am clerk at the National Hotel. The
day after the assassination I packed Booth's
effects at the National, and had his trunk re
moved into our baggage-room. In his trunk
I found a gimlet with an iron handle.* I
carried it to my room, and afterward gave it
to Mr. Hall, who was attending to Mr. Ford's
business. John McCuUough, who always made his
home at the National, I flnd registered his
name the last time on March 11; he left on
the 26th of March.

• The gimlet would bore a hole three-sixteenths of an
inch in diameter.

Charles A. Boigi.
For the Defense, — June 2.
By Mr, Ewing.
I know the accused, Edward Spangler; he
boarded at the house where I boarded. He
boarded there five or six months, I presume,
before the assassination, and I saw him at
and about the house as usual for several days
afterward. They had him once or twice in
the station-house, I believe, before he was
finally arrested; I do not recollect the date
of his final arrest John Goenther.
For the Defense, — June 2.
By Me. Ewing.
I boarded in the same house with the ac
cused, Edward Spangler, previous to his ar
rest He boarded there on and off for six or
seven months, perhaps longer. I have lived
there off and on for the last three years. To my
certain knowledge, I saw Spangler about the
house for two or three days before the assassin
ation; I never saw him wear a moustache.
Cross-examined by Assistant Judge Advocate
Bingham.
I am not certain what days it was that I
saw Spangler at the house. He did not sleep
there. I used to see him in the morning, and
of evenings when I came from work. I work
in the arsenal, and generally take my dinner
with me.

TESTIMONY

relating to

MRS. MARY E. SURRATT.

[See testimony of John M. Lloyd, page 85.]
Louis J. Weichmann
For the Prosecution. — May 13.
I have been clerk in the office of General
Hoffman, Commissary-General of prisoners,
since January 9, 1864.
My acquaintance with John H. Surratt
commenced in the fall of 1859, at St Charles
College, Maryland. We left college together
in the summer of 1862, and I renewed my
acquaintance with him in January, 1863, in
this city. On the 1st of November, 1864, I
went to board at the house of his mother,
Mrs. Surratt, the prisoner. No. 541 H Street,
between Sixth and Seventh, and boarded
there up to the time of the assassination.
On the 2d of April, Mrs. Surratt asked me
to see J. Wilkes Booth, and say that she
wished to see him on " private business,"
I conveyed the message, and Booth said he
would come to the house in the evening, as
soon as he could; and he came.
On the Tuesday previoai to the Friday
of the assassination, I was sent by Mrs,
Surratt to the National Hotel to see Booth,
for the purpose of getting his buggy. She
wished me to drive her into the country on
that day. Booth said that he had sold his
buggy, but that he would give me $10 in
stead, that I might hire one. He gave me
the $10, and I drove Mrs. Surratt to Surratts
ville on that day, leaving this city about 9
and reaching Surrattsville about half-past 12
o'clock. We remained at Surrattsville half
an hour, or probably not so long. Mrs. Sur
ratt stated that she went there for the pur-
-pose of seeing Mr. Nothe, who owed her some
¦^money. On Friday, the day of the assassination, I
went to Howard's stable, about half-past 2
o'clock, having been sent there by Mrs. Sur
ratt for the purpose of hiring a buggy. She
herself gave me the money on that occasion,
a ten-dollar note, and I paid $6 for the
buggy. I drove her to Surrattsville the same
day, arriving there about half-past 4. We
8

stopped at the house of Mr. Lloyd, who
keeps a tavern there. Mrs. Surratt went into
the parlor. I remained outside a portion
of the time, and went into the bar-room a
part of the time, until Mrs. Surratt sent for
me. We left about half-past 6. Surratts
ville is about a two-hours' drive to the city,
and is about ten miles from the Navy Yard
bridge. Just before leaving the city, as I was going
to the door, I saw Mr. Booth in the parlor,
and Mrs. Surratt was speaking with him.
They were alone. He did not remain in the
parlor more than three or four minutes ; and
immediately after he left, Mrs. Surratt and I
started. I saw the prisoner, Atzerodt, at Howard's
stable, when I went to hire the buggy that
afternoon, I asked him what he wanted,
and he said he was going to hire a horse,
but Brook Stabler told him he could not
have one.
I remember going with John H. Surratt
to the Herndon House, about the 19th of
March, for the purpose of renting a room.
He inquired for Mrs. Mary Murray, who
kept the house; and when she came, Sur
ratt said that he wished to have a private
interview with her. She did not seem to
comprehend; when he said, "Perhaps Miss
Anna Ward has spoken to you about this
room. Did she not speak to you about en
gaging a room for a delicate gentleman, who
was to have his meals sent up to his room ? "
Then Mrs, Murray recollected, and Mr, Sur
ratt said he would like to have the; room
the following Monday, I think, the 27t,h of
March, when the gentleman would take pos
session of it No name was mentioned, I
afterward heard that the prisoner, Payne,
was at the Herndon House, One day I n'ri^
Atzerodt on the street, and asked him whert- .
he was going. He said he was going \a^
see Payne, I then asked, "Is it Payne who ^
is at the Herndon House?" He said, "Yes,"
That was after the visit John H. Surratt hail
made to engage the room.
About the 17th of March last, a Mrs.
(113)

114

THE CONSPIRACY TRIAL.

Slater came to Mrs, Surratt's house, and
stopped there one night This lady went to
Canada and Richmond, On Saturday, the
23d of March, John Surratt drove her and
Mrs, Surratt into the country in a buggy,
leaving about 8 o'clock in the morning. He
hired a two-horse team, white horses, from
Howard's, Mrs, Surratt told me on her re
turn tliat John had gone to Richmond with
Mrs, Slater. Mrs, Slater, I understood, was
to have met a man by the name of Howell,
a blockade-runner; but he was captured on
the 24th of March, so Surratt took her back
to Richmond, Mrs, Slater, as I learned
from Mrs, Surratt, was either a blockade-run
ner or a bearer of dispatches,
Surratt returned from Richmond on the
3d of April, the day the news of the fall of
Richmond was received. I had some con
versation with him about the fall of Rich
mond, and he seemed incredulous. He told
me he did not believe it; that he had seen
Benjamin and Davis in Richmond, and they
had told him that Richmond would not be
evacuated. Surratt only remained in the house about
an hour, when he told me he was going to
Montreal, and asked me to walk down the
street with him and take some oysters. He
left that evening, saying he was going to
Montreal, and I have not seen him since.
I saw about nine or eleven $20 gold
pieces in his possession, and $50 in green
backs, when he came back from Richmond;
and just before leaving for Canada, he ex
changed $40 of gold for $60 in greenbacks,
with Mr. Holahan.
I afterward learned in Montreal that Sur
ratt arrived there on the 6th of April, and
left on the 12th for the States; returned on
the 18th, and engaged rooms at the St Law
rence Hall, and left again that night, and
was seen to leave the house of a Mr. Porter
field, in company with three others, in a
wagon. I arrived at Montreal on the 19th,
and my knowledge was derived from the reg
ister of St Lawrence Hall,
I saw a letter from .John Surratt to his
mother, dated St Lawrence Hall, Montreal,
April 12th, which was received here on the
14th; I also saw another letter from him in
Canada to Miss Ward, but that was prior to
the letter to his mother.
About the 15th of January last I was
passing down Seventh Street, in company
with John H, Surratt and when opposite
Odd Fellows' Hall, some one called " Sur
ratt, Surratt;" and turning round, he recog
nized an pld acquaintance of his, Dr, Samuel
; A, Mudd, of Charles County, Md, ; the gen
tleman there [pointing to the accused, Sam
uel A, Mudd,] He and John Wilkes Booth
were walking together, Surratt introduced
Dr, Mudd to me, and Dr. Mudd introduced
Booth to both of us. They were coming
down Seventh Street, and we were going up.
Booth invited us to his room at the Na

tional Hotel. When we arrived there, he
told us to be seated, and ordered cigars and
wines for four. Dr, Mudd then went out
into a passage and called Booth out, and
had a private conversation with him, -When
they returned, Booth called Surratt, and all
three went out together and had a private
conversation, leaving me alone, I did not
hear the conversation; I was seated on a
lounge near the window. On returning to
the room the last time Dr. Mudd apologized
to me for his , private conversation, and
stated that Booth and he had some private
business; that Booth wished to purchase his
farm, but that he did not care about selling
it, as Booth was not willing to give him
enough. Booth also apologized, and stated
to me that he wished to purchase Dr, Mudd's
farm. Afterward they were seated round
the center-table, when Booth took out an
envelope, and on the back of it made marks
with a pencil, I should not consider it
writing, but from the motion of the pencil
it was more like roads or lines.
After this interview at the National Hotel
Booth called at Mrs, Surratt's frequently,
generally asking for Mr, John H. Surratt,
and in his absence for Mrs, Surratt Their
interviews were always apart from other per
sons, I have been in the parlor in company
with Booth, when Booth has taken Surratt
up stairs to engage in private conversation.
Sometimes, when engaged in general conver
sation. Booth would say, "John, can you go
up stairs and spare me a word?" They
would then go up stairs and engage in pri
vate conversation, which would sometimes
last two or three hours. The same thing
would sometimes occur with Mrs, Surratt
When I saw Booth at the National Hotel
on the Tuesday previous to the assassination,
to obtain his iifiggy for Mrs, Surratt, he
spoke about the horses that he kept at How
ard's stable, and I remarked, " Why, I
thought they were Surratt's horses." He said,
" No, they are mine,"
John H, Surratt had stated to me that he
had two horses, which he kept at Howard's
stable, on G Street
Some time iu March last, I think, a man
calling himself Wood came to Mrs, Surratt's
and inquired for John H, Surratt I went to
the door and told him Mr, Surratt was not
at home; he thereupon expressed a desire to
see Mrs, Surratt, and I introduced him, hav
ing first asked his name. That is the man
[pointing to Lewis Payne, one of the accused.]
He stopped at the house all night He had
supper served up to him in my room; I took
it to him from the kitchen. He brought no
baggage; he had a black overcoat on, a
black dress-coat, and gray pants. He re
mained till the next morning, leaving by the
earliest train Jbr Baltimore, 'About three
weeks afterward he called again, and I again
went to the door. I had forgotten his name,
and, asking him, he gave, the name of Payne.

TESTIMONY CONCERNING MRS. MARY E. SURRATT.

116

I ushered him into the parlor, where were
Mrs. Surratt, Miss Surratt, and Miss Honora
Fitzpatrick. He remained throe days that
time. He represented himself as a Baptist
preacher; and said that he had been in
prison in Baltimore for about a week ; that
he had taken the oath of allegiance, and
was now going to become a good and loyal
citizen. Mrs. Surratt and her family are Catholics,
John H. Surratt is a Catholic, and was a
student of divinity at the same college as
myself I heard no explanation given why a
Baptist preacher should seek hospitality at
Mrs, Surratt's; they only looked upon it' as
odd, and laughed at it Mrs, Surratt herself
remarked that he was a great looking Bap
tist preacher. In the course of conversation
one of the young ladies called him "Wood,"
I then recollected that on his first visit he
had given the name of Wood, On the last
occasion he was dressed in a complete suit of
gray ; his baggage consisted of a linen coat
and two linen shirts.
The only evidence of disguise or prepara
tion for it, that I know of, was a false mous
tache, which I found on the table in my room
one day. I put the moustache into a little
toilet-box that was on my table, Payne
afterward searched round the table and in
quired for his moustache, I was sitting on
a chair and did not say any thing. I re
tained the moustache, and it was found in
my baggage that was seized. >
On returning from my office one day, while
Payne was there, I went up stairs to the
third story and found Surratt and Payne
seated on a bed, playing with bowie-knives.
There were also two revolvers and four sets
of new spura
[A spur, a large bowie-knife,.and a revolver, found in
Atzerodt's room at the Kirkwood House, were exhibited
to the witness,]
That is one of the spurs. There were three
spurs similar to that in a closet in my room
when I was last there, and those three be
longed to the eight that had been purchased
by Surratt The knives they were playing
with were smaller than that knife. The re
volvers they had were long navy revolvers,
with octangular barrels; that has a round
barrel. I met the prisoner, David E, Herold, at
Mrs, S,urratt's, on one occasion ; I also met
him when we visited the theater when Booth
played Pescara; and I met him at Mrs,
Surratt's, in the country, in the spring of
1863, when I first made Mrs, Surratt's ac
quaintance, I met him again in the sum
mer of 1864, at Piscataway Church, These
are the only times, to my recollection, I ever
met him, I do not know either of the pris
oners, Arnold or O'Laughlin, I recognize
the prisoner Atzerodt He first came to Mrs,
Surratt's house, as near as I can remember,
about three weeks after I formed the acquaint
ance of Booth, and inquired for John H,

Surratt, or Mrs, Surratt, as he said. Since
then he must have been at the house ten or
fifteen times. The young ladies of the house,
not comprehending the name that he gave;
and understanding that he came from Port
Tobacco, in the lower portion of Maryland,
gave him the nickname of " Port Tobacco."
I never saw him in the house with Booth,
At the time Booth played the part of Pes
cara, in the " Apostate," he gave Surratt two
complimentary tickets, and as Surratt and I
were going to the theater, we met Atzerodt
at the corner of Seventh Street and Pennsyl
vania Avenue, and told him where we were
going. He said he was going there too; and
at the theater we met David E, Herold
[pointing to the accused, David E, Herold,
who smiled and nodded in recognition,] We
also met Mr, Holahan, who boarded at Mrs.
Surratt's, /
After the play was over, all five of us left
the theater together — Mr. Surratt, Holahan,
and myself, in company. We went as far as
the corner of Tenth and E Streets, when Sur
ratt, turning round, noticed that Atzerodt
and Herold were not following, and desired
me to go back after them. When I went
back, I found Atzerodt and Herold in the
restaurant adjoining the theater, talking very
confidentially with Booth, On my approach
they separated, and Booth said, " Mr, Weich
mann, will you not come- and take a drink?"
which I did. We then left the restaurant,
and joined the other two gentlemen on E
Street; went to Kloman's and had some oys
ters ; after that we separated — Surratt, Hol
ahan, and myself going home, and the others
going down Seventh Street
Cross-examined by Hon, Reverdy Johnson,
When I went to board with Mrs, Surratt,
in November, 1864, she rented her farm at
Surrattsville to Mr, Lloyd, and removed to
this city. Her house is on H Street, an'd
contains eight rooms — six large and two
small. Mrs, Surratt rented her rooms and
furnished board. Persons were in the habit
of coming from the country and stopping at
her house, Mrs, Surratt was always very
hospitable, and had a great many acquaint
ances, and they could remain as long as they
chose. During the whole time I- have known
her, her character, as far as I could judge,
was exemplary and lady-like in every par
ticular; and her conduct, in a religious and
moral sense, altogether exemplary. She was
a member of the Catholic Church, and a
regular attendant on its services, I gen
erally accompanied her to church on Sun
day, She went to her religious duties at
least every two weeks, sometimes early in
the morning and sometimes at late mass, j
and was apparently doing all her duties to s
God and man up to the time of the as- \
sassination. I visited Mrs. Surratt several '
times during '63 and '64, while she lived in
the country. I made her acquaintance

116

THE CONSPIRACY TRIAL.

through her son, who had been a college-
mate of mine for three years.
During the winter of 1864, John Surratt
was frequently from home ; in the month of
November, especially, he was down in the
country almost all the time. His stay at
:home was not at all permanent; sometimes
he would be at home for half a week, and
away the other half; soraetimes he would be
three or four weeks at a time in the country.
I do not know of his being in Canada in the
winter of '64-5, although he could have gone
without m}- knowledge. I was upon very
intimate terms with him, seeing him almost
every day when he was at home; we sat at
the same table, roomed together, and shared
the same bed.
He never intimated to me, nor to any one
else to my knowledge, that there was a pur
pose to assassinate the President He stated
to me, in the presence of his sister, shortly
after he made the acquaintance of Booth,
that he was going to Europe on a cotton
speculation ; that $3,000 had been advanced
to him by an elderly gentleman, whose name
he did not mention, residing somewhere in
the neighborhood ; that he would go to Liv
erpool, and remain there probably only two
weeks to transact his business; then he
would go to Nassau ; from Nassau to Mata-
moras, Mexico, and find his brother Isaac,
who had been in Magruder's army in Texas
since 1861,
At another time he mentioned to me that
he was going on the stage with Booth ; that
he was going to be an actor, and they were
going to play in Richmond,
His character at St Charles College, (Cath
olic,) Maryland, was excellent On leaving
college he shed tears; and the president, ap
proaching him, told him not to weep; that
his conduct had been so excellent during the
three years he had been there, that he would
always be remembered by those who had
charge of the institution.
On the occasion of Mrs, Surratt's visit to
Surrattsville, on the llth of April, she told
me she had business with Mr, Nothe ; that
he owed her a sum of money, $479, and the
interest on it, for thirteen years. On arriving
there, about half-past 12, she told, Mr, Nott,
the bar-keeper, to send a messenger imme
diately to Mr, Nothe, In the mean time,
Mrs, Surratt and myself went to Captain
Gwynn's place, three miles lower down, took
dinner there, and remained about two hours.
At Mrs, Surratt's desire, Captain Gwynn re
turned with us to Lloyd's, When we ar
rived there, Mr. Nott said that Mr Nothe
was in the parlor. They went in and trans
acted their business; but I did not go in, and
did not see Mr. Nothe,
Mrs, Surratt's second visit to Surrattsville
was on the afternoon of the 14th of April,
She rapped at my room-door on that after
noon, and told me she had received a letter
Srom Mr. Charles Calvert in regard to that

money that Mr. Nothe owed her, and that
she was again compelled to go to Surratts
ville, and asked me to take her down. Of
course I consented. I did not see the letter.
We took with us only two packages; one
was a package of papers about her prop
erty at Surrattsville; and another package,
done up in paper, about six inches, I should
think, in diameter. It looked to me like
perhaps two or three saucers wrapped up.
This package was deposited in the bottom
of the buggy, and taken out by Mrs. Surratt
when we arrived at Surrattsville. We re
turned to Washington about halfpast 8 or
9. About ten minutes after we got back,
some one rang the front/door bell. It wag
answered by Mrs. Surratt, and I heard foot
steps go into the parlor, immediately go out
again, and down the steps. I was taking
supper at the time. ^
I first heard of the assault on President
Lincoln and the attack on Secretary Seward
at 3 o'clock on Saturday morning, when the
detectives came to the house and informed
us of it ,
The first time that Payne came to Mrs.
Surratt's, when he gave the name of Wood,
he had on a black coat; and when he went
into the parlor he acted very politely. He
asked Miss Surratt to play on the piano,
and he raised the piano-cover, and did every
thing which indicated a person of breeding.
The moustache that I found upon my table
was black, and of medium size; it was suffl- ,
ciently large to entirely change the appear- '
ance of the wearer. When I found_ it I
thought it rather queer that a Baptist
preacher should use a moustache; I thought
no honest person had any reason to wear
one. I took it and locked it up, because I
did not care to have a false moustache lying
round on my table. I remeraber exhibiting
it to some of the clerks in our office, and
fooling with it the day afterward ; I put on
a pair of spectacles and the moustache, and
was making fun of it.
Atzerodt, to my knowledge, stopped in the
house only one night; he slept alone in the
back room in the third story. John Surratt
was out in the country; he returned that
evening; and Atzerodt, who had, I under
stood, been waiting to see John, left the next
day. I afterward heard Miss Anna and Mrs.
Surratt say that they did not care about
having him brought to the house. Miss
Anna Surratt's expression was, she didn't
care about having such sticks brought to
the house; that they were not company for
her. John Surratt is about six feet high, with
very prorninent forehead, a very large nose,
and sunken eyes; he has a goatee, and
very long hair of a light color. The day he
left for Montreal he wore cream-colored
pants, gray frock-coat, gray vest, and a plaid
shawl thrown over him.
When he returned from Richmond, he

TESTIMONY CONCERNING MRS. MARY E. SURRATT.

117

had nine or eleven $20 gold pieces ; he did not
tell me from whom he got them, nor did
I make any inquiries. I know he had no
gold about him when he left for Richmond.
On the evening of the 14th, Mrs, Surratt
showed me the letter she had received that
day from John. It was a letter on general
subjects. He said he was much pleased with
the city of Montreal, and with the French
cathedral there; that he had bought a French
pea-jacket, for which he had paid $10 in sil
ver; that board was too high at St Law
rence Hall, $2.50 a day in gold, and that he
would probably go to some private boarding-
house, or that he would soon go to Toronto.
The letter was signed "John Harrison," not
his full name; his name is John Harrison
Surratt By Mr. Ewing.
Dr. Mudd introduced Booth to John H.
Surratt and myself about the 15th of Jan
uary. I could fix the exact date, if reference
could be had to the register of the Pennsyl
vania House, where Dr. Mudd had a room
at the time. I am sure it was after the 1st
of January, and before the 1st of February.
It was immediately after the recess of Con
gress. The room that was occupied by Booth
at the National Hotel had been previously
occupied, so Booth said, by a member of
Congress. Booth, I remember, walked round
the room, put his hand on the shelf, and
took down some Congressional documents,
and remarked, " What a good read I shall
have when I am left to myself" It was the
first day of Booth's arrival in the city, and
of his taking possession of the room, I un
derstood. Most of the Congressmen had
returned; Congress was in session at the time.
When Booth and Dr. Mudd met Surratt
and myself, on Seventh Street, Surratt first
introduced Dr. Mudd to me, and then Dr.
Mudd introduced Booth to both of us.
Booth then invited us down to his room at
the National Hotel. As we walked down
Seventh Street, Mr. Surratt took Dr. Mudd's
arm, and I walked with Booth. The conver
sation at the National lasted, I suppose,
three-quarters of an hour. When Booth took
the envelope out of his pocket, and with a
pencil drew lines, as it were, on the back of
this envelope, Mr, Surratt and Dr. Mudd
were looking on. All the while he was doing
it they were engaged in deep private conver
sation, which was scarcely audible. I was
sitting about eight feet from them and could
hear nothing of it When Booth went out
of the room with Dr, Mudd, they remained
not more than five or eight minutes. They
went into a dark passage, and I judge they
remained there, as I heard no retreating foot
steps, and they did not take their hats.
Almost immediately after their return
Surratt went out, and all three staid out a^out
the same length of time as at the first inter
view.

After their return to the room, we re
mained probably twenty minutes; then left
the National Hotel and went to the Penn
sylvania House, where Dr. Mudd had rooms.
We all went into the sitting-room, and Dr.
Mudd came and sat down by me; and we
talked about the war. He expressed the
opinion that the war would soon come to an
end, and spoke like a Union man. Booth
was speaking to Surratt At about half-past
10, Booth bade us good night, and went out;
Surratt and I then bade Dr. Mudd good night
He said he was going to leave next morning.
I had never seen Dr. Mudd before that
day. I had heard the name of Mudd men
tioned in Mrs. Surratt's house, but whether
it was this Dr. Samuel Mudd I can not say.
I have heard of Dr. George Mudd and Dr.
Samuel Mudd. By Mr. Stone.
I flrst saw Herold in the summer of 1863,
at Surrattsville, at a serenade there. A band
had gone down from the city to serenade the
officers who had been elected, and the band
stopped at Mrs. Surratt's, on the way down,
and serenaded us ; on returning in the morn
ing, they stopped and serenaded us again.
Herold was with this party, and it was on
this occasion that John Surratt introduced
him to me. By Me. Clampitt.
There was nothing in the conversation be
tween Dr. Mudd, Booth, and Surrratt, at the
National Hotel, that led me to believe there
was any thing like a conspiracy going on
between them.
When Mrs. Surratt sent me to Booth, and
¦he offered me the ten dollars, I thought at
the time that it was nothing more than an act
of friendship. I said to Booth, " I am come
with an order for that buggy that Mrs. Surratt
asked you for last evening." He said, "I
have sold my buggy, but here are ten dollars,
and you go and hire one." I never told Mrs,
Surratt that
Mrs. Surratt would sometimes leave the
parlor on being asked by Booth to spare him
a word. She would then go into the passage
and talk with him. These conversations
would not, generally, occupy more than flve
or eight minutes. By Mr. Aiken.
On the Hth of April, when I drove Mrs.
Surratt to Surrattsville, I wrote a letter for
her to this man Nothe; it was, I remember,
" Mr. Nothe: Sir— Unless you come forward
and pay that bill at once, I will bring suit
against you immediately." I also remember
summing up the interest for her on the sum
of $479 for thirteen years.
By Me. Doster.
Atzerodt has been frequently to Mrs. Sur
ratt's house, and had interviews with John

118

THE CONSPIRACY TRIAL.

H. Surratt in the parlor. I knew nothing of
what took place between them. On the
occasion of Payne's last visit to the house.
Atzerodt came to see Surratt, and I saw
Payne and Atzerodt together, talking in my
room. I do not know of any conversation
that passed between Atzerodt and Booth, or
Atzerodt and Payne, having reference to a
conspiracy. Surratt was continually speaking about
cotton speculations, and of going to Europe,
and I heard Atzerodt once remark that he
also was going to Europe, but he was going
on horseback ; from that remark I concluded
he was going South.
At half-past 2 o'clock, on the afternoon of
the 14th, I saw Atzerodt at the livery-stable,
trying to get a horse. The stable-keeper, in
my presence, refused to let him have one, I
asked Atzerodt where he was going, and he
said he was going to ride in the country, and
he said he was going to get a horse and send
for Payne, I met Atzerodt one day on
Seventh Street, and asked him where he was
going. He said he was going to see Payne,
I asked him if it was Payne who was at the
Herndon House, He said, "Yes," When
Payne visited the Surratts, his business ap
peared to be with Mr. Surratt On the
occasion of his first visit, I was in the parlor
during the whole time. I did not notice any
other disguise than the false moustache
spoken of, nor any thing else to show that
Payne wanted to disguise himself He ap
peared to be kindly treated by Mr. Surratt, as
if he was an old acquaintance,
I do not know whether the Surratt family
regarded him as a man in disguise or as a
Baptist minister. One of the young ladies
looked at him, and remarked that he was a
queer-looking Baptist preacher, and that he
would not convert many souls.
Recalled for the Prosecution, — May 18.
[A telegraphic dispatch was handed to the witness.]
I received this dispatch and delivered it to
John H. Surratt on the same day. I can not
say that I received it on the 23d of March,
but it was after the 17th of March.
New Toek, March 23, 1865.
To Weichmann, Esq., 541 H Street:
Tell John to telegraph number and street
at once. [Signed] J. BOOTH,
[The original of tho above dispatch was offered in evi
dence :]
This is in Booth's handwriting, I have
seen Booth's handwriting, and recognize his
autograph. When I delivered the message
to John Surratt, I asked him what particular
number and street was meant, and he said,
" Do n't be so damned inquisitive,"
During Payne's second visit to Mrs, Sur
ratt's house, some time after the 4th of March,
I returned from my office one day at half-past
4 o'clock. I went to my room, and ringing
the bell for Dan, the negro servant, told him

to bring me some water, and inquired at the
same time where John had gone. He told me
Massa John had left the front of the house,
with six others, on horseback, about half-
past 2 o'clock. On going down to dinner, I
found Mrs, Surratt in the passage. She was
weeping bitterly, and I endeavored to console
her. She said, "John isgoneaway; godown
to dinner, and make the best of your dinner
you can," After dinner, I went to my room,
sat down, commenced rea,ding, and about half-
past 6 o'clock Surratt came in very much ex
cited — in fact, rushed into the room. He had
a revolver in his hand — one of Sharpe's re
volvers, a four-barrelled revolver, a small one,
you could carry it in your vest-pocket He
appeared to be very much excited. I said,
"John, what is the matter; why are you so
much excited?" He replied, "I will shoot
any one that comes into this room; my pros
pect is gone, my hopes are blighted; 1 want
something to do; can you get me a clerk
ship?" In about ten minutes after, the pris
oner, Payne, came into the room. He was also
very much excited, and I noticed he had a
pistol. About fifteen minutes afterward. Booth
came into the room, and Booth was so excited
that he walked around the room three, or four
times very frantically, and did not notice me.
He had a whip in his hand. I spoke to him,
and, recognizing me, he said, " 1 did not see
you," The three then went up stairs into the
back room, in the third story, and must have
remained there about thirty minutes, when
they left the house together. On Surratt's re
turning home, I asked him where he had left
his friend Payne, He said, " Payne had gone
to Baltimore," I asked him where Booth
had gone; he said Booth had gone to New
York, Some two weeks after, Surratt, when
passing the post-office, inquired for a letter
that was sent to him under the name of James
Sturdey, I asked him why a letter was sent
to him under a false name; he said he had
particular reasons for it
The letter was signed "Wood," and the
substance of it was, that the writer was ,at the
Revere House in New York, and was looking
for something to do; that he would probably
go to some boarding-house on West Grand
Street, I think. This must have been before
the 20th of March.
When I asked the negro servant to tell me
who the seven men were that had gone out
riding that afternoon, he said one was Massa
John, and Booth, and Port Tobacco, and that
man who was stopping at the house, whom I
recognized as Payne. Though they were very
much excited when they came into the room,
they were very guarded indeed, Payne made
no remark at all. Those excited remarks W
Surratt were the only ones made. \
Cross-examined by Mr. Aiken. ]
I did not hear the conversation that took |
place between Mrs. Surratt and Mr. Lloyd at/
Uniontown. Mrs. Surratt leaned sideways

TESTIMONY CONCERNING MRS. MARY E. SURRATT.

119

in the buggy, and whispered, as it were, in Mr.
Lloyd's ear.
I have seen Mrs. Slater at Mrs. Surratt's
house only once, though I understand she has
been there twice. Mrs. Surratt told me that
she came to the house with Mr, Howell; that
she was a North Carolinian; I believe that
she spoke French, and that she was a block
ade-runner or bearer of dispatches, Mrs. Sur
ratt said if she got into trouble there was no
danger, because she could imraediately apply
to the French Consul, speaking French as she
did. At the time I saw her, she drove up to
the door iu a buggy ; there was a young man
with her. Mrs. Surratt told me to go out
and take her trunk. She wore a crape mask
vail. That was some time in the month of
February, When Howell was at Mrs, Sur
ratt's, he gave the name of Spencer, They
refused to tell me his right name, but I after
ward learned from John Surratt that his name
was Augustus Howell, His nickname in the
house was Spencer, He was well acquainted
with Mrs. Surratt. I was introduced to him,
and had some conversation with him, I told
him I would like to be South. I had been a
student of divinity, and I was studying for
the diocese of Richmond. I told him that I
would like to be in Richmond for the pur
pose of continuing my theological studies.
By Me. Clampitt.
Q. Whyhad you a greater desire to continue
your studies in Richmond than the North ?
Assistant Judge Advocate Bingham. I ob
ject to that question. It is wholly immaterial
what reason he had,
Mr. Clampitt, It is important, and concerns
the res gestce of the case.
Assistant Judge Advocate Bingham. Sup
posing he should give an answer, how would
you dispose of it ?
Mr. Clampitt. By further testimony that
we may adduce hereafter. It may be a con
necting link.
Assistant Judge Advocate Bingham, You
can not do it in that way. If you had asked
him for his declarations, I could understand
it; but this is an attempt to get at the in
terior motive of the witness, which you can
nof do, unless you can obtain the power of
omnipotence. The question was waived.
Witness. I spoke about Mr, Howell to
Captain Gleason, a clerk in our office, and
said to him, "There is a blockade-runner at
Mrs. Surratt's ; shall I have him delivered
up?" I agitated the question with myself for
three days, and decided in favor of Surratt;
I thought it would be perhaps the only time
the man would be there, and that I would let
him go, in God's name.
By Me. Aiken.
While I was a clerk in the War Depart
ment, this man Howell taught me a cipher
alphp,bet, and how to use it He said nothing

about its being a cipher used at Richmond,\
nor did he give it to me with any idea of
corresponding in it; and the only use I evoi
made of it was to write out a poem of Long
fellow's in it, which I showed to Mr Cruik
shank, a clerk in the War Department He
was in the habit of making puns and enig
mas himself; and I told him I would give
him an enigma which he could not make out
The cipher alphabet was in my box, and no
doubt was found among my things when they
were seized.
I read in the paper, the morning after the
assassination, the description of the assassin
of Secretary Seward; he was described as a
man who wore a long gray coat, and I went
to the stable on G Street and told Brook
Stabler that I thought it was Atzerodt I
afterward met Mr, Holahan, and he also
communicated similar suspicions to me, and
after breakfast we gave ourselves up to Su
perintendent Richards, of the Metropolitan
Police force. I told Officer McDevitt about
Payne, and where he was stopping, and what
I knew of Surratt, Atzerodt, and Herold. No
threats were made in case I did not divulge
what I knew, and no offers or inducements
if I did. My only object was to assist the
Government I surrendered myself because
I thought it was my duty. It was hard for
me to do so, situated as I was with Mrs,
Surratt and her family, but it was my duty,
and so I have always regarded it since.
I can not say that any objection was ever
made by any of the prisoners at the bar to
my being, present at any of their conversa
tions, but they would withdraw themselves.
When Booth would call, he would converse
perhaps five or ten minutes, and then I no
ticed that John would tap or nudge Booth,
or Booth would nudge Surratt; then they
would go out of the parlor and stay up stairs
for two or three hours. I never had a word
of private conversation with them which I
would not be willing to let the world hear.
Their conversations, in my presence, were ou
general topics. I never learned any thing
from the conversations of any of the prison
ers at the bar of any intended treason or
conspiracy, I would have been the last man
in the world to suspect John Surratt, my
school-mate, of the murder of the President
of the United States, My suspicions were
aroused by Payne and Booth cqming to the
house, and their frequent private conversa
tions with John Surratt, and by seeing Payne
and Surratt playing on the bed with bowie-
knives, and again by finding a false mous
tache in my room; but my suspicions were
not of a fixed or definite character. I did
not know what they intended to do. I made
a confidant of Captain Gleason in the War
Department I told him that Booth was a
secesh sympathizer, and mentioned snatches
of conversation I had heard from these par
ties; and I asked him, "Captain, what do
you think of all this ?" We even talked

120

THE CONSPIRACY TRIAL.

over several things which they could do. I
asked him whether they could be bearers of
dispatches or blockade-runners. I remember
seeing in the New York Tribune, of March
19th, the capture of President Lincoln fully
discussed, and I remarked to Captain Glea
son, " Captain, do you think any party could
attempt the capture of President Lincoln ?"
He laughed and hooted at the idea. This
happened before the horseback ride of Sur
ratt and the six others. I remarked to the
''aptain, the morning after they rode, that
Surratt had come back, and I mentioned to
Gleason the very expressions Surratt had
used, and told him that, to all appearances,
what they had been after had been a failure;
and that I was glad, as I thought Surratt
would be brought to a sense of his duty.
Q. How came you to connect the discus
sion which you read in the papers with any
of these parties, and have your suspicions
aroused against them ?
Assistant Judge Advocate Bingham. I
object to the question. It is no matter how
the man's mental processes worked. We can
not inquire into that
Mr. Aiken. It will be recollected that
yesterday a witness was asked what his im
pressions were, and it was not objected to.
Assistant Judge Advocate Bingham. The
question is now, how he came to form cer
tain conclusions. We can not try a question
of that sort No court on earth could do it
It is a thing we can not understand, nor any
body else; and perhaps the witness himself
would not now be able to state what con
trolled his mental operations at that time.
Mr. Aiken. I insist on my question.
Assistant Judge Advocate Bingham. The
witness has already gone on and told all he
can tell, and given declarations; and now he
is asked to state how he came to connect
them with the newspaper article. Of what
use is that to anybody? I object to it as a
wholly immaterial and irrelevant question.
No matter how the witness answers, it can
throw no light on the subject, in favor of or
against the prisoners,
Mr. Aiken. But the Judge Advocate is
aware that the witness did not tell all he
wished to know in the examination in chief,
and in his re-examination went into matter
not brought out in the examination in chief,
or in the cross-examination, which also was
not objected to by us.
The Court sustained the objection.
Witness, I had been a companion of
.John H. Surratt's for seven years, I did
not consider that I forfeited my friendship
to him in mentioning my suspicions to Mr.
Gleason ; he forfeited his friendship to me
by placing me in the position in which I
now stand, testifying against him. I think
I was more of a friend to him than he was
to me. He knew that I permitted a block-
tde-runner at the house, without informing
ipoii him, because I was his friend. But I

hesitated about it for three days ; still, when
my suspicions of danger to the Government
were aroused, I preferred the Government to
John Surratt /
By Mr. Ewing.
The ride of the parties spoken of, I think,
took place after my reading the article in the
Tribune of March 19th. I also saw in the
Republican, some time in February, that the
assassination of President Lincoln was con
templated, and Surratt once made the re
mark to me that if he succeeded in his coir
ton speculation, his country would love him
forever, and that his name would go down
green to posterity.
1 do not know what were his intentions,
but he said he was going to engage in cot
ton speculations ; he was going to engage in oil.
My remark to Captain Gleason about the
possibility of the capture of the President
was merely a casual remark. He laughed
at the idea of such a thing in a city guarded
as Washington was. It was the morning
after the ride that I stated to Captain Glea
son that Surratt's mysterious and incompre
hensible business had failed; and I said,
"Captain, let us think it over, and let us
think of something that it could have been."
I mentioned a variety of things — blockade-
running, bearing dispatches; and we then
thought of breaking open the Old Capitol
Prison ; but all those ideas vanished ; we hit
upon nothing, I will state that since that
ride my suspicions were not so much aroused
as before, because Payne has not been to the
house since ; and Atzerodt, to my knowledge,
had not been to the house since the 2d of
April, The only one that visited the house
during that time was this man Booth.
Recalled for the Prosecution. — May 19.
[The accused, Lewis Payne, was here attired in the coat
and vest in which he was arrested at the house of M>fl.
Surratt,] y
Payne wore that coat and vest the last
time he came to Mrs, Surratt's, when he staid
three days, on the 14th, 15th and 16th of
March, and it was on the 16th that the party
took that horseback ride. The next day
after that I mentioned my suspicions to Cap
tain Gleason. I had spoken to him previously,
on various occasions, about this blockade-
runner, and about Mrs, Slater, but I can not
fix the precise date, I am enabled to fix the
date of Payne's last visit to the house, from
the fact that he went with John Surratt, Miss
Fitzpatrick, and Miss Dean to see " Jane
Shore " played at the theater. Forrest was
playing there at that time, and Surratt had
got a ten-dollar ticket It was the next day
that this horseback ride occurred.
A. R. Reeves.
For the Prosecution, — May 18.
I reside in Brooklyn, N. Y. I am a tele
graphic operator.

TESTIMONY CONCERNING MRS. MARY B. SURRATT.

121

[A telegraphic dispatch was handed to tho witness.]
"This is the original dispatch that was
handed to me by John Wilkes Booth, at the
St Nicholas Hotel, New York, to be sent to
Washington. It reads :
New Tobk, March 23, 1865.
To Weichmann, Esq,, 541 H Street :
Tell John to telegraph number and street
at once. [Signed] J. BOOTH.
It was sent on the 23d. I remember
Booth's signing "J. Booth," instead of John
Wilkes Booth, knowing that to be his name;
I noticed at the time that Wilkes was left out
[A photograph of Booth was exhibited to the witness.]
This is the gentleman who handed the dis
patch to me.
Miss HoNOEA Fitzpatrick.
For the Prosecution, — May 22.
I resided at the house of Mrs. Mary E.
Surratt, the prisoner at the bar, last winter.
During the month of March last, I saw John
Wilkes Booth and John H. Surratt there,
and of the prisoners, Mr. Wood, [pointing to
the prisoner, Lewis Payne,] I do not know
him by any other name, and Mr. Atzerodt
[pointing to the accused, George A. Atzerodt]
never saw David E. Herold there. I only
saw Mr. Wood at Mrs. Surratt's twice: once
was in March. Atzerodt was there but a
short time ; he staid over night once.
Some time in March, in company with Mr.
Surratt, Wood, [Payne,] and Miss Dean, I
went to Ford's Theater. I do not know what
box we occupied, but think it was an upper
box. John Wilkes Booth came into the box
while we were there. The day after this visit
to the theater I went to Baltimore, and was
absent for about a week.
Mrs. Emma Offutt.
For the Prosecution, — May 17.
On Tuesday, the llth of April, I was in
the carriage with Mr. Lloyd, my brother-in-
law. When somewhere about Uniontown
we met Mrs. Surratt Our carriage passed
before we recognized that it was her, when
Mr. Lloyd got out Whether Mrs, Surratt
called him I do not know. I did not hear
their conversation, for I was some distance
off On Friday, the 14th, I saw Mrs. Surratt at
Mr. Lloyd's house. She came into the par
lor. Mr. Lloyd had been to Marlboro that
day, attending court; he had just returned,
and had brought some oysters and fresh fish
with him, and had driven round to the back
part of the yard. Having occasion to go
through to the back part of the house, she
came with me, and I saw her and Mr. Lloyd
conversing together in the back yard. I paid
no attention at all to them, and could not
tell a word that passed between them.

Cross-examined by Mr. Aiken.
When the two carriages passed at Union-
town, and Lloyd got out, it was misty and
raining a little. The carriages were two or
three yards apart, I suppose. I never looked
out of the carriage at all after Mr. Lloyd left
it, and Lloyd said nothing to me about his
conversation with Mrs. Surratt
Mrs, Surratt arrived at Mr. Lloyd's about
4 o'clock on the afternoon of the 14th. I
had a conversation with her before Mr. Lloyd
came in.
Q, Did you learn any thing of her business
there that day?
Assistant Judge Advocate Bingham ob
jected to the question. Statements of Mrs.
Surratt, in the absence of Mr. Lloyd, were
not admissible.
Witness. Mrs. Surratt gave me no charge
in reference to her business, only concerning
her farm, and she gave me no packages.
Q. During your visit to Mr. Lloyd's, did you
ever hear any conversation there with refer
ence to " shooting-irons ? "
Assistant Judge Advocate Bingham ob
jected to the question. The witness had
already stated that she did not hear the con
versation between Mr. Lloyd and Mrs. Sur
ratt Mr. Aiken claimed the right to ask the
question, in order to impeach the credibility
of the previous witness, Lloyd.
The Commission sustained the objection.
Major H. W. Smith.
For the Prosecution. — May 19.
1 was in charge of the party that took
possession of Mrs. Surratt's house, 541 H
Street, on the night of the 17th of April, and
arrested Mrs. Surratt, Miss Surratt, Miss
Fitzpatrick, and Miss Jenkins. When I
went up the steps, and rang the bell of the
house, Mrs. Surratt came to the window, and
said, "Is that you, Mr. Kirby?" The reply
was that it was not Mr. Kirby, and to open
the door. She opened the door, and I asked,
" Are you Mrs. Surratt ? " She said, " I am
the widow of John H. Surratt" And I
added, "The mother of John H. Surratt,
jr,?" She replied, "I am." I then said,
" I come to arrest you and all in your house,
and take you for examination to General
Augur's head-quarters," No inquiry what
ever was made as to the cause of the arrest
While we were there, Payne came to the
house. I questioned him in regard to his
occupation, and what business he had at the
house that time of night He stated that he
was a laborer, and had come there to dig a
gutter at the request of Mrs, Surratt I went
to the parior door, and said, "Mrs. Surratt,
will you step here a minute?" She came
out, and I asked her, "Do you know thia
man, and did you hire him to come and dig
a gutter for you?" She answered, raising

122

THE CONSPIRACY TRIAL.

her right hand, " Before God, sir, I do not
know this man, and have never seen him,
and I did not hire him to dig a gutter for
me." Payne said nothing. I then placed
him under arrest, and told him he was so
suspicious a character that I should send him
to Colonel Wells, at General Augur's head
quarters, for further examination, Payne
was standing in full view of Mrs. Surratt,
and within three paces of her, when she de
nied knowing him.
Cross-examined by Me. Aiken.
A variety of photographs were found in a
photograph-album and in various parts of
Mrs, Surratt's house.
Payne was dressed that night in a gray
coat, black pantaloons, and rather a fine pair
of boots. He had on his head a gray shirt
sleeve, hanging over at the side. His panta
loons were rolled up over the tops of his
boots ; on one leg only, I believe.
I have known some loyal people who have
had in their possession photographs of the
leaders of the rebellion, I can not say that
I have seen on exhibition at bookstores, or
advertised by newspaper dealers and keepers
of photographs, cartes-de-visite of the leaders
of the rebellion, I have seen photographs of
Booth, but only since this trial.
Re-examined by the Judge Advocate.
Payne was dressed at the time in a gray
coat and black pantaloons,
[Exhibiting to the witness a brown and white mixed
coat,] That is the coat Payne wore, to the best of
my belief. By Mr. Doster.
I am certain that this is the coat; I re
member it by its color and general look. As
near as I could judge by the light that was
in the hall at the time, that was the coat
[Submitting to the witness a dark-gray coat.]
The coat now shown me is the one worn
by Payne on the night of his arrest I rec
ognize it by the buttons. All that was
wanting in the other coat was the buttons,
but it was difficult in the light in which I was
standing to tell. The coat just shown me is
the one.
[The gray coat was'offered in evidence.]
By Me. Aiken.
I think, if 1 saw a gentleman dressed in
black, with a white neck-cloth, representing
himself as a Baptist preacher, and two months
afterward I met the same person, with a shirt
sleeve on his head, an old gray coat, his
pantaloons stuffed into his boots, with a
pickaxe on his shoulder, presenting him
self as a laborer, and in the night-time, I
think that, were I very familiar with his
countenance, I should recognize him as the
same person.

R. C. Moegan.
For the Prosecution.— May 19.
On the night of the 17th of April, I was in
the service of the War Department, acting
under the orders of Colonel Oloott, special
commissioner of that department About
twenty minutes past 11 o'clock, on the evening
of the 17th of April, Colonel Olcott gave me
instructions to go to the house of Mrs. Sur
ratt, 541 H Street, and superintend the seizing
of papers, and the arrest of the inmates of the
house. I arrived there about halfpast 11
o'clock, and found Major Smith, Captain Wer
merskirch, and some other officers, who had
been there about ten minutes. The inmates
were in the parlor, about ready to leave.
I had sent out for a carriage to take the
women arrested in the house to head-quar
ters, when I heard a knock and a ring at the
door. At the same time Captain. Wermers
kirch and myself stepped forward and opened
the door, when the prisoner, Payne, [point
ing to Lewis Payne,] came in with a pickaxe
over his shoulder, dressed in a gray coat,
gray vest, black pants, and a hat made out
of, I should judge, the sleeve of a shirt or
the leg of a drawer. As soon as he came in,
I immediately shut the door. Said he, " I
guess I am mistaken," Said I, " Whom do
you want to see?" "Mrs, Surratt," said he.
" You are right ; walk in," He took a seat, and
I asked him what he came there at this time
of night for. He said he came to dig a gut
ter; Mrs, Surratt had sent for him. I asked
him when. He said, " In the morning." I
asked him where he last worked. He said,
"Sometimes on I Street" I asked him
where he boarded. He said he had no board
ing-house; he was a poor man, who got his
living with the pick. I put my hand on the
pick-axe while talking to him. Said I, " How
much do -you make a day?" "Sometimes
nothing at all; sometimes a dollar; some
times a dollar and a half" Said I, "Have
you any money?" "Not a cent," he replied.
I asked him why he came at this time of night
to go to work. He said he simply cajlea to
find out what time he should go to work in
the morning, I asked him if he had any
previous acquaintance with Mrs. Surratt
He said, " No." Then I asked him why she
selected him. He said she knew he was
working around the neighborhood, and was
a poor man, and came to him, I asked him
how old he was. He said, "About twenty."
I asked him where he was from. He said
he was from Fauquier County, Virginia.
Previous to this he pulled out an oath of
allegiance, and on the oath of allegiance was.
"Lewis Payne, Fauquier County, Virginia.'
I asked him if he was from the South. He
said he was. I asked hira when he left
there. "Some time ago; in the month of
February," I think he said. I asked him
what he left for. He said he would have tb
go in the army, and he preferred earning his

TESTIMONY CONCERNING MRS. MARY B. SURRATT.

123

iving by the pickaxe. I asked him if he
could read. He said, "No." I asked him
if he could write. He said he could manage
to write his name.
I then told him he would have to go up to
the Provost Marshal's office and explain. He
moved at that, but did not answer. The
carriage had returned then that had taken
off the women, and I ordered Thomas Sam
son and Mr, Rosch to take him up to the
Provost Marshal's office. He was then taken
up and searched, I then proceeded, with
Major Smith and Captain Wermerskirch, to
search through the house for papers, and re
mained there until 3 o'clock in the morning,
[A picka.vc -was hero exhibited to the witness,]
That is the pickaxe he had on his shoulder.
[It was then offered in evidence,]
When Payne knocked at the door, Mrs.
iSurratt and the inmates of the house were
all in the parlor, prepared to leave. Mrs.
Surratt had been directed to get the bonnets
and shawls of the rest of the persons in the
house, so that they could not communicate
with each other
The next morning I went down to the house
and found cartes-de-visite of Jeff'erson Davis,
Beauregard, and Alexander H, Stephens; and
Lieutenant Dempsey, the officer in charge,
sliowed me a photograph of J. Wilkes Booth,
that he had found behind a picture, which
he turned over to the Provost Marshal.
\ [An envelope containing two photographs of General
V.Beauregard, one of Jefferson Davis, one of- Alexander H.
Stephens, andacard with the arms of the State of Virginia
and two Confederate Hags emblazoned thereon, with the
Inscription ' ' Thus will it ever be with tyrants,
Virginia the Mighty,
Sic Semper Ti/rannis.^^]
I found all these at the house of Mrs.
Surratt. Cross-examined by Mr. Aiken.
I do not recollect having seen photographs
of J. Wilkes Booth at book-stores before the
assassination of the President; and I never
had photographs of Jeff'erson Davis and
other prominent leaders of the rebellion in
ray hand, until I had these, found at Mrs,
Surratt's, I have not seen people with photo
graphs of these men since the rebellion,
though they might have had them before.
Captain W. M. Weemerskiroh.
For ihe Prosecution, — May 19.
On the night of the 17th of April I was
at the house of Mrs. Surratt, in this city,
and was, present when the prisoner, Payne,
came in, about midnight Major Smith
asked Mrs. Surratt whether she knew him,
and Mrs. Surratt, in the presence of Payne,
held up one or both her hands, and said,
" Before God, I have never seen that man
before. I have not hired him; I do not
know any thing about him ; " or words to
that eff'ect The prisoner at the bar [pointing

to Lewis Payne] is the man of whom I speak,
and Mrs. Surratt [pointing to the prisoner,
Mary E. Surratt] is the woman of whom I
speak. Cross-examined by Mr. Aiken.
I made a search of Mrs Surratt's house,
and found a number of photographs, papers,
a bullet-mold, and some percussion-caps. The
bullet-mold and percussion-oaps were found
in the back room of the lower floor, which,
I believe, was Mrs, Surratt's room,
I found cartes-de-visite, lithographic ones I
think, but got up in the same shape as photo
graphic cartes-de-visite, of Jeff'erson Davis,
Alexander H.StephensandBeauregard, I also
saw a photograph of General McClellan there.
When Mrs. Surratt made the asseveration
with regard to Payne, I was standing in the
hall, very near the front parlor; she was
in the parlor very near the hall-door, or
standing in the door-way.
When Major Smith informed Mrs. Surratt
that the carriage was ready to take her to the
Provost Marshal's office, she requested a
minute or so to kneel down and pray. She
knelt down; whether she prayed or not I
can not tell. Payne was dressed in a dark
coat; pants that seemed to be black, and
seemingly a shirt-sleeve, or the lower part
of a pair ordrawersTonTSis'tL^^flT^'hat niaSe
a"v®fJT;lSsely2ittin'g head.:dr£aa^iLangrng dcrwn
"about six"©!: seven inch.es,^
[The prisoner, Lewis Payne, by direction of the Judge
Advocate, was then dressed in a dark-gray coat, and a
shirt-sleeve for a head-dress.]
That is the coat he wore, and that is the
way he had the head-dress on. I would not
positively swear to the coat, but it is as near
the color and shape of that coat as can be.
[The coat and shirt-sleeve were put in evidence.]
He was full of mud, up to his knees, nearly.
I have seen, in Baltimore, in booksellers,
stores, pictures of Jefl'erson Davis, Alexander
H. Stephens, etc, exhibited for sale; and I
have seen photographs of Booth in the hands
of persons, but only in th'e hands of those
who took an interest in having him arrested.
I do not remeraber seeing a photograph of
him before the assassination.
If I had seen a person dressed genteelly
in black clothes, with a white neckerchief,
representing himself as a Baptist minister, 1
think I would recognize him in the garb
Payne wore, for he had taken no particular
pains to disguise himself; his face looked
just the same as it does now, and the only
diflFerence was in the clothes.
By Mr. Clampitt.
The photographs were found all over the
liouse— in the front parlor, inthe back parlor,
and in the two rooms up stairs. There were
three albums containing photographs, besides
loose pictures,
[Asmall framedcolored lithograph, representing Morn
ing, lioon, and ^ight. was exhibited to the witaesB.]

124

THE CONSPIRACY TRIAL.

I saw this picture in Mrs. Surratt's house,
in the back room of the lower floor, standing
on the mantel-piece, I believe. I left it there,
because I did not think any thing of it This
picture was all that was visible.
Lieutenant John W. Dempsey.
For the Prosecution. — May 19.
[Exhibiting to the witness the picture Morn, Noon, and
Night.] I found this in the back room of the first
floor of Mrs, Surratt's house. The back part
was all sealed, and my curiosity was excited
by noticing a piece torn off" the back. I
opened the back and found the likeness of
J. Wilkes Booth, with the word "Booth"
written in pencil on the back of it
Cross-examined by Mr. Aiken.
I may have seen photographs of Davis,
Lee, and other leaders of the rebellion in
newspapers — the Sunday newspapers partic

ularly; and I have seen some of eminent
actors — Forrest, Macready, and others — ex
posed for sale at diiferent places, I was a
prisoner for thirteen months, and during that
time I saw a good many of the leaders of
the rebellion, both personally and in pictures,
but I have not seen them in the loyal states,
except as I have mentioned.
Recalled for the Prosecution. — June 3.
[A photograph of J. Wilkes Booth, side view, was ex
hibited to the witness,]
This is the photograph I found at the
back of the picture " Morn, Noon, and Night,"
which was found on the mantel-piece in the
back room of the first floor, known, I believe,
as Mrs. Surratt's room. It was marked, in
pencil, "Booth." The pencil words, "J.
Wilkes Booth," I wrote when I found it I
showed the photograph to an officer in the
house, and then turned it over to Colonel
Ingraham. [The picture and photograph were pnt in evidence.]

DEFENSE OF MRS. MARY E. SURRATT.

George Cottingham.
For the Defense. — May 25.
By Mr. Aiken.
I am special officer on Major O'Beirne's
force, and was engaged in making arrests
after the assassination. After the arrest of
John M. Lloyd by my partner, Joshua A,
Lloyd, he was placed in my charge at Roby's
Post-office, Surrattsville. For two days after
his arrest Mr. Lloyd denied knowing any thing
about the assassination. I told him that I
was perfectly satisfied he knew about it, and
bad a heavy load on his mind, and that the
sooner he got rid of it the bettei^. He then
said to me, "0, my God, if I was to make
a confession, they would murder me ! " I
asked, "Who would murder you?" He re
plied, "These parties that are in this con
spiracy." "Well," said I, "if you are afraid
of being murdered, and let these fellows get
out of it, that is your business, not mine."
He seemed to be very much excited.
Lloyd stated to me that Mrs. Surratt had
come down to his place on Friday between 4
and 5 o'clock; that she told him to have the
fire-arms ready; that two men would call for
them at 12 o'clock, and that two men did
call; that Herold dismounted from his horse,
went into Lloyd's tavern, and told him to go
up and get those fire-arms. The fire-arms, he
stated, were brought down ; Herold took one,
and Booth's carbine was carried out to him ;
but Booth said he could not carry his, it

was as much as he could do to carry him
self, as his leg was broken. Then Booth told
Lloyd, " I have murdered the President; " and
Herold said, "I have fixed off Seward." He
told me this when he came from Bryantown,
on his way to Washington, with a squad of
cavalry; I was in the house when he came
in. He commenced crying and hallooing
out, "0, Mrs. Surratt, that vile woman, she
has ruined mel I am to be shot! I am to
he shotl"
I asked Lloyd where Booth's carbine was;
he told me it was up stairs in a little room,
where Mrs. Surratt kept some bags. I went
up into the room and hunted about, but could
not find it It was at last found behind the
plastering of the wall. The carbine was in
a bag, and had been suspended by a string
tied round the muzzle of the carbine; the
string had broken, and the carbine had fallen
down. We did not find it where Lloyd told me
it was. When Lloyd made these statements
to me no one was present but Mr. Jenkins,
a brother of Mrs. Surratt's. L]oyd said that
Mrs. Surratt spoke about the fire-arms be
tween 4 and 6 o'clock on the day of the
assassination. At the last interview I had with him, when
he came to the house to go to Washing
ton, he cried bitterly, and threw his hands
over his wife's neck, and hallooed for his
prayer-book. Lloyd's wife and Mrs. Off'utt
were in the room, and heard all the conver
sation.

DEFENSE OP MRS. MARY E. SURRATT.

126

Recalled for the Defense. — May 25.
By Me. Aiken.
Q. Will you state the precise language that
Lloyd used with reference to Mrs, Surratt in
his confession to you ?
The Judge Advocate objected to the repeti
tion of the question. Mr Aiken stated that
be proposed to follow it up by asking the
witness if he had not made a different state
ment to him (Mr. Aiken) in reference to
what Lloyd had said. " I ask the witness
now what I stated to him,"
Witness. I met Mr, Aiken at the Metro
politan Hotel on Saturday evening last, I
think. He asked me to take a drink. I
went up and drank with him. He then said,
" I am going to have you as a witness in
this case," He asked me to sit down on a
sofa and have some conversation, I said no;
it would not look well for me to be sitting
there, but I would go outside and take a
walk. When we went outside, the first ques
tion Mr, Aiken put to me was, whether I
was a Catholic. I said I was not We
walked along, and he said, "Lloyd has made
a confession to you." Said I, " Yes." He
then said, "Will you not state that confes
sion to me?" I declined to do it, but told
him he might ask any questions, and I would
answer them. He put the question to me, if
Lloyd had stated that Mrs. Surratt had
come down there and told him to have. the
fire-arms ready, I said not I had an ob
ject in that answer. I am now on my oath,
and when on my oath I speak the truth, and
I can have witnesses to prove what I say —
six cavalrymen, Mr. Lloyd's wife, and Mrs,
Offutt He wanted to pick facts out of me
in the case, but that is not my business; I
am an officer, and I did not want to let him
know any thing either way ; I wanted to
come here to the Court and state every thing
that I knew. I told him distinctly that I
would not give him that confession ; that I
had no right to do so.
Q, Did I ask you if Mr. Lloyd, in his con
fession, said any thing at all in reference to
Mrs. Surratt?
A. You asked me first whether Lloyd had
made a confession to me, and I said, "Yes,"
Said you, " What is that confession ? I
should like to know it" My answer to you
was, "I decline giving you that confession;
but if you will ask a question, I will answer
you," That question you put to me, and I
answered; I said "No,"
Q, That Mr. Lloyd did not say so ?
A. I did say so. . I do not deny that
Q. Then what did you tell me this afternoon
with reference to it ?
A. I told you the same thing over again in
the witness-room, when you asked me, before
I came up on the stand. It is a part of my
business (I am a detective officer) to gain
my object I obtained the confession from
Lloyd through strategy.

Q. Then you gave me to understand, and
you are ready now to swear to it, that you
told me a lie ?
A. Undoubtedly I told you a lie there;
for I thought you had no business to ask me.
Q. No business I ' As my witness, had I
not a right to have the truth from you ?
A. I told you you might call me into court;
and I state here that I did lie to you; but
when put on my oath I will tell the truth.
Mrs. Emma Offutt.
Recalled for the Defense, — June 13.
By Mr. Aiken.
On the evening of the 14th of April, Mr.
Lloyd was very much in liquor, more so than
I have evei- seen him in my life. I insisted
on his lying down, and I had to help him
take off his coat In a few minutes he got
up and said he was too sick, and would go
into the dining-room; but he went into the
bar-room after that For the last four or
five months I have noticed his drinking
freely. I did not hear his full confession to Cap
tain Cottingham; but I heard some remarks
he made on the Sunday night when he was
brought up from Bryantown, on hi." way to
Washington. I was there all the time, and
I did not hear him say, referring to Mrs. Sur
ratt, " That vile woman, she has ruined me."
Mr. Aiken. I wish to state to the Court
that at the time Mrs. Offutt gave her tes
timony before, she came here very unwell.
If I have been correctly informed, she had
been suffering severely from sickness, and
had taken considerable laudanum. Her mind
was considerably confused at the time, and
she now wishes to correct her testimony in
an important particular.
Witness. After I left here the other day,
I thought of my reply to a question that
was asked me, and it has been on my mind
ever since, and I requested Mr. Aiken to
mention it to the Court
I was asked by the Judge Advocate if
Mrs. Surratt handed me a package, and I
said " No ;" but she did hand me a package,
and said she was requested to leave it there.
That was about halfpast 5 o'clock, and be
fore Mr. Lloyd came in. After that I saw
the package lying on the sofa in the parlor.
Shortly afterward Mr. Lloyd came in.
When" I saw Mrs. Surratt and Mr. Lloyd
talking together at the buggy in the yard, I
was in and out all the time, I did not see
Mr. Lloyd go into the parlor, but I saw him
on the piazza, and I think from that that he
must have gone into the parlor. He had a
package in his hand, but I did not see Mrs.
Surratt give it to him. After the package
was handed to me, it might have been taken
by Mrs. Surratt and handed to Lloyd, but I
did not see her give it to hira.
I learned from Mrs. Surratt that she would

126

THE CONSPIRACY TRIAL.

not have come down to Surrattsville that
day, had it not been for the letter she re
ceived ; and I saw business transacted while
she was there.
Since January last I have met Mrs, Sur
ratt several times, I never heard from her
a word concerning any plot or conspiracy,
and never heard any disloyal expressions
from her.
I know that Mrs. Surratt's sight is defect
ive. On one occasion, last December, she
came down to see her mother, who was lying
very sick. On being told by a servant that
Mrs, Surratt was coining toward the door, I
went there to her, and said, " Why, Mrs, Sur-
rattl" When she said, "0, Mrs, Offutt, is
that you?" and then she added, "I can
scarcely see,'' I led her into the parlor, and
she told me that her eyes were failing very
fast
George H. Calvert.
For the Defense, — May 25.
By Mr. Aiken.
I reside in Bladensburg, and am acquainted
with the prisoner, Mrs, Mary E, Surratt, On
the 12th of April last I addressed a business
letter to her. I addressed more than one to
her, but the last was on the 12th of April.
[Mr, Aiken called upon the Government to produce the
letter, stating that he would suspend further examination
of tho witness till it coijld be produced,]
Recalled for the Defense. — May 26.
By Me, Aiken.
[A letter was handed to the witness.
* RiVERSDALE, April 12, 1865.
Mrs. M, E, Surratt:
Dear Madam — During a late visit to the
lower portion of the county, I ascertained of
the willingness of Mr, Nothey to settle with
you, and desire to call your attention to the
fact, in urging the settlement of the claim of
ray late father's estate. However unpleasant,
I must insist upon closing up this matter, as
it is imperative, in an early settlement of the
estate, which is necessary.
you will, therefore, please inform me, at
your earliest convenience, as to how and
when you will be able to pay the balance
remaining due on the land purchased by your
late husband.
I am, dear madam, yours respectfully,
GEO, H, CALVERT, Jr.
That is the letter I addressed to Mrs, Sur
ratt on the 12th of April.
[The letter was read and offered in evidence,]
B, F. Gwynn.
For the Defense, — May 25.
By Mr. Aiken.
I reside in Prince George's County, near
Surrattsville. I have been acquainted with
Mrs. Surratt seven or eight years.

On Friday, the day of the murder of the
President, as I was passing in my buggy,
some one hailed me, and said Mrs. Surratt
wanted to see me in the tavern. She gave
me a letter for Mr. Nothey, and asked me
to read it to him, which I did. I have trans->
acted some business for her relative to the
sale of lands her husband had sold to Mr.
Nothey ; and I have personal knowledge of
Mr, Nothey buying land from Mrs, Surratt's
late husband ; 1 was privy to the transaction.
About halfpast 4 on that day, the 14th, I
parted with Mr. Lloyd on the road from
Marlboro, about five miles from Surrattsville,
and did not see hira afterward. He had
been drinking right smartly.
Recalled for the Defense. — May 26.
By Me. Aiken.
[-4. letter was handed to the witness.]
This is the letter I carried to Mr. Nothey
from Mrs, Surratt, and which I read to him
on the 14th of April :
SUBIiATTSVILLE, ]Md., April 14, 1865.
Mr. John Nothey:
Sir — I have this day received a letter from
Mr, Calvert, intimating that either you or
j'our friend have represented to him that I
am not willing to settle with you for the land.
You know that I am ready, and have been
waiting for tha last two years; and now, if
you do not come within the next ten days, I
will settle with Mr, Calvert, and bring suit
against you immediately,
Mr. Calvert will give you a deed, on
receiving payment
M. E. SURRATT,
Administratrix of J. H. Surratt.
John Nothey.
For the Defense. — May 26.
By Mr. Aiken.
I reside about fifteen miles from Washing
ton, in Prince George's County. Some years
ago I purchased seventy-five acres of land
from Mr. John Surratt, sen. Mrs, Surratt
sent me word that she wanted me to come to
Surrattsville to settle for this piece of land.
I owed her a part of the money on it I
met her there on Tuesday in regard to it
On Friday, the 14th of April, Mr. Gwynn
brought me a letter from Mrs. Surratt, but I
did not see her that day.
Joseph T. Nott.
For the Defense. — May 30.
By Mr. Aiken.
For the past two or three months I have
been tending bar at Mr. Lloyd's tavern at
Surrattsville, On the 14th of April I saw Mr. Lloyd in
the morning, and again at sundown. He
had been to Marlboro on that day ; and when
he returned, he brought some fish and oys-

DEFENSE OP MRS. MARY E. SURRATT.

127

ters, which he carried round to the kitchen
in the back yard. For some weeks past Mr
Lloyd had been drinking a good deal ; nearly
every day, and night, too, he was pretty tight
At times he had the appearance of an insane
man from drink. I saw him at the buggy
in which Mrs. Surratt was, assisting in flxing
it He was pretty tight that evening.
By JIr. Clampitt.
I first saw Mr, Lloyd that evening after
his return from Marlboro, driving round to
the kitchen. I was at the stable, and coming
out I saw him going round there. Mr.
Weichmann was there, and Captain Bennett
F. Gwynn drove up in front of the bar-room.
Recalled for cross-examination. — June 2.
By Assistant Judge Advocate Burnett.
I have? never, to my knowledge, done or
said any thing against the Government, or
the Union party in Maryland, during this
struggle, I have never taken sides with the
secession element there, nor said any thing
against the officers of the Government or the
Executive, I know Mr, Edward Smoot I do not
remember saying to him, after the murder of
the President, on his stating that John H,
Surratt was one of the murderers, that he
was undoubtedly in New York by that time;
I may or may not have said so ; and I might
have said, "John knows all about this mat
ter;" but I do not recollect it; and I have
no recollection whatever of saying that six
months ago I could have told all about this
matter; nor do I remember telling him not
to mention any thing about the conversation
I had had with him, I think if I had said
so to Mr, Smoot, I should remember it, but I
do not Indeed, I do not recollect seeing Mr.
Smoot By Mr, Aiken.
I may have seen Mr, Smoot on Saturday,
the 15th of April last, but I have no recol
lection of it; nor of any such conversation
with him. By ihe Couet.
I do not think I rejoiced at the success of
the rebels at the first battle of Bull Run, I
belong to the Catholic Church when I belong
to any Church at all. I have hot belonged
to any Church for seven years.
Andrew Kallenbach.
For the Defense — June 13.
By Mr. Aiken.
I was present in the back room of Mr.
Lloyd's house when he came from Bryan
town, at the time of his arrest I did not
hear Llovd say to Captain Cottingham, "Mrs,
Surratt, that vile woman, she has ruined me."

Cross-examined by Assistant Judge Advocate
Bingham.
The conversation began directly Mr. Lloyd
came into the house, and lasted about five
minutes, Mr, Lloyd, Mrs, Lloyd, and Mrs.
Offutt were there. Lloyd told Cottingham
that he was innocently persuaded into thia
matter by Mrs, Surratt, or Mrs, Surratt's
family, I believe he said, but I will not say
positively that he said by whom, or that
Mrs, Surratt's name was mentioned in tho
conversation, Lloyd told Cottingham that
the carbine was hid up stairs, and after Lloyd
was gone Mr, Cottingham went up for it
J, Z, Jenkins.
For the Defense. — May 30.
By Mr. Aiken.
I reside in Prince George's County, Mary
land. I was at Mr, Lloyd's on the 14th,
when Louis J, Weichman and Mrs, Surratt
drove up to the house, Mrs, Surratt showed
me a letter from George Calvert, also two
judgments that Mr, Calvert obtained in the
Circuit Court of our county against Mr, Sur
ratt, sen. She said this letter brought her
there, and I made out the interest oil those
judgments for her, *She expressed no wish
to see John M, Lloyd, and she was ready to
start some time before he came, and was on
the point of going when Lloyd drove up.
Her business was with Captain Gwynn, and
when he came in sight she went back and
staid, Lloyd was very much intoxicated at
the time.
My intercourse with Mrs, Surratt has been
of an intimate character. She has never, to
my knowledge, breathed a word that was dis
loyal toward the Government; nor have I ever
heard her make any remark showing her to
have knowledge of any plan or conspiracy to
capture or assassinate the President or any
member of the Government I have known
her frequently to give milk, tea, and such
refreshments as she had in her house, to
Union troops when they were passing. Some
times she received pay for it; at other times
she did not I recollect when a large number
of horses escaped from Giesboro, many of
them were taken up and put on her premises.
These horses were carefully kept and fed by
her, and afterward all were given up. She
received a receipt for giving them up, but
never got any pay, to ray knowledge,
I know that Mrs, Surratt's eyesight is de
fective, I have seen a man by the name of
A, S, Howell stopping, I believe twice, at
Mrs. Surratt's hotel. He was stopping there
as other travelers do.
By Mr. Clampitt.
I saw Mrs, Surratt, at Surrattsville, a few
days before the assassination of the^ Presi
dent Q, At that meeting did she not state to

128

THE CONSPIRACY TRIAL.

you, when you asked for the news, that our
army had captured General Lee's army and
taken Richmond?
Assistant Judge Advocate Burnett ob
jected to the question as incompetent and
irrelevant Mr, Clampitt stated that the object of the
question was to show that the accused, Mary
E. Surratt, had, a few days before the assas
sination, exhibited in her expressions a loyal
feeling. Assistant Judge Advocate Burnett stated
that the way to prove her character for loy
alty was by bringing witnesses who knew
her reputation in that respect, and not by
bringing in her own declarations.
Mr. Clampitt waived the question.
Mrs, Surratt's reputation for loyalty was
very good. I never heard it questioned, and
I never heard her express any disloyal sen
timents. Cross-examined by Assistant Judge Advocate
Bingham.
Mrs. Surratt is my sister. I live about a
mile and a half this side of her place. I
was arrested by the Government about ten
days ago. About 10 or 11 o'clock the night
before, I met a man by the name of Kallen
bach, and another by the narae of Cottingham,
All that I said on that occasion, that I re
member, was that my sister had fed his
family (Kallenbach's) ; but I did not say
that if Kallenbach or any one else testified
against my sister, that I would send him to
hell, or see that they were put out of the
way, nor did I use any threats against him
in case he appeared as a' witness against
Mrs, Surratt What I did say was, that I
understood he was a strong witness against
my sister, which he ought to be, seeing that
she had raised his family of children, I
disremember calling hira a liar during the
conversation, and if there was any angry
or excited conversation, I did not mean
it any how. He said nothing to me
about John H, Surratt going to Richmond
with the full knowledge and consent of his
mother, Mrs, Lloyd was there and heard
our conversation, and so also was Mr. Cot
tingham. On the 14th of April, when Mrs. Surratt
was at Lloyd's, 1 saw Mr. Gwynn there, and
perhaps from ten to fifteen others, during
that time; among them, Kallenbach and
Walter Edelin. I was there from between
2 and 3 o'clock until a little after sundown.
I saw Mr. Surratt speaking to Mr, Gwynn
in the parlor; Weichmann also was in the
parlor, I think. Gwynn left the house before
Mrs. Surratt
I think that during the war my attitude
toward the Government has been perfectly
loyal During the revolution, I have spent
$3,000 in my district to hold it in the Union,
and during the struggle I have taken no part

against the Government I have been en
tirely on the side of the Government during
the "whole war, and never, by act or word,
have I aided or abetted the rebellion, and
never has the scrawl of a pen gone from
me across to them, nor from them to me. I
have never fed any of their soldiers, nor
induced any soldiers to go into their array,
nor aided and assisted them in any way.
Re-examined by Mr. Aiken.
I am under arrest, but I do not know what
for. The commissionersN of our county of
fered $2,000 for any information that could
be given, leading to the arrest of any party
connected with the assassination, which Mr.
Cottingham claimed on account of having
arrested John M. Lloyd, and he asked me if
I would not see the State's Attorney and see
whether he could get it or not.
When I said that Mr. Kallenbach ought
to be a strong witness against ray sister, on
account of her bringing his children up, I
spoke ironically. J. Z. Jenkins.
Recalled for the Defense. — June 7.
By Me. Aiken.
In 1861, about the tirae of the first Bull
Run fight, I got a United States flag from
Washington, which I and several of our
Union neighbors raised. There came a report
shortly after that it was going to be taken
down by the secesh sympathizers. I went
round the neighborhood and collected some
twenty or thirty men with muskets, double-
barreled guns, or whatever they had, and
we lay all night round the flag to keep it up.
I was there one night and a day, I think.
At the time of the election, when they were
all Democrats round there except myself, I
used money, when I had n't it to spare and
ray family needed it, to get Union voters into
Maryland. I remember bringing Richard
Warner from the Navy Yard, Washington, ¦
to the polls. He had not been away long
enough to lose his vote. I have never had
any intercourse, one way or another, with
the enemies of my country. At the election
for Congress, in 1862, I was not allowed to
vote; I was arrested on the morning of the
election. I took the oath of allegiance at
the time they were voting on the adoption of
the new constitution, and voted that day.
The last tirae I voted for raember of Congress
was for Harris; then, for the first tirae in
my life, I voted the Democratic ticket I
have been an old-line Whig. I have suf
fered from the war in the loss of my negroes;
but I never, to my recollection, made any
complaint about that When the State de
clared her new constitution, I was willing for
them to go.

DEFENSE OF MRS. MARY E. SURRATT.

129

Richard Sweeney.
For 'he Defense. — June 12.
By Mr. Aiken.
1 met Joh» M. Lloyd at Marlboro on the
14th of April last, and rode back with him
part of the way toward his home. He was
considerably under the influence of liquor,
and he drank on the road.
By Mr. Clampitt.
I am acquainted with J. Z. Jenkins, the
brother of Mrs. Surratt I have known him
for ten years, and can speak confidently of
his reputation as a loyal man. At the outset
of these difficulties he was a zealous Union
man, A Union fiag was erected within one'
hundred yards of where I boarded, and there
was a rumor that it was to be cut down, and
Jenkins was one of the men who took a gun
and remained there all night for the purpose
of guarding the flag.
Cross-examined by the Judge Advocate.
Lloyd returned from Marlboro to Sur
rattsville in his buggy; I was on horseback.
We both drank ; I do not know which drank
the most; we drank from the same bottle,
Lloyd was excited in his conversation and
deportment generally ; but he kept the road
straight, and I did not see him deviate from
it. It was six miles to Surrattsville from
where we parted. I thought he could take
care of himself
Q. Have you been entirely loyal yourself
during the rebellion ?
A. I suppose so, and think so. I have
never done any thing inimical to the interests
bf the Government, that I know of
Q. Have you never desired the success of
the rebellion ?
A. No, sir ; I never expressed any desire
for its success.
Q. Have you always desired that the Gov
ernment should succeed in putting down the
rebellion ?
A. I can not say but what my feelings
were neutral in the matter.
Q. Are you quite sure they were neutral?
It is very difficult to be neutral in such a war
as this has been.
A. I think I was about as strictly neutral
as anybody else.
Q. When you examine your feelings closely,
if you can recall them, have you not an im
pression that at some time or other you
preferred that the rebellion should succeed ?
A. I may possibly have done so. I think
I exercised a neutral feeling very nearly.
Q. 'You were neutral in your conduct?
"A. And in my feelings— as strictly neutral,
1, think, as anybody else.
¦-Q. You think you were perfectly indif
ferent whether the Government succeeded or
failed. A. I was. 9

James Lusby.
For the Defense, — June 2,
By Me. Aiken.
I reside in Prince George's County, Md, I
was at Marlboro on Good-Friday, the day
that Mr, Lincoln was killed, Mr Lloyd
and I returned from Marlboro to Surratts
ville together. He was very drunk on that
occasion ; I got there about a minute and a
half, perhaps, before he did. I drove to the
bar-room door, and he went round to the front
door. I saw Mrs, Surratt just as she was about
to start to go home. Her buggy was standing
there at the gate, when we drove up, and
she left in fifteen or twenty minutes after
that Cross-examined by Assistant Judge Advocate
Bingham.
When I got out of my wagon, I went into
the bar-room to get a drink; and I do not
know what took place in the mean time,
when Lloyd went round the house. I am
quite sure Lloj'd was drunk. I had. been
quite smart in liquor in the course of the day
before I met Lloyd, and then took drinks
with Lloyd ; but I do not think I was ' as
tight as he; nor do I think I am altogether
mistaken as to who was druhk that day. I
did not see him take the fish out of his
buggy. He did not drive into the yard; he
drove to the front gate, I know ; I did' hot ¦
see him go out It is twelve miles from Marl
boro to Surrattsville — about two and a half
hours' drive. We drove along pretty brisk.
J. V. Piles.
For the Defense, — June 13.
By Mb. Aiken.
I live about ten miles from Washing
ton, in Prince George's County, Md. I am
personally acquainted with J, Z, Jenkins,
and have known him ever since I was a
little boy. I regarded him, formerly, as one
of the most loyal men in that part of the
country. I thought that he and I were two
of the most loyal men there, at the, begin
ning of the rebellion. A fiag was raised, sent
down, as I understood, by Mr. John Murphy,
the butcher, who lived at the Navy Yard,
Washington, about a month before the riots
in Baltimore. A little, while after, the news
was spread, that a party from the Southern
States, or from the lovjer counties of Mary
land, were coming to cut it down. About
twenty men were raised in our neighbor
hood, who armed thewiselves to protect the
flag, and Mr. Jenkins, I believe, waS anipng
the number who staid with us that night
I have never heard a disloyal sentiment
from Mr. Jenkins, nor do I know of any
overt act on his part that might be construed
into disloyalty; but I have not been in his
company of late. About six months ago I

130

THE CONSPIRACY TRIAL.

had some conversation with hira, when he
said he was as good a loyal man as I was.
Whether he regarded me disloyal; and him
self too\ or whether he regarded us both
loyal, I can not say.
Cross-examined by Assistant Judge Advocate
Burnett.
Since 1862 I have not heard any direct
expression of opinion from him ; but since his
negroes have been taken from hira^ rumor
says he is not quite so good a Union man as
he was in the beginning. That is the gen
eral rumor. J. C. Thompson.
For the Defense. — June 7.
By Mr. Aiken.
I live at Tee Bee, Prince George's County,
Maryland. I have known J. Z. Jenkins
since 1861, and have always considered him
a loyal man.
Cross-examined by Assistant Judge Advocate
Burnett.
I do not know that I am a competent
judge of loyalty; I have always considered
myself loyal, and I think that such has
been my reputation. I have never desired
the success of the Southern rebellion, and
have been all the time on the side of the
Government Dr. J. H. Blandfoed.
For the Defense, — June 7.
By Mr. Aiken.
I am acquainted with ¦!. Z. Jenkins, and
have regarded him as loyal to the Govern
ment of the United States, I never heard
him express any disloyal sentiments; and at
the beginning of the war, he was generally
avoided by those who were not thoroughly
in favor of the administration. Mr. Jenkins,
I know, supported the opposition candidate^
to the Democracy.
I know Andrew Kallenbach; he is a
Democrat, and has always acted with the
Democratic party.
Wm. p. Wood.
For the Defense. — June 5.
By Mr. Clampitt
I am at present Superintendent of the Old
Capitol Prison. I know J. Z. Jenkins, and
have been intimately acquainted with him
for five years. In 1860 and 1861, Mr. Jen
kins was counted as one of the most reliable
Union men in that district, and I know that
up to 1862 he labored himself, and urged
his friends to labor, and spent his means
freely, to keep the State of Maryland in the
¦Union. In 1862 and 1863, I understood that
he came to this city to obtain voters who

had left the State of Maryland, hut who had
not lost their residence, to return to Mary
land to vote the Union ticket
I do not know of my own knowledge, but
it was generally understood by those acting
with the administration, that after the first
battle of. Bull Run, Mr. Jenkins procured a
United States flag and hoisted it in his
county, and that, when certain rebel sym
pathizers threatened to haul it down, he
gathered a band of from twenty to fifty Union
men, and stood by it all night to protect it
I believe Mr. Jenkins to be a loyal man. I
never heard him utter any sentiments against
the Government of the United States, but he
is very bitter on the administration on ac
count of the negroes. Outside of this, I
believe him to be a truly loyal man. The
people down there, who, in the early part of
the war, acted with the administration, are
now dissatisfied with it on account of its
action on the subject of slavery, and there is
scarcely a single friend of the administration
in that county now.
I never heard him express any desire for
the success of the South ; but I have heard
him express himself very positively the other
way. Mr. Jenkins is no^ under arrest at
the Old Capitol Prison, but I do not know
what for. ,
Cross-examined by the Judge Advocate.
Q. Do you not regard such bitter hostility
to the Government, in a civil war like this,
as in the interest of the public enemy, and
therefore disloyal ?
A. Lately I have not considered him sound
on the subject, and have had very little to
do with him, except on account of former
friendship in past times. I thought then he,
was as loyal as any man in the county, and
regarded him as such, and treated him as a
friend; but at the last election he voted for
Harris, and was in with these other parties,
and I did not like that state of affairs, and
hence had not that political confidence in
him that I had previously.
Miss Anna E. Sueeatt.
For the Defense, — May 30.
By Mr. Aiken.
I was arrested on the 17th of April, and
have since been confined at Carroll Prison.
I have met Atzerodt, the prisoner at the
bar, at our house in^Washington City. I do
not think he remained over night but once.
He called very often, and asked for that man
Weichman. iHe was given to understand
that he was not wanted at the house; ma
said she did not care about having strangers
there. The last time Atzerodt was there,
Weichman engaged the room for him, and
asked ma to allow him to stay there all night
They were sitting in the parlor, and made
several signs over to each other. Weichman
and he then left the room, and presently

DEFENSE OP MRS. MARY E. SURRATT.

131

Weichman came back and asked ma if she
would have any objections to Atzerodt re
maining there that night; that he did not
feel at home at an hotel. After thinking for
some time, ma said, "Well, Mr, AVeichman,
I have no objections," Mr. Weichman was
a boarder at my mother's house, and was but
too kindly treated there. It was my mother's
habit to sit up for him at night, when he was
out of the house ; she would sit up and wait
for him the same as for my brother,
Payne flrst came to our house one night
aftsp-'dark, and left.very early the next morn
ing. That was not long after Christmas.
Some weeks afterward, he came one night
when we were all in the parlor. Weichman
went to the door and brought the gentleman
in, and I recognized him as the one who had
been there before under the name of Wood.
I did not know him by the name of Payne at
all I went down stairs to tell ma that he
was there. She was in the dining-room. She
said she did not understand why strange per
sons should call there, but she supposed their
object was to see my brother, and she would
treat them politely, as she was always in the
habit of treating every one. He called two or
three times after that — perhaps the same
week, or two weeks after — I can not say
exactly. On this visit, as we were sitting in
the parlor, he said, " Mrs. Surratt, if you have
no objection, I will stay here to-night; I in
tend to leave in the morning," And I believe
he did leave the next morning,
I have met John Wilkes Booth at our
house. The last time he was There was on
Friday, the 14th, I think ; I did not see him ;
I heard he had been there.
My mother went to Surrattsville on the
Friday of the assassination, and I think her
carriage was at the door at the time 'Mr.
Booth called, I heard some one corae up
the steps as the buggy was at the door, and
ma was ready to start Ma had been talk
ing about going during the day, before Booth
carari, and perhaps the day before; she said
she was obliged to go on some business in
regard to some land, Mr, Booth only staid
a very few minutes. He never staid long
when he came. /
[A picture, called " Morning, Noon, and Night," was
exhibited to the witness.]
That picture belonged to me; it was given
to me by that man Weichman, and I put a
photograph of John Wilkes Booth behind it
I went with Miss Honora Fitzpatrick to a
daguerrean gallery one day to get her picture ;
we saw some photographs of Mr. Booth there,
and, being acquainted with him, we bought
two and took them home. When my
brother saw them, he told me to tear them
up and throw them in the fire, and that, if I
did not, he would take them from me. So I
hid them. I owned photographs of Davis,
Stephens, Beauregard, Stonewall Jackson,
and perhaps a few other leaders of the rebel

lion. My father gave them to me before his
death, and 1 prize them on his account, if on
nobody else's I also had in the house pho-
tographs of Union Generals — of General
McClellan, General Grant, and General Joe
Hooker The last time I saw my brother was on
Monday, the 3d of April; 1 have never seen
hira since. He may have been on friendly
terms with J. Wilkes Booth. Mr, Booth
called to see him sometimes, I never asked
him what his friendship was to Booth. One
day, when we were sitting in the parlor. Booth
came up the steps, and my brother said he
believed that man was crazy, and he wished
he would attend to his own business and let
him stay at home. He told me not to leave
the parlor, but I did.
Assistant Judge Advocate Burnett. Miss
Surratt, you ought to be cautioned here, that
the statements or conversations of Mr. Sur
ratt, or Mr Booth, or your mother, are not
competent testimony. You should state sim
ply what was done, and not give the state
ments of the parties; and the counsel ought
not to ask for such statements,
Mr. Aiken. [To witness.] In giving your
evidence you will avoid giving statements
that you heard your brother make, and the
language he used. State only what you
know, as far as 3'Our knowledge goes.
My brother was at St Charles's College,
near EUicott Mills, Maryland, in 1861 ; but
he was not a student of divinity. He was
there, I think, three scholastic years, and
sjjent his vacations, in August, at home.
During the time he was not at home for
vacation he was at college,
I never, on any occasion, heard a word
breathed at my mother's house of any plot
or conspiracy to assassinate the President of
the United States ; nor have I ever heard
any remarks in reference to the assassination
of any member of the Government; nor did
I ever hear discussed, by any member of the
family, at any time or place, any plan or
conspiracy to capture the President of the
United States,
My mother's eyesight is very bad, and she
has often failed to recognize her friends. She
has not been able to read or sew by gaslight
for some time past I have often plagued
her about getting spectacles, and told her she
was too young-looking to wear spectacles
just yet; and she has replied that she could
not read or see without them.
By Mr. Ewing.
My brother left college in 1861 or 1862, the
year my father died. I was at school at
Bryantown from 1854 until 1861; I left on
the 16th of July. Surrattsville, where we
formerly resided, is on the road between
Washington and Bryantown.
I never saw Dr. Samuel Mudd in my
mother's house in Washington.

132

THE CONSPIRACY TRIAL.

Recalled for the Defense. — June 7.
By Me. Aiken.
[Submitting to the witness the card containing the arms
of the State of Virginia, with the motto " Sic semper
I recognize that card ; it belongs to me,
and was given me by a lady about two and
a half years ago. By Mr, Ewing.
We coramenced moving from Surrattsville
to the house on H Street about the 1st of
October last; I went there myself about the
first week in November, We have occupied
no other house in Washington,
I have never seen Judson Jarboe at our
house; he never visited the house at all, I
have seen him pass in his buggy in the coun
try, but I have never seen hira to speak to
hira, I never saw Dr, Samuel Mudd at my
mother's house in the city, nor heard of his
being there. Miss Honora Fitzpatrick.
For the Defense, — May 25.
By Mr. Aiken,
I boarded at the house of Mrs, Surratt, on
Ii Street, from the 6th of October last till I
was arrested. I met the prisoner Payne at
breakfast one morning, I think in March or'
April last I have seen him there twice i
the last time was in March, \
I know the prisoner, Atzerodt I have
seen hira at Mrs, Surratt's, but I do not know
in what month. He only stayed there a
short time; I think Mrs. Surratt sent him
away. I occupied the s.ame roora as Mrs.
Surratt, and Miss Surratt slept in the same
room for a time.
[The picture, " Morning, Noon, and Night," was exhib
ited to the witness,]
I know this picture; it belonged to Miss
Surratt, and was kept on the mantle-piece,
but I do not know of any photograph placed
behind it I bought a photograph of J.
Wilkes Booth, and took it to Mrs. Surratt's
house; Miss Anna S'lrratt also bought one.
The last time I saw Mr. Booth at Mrs, Sur
ratt's was on the Monday before the assas
sination. .John Surratt had left a fortnight
before, and I never saw him after.
I am acquainted with Louis J. Weichman ;
he was treated in Mrs, Surratt's house more
like a son than a/friend,
Mrs, Surratt has complained that she could
not read or sew at night on account of her
sight I have known of her passing her
friend, Mrs. Kirby, on the same side of the
street, and not see her at all.
Cross-examined by ihe Judge Advocate.
The photographs of Stephens, Beauregard,
tnd Davis did not belong to me.

Recalled for the Defense — -June 9.
By Mr. Aiken.
I was at communion with Mrs. Surratt on
Thursday morning, the 13th of April. I was
present at the time of Payne's arrest at Mrs.
Surratt's house. I did not recognize him at
the house, but I did at General Augur's
office, when the skull-cap was taken oft' his
head. I know Mrs. Surratt's eyesight is defective;
I have often threaded a needle for her when
she has been sewing during the day, because
she could not see to do it herself, and I have
never known her to sew or read by gaslight
I never saw Judson Jarboe until I got ac
quainted with him at Cari'oll Prison. I never
saw Dr. Samuel Mudd at Mrs. Surratt's
house, and never heard his name mentioned
there. Cross-examined by Assistant Judge Advocate
Burnett.
When we were at General Augur's head
quarters, Mrs. Surratt was taken in another
room. Payne was down behind the railing,
in the room in which MiSs Surratt, Miss
Jenkins, and myself were. The only time
that Mrs. Surratt was in the roora with us
was when Miss Surratt gave way to her feel
ings, because some one suggested that this
man Payne was her brother, John H. Surratt
I do not remeraber that Mrs. or Miss Surratt
said there that they had never seen that
man before. Miss Surratt remarked that
that ugly man was not her brother, and she
thought whoever called him so was no gen
tleman. He had his cap off at that time. I
did not hear her deny that she had ever seen
him. I do not remember whether the officers
called Mrs. Surratt out to see .Payne at the
time of his arrest at the house; I remained
in the parlor all the time.
Mrs. Eliza Holahan
For the Defense. — May 25.
By Mr, Aiken.
I boarded with Mrs. Surratt from the 7th
of February until two days after the assas
sination. I know the prisoner at the bar
who called himself ""Wood," [Payne;] I
saw him at Mrs. Surratt's in February, and
the second time, I think, about the middle of
March. He was introduced to me. as Mr.
Wood, but I never exchanged a word with
him on either visit I asked Miss Anna Sur
ratt who he was, and she said he was a Mr.
Wood, a Baptist minister. I said I did not
think he would convert many souls; he did
not look as -if he would. He was there but
one night on his first visit, and on the sec
ond, two or three days, I think; it was after
the inauguration. I have seen the prisoner
Atzerodt at Mrs. Surratt's, though I never

DEFENSE OF MRS. MARY E. SURRATT.

133

heard of him by that name ; he called him
self, and the young ladies called him, " Port
Tobacco." I saw him come in at times, and
he dined there once or twice. 1 heard Mrs,
Surratt say she objected to Mr, Atzerodt; she
did not like him, and that she would rather
he did not come there to board, I can not
say that I was intimate with Mrs, Surratt;
I liked her very much ; she was a very kind
lady to board with ; but I was more intimate
with her daughter than I was with her,
Q. In all the time you boarded in her
house did you ever hear Mrs, Surratt say any
thing with reference to the existence of a
conspiracy to assassinate the President ?
Assistant Judge Advocate Bingham ob
jected to the question. The law so heJges
about this matter of crime that those who are
charged with it are never permitted to prove
their own declarations in their own favor, be
cause, if it were so, the greatest crirainal that
ever cursed the earth and disgraced our com
mon humanity could make an abundant
amount of testimony out of the mouth of the
most truthful people living.
Mr. Aiken replied, that if the witness had
heard Mrs. Surratt make any remarks with
reference to a conspiracy, and disclosed to her
any knowledge of that fact, it would be val
uable evidence on the part of the Government,
and it would be just as valuable to the defense
if she did not
The question was waived. \
I have seen John Wilkes Booth at Mrs,""
Surratt's three or four times. When he called,.
he spent most of his time in company with;
Mrs, Surratt, I believe ; he would ask for Mr,;
John Surratt, as I understood; if he was not
there, for Mrs, Surratt -^ '
Mrs. Surratt's eyesight was defective. I
never saw her read or sew after candlelight.
I went to Church with Mrs. Surratt during
Lent very often; she was very constant in
her religious duties.
I have not seen John Surratt since early
in March, when he was last at home.
Gboege B. Woods.
^or the Defense. — May 25.
I reside in Boston. I have been in the
habit of seeing, in Boston, photographs of
the leaders of the rebellion exposed for sale,
the same as Union celebrities.
Q. Have you not seen them in the pos
session of persons supposed to be loyal ?
Assistant Judge Advocate Bingham ob
jected to the question as immaterial.
Mr. Aikbn waived the question.
Augustus S. Howell.
For the Defense— May 27.
My name is Atigustus Howell. I first be
came acquainted with Mrs. Surratt and John
H. Surratt about a year and a half ago, at Sur

rattsville. I was present one evening, when
she handed me a newspaper to read for her;
and 1 called one evening at her house, about
the 20th of February, and, although the gas
was lit in the hall, she failed at first to
recognize me
I met Louis J, Weichman once at Mrs
Surratt's; I remained there two days or more,
I had no particular business, and I went to
Mrs, Surratt's because I knew them, and
because it was cheaper than at an hotel.
When I saw Mr, Weichman I showed him
a cipher, and how to use it Weichman then
made one himself
[The cipher found among Booth's effects was exhibited
to tho witness.]
The cipher I showed to Mr. Weichman
was the same as this,
Q, Did Mr. Weichman at that time give
you any information in regard to the num
ber of prisoners that we had on hand?
Assistant Judge Advocate Bingham objected
to the question, inasmuch as Mr. Weichman
was nevet asked any question in relation to
that matter in his cross-examination.
The question was waived.
I had some conversation with Mr. Weich
man with respect to his going South; he
said he would like to go South, or intended
to go South.
Q, Did he say any thing, in connection
witli his wishes to go South, of his sympa
thies ?
Assistant Judge Advocate Bingham ob
jected to the question, inasmuch as Mr.
Weichman had not been asked, on his cross-
examination, whether he had stated any thing
to Mr. Howell about his sympathies at that
time and place.
— The question was waived,
I Mr. 'Weichman said he would like to go
South with me, but he was not ready, he said,
to go at that time; but as soon as he got his
business arranged he was going. He asked
me if I thought he could get a position in
Richmond ; I told him I did not know whether
he could or not, as the wounded and invalid
soldiers generally had the preference in the
offices there by an order of the War Depart
ment He told me that his sympathies were
with the South, and that he thought it would '
ultimately succeed. I believe he said he had
done all he could for that Government- — re
ferring to the South. We had some conver
sation in regard to the number of prisoners
on hand, and he stated to me the number of
Confederate prisoners the United States Gov
ernment had on hand, and the number they
had over that of the Confederate Government,
I doubted it at the time, but he said it would
not admit of doubt; that he had the books
in his own office to look at
In that conversation, I think, Mr. Weich
man said he had done all he could for the
South; he expressed himself as a friend of
the South, as a Southern man or a secesh
sympathizer would, j

134

THE CONSPIRACY TRIAL.

Cross-examined by Assistant Judge Advocate
Burnett.
Before the war, I resided principally in
Prince George's County, Md, ; for about two
years, off and on, I have lived in King
George County, 'Va,
, Q, What has been your business for the
last year and a half?
Mr, Aiken. I object to the question. In
the examination in chief, the witness was
asked nothing at all with reference to his
business, one way or the other. I do not
object to his stating it, if he wishes to do so,
but I do not think it is relevant
Assistant Judge Advocate Buenett, The
Court has the right to know the status of the
witness. We have a right to know whether
his employraent was loyal or disloyal, and
whether that fact was known to the faraily
of Surratts. It is always competent to give
to the Court the full status of the witness
during the time about which he testifies. It
is but the ordinary course of cross-examina
tion. General Wallace. I should like to hear
the reason of the objection.
Mr. Aiken. It is objected to, first, because
no question was asked the witness in the ex
amination in chief, in refereuce to what his
business has been ; and, secondly, because it
is entirely irrelevant to the issue now before
us, in every way and shape.
The Commission overruled the objection,
Mr, Aikbn. I now object to the witness
answering the question. He is not obliged
to do so, if his answer will tend in any way to
criminate himself as to any thing in which
he has been engaged; and if he does not
wish to answer the question, he has the privi
lege not to do it
Assistant Judge Advocate Buenett. If it
is placed on the ground of personal security,
if the witness claims that privilege at the
hands of the Court, he can make that claim,
and I will not press that portion of the ques
tion, [To the witness,] It is your right, and
I apprise you of it now, to claim protection at
the hands of the Court against any matter
that will criminate yourself
Witness. I have had no particular occu-
.pation since I came out of the Confederate
army. I was in the First Maryland Artillery
of the Confederate service, during the first
year of the war, up to July, 1862, I believe.
Since then I have not been employed in any
particular business. I have been to Rich
mond occasionally. Sometimes I went once
a month, sometimes once in two or three
months. I do not think I have been but
twice the last year. I was there in Decem
ber, and again in February, I think. Some
one might have gone with me in December,
but I do not remember who it was. In Feb
ruary, some half dozen accompanied me, but
they were principally from the neighborhood
in the county. I had no particular business

in Richmond but to see some friends, and to
get some drafts. Our Maryland boys gen
erally sold drafts, and I used to go down
to Richraond occasionally to buy drafts for
them. Q. On whora did you buy drafts?
A. That would be implicating others, and
I do not wish to answer that question.
Any thing relative to myself I will answer
willingly. Assistant Judge Advocate Burnett. Pro
tection on the stand only applies to yourself,
not to others.
Witness, They were upon some of my
friends in Maryland, They were not upon
any of the accused, or any person in Wash
ington. I never carried any dispatches in
my life.
I have been at Richmond about half a
dozen times since I have known the Surratts.
I can not say that I was known to my
friends as a blockade-runner.
My name is Augustus Howell; that is my
correct name. I generally write my name
A, S, Howell, "S" stands for Spencer, My
friends call me Spencer, but I seldom use_,
the "S" in my name.
The cipher I showed to Weichmann I
learned out of a magician's book. I have
been acquainted with it for six or seven
years. I never met a person by the name of Mrs.
Slater at Mrs. Surratt's house. I met a lady
by that name in Washington, about the 20th
or 22d of February, and had some conver
sation with her in frontof Mrs. Surratt's house.
We went to Virginia together. John H. Sur
ratt was with her in the buggy. I met Mrs.
Slater in Richmond about the last of Feb
ruary. It was soon after I saw her in front
of Mrs. Surratt's house, that I met her in
Richmond. I staid about two days and a half at Mrs.
Surratt's in February. I told them that I
had been to Richmond. I do not know that
they knew my business. I had some con
versation with Mrs, Surratt, and judged she
knew I was from Richmond. I think Atze
rodt was at Mrs. Surratt's house during the
time I was there, but I never saw Payne.
I used to meet Dr. Mudd occasionally,
when I was at Bryantown. He never sent
messages by me to Richmond, nor did I
bring any back to him. I was at his house
about a year ago, but never made it a stop
ping-place. I had lost a pistol which I left
at a house in Bryantown, and I asked him
to go there and get it for me, but he did not
I was going up into the country, and did not
miss the pistol until I was passing Dr. Mudd's
place. It was because his house was the
nearest that I went in and asked him to get
it for me.* '
I brought one draft from Richmond, from
young Marriott, in Prince George's County,
Maryland, for his sister, of $200, and for which
I paid at the rate of $800 of Confederate for

DEFENSE OF MRS. MARY E. SURRATT.

135

$100 of United States money. Another from
young Tolson, which I have not yet collected,
and another from a young man by the name
of Chew, on his brother in Anne Arundel
County. I do not know any thing of Weichman's
having quarreled with the Surratt family,
because he was loyal aud they were disloyal,
nor did I know that it was his intention to
glean from me all I knew for the purpose of
turning me over to the military authorities;
if so, he did not succeed. I never took the
oath of allegiance to the United States.
By Mr. Ewing.
I frequently saw Dr. Mudd at Bryantown
before the war. I have never had any com
munication with him, except in regard to that
pistol.* Miss Anna Ward.
For the Defense, — June 3.
By Me. Aikbn.
I reside at the Female [Catholic] School,
on Tenth Street, Washington. I have been
acquainted with Mrs. Surratt between six and
eight years. I know Mrs. Surratt's eyesight
to be defective; she has failed to recognize
me on the street On one occasion, at her
house, I gave her a letter to read, and she
handed it back, saying she could not see to
read by gaslight I am near-sighted myself
On one occasion something was pointed out
to me, and I was laughed at for not seeing
it, as it was pretty close by, and Mrs. Surratt
remarked that she supposed I was something
like herself; I could not see ; and that she
labored under the same difficulty.
I have not been very intimate with Mrs,
Surratt She always bore the character of a
perfect lady and a Christian, as far as my ac
quaintance with her extended.
Cross-examined by Assistant Judge Advocate
Bingham.
My last visit to Mrs, Surratt's house was on
the day of the assassination. Some time in
February or March, perhaps, I went to the
Herndon House: to ask if there was a vacant
room. I did not engage a room.; I simply
went there to ask if there was a vacant room.
I said nothing about its being for a delicate
gentleman, for I did not known for whom it
was intended. I have met Mr. Weichman,
Mr. Holahan, and Mr, Booth at Mrs, Surratt's,
hut do not know that I ever met any of the
prisoners at the bar there, I can not see them
well enough to know them, but do not think
I have. I received two letters from John H. Sur
ratt, post-marked Montreal, C. E,, for his
mother. I do not recollect the date of the
first I received; it was probably one or two

•We can not present the contradictions and prevarica
tions of this witness without occupying many pages In
each case we give his last statements, many oi tliem flatly
contradicting those made a few moments before.

days before the second, and that I received
on the day of the assassination; it was that
which took me to Mrs. Surratt's on that day.
He inclosed them in letters to me, I answered
his letters to me, and left them with his mother,
as I supposed she would be glad to hear from
him. I have not seen them since.

Rev. B. F. Wiget.
For ihe Defense, — May 25.
By Mr, Aiken.
I am President of the Gonzaga College, F
Street, between Ninth and Tenth. Itis'about
ten or eleven years since I became acquainted
with Mrs. Mary E, Surratt I knew her well,
and I have always heard every one speak very
highly of her character as a lady and as a
Christian. During all this acquaintance, noth
ing has ever come to my knowledge respecting
her character that could be called unchristian.
Q, Is there an institution in the city of Rich
mond for theological studies?
Assistant Judge Advocate Bingham. I ob
ject to that question as wholly immaterial.
What is the necessity of inquiring into that?
You might as well ask whether it was an
octagon or not; whether it was two stories
or forty stories high. If immaterial questions
were allowed to be asked and answers ob
tained, and the witnesses contradicted, the
case would never end, if the Court lived to be
as old as Methusalah, provided a succession
of counsel could be obtained to keep up the
fire. Wharton's American Criminal Law, p.
434, section 817, says : " The credit of a wit
ness may be impeached by proof that he has
made statements out of court contrary to what
he has testified at the trial. But it is only in
such matters as are relevant to the issue that
the witness can be contradicted. Therefore,
a witness can not be examined as to any dis
tinct collateral fact irrelevant to the issue for
the purpose of impeaching his testimony after
ward by contradicting his statements."
Mr. Aiken said he would recall the recol
lection of the learned Assistant Judge Advo
cate to the fact that the answer of Mr. Weich
man was on the record that he was a stu
dent of divinity, and that he desired to go to
Richmond to continue his studies there. Mr.
Weichman was interrogated as to these
points, and the foundation was thus laid for
impeaching his credibility as a witness.
These questions to the witness now on the
stand (which I have a right to put) are for
that very purpose.
General Wallace. The witness Weichnian
did not state that there was a theological
academy, or any thing of that kind, in Rich
mond. Mr. Aiken. He said that he belonged to
that diocese, and wanted to go to that diocese
to finish his studies.
The Judge Advocate. He said nothing
about a theological school there. He said he

136

THE CONSPIRACY TRIAL.

wished to go there for the purpose of continu
ing his theological studies.
Mr. Aikbn. The inference was, if he was
going to complete his theological studies, that
there was a school there.
Assistant Judge Advocate Bingham. You
do not propose to contradict inferences I sup
pose? The Commission sustained the objection.
Cross-examined by the Judge Advocate.
I have a personal knowledge of her gen
eral character as a Christian, but not of her
character for loyalty. My visits were all
short, and political affairs were never dis
cussed; I was not her pastor, I first became
acquainted with Mrs, Surratt from having
had two of her sons with me. I have seen
her perhaps once in six weeks. I can not say
I remember hearing her utter a loyal senti
ment since the beginning of the rebellion;
nor do I remember hearing any one talk about
her as being notoriously disloyal before her
arrest Rev. Francis E. Boyle.
For the Defense. — May 25.
By Mr. Aiken.
I am a Catholic priest My residence is at
St Peter's Church. I made the acquaintance
of Mrs. Mary E, Surratt eight or nine years
agtf, and have met her perhaps three or four
times since. I have heard her always well
spoken of as an estimable lady, and never
heard any thing to her disadvantage. I have
never heard her utter any disloyal sentiments.
Cross-examined by the Judge Advocate.
I have never heard much of her sentiments,
and do not undertake to say what her reputa
tion for loyalty is.
Rev. Charles H. Stonestreet.
For the Defense, — May 25.
By Mr. Aikbn.
J am the pastor of St Aloysius Church in
this city. I first became acquainted with
Mrs. Mary E. Surratt twenty years ago. I
have only occasionally seen her since. Dur
ing the last year or two, I have scarcely seen
her.. I have always looked upon her as a
proper Christian matron. At the time of my
acquaintance with her, there was no question
of her loyalty.
Cross-examined by the Judge Advocate.
I do not remember having seen Mrs. Sur
ratt, though I may have done so transiently,
since the commencement of the rebellion ;
and of her character for loyalty since then
I know nothing but what I have read in the
papers.

Rev, Peter Lanihan.
For the Defense, — May 26.
By Me. Aikbn.
I am a Catholic priest, and reside near
Beantown, St Charles County, Maryland. I
have been acquainted with Mrs. Mary E.
Surratt, the prisoner at the bar, for about
thirteen years; intimately so for about nine
years. In my estimation, she is a good
Christian woman, and highly honorable, I
never heard her ou any occasion express
disloyal sentiments.
Cross-examined by Assistant Judge Advocate
Bingham.
Mrs. Surratt's character in her neighbor
hood is that of a good Christian woman. I
have conversed with her since the rebellion
in regard to current events and public affairs,
and do not remeraber having heard any
expression of disloyal sentiments, and I have
been very familiar with her, staying at her
house. I do not remember having heard her
reputation for loyalty spoken of
Rev. N. D. Young.
For the Defense. — 3{ay 26.
By Me. Aikbn.
I am a Catholic priest; I reside at the
pastoral house of St Dominick's Church, on
the Island, on Sixth Street, in Washington
City. I became acquainted with Mrs. Mary
E. Surratt about eight or ten years ago. My
acquaintance has not been intimate, I have
occasionally seen her and visited her. I had
to- pass her house about once a month, and
generally called there — sometimes staid an
hour. Her reputation, as far as I have
heard, is that of a Christian lady, in every
sense of the word. I have heard her spoken
of with the greatest praise, and never heard
any thing of her but what was highly favor
able to her character. She never expressed
any disloyal sentiments to me.
Cross-examined by the Judge Advocate.
I never heard her speak upon current
events in any manner, loyal or disloyal.
William L. Hoyle.
For the Defense. — May 26.
By Me. Aikbn.
I reside on Missouri Avenue, Washington,
I am not particularly acquainted with Mrs.
Surratt I have a store acquaintance only ;
I know nothing of her, and have heard
nothing against her. I never heard her
express any disloyal sentiments ; I never had
any political conversation with her.
I know John H. Surratt by sight I last
saw him in this city about the end of Feb
ruary or the beginning of March. Just

DEFENSE OF MRS. MARY E. SURRATT

137

prior to tho araft I saw him in the store In
appearance he is rather delicate looking;
tall, about six feet in hight, of light complex
ion, and about twenty-two or twenty-three
years of age, I think he had neither goatee
nor moustache when I saw him, though I
will not be positive.
Cross-examined by Assistant Judge Advocate
Bingham.
I never heard Mrs, Surratt utter any polit
ical sentiment, loyal or disloyal; it was only
as a customer that I knew her.
John T. Hoxton.
For the Defense. — June 13.
By Mr. Aiken.
I have resided in Prince George's County,
Maryland, about a mile from Surrattsville'
for the last forty-five or fifty years. I have-
known Mrs. Mary E, SurTatt for a number
of years, but mostly since she came to reside
in our neighborhood, about ten or twelve
years ago. Since the rebellion I have not
met her very frequently. Of late years I
have gone from home but little ; I have not
visited her house often, and when there I
have staid but a short time. I never had
any conversation with her on political sub
jects. Her reputation in the neighborhood,
as a truthful. Christian, kind lady, is very

good, I believe. I never heard any thing to
Uie contrary.
I am very well acquainted with J. Z,
Jenkins, He was a good Union man up to
1862, I think. At the election of that year
he was arrested, and since then I have under
stood that he had secession proclivities, I
believe that he once assisted in defending the
Union flag with arms in his hands, Mr,
Jenkins was a good Union man two years
ago, but I have known very little of him
since that tirae. The report in the neighbor
hood is, that he is not at this time a very
loyal man. I have never known of Mr.
Jenkins committing a disloyal act, nor have
I heard from him an expression unfriendly
to the Government, during the past two years,
I know the Rev. W. A, Evans, There is
no Presbyterian Church in Prince George's
County that I know of I can not exactly
say what is the reputation of Mr, Evans in
that neighborhood for veracity. Mr. Evans
was impeached some years ago.
Assistant Judge Advocate Bingham. You
need not state that
Q. From your knowledge of his character
aud his reputation, would you believe hira
on oath where any of his interests were
involved ?
Assistant Judge Advocate Bingham ob
jected to the question. The- witness should
first state whether he knew the general repu
tation of Mr. Evans for truth among his
neighbors,

of the Rev. Mr. Evans in your community 
in your neighborhood?
A. No, except by rumor.
By Assistant Judge Advocate Bingham.
Q, In Evans's neighborhood?
A, Evans kept school in the neighborhood
where I live, some ten or twelve years, ago,
Q. The question is as to his reputation now.
A, I know nothing of his reputation now.
By Mr. Aiken.
Q. Has his reputation in his neighborhood,
and where he has taught school, been noto
riously bad ?
Assistant Judge Advocate Bingham, I
object to any such question. The witness
has disclosed the fact that he does not know
what the present reputation of Mr, Evans
among his own neighbors for truth and verac
ity is. The law, in its humanity and in its
justice, has said that no man called into a
court as a witness shall be put upon trial for
every act of his life; the question is as to his
general reputation at the time he appears as
a witness. Now it is proposed to go back
ten years. It is supposed in law that in ten
years a man can live down a slander. ^
The question was waived.
[See testimony of Eev. W. A. Evans, page 174.]

William W. Hoxton.
For the Defense, — June 13.
By Mr. Aiken.
I reside about a mile from Surrattsville,
in Prince George's County, Md. I have
known Mrs, Surratt, the prisoner at the bar,
for about twelve years. She has always been
looked upon as a very kind lady — to the sick
especially — and a church-going woman. I
have seen her very often during the last four
or five years, and never heard her utter a
disloyal word.
I am acquainted with J, Z, Jenkins; he
lives about a mile and a half from rae. He
was the strongest Union man I ever saw when
the war broke out; but I have heard that he
changed when he lost his negroes, though I
never heard him say any thing disloyal when
he lost them, and I have never heard of any
disloyal or overt act of his against the Gov
ernment. Rachel Se.mus (colored.)
For the Defense, — June 13.
By Mr. Aiken.
I have lived at Mrs. Surratt's house for si.x
years; was hired to her by Mr, Wildraan,
She treated her servants very well all the time
I was with her; I never had reason to com
plain, I remember Mrs, Surratt has fed
Union soldiers at her house, sometimes a
good many of them; and I know that she
always tried to do the best for them that she

Q. Are you acquainted with the reputation I could, because I always cooked for them

138

THE CONSPIRACY TRIAL.

She always gave them the best she had,
and very often she would give thepi all she had
in the house, because so many of them came.
I recollect her cutting up the last ham she
had in 'the house, and she had not any more
until she sent to the city. I never knew of
her taking any pay for it I never heard her
express herself in favor of the South ; if she
used such expressions, I did not hear them.
Her eyesight has been failing for a long time ;
very often I have had to go up stairs and
thread her needle for her because she could not
see to do it; I have had to stop washing to go
up and thread it for her in the day-time, I
remember one day telling her that Father
Lanihan was at the front gate, coming to the
house, and she said, " No, it was not him, it
was little Johnny" — meaning her son.
David C. Reed.
Recalled for ihe Defense, — June 3.
By Me. Aikbn.
The last time I saw John H. Surratt was
about halfpast 2 o'clock on the day of the
assassination, the 14th of April last I was
standing on the stoop of Hunt & Goodwin's
military store, and Mr. Surratt was going
past the National Hotel. I noticed his hair
was cut very singularly, rounding awav down

on his coatrcollar. I did not notice whether
he had whiskers or moustache, as I was more
attracted by the clothing he had on. His
appearance was very genteel, remarkably so.
He did not look like a person just from a
long journey; his clothing was clean, and
reraarkably nice and genteel. I can not say
that I have had any connection with Mr.
Surratt since he was quite a child ; I knew
him by sight, and we had just a bowing or
speaking acquaintance as we passed each
other. Cross-examined by Assistant Judge Advocate
Bingham.
[A recent and large-sized photograph of John H. Surratt
was handed to the witness. |
This is a fair picture of John H. Surratt;
the only thing I notice is that his hair is not
cut as I noticed his on the 14th of April, but
the shape of the coat, the style in which it is
cut, is precisely th£ same.
By Me. Aiken
If that picture had been shown to me with
out being told it was the picture of Mr. Sur
ratt, I do not know that I should recognize it,
if I saw it hanging in a window ; but if I
lopked at it and examined it, I should recog
nize it as John H. Surratt It is a remark
able face.

TESTIMONY IN REBUTTAL.

John Ryan.
For the Prosecution. — June 7.
I have known Louis J, Weichman about a
year, not perhaps intimately, but he has been
quite friendly and communicative in his con
versation with me. As far as my knowledge
goes, he has always borne a good character
as a moral young man, and I know nothing
against his character for truth. I do not be
lieve he would tell a falsehood, and I would
believe him whether under oath or not
As regards his loyalty, 1 only remember
one conversation that distinctly bore on that
question, and from that conversation my im
pression was that he rejoiced at the restora
tion of the Union. I have no recollection
of his ever expressing sentiments that left a
contrary impression on my mind.
Cross-examined by Me. Aiken.
I was not a visiting friend of Mr. Weich
man; our ^meetings were casual. I am a
clerk in the War Department, but in a differ
ent department to Mr. Weichman's. He
never represented himself to me as being in
confidential relations to that department as

a detective. I have never heard any thing
said against his character relative to money
matters, veracity, or any thing of that kinil
Frank Stith.
For the Prosecution. — June 7.
I have known Louis J. Weichman in
timately for about sixteen months. His repu
tation as an honest, truthful man is very good
indeed, as far as I have heard. I have never
heard it questioned. We were both in the
public service, in the same office. His repu
tation for loyalty was excellent, and he was
open and outspoken in his friendship for the
Government He was a member of the vol
unteer military organization formed for the
defense of this city.
Cross-examined by Mr. Aiken,
My relations to IMr Weichman, outside of
the office, were not very intimate. I never
heard of his being a detective in the depart
ment It might have been considered that
a refusal to join that military organization
would be equivalent to a dismissal from the
office. Mr. Weichman did not always wear

TESTIMONY IN REBUTTAL.

139

blue pantaloons about the office. I can not
say that he only wore his blue pantaloons on
drill and rainy days, or that he made use of
hateful expressions on putting them ou, and
immediately retired to change them for his
citizen's dress when drill was over.
James P. Young.
For the Prosecution, — June 7.
I am in General Meig's office in the War
Department I am intimately acquainted
with Louis J. Weichman ; have known him
since 1856. I was a college class-mate of his
at the Philadelphia High School; we both
entered it in 1856. He remained at that col
lege for two or three years, then left and went
to Maryland to another college. I frequently
heard from him, and about eighteen months
ago I met him in this city, and have been
very intimate with him since. His reputa
tion as an honest and truthful man is excel
lent, and his character without any reproach
whatever. I have had many conversations
with him on political matters, and he was
always most free and unequivocal in his ex
pressions of loyalty to the Government I
regard him as a very radical, loyal man.
Both he and I are members of the Union
League. Cross-examined by Mr. Aiken.
I have never known him as a detective in
the employ of the Government
P. T. Ransford.
For the Prosecution, — June 7.
I have known Louis J. Weichman since
last September, I am a clerk in the War
Department, and he was a clerk in another
branch of the War Department; he has
visited me at my own rooms. His reputation
for integrity and truth I have always regarded
as being very good indeed. I have had very
little conversation with him about political
matters, and am not competent to give an
opinion as to his loyalty.
Cross-examined by Mr. Aikbn.
Mr. Weichman and myself belonged to
the same military organization, called the
War Department Rifles. A refusal to be
come a member of that organization I un
derstood to be equivalent to a dismissal from
office. I have simply met Mr. Weichman as
a friend.
John T. Holahan.
For the Prosecution. — June 7.
During the winter and spring, and up to the
night of the assassination, I boarded with
Mrs, Surratt While there, I saw Atzerodt
several times, though I did not know hini by
that name; he seemed to be with John Sur
ratt most of the time. I also saw Payne there

once at breakfast The name by which 1
knew him was Wood. John Wilkes Booth
I have seen there frequently. I have seen
him in the parlor with Mrs. Surratt and the
young ladies. I never knew the prisoner,
David E. Herold, to call there, I remember,
about two weeks before the assassination, see
ing a carriage at Mrs, Surratt's door, and a
person, whom I afterward learned to be Mrs.
Slater, got into it one morning as I was dress
ing. Mrs, Surratt was on the pavement talk
ing to this person as she was getting into the
carriage. John Surratt was with this Mrs.
Slater. This was the last time I saw John
Surratt previous to the 3d of April. The last
time I saw him was on the night of the 3d
of April, the day on which the news of the
fall of Richmond was received. He knocked
at the door of my room at about 10 o'clock,
after I was in bed, and wished me to exchange
some gold for greenbacks; and I gave him
$60 in paper for $40 in gold. He said he
wanted to go to New York, and that he could
not get it exchanged in time to leave by the
early train in the morning,
I never knew any thing of Mrs, Surratt's
defective eyesight while I lived with her ; I
do not remember its being alluded to by any
member of the household.
Cross-examined by Mr. Aiken.
Atzerodt passed by a nickname when he
was at Mrs. Surratt's, I was usually frora
home in the evening, and therefore can not
say whether Mrs. Surratt could read or sew
by gaslight I never heard any political con
versation at Mrs, Surratt's, and never heard
of any plot to capture the President, or of
any plot or conspiracy to assassinate the Presi
dent, or any members of his cabinet; if I had,
I should have endeavored to prevent it
By Mr. Ewing.
Mr, Ewing. I have two or three questions
to ask the witness. It is not properly a cross-
examination; but I propose to treat him as
my witness, if there is no objection.
Assistant Judge Advocate Buenett. The
gentleman announces that he desires to ask
some questions, making the witness his own ;
as we shall be entitled to rebut, there is no
objection, I never saw or knew of Mr, Judson Jarboe,
or of any person by the name of Jarboe
coming to Mrs, Surratt's, nor have I ever
knovifn of Dr. Mudd coming there; I never
heard his name mentioned.
Mrs, Surratt's house is on the south side
of H Street, about forty-five feet from Sixth
Street It is the first house from the corner
of Sixth Street; a brick house, painted
drab or lead color, with a basement and a
fiight of eight or ten steps up to the front
door. Q, Will you state whether Mr. Weichman
gave himself up after the assassination of the
President?

140

THE CONSPIRACY TRIAL.

Assistant Judge Advocate Burnett. You
need not state that
Me Ewing, My inquiry in regard to Mr.
Weichman is for the purpose of proving acts
in regard to him in association with Booth
and other men connected with the conspiracy.
I want to show by his acts at that time that
he was really a guilty party in the plot to
kill the President If I show that he was,
and that instead of being indicted he appears
here turning State's evidence, it will tend very
much, I think, to impair the value of his
testimony. It is not the ordinary form of im
peachment of a witness by laying the foun
dation in his examination for contradicting
his statements upon the stand. That is not
the purpose, but it is to show that he occu
pied the position of a co-conspirator, and that
he comes here clearing himself by being a
swift witness against others.
Assistant Judge Advocate Bingham, What
the gentleman calls the act of Weichman
never can be proved by any human being but
by Weichman himself He has testified that
he was taken into custody. Nobody doubts
it He has testified that he was in custody
when he was brought on the stand. Nobody
questions it. It is utterly incompetent for the
gentleman to prove any thing he said about
that matter, until he has first laid the foun
dation by a cross-examination of Weichnian,
and then it is never competent, except by
way of contradiction. There is no such foun
dation laid, and it is therefore incompetent
and illegal at any stage of the case, either now
or any other day.
The Commission sustained the objection.
I saw Mr. Weichman the morning after the
murder; he was a good deal excited. About
2 o'clock on that morning, Mr. McDevitt
and Mr Clarvoe, detectives of the Metro
politan Police, entered Mrs. Surratt's house.
Mr. Weichman opened the door for them.
These officers were in the passage when ray
wife woke me up. Whether Mr, Weich
man was in bed or dressed when the officers
called, I do not know. I slept in the front
room, and he in the back room on the same
floor. Q. Was Weichman then arrested?
A, I took Weichman down myself to Super
intendent Richards.
Q, When?
A, In the morning, after breakfast
Q, When you took him down, did you know
he was to be arrested ?
A.ssistant Judge Advocate Bingham ob
jected to the question, and it was waived,
Q, How did you come to take him down ?
A, From an expression he made to me.
Assistant Judge Advocate Bingham. You
need not state any thing he said.
Q, Was that expression the expression of
a wish to be delivered up ?
A, No, sir.
Assistant Judge Advocate Bingham. You

need not state any thing about his e'xpres-
sions. By Assistant Judge Advocate Burnett,
The excitement on account of the assassin
ation was very general throughout the city.
It was some weeks after Mrs, Slater had been
there that Mrs. Surratt told me the team in
which John Surratt and Mrs. Slater went
away was a hired one, and that John was
then down in the country. When Mr, Howell
was at Mrs, Surratt's, it might have been
about the 1st of March ; he remained, I think,
three or four days. James McDevitt.
For the Prosecution, — June 7.
On the night of the assassination, I went
to Mrs. Surratt's house with Mr. Clarvoe, and
several other officers of the department We
rang the bell, when a lady put her head out
of the window and asked who was there.
We said we wished to enter the house. As
she retired, Mr. Weichman opened the door;
he was in his shirt, which was all open in
front; he had his pants on, and was, I think,
in his stocking feet. He appeared as if he
had just got out of bed. He had time from
the moment we rang to dress himself to that
extent We did not arrest Mr, Weichman
then, but we did subsequently when he came
to our office. Mr, Weichman accompanied
me to Canada ; I took him to identify John
H, Surratt- He went with me willingly in
pursuit of the assassins, and was zealous and
earnest in performing the part allotted him
in the pursuit; and though he had every Of)-
portunity to escape, he did not I left hira in
Canada when I returned to New York. I
could not state, from my own knowledge of
John Surratt's writing, that the entry on
the register of the St Lawrence Hall is his.
Cross-examined by Mr. Aiken,
Mr, Weichman came to our office the
morning after the assassination, with Mr.
Holahan, Weichman made no confession in
regard to hiraself We did not find John H-.
Surratt in Canada. I saw that he was reg
istered on the books of the St Lawrence
Hall as "John Harrison, Washington, D.
C," on the 6th of April, and again by the
same name on the 18th of April, but without
any city or State address. I receivedthe first
intimation that John H. Surratt would be
likely to be found in Canada from Mr.
Weichman, Mrs, Surratt also told me, on
the morning after the assassination, that she
had received a letter frora hira on the Mth,
dated in Canada, We were inquiring for her
son, when she said she had not seen him for
two weeks, and that there was a letter some
where in the house, which she had received
from hira that day. I asked her for the let
ter, but it could not be found.

TESTIMONY IN REBUTTAL.

141

Andrew Kallenbach.
For the Prosecution, — June 7.
I reside near Surrattsville, Prince George's
County, Maryland, On the evening of the
17th of April last, I had a conversation with
Mr. J. Z, Jenkins, at Mr, Lloyd's house at
Surrattsville. He said that I was a liar; that
he understood I had been telling some lies on
him, and if he found it to be true, he would
give me the damnedest whipping I ever had.
He further said that if I testitied against him,
or any one connected with him, he would
give me a damned whipping. This was said
in the presence of Mr, Cottingham and Mr.
Joshua Lloyd. Jenkins had been drinking,
but I can not say that he was drunk on the
occasion. I have known Mr. Jenkins about
ten years, I think. He has always said in
my presence that he was a Union man ; and
I have never heard him express any disloyal
sentiments. I can not say what his reputa
tion for loyalty is in the neighborhood.
Cross-examined by Mr. Aiken.
Nothing had been said by me that night to
induce Jenkins to call me a liar. I have a
son in the rebel army; he went there of his
own choice, and without my consent He
returned about three weeks ago. I judge he
has been in the rebel army during the war,
I did not place any restrictions in the way of
his going.
I have lived as a neighbor of Mrs. Surratt's
for many years. She had never been more
than neighborly with me and my family, nor
has she given things to my family more than
any neighbor will do for another. In politics
I- have been a Democrat all my life. I have
never expressed any disloyal sentiments, and
have never said that I wished" the South
would succeed.
E. L. Smoot.
For ihe Prosecution, — June 2.
I live ih Prince George's County, Mary
land, about a mile from Surrattsville. I am
acquainted with J. Z. Jenkins of Surrattsville,
Mrs. Surratt's brother. He was represented
as a Union man during the first year of the
war, but after that, by most persons, he was
looked upon as a Southern sympathizer; I
know of no exception to this among the
Union men. I never heard his reputation for
loyalty talked of much, but I have heard him
say, I think, he was a friend to the South,
ahd an enemy to the Government during the
struggle. I know Joseph T. Nott, of Surrattsville,
On the day after the President's murder, I
met two young men connected with General
Augur's head-quarters, one of whom told me
that John H. Surratt was supposed to be the
man who attempted to kill Mr. Seward. I
asked Mr. Nott if he could tell me where
John Surratt was; he smiled and told me

he reckoned John was in New Yorlv by that
time, I asked him why he thought so, and
he said, " My God I John knows all about the
murder; do you suppose he is going to stay
in Washington and let them catch him ?" I
pretended to be very much surprised and said,
" Is that so ?" He replied, " It is so, by God 1
I could have told you that this thing was
coming to pass six months ago," Then he
put his hand on my shoulder and said, " Keep
that in your own skin, my boy. Don't
mention that; if you do, it will ruin me for
ever," The Mr. Nott who said this is the
Joseph T. Nott who testified here to-day, I
have heard him speak against the Govern
ment frequently, and denounce the adminis
tration in every manner and form ; I heard
him say that, if the South did not succeed,
he did not want to live another day.
Cross-examined by Me. Aikbn.
I have a brother-in-law named William
Ward, who was in the Southern army; he
was brought home under a guard of soldiers.
I did not, on the occasion of his return, tell
him that he had done just right, and that I
wished I had been there to help him. I did
not express opposition to his coming back in
any way, nor did I express sentiments against
the Government and friendly to the South.
I begged my brother-in-law to take the oath
and remain at home.
At the breaking out of the rebellion, I re
sided in Charles County, and was a member
of Captain Cox's military company, which
was organized before the war. It disbanded
in tjje spring of 1861. I withdrew from it as
soon as a rebel flag was brought and pre
sented to it
I have known Mr. Jenkins for about five
years, I think. I do not exactly recollect
when I had any political conversation with
him. The last time I talked with him was
about the 1 st of April last, at Upper Marlboro.
He came to me and told me that Roby was
applying for the position of constable in the
county, and asked me why I did not apply
for it I told him I did not wish it He said,
" You ought to take it to keep Roby from
getting it;" and he added that he had told
the County Comraissioners that if they ap
pointed Mr. Roby, or any other man of his
party, he would spend every dollar he had to
defeat them, if they became candidates for
any other oflSce.
I did not vote at the last Congressional elec
tion ; I did not know any thing about either
of the candidates. I have not been an active
Union man. I have not meddled either way.
The conversation with Mr. Nott occurred in
the bar-room at Surrattsville, on the 15th of
April. It was all the conversation we had at
that time. He did not stats what time he
last saw John Surratt, nor what reason he
had to believe him to be connected with the
affair. Some gentlemen came in while he
was talking with me, and he had to wait on

142

THE CONSPIRACY TRIAL.

the bar. On the next day, Sunday, I commu
nicated this remark verbally to General Au
gur, Colonel Baker, and Colonel Wells. Mr.
Nott did not inform me how he knew John
Surratt was connected with it, and I did not
ask him. He only said he could have told
me six months ago that this thing was going
to happen, I never knew Mr, Jenkins to do
any thing disloyal, but he -has denounced the
administration frequently when talking with
me. I do not recollect particularly to what
he referred. I have heard many do the same
so frequently, that I do not recollect %vhatMr,
Jenkins said on any particular occasion, I
never heard any man whom I regarded as a
loyal man denounce the adrainistration.
A. V. Roby.
For the Prosecution. — June 2.
I reside close to Surrattsville,Prince George's
County, Maryland, Since June 12, 1863, I
have been enrolling officer I have known
J. Z, Jenkins since 1861, but not very inti
mately till 1863, Mr, Jenkins's reputation in
that neighborhood, during the year 1861, was
that of a Union man; but since that time he
has been looked lipon as a sympathizer with
the South, Since 1862 he has been in the
attitude of an enemy to the Government, and
has opposed all its measures, Mr, Jenkins
took the oath prescribed by the Legislature
of Maryland, and then voted.
Cross-examined by Me. Aiken.
The first time I saw Mr, Jenkins was when
he came to the armory of Captain Mark's
company, in Washington, of which I was a
meraber, Sorae tirae between April and July
of 1861 he came there begging for money for
some Union man who had been killed. The
next time I saw him was at my house, when
he was opposing the nominees of the Union
party, Dr, Bayne was a candidate for Sen
ator; Mr, Sasser was candidate for Clerk of
the County, and Mr, Grimes for Sheriff. I
think Mr, John M. Brook was the disunion
candidate for Senator; I do not know that
Mr, Brook has been in the rebel army ; I
know that he was South, and staid until he
came horae under the President's Aranesty
Proclaraation, I have been living near Surrattsville since
September, 1863. 1 have seen Mr. Jenkins
nearly every day. All this time Mr, Jenkins
has been talking against the Government At
the April election, in 1864, when we voted for
a convention to make a new constitution, he
said he had been offered office under the
damned Government, but he would not hold
office under any such damned Government
He said this before a great crowd at the polls.
I had just objec^ to his vote. I asked Mr.
Jenkins if he would vote for such a man as
Harris; he said he wanted the South to suc
ceed, and he said he would vote for Harris
against anybody. I consider a man disloyal

who opposes the acts of the administration.
I never knew of any act of disloyalty on the
part of Mr, Jenkins, except his abuse of the
Government With respect to Mr. Jenkins spending
$3,000 to sustain the Union and, the Govern
ment, I do not think he ever had it to spend.
I have never heard of his spending any thing,
except from his own lips.
DoELEY B. Roby.
For the Prosecution, — June 5.
I have known Mr. J. Z, Jenkins for several
years. For the last three years he has been
one of the most disloyal men in the county.
It is from personal knowledge of his conduct
and observations that I pronounce him dis
loyal. He got so outrageous that I had to
apply to General Wallace, at Baltimore, to
have him arrested. Since that tirae he has
behaved himself a little better. He is known
and recognized in that neighborhood as an
open and outspoken enemy of the Govern
ment I have heard him curse the President,
and damn him to all intents and purposea
He said old Lincoln, the damned old son of
a bitch, had offered him an office, but that
he would not hold office under any such
damned creature, or any such damned Gov
ernment Cross-examined by Mr. Clampitt,
I have known Mr. Jenkins for four or five
years, I was not a resident of the county
in 1861 and 1862; I was in 1863, I was
born in Charles County, and raised in Prince
George's; and I have been backward and for
ward through there all the time. In 1862 I
knew Mr, Jenkins very well, I knew him to
be a Union man till about three years ago.
He was a very strong Enow-Nothing, and I
was a Know-Nothing too, Jenkins aban
doned the Union party about three years
ago this fall. He lost a negro man ; and it
seemed that his loyalty to his Government,
only lasted as long as his negro was pro
tected. As soon as he lost the negro, he
abandoned his Union principles.
Tlfe flag that was raised, and which Mr. Jen
kins is said to have protected, was understood
to be a Know-Nothing fiag ; a Union flag raised
bytheKnow-Nothing party. The Know-Noth-
ings were generally considered Union men, but
there were a good many who, like Mr. Jen
kins, went over to the rebels as soon as there
was a division of parties.
There is no suit pending between me and
any citizen of Maryland; there iaa suit pend
ing against my son, Andrew V. Roby. He
was appointed Deputy Provost Marshal for
the purpose of carrying out General Schenck's
order at the election. He was ordered to have
every man arrested who interfered with the
election. This man Jenkins behaved very
badly at the election. Colonel Baker had a
company of men there, and my son suggested

TESTIMONY IN REBUTTAL.

143

to the Captain that Jenkins should be ar
rested. He was arrested, placed on a chair,
and a bottle of whisky taken from his pocket.
At night I thought the poor fellow had got
sober; he looked very penitent, and I sug
gested to the Captain that it was not worth
while to take him up to Colonel Baker's,
that he should allow him to go; and he
acted on my suggestion. The suit pending
between my son and Mr. Jenkins is for false
imprisonment By Assistant Judge Advocate Bingham.
The prosecution against my son is for at
tempting to execute the Federal authority.
The authorities, who have the management
of the case, have taken steps to have it re
moved to the United States Court
William A. Evans.
For the Prosecution, — June 5.
I reside in Prince George's County, Md.,
and am a Presbyterian minister. I was com
pelled to leave my Church in 1861 because
of my loyalty and devotion to the Union,
Prince George's County is a very disloyal
neighborhood. I know J. Z, Jenkins very well. He pre
tended to be a loyal man in 1861, as a great
many in Prince George's, St Mary's, and
those lower counties did, but I never consid
ered him a loyal raan, because, if he had been,
he would have co-operated with rae and
several others, who were endeavoring to dis
charge our duty to our country. His repu
tation and conduct since 1861, has been dis
loyal. I call him a rebel. His sympathy with
the rebels has been open and outspoken.
Cross-examined by Mr. Clampitt.
I have known Mr. Jenkins about fifteen
years. I lived in the same county as he did
in 1861, but because of my abolition procliv
ities, I was not, at times, permitted to remain
in the county or the State, There was a writ
out for me in 1861, and I was only permitted
to visit my house in secrecy. Everybody
that knows Mr. Jenkins knows that he is a
rebel. In 1861, he pretended' to be a Union
man ; but I knew him to be a hypocrite. I
judged him to be a rebel by his conduct;
saying that the country would go to ruin,
and that the South would be successful. He
said this to other gentlemen, and tB^ repeated
it to me. I held a secret commission under the
Government I know nothing of his labors
to obtain Union votes in the State of Mary

land, and if ho has done any thing to protect
the Union flag when it was threatened to be
torn down by secession sympathizers, I have
known nothing of it I have known him to
call at the difl'erent polls on election times,
and endeavor to dissuade men from voting
for the Union cause. Even at the last elec
tion, in 1864, he said he would not vote for
the damned abolition Government to save
diiybody's life.
By the Judge Advocate.
I do not know a loyal man in that neigh
borhood except Mr. Roby, his son, and a few
others. We were in danger all the time, so
much so that I had to call upon General
Augur for a guard,
I belong to the New School Presbyterian
Church, and I am a member of the Presby
tery of the District of Columbia,
John L, Thompson.
For the Prosecution. — June 5.
I have known J, Z. Jenkins ever since I
can remember. For the last two years and
six months he has not been a loyal man;
for the four years preceding that he was.
He is regarded as a disloyal man in that
community; his disloyalty is open and out^
spoken. I have had a difficulty with Mr, Jenkins,
which grew out of my being drafted, and
going to Mr. Roby's son to aid me, Jenkins
said he would cut my throat in consequence
of it, and drew his knife, a, small pen-knife,
against me. The only reason that I know
for his conduct was, that he hated the Gov
ernment Jenkins said that, in case he was
forced to fight, he would go with the South.
I lived in Mrs. Surratt's family for two
years. I do not think she was a loyal
woman. I judge so by her conversation,
which was against the Government
Cross-examined by Mr. Clampitt.
I have known Mr. Jenkins ever since he
was a child.\ He was considered a loyal man
in 1861, but not in 1863. I know nothing
of Mr. Jenkins coming to Washington to
obtain votes for the Union Government I
know of his assisting to raise the Union flag,
and with a band of men assisting in protect
ing it; but that was in 1861. 1 have heard
him make disloyal remarks many a time.
He said that he hated the Government the
worst on earth, and he said that emancipa
tion was all wrong.

144

THE CONSPIRACY TRIAL.

TESTIMONY CONCERNING GEORGE A. ATZERODT

Robert R. Jones.
For the Prosecution, — May 13.
I am a clerk at the Kirkwood House in this
city. The leaf exhibited to the Commission
is from the register of the Kirkwood House,
It contains the name of G, A. Atzerodt,
Charles County, It appears from the regis
ter that Atzerodt took room No, 126 on the
morning of the 14th of April last, I think
before 8 o'clock in the morning. I was not
present when his name was registered, and
did not see him until between 12 and 1 in the
day. I recognize Atzerodt among the ac
cused. That is the man, I think.
[The witness here pointed to the accused, G. A. Atze
rodt,] I went to the room occupied by Atzero.dt
after it had been opened by Mr. Lee, on the
night of the 15th of April, and I saw all the
articles that were found there. I can not
identify the knife, though it was similar to
the one just shown me. It was between the
sheet and the mattress. 'The bed had not
been occupied on the night of the 14th, nor
had the chambermaid been able to get into
the room the next day. A young man spoke
to Atzerodt when I saw hira standing at the
office counter. I do not know his name,
Atzerodt, before that, asked me if any one
had inquired for him within a short time.
From the book it appears that Atzerodt paid
one day in advance. I had never seen him
in the hotel before.
John Lee.
For the Prosecution. — May 13.
I belong to the military police force of this
city. On the night of the 15th of April I
went, by order of Major O'Beirne, to the
Kirkwood House. When I got there a per
son employed in the house, whom I knew,
told me there had been a rather suspicious-
looking man there, who had taken a room
the day previous. On the hotel register I
found a narae written very badly— G. A.
Atzerodt I went to the roora occupied by
this raan ; the door was locked, and the key
could not be found. With permission of one
of the proprietors I burst open the door. I
found in the room a black coat hanging on
the wall; underneath tl»e pillow, or bolster, I
found a revolver, loaded and capped. In the
pocket of the coat I found a bank-book of
J, Wilkes Booth, showing a credit of $455,
with the Ontario Bank, Montreal, and also a
map of Virginia ; a handkerchief marked
"Mary R, Booth;" another marked "F. M,"
or " F, A, Nelson ;" another handkerchief
with the letter " H" in the corner. In the

bank-book was an envelope with the frank
of the Hon, John Conners. There was also
a pair of new gauntlets, a colored handker
chief, three boxes of cartridges, a piece of
liquorice, and a tooth-brush. On the corner
of the bank-book was " J. W. Booth, 53."
On the inside of the book was " Mr. J. Wilkes
Booth in account with the Ontario Bank,
Canada. 1864: October 27; by deposit, cr.
$455," There was also a brass spur, a pair of
socks, and two collars. Between the sheets
and mattresses I found this large bowie-knife.
[These articles were all offered in evidence,]
The room in which these things were found
was No, 126, and is on the floor above the room
then occupied by Vice-President Johnson.
Cross-examined by Mr. Dostbe.
The person I met at the Kirkwood House,
who spoke of the suspicious-looking man
being there, said, " I believe that he' had a
gray coat on." I did not find the signature
of Atzerodt, or any thing in the room; I
only know it was his roora because it said so
on the register. By ihe Judge Advocate.
In coming down from room 126, to reach
the office of the hotel, a person would pass
the door of the room occupied by Vice-
President Johnson, When I came down,
there was a soldier at the door, A man of
any courage, coming down the stairs, could
easily throw a handful of snuff in the sol
dier's eyes and go right into Mr. Johnson's
room.
Lyman S. Speague.
For the Prosecution, — May 15.
I am clerk at the Kirkwood House in this
city. I went up to the roora of the prisoner,
Atzerodt, with Mr. Lee, and was present
when it was broken open. All I saw found,
as I went in, was the revolver under the
pillow. No one inquired for Atzerodt on the
Hth while I was in the office.
Cross-examined by Me. Dostee.
I was at the desk of the Kirkwood House
that day from 8 in the morning till 12 at
noon; no one called for Atzerodt during that
time. Colonel W. R. Nevins.
For the Prosecution — May 27.
I was in this city on the 12tli of April,
and stopped at the Kirkwood House. While
there, I saw that man [pointing to the

TESTIMONY CONCERNING GEORGE A. ATZERODT.

145

accused, George A. Atzerodt] in the passage
that leads to the dining-room, when he asked
me if I knew where President Johnson was.
1 believe that was his first question, I
showed him where Mr. Johnson's room was,
on the left-hand side of the passage; " How
ever," said I, " the Vice-President is now
eating his dinner," 1 thought lie was a
stranger, ^ and referred him to the Vice-
President's servant, a colored man, who was
standing behind him. He looked into the
dining-room; whether he went in or not 1
do not know.
Cross-examined by Me. Doster.
This was between 4 and 5 o'clock. There
was no other person at dinner at the time
but the Vice-President and myself This
man met me near the two or three steps that
come down into the dining-room, I showed
him where the Vice-President was sitting at
the further end of the room, with his yellow
man behind him, Atzerodt had on dark
clothes at the time, and, I believe, a low-
crowned Hack felt hat I noticed his coun
tenance more than his clothes, but I could
tell him among fifty thousand. I am now
sixty-five years of age.
By Judge Advocate Buenett.
When I first came into Court this morn-
. ing, I was asked to point out, among the
prisoners, the man I had seen at the Kirk
wood House, and I designated the prisoner,
Atzerodt, before his name was mentioned to
me, John Fletcher.
For the Prosecution, — May 17,
1 am foreman at J, Naylor's livery-stable,
in this city. On the 3d of April, Atzerodt
and another gentleman carae to the stable
with two horses, and inquired for Mr, Nay
lor, Atzerodt said they wanted to put up the
horses at the stable, and I ordered them to
be put up. The other gentleman said he was
going to Philadelphia, and that he would
leave the sale of his horse to Atzerodt; he
left, and I have not seen him since. Atzerodt
kept the horses at the stable until the 12th
of April, when he sold one of them to
Thompson, the stage contractor, and took
the other, a brown horse, away. This was
a very heavy, common work horse, blind
of one eye; it was a dark-brown, with a
heavy tail, and heavy fetlocks down to the
feet I saw Atzerodt no more till 1 o'clock, on
the 14th of April, when he and Herold came
to' the stable with a dark-bay mare. He
said he had sold the brown horse and saddle
and bridle in Montgomery County, and had
bought this mare, with saddle and bridle.
He then told me to put up the mare in the
stable, I went to my supper at half-past 6,
and when I came back the colored boy had
the mare at the door, with saddle and bridle
10

on her,
her1 said

Atzerodt paid the boy fifty cents for
keep, and asked me if that was right;
id, "Yes," "If I stay until morning,"
he asked, "how much more are you going
to charge me?" "Only fifty cents," I said.
He then went out and gtaid about three-
quarters of an hour, when he returned. He
told me not to take the bridle or saddle off
the mare until 10 o'clock, and to keep the
stable open for him. I said I would do so,
and that I would be there myself at that
time. At 10 o'clock he came after the mare.
He asked me to take a drink with him, and
I did, at the Union Hotel, corner of Thir
teen-and-a-half and E Streets, I had a glass
of beer and he drank some whisky. Return
ing to the stable he said, "If this thing hap
pens to-night, you will hear of a present," or
'¦Get a present" He seemed to me about
half-tight, and was very excited-looking. I
did not pay much attention to him. As he
mounted the mare I said, " I would not like
to ride that mare through the city in the '
night, for she looks so skittish."
'"Well," said he, "She's good upon a re
treat" I then said to him, "Your acquaint
ance is staying out very late with our horse ;"
that was Herold. "Oh," said he, "He'll be
back after awhile." Atzerodt then left, and
I followed him until he went down E Street
and passed Thirteen-and-a-half Street, and
saw him go into the Kirkwood House. I
watched until he came out and mounted the
mare again. He went along D Street and
turned to Tenth Street, to the left of D and
Tenth Streets, 1 then returned to the stable,
Washington Briscoe.
For the Prosecution. — May 18.
I have known the prisoner, George Atze
rodt, for seven or eight years. On the night
of the 14th of April, between half-past 11
and 12, he got on a Navy- Yard car at Sixth
Street I was in the car, but he did not rec
ognize me till I spoke to him. I asked him
if he had heard the news, and he said he
had, 'Then he asked me to let him sleep in
the store, down at the Navy Yard, with me.
I told him he could not His manner was
excited, and he was very anxious to sleep
there; he urged me to let him, I told him
again he could not; that the gentleman I was
with was there, and I had no right to ask
him. He rode down as far as I did, then got
out and asked me again. When he left me,
he said he would go back to the Pennsylvania
House, on C Street, where he was stopping.
Cross-examined by Mr, Doster.
I did not notice the precise time when I
met Atzerodt, but I think it was between
half-past 11 and 12. I was going to the
Navy Yard, my home, and he rode down in
the car with m"e to I Street, near my store,
and got out where I did. I waited with him
on the corner of I and Garrison Streets, till

146

THE CONSPIRACY TRIAL.

the car came back. I think it was near 12
when he got into the car again and left me,
I hardly know whether he had been drink
ing; but, judging from his manner, he was a
little excited.
John Greenawalt.
For ihe Prosecution, — May 17.
I keep the Pennsylvania House, on C
Street, between Four-and-a-half and Sixth
Streets, I know the prisoner, Atzerodt A
person frequently called on Atzerodt, who, I
have since found, was J, Wilkes Booth.
[A photograph of J. Wilkes Booth was exhibited to the
witness.] That is the person. Sometimes Booth
would come through the hall where Atzerodt
would be sitting; at other times Booth would
walk in and walk back, when Atzerodt would
get up and follow him. They have had fre
quent interviews in front of my house; and
several times, as I walked on the steps, they
would leave and walk toward the National
Hotel, where they stood and had their inter
view. On one occasion several young men fVom
Port Tobacco met Atzerodt at the Pennsyl
vania House They had been drinking, and
Atzerodt asked me to take a drink, which I
did, when he said, "Greenawalt, I am pretty
nearly broke, but I have always got friends
enough who will give me as much money as
will see me through," He added, " I am
going away some of these days, and I will
return with as much gold as will keep me all
my lifetime," This was said about the 1st
of April, nine or ten days after he first came
to my house, which was on the 18th of
March last, Atzerodt was in the habit of
stopping at my house. He never stopped
any length of time. He left my house on
the Wednesday before the assassination. He
had no baggage with him, I saw him next
on the Saturday morning after the assassin
ation, between 2 and 3 o'clock,
I had just corae in the house myself, and
had gone to my roora. About five minutes
afterward a servant came up with a five-dol
lar bill and said, "There is a man come in
with Atzerodt who wants lodging, and wants
to pay for it" So I went down and gave the
man his change. I had an uneasiness about
the thing myself; thought there was some
thing wrong,
Atzerodt asked for his old room, and I
told him it was occupied, I told him he
would have to go with this gentleman. So
I gave this man Thomas his change, and
told the servant to show him to his room,
and Atzerodt was going to follow him, when
I said, "Atzerodt, you have not registered."
Said he, "Do you want my name?" I re
plied, "Certainly," He hesitated some, but
stepped back and registered, and went to his
room. He had never before hesitated to
register his name. The man who was with
Atzerodt was about five feet seven or eight

inches high, and his weight was about one
hundred and forty pounds, I should judge.
He was poorly dressed, in dark clothes. His
pants were worn through at the back near
the heels. I took notice of that as he walked
out of the door to go to his room. He
was quite dark-complexioned and very much
weather-beaten. He had dark hair.
Neither of the men seemed excited. This
man Thomas, I noticed, kept a close eye on
me as I came in. It was Thomas who asked
for the room, Atzerodt was lying on the
settee in the corner of the room when I came
in, Atzerodt asked for his old room; I told
him it was occupied, and that he would have
to go with this man. It was a large room,
with six beds in it There were other per
sons in the room before Thomas and Atz»-
rodt went there.
Thomas had the appearance of a laboring
man. I think he wore a broadcloth coat,
though it was very much worn, but I judged
that his clothes were worn as a disguise. His
hair, moustache, and whiskers were black.
The name he gave was Samuel Thomas. He
got up about 5 o'clock and left the house,
so the servant told me, A lady who was
stopping at the house had given orders for
a carriage to take her to the 6:15 train. She
left before I got up, and as the servant was
going out of the door, this man Thomas
went out and asked the way to the railway
depot He had no baggage,
Atzerodt left shortly afterward, and walked
toward Sixth Street As the servant came
back from getting the carriage, he met Atze
rodt, and said to him, "What brings you out
so early this morning?" "Well," said he, "I
have got business," He left without paying
his bill, and I have never seen him since until
now, ''There he sits, [pointing to the accused,
George A, Atzerodt]
In March, Atzerodt showed me a revolver
he had just bought I told him I wished 1
had known he wanted one, for I had a new
one for which I had no use,
[The revolver found by John Lee, at the Kirkwood
House, was here exhibited to the witness,]
The revolver Atzerodt had was similar to
that, but I do not think that is the same.
Cross-examined by Mr. Doster.
Atzerodt left my house on the 12th of
April, He had been there from the 18th of
March, On the 27th of March he left and
staid away over night, and returned with a
man named Bailey,
Atzerodt once handed a large revolver into
the office for me to keep for him, I saw no
other arms. He may have had others; in
the office he said he had a knife.
When Mr, Bailey left my house, he wanted
to pay his stage fare, and I bought of him
some eight or nine $2,60 gold-pieces, and, 1
think, about seven dollars' worth of silver.
I can not say that Thomas and Atzerodt
were acquainted previously to their calling

TESTIMONY CONCERNING GEORGE A. ATZERODT.

147

at my house on the night of the 14th. At
zerodt did not seem sleepy, and he was not in
liquor. I did not see them come in; the
servant told me they came in together; but
that is the only reason I had for thinking
they came together. I told Atzerodt that he
would have to room with that raan, and he
had no objection. I do not recognize the
man Thomas among the prisoners.
That man [pointing to the accused, Edward
Spangler] resembles him somewhat, but is not
so dark, and he has not got the beard on that
Thomas had then. I could not be positive it
is the same man.
[The coat found by John Leo at the Kirkwood House
was handed to the witness.]
I never saw Atzerodt wear that coat.
Cross-examined by Me. Ewikg.
The man Thomas had black hair and a
heavy black moustache, and he had whiskers
and beard in front By the Court.
I do not know why Atzerodt and the man
Thomas got up at the same tirae in the morn
ing. They did not occupy the same bed. On
the Wednesday before the assassination, when
Atzerodt left, he told me he was going away,
and he said, " Greenawalt, I owe you a couple
of days' board ; will it make any difference to
you whether I pay for it now or when I come
back?" He said he was going to Montr
gomery County.
I never Saw the prisoner, O'Laughlin, at
my house. Jambs Walkee (colored).
For ihe Prosecution, — May 18.
My business at the Pennsylvania House,
in this city, is to make fires, carry water, and
to wait on gentlemen that come in late and
early. I have seen the prisoner, Atzerodt,
[pointing to the accused, George A. Atzerodt,]
at the house. He came there between 12 and
1 o'clock, I think, on Friday night, the Hth of
April; I held his horse while he went into
the bar. When he came out, he asked me
to give hira a stick or a switch, as the horse
was shy of the light; I gave him a piece of
a hoop, and he went off. I do not know
whether he had, any arms; I did not see any.
About 2 o'clock in the morning he came
back again, on foot this time. I had to get
up to let him in. He wanted 'to go to room
51, which he had commonly occupied; but
that was taken up, and he went to 53. He
left between 5 and 6 in the morning. As I
was going out for a hack to take a lady to
the 6:15 train, I overtook hira about thirty
steps from the door; he was walking along
.slowly. Another man came to the house
about the same time that night, and occupied
the same room. He went away a little ear
lier, to ta^e the 6:15 train; I opened the
door and let him out He had no baggage
that I saw. The gas was down pretty low

when they came in ; but the man seemed to
have on dark clothes and a slouch hat, lie
paid in advance, and went straight to the
room. I do not know that I would know him,
I can not say that any of the prisoners resem
ble him. I was not so well acquainted with
hira as with Mr. Atzerodt, who had been
stopping there a couple of weeks.
Cross-examined by Mr. Doster.
[A coat found at the Kirkwood House by John Lee was
exhibited to the witness.]
I do not recollect seeing that coat before,
I have cleaned Mr, Atzerodt's clothes and
boots, but I never saw that coat We gen
erally close the house at half-past 12 or 1
o'clock, and we had not closed on the Friday
night when Mr. Atzerodt came first ; we closed
soon afterward. The horse that I held foi
him then was a lightrbay horse, small; il
seemed to be young, and had plenty of spirit
I opened the door for Mr. Atzerodt on tht
second visit, and took hira and the other
man to their room. They had no conversa
tion in my presence,
I have seen Mr, Atzerodt have a belt, with
a pistol and a knife, but I never saw the
knife out of the sheath. That was probably
four or five days before that Friday.
By ihe Judge Advocate,
[Exhibiting to the witness the knife found by John Lee
at the Kirkwood House,]
I can not tell whether that was the knife.
It was in the sheath, fastened to the belt
[Exhibiting a bowie-knife found on Atzerodt,]
It was something more like that
[The knife was offered in evidence.]
Lieutenant W. R. Keim.
For the Prosecution. — May 18,
I was at the Pennsylvania House, in this
city, on the night of the 14th of April last
I went to the hotel about 4 o'clock on the
Saturday morning, and Atzerodt was in bed
when I went into the room. His bed was
opposite mine. I asked him if he had heard
of the assassination of the President, and he
said he had; that it was an awful affair. When
I awoke in the morning, he was gone, I did
not see any arms with him. About a week
or ten days before the assassination I occupied
roora 51 with Atzerodt
[The large bowiij-knife found at the Kirkwood House
was exhibited to the witness.]
I would not swear that is the knife I have
seen in Atzerodt's possession, but it was one
about that size, Atzerodt went out of the
room one morning and left the knife in his
bed, I got up and took it, and put it under
my pillow. In a few minutes he returned,
went to his bed and looked about and then
said, " Have you seen my knife?" I replied,
"Yes; here it is," Then he said, "I want
that; ifone fails, I want the other;" and I gave
it to him. His pistol, a revolver, he always
carried round his waist.

148

THE CONSPIRACY TRIAL.

Cross-examined by Mr. Doster.
I did not know the prisoner, Atzerodt, be
fore meeting him at the Pennsylvania House,
On the Saturday morning after the assassin
ation, when I went into the room where he
was, I did not speak to him immediately; it
was perhaps five or ten minutes before I
spoke. He was in bed, but whether undressed
or not I can not say. When I spoke to him
about the assassination, he said it was an
awful thing, and that was about all he said,
1 did not see him after that He always
addressed me as " Lieutenant" It was about
a week or ten days before the assas.slnation
that I took the knife from his bed. We had
been drinking together, as we lay in bed; had
had, perhaps, two or three whisky-cocktails
apiece. His words, as near as I remember,
when I gave him back the knife, were, " If
this fails, the other will not"
John Caldwell.
For the Prosecution. — May 25.
I reside in Georgetown, On the morning
after the assassination, at about 8 o'clock, I
was at Matthews & Co,'s store, 49 High
Street, Georgetown, when that man, [point
ing to the accused, George A, Atzerodt,] whom
I knew, came in; and, after ray asking him
how he was, and so on, said he was going into
tbe country, and asked me if I did not want
to buy his watch, I told him I had a watch
of my own, and did not want another. He
then asked me to lend him $10, I told him
I had not the money to spare. He then took
his revolver off, and said, " Lend rae $10, and
take this as security, and I will bring the
money or send it to you next week, I thought
the revolver was good security for the money,
and I let him have the money, expecting him
to pay it back,
[A new revolver, loaded and capped, was handed to the
witness,] This is the revolver. It was loaded and
capped as it is now, I did not inquire of him
why it was loaded and capped,
» [The revolver was offered in evidence.]
Cross-examined by Me, Dostee,
I have known Atzerodt for three or four
years. We were not on very intimate terms ;
we were always civil to each other when we
met I had never loaned Atzerodt any money
before. William Clendenin.
For the Prosecution. — May 18.
[A bowie-knife was shown to the witness,]
I have had that knife iii my hands before,
I saw a colored woman pick up something
out of a gutter, on F Street, as I was passing
down on the morning after the assassination.
She was about ten feet from me, and I went
i to her and asked what it was, and she gave
me this knife in a sheath. A lady in the third
story window of the house, next to Greaser's

shoe-store, told me she saw it in the gutter,
and sent the colored woman down to get it,
but that she did not want it to come into the
house. I told her that I would take it to the
Chief of Police, which I did.
Cross-examined by Mr. Dostee.
It was about 6 o'clock in the morning
when I saw the woman pick it up. It lay
in the gutter on F Street, in front of Greaser's
house, under the carriage step, as if the in
tention were to throw it there. Greaser's is
on F Street, between Eighth and Ninth, op
posite the Patent Office.
Marshal James L. MoPhail
For the Prosecution. — May 18
I am Provost Marshal of the State of
Maryland. I received an intimation from
the prisoner, Atzerodt, that he desired to see
me, I went to him, and he stated to me that,
on the night of the assassination of the
President, he had thrown his knife away in
the streets of Washington. I made no prom
ise or threat to him, in any way, in connec
tion with the confession. By Mr. Dostee.
Q, Was he not in irons at the time?
A, Yes, sir; he was in a cell in the prison,
and in irons.
Mr. DosTBR, I respectfully submit that a
confession made under such circumstances is
not admissible, because it was made under
duress, which put the mind of the prisoner
in a state of fear.
The Judge Advocate, There was neither
threat nor promise, and the fact that the man
was in prison, or even in irons, does not affect
the question of his mental liberty. A man's
limbs may be chained, and his mind be per
fectly free to speak the truth, or to conceal
it, if he chooses,
Mr. Dostee, in support of his objection,
quoted from the case of Commonwealth v,
Mosler, 4 Barr's Reports, 265, to the effect
that a confession to an officer, as well as to a
private person, must be unattended with any
inducement of hope or fear, and must be
founded on no question calculated to entrap
the prisoner; and referred also to 1 Leech,
263; 2 East's Pleas of the Crown; 2 Russell
on Crimes, 644; 1 Washington's Circuit Court
Reports, 625; 'l Chilly's Criminal Law, 85; 1
Greenleaf on Evidence, 214; 2Starkie, 36.
I claim that the prisoner was under the in
fluence of fear when he made that confession,
and without that influence would not have
made it
The Judge Advocate, I think it is due to
the witness that he should be allowed to stale
precisely under what circumstances this con
fession was made, and if there is a trace of
fear, or hope, or incitement of that kind, I
shall not insist for a moment on the answer
being heard.

TESTIMONY CONCERNING GEORGE A. ATZERODT.

149

Witness. I should state that a brother-in-
law of Atzerodt is on my force, and for a lime
a brother of the prisoner was on it, and they
repeatedly told me that Atzerodt desired to
see me. After consulting with the Secretary
of War, a pass was given me, and I saw the
prisoner. I saw him first on the gun-boat,
and afterward in his cell. There was no
threat, or promise, or inducement of any
kind made. On the contrary, I told him that
1 could make no promises to him ; if he had
any thing to say to me, he might say it, but
I had nothing to say to him. I did not ask
him a single question to induce him to make
a confession.
[The Commission overruled the objection.]
Atzerodt said he had thrown his knife away,
just above the Herndon House, which, I think,
is on the corner of Ninth and F Streets.
Cross-examined by Mr. Dostee.
Atzerodt stated that his pistol was in the
possession of a young man by the name of
Caldwell, at Matthews & Co.'s store, George
town. He had gone to Caldwell, and bor
rowed $10 on it, on the morning of the 15th
of April. He also spoke of a certain coat
hanging in the room at the Kirkwood House,
and of a pistol, bowie-knife, and other articles
tliere, all of which he stated belonged to the
accused, David E. Herold,
Mr, Stone, I must object to that.
Mr. Doster. The answer has been ob
tained. I do not wish to press it further.
Hezekiah Mhtz.
For the Prosecution, — May 17.
I reside in Montgomery County, Md,, about
twenty-two miles from Washington City, On
the Sunday following the death of Mr. Lin
coln, the prisoner, George A. Atzerodt, was
at my house, and eat his dinner there. That
is the man, [pointing to the accused, George
A. Atzerodt] He was just from Washington,
We were inquiring about the news, and a
conversation came up about General Grant's
being shot — for we had understood that he
had been shot on the cars — when Atzerodt
said, as I understood, " If the man that was
to follow him had followed him, it was likely
to be so."
Atzerodt passed in the neighborhood by the
name of Andrew Attwood ; that was the
name by which I knew him. When I saw
him, he represented himself as coming from
Washington, and was traveling in the direc
tion of Barnsville.
Cross-examined by Mr. Doster.
It is two or three years since I first became
acquainted with Atzerodt I had but a slight
acquaintance with him; I knew him when I
saw him. He went by the name of Andrew
Attwood around our neighborhood, and he
has gone by that name ever since I have
known him. My house is about a mile from

the road that leads to Barnsville. It was be
tween 10 and 11 o'clock on Sunday that At
zerodt came there; he remained some two or
three hours, 'Two young men named Lea
man were in the room when Atzerodt made
the remark about somebody following Gen
eral Grant I do not remeraber that Atzerodt
said any thing about the assassination; they
raight have been talking about it before I
came into the room. The conversation about
General Grant occurred after I got into the
room.
Sergeant L. W. Gemmill.
For the Prosecution. — May 17.
I arrested the prisoner, George A, Atzerodt,
[pointing to the accused,] on the 20th of April,
about 4 o'clock in the morning, at the house
of a man named Richter, near a place called
Germantown. I was sent there for the pur
pose by Captain Townsend, with a detail of
six men. I first went to Mr. Purdon's house
to get him as guide to Mr. Richter' s. When
I knocked at the door, Richter asked me
twice who it was before he would let me in,
I told him to come and see. When he came
to the door, I asked hira if there was a man
named Attwood there ; he said no, there was
no one there; that he had been there, but
had gone to Frederick, or to that neighbor
hood. I then told him that I was going to
search the house, when he said that his
cousin was up stairs in bed. His wife then
spoke up, and said that as for that there were
three men there. He got a light, and taking
two men with me, went up stairs, where 1
found Atzerodt lying on the front of the bed,
I asked him his name, and he gave me a
name that I did not understand, and which 1
thought was a fictitious one. 1 told him to
get up and dress himself; and I took him to
Mr. Leaman, a loyal man, who knew him.
Mr, Leaman told me it was the man, Atze
rodt made no inquiry as to why he was ar
rested; but denied having given me a fictitious
name. Tasked him if he had left Washington
lately, and he said no. I then asked him if he
had not something to do with the assassina
tion, and he told me that he had not
Cross-examined by Mr. Dostee.
My orders from Captain Townsend were
to arrest a man by the named of Attwood;
and I was ordered to go to Mr. Purdon and
get a description of him, and to press hira as
a guide to the house of Richter. I do not
remember the name Atzerodt gave me, and
would not swear that it was not " Atzerodt; "
he afterward insisted that that was the name
he gave me. He spoke in German, and thai
is the reason why I did not understand the
name. Marcus P. Norton.
Recalled for the Prosecution. — June 3.
Assistant Judge Advocate Burnett stated
to the Commission that since the case was

150

THE CONSPIRACY TRIAL.

closed on the part of the prosecution, testi
mony of importance had been discovered,
tending to implicate George A. Atzerodt,
Michael O'Laughlin, and Samuel A. Mudd,
in connection with J, Wilkes Booth.
Mr Cox objected to the introduction of any
evidence that would affect the prisoners in
dividually, the understanding being that the
prosecution was closed, except as to evidence
reflecting light on the general conspiracy.
It was contrary to the practice of civil courts
to allow the introduction of testimony after
the prosecution had been closed, except what
was strictly in rebuttal.
Assistant Judge Advocate Burnett stated
that in military courts, even after the case
had been closed on both sides, it was allow
able to call new witnesses at the discretion
of the Court
The Commission decided to admit the testi
mony. I reside in the city of Troy, New York,
From about the 10th of January until about
the 10th of March, I was stopping at the
National Hotel in this city, I knew J, Wilkes
Booth, having seen him several times at the
theater. I saw the prisoners, George A, At
zerodt and Michael O'Laughlin, prior to the
inauguration of President Lincoln, I saw
Atzerodt twice, and O'Laughlin three or four
times, in conversation with Booth, On one
occasion I accidentally heard some conversa
tion between Atzerodt and Booth, as I sat on
the same seat with them ; it was on the even
ing of either the 2d or 3d of March last; I
think the 3d. I can not give the precise

language used in the conversation, but the
substance of it was, that if the matter suc
ceeded as well with Mr, Johnson as it did
with old Buchanan, their party would get
terribly sold.
Cross-examined by Mr. Dostee.
The conversation between Atzerodt and
Booth took place in the rotunda office of
the National Hotel, early in the eVenin;;, ».¦<
I was sitting, perhaps, within two or I hi rr
feet of them. I remember the prisoner, ,A i
zerodt, by his countenance and general feat
ures, though 1 do not think he had as much
of a scowl on his face as he has now.
Recalled for the Prosecution. — June 8.
Cross-examined by Me. Dostee.
I have seen Booth play in Washington, in
New York, and once, I think, in Boston, but I
can not recall how many times, nor the pieces
in which I saw him. At the time of hearing
the conversation between Booth and Atzerodt
at the National Hotel, I did not consider it as
having reference to an attempt to poison Mr.
Johnson; but the assassination of the Presi
dent, and Booth being coupled with it, is what
has turned my attention to the conversation.
See also the testimony of
Louis J. Weichmann  pages 113, 118
J. M. Lloyd  page 130
Anna E, Surratt  " 130
Honora Fitzpatrick  " 132
Eliza Holahan  " 132
John Holahan  " 189
Eaton G. Horner  " 2.34

DEFENSE OF GEORGE A. ATZERODT.

Captain Frank Monroe, U. S. N.
For the Defense, — May 30.
By Mr. Doster.
I had the custody of the prisoner at the bar
on board the monitors Saugus and Montauk,
Mr. DosTBR. Before going further with
the examination of the witness, I wish to sub
mit an application of the prisoner in writing.
[The paper was handed to the Judge Advocate, who,
having read it, said :]
This is a proposal on the part of the pris
oner, Atzerodt, that his confessions made to
the witness shall be heard by this Court as
testimony in his favor — confessions in regard
to which no evidence whatever has been in
troduced by the Government I can not
understand on what grounds such an applica
tion can be urged.

Mr. Dostee. The prisoner desires to make
a full statement of his guilt in this transac
tion, if there is any guilt, and of his inno
cence, if there is any evidence of it He asks
his statement to be placed on record, because
he has been debarred from calling any other
prisoners who might be his witnesses, for the
reason that they are co-defendants. He
therefore asks that he may be allowed to
speak through Captain Monroe, as he would
otherwise speak through one of his co-defend
ants. 1 ask this as a matter of fairness and
liberality at the hands of the Commission.
The Judge Advocate, It is greatly to be
deplored that the counsel for the accused will
urge upon the Court proposals which they
know to be contrary to law.
Mr. Doster. I have no more to ask the
witness then.

DEFENSE OF GEORGE A. ATZERODT.

151

Matthew J. Pope.
For the Defense, — June 2.
By Mr. DosTsa
I live at the Navy Yard, and keep a livery-
stable ; until recently I kept a restaurant A
few days before the assassination of the Presi
dent, perhaps about the 12tli of April — I do
not know the exact day — a gentleman called
at my stable to sell a bay horse; it was a
large bay horse, and blind of one eye.
[The prisoner, George A. Atzerodt was desired to stand
np for identification.]
That man has something of the same feat
ures; he was very much such a looking man;
but if it is the same, he is not near so stout as
'.vhen he brought the horse to my stable. I
can not say positively that it is the same.
There are many applications at my stable to
buy and sell horses, that I did not take much
notice of him. I told hira I did not want to
buy the horse; that I had more horses
than I had use for. It was sorae time after
12 or 1 o'clock at noon that he came. The
horse was put into my stable, and the gentle
man went over to my restaurant and took a
drink. He left there with a man named Barr,
a wheelwright in the Navy Yard, They
came back together, and the gentleman took
his horse out and rode him away. The horse
was in the stable, I think, some two or three
hours, Barr was not sober at the time; he
had been drinking a little.
John H. Barr.
For the Defense, — June 5.
By Mr, Doster,
I have seen Atzerodt, the prisoner at the
bar, once before, I was coming from my
work at the Navy Yard one evening, and
stopped at Mr, Pope's restaurant, and there
met this gentleman. I did not know him at
the time, but we had several drinks together
1 proposed to him to go home and take supper
with me, and he did so. After supper, we
went back to Mr, Pope's restaurant, and
had, I think, a couple of drinks. We then
went out, returned to the restaurant again,
and took two more glasses, and from there
went to Mr, Pope's stable. The gentleman
took his horse out, and I saw him get on and
ride off. That is the last I saw of him. By
referring to my book, I can tell the exact day
on which this occurred, because I know the
work that I did that day; I made two spring
blocks for Sanderson & Miller. I find it was
the 12th of April. James Kelleher.
For the Defense — May 30.
By Mr. Doster.
I am one of the proprietors of the livery-
Btable on Eighth and E Streets. On the Uth
of April last, about half-past 2 m the day, I

let the prisoner, Atzerodt, [pointing to the
accused, George A. Atzerodt,] have out of my
stable a small bay mare, sixteen and a half
hands high. He paid me five dollars for the
hire. The horse was returned, to tho best of
my knowledge, between 9 and half-past 9 tha'
night Q, When Atzerodt engaged the horse, did
you have a conversation with him?
A, Yes, sir,
Q, State what that conversation was.
Assistant Judge Advocate Burnett ob
jected to the question as incompetent.
The question was waived.
Atzerodt wrote his name on the slate in a
tolerably good hand; and he gave me sev
eral references willingly. He first gave a
number of persons in Maryland. He said he
knew a good many persons there, and that he
was a coach-maker by trade. Stanley Hig-
gins was one to whom he referred; I can not
recall any other. He also gave me the name
of John Cook in Washington as a reference,
and several other names in Washington, but
I do not remeraber them.
Cross-examined by Assistant Judge Advooatb
Burnett.
I was not there when the horse was re
turned. When I went to the stabl.- next
morning, the horse was there.
Samuel Smith.
For the Defense, — May 30.
By Mr. Dostee.
I am a stable-boy at Mr. Kelleher's stable.
I was at the stable on the night of the Uth of
April last The bay mare that was let out
about 2 o'clock in the afternoon was returned
in the course of the evening ; to the best of
my knowledge, it was about 11 o'clock. She
was about in the same condition as when she
was taken out
Cross-examined by Assistant Judge Advocate
Burnett.
I did not notice the person who brought
back the mare ; there was a little light in the
stable, but it was very dim ; and there was
no light on the sidewalk. 'The man stopped
outside the door, and I went out there and
brought the mare in. It was by feeling her
that I could tell she had not been ridden hard.
Leonard J. Faewell.
For the Defense, — June 3.
By Me. Dostbr.
On the evening of the Uth of April last,
on leaving Forifs Theater, I went imraedi
ately to the Kirkwood House, to the room of
Vice-President Johnson, I should think it
was between 10 and half-past 10 o'clock. I
found the room door locked. I rapped, but
receiving uo answer, I rapped again, and said,

152

THE CONSPIRACY JRIAL.

in a loud voice, " Governor Johnson, if you
are in the room, I must see you," I believe
the door was locked, but am not certain, I
can not say whether I took hold of the han
dle or not I did not see any one apparently
lying in wait near Mr, Johnson's door,
I remained in Mr, Johnson's room about
half an hour I took charge of the door,
and locked and bolted it on the inside. A
number of persons came to the door, but I
did not allow any of them to come in, unless
he was some gentleman personally known to
the Vice-President I also rang the bell and
had a guard placed at the door.
[The witness was here requested to look at the prisoner,
George A. Atzerodt,]
I do not know that I have seen the prisoner
before.
Miss Jane Herold.
For the Defense — May 30,
By Mr. Dostbr,
I am the sister of David E. Herold, the
prisoner at the bar,
[Exhibiting to the witness the black coat found at the
Kirkwood House, also the handkerchief marked " H,"]
I think I never saw that coat in the pos
session of my brother. The handkerchief
does not belong to him.
F. H. Dooley.
For the Defense. — May 31.
By Mr. Doster.
I am an apothecary, on the corner of
Seventh Street and Louisiana Avenue, The
tooth-brush and liquorice found at the Kirk
wood House have trade-marks on them that
I am positive do not belong to my estab
lishment Somerset Leaman.
For the Defense, — May 30.
By Mr. Dostbr.
I have known the prisoner, George A,
Atzerodt, ever since he was a boy. I was at
the house of Hezekiah Metz on the Sunday
morning following the assassination of the
President, and met Atzerodt there. As I
approached him, I said, in the way of a
joke, " Are you the man that killed Abe
Lincoln?" "Yes," said he, and laughed, I
said, "Well, Andrew"— he went by the name
of Andrew there — "I want to know the
truth of it; is it so?" I asked him if the
President was assassinated, and he said, "Yes,
it is so; and he died yesterday evening about
3 o'clock." I then asked him if it was true
that Mr, Seward's throat was cut, and two
of his sons stabbed, and he replied, " Yes,
Mr, Seward was stabbed, or rather cut at the
throat, but not killed, and two of his sons
were stabbed." I then asked him if what
we heard about General Grant was correct,
that he was assassinated on the same night.
He answered, " No, I do n't know whether

that is so or not; I don't suppose it is so;
if it had been, I should have heard it"
While we were at the dinner-table, my
brother asked him the question again,
whether General Grant was killed or not,
and he said, "No, I don't suppose he was;
if he was killed, he would have been killed
probably by a man that got on the same
car" — or the same train, I do not remember
which — "that Grant got on."
I was not in Atzerodt's company more
than half an hour, and that was about all
that passed in reference to this in ray presence.
I thought Atzerodt seemed somewhat con
fused at the dinner-table. He had been
paying his addresses to the daughter of Mr,
Metz, and it appeared that she had been
showing him the cold shoulder that day, and
he was down in the mouth in consequence.
There was no remark made at the dinner-
table that I did not hear.
Atzerodt's father had settled in our neigh
borhood, but moved away when Atzerodt
was quite a boy, and I had seen but little of
him until the last year or two. He visited
among the neighbors there, many of whom
were respectable people.
James E, Leaman.
For the Defense, — May 30.
By Mr, Dostbr,
I have known the prisoner, George A.
Atzerodt, for about two years. I was at the
house of Mr, Metz on the Sunday morning
following the assassination. I broached the
subject of General Grant being assassinated,
and asked him whether it was so or not H«
said he did not suppose it was ; and he
added, " If it is so, some one must have got on
the same cars that he did," That was all the
conversation that I had with him, with the
exception that when he and I were out in
the yard he said —
Mr. Doster, That is unnecessary ; you
need not state what he said in the yard.
By Assistant Judge Advocate Burnett.
Q. Go on and state what he said to you in
the yard.
A. He said, "0, my! what a trouble 1
see." I said to him, " Why, what have you
to trouble you ?" Said he, " More than I
will ever get shut of"
By Mr. Doster.
Q, That was immediately after you had
been speaking of the assassination, was it?
A, No, sir; some time afterward, I took
it for granted —
Assistant .Judge Advocate Buenett. You
need not state what you took for granted.
Give the words, and nothing else,
A, That was about all he said at that time.
Atzerodt had been paying his addresses to
Mr, Metz's daughter, and she had slighted him
some time before he went out into the yard.

DEFENSE OF GEORGE A. ATZERODT.

163

Hartman Richtbe.
For ihe Defense, — May 31.
By Me. Dostbr.
I live in Montgomery County, Maryland,
and am a cousin of the prisoner, George A.
Atzerodt He came to my house about 2 or
3 o'clock on Sunday afternoon, I met him
in the morning, on my road to church, I
did not have much conversation with him,
and I noticed nothing peculiar about him.
He remained at my house from Sunday till
Thursday morning, and occupied himself
with walking about, working in the garden a
little, and going among the neighbors. He
did not attempt to get away, or to hide
himself When he was arrested he seemed
very willing to go along. He had on a kind
of gray overcoat when he came to my house.
Samuel MoAllistbe.
For the Defense — May 30.
By Mr. Dostee.
During the month of April I saw a pistol
and a dirk in Atzerodt's possession. He
gave them to me to keep for him,
[The knife and pistol found at the Kirkwood House
were exhibited to the witness.]
Those are not the knife and pistol.
[The knife found near F and Ninth Streets on the morn
ing of the 15th of AprU was exhibited.]
That looks very much like the knife ; it
was a knife of that description.
[Exhibiting to the witness the pistol identified by John
Oaldwell, on which he loaned $10.]
That looks very much like it
On the evening of the Uth of April, at
about 10 o'clock, he rode up to the door
[Pennsylvania House] and called the black
boy out to hold his horse. I did not take
particular notice of him, or notice whether
he was excited or not
Q. Do you know any thing about his rep
utation for courage ?
Assistant Judge Advocate Bingham. I
object to that ; I do not think we are going
to try his character for courage,
Mr. Doster. May it please the Court, I
intend to show that this man is a constitu
tional coward; that if he had been assigned
the duty of assassinating the Vice-President,
he never could have done it; and that, from
his known cowardice. Booth probably did
not assign him to any such duty. Certainly
it is just as relevant as any thing can be.

Assistant Judge Advocate Bingham. If
the counsel wishes to prove that the prisoner,
Atzerodt, is a coward, I will withdraw my
objection. Witness, I know nothing of his reputa
tion for cowardice, save what I have heard
from others. I have heard men say that he
would not resent an insult
Alexander Brawnke.
For the Defense, — June 8.
By Me, Dostbr,
I live in Port Tobacco, Md, I have known
the prisoner, Atzerodt, six or eight years..
He was at Port Tobacco about the last of
February or the beginning of March. I think
he came from Bryantown; he rode a sorrel
horse. I had some business in the country,
and he went along with me,
I never considered Atzerodt a courageous
man, by a long streak. I have seen him in
scrapes, and I have seen him get out of
them very fast I have seen him in bar-room
scrapes, little scrapes, and where pistols were
drawn, and he generally got out of the way,
and made pretty fast time. His reputation
is that of a notorious coward.
Louis B. Harkins.
• For the Defense. — June 8.
By Mr. Dostbr.
I have known Atzerodt for probably ten
years. He was down at Port Tobacco about
the latter part of February or the beginning
of March. I think I saw him for a day or
two. He is looked upon down there, by folks
that know him, as a good-natured kind of a
fellow. We never gave him credit down our
way for much courage. I call to mind two
difficulties in which I saw him — one haf)-
pened in my shop, and the other in an oys-.
ter saloon — in both of which I thought he
lacked courage. Washington Brisoob.
For the Defense. — May 30.
By Mr. Doster.
I have known the prisoner, Atzerodt, six
or seven years at Port Tobacco. He has al
ways been considered a man of little courage,
and remarkable for his cowardice.

154

THE CONSPIRACY TRIAL.

TESTIMONY CONCERNING LEWIS PAYNE.

Mrs. Martha Mi7rray.
For ihe Prosecution, — May 19.
My husband keeps the Herndon House,
corner of Ninth and F Streets, opposite the
Patent Office, cat-a-cornered. The only one
of the prisoners I recognize as having seen
before is that man, [pointing to the accused,
Lewis Payne.] I think I have seen him;
his features are familiar to me, but I would
not say for certain. He was two weeks in
our house, and he left on the Friday, the day
of the assassination. He left on the Uth
day, about 4 o'clock. We have dinner at
half-past 4, and this gentleman came into
the sitting-room and said he was going away,
and wanted to settle his bill; and he wished
to have dinner before the regular dinner; so
I gave orders for the dinner to be cut off
and sent up to him. He went into the
dining-room to eat his dinner, and I have
not seen hira since.
I do not recognize either of the prisoners as
having visited this man. I reraember that
he once came in with two gentlemen to sup
per. I do not remember that any one spoke
to me about engaging a roora for this man,
I am spoken to by so many that, I could
not remember any particular circumstance
of that kind. Wm. H. Bell (colored.)
Fof the Prosecution, — May 19.
I live at the house of Mr. Seward, Secre
tary of State, and attend to the door. That
man [pointing to the accused, Lewis Payne]
came to the house of Mr. Seward on the
night of the 14th of April. The bell rang
and I went to the door, and that man came in.
He had a little package in his hand ; he said
it was medicine for Mr. Seward from Dr,
Verdi, and that he was sent b)' Dr. Verdi to
direct Mr. Seward how to take it He said
he must go up. I told him that he could not
go up; then he repeated the Words over, and
was a good while talking with me in the hall.
He said he must go up; he must see him.
He talked very rough to me in the first place,
I told him he could not see Mr. Seward;
that it was against my orders to let any one
go up, and if he would give me the medi
cine and tell me the directions, I would take
it up, and tell Mr. Seward how to take it
He was walking slowly all the time, listen
ing to what I had to say. He had his right
hand in his coat-pocket, and the medicine in
his left He then walked up the hall toward
the steps, I had spoken pretty rough to

him, and when I found out that he would
go up, I asked him to excuse me. He said,
"Oil know; that's all right" I thought
he might, perhaps, be sent by Dr, Verdi, and
he might go up and tell Mr, Seward that I
would not let hira go up, or soraething of
that kind, I got on the steps and went up
in front of him. As he went up I asked hira
not to walk so heavy. He raet Mr, Freder
ick Seward on the steps this side of his
father's room. He told Mr, Frederick that.
he wanted to see Mr Seward, Mr, Frederick
went into the roora and came out, and told
him that he could not see hira; that his
father was asleep, and to give hira the
medicine, and he would take it to him.
That would not do ; he must see Mr, Seward.
He must see him; he said it in just that
way. Mr Frederick said, "You can not see
him." He kept on talking to Mr. Frederick,
saying, that he must see him, and then Mr.
Frederick said, "I am the proprietor here,
and his son ; if you can not leave your mes
sage with rae, you can not leave it at all."
Then he had a little more talk there for a
while, and stood there with the little package
in his hand, Mr, Frederick would not let
him see Mr' Seward no way at all, and then
he started toward the step and said, "Well,
if I can not see him — " and then he mum
bled some words that I did not understand,
and started to come down. I started in front
of him. - 1 got down about three steps, I guess,
when I turned around to him and said,
" Do n't walk so heavy," Then by the time 1
turned around to make another step, he had
jumped back and struck Mr, Frederick. By
the time I could look back, Mr. Frederick
was falling; he threw up his hands and fell
back in his sister's room; that is two doors
this side of Mr, Seward's roora. Then I ran
down stairs and out to the front door, hal
looing "murder," and then ran down to Gen
eral Augur's head-quarters, I did not see
the guard, and ran back again,' By that time
there were three soldiers who had run out of
the building and were following me. When
I got way back to the house, turning the
corner there, I saw this man run out and get
on his horse. He had on a light overcoat,
but he had no hat on when he carae out
and got on his horse, I did not see his horse
when he carae to the house, and did not
know he had a horse until I saw him get
on it I hallooed to the soldiers, "There he
is, going on a horse!" They slacked their
running, and ran out into the street, and did
not run any more until he got on his horse
and started off. I followed him up as far as

TESTIMONY CONCERNING LB-fflS PAYNE.

165:

I Street and Fifteen-and-a-half Street, and he
turned right out into Vermont avenue, where
I lost sight of him. He rode a bay mare; it
was a very stout aniraal, and did not appear
to be a very high horse. He did not go very
fast until he got to I Street. I must have
been within twenty feet of him, but at I
Street he got away from me altogether.
I do not know what he struck Mr. Fred
erick Seward with. It appeared to be round,
and to be mounted all over with silver, and
WHS about ten inches long, I had taken it
for a knife, but they all said afterward it was
a pistol, I saw him raise his hand twice to
strike Mr. Frederick, who then fell. I did
not wait any longer, but turned round and
went down stairs. When he jutaped round,
he just said, "You," and commenced hitting
hira on the head; but I had hardly raissed
hira from behind me until I heard him say
that word.
I never saw this man about the door that I
know of, nor did I see any person on the
pavement when I came out.

and I ran out, I did not observe any horse;
but when I saw him run out of the house, I
followed him to I Street; it seems to me be
went very slow, because I kept np with him
till he got to I Street '
William H. Bbll.
Recalled for the Prosecution, — May 19.
[By direction of the Jndga Advocate tho handcufflg
were removed from tho prisoner Payne, who pnt on the
dark-gray coat, and over it the white and brown mixed
coat, and the hat Identified by Colonel Wells.]
When he came to Mr Seward's he had on
that coat, and that is the very same hat he
had on ; one corner of it was bent down over
his eye. He had on a white collar, and looked
quite nice to what he looks now. He had
the same look as he has now, but he looked
pretty fiery out of his eyes at me, the same
way he looks now.

Cross-examined by Mr. Doster.
I do not know how old I am; I
am between nineteen and twenty. I "was at
school four or five years. I have been at
Mr. Seward's nine months, and am second
waiter. The talk with the man was inside;
he came in and I closed the door. He had a
very fine voice.
I noticed his hair and his pantaloons, and
I noticed his boots that night He talked to
Mr. Frederick at least five minutes while up
there near his father's door, in the third story.
He had on very heavy boots at the time, black
pants, light overcoat, and a brown hat His
face was very red at the time he came in; and
he had very black, coarse hair.
I saw the same boots on him the night they
captured him, and the same black pants.
The first time I saw the prisoner after that
night was on the 17th of April. They sent
for me about 3 o'clock in the morning to go
down to General Augur's head-quarters. A
Colonel there, with large whiskers and mous
tache, [Colonel H. H. Wells,] asked me to
describe this man. I told him he had black
hair, a thin lip, very fine voice, very tall, and
broad across the shoulders, so I took him to
be. There were twenty or thirty gentlemen
in the rtjom at the time, and he asked me
if any gentleman there had hair like him,
and I told him there was not He then said,
"I will bring a man in here and show him
to you." I was leaning down behind the desk
so that I could not be seen. The light was
then put Up, and a good many men walked
into the room together. I walked right up to
this raan, and put my finger right here, [on the
lip,] and told hira I knew him; that he was
the man. Nobody had offered me any money
for giving the information, and no threats had
been made to me.
When he struck Mr. Frederick Seward,

Sergeant George F. Robinson.
For the Prosecution, — May 19.
On the Uth of April last I was at the resi
dence of Mr Seward, Secretary of State,
acting as attendant nurse to Mr. Seward, who
was confined to his bed by injuries received
from having been thrown from his carriage
One of his arms was broken and his jaw frac
tured. That man [pointing to the accused, Lewis
Payne] looks like the man that came to Mr.
Seward's house on that Friday night I
heard a disturbance in the hall, and opened
the door to see what the trouble was; and as
I opened the door this man stood close up to
it As soon as it was opened, he struck me
with a knife in the forehead, knocked me
partially down, and pressed by me to the bed
of Mr. Seward, and struck him, wounding him.
As soon as I could get on my feet, I en
deavored to haul him off the bed, and then
he turned upon rae. In the scuffle, sorae one
[Major Seward] came into the room and
clinched him. Between the two of us we got
him to the door, or by the door, and he,
unclinching his hands frora around my neck,
struck me again, this time with his fist,
knocking me down, and then broke away
from Major Sewaxd and ran down stairs.
I saw him strike Mr. Seward with the same
knife with which he cut my forehead. It
was a large knife, and he held it with the
blade down below his hand. I saw him cut
Mr, Seward twice that I am sure of; the
first time he struck him on the right cheek,
and then he seemed to be cutting around his
neck. I did not hear the man say anyi
thing during this time.
I afterward examined the wounds, and
found one cutting his face from the right
cheek down to the neck, and a cut on his
neck, which might have been made by the
same blow, as Mr. Seward was partially
sitting in bed at the time; and another on
the left side of the neck. Those were all I

156

THE CONSPIRACY TRIAL.

noticed, but there may have been more, as
it was all bloody when I saw it Mr. Sew
ard received all his stabs in bed; but after
the man was gone, and I went back to the
bed,* I found that he had rolled out, and was
lying on the floor.
I did not see Mr. Frederick Seward down
on the floor ; the first I saw of him was after
the man was gone; when I came back into
the room he was inside the door, standing up.
The man went down stairs immediately after
he unwound his arm from round my neck,
and struck me with his fist I did not see
him encounter Major Seward,
After he was gone we picked up a revolver,
or parts of one, and his hat
[A slouch felt hat was exhibited to the witness.]
I should judge that to be the hat; it looks
like the one found there.
[A revolver was exhibited to the witness,]
That is the revolver picked up; I did not
see this part, [the ramrod, which was discon
nected.] [The hat and revolver were both ofiered in evidence.]
[At the request of the Court, the guard was directed to
ftlace the hat on the head of' the prisoner, Payne, to see if
t fitted him or not, which was done, Payne smiling
pleasantly. It was found to fit him.]
Recalled for the Prosecution, — May 19.
She accused, Lewis Payne, clad in the coat and vest in
ch he was arrested, and the hat found- at Mr. Sew
ard's, was directed to stand up for recognition,]
He looks more natural now than he did
before. I am not sure about it, but I think
that is the man that carae to Secretary Sew
ard's house on the night of the Uth of April,
a little after 10 o'clock. The pistol that was
picked up in the room after he left was
loaded. I examined it
Majoe Augustus H. Sbwaed,
For the Prosecution. — May 26.
I am the son of the Hon, William H. Sew
ard, Secretary of State, and was at his home
in this city on the night of the Uth of April
last I saw that large man, with no coat on,
[pointing to the accused, Lewis Payne,] at
my father's house that night
I retired to bed at half-past 7 on the night
of the I4th, with the understanding that I
was to be called about 11 o'clock to sit up with
my father. I very shortly fell asleep, and
80 remained until awakened by the screams
of my sister, when I jumped out of bed and
ran into my father's room in my shirt and
drawers. The gas in the room was turned
down rather low, and I saw what appeared to
me to be two men, one trying to hold the other
at the foot of my father's bed. I seized by
the clothes on his breast the person who was
held, supposing it was my father, delirious;
but, immediately on taking hold of him, I
knew from his size and strength it was not
my father. The thought then struck me
that the nurse had become delirious sitting
np there, and was striking about the room at
random. Knowing the delicate state of my

father, I shoved the person of whom I had
hold to the door, with the intention of getting
him out of the room. While I was pushing
him, he struck me flve or six times on the
forehead and top of the head, and once on
the left hand, with what I supposed to be a
bottle or decanter that he had seized from
the table. During this time he repeated, in
an intense but not strong voice, the words,
"I'm mad! I'm mad I' On reaching the
hall he gave a sudden turn, and sprang away
from me, and disappeared down stairs. When
near the door of my father's room, as I was
pushing him out, and he came opposite
where the light of the hall shone on him, I
saw that he was a very large raan, dark,
straight hair, sraooth face, no beard, and I
had a view of the expression of his counte
nance. I then went into my room and got my
pistol. It may possibly have taken me a
minute, as it was in the bottom of my carpet
bag, to find it I then ran down to the front
door, intending to shoot the person, if he
attempted to return. While standing at the
door, the servant boy came back and said
the man had ridden off on a horse, and that
he had attacked the persons in the house
with a knife. I then realized for the first
time that the man was an assassin, who
had entered the house for the purpose of
murdering my father.
I suppose it was five minutes before I went
back to my father's room. Quite a large
crowd came around the door; I sent for the
doctors, and got somebody to keep the crowd
off before I went up to his room. It might
not have been five minutes, but certainly
three, before I got back; I think nearer five.
I was injured pretty badly myself, I found,
when I got up stairs again. After my fa
ther's wounds were dressed, I suppose about
an hour, and after my own head had been
bandaged, I went in and saw my father, and
found that he had one very large gash on his
right cheek, near the neck, besides a cut on
his throat on the right-hand side, and one
under the left ear. I did not examine my
brother's wounds; in fact, I went into his
room but for a short time that night I did
not know how badly hurt he was. The next
day he was insensible, and so remained; and
it was four or five days before I saw what his
wounds were. I found then that he had two
wounds, one on the scalp, that was open to
the brain, and another one over the ear.
After the pieces of fractured skull were taken
out, it left the covering of the brain open.
It was such a wound that I should have sup
posed could have been made with a knife, but
the surgeons seemed to think it was made
by the hamraer of a pistol. I heard that a
pistol was picked up in the house, but I did
not see it I saw the hat that was found,
and think I should recognize it
[A slouch felt hat was exhibited to the witness.]
I am quite certain that is the hat I did
not see it the night it was picked up, but the

TESTIMONY CONCERNING LE'WIS PAYNE.

157

next day it was taken out of the bureau
drawer, where it had been put the night be
fore, and shown to me.
The surgeons think it was a knife with
which I was struck, and after the servant boy
told me what the man had been doing, I sup
posed so myself, though at the time 1 thought
I was being struck with a bottle or a decanter
Not having any idea that it was a man with
a knife, I did not think any thing about it
I feel entirely satisfied that the prisoner at
the bar, Payne, is the same man that made
the attack on that night
Cross-examined by Mr. Dostbr.
This is not the first time I have seen the
prisoner since the attack; I saw him on board
the monitor the day after he was taken. He
was brought up on deck of the monitor, and
I took hold of him the same way I had hold
of him when I shoved him out of the room,
and I looked at his face, and he had the same
appearance, in every way, that he had the
few moments that I saw hira by the light in
the hall; his size, his proportions, smooth
face, no beard, and when he was made to
repeat the words, "I'm raad! I'ra mad I " I
recognized the same voice, varying only in
the intensity.
Surgeon-General Joseph K. Barnes,
For the Prosecution. — May 19.
I was called on the night of the 14tli of
April, a few minutes before 11 o'clock, to go to
Mr. Seward, the Secretary of State. On ar
riving at his house, I found the Secretary
wounded in three places ; Mr, Frederick W,
Seward insensible and very badly wounded in
the head; the rest of the family I did not
see, as I was occupied with them. The
Secretary was wounded by a gash in the right
cheek, passing around to the angle of the
jaw ; by a stab in the right neck, and by a
stab in the left side of the neck.
Mr. Frederick Seward was suffering from a
fracture of the cranium in two places; he
was bleeding very profusely, exceedingly faint,
almost pulseless, and unable to articulate.
The wounds seem to have been inflicted 'oy
some blunt instrument — the butt of a pistol,
a loaded bludgeon, or something of that
kind. Mr. Seward, the Secretary of State, had
been progressing very favorably. He had re
covered from the shock of the accident of
ten days previously, and was getting along
very well. His right arm was broken close to
the shoulder-joint, and his jaw was broken in
two places; but the serious injury of the first
accident was the concussion.
The wounds of Mr. Seward were of a very
dangerous character, and he is still suft'ering
from thera.
I saw Major Seward in the room; but I did
not treat any of the wounded persons profes
sionally, except Mr. Seward.

Doctor T. S. Veedi.
For the Prosecution — May 22.
I am a physician. On Friday night, tha
Uth of April, about half-past 10 o'clock, per
haps a little sooner, I was summoned to
the house of Mr, Seward, the Secretary of
State, I saw the Hon, William H, Seward,
Mr, Frederick Seward, Major Augustus H,
Seward, Mr, Robinson, and Mr. Hansell, all
wounded, and their wounds bleeding, I had
left Mr, Seward about 9 o'clock that evening,
very comfortable, in his room, and when I saw
him next he was in his bed, covered with
blood, with blood all around him, blood under
the bed, and blood on the handles of the doors.
I found Mr Emrick W. Hansell on the
same floor with Mr. Seward, lying on a bed.
He said he was wounded. I undressed him,
and found a stab over the sixth rib, from the
spine obliquely toward the right side, I put
my fingers into the wound to see whether it
had penetrated the lungs, I found that it
had not, but I could put my fingers probably
two and a half inches or three inches deep.
Apparently there was no internal bleeding.
The wound seemed to be an inch wide, so
that the finger could be put in very easily
and moved all around. It was bleeding then,
very fresh to all appearances; probably it was
note fifteen or twenty minutes since the stab
had occurred. Cross-examined by Mr, Dostbr,
Mr, Frederick Seward was conscious, but
had great difficulty in articulating. He wanted
to say something, but he could not express
himself He knew me perfectly well. He
had a smile of recognition on his lips, and as
I looked upon his wound on the forehead, he
was evidently impressed with the idea that
the severest wound was in the back of the
head, and he commenced saying, "It is, it
is," and would put his finger to the back of
his head. I examined the wound, and found
that his skull was broken, and I said to him,
"You want to know whether your skull is
broken or not?" and he said, "Yes." He
was sensible for some time; but probably in
half an hour he went into a sleep, from which
he woke in about fifteen or twenty minutes,
and we attempted to put him to bed. Then
he helped himself considerably. We put
him to bed, and he went to sleep, in which
he remained for sixty hours; he then im
proved in appearance, and gradually became
more sensible,
I saw terror in the expression of all Mr.
Secretary Seward's family, evidently expecting
that his wounds were mortal. 1 examined
the wounds, and immediately turned round to
the family and said, "I congratulate you all
that the wounds are not mortal ; " upon which
Mr, Seward stretched out his hands and re
ceived his family, and there was a mutual
congratulation, 'This was probably twenty
minutes before Doctor Barnes arrived.

158

THE CONSPIRACY TRIAL.

Mr. Seward had improved very much from
his accident, and was not in a critical condi
tion when this attack was made. The effect
of the wounds he received on the night of the
Uth was principally from loss of blood, which
weakened him very much, and made his con
dition still more delicate and difficult to rally
from the shock. The wound itself created
more inflammation in the cheek that had
been swollen by the injury received before,
and rendered the union of the bones more
difficult It is not my opinion that the
wounds received by , Mr, Seward tended to
aid his recovery from his former accident;
that idea got afloat from the fact that the
cheek was very much inflated and swollen,
and that by cutting into it, it would probably
recover faster; but I never entertained and
never expressed such an opinion,
Robert Nelson (colored.)
For the Prosecution, — May 20,
I live in Washington; I used to live in
Virginia, [A knife shown to the witness.]
That looks like the knife I found opposite
Secretary Seward's house, on the Saturday
morning after he was stabbed, I gave it to
an officer at the door first, and afterward to
that gentleman, [pointing to Surgeon John
Wilson, U. S. A]
Cross-examined by Mr. Doster,
I do not say that it is the same knife, but
it looks like the one I found in the middle
of the street, right in front of Secretary Sew
ard's house, between 5 and 6 o'clock in the
morning.

De. John Wilson.
For the Prosecution, — May 20.
[The knife shown to Robert Nelson was exhibited to the
witness,] This is the knife I received frora the col
ored boy who has just left the stand. He
gave it to rae in the library of Mr. Seward's
house, about 10 o'clock on Saturday morn
ing, the 15th of April.
Thomas Price.
For the Prosecution, — May 19.
On Sunday afternoon, the 16th of April, I
picked up a coat in a piece of woods that
lies between Fort Bunker Hill and Fort Sar
atoga. [Two coats were here submitted to the witness.]
This is the coat It is a white and brown
mixed cloth, I discovered traces of blood on
the sleeve; that is how I recognize it I
found it about three miles from the city, in
the direction of the Eastern Branch.
There is a road from one fort to another,
and the coat was found in the piece of woods
on the eastern side of the road.

Colonel H. H. Wells.
For the Prosecution. — May 19.
I had the prisoner, Payne, in my custody
on the 17th of April, the night of his arrest
He had on a dark-gray coat, a pair of black
pants, and soraething that looked like a skull
cap, I took off his coat, shirt, pants, vest, and
all his clothing the next day on board the
monitor. He had on a white linen shirt and
a woolen under-shirt, minus one sleeve; a
pair of boots with a broad ink-stain on them
on the inside,
[A box containing various articles of clothing was ex
hibited to tho witness,]
These are the articles. There is a distinct
mark on thera by which I recognize them.
I described to the prisoner at the time what
I supposed was his position when he com
mitted the assault, and told him I should
find blood on the coat-sleeve in the inside.
Spots of blood were found in the position I
described. [The witness exhibited the spots referred to.]
I found spots, also, on the white shirt
sleeve. I called Payne's attention to this
at the time, and said, "What do you think
now?" He leaned back against the side of
the boat and said nothing,
[The articles wore oifered in evidence.]
I asked hira where he had got his boots.
He said he had bought them in Baltimore,
and had worn thera three months. I called
his attention to this falsehood, as it was ap
parent the boots had only been slightly worn.
He made no reply to that
I took the boots away with me, and sent
one of them to the Treasury Department, to
ascertain, if possible, what the name was.
Cross-examined by Mr. Doster.
I did not threaten the prisoner at any time.
I think it is very possible I called him a liar.
I saw stains of blood on the coat that was
brought to me from Fort Bunker Hill; I
called the prisoner's attention to the fact,
and said, "How did that blood come there?*
He replied, "It is not blood." I said, "Look
and see, and say, if you can, that it is not
blood." He looked at it and said, " I do not
know how it came there."
Charles H. Rosoh.
For the Prosecution, — May 19.
I was present when the prisoner, Payne,
was searched.
[A bundle of articles, including a pair of boots and a
pocket-compass, was handed to the witness.]
All these articles were taken from the per
son of that big man there, [pointing to the
accused, Lewis Payne.]
The pocket-compass he himself handed to
Mr. Samson, and Mr. Samson handed it to
me. I recognize the boots; they were pulled
off in my presence.

TESTIMONY CONCERNING LEWIS PAYNE.

169

Spencer M. Clark.
For the Prosecution. — May 19,
[Submitting to the witness a pair of boots,]
I had one of these boots yesterday for
examination. I then discovered the name,
which has now mostly disappeared under the
effect of the acid I put upon it
When I received the boot, it had on the
inside a black mark, made apparently to
cover writing, I examined it with a micro
scope, and found that it was one coat of ink
overlaid on another, I then attempted to
take off the outer coat to see what was
below, and partially succeeded. The name
appeared to me to be J. W, Booth, The J
and W were distinct; the rest of the writing
was obscure, I can not speak positively of
a thing that is in itself obscure, but it left
very little doubt upon my mind that the
name was Booth,
Cross-examined by Mr, Dostee,
I have charge of the engraving and print
ing in the Treasury Department I took off
the outer coat of ink by the use of oxalic
acid. Where the lower coat of ink has
remained exposed to the air longer than the
upper coat, it is possible to take off the
upper and leave the lower or inner coat
undisturbed. The reason the latter part of
the name in this case was more obscure than
the first, is because I left the acid too long
on the outer coat, and it attacked the lower
one. The upper coat is separated from tbe
lower by washing with water as fast as it is
dissolved. The acid is put on under a mag
nifier, and the moraent the outer coat disap
pears, and the under one begins to show, I
destroy the acid. An examination at the
moment the outer coat dissolves and is
washed away, shows the lower coat of writ
ing, I supposed the lower coat had been
exposed to the air longer than the outer, and
made an effort to test it, which proved that
it was so.
The boot was given me by Mr, Field,
Second Assistant Secretary of the Treasury,
who told me it had belonged to Payne, I
expected to find the name of Payne, but I
thought I plainly discovered the " th " at the
end, when the name Booth came to my
mind. That was before I had clearly determ
ined upon the B. I should hesitate to
swear positively to any thing so obscure as
an obliterated signature, but I entertain very
little doubt that the name is J. W. Booth,
There is no process, that I am aware of, to
restore the name. The writing can not be
said to be erased; it has been acted upon by
the acid which destroys the color of the ink,
Edward Jordan.
For the Prosecution.— May 19.
I am a solicitor of the Treasury. I was
requested to look at the ink-marks on that

boot after it had been subjected to chemical
preparations by Mr. Clark, By examining
the writing through a glass, I came to the
conclusion that the name written there was
"J. W. Booth,"
Cross-examined by Mr. Dostbr.
I did not know to whom the boot belonged,
or where it came from; and I had nO suspi
cion why it was in Mr, Clark's possession, I
was accidentally passing the room of the
As,sistant Secretary of the Treasury, when
Mr, Clark said, " I have something curious
to show you, I wish you would look at it,"
or words to that effect. The flrst letter, "J,"
was very distinct; tlie W and B were less so,
I thought the outline of the writing was quite
visible and determinable, but to say that it
was distinct would not be true, I was asked
what I thought the name was. My reply
was, I thought it was the name of a very
distinguished individual.
By the Judge Advocate,
I arrived at the conclusion .that it was the
name of J, W, Booth before I had received
any intimation as to what it was supposed
to be,
Stephen Marsh.
For the Prosecution. — May 19.
That boot was shown to me by Mr. Field,
Assistant Secretary of the Treasury, yester
day. On examining it, I thought I could
make out certain letters on it At first I
could make out "J. W. B  h," then 1
thought I could trace a 't next to the h ; thus :
J, W, B  th. I could not be positive as
to the intervening letters; I examined them
only with the naked eye, but in regard to tbe
letters I have mentioned, I have no doubt at
all. In the intervening space, between the
B and th, there was room for two or three
letters.
Cross-examined by Me. Dostee.
The boot was handed to me by Mr. Field
in his room. I was told to examine it, and
see if I could make out what name appeared
to be written there. I did so, and the result
I have stated. Lieutenant John F. Toffey.
For the Prosecution, — May 17.
On the night of the 14th or the morning
of the 15th of April last, it might have been
a little after 1, as I was going to the Lin
coln Hospital, where I am on duty, I saw a
dark-bay horae, with saddle and bridle on,
standing at Lincoln Branch Barracks, about
three-quarters of a mile east of the Capitol.
The sweat was pouring off him, and had
made a regular puddle on the ground, A
sentinel at the hospital had' stopped the horse,
I put a guard round it and kept it there
until the Cavalry picket was thrown out

160

THE CONSPIRACY TRIAL.

when I reported the fact at the office of the
picket, and was requested to take the horse
down to the head-quarters of the picket, at
the Old Capitol Prison. I there reported
having the horse to Captain Lord, and he
requested me to take it to General Augur's
head-quarters. Captain Lansing of theThir-
teenth New York Cavalry and myself took
it there, where the saddle was taken off, and
the horse taken charge of
[A saddle was here shown to the witness.]
I should think that was the saddle; I
kno* the stirrups. When I got to General
Augur's head-quarters, I found that the horse
was blind of one eye. Whether he had
fallen or not I do not know, but as I rode
him down I noticed that he was a little
lame. From the Lincoln Hospital to the Navy
Yard Bridge is fully a mile.
[The saddle was put in evidence.]

Cross-examined by Mr. Dostbr.
The horse was on a sort of by-road that
leads to Camp Barry; it turns north from the
Branch Barracks toward Camp Barry to
the Bladensburg road, I found him by the
dispensary of the hospital. He had come
running there, but from what direction I do
not Icnow. Recalled, — May 18
I have been to General Augur's stables on
Seventeenth and I Streets, and there recog
nized the horse I found.
See also testimony of
Louis J. 'Weiohniann  pages 113, 118
Miss Anna B. Surratt  page 130
Miss Honora Fitzpatrick  " 132
John T. Holahan  " 139
Mrs. Eliza Holahan  " 132
Major H. Vf, Smith  " 121
Capt VI, M. ¦Wermerskirch  " 123
R. C. Morgan  " 122

DEFENSE OF LEWIS PAYNE.

Miss Maegaeet Branson.
For ihe Defense, — June 2.
By Me, DosTEa
I live at No, 16 North Eutaw Street,
Baltimore, I first met the prisoner, Payne,
at Gettysburg, immediately after the battle
there, I was a volunteer nurse, and he was
in my ward. He was very kind to the sick
and wounded. I do not know that he was a
nurse, nor do I know that he was a soldier.
As nearly as I remember, he wore blue
pants, no coat, and a dark slouch hat He
went there by the name of Powell, and by
the name of Doctor, The hospital contained
both Confederate and Union soldiers, I was
there about six weeks, and left the first
week in September. I do not remember
whether Powell was there the whole of that
time, I saw him again some tirae that fall or
winter, at my mother's house. He was
there but a very short time; only a few
hours, and I had very little conversation
with him.
Q, Did he say to you where he was going ?
Assistant Judge Advocate Bingham, The
witness need not state; what he said to her
is altogether incompetent evidence,
Mr, Dostbr. May it please the Court, I
intend to set up the plea of insanity, as I
have already stated, in the case of the pris
oner, Payne, It is very true that, under all
other pleas, declarations of this kind are not
considered competent evidence for the defense.

but tbe declaration of a person suspected of
insanity is an act, and therefore admissible.
Assistant Judge Advocate Bingham, That
is all very true; but the proper way to get
at it is to lay some foundation for introduc
ing the declarations in support of the allega
tion that the party was insane. In this'case
no foundation has been laid,
Mr, Dostbr, I claim that the whole con
duct of the alleged murderer, from beginning
to end, is the work of an insane man, and
that any further declarations I may prove,
are merely in support of that theory and of
that foundation as laid by the prosecution.
Assistant. Judge Advocate Bingham. Ac
cording to that, the more atrocious a man's
conduct is, the more he is to be permitted to
make a case for himself by all his wild dec
larations, of every sort and to everybody, at
every time and at every place. If he only
manages to get a knife large enough to sever
the head of an ox as well as the head of
a man, rushes past all the friends of a sick
man into his chamber, stabs hira first on one
side of the throat and then on the other, and
slashes him across the face, breaks the skull
of his son, who tries to rescue him, yelps,
"I am mad I I am mad!" and rushes to the
door and mounts a horse which he was care
ful to have tied there, he may thereupon
prove all his declarations in his own defense,
to show that he was not there at all.
Mr. Doster, It is claimed here that there
is no foundation laid for the plea of insanity.
In the flrst place, all the circumstances con-

DEFENSE OF LE'WIS PAYNE.

161

neoted with the assassination show the work
of insane men. The entrance into the house
of Mr, Seward was by a stratagem which is
peculiarly indicative of insane men. Then
the conduct of Payne, after he entered the
house, without the slightest particle of dis
guise, speaking to the negro for five minutes
— a person that he must know would be able
to recognize him again therafter; the ferocity
of the crime, which is not indicative of hu
man nature in its sane state; his leaving all
the traces which men usually close up be
hind him. Instead of taking away his pistol
and his knife and his hat, he walks leisurely
out of the room, having plenty of time to
take these away, and abandons them ; he
takes his knife and deliberately throws it
down in front of Mr. Seward's door, as
though anxious to be detected; and then,
instead of riding off quickly, as a sane man
would under the circumstances, he "moves off
90 slowly that the negro tells you he followed
him for a whole square on a walk; and after
ward, instead of escaping either to the north,
on the side where there were no pickets at the
time, (for it was shown he had a sound
horse,) or instead of escaping over the river,
as he had ample opportunity of doing — be
cause if he could not get across the Ana-
costa Bridge, he might have swam the river
at any point — he wanders off into the woods,
rides around like a maniac, abandons his
horse, takes to the woods, and finally comes
back to the very house which, if he had
any sense, 1^ knew must be exactly the
house where he would be arrested — where there
were guards at the tirae, and where he must
have known, if he had been sane, that he
would immediately walk into the arms of
the military authorities. He goes to this
house in a crazy disguise; because who in
the world ever heard of a man disguising
himself by using a piece of his drawers as a
hat, supposing that a sane man would not
discover the disguise. Finally, there is the
conduct of this person since he has been
here on trial — the extraordinary stolidity of
this man, as opposed to the ^est of the prison
ers; instead of showing the slightest feeling,
he has displayed an indifference throughout
this trial. You yourselves noticed that at
the time of tha;t solemn scene, when the ne
gro identified him he stood here and lauglied
at the moment when his life was trembling
in the balance, I ask you, is that the con
duct of a sane man? There are, besides,
some physical reasons which go hand in
hand with insanity, and corroborate it, of a
character more delicate, and -H-hich I can
not mention now, but which I am prepared
to prove before the Court at any time, I say
that tlie most probable case of insanity that
can be made out has been made out by the
prosecution, in the conduct of this prisoner
before the assassination, during the assassi
nation, at the time of his arrest, and during
the trial. 11

Mr, Clampitt, May it please the Court, I
do not rise for the purpose of denying to
the counsel for the accused, Payne, the right
to set up the plea of insanity, or any other
plea that he thinks proper; but I do rise for
the purpose of indignantly proclaiming that
he has no right to endeavor to bring before
this Court the house of Mrs, Surratt as a
rendezvous to which Payne would naturally
resort There is no evidence which has
shown that he would naturally go to her
house for the purpose of hiding or for the
purpose of screening himself from justice.
The Comraission sustained the objection
of the Judge Advocate.
Witness, I do not know where he went
to frora my mother's. In January of this year,
he came again to our house. He was dressM
then in citizen's dress of black, and repre
sented himself to be a refugee from Farquier
County, Va., and gave his name as Payne.
He took a room at my mother's house, staid
there six weeks and a few days, and left in the
beginning of March. He never, to my knowl
edge, saw any company while there. I never
saw J, Wilkes Booth, and do not know that
he ever called upon Payne,
Margaret Kaighn.
For the Defense,— June 2,
By Mr, 'Doster.
I am servant at Mrs, Branson's, I have
seen the prisoner, Payne, at Mrs, Branson's
boarding-house; he came there last January
or February, and remained till the middle of
March, I remember he asked a negro servant
to clean up his 'room, and she gave him some
impudence, and said she would not do it She
called him some names, and then he struck
her; he threw her on the ground and stamped
on her body, struck her on the forehead, and
said he would kill her; and the girl after
ward went to have him arrested.
Dr, Charles H. Nichols.
For the Defense. — June 2.
By Me, Dostbr.
Q, Have I at any time given you any indi
cation of the answers I expected you to give
before this Court?
A, You have not
Q, State what your official position is, and
your profession,
A, 1 am a doctor of medicine, and super
intendent of the Government Hospital for the
Insane, which position I have occupied for
thirteen years,
Q, What class of persons do you treat in
your hospital ? mi, u n
A, Insane persons exclusively. The bulk
of the patients I treat are composed of sailors
and soldiers,
Q, Please define moral insanity.
A. When the moral or aft'ective faculties

162

THE CONSPIRACY TRIAL.

seem to be exclusively affected by disease of the
brain, I call that a case of moral insanity.
Q. What are some of the principal leading
causes that produce moral insanity?
A. My impression is that insanity is oft-
ener caused by physical disease than moral
causes, and that the fact that insanity takes
the form of moral insanity is apt to depend
on the character of the individual before/he
becomes deranged.
Q, Is active service in the field, among
soldiers, at any time, a cause of moral in
sanity ?
A. It is; but not a frequent cause. I have
known cases of moral insanity occur among
soldiers. Q. Has or has not insanity increased very
much in the country, and in your hospital,
during the present war?
A. It has.
Q. Has it not increased much more, pro
portionately, than the increase in the army?
A. It has.
Q. How is the increase accounted for?
A. By the diseases, hardships, and fatigues
of a soldier's life, I think, to which the men
were not accustomed until they entered the
service. Q, Are young men who enlist more ex
posed to insanity than men who enlist in
middle life?
A, I am not sure that they are. My ira-
pression is, that young men accomraodate
theraselves to a change in their manner of
life rather more readily than men of middle
age, Q, What are some of the leading symp
toms of moral insanity?
A, The cases are as diverse as the indi
viduals affected. If a man, for example, be
lieves an act to be right which he did not
believe to be right when in health, and which
people generally do not believe to be right,
I regard that as a symptom of moral in
sanity. Q. Is depression of spirits at any time con
sidered a symptom of insanity.?
A. It is.
Q. Is great taciturnity considered a symp
tom? A. It is a frequent symptora of insanity,
but I can conceive that great taciturnity
might exist without insanity.
Q, Is a disposition to comrait suicide and
an indifference to life considered a symptora ?
A, It is.
Q. Is great cunning and subtlety in making
plans concomitant of insanity?
A. The insane frequently exhibit extraor
dinary cunning in their plans to effect an
object Q, Is it or is it not possible for a madman to
confederate with other madraen or sane men
in plans?
A, I would say that it is not impossible,
but it is infrequent for madmen to confeder
ate in effecting their plans.

Q. Do madmen never confederate in plans ?
A. Very seldom.
Q, Is or is not a morbid propensity to de
stroy, proof of insanity ?
A. Not a proof, but it is a very common
attendant upon insanity,
Q. Is it not a symptom of insanity if one,
apparently'sane, and without provocation or
cause, commits a crime?
A. I should regard it as giving rise to a sus
picion of insanity, butnotof itself a proof of it
Q, Is not all conduct that differs from the
usual modes of the world proof of insanity?
A. I will answer that by saying that no
single condition is a proof of insanity in every
instance, but that an entire departure from
the usual conduct of man would be consid
ered as affording strong ground to suspect
the existence of insanity.
Q. Are madmen not remarkable for great
cruelty ?
A. My impression is that madraen exhibit
about the same disposition in that respect
that men generally do.
Q, Do or do not madmen, in committing
crimes, seem to act without pity?
A, Those who comrait criminal acts fre
quently do.
Q, If one should try to murder a sick man
in his bed, without ever having seen him
before, would it not be presumptive proof of
insanity? A, It would give rise, in my mind, to the
suspicion that a man was insane, I should
not regard it as proof
Q, If the same person should besides try
to murder four other persons in the house
without having seen them before, would it
not strengthen that suspicion of insanity ?
A, I think it would,
Q, If the same person should make no at
tempt to disguise hiraself, but should converse
for five minutes with a negro servant, walk
away leisurely, leave his hat and pistol be
hind, throw away his knife before the door,
and ride away so slowly that he could be fol
lowed for a square by a man on foot, would
not such conduct further corroborate the sus
picion of insanity?
A, I think it would. It is a peculiarity of
the insane, when they commit criminal acts,
that they make little or no attempt to conceal
them; but that is not always the case.
Q, If the same person should cry out, while
stabbing one of the attendants, "I am mad, I
am mad," would it not be further ground for
suspicion that he was insane?
A. Such an exclamation would give rise, in
my mind, to an impression that the man was
feigning insanity. Insane men rarely make
such an exclamation, or a similar one, and
they rarely excuse themselves for a criminal
act on the ground that they are insane.
Q. Do not madmen sometimes unconscious
ly state that they are mad?
A. They do sometimes, but it is not fre
quent that they do.

DEFENSE OF LE'WIS PAYNE.

163

Q. Do you not remember cases in your ex
perience where madmen have told you they
were mad ?
A. They frequently do it in this way: An
individual knows that he is regarded as in
sane, and if taken to task for any improper
act, a shrewd man will excuse himself on the
ground that he is an insane man, and there
fore not responsible.
Q. If the same person that I have men
tioned should, although in the possession of
a sound horse, make no effort to escape, but
should abandon his horse, wander off into the
woods, and come back to a hcusc surrounded
with soldiers, and where he might expect to
be arrested, would that not be additional
ground for the suspicion that he was insane?
A. I should regard ev«ry act of a man who
had committed a cripie, indicating that he
was indifferent to the consequences, as a
ground for suspecting that he was insane.
Q, If the same^erson should return to this
house I have spoken of, with a piece of his
drawers for his hat, at a time when he saw
the soldiers in its possession, would not that
be additional proof of insanity?
A, I can hardly see what bearing that
would have upon the question of insanity.
Q. I understood you to say before that
madmen seldom disguise themselves. The
disguise in question consisted of a piece of
drawers being used for a hat I ask whether
that disguise may properly be presumed to be
the disguise of a sane man or an insane man?
A. It would depend upon circumstances.
It is a common peculiarity of insane men,
that they dress themselves in a fantastic
manner; for example, make head-dresses out
of pieces of old garments. They do it, how
ever, apparently from a childish fancy for
something that is fantastic and attracts at
tention ; and I do not recollect a case of an
insane person dressing hiraself in a garment
or garments of that kind for the sake of dis
guising himself
¦Q, If this same person, after his arrest,
should express a strong desire to be hanged,
and express great indifference of life, would
that be additional ground for suspicion of
insanity? A. I think it would,
Q. Would it be further ground for suspi
cion if he seemed totally indifferent to the
conduct of his trial, laughed when he was
identified, and betrayed a stolidity of manner
different from his associates?
A. I think it would.
Q. Please state to the Court what physical
sickness generally accompanies insanity, if
any there is.
A. I believe that disease, either functional
or organic, of the brain always accompanies
insanity. No other physical disease neces
sarily, or perhaps usually, accompanies it
Q. Is long-continued constipation one of
the physical conditions that accompany in
sanity ?

A. Long-continued constipation frequently
precedes insanity. Constipation is not very
frequent among the actual insane,
Q, If this same person that I have de
scribed to you, had been suffering from con
stipation for four weeks, would that be con
sidered additional ground for believing in his
insanity? A, I think it would, I think some weight
might be given to that circumstance,
Q, If the same person, during his trial
and during his confinement, never spoke
until spoken to, at a time when all his com
panions were peevish and clamorous; if he
never expressed a want when all the rest
expressed many ; remained in the same spirits
when the rest were depressed ; retained the
same expression of indifference when the
rest were nervous and anxious, and continued
immovable, except a certain wildness in his
eyes, would it not be considered additional
ground for believing in his insanity?
A, I think it would.
Q, If this same person, after committing
the crime, should, on being questioned as to
the cause, say he remembered nothing dis
tinctly, but only a struggle with persons
whom he had no desire whatever to kill,
would not that be additional ground for sus
picion of insanity ?
A, I think it would,
Q. What are the qualities of mind and
person needed by a keeper to secure control
over a madman ?
A. Self-control.
Q, Are not madmen easily managed by
persons of strong will and resolute character ?
A. Yes, sir; they are,
Q. Are there not instances on record of
madmen who toward others were wild, while
toward their keepers, or certain persons
whom they held to be superiors, they were
docile and obedient, in the manner of dogs
toward their masters?
A, I think the servile obedience which a
dog exhibits to his master is rarely exhib
ited by the insane. It is true, that the insane
are comparatively mild and obedient to cer
tain persons, when they are more or less
turbulent and violent toward other persons.
Q, Would it not be possible for such a
keeper, exercising supreme control over a
madman, to direct him to the commission of
a crime, and secure that comraission ?
A, I should say that would be very diffi
cult, unless it was done in the course of a
few minutes after the plan was laid and the
direction given. I should say, generally, it
would be very difficult
Q. Is not the influence of some persons
over madmen so great that their will seems
to take the place of the will of the mad
man ?
A. There is a great difference in the
control that different individuals have over
insane persons, but I think it an error that
that control reaches the extent you have

164

THE CONSPIRACY TRIAL.

described, or the extent, I may add, that is
popularly supposed.
Q. Do you or not recognize a distinction
between mania and delusion?
A. A certain distinction, inasmuch as de
lusion may accompany any form and every
form of insanity, and mania is the name
given to a particular form, which may or
may not be accompanied by delusion,
Q, Are not instances of insane delusion
more frequent during civil war than any
other kind of insanity?
A, My impression is, that cases in which
delusions are entertained are not as frequent
Insanity is of a more general character— so
far as my experience goes, has been during
the war, among soldiers — than it usually is,
Q, Does or does not constant dwelling on
the same subject lead to an insane delusion ?
A. It frequently does, I think.
Q. If a body of men, for instance, who
owned slaves,were constantly hearing speeches
and sermons vindicating the divine right of
slavery, burned men at tlie stake for attempt
ing to abolish slavery, and finally took up
arms to defend slavery, when no man was
really attacking it, would not that be evi
dence that some of these men were actually
deluded ?
A. I think it would ; but it does not follow
that the delusion is wliat I technically de
nominate an insane delusion, arising from
(disease of the brain, and for which a man is
-not responsible,
Q. If one of those same men who owned
slaves, and believed in the divine origin of
slavery, and had fought in its defense, and
¦believed that he had also fought in defense
of his home and friends, should attempt, on
his own motion, to kill the leaders of the
.people, who he believed were killing his
-friends, would not that conduct be esteemed
a fanatical delusion ? /
Assistant Judge Advocate Burnett, Un
less Mr Doster can give us some idea when
this species of examination will be brought
to a close, we must here interpose objection,
Jt certainly has nothing whatever to do with
Uie case. He is imagining facts that do not
exist, and he is examining upon a basis that
Jie has not laid, and it is certainly irrelevant
and foreign to the issue. Will Mr, Doster state
^f he is nearly through with his examination?
Mr, Dostbr, The course of examination
that I propose is not a great deal longer, I
mentioned the other day tliat it was impos
sible for Vfie to secure the attendance of wit
nesses from Florida. Regularly, I ought not
to have called Dr. Nichols before these wit
nesses had been here and had been exam
ined. I have been unwilling to detain Dr,
Nichols here, and have endeavored to go over
the whole ground with him, so that I need
not call him twice, as I would have to do if I
were to call these witnesses from Florida first
Witness. If I may be allowed, I would
Uke to give an explanatory answer. I have

given just a categorical one to all the ques
tions that have been asked me, I believe; 1
am, personally, and as an expert, very much
opposed to giving an opinion in respect to
hypothelical cases, for the simple and best
of reasons, as I conceive that I have none,
and I could give no definite opinion upon
the facts implied in the questions submitted
to me. Every case of insanity is a case of
itself, and has to be studied with all the light
that can be thrown upon it, and it is impos
sible for me to give an opinion upon a hypo
thetical case.
Dr, James C, Hall.
jFbr the Defense. — June 13.
This morning I spent three-quarters of an
hour in an examination of the prisoner,
Lewis Payne. I first examined him with
regard to his physical condition. His eye
appeared to be perfectly natural, except that
it appeared to have very little intellectual
expression; but it was capable of showing a
great deal of passion and feeling, I discov
ered a remarkable want of symmetry in the
two sides of his head. The left side is much
more developed than the right His pulse I
counted twice carefully ; I found it to be a
hundred and eight, which is about thirty
strokes above a natural healthy pulse. In
other respects his health seemed to be good,
with the exception of another habit, which,
I believe, the Court is informed of — namely,
constipation. His general muscular develop
ment is perfectly healthy.
I questioned him first to test his memory. I
found that it acted very slowly. He appeared
to answer my questions willingly, but his mind
appeared to be very inert, and it took some
time before he would give me an answer to
a very simple question, though he did not
seem to be at all reluctant in giving me the
information I was seeking for. His intel
lect appears to be of a very low order; and
yet I could not discover that there was any
sign of insanity. His mind is naturally dull
and feeble, and, I presume, has not been culti
vated by education,
1 asked him certain questions which I
thought would draw out his moral nature
and feelings, and the conclusion to which I
came was, that he would perform acts, and
think himself justified in so doing, which a
man of better moral nature and of a better
mind would condemn,
Q, Did you or not state the case to him of
a person committing the crime with which he
is charged, and ask his opinion in reference
to the moral right to commit it?
A. I did. I mentioned it as a supposed
case, and he said he thought a person in per
forming such an act as I described would be
justified. " I wish you would give me some
reason," I said, " why you think he would
be justified; why you think an act which
I think wrong, and which everybody else

DEFENSE OP LEWIS PAYNE

165

thinks wrong, could be justified." His an
swer amounted to this, that he thought in
war a person was entitled to take life. That
was the reason he assigned why he thought
such an act could be justified,
I should say that, from the whole exam
ination, there was reasonable ground for
suspicion of insanity. It seems to me that
no man could, if he were perfectly sane, ex
hibit the utter insensibility that he does and
did in my presence. I do not think there was
any attempt at deception. He answered the
questions, so far as his mind would permit
him, plainly and clearly, without any attempt
at deceiving me or misleading me. I can not
give a positive opinion that he is laboring
under either moral or mental insanity. To
decide on a case of this kind, one ought to see
the personal various times and under various
circumstances. I never saw this man before.
Cross-examined by the Judge Advocate.
I can not discover any positive signs of
mental insanity, but of a very feeble, inert
mind ; a deficiency of mind rather than a
derangement of it; a very low order of intel
lect His memory appears to be very slow
in acting,
Q, Did he or not seem to have a distinct
recollection of his crime, and also of the mo
tives and course of reasoning —
Mr, Doster. I object to that question.
Witness. I did not refer to it as the crime
committed by hiraself I asked hira what
he would think of a man who had committed
a crime such as he was charged with, and
he said he thought he would be right in
doing it I carefully avoided applying the
act or crime to himself, personally ; I merely
spoke of it as a supposititious case. I did not
think it would be right fOr rae to receive any
confession from him, and I rather avoided
extorting it I by no means regard atrocious
crime as per se evidence of insanity.
Q. Do yOu regard insensibility under crime
or indifference to the results of crime as indi
cating insanity 7
A. Where a man commits crime habitually
and without any adequate motive or provo
cation, I should be disposed then to suspect
insanity. If there is an absence of motive
and an absence of provocation, and if it is
done habitually, these are the conditions. A
single act I should be very reluctant to form
an opinion upon.
Q. If a man, engaged in arms as a rebel
against the Government of his country, is
Ibund assassinating its Chief Magistrate and
the members of its Cabinet, would you or nof
regard these circumstances as indicating suf
ficiently the presence of motive to save him
from the imputation of insanity?
A. Yes, he might have a motive. I can
readily conceive that a man might think he
had a sufficient motive and a sufficient justi
fication for it
Q. Do I or not understand you to say. Doc

tor, that, from the whole examination you
have made, you regard the prisoner, Payne, as
sufficiently sane to be a responsible being for
his acts?
A. I have not altogether made up my mind
on that I do not think that the single e.\am-
ation which I have made would suffice to
decide the question. I think there is enough
to allow us a suspicion that he may not be a
perfectly sane and responsible man, I can
give no positive opinion on that point His
intellect is very feeble and inert
Q, Tbe extent, then, to which you go, is
that there is ground for suspicions ? You do
not express any such opinion ?
A, I do not express a positive opinion that
he is either morally or mentally insane, but
that there is sufficient ground, both from his
physical condition and his mental develop
ment, for a suspicion of insanity.
Q. Do you rest that suspicion largely on his
course of reasoning, and the conclusion he
drew frora the case which you supposed?
A. Yes, sir; I should think that was the
result either of insanity or very badly culti
vated mind, and very bad morals.
Q. Might it not be wholly the result of very
bad morals?
A. It might entirely. I attach some im
portance to his physical condition. It is
generally known that persons who are insane,
habitually, with few exceptions, have an un
usual frequency of pulse. His pulse is thirty
odd strokes above the normal standard.
Q, He was aware of the purpose for which
you had your interview with him, was he not?
A, I introduced myself by telling him
that I was a physician, and that the Court
had directed me to examine into his condi
tion, and I referred to some matters connected
with his health.
Q, Did he seem to be under any excite
ment? A, Not the least He was perfectly calm,
and at times smiled. He did not seem to be
playing a part at all. He appeared to answer
the questions honestly and truthfully, so far
as I could judge; but his memory is very
slow, and it is very difficult to get from him
an answer to a very simple question. I asked
him in regard to his birth and his residence.
He could not remember the maiden name of
his mother. He said her first name was Caro
line, but he could not remember her maiden
name. But I have known sane persons who forgot
their own names. The celebrated John Law,
of this city, would go to the post-office and be
unable to call for a letter in his own name.
John B. Hubbard.
For the Defense. — June 3.
By Me. Doster.
I am at times in charge of the prisoner^
Lewis Payne, and have at times had conver
sation with him.

166

THE CONSPIRACY TRIAL.

Q. Please state the substance of that con
versation. Assistant Judge Advocate Bingham. That
I object to.
The Judge Advocate, Is this conversa
tion offered as a confession, or as evidence
of insanity?
Mr, Dostbr. As evidence of insanity, I
believe it is a settled principle of law that all
declarations are admissible under the plea of
insanity. Assistant Judge Advocate Bingham, There
is no such principle of the law, that all decla
rations are admissible on the part of the ac
cused for any purpose. I object to the intro
duction of the declarations of the prisoner,
made on his own motion.
The Judge Advocate. If the Court please,
as a confession, of course, this declaration is
not at all competent, but if it is relied upon
as indicating an insane condition of mind, I
think it would be better for the Court to con
sider it We shall be careful, however, to
exclude ftom its consideration these state
ments so far as the question of the guilt or
innocence of the particular crime is con
cerned, and to admit them only so far as
they may aid in solving the question of in
sanity raised by the counsel.
Witness. I was taking him out of the
courtrroom, about the third or fourth day of
the trial, and he said he wished they would
make haste and hang hira; that he was tired
of life, and would rather be hung than corae
back here in the court-room. And about a
week ago he spoke to me about his constipa
tion; he said he had been constipated ever
since he had been here, I have no personal
knowledge of the truth of this.
Cross-examined by the Judge Advocate.
I communicated this statement to Colo
nel Dodd or Colonel McCall, and I believe to
General Hartranft, and to no one else.
John E. Roberts.
For the Defense, — June 3.
By Mr. Dostee.
I am on duty around the prison, but have
no special charge of the prisoner, Lewis
Payne, more thaiT the others. I have had
a little conversation with him. After the
coat and hat were taken off him, on the day
that Major Seward was examined, I had to
put his irons back on him, and he told me
then that they were tracking him pretty close,
and that he wanted to die.
Colonel W. H. H. McCall.
For ihe Defense. — June 3.
By Mr. Dostee.
1 have charge of the prisoner, Payne, in
connection with Colonel Frederick and Colo
nel Dodd; we each have eight hours' duty
out of the twenty-four. My duty makes me

cognizant of the conduct of the prisoner in
his cell, and to the best of my knowledge he
has been constipated from the 29th of April
until last evening; that was his first passage.
I never had any conversation with him on
the subject of his death.
Mrs. LucfT Ann Grant.
For the Defense. — June 12.
By Mr. Dostbr.
Mr. Doster. I am about to call two wit
nesses, and to prevent any objections being
made, I will state that the reason for calling
them is to show that the prisoner, Payne,
three months before the alleged attempted
assassination of Mr. Seward, saved the lives
of two Union soldiers. It is the very essence
of insanity that one violates the " even tenor"
of his previous life; and, therefore, if I can
show that three months before the alleged
attempted assassination this person exercised
a degree of honor and benevolence, which he
afterward violated and turned into ferocity
and malignity, it will give a high degree of
probability to the plea, and his subsequent
conduct can only be explained by his being
under the control of fury and madness.
Witness, I live on the Waterloo Pike,
Warrenton, Virginia, I recollect having seen
one of the prisoners before; that one with
the gray shirt, [pointing to the accused,
Lewis Payne,] I saw him some time about
Christmas in the road in front of our house;
he was in charge of three Union prisoners.
It was at the time of General Torbett's raid;
after he had passed through Warrenton, on
his return to 'Washington, Some men — ^rebel
soldiers, I suppose, from their uniform — were
going to kill these prisoners, and I reraember
seeing this raan try to prevent it He told
them that he could not defend all, but if
they killed or captured the one he had in
charge, they would do it at the peril of their
lives. They left the road then, and I do not
know what became of them afterward, but I
know one of the prisoners was killed, for a
Confederate soldier wanted to bring him into
my house, and I was scared nearly to death.
Cross-examined by the Judge Advocate.
I never saw the man before or since; but
he is the same man, I am certain. I should
know him anywhere. He was dressed in a
dark gray uniform, and some of the men
called him " Lieutenant" I understood from
a citizen to whom I was speaking about his
trying to save those Union prisoners that his
name was Powell. John Grant.
For the Defense, — June 12.
By Mr. Dostee.
I am the husband of Mrs. Grant, who
has just left the stand. I was about three

TESTIMONY IN REBUTTAL.

167

hundr«d yards from my home, when the
affray began in front of my house, on the
first of last January. I rushed home as
quickly as I could, when the pistol firing

commenced; and I saw that that man,
[Payne,] whose name I understood was
Powell, saved the lives of two Union sol
diers.

TESTIMONY IN REBUTTAL.

Surgeon-General J. K. Barnes.
For the Prosecution. — June 14.
In association with Dr. Hall and Surgeon
Norris, I have made an examination this
morning of the prisoner, Payne, and find no
evidence of insanity — none whatever.
The evidences of sanity which struck me as
present in his case are his narrative of himself,
of the places he has been at, of his occupation,
the coherence of his story, and, the most im
portant evidence, his reiteration of his state
ments of yesterday and of his first examination
this morning. That is considered a very se
vere test It is called the Shakspearian test,
and is one of the severest
Cross-examined by Mr. Dostee.
I should consider the Shakspearian test
a test for both moral and mental sanity.
I have not of late years had a large expe
rience in cases of insanity ; but some years
ago I was in charge of the insane wards of a
large hospital.
I was present when the prisoner answered
Dr. Hall's question as to his moral responsi
bility for this crime, and heard him say that,
under certain circumstances, he considered
such a crime justifiable.
Dr. James C. Hall.
Recalled for ihe Prosecution. — June 14.
This morning, in connection with Dr Nor
ris and Dr. Port^, we had an examination of
the prisoner, Lewis Payne, and since the
recess of the Comraission, Dr. Barnes, the
Surgeon-General, joined us, and we examined
him again.
I asked him very nearly the same questions
I proposed to him yesterday, for the purpose
of seeing whether he would give me answers
consistent with those which I then received,
and I found that they were very accurately
the same, and he answered to-day with rather
more promptness than yesterday.
I think I am now prepared to say that
there is no evidence of mental insanity.
Payne's mind is weak and uncultivated, but
I can not discover any sufficient evidence of
mental insanity.

Cross-examined by Me. Dostbe.
Q. What are you prepared to state as to his
moral insanity ?
A. We asked him the question to-day
whether he believed in a God. He said he
did, and that he believed he was a just God,
He also acknowledged to me- that at one time
he had been a member of the Baptist Church.
I asked him the question, which I believe I
repeated to the Court yesterday, whether he
thought that private assassination, practiced
upon an enemy in public war, was justifiable.
After some little hesitation, he said that he
believed it was.
Q. Is it or not esteemed an evidence of a
fanatical delusion that a person believes to
be right what everybody else believes to be
wrong ?
A, In some instances it would; but I can
readily conceive that there are persons whose
minds and morals are such that they would
believe a crime similar to that which he
has comraitted to be justifiable and proper,
even a duty. De. Basil Norris.
For the Prosecution. — June 14.
1 am a surgeon in the regular army.
This morning, in association with the Sur
geon-General of the army and Dr. Hall, I
made an examination of the prisoner, Payne,
and I arrived at the conclusion that he is not
insane. His look is natural, and his speech per
fectly natural, and his manner natural; that
of a man sane. There is nothing in his
appearance, or speech, or manner that indi
cates to me that he is a man of unsound mind.
In my opinion, there is nothing to indicate the
presence either of moral or what may becalled
mental insanity. We asked him a number
of questions. His reasoning faculties ap
peared to be good, and his judgment good,
to which I attach great importance.
We could not learn of any thing in his
past life, so far as we have been able to
gather his history, that would indicate in
sanity. We learned but very little of his
past history; but so far as his life has been
disclosed since he has been here, his con-

168

THE CONSPIRACY TRIAL.

duct and conversations, nothing that he Ijas
done, has indicated to rae that he was an in
sane man. Cross-examined ^y Mr, Dostee.
I am not familiar with cases of insanity,
but I have seen some cases, and have visited
institutions for the insane,' I would form
my opinion of a man very much as any other
person. ^'
It is not usual for madness to escape the
scrutiny of physicians on a single intervievv,
or on two interviews, I think there is some
thing always in the appearance of a man, in
his manner or in his speech, that would
arouse a suspicion of a physician, or indeed
of any intelligent person, even on one inter
view. I have heard of .cases of men who have
been examined for months at a time before
their madness was discovered, but none have
come to my knowledge,
I do not think the conduct of the prisoner
in my presence was the conduct of a madman
during a lucid interval. It will be found upon
scrutiny that the conduct of a madman in a
lucid interval differs from the ordinary con
duct of men. Upon careful examination,
there will be some indication always, in my
opinion, that to several medical men, or sev
eral intelligent men, will be observable, I
would regard it as a very exceptional case if
this raan should be insane, I believe it is
possible that this man might be a mono
maniac on a subject not broached to him this
morning; but yet a monomaniac will almost
invariably — I believe myself he would invari
ably — in a conversation with strange persons,
strike upon that subject that he had the delu
sion on — that subject upon which he was
insane. It is my opinion that a monoraa-
niac, in an examination of half an hour
even, by strange persons especially, would
strike upon the subject on which he was
deluded; that he would speak upon the sub
ject on which he was ^ monomaniac. I

believe there are cases on record of mono
maniacs who have gone whole weeks with
out referring to the subject on which they
were insane; but I have never seen such
cases. Assistant Surgeon Gboege L. Poetee.
For the Prosecution. — June 14.
I was associated with Surgeon-General
Barnes and other medical gentlemen in an
examination of the prisoner, Lewis Payne,
and our conclusion was that he was a sane
man, and responsible for his actions.
He has been under my eye ever since he
has been confined here, I have made in
spections twice each day since the 30th of
April ; and his conduct and conversation
during that period have been such as to
impress me that he is a sane and responsible
man, I have not observed any indication
of insanity, I
Cross-examined by Mr. Dostbe.
I believe that the law does not recog
nize moral as distinct from mental insanity.
Moral insanity is where the mind of a person
is perverted on moral subjects; mental insan
ity has regard to the intellectual more than
the moral faculties. The symptoms of moral
insanity are common to all cases of insanity.
Insane persons have generally some phys
ical symptoms which I find wanting in this
case, I have examined this man twice each
day, and I found that his pulse, as a general
rule, was lower than the pulse of the others.
Recently, I have examined by the watch, and
find that his has not been so frequent as
that of the other prisoners.. Last night it
was eighty; this morning it was eighty-three
or eighty-four. Another symptom of insan
ity is want of sleep, restlessness. In this
case it has been particularly noticeable that
while the other prisoners were awake when
I made my inspections in the evening, I
almost always found this man asleep.

TESTIMONY CONCERNING SAMUEL A. MUDD.

Colonel H. H. Wells.
For the Prosecution. — May 16.
During the week subsequent to the assas
sination, I had three interviews with Dr.
Samuel A. Mudd, in each of which he made
statements to me; the flrst and third verbal,
the second in writing. He said that, about
4 o'clock on Saturday morning, the 15th of
April, he was aroused by a loud knock at
his door. Going to the window, he saw in

his front yard a person holding two horses,
on one of which a second person was sitting.
The one who held the horses he described
as a young man, very talkative and fluent
of speech. The person on horseback had
broken his leg, and desired medical attend
ance. He (Mudd) assisted in bringing the
person on horseback into his house, and lay
ing him upon the sofa in the parlor. After
he had lain on the sofa for some time, he
was carried up stairs, and put on a bed in

TESTIMONY CONCERNING SAMUEL A. MUDD.

169

the front room. He then examined his leg,
and found that the front bone was broken,
nearly at right angles, about two inches
above the instep. It seemed, in his judg
ment, as slight a breaking as it could possi
bly be. The patient complained also of a
pain in his back. He examined and found
no apparent cause for the pain, unless it
might have been in consequence of his fall
ing from his horse, as he said he had done.
Dr. Mudd stated that he dressed the limb as
well as he was able to do it with the limited
facilities he had, and called a young man, a
white servant, I think, to make a crutch for
him. At breakfast, the younger of the two
persons partook with them. After breakfast.
Dr. Mudd observed the condition of his pa
tient. He seemed much debilitated, and pale
to such an extent that he was unable to tell
what his compilexion might have been, light
or dark. Alter breakfast the young man
made some remark about procuring a con
veyance to take his friend away. In the
mean tirae he (Mudd) had been about, giving
directions to his farm servants. I think he
said the two persons reraained until sorae
time after dinner. He started out with the
young man to see if a carriage could be. pro
cured at his father's, but meeting his younger
brother, he ascertained from him that the
carriage could not be procured, and then
rode on to join the young man who had gone
ahead, and together they rode into the pines
a mile and a half beyond the elder Mudd's
house. The young raan remarked that he
would not go further to get a carriage, but
would go back to the house and see if he
could get his friend oft' in sorae way or other.
Dr. Mudd then went, as he said, to the^town,
or near the town, to see sorae friends or
patients, and then returned to his house.
As he came back to his house, he saw the
younger man of the two pass to the left of
the house toward the barn.
He said he did not recognize the wounded
man, I exhibited to him a photograph of
Booth, but he said he could not recognize
him from that photograph.
He said he had been introduced to Booth
at Church, some time in November last, as
wanting to buy farming lands, and that they
had some little conversation on the subject
of lands. In this conversation Booth asked
if there were any desirable horses .that could
be bought in the neighborhood cheaply; and
Mudd mentioned a neighbor of his who had
some horses that were good drivers ; that
Booth remained with him that night, and
next morning purchased one of those horses.
In~ answer to a question, he admitted that
he could now recognize the person he treated
as the same person he was introduced to —
Booth, He had never seen Booth from the
time he was introduced to him in Church
until that Saturday morning. Herold he
had not before seen.
He thought there was something strange

about these two persons, from the young
man coming down shortly after breakfast
and asking for a razor, saying his friend
wished to shave himself; and when he was
up stairs shortly afterward, he saw that the
wounded man h^d shaved off his moustache.
The wounded man, he thought, had a long,
heavy beard; whether natural or artificial
he did not know. He kept a shawl about
his neck, seemingly for the purpose of con
cealing the lower part of his face. He said
he first heard of the murder either on Sun
day morning or late on Saturday evening.
He said that Herold — for by that name we
spoke of him after the first explanation —
aslced hira the direct road to Dr. Wilmer's,
saying he was acquainted with the Doctor,
Dr. Mudd described the main traveled road,
and was then asked if there was not a nearer
way. He replied that there was a road
across the swamp, and described it
Dr. Mudd pointed out to me the track they
took, and I went with him a long way into
the marsh, and across it on to the hill,
where, instead of keeping straight on, they
turned square to the left, across a piece of
plowed ground, and there all trace of them
was lost
This embraces what Dr. Mudd told me at
the several interviews.
Cross-examined by Me. Ewing.
Dr. Mudd's manner was so very extraor
dinary, that I scarcely know how to describe
it He did not seem unwilling to answer a
direct question ; he seemed embarrassed, and
at the third interview alarmed, and I found
that, unless I asked direct questions, import
ant facts were omitted, I first saw him on
Friday, the 21st, and my last interview was
on Sunday, I think. 'We had, perhaps, a
dozen interviews in all. It was at the last
interview that I told him he seemed to be
concealing the facts of the case, which would
be considered the strongest evidence of his
guilt, and might endanger his safety.
On Sunday Dr. Mudd took us along the
road that the two men had taken from his
house. They took the direction pointed out
by the Doctor until they came to the hilL
The marsh there is full of holes and bad
places. I thought I discovered, from their
tracks, that in going to the right to avoid a
bad place they had changed their direction,
and got lost
My impression is that Dr, Mudd said he
had first heard of the assassination on the Sat
urday evening; that somebody had brought
the news from Bryantown. The question
was asked Dr. Mudd by some person whether
any thing had been paid to him for setting
the wounded man's leg, and I think he said
they had paid him $25.
He said that he had told Dr. George Mudd,
I think he said on Sunday, that there had
been two suspicious men at his house. The
town was full of soldiers and people, coming

170

THE CONSPIRACY TRIAL.

and going all the time, and the place was in
a state of general excitement
By the Judge Advocate.
I understood Dr. Mudd to mean that he
recognized the wounded man, while at his
house, to be the Booth to whom he had been
introduced in November. His expression
was that he did not recognize hira at first,
but, on reflection, he remembered him as the
person to whom he had been introduced.
He said that, as he came back in the after
noon, he saw the wounded man going away
from the house, hobbling through the mud,
Herold had been riding the bay horse, and
was going off on it The roan horse, he sup
posed, was in the stable. He did not say
that he did not see them leave; but from the
position he described them as being in, he
could not see them the moment after they left
the stable. By Mr. Ewing.
As near as I can recollect, the words used
by Dr. Mudd, in reference to recognizing
Booth's photograph, were that he should not
have recollected the man from the photo
graph, and that he did not ki^ow him or re-
ihember him when he first saw him ; but that
on reflection he remembered that he was the
man who was introduced to hira in November
last; but he did not say whether this reflec
tion, from which he recognized the wounded
man as the one to whom he had been intro
duced, occurred before or after the man left;
but the impression made on my mind was
that it was before the man left. He gave as
the reason for not remembering him at first
that the man was very much worn and de
bilitated, and that he seemed to make an effort
to keep the lower part of his face disguised;
but of course the open light of day, the shav
ing of the face, and the fact that he some
times slept, gave better opportunities for
observation, I do not think he said any
thing to indicate that the wounded man at
any time entirely threw off his attempt to
disguise; but when he carae to refiect, he
remembered that it was the man to whom he
had been introduced; he did not, however,
I believe, say that that reflection or memory
came to him at any particular moment
Mart Simms (colored.)
For the Prosecution, — May 25.
I know that prisoner yonder. Dr. Samuel
Mudd, [pointing to the accused, Samuel A.
Mudd,] I was his slave, and lived with him
four years; I left him about a month before
this Christmas gone. I heard him talk
about President Lincoln. He said that he
stole in there at night, dressed in woman's
clothes ; that they lay in watch for him, and
if he had come in right they would have
killed him. He said nothing ab»ut shooting
him ; he would have killed him, he said, if

he had come in right, but he could not; he
was dressed in woman's clothes.
A man named John Surratt and a man
named Walter Bowie, visited Dr. Mudd's last
summer Mr. Surratt was a young-looking
man, slim made, not very tall, nor very short,
and his hair was light He carae very often.
Dr. Sarauel Mudd and his wife both called
him Mr. Surratt; they all called him that
He was there almost every Saturday night
to Monday night; and when he would go to
Virginia and come back he would stop there.
He did not sleep at Dr. Mudd's, but out in
the woods. Besides him, there was a Captain
White, from Tennessee, they said; a Captain
Perry, Lieutenant Perry, Andrew Gwynn,
Benjamin Gwynn, and George Gwynn; Ihey
all slept in the woods. When they came to
the house to eat, Dr Mudd would put us
out to watch if anybody came; and when
we told them somebody was coming, they
would run to the woods again, and he would
make me take the victuals out to them. I
would set them down, and stand and watch,
and then the rebs would come out and get
the victuals, Surratt and Andrew Gwynn
were the only two that 1 saw corae out and
get them. I have seen Surratt in the house,
up stairs and in the parlor, with Dr. Mudd.
They never talked much in the presence of
the family; they always went off by them
selves up stairs.
Some men that were lieutenants and offi
cers, came from Virginia, and brought letters
to Dr. Sam Mudd; and he gave them letters
and clothes and socks to take back. They
were dressed in gray coats, trimmed up with
yellow ; gray breeches, with yellow stripes
down .the leg. After Dr. Mudd shot my
brother, Elzee Eglent, one of his slaves, he
said he should send him to Richmond, to
build batteries, I think he said.
Cross-examined by Mr. Ewing.
It was about four years ago, that Dr. Mudd
said that Mr. Lincoln came through, dressed
in woman's clothes; he said it at the table.
Dr, Mudd never slept in the woods, only the
men that used to come there ; the bed-clothes
were taken out into the wood! to them.
I am sure I saw Mr. Surratt there a dozen
times last summer. I do not think he slept
in the house any time; none of them ever
did, but Walt Bowie. The last time I saw
Mr. Surratt there, apples and peaches were
ripe. I do not know what month it was.
He said he was going to Washington then.
He took dinner there six or seven times last
summer; but when the men from Washing
ton were after them, they got scared, and ate
in the woods. Mr. William Mudd, Vincent
Mudd, and Albert Mudd saw Mr. Surratt
there; they all visited the house while the
rebs were about When Sylvester Mudd
and some others came, they would run out
of the way. A young man named Albion
Brooke saw Mr. Surratt at Dr. Mudd's sev-

TESTIMONY CONCERNING SAMUEL A. MUDD.

171

eral times last summer. It was winter when
Surratt commenced to corae there, and he
kept coming, on and off, till summer was
out; and after that I did not see him. He
used to go to Virginia and come back, and
to Washington and back, and every tirae he
would bring the news. Sometimes he would'
come once a week, and then again he might
not come for two weeks.
By Assistant Judge Advocate Bingham.
Albion Brooke was a white man; Dr. Sam
uel Mudd's wife was his aunt. He sometimes
worked out iu the field where the colored
people were. Elzee Eglent (colored.)
For the Prosecution — May 25.
I know Dr. Samuel Mudd ; he was my
boss; yonder he is, [pointing to the accused,
Samuel A. Mudd.] 1 was his slave, and lived
with him. I left him on the 20th of the
August before the last
Q, Did he say any thing to you before you
left him about sending you to Richmond ?
A, Yes, sir; he told me the morning he
shot me that he had a place in Richmond for
me, Mr, E'fviNO. I object to that question and
the answer.
The Judge Advocate. The object of the
question is to show disloyalty.
The Commission overruled the objection.
Witness. He told me he had a place in
Richmond for me when I should be able to
go away. He did not say what I was to do
there. That was the June before the last
He named four more that he said he was
going to send to Richmond — Dick and my
two brothers, Sylvester and Frank.
I saw men come to Dr. Mudd's, dressed
some in black clothes and some in gray; gray
jackets, coat-like, and gray breeches. One
of them, Andrew Gwynn, I had seen before;
the others I did not know. They used to
sleep in the woods, about a quarter of a mile
off, I reckon, and would come to the house
at different times, and go back to the woods.
I do n't know where they got their victuals,
but I have seen victuals going that way often
enough ; I have seen my sister, Mary Simms,
carrying them. That was in the June and
July before the last
Cross-examined by Mr. Swing.
Nobody but Dr Mudd and myself were
present when he told me he was going to send
rae to Richmond; he told me so up stairs.
Sylvester Eglent (colored.)
For the Prosecution, — May 25.
I used to live about a quarter of a mile
from the house of Dr. Samuel Mudd; I lived
with his father.

Q. State whether you heard him say any
thing, at any time, about sending men to
Richmond; and, if so, what he said, and to
whom he was talking,
A. Last August, a twelvemonth ago, I
heard him say he was going to send me,
Elzee, my brother, Frank, and Dick Gardner,
and Lou Gardner to Richmond to build bat
teries, Mr. Ewing objected to the question and
answer. The Commission overruled the objection.
WiTNiiss. That was the last Friday in the
August before last, and I left the next night
Forty head of us went in company.
Cross-examined by Mr. Ewing.
When I heard Dr. Mudd say this he was
standing at my old master's front gate, under
the oak-tree, where their horses were, talking
to Walter Bowie and Jerry Dyer.
Melvina Washington (colored.)
For ihe Prosecution, — May 25.
I used to live with Dr. Samuel Mudd; I
was his slave; I see him there, [pointing to
the accused, Samuel A. Mudd.] I left him
this coming October two years. The last
summer I was there I heard him say that
President Lincoln would not occupy his seat
long. There was a heap of gentlemen in the
house at the time, but I do not know who
they were. Some had on gray clothes, and
some little short jackets, with black buttons,
and a little peak on behind. Sometimes
they staid in the house, and sometimes slept
in the pines not far from Dr, Mudd's spring.
Dr. Mudd carried victuals to them sometimes,
and once he sent them by Mary Simms. I
happened to be at the house one time when
they were all sitting down to dinner, and they
had two of the boys watching ; and when
they were told somebody was coming, these
men rushed from the table to the side door,
and went to the spring
I heard Dr. Mudd say one day, when he
got mad with one of his men, that he would
send hira to Richmond, but I did not hear
him say what he was to do there.
Cross-examined by Mr. Ewing.
Those men that staid in the woods were
there for a week or more, and they went
away in the night; I do not know where to.
I noticed them up at the house seven or eight
times during that/ week, and never saw them
there at any other time. I do not know the
names of any but Andrew Gwynn, I do not
know of any white people that saw these men
but Dr. Mudd and his Vrife, and two colored
women, Rachel Spencer and Mary Simms. I
did not stay about the house; but when there
was company I had to go up on account of
the milking, and that was how 1 happened
to see them.

172

THE Conspiracy trial.

E:

Milo Simms (colored.)
For ihe Prosecution, — May 25.
I was a slave of Dr. Samuel Mudd, and
lived with him. There he is, [pointing to the
prisoner. Dr. Mudd.] I left his house on the
Friday before last Christmas. The last sum
mer I was there, I saw two or three men there,
that sometimes staid in the house and some
times out by the spring, up among the bushes.
They had on plaid gray clothes, and one had
stripes and brass buttons on. I saw their
bed among the bushes; it was fixed under a
pine tree; rails were laid at the head and
blankets spread out They got their victuals
from Dr. Sarauel Mudd's; soraetimes he car
ried them out himself, and sometiraes my
sister carried them. She woul^ lay them
down at the spring, and John Surratt or Billy
Simms took them away, I heard John Sur
ratt called by that name in the house; Dr,
Samuel Mudd's wife called him so in Dr,
Mudd's presence. He was a spare man, slim,
ale face, light hair, and no whiskers. When
e was in the house, Dr Mudd told his son and
sorae of the children to stay out of doors and
watch, and if anybody was coming to tell him.
Last year, about tobacco-planting time, I
heard Ben Gardiner tell Dr Samuel Mudd,
in Beantown, that Abe Lincoln was a God
damned old son of a bitch, and ought to
have been dead long ago; and Dr. Mudd
said that was much of his raind.
Cross-examined by Mr. Stone.
I worked in the field, but sometimes was
at the house to take the horses from the men
who came there. I reckon I am about four
teen years old, I do not know whether I
would know Mr. Surratt now; I knew him
last summer. He was not shown to me by
any one. Dr, Samuel Mudd came out to me
and said, "Take Mr. Surratt's horse to the
stable and feed him." He staid all night
that time. I only saw him there two or three
times. Mr, Billy Simms, Mr, Perry, and a
man named Charley soraething, I forget what,
came with him, Beantown is about three or
four miles from the house ; 1 had been there
with Dr, Mudd for some meat when I heard
that talk between him and Ben Gardiner. It
was not two years ago, it was last summer;
there were some more gentlemen present,
but I did not know them.
I have never seen Andrew Gwynn with
Surratt at Dr. Mudd's house; I have seen
them at Dr. Mudd's father's house, with Jerry
Dyer and Dr. Blanford. I saw them all there
last yea n tobacco-planting time.
Rachel Spbnobe (colored.)
For the Prosecution. — May 25.
I was the slave of Dr Sarauel Mudd. I
see him among the prisoners there, [pointing
to the accused, Sarauel A. Mudd,] I left his
house in January last

I remember some five or six men being
there at one time last summer; I think they
were dressed in black and blue. Some of
them slept in the pines near Dr. Mudd's
fepring. 'ihey got tlieir victuals from his
house; Dr. Mudd took them out himself
sometimes. The men would come up to the
house sometimes, and then I have heard that
the boys had to go to the door and watch to
see if any body was coming. I only remem
ber the names of Andrew Gwynn and Walter
Bowie. There was a young-looking raan
among them once; I do not know his name;
he was not very tall, but slender and fair.
I heard Dr. Mudd tell one of his men that
he was going to send him down to Rich
raond; I don't know what he was to do
there. .Cross-examined by Mr. Stone.
Those men that were at Dr, Mudd's last
summer came all together, staid about a
week, and went away together. Their horses
were in the stable, I saw them two or three
times that week, but I don't remember see
ing them before or after. Albion Brooke
was there at that tirae; he used to go with
them ; they were always together.
William Marshall (colored.)
For the^Prosecution. — May 25.
I was a slave until the year 1863, when I
got away from home, I belonged to Mr.
Willie Jameston. Of late I have lived near
Dr, Samuel Mudd ; I see him here now,
[pointing to the accused, Dr Mudd.] I
know Benjamin Gardiner, one of his neigh
bors; he was my wife's master.
Q, State whether you heard any conversa
tion between Benjamin Gardiner and Dr.
Samuel A. Mudd about the rebels, and their
battle with the Union forces on the Rappa
hannock. Mr Ewing objected to the question on the
ground heretofore stated by him with refers
ence to similar questions.
The Commission overruled the objection.
A. Yes, sir; I did. On Saturday, soon
after the battle at the Rappahannock, I hap
pened to be home. I had every other Sat
urday. My wife being sick, the Doctor had
been to see her, and when he came out Mr.
Gardiner met him at the corner of the house,
and said to hira, " We gave them hell down
on the Rappahannock; " and the Doctor said
"Yes, we did." Then he said, "Damned if
Stonewall ain't the best part of the devil; I
don't know what to compare him to."
Q. Who said that he was the best part of
the devil,
A. Benjamin Gardiner. The Doctor said
Stonewall was quite a smart one. Then
Benjamin Gardiner said, "Now he has gone
around up in Maryland, and he is going to
cross over on the Point of Rocks some
where" — he did say at that time, but I really

TESTIMONY CONCERNING SAMUEL A. MUDD.

173

forget now, where he was going to cross at
the Point of Rocks — "and I would not be
the least surprised if very soon from this" —
he stated at what time, but I forget at what
length of time he said — "he will be down
here and take the capital of Washington,
and soon have old Lincoln burned up in his
house; " and Dr. Mudd said he would not be
the least surprised; he made no objection
to it Daniel J, Thomas,
For the Prosecution. — May 18.
I am acquainted with Dr. Mudd, About
two months ago, some time in the latter part
of March, I had a conversation wit.h Dr,
Mudd at John S. Downing's, who lives close
by me and about a mile and a quarter from
Dr. Mudd's, We were engaged in conversa
tion about the politics of the day, I made
a remark to Dr, Mudd that the war would
soon be over; that South Carolina was taken,
and I thought Richmond would soon be, and
that we would soon have peace. He then
said that Abraham Lincoln was an aboli
tionist, and that the whole Cabinet were
such; that he thought the South would never
be subjugated by abolition doctrine, and he
went on to state that the President, Cabinet,
and other Union men in the State of Mary
land would be killed m si.x or seven weeks.
Cross-examined by Mr, Stone. ¦
Mr. Downing was at home when we had
this conversation, though I believe he was out
at the time this portion of the conversation
took place; he had gone out to the kitchen,
or to the wood-pile, or somewhere else. After
his return, I asked him if, after having taken
the oath of allegiance, he would consider it
binding. That was all that occurred after Mr,
Downing returned, I did not remain there
more than half an hour or three-quarters of
an hour; that is the only time I have met Dr,
Mudd at Mr Downing's this year. From Dr,
Mudd's conversation he did not seem to be
joking, but it is impossible for me to say
whether or not he was earnest in what hp said.
He did not look as if he was angry or speak
in malice. I can not judge whether a man is
in earnest or not from the language he uses;
but I should think a man was in earnest to
talk of the President being assassinated.
Q. Did you think at the time that he was
in earnest?
A. No, sir I did not think any such thing
would ever come to pass. I thought the
President was well guarded, and that it was
a want of sense on his part saying so. I
laughed to think that the man had no more
sense. When Dr. Mudd first said it, I thought
he meant it, but after a day or two I thought
he certainly could not have meant it; but
after the President was killed, and after hear
ing that Booth was at his house, I thought he
really meant it

Q, You thought it was a mere joke at the
time, from the way he said it?
A, He was laughing at the time, or some
thing like it 1 know Dr, Mudd; we went to
school together, and when he was a boy he
was full of fun and jokes,
I spoke of what Dr, Mudd had said to
almost everybody I saw, but everybody
laughed at the idea of such a thing, I told
Mr, Lemuel Watson, a good Union man, of
this coiiversation before the assassination,
and I also wrote to Colonel Holland, Provost
Marshal of the Fifth Congressional District
of Maryland; but I never received an answer
from him, I had written to him several
times before, but had never received an an
swer and I concluded that my letter must have
been miscarried, I mailed the letter at Horse-
head, and directed it to EUicott Mills, I
mentioned the conversation I had with Dr.
Mudd, after the assassination, to my brother,
Dr, M, C, Thomas, and Mr. Peter 'Wood, and
to several others in Bryantown, when they
were looking for Booth,,
I am positive that nothing was said be
tween Dr, Mudd and myself about exempting
drafted men, nor had we been speaking of
desertions from the rebel army or from the
Union army, and that the conversation re
lated is substantially all that occurred.
Two or three weeks after this conversation,
but before the as.sassination, I believe, I men
tioned it to Mr. Downing, He said he did
not hear it, and he said, "Well, if that be the
case, I am glad I was not in there," I
thought if he had heard it he would not have
said any thing about it This conversation
with Mr Downing occurred when I met him
on the road leading from his house to Horse-
head, Mr, Downing said it was only a joke
of Dr. Mudd's; that he was always running
on his joking ways, .When Mr, Downing
returned tb the room, Dr, Mudd did not say
to him that I had been calling the Southern
array " our army."
Cross-examined by Me. Ewing.
Mr. Downing was out of the room long
enough to get some wood, and, to the best of
my recollection, he brought in some. We
had no further conversation after he came in,
only I said, "You are a man who took the
oath; do you consider it binding?" Hesaid,
"No;" he did not consider it binding; if a
man was compelled to take an oath, he did
not consider it binding. I told him nobody
was going to kill him ; it was not compulsory
for him to take the oath. He said he thought
it was compulsion.
After Mr. Downing came in, Dr Mudd did
not say another word, I just got up and
a,sked Mr, Downing one or two questions; if
he had taUen the oath, and he said he had
taken the oath, but that he was no more loyal
than he was before; that he always was a loyal
man ; that his feeling was for State rights ;

174

THE CONSPIRACY TRIAL.

but that he did not consider that oath bind
ing upon any person.
Before that I had said to Dr Mudd that
he, having taken the oath, ought not to say
such_ things about the President He said
he did not consider the oath worth a chew
of tobacco. It was in consequence of such
expressions, and knowing that Mr Downing
had been a justice of the peace, that I wanted
toknow if he considered the oath binding, I
said nothing to Mr Downing about my being
a marshal or deputy marshal, or about my
having a commission from General Wallace,
or of having received any letters from' him,
I told my brother of the conversation I
had had with Dr Mudd at Church or before
Church. I told Mr. Watson when he was at
my mother's one day. When I mentioned it
to hira, he laughed heartily ; after that I
could not help laughing. He said, " Dr,
Mudd only did that to scare you. Every
body knows that such a thing is never going
to corae to pass,"
Recalled for the Prosecution, — June 6.
I was at William Watson's door-yard, near
Horsehead, on the 1st of June, with John
R. Richardson, Benjamin J. Naylor, George
Lynch, Lemuel Watson, and William Wat^
son, when James W. Richards, the magis
trate, rode up, I did not state to Mr, Richards
that I had been asking any of these gentle
man for a certificate to the fact that I was
the first to give information which led to the
arrest of Dr, Samuel Mudd, and that if they
would give me a certificate I should be en
titled to the reward of $10,000; but what I
did say was, that I had been told in Wash
ington, by some of Colonel Baker's men, that
I -was entitled to so much reward if Dr.
Mudd was convicted. But I said that I never
expected or looked for a cent, but that I
would be very glad to receive the reward if
it were so, I knew these fellows said it in a
joke, and I told" it as a joke, I did not tell
Mr. Richards that I had been saying that I
was the person who gave the information that
led to the arrest of Dr Mudd. As it had
been said that if I had told anybody before
the assassination, I would be entitled to a
certain part of the reward if Dr. Samuel
Mudd was convicted, I inquired of them if
they thought I would be entitled to it; but
I never did ask them for a certificate of the
fact that I had given the information. 1
told them that I had mentioned it to sorae
persons before and to some since the assas
sination. I do not myself remember whether
it was before or after the assassination.
Q, And you did not ask either of the gen
tlemen I have named for a certificate of the
fact that you were the first person who gave
the information which led to Dr. Samuel
Mudd's arrest
A. Never. I just said to them, "You can
say I mentioned it before the assassination ;
you can give me a certificate, and I will have

you summoned to prove it" They said, " No,
we did not hear you then." Said I, "Will
you give me a piece of paper to show that I
mentioned it to you before the assassination?"
"No," they said, they did not hear it; because
they were afraid I would have them sum
moned. Q. What did you ask for a paper for ?
A. To certify that I had said such a thing
before the arrest of Dr Mudd,
I certainly did not say to Eli J. Watson,
on the 1st of June, before meeting these gen
tlemen, that I wanted him to certify that I
had been the cause of the arrest of Dr. Mudd,
or that I had given any information which
led to his arrest, and for which I was entitled
to $25,000, for I never did give any informa
tion which led to the arrest of Dr. Mudd.
Dr Mudd was arrested before I knew it I
never thought of such a thing as being enti
tled to a reward. I looked upon Colonel
Baker's men saying it as a joke at the time.
I never looked for or expected such a thing,
and more than that, I never would haVe a
reward. When I was on the stand before, Mr.
Stone wanted to know if I had mentioned
the conversation with Dr. Mudd to any one
before the assassination. When these men
told me that I had mentioned this conversa
tion to them before the assassination, I then
asked them if they would, sign a paper to
show the Court that I had mentioned it be
fore. That was my object in asking them to
sign, and that is the only paper I asked them
to sign.
William A. Evans.
For the Prosecution, — June 5.
About the 1st or 2d of March last — cer
tainly before inauguration day — I saw Dr.
Samuel Mudd, with whom I have a slight ac
quaintance, drive past rae as I was driving to
the city in the morning. He passed me, I
think, about eight miles from the city. He
had a fiery horse, and as I wished to take
my time, I let him drive past me, but I fol
lowed him up to the city, never losing sight
of him. Cross-examined by Me. Ewing.
I have seen Dr. Mudd at different times
for the last fifteen years, though I never was
introduced to him, I have, I think, met Dr.
Mudd at different places in the city, and at
the National Hotel, Last winter I saw him
go into the house of Mrs, Surratt on H Street;
I could not say positively where the house
is ; it may be between Ninth and Tenth
Streets, or between Eighth and Ninth Streets;
somewhere along there, I asked a police
man, and a lady who was on the sidewalk,
whose house it was, and was told it was
Mrs, Surratt's, I had seen rebels going in
there — Judson Jarboe and others — and I
wished to know who lived there. It was a
brick house, of perhaps two stories and an

TESTIMONY CONCERNING SAMUEL A. MUDD.

175

attic, and is, I think, between the Patent
Office and the President's house, and is on
tlie right-hand side going toward the Capitol.
[The witness, at tho reqnest of the connsel, described
Mrs. Surratt's liouse and neighborhood, but did it some
what indolinitely.]
I was riding down the street, going to see
the Rev, J. G, Butler, of the Southern Church,
and at the same time call in at the Union
Pray,er Meeting. There were members of
different Churches assembled there, but I
could not name any but Ulysses Ward that
I saw there. On tjie same day I saw Mrs,
Sophia Pressy and Miss Pumphrey at their
houses, and I saw them also at different
times during the winter,
I keep a journal of the visits I make, bap
tisms, deaths, etc, but I did not put -Dr
Mudd's name in that, and I could not refer
to this journal because it would be impossible
for me to get possession of my books now,
I was then moderator of the Presbytery of
the District of Columbia, and our books are
not allowed to be taken out of the churches.
The Rev, Henry Highland Garnett, colored,
is pastor of that Church now, and the journal
of my baptisras, marriages, and deaths is in
his possession, but if a hundred such journals
were here, they would have no effect in fixing
the date when I saw Dr, Mudd go into Mrs,
Surratt's house, I visited other families that
day, but I can not remember their names
now. I am so confused at present that I can
not recollect I have been so confused since
the deatli of President Lincoln that I really
at times am bordering on insanity almost I
never got such a shock in my life.
I was in my buggy when I passed Mrs,
Surratt's house. Dr Mudd had on dark-
colored clothes, I believe, with some kind of
dark-brown overcoat, and a dark slouch hat
Q. Now state how it is that you are enabled
to fix the date frora the 1st to the 3d of
March as being the day on which you saw
Dr. Mudd riding into town.
A. I hold a position in the Post-office De
partment, and I was making arrangements
to come up to the inauguration on the 4th
of March ; and I was coming up very early
on those mornings to do extra work, in order
to be present at the inauguration. Dr. Mudd
drove on past me. My horse got scared at
the time, and was very near throwing me
out I remarked, as he passed by, how rude
he was in almost knocking his wheel against
my buggy ; and I came horae and told my
wife I was very near being thrown out I
have only one leg, and it is difficult for me
to get along. I could not get out of my buggy
if the horse ran away.
Q, When did you commence this extra
work, so as to be enabled to attend the in
auguration ?
~A. Several days before the inauguration.
Q. Three or four days before ?
A. About the latter part of February. I
always like to discharge my duty, I have a

certain amount of work to do, and I want to
do it
Mr. Ewing. We do not want your per
sonal history.
Witness. You seem to be so precise, I
want to give you every thing connected
with it
Mr Ewing. We are not so precise as to
3'our personal history.
Witness, A little of it will not do you
any harra.
Mr. Ewing, I do not think it will do any
good in this case.
Witness. We are all free and equal men,
and can talk as we please.
Mr, Ewing. If the Court wishes this ex
amination continued perpetually, this witness
may be indulged in his lucubrations as to his
history and answers to every thing except the
questions that I propose. I ask the Court to
restrain him to enable me to get through the
examination. The President, The witness has been told
once that he must reply to the questions.
Witness. I have answered every question
that he has asked me, to the best of my
ability. The President, We do not want any
thing else but answers to the questions.
Witness, Very well, I will answer them.
The President, If you do not do as you
are directed, we will try 
Wi-tness, And make me do it
The President, Yes, sir.
Witness, Dr, Mudd drove a two-seated
carriage; it is what is termed a rockaway.
When I saw Dr. Mudd going into Mrs.
Surratt's house, Mr Judson C. Jarboe was
coraing out I saw him shaking hands with
a lady at the door as Mudd was going in. I
took the lady to be Miss Surratt from her
likeness to her mother. Jarboe had mur
dered one of our citizens, and I wanted to
know who lived at the house he was visiting.
I can, not say when last I saw Dr. Mudd
before the time I have referred to; he passed
often on the road during last winter. I think
I once saw him coming up with Herold,
[pointing to the accused David E. Herold.]
It might have been a year ago.
Cross-examined by Mr. Clampitt.
It might have been about 11 o'clock when
I saw Jarboe come out of the house as iMudd
was going in.
Q. Did you not say that you were on your
way to a prayer meeting at the time?
A. No, sir; I was on my way to see Dr.
Butler. I said I was on my way to visit
sorae families, and then in that neighborhood
to go to prayer meeting. Being lame, I take
pains to arrange my journeys so as not to go
over the same ground again.
Cross-examined by Me. Aik:bn.
I am a minister now, and have been for
fifteen years. I hold a secret commission

176

THE CONSPIRACY TRIAL.

under the Government to arrest deserters
and disloyalists wherever I find them, I am
a detective. I wish to discharge my duty
toward the Government to the best of my
ability, but have never received one cent for
any duty of that kind.
['Thiswitnesswasexceedinglydiscnrsivo, and his exam
ination was conseQiiently very lengthy. The above narra
tion contains all the material facts testified to,]
John H. Waed.
'' For the Prosecution, — May 20.
I live in the suburbs of Bryantown, Mary
land, On Saturday, tbe 15th of April, I
went to the village as soon as I had finished
my dinner, and was there at about 1 o'clock.
As soon as I arrived, I observed that the
military were in town with Lieutenant Dana,
and that there was great excitement among
the people as well as the military. I went
home, expecting that the soldiers would
search the houses. Soon afterward a. negro
came up and said the President had been
assassinated. I immediately left home and
went again to the village. There I heard
of the assassination, I also heard that the
assassin's name was Booth. It was spoken
of by everybody at Bryantown; first by the
military, and then by the citizens, and it was
spread about that Booth was the assassin, I
heard this, I suppose, between 1 and 2 o'clock.
The village was put uader niartial law,
and many of the people began to be excited
about getting home, and made application to
the commanding officer to let them go, but
he refused to do so, I went home,
I think I saw Dr, Samuel Mudd there, but
the excitement was so great that I can not
say positively that I did.
Cross-examined by Me, Ewing,
I could not tell precisely the time 1 left
Bryantown, the second time I went up, but
I suppose it was between 2 and 3 o'clock, I
did not hear that the President had been
assassinated the first time before I left Bry
antown ; the first intimation I had of it was
by the darkey.
" Boose 'j' was the name of the assassin, as
spoken by the soldiers who were not familiar
with language; they could not say Booth,
By Mr, Ewing.
Those who spoke audibly, told me that his
name was Booth, and those who seemed to
have an amalgamation of the languages
called it "Boose,"
The darkey who told me that the Presi
dent was assassinated was Charles Bloyce,
a brother to the one who has just testified.
When he told me that the President had been
assassinated, I immediately left home, and
went to the village, where I, found it a current
report He did not tell me who did it
My house, I suppose, is four or five miles
from Dr, Mudd's, I could not state posi
tively that it was Dr Mudd I saw ; the per

son I supposed was the Doctor I saw about
a quarter of 4 o'clock. I am personally
acquainted with Dr, Mudd, and have been so
for two years and five months,
Frank Blotce (colored,)
For the Prosecution, — May 20.
I live in Charles County, Maryland, about
half a mile from Bryantown, I was in Bry
antown on Saturday evening after the murder
of the President, and saw Dr Samuel Mudd
there between 3 and 4 o'clock, I was in
the store buying something when Dr, Mudd
came in. Cross-examined by Mr. Ewing.
I left Bryantown before night I do not
know what time Dr, Mudd left. Before
night the place was guarded, and I heard
that the President had been assassinated.
Mrs, Eleanor Bloyce (colored,)
For the Prosecution. — May 19.
I know the prisoner, Dr Mudd ; he lives
about four miles from Bryantown, where I
live, I saw him on the 15th of April last,
riding into Bryantown late in the afternoon.
There was a gentleman with him when he
passed, I do not know that they went into
town together ; they were together until they
were out of my sight It was but a short
time until Dr, Mudd returned. When he
came back the gentleman was not with him.
About eight or ten minutes after I saw him
I went into town myself On arriving there
I found the soldiers from Washington,' and
then I heard of the murder of the President;
that he was shot on Friday night at the
theater. I did not hear who shot him.
Cross-examined by Mr, Stone,
When Dr Mudd passed the first time, I saw
a gentleman with hira ; when he returned, I
did not see the gentleman with him, I was too
far from the road to know what kind of look
ing gentleman he was, 1 reckon I live about
a quarter of a mile from the road. I went to
Bryantown in a very short time after he
passed my house, I do not think Dr, Mudd
staid in Bryantown a quarter of an hour,
but I do not know, as I have not any thing
to tell by; it was a dark, drizzly, foggy
evening, getting late,
I could not tell whether it was an old or
young gentleman with the Doctor, he ap
peared to be riding a bay horse; I think the
Doctor was riding a dark-gray horse, but I
did not take much notice. They were riding
side by side at a tolerable gait, not fa,'!ter
than persons usually ride in the country,
I live on the right of the road that leads
up to Dr. Mudd's. There is no road that
turns out between my house and Bryantown,
and the man that was with Dr. Mudd was
obliged to go through Bryantown, or come
back the same way as he went I was not

TESTIMONY CONCERNING SAMUEL A. MUDD,

177

at the door all the time, I happened to be
standing at the door when Dr, Mudd passed
and the gentleman with him, and when he
returned alone.
Mrs. Becky Briscoe (colored.)
For the Prosecution, — May 19.
I live at Mr, John McPherson's, about a
quarter of a mile from Bryantown. I know
Dr Sarauel Mudd. On Saturday, the day
after the President was murdered, about 3
o'clock, as I was standing in the kitchen-
door, I saw the Doctor riding into town with
a strange gentleman. The gentleraan went
toward the bridge, and the doctor kept on
to Bryantown, and this gentleman came back
again. He kept on down the road to the
swamp, when I saw him again. He staid at
the swamp till the Doctor came back, in
about half an hour, I reckon. The bridge is
in sight of the town, about half a mile off
I went to town a very little while after the
Doctor came back. I there heard of the mur
der of the President, but I did not hear until
two or three days after that the man who
killed him was named Booth.
Cross-examined by Mr. Stone.
The swamp is on the other side of the
house, just below the barn. Dr Mudd and
this man went along together, and the latter
stopped at the bridge and came back again,
and went as far as the swamp, I was down
in the branch getting willows for Dr, Mar
shall, but not in the same branch the gen
tleman was in, but I could see over into that
branch. He was sitting there on the horse,
I saw him again going up the road with Dr,
Samuel Mudd, I think both of them were
on bay horses. They passed about 3 o'clock
in the afternoon, A boy who was cutting
wood at the wood-pile said, "There's a
strange man going with Dr, Sam ; I do n't
know who he is."
I started for Bryantown when Dr, Mudd
oame back. The soldiers were in Bryantown
when I got there, I told my mother, who
has just testified, that day of having seen
this man with Dr, Mudd, and the next day
I also told Baker Johnson, Mr, Henry John
son, and Maria Kirby about it
Marcus P. Norton.
For the Prosecution, — June 3.
By Assistant Judge Advocate Burnett.
I was in in this city, stopping at the Na
tional Hotel, from about the lOth of January
to the 10th of March last While there I
knew J. Wilkes Booth by sight, having seen
him act several times at the theater
I saw the accused, Samuel A. Mudd, under
the following circumstances : A person hast/
ily entered my room, on the morning of the
3d of March, I think. He appeared some
what excited, made an apology, and said that
he had made a mistake; that he wanted to
12

see Mr Booth, I told him tnat Booth's
room was probably on the floor above, the
number I did not know. My room having
thus been entered by a person apparently
excited, I left my writing and followed the
person partly through the hall. As he went
down the flight of stairs to the story below,
he turned and gave a look at me. It was
his hasty apology and hasty departure that
made me follow hira. On entering the court
room this morning, I pointed out to the Hon,
Horatio King the three prisoners I had seen
at the National Hotel^Dr, Mudd, Atzerodt,
and O'Laughlin, When I pointed thera out
I did not know their names.
[ See testimony of Marcus P. Norton, page 149.]
I recognize the person, Samuel A. Mudd,
as the man who entered my roora on that
occasion. It was either he or a man exactly
like him, I am enabled to fix the date when
he entered my room, first by the fact of its
being immediately before the inauguration,
also that it was on the morning of the day
on which I was preparing my papers to argue
a motion, pending before the Supreme Court,
in the case of John Stainthrop and Stephen
C. Quinn against Wallis Hollister. I remem
ber the motion was argued on the day the
person I speak of entered my room. He
had on a black coat His hat, which he
held in his hand, was, I think, a black one,
but not a high-crowned hat.
Cross-examined by Mr. Ewing.
My impression is that it was after I heard
the conversation between Booth and Atze
rodt that Dr, Mudd entered my room, and I
have no doubt it was on the 3d of March,
I occupied room No, 77 in the National
Hotel at the time, Dr, Mudd was dressed in
black; he had on a black coat, no overcoat,
I think, and his hat, which he had in his
hand, was black ; I think it was a hat some
thing like that, [pointing to the black silk
hat of the President on the table,] but not
so high. By the Court.
When Dr. Mudd entered my room he
seemed somewhat excited, or perhaps in a
hurry rather. He said he had made a mis
take in the room, and apologized in that
way. The roora I then occupied was No,
77, I had perhaps ten days before been re
moved from room No, 120.
See also the testimony of
Louis J. Weichmann  pages 113, 118
Lieut Alexander Lovett  page 87
Lieutenant D. D. Dana  " 88,
William Williams  " 88,
Simon Gavacan  " 89.
Joshua Lloyd  " 90
Thomas L, Gardiner  " 71.
Miss Anna E, Surratt  " 130.
Miss Honora Fitzpatrick  " 132.

178

THE CONSPIRACY TRIAL.

DEFENSE OF SAMUEL A. MUDD.

John C. Thompson.
For the Defense, — May 26.
By Mr. Stone
I reside in Charles County, Maryland, I
had a slight acquaintance with a man named
Booth ; I was introduced to him by Dr,
Queen, my father-in-law, about the latter
part of October last, or perhaps in Novem
ber. He was brought to Dr, Queen's house
by his son Joseph. None of the family, I
believe, had ever seen or heard of him
before; I know that I had not He brought
a letter of introduction to Dr, Queen from
some one in Montreal, of the name of Mar
tin, I think, who stated that this man Booth
wanted to see the county. Booth's object
in visiting the county was to purchase lands;
he told me so himself, and made various
inquiries of me respecting the price of land
there, and about the roads in Charles County,
I told him that land varied in price from $5
to $50 per acre; poor land being worth only
about $5, while land with improvements, or
on a river, would be worth $50 ; but I could
not give him much information in regard to
these matters, and referred him to Henry
Mudd, Dr. Mudd's father, a large land-owner.
He also inquired of me if there were any
horses for sale in that neighborhood, I told
him that I did not know of any, for the
Government had been purchasing, and many
of the neighbors had been taking their
horses to Washington to sell. Booth told
me, on the evening of his arrival at Dr,
Queen's, that he had made some specula
tions or was a share-holder in some oil lands
in Pennsylvania ; and as well as I remem
ber, he told me that he had made a good
deal of money out of it, and I did not know
but that he came down there for the purpose
of investing.
On the next morning, Sunday, I accom
panied him and Dr, Queen to Church at
Bryantown. I happened to see Dr, Samuel
A Mudd in front of the Church before
entering, and spoke to him, and introduced
Mr Booth to him. Mr Booth staid at Dr
Queen's that night and the next day. About
the middle of the December following, if my
memory serves me, Mr Booth came down a
second time to Dr Queen's; he staid one
night and left early next morning. I never
saw him but on these two occasions, and do
not know whither he went when he left Dr
Queen's. Cross-examined by Assistant Judge Advocate
Burnett.
I live about seven or eight miles from Dr.
Samuel A, Mudd I know the Doctor per

sonally, but am not intimately acquainted
with him, or with his affairs, I do not know
that Dr, Mudd owns lands, or whether he
lives upon land that belongs to his father ;
but I know that his father is an extensive
land-holder, and I told Mr Booth that pei--
haps he might be able to purchase land
from him, I saw the signature of the letter
of introduction Booth brought; it was Mar
tin, I believe; the first name 1 forget Booth
did not buy any lands in that neighborhood,
to my knowledge.
Dr. William T. Bowman.
For the Defense — May 27.
By Me. Ewing.
I reside at Bryantown, Charles County,
Maryland. Some time in December last 1
met J. Wilkes Booth at Church, near Bry
antown. I was told it was Booth, the trage
dian. A few days afterward I saw him
again in Bryantown. After speaking to one
or two other persons, he asked me if I knew
any person vvho had any land to sell. I told
him I had a, tract which I should like to
dispose of, and took him to the window and
pointed out the place to him, I told him
the extent and price, etc. He asked me if I
had any horses to sell, I told hira I had
several I would sell. He then said, " I will
be down in a couple of weeks and look at,
your land."
I have heard Dr. Mudd s^y he vfould like
to sell his land. Last summer, when he
could get uo hands, he said he would sell.
I asked him what he e.xpected to do in case
he sold his land ; he said he thought of
going into business in Benedict, on the Pa-
tuxent River; it is in an easterly direction
frora Bryantown, and is our usual port for
Charles County.
Cross-examined by Assistant Judge Advooatb
Bingham. '
Some four or five days after Booth was
there, I saw Dr. Mudd. I told him I thought
I should now sell my land. He asked me to
whom I expected to sell. I 'told him there
was a man by the name of Booth, who said
he was coming down to look at it, when he
said, " That fellow promised to buy mine."
By Mr. Stone.
The distance from Bryantown to the Pa-
tuxent is ten miles. Matthias Point is the
nearest crossing on the Potomac from Bry
antown, and that is frora fifteen to sixteen
miles. It is about fifteen miles from Bry
antown to Pope's Creek, which is opposite

DEFENSE OF SAMUEL A. MUDD.

179

Matthias Point, on the Potomac, and about
three miles and a half from there to Dr
Mudd's, Mr, Henry L, Mudd, the father of
Dr Samuel Mudd, owns a considerable
amount of land in that neighborhood.
Cross-examined by Assistant Judge Advocate
Burnett.
I live three miles and a half from Dr,
Mudd, Dr Mudd is understood to own the
land he lives on, as other people own their
land, but I do not know of my own know
ledge that it belongs to him.
Jeremiah Dyer.
For the Defense. — May 27.
I have been living in Baltimore for two
years; before that I lived from my childhood
within half a mile of Dr, Samuel Mudd, I
know Sylvester Eglent, who is a servant of
Dr. Mudd's father; I also know Frank Eglent,
Dick Washington, and Luke Washington. I
never heard any conversation in wiiicli Dr,
Mudd said he would send Sylvester Eglent
and his brother Frank Eglent to Richmond,
Such a conversation could not have taken
place in August, as I left that country on the
1st of August for Baltimore, where I re
mained until October. I then heard that
some thirty or forty of the hands had left,
and I went down to hire other hands to se
cure the crop. I heard, when I got down
there, that a man by the name of Turner
had started a report that he was going to
catch all the negroes in that neighborhood
and send them away. I never heard Dr.
Mudd say any thing about sending off his
hands to Richmond, I never met Dr, Mudd
in company with Walter Bowie at his father's
house, I know Milo Simms, Melvina Wash
ington, Elzee Eglent, and Mary Simms; they
were all, I think, servants of Dr. Mudd's
house in 1861.
I know Andrew Gwynn very well. Since
1861 he has been in the rebel army. About
he 1st of September, 1861, I was in the
neighborhood of Dr. Mudd's house for about
a week. We were knocking about in the
pines and around there. It was about the
time Colonel Dwight's regiment was passing
through, and there was a perfect panic in
the neighborhood; the report was that every
body was to be arrested. A great many were
arrested. Mr. Gwynn and his brother came
down in a fright, stating that they had been
in the house to arrest them, or had been in
formed they were on their way there, I also
received notice that I was to be arrested.
The two Gwynns came down then; I met
them there at Dr Mudd's or my house, I do
not know which; the farms are adjoining.
For several nights we slept in the pines be
tween his house and mine. That situation
was a little inconvenient, and we moved over
and lay, I think, one or two nights near his
spring. We had some bed-clothing there.

obtained frora Dr Mudd's house and from
mine; most of it, I think, from Di-. Mudd's,
Our meals were brought us by Dr Mudd.
The Doctor used to bring down a basket con
taining bread, meat, biscuit, and ham, and the
colored girl, Mary Simms, I think, brought
a pot of coffee,
Tliere is a large swamp between his house
and mine. The first night we were on the
other side of the swamp, after that we came
within one hundred and fifty or two hun
dred yards of Mudd's house. The party con
sisted of Benjamin Gwynn, Andrew Gwynn,
and myself. There was at the time a
general stampede and panic in the com
munity. A good many left their homes, and
went to their friends' houses, or frora place
to place.
When we were in the pines, I think Mr.
Gwynn's horses were left at Dr. Mudd's, and
were fed by the boys there; Milo Simms
would be likely to attend to them, I re
member telling the children to keep a look
out, and if any one came to let me know.
We were all dressed in citizen's clothes.
Alvin Brook, William Mudd, Vincent
Mudd, and Albert Mudd might have come
there while we were there, but I do not dis
tinctly remember.
I have known Daniel J. Thomas since he
was a boy, and I know his reputation for
veracity in that neighborhood is such that
very few men there have any confidence in
hira. His reputation is so bad that I would
not believe him under oath,
I have known Dr Mudd since he was a
boy. I have never heard the slightest thing
against him. He has always been regarded
as a good citizen; he has a good reputation
for peace, order, and good citizenship. I have
always considered him a kind and humane
master. I never knew of any thing to the
contrary, except his shooting his servant,
which he told me of the same day it happened.
Cross-examined by the Judge Advocate,
I have never heard Thomas charged with
having sworn falsely. He is a noisy, talk
ative man, but is unquestionably loyal. I
can not say that I have ever heard a man
of known loyalty speak of Mr, Thomas as
a man they would not believe under oath,
I am not aware that I have been guilty of
any disloyalty toward the Government; I
certainly never wanted to see two Govern
ments here, and I think I have desired that
the Government of the United States might
succeed in its endeavors to suppress the re
bellion, and I have persuaded young men
from going on the other side,
I was a member of a military organiza
tion in 1861, the object of which was, I be
lieve, to stand by the State of Maryland in
the event of its taking ground against the
Governraent of the United States.
Q. At the time of which you speak, the
fall of 1861, was the subject of theLegis-

180

THE CONSPIRACY TRIAL.

lature of Maryland passing an ordinance of
secession much discussed among you?
A, I do not know; I probably heard the
subject spoken of very often, but I do not
know that it was discussed to any extent I
may have heard it spoken of in crowds or
congregations, but so far as conversing with
any particular person on that subject is con
cerned, I have no knowledge of it
Q. Did you not suppose that the organi
zation of which you were a member was at
that time regarded as disloyal by the Govern
ment, and hence feared arrest?
A. I hardly know how to answer that
question. That was in the incipiency of the
thing, and it was hardly time for men to re
flect and give their minds room to See what
would be the result of rebellion and civil
war; it was in the start, when every thing
was wild excitement and enthusiasm; and of
course I can hardly answer that question.
I do not know that I particularly rejoiced
at the success Of the rebels at the first battle
of Bull Run. I might have been like a good
many others at that tirae ; I suppose my
sympathies were with the rebels. When
Richraond was taken, my sympathies were
on the side of the Government; I wanted
to see the war stopped, I believe the United
States were pursuing the right course, except
in emancipating the slaves; I thought that
was wrong. By Mr. Ewing.
I have not seen a great deal of Mr. Thomas
•for the past two or three years; my estimate
of his reputation for truth and veracity is
'based upon my knowledge of that reputation
for several years back, I know he has not
borne a good reputation for truth and veracity
in that neighborhood since he was a boy, I
1 have heard him spoken of as one who
would tattle a great deal, and tell stories, and
say a great many things that were not true.
The military company of which I have
spoken was organized, 1 think, in 1859, un
der the authority of Governor Hicks, On
.the 22d of February, 1860, we were up here
sin Washington, at the inauguration of the
Statue, By the Court.
Our company broke up immediately on the
breaking out of the war, and a great many
left and joined the rebel army. I think it
was regarded by the Government as a disloyal
organization at the breaking out of tbe war
Mr. Thomas was, I think, a candidate for
a seat in the House of Delegates of Mary
land a year or two ago.
By Mr. Ewing.
I do not think Thomas was nominated; I
saw his name in the newspaper, and I saw
him at the polls on the day of the election ;
rte was then very confident of his election.
The military organization to which I be

longed was not regarded as a disloyal organ
ization in 1859; we never drilled after the
breaking out of the war.
Recalled for the Defense, — May 27,
I know John H, Surratt; I have seen him
on his father's place, at Surrattsville. This
photograph of hira [the one in evidence] is,
I think, a good likeness. I have not seen
him for a year and a half or two years.
By Mr, Stone.
Dr, Mudd does not live on any of the
direct roads leading from Washington to the
Potomac. A person leaving Washington, in
tending to strike the Potomac above Pope's
Creek or Upper Cedar Point Neck, would go
out of his way seven or eight miles to pass
Dr Mudd's, A person starting from here to
strike the Potomac at Port Tobacco, would
be nearest Dr, Mudd's at Troy, where the
main road crosses. That is seven or eight
miles from Dr. Mudd's place; so that a per
son would go out of his way sixteen miles to
call at Dr, Mudd's, and by the nearest road
it would be ten or twelve miles. Dr, Mudd's
house is considerably nearer the Patuxent
than the Potomac, All the shipping from
his farm is done on the Patuxent I think
Pope's Creek on this side of the Potomac is
nearly opposite Matthias Point, in Virginia,
Recalled for ihe Defense. — May 30,
Cross-examined by Assistant Judge Advooatk
Bingham,
In September, 1861, I accompanied Benja
min Gwynn and Andrew Gwynn to Virginia,
I think we reraained in Richmond four weeks ;
I was sick there for two weeks. We sup
posed we were to be arrested, and we went to
Richmond to avoid it We were in the pines
at Dr Mudd's four or five days before we left,
I belonged to a cavalry company, but I can
not say that it"'' was hostile to the Govern
ment and Administration of the United
States, I suppose, if Maryland had passed
the ordinance of secession, in all probability
that company would have been in the rebel
army, but I can not say that it was an organ
ization to support Maryland in so doing, I
am not aware that I publicly proclaimed
myself in favor of the secession of Mary
land; I may have done so, but I do not now
recollect. I have not been over the lines
since the tirae I have referred to.
I have been at Dr. Mudd's several times
during the past two or three years. In going
backward and forward from Baltimore, 1 gen
erally make Dr. Mudd's my head-quarters.
By Me. Ewing.
I am brother-in-law to Dr. Mudd. I have
two or three sisters in that neighborhood,
and I go to see them all. When I returned
from Virginia I took the oath of allegiance,
and I have never, to my knowledge, yio-
lated it

DEFENSE OF SAMUEL A. MUDD.

181

Alvin J. Brook.
For ihe Defense, — May 27.
By Me. Ewing.
I have been living at Calvert College, near
Windsor, Maryland, since September last;
before that I worked for Dr. Samuel Mudd.
I went there in January, 1864. While living
at Dr M.udd's I never saw Captain or Lieu
tenant Perry, or Captain White, from Ten
nessee. I know Mr. Benjamin Gwynn and
.Vndrew Gwynn, but I did not see either of
them at Dr. Mudd's. I know John H. Sur
ratt; I saw him in Prince George's County
last August While at Dr. Mudd's I never
saw nor have I any knowledge of those per
sons sleeping in the woods at Dr. Mudd's;
I never saw any evidence that they did. I
was in the stable morning, noon, and night,
but I never saw any strange horses there.
While living at Dr. Mudd's, I took my meals
and slept in the house.
In 1861 I was living at Jerry Dyer's, which
is just across the swamp from Dr. Mudd's
place. I know of persons sleeping in the
woods in 1861, the first year of the war. I
know of Jerry Dyer and Benjamin Gwynn
dodging about there in the woods. I have
not seen Andrew Gwynn since then.
Cross-examined by Assistant Judge Advocate
Bingham.
[ Photograph of John H. Surratt exhibited to the wit
ness,] I know that picture. It is John H. Sur
ratt I saw him about the middle of August
last, about sixteen miles frora Dr, Mudd's,
No one was at Dr, Mudd's while I was there,
but the neighbors round, William A. Mudd,
Albert Mudd, and Constantine Mudd. I
knew all who came there; there were no
strangers. I never saw Booth.
Feank Washington (colored.)
For the Defense, — May 27.
By Me. Stone.
I lived the whole of last year at Dr. Samuel
Mudd'a I was his plowman; I am working
there still. I was there every day, except
Sundays and holidays, and I was in the
stable night and morning, and at 12 o'clock.
I was often at the spring. I took my meals
in the kitchen of Dr, Mudd's house,
I know Mr, Andrew Gwynn and Mr, Benja
min Gwynn by sight It has been four years
since I saw Mr, Andrew Gwynn. I never
saw any one camped out in the woods at Dr,
Mudd's, I never saw any one there called
Captain Perry or Lieutenant Perry, or Captain
White, and I have never seen any strange
horses in the stable. I know Mary Simms,
Q, What do the servants there in the
neighborhood think of her character for tell
ing the truth?
A. She was never known to tell the truth.

Q. From her general character among the
servants in the neighborhood for telling the
truth, would you believe her on oath ?
A. No, sir.
Q. How did Dr. Mudd treat his servants ?
A. He treated them pretty well.
Q, How did he treat you ?
A. He treated me first-rate. I had no fault
to find with him.
[Exhibiting a photograph of John H. Surratt,]
I do not know him; I never saw him.
Cross-examined by the Judge Advocate,
I have known Mary Simras ever since she
was a small girl. Others on the place think
of Mary Simms as I do. I was not on the
place when Dr. Mudd shot one of his serv
ants. I knew him, but have not seen him
since the second year of the war.
[The witness was directed to look at the- accused, David
E. Herold.] I never saw him. I do not know any of
the prisoners, excepting Dr. Samuel Mudd.
I was home on Saturday, the day the
President was killed, when two men called
at Dr. Mudd's. I took their horses. I got a
glimpse of one of them as he was standing
in the door, just as the day was breaking.
Cross-examined iy Assistant Judge Advocate
Burnett.
Two stray horses came there the day after
the assassination; I put them in the stable,
and fed them. One was a bay, and the other
was a large roan. They came there just
about daybreak. At noon the bay was gone,
and Dr. Mudd's gray one. I led them out
Q. Did the little man on the end of the
seat there [Herold] ride the bay one, or the
Doctor? A. I do not know; I never saw him on a
horse. Q. You know you took out the bay one
and Dr. Mudd's gray?
A. Yes, sir.
I do not know where they went When
I brought out the horses, I went to the field,
and did not come back till sundown, and
both horses, the bay and the roan, were then
gone. Dr. Mudd has only two servants now,
myself and Baptist Washington, who is a
carpenter. I get $130 a year wages. I do not know
that I shall get any thing for this extra job.
No one has promised me any thing for
coming here, or said any thing about it I
do not know about any arms being brought
to Dr. Mudd's at any tirae, nor was any thing
said that I know about Rachel Spencer bury
ing any arms for Dr. Mudd.
Baptist Washington (colored.)
For the Defense, — May 27.
By Mr. Stonb.
I worked for Dr. Samuel Mudd last year.
I put up a room between his house and the

182

THE CONSPIRACY TRIAL.

kitchen. I worked there from either Janu
ary or February until August, and then carae
to Washington, and staid here about a month,
when I went back to Dr. Mudd and staid
there until Christmas. I never heard of
anybody being camped about the spring, or
Bleeping in the woods at Dr Mudd's last
year. I used to be down at the spring pretty
often, but I did not see anybody there. I
do not know Captain Ben. Gwynn or An
drew Gwynn, and I never saw or heard of
Captain White or Captain Perry being at
Dr. Mudd's; nor did I ever know of any
horses belonging to strangers being in the
stable. I did most of my work, sawing-out
and framing, at the stable. I was at the
stable every day while I was at work, excepts
ing Sundays and holidays.
I know Mary Simras, the colored girl, that
lived at Dr. Mudd's. Nobody that knew her
put much confidence in her. Mary Simms
minded the children, and waited on the table
sometimes. Q. How did Dr Mudd treat his servants?
A. He always treated his servants very
well, so far as I knew.
Q. How did he treat you?
A. He treated me very well. I was always
very well satisfied with the accomraodations
he gave me when I was there.
Cross-examined by Assistant Judge Advocate
Bingham.
I did not belong to Dr. Mudd, but was hired
out to him. I was the slave of Mrs, Lydia
Dyer, originally of the family of Jerry Dyer,
[Exhibiting to the witness a photograph of John H, Sur
ratt,] I do not know that man ; I never saw him
at Dr Mudd's that I know.
Mrs. Mart Jane Simms.
For the Defense, — May 27.
I lived with Dr. Samuel Mudd during the
year 1864, except when I was at my sister's
visiting. I never staid over two or three
weeks at my sisters.
I know Captain Bennett Gwynn and Mr
Andrew Gwynn. Mr. John H. Surratt I
have seen since. I saw none of those per
sons at Dr. Mudd's last year; none of them
were in the woods and fed from the house
that I saw or heard of I visited my sister
last March twelve months, and was at Dr
Mudd's pretty much all the spring, summer,
and fall Bennett F. Gwynn.
For the Defense. — May 20.
By Mr. Ewing.
My name is Bennett F. Gwynn. I am
sometimes called Ben. Gwynn. Andrew and
George Gwynn are my brothers. Of Captain
White from Tennessee, Captain Perry, or
Lieutenant Perry, I know nothing I never
heard of such persons.

About the latter part of August, 1861, I
was with my brother, Andrew J, Gwynn,
Mr Jerry Dyer, and Alvin Brook, at Dr
Mudd's place. About that time General
Sickles came over into Maryland, arresting
almost everybody, I was told I was to be
arrested, and 1 went out of the neighborhood
awhile to avoid it I went down into Charles
County; staid about among friends there for
a week or so, as almost everybody else was
doing. There was a good deal of running
about that time,
Q. Go on and tell all about it
Assistant Judge Advocate Bingham ob
jected. What occurred in 1861 was not in
issue, Mr. Ewing said that the prosecution had
called four or five witnesses to prove that
several persons, among whom was the wit
ness now on the stand, had been concealed
in the neighborhood of Dr, Mudd's house for
a week, and that their meals were brought
to them by him or his servants, and had
attempted to show that those persons were in
the Confederate service, and that Dr, Mudd
was guilty of treason in assisting them to
secrete themselves, and had stated that that
occurrence took place last year or the year
before. To prove by this witness and others
that no such thing occurred last year or the
year before, might not be regarded as a
complete answer to the allegation, and hence
it was proposed now to show that the trans
action referred to took place in 1861, at the
beginning of the war, at a time of general
terror in the community, and that some of
the persons, alleged to have been concealed
there, were not there. To withhold from the
accused the right to prove this would be
denying to him a most legitimate line of
defense. Assistant Judge Advocate Bingham replied,
that the Government had introduced no tes
timony in regard to any such transaction in
1861 ; and hence the testimony now pro
posed to be introduced was irrelevant and
immaterial. If the witness should swear
falsely as to that, it would not be legal
perjury, because it was a matter not in is
sue. The witness could be inquired of as to
the time when it was stated he had been
there, but not as to what occurred in 1861.
The Commission sustained the objection.
Q, Where did you and the party who were
with you near Dr Mudd's, sleep?
A, We slept in the pines near the spring.
We had some counterpanes which were fur
nished by Dr. Mudd, who brought our meals.
We were there in the pines four or five days.
While we were there we often went to Dr.
Mudd's house ; almost every day, I think.
Our horses, though I do not know positively,
were, I suppose, attended to by Dr Mudd's
servant I have not been in Dr. Mudd's
house or near his place since about the 6th
of November, 1861.
Some time from the 5th to the lOth of

DEFENSE OF SAMUEL A. MUDD.

183

November, 1861, I came up to Washington
to give myself up, as I was tired of being
away from home. When I carae here, they
said there were no charges filed against me;
so I took the oath and went home.
My brother, Andrew Gwynn, has been
South, I understand, since August, 1861. He
resided some eight or ten miles from my
place. He returned once, I understood, last
winter, but I did not see him, and did not
know it I have been living in Prince
George's County since 1861.
I know John H. Surratt At the time we
were in the pines, he was, I believe, at St
Charles College,
Cross-examined by ihe Judge Advocate.
The parties who were arrested in 1861
were mostly members of volunteer military
companies, commissioned by Governor Hicks,
I was captain of a cavalry company down
there. It was called the Home Guard, and
was for the purpose of protection in the
neighborhood. There was at that time a
great deal of dissatisfaction among the blacks,
and those in the neighborhood thought it
would be a good plan to organize, and com
panies were organized all through the coun
ties, I petitioned Governor Hicks, and he
gave me a commission,
Q. Was it not understood that these were
State organizations, and intended to stand by
the State in any disloyal position it might
take against the Government?
A, That was my impression of them.
Q. And you were a captain of one of those
companies? A. Yes, sir.
Q. You felt, therefore, that it was likely
vou would be arrested ?
A. I do not know that I did from that
Some of the members of my company were
arrested, and I understood there was an
order for my arrest, and I left
Q. You slept there in the pines for the
sole purpose of escaping that arrest?
A, Yes, sir Dr. Mudd knew why we were
hiding in the pines, and why he was feeding
us there. By Mr, Ewing.
The company of which I was captain was
organized in Prince George's County, I think,
in the winter of 1860, I think we com
menced getting it up before the election of
Mr. Lincoln. Dr Mudd was, I think, a
meraber of a company organized in Bryan
town, but I do not know it of my own
knowledge. William A. Mudd.
For the Defense — May 30.
By Me. Ewing.
I live about a mile and a quarter or a
mile and a half from Dr. Samuel Mudd, I
never saw any person by the name of Cap

tain White, or a Captain or Lieutenant Perry,
about Dr, Mudd's premises. I did not sec
Mr Andrew Gwynn about his premises last
year; I have not seen him since he left for
the South. I never saw any person staying
out in the woods, at Dr Samuel Mudd's, any
time last year. I remeraber seeing Mr. Ben
nett Gwynn on his horse, talking with the
Doctor T understood Mr, Gwynn had been
scouting. That was in the fall of the first
year of the war.
Charles Bloyce (colored.)
For the Defense. — June 3.
By Me. Ewing.
I know the prisoner, Dr, Samuel A. Mudd;
I was about his house Saturday nights, and
some parts of Saturday and Sunday, all last
year, except from the lOtli of April to the
20th of May, when I went out to haul seine.
I commenced going to Dr. Mudd's on the
12th day after Christmas, the same day that
Julia Ann Bloyce, my wife, went, and was
there every Saturday night and all day Sun
day, e.-icept when I went to Church. I
did not see Ben, or Andrew Gwynn at Dr
Mudd's when the war commenced, about four
years ago; I saw them passing along by Mr.
Dyer's, I neither saw nor heard any thing
of Watt Bowie, John H, Surratt, Captain
White of Tennessee, Captain Perry, Lieu
tenant Perry, or Booth at Dr, Mudd's while I
was there; and I do not know of any rebel
officers or soldiers being there. I never saw
anybody at his house dressed in any kind of
uniform. The colored folks there always laughed at
Mary Simms; they said she told such lies
they could not believe her They said the
same of Milo Simms, I thought he was a
liar, for he used to tell me lies sometiraes. I
call Dr. Samuel Mudd a first-rate man to his
servants ; I never saw him whip any of them,
nor heard of his whipping them. They did
pretty much as they pleased, as. far as I saw.
I never heard a word of his sending or threat
ening to send any of his servants to Rich
mond, Cross-examined by Assistant Judge Advocath
Bingham,
Q, Did you ever hear any thing about his
shooting any of his servants ?
A, I did hear that
Q, Do you think that is first-rate business ?
A. I do not know about that

IMPEACHMENT OF DAN'L J. THOMAS,
John H, Downing,
For the Defense — May 29.
By Mr. Ewing.
I live near Mount Pleasant, in Charles
County, Md. I am very well acquainted

184

THE CONSPIRACY TRIAL.

with the accused, Sarauel A. Mudd, and also
with Daniel J. Thoraas, both of whom were
raised right by me.
Some time this spring, between the 1st and
the 15th of March, I think, Daniel Thoraas
was at my house, and while there Dr Mudd
came in, and staid about half an hour. Dr.
Mudd did not, in conversation at that time, say
that Abraham Lincoln was an abolitionist, and
that the whole Cabinet were such, or that he
thought the South would never be subjugated
under abolition doctrines, or that the Presi
dent, and all the Cabinet, and every Union
man in the State of Maryland would be killed
in six or seven weeks. No such words were
spoken in the house to my knowledge, and I
staid there all the tirae. After I had been
sitting there half an hour, I got up and
walked to the piazza, and Dr, Mudd followed
me immediately, and told me his business;
that he had come to collect a little doctor's
bill, and then went directly home,
Dr, Mudd and Thoraas could have had no
conversation at that tirae but what I heard;
I was close to them, Thomas sitting between
me and Dr Mudd, and if they had whispered
I should have heard it The President's
name was not mentioned during Dr, Mudd's
stay, and I do not recollect that Thomas
mentioned it while he was at my house, and
he had been there two or three hours before
Dr. Mudd came, and remained fully an hour
after he left. Nor was any reference made to
any meraber of the Cabinet, nor to killing
anybody; I am sure I should have remem
bered it if a word of the kind had been men
tioned. Daniel Thomas and I meet each
other very frequently, but I never heard him
mention a word of the kind to me any time,
neither before the assassination nor since,
I do not recollect Dr, Mudd's saying to me
on that occasion that he did not consider the
oath of allegiance worth a chew of tobacco ;
to my knowledge nothing of the kind was
said, I can not recollect all the conversa
tion ; but they commenced talking about de
tectives, and Daniel Thomas told Dr, Mudd
that he was appointed detective, and spoke
of several others — Jerry Mudd, Dr, George
Mudd, Joe Padgett, I think, and perhaps one
of the Hawkinses, who were also detectives ;
but he said he would never catch anybody;
that he would go to their houses because it
was his duty, but he would never catch any
body ; that he was not bound to catch them.
Cross-examined by Assistant Judge Advocate
Bingham,
Dr. Mudd and Thomas were talking all
that half hour; their talk was pretty much
about detectives; that is all I recollect of it
I believe it took Thomas pretty much a whole
half hour to say that he was a detective, and
did not catch anybody; he was telling a
whole parcel of foolish things, I had no
conversation, none at all ; Dr Mudd and
Thomas only were talking, I believe Dr.

Mudd compared Thomas to a jack, because
he said he was appointed a Deputy Provost
Marshal under Colonel Miller; and said, "1
think, Daniel, I am much better educated than
you are, and I do not think I am capable
of filling that office myself, and I do not
think you are." I was irritated when he
called Thoraas a jack, as it was in my house;
I then got up, and Dr Mudd followed rae to
the door; he was not half a second behind
me. If M^udd called Thomas an abolitionist
as well as a jack, I did not hear it When
Mudd called Thomas a jack, he might have
been mad at the idea of his being a Deputy
Provost Marshal. By Me. Ewing.
It was cold weather at the time, and we
sat close by the fire, Thomas between me
and Mudd, and I heard every word of the
conversation that took place.
Dr. John C, Thomas.
For the Defense. — May 26.
By Mr. Stone.
I reside in Woodville, Prince George's
County, Md,, and have bedn a practicing
physician for nineteen years, I am a brother
of Daniel Thomas, who has testified here.
On the Sunday morning after Dr. Mudd's
arrest, my brother came to Woodville Church ;
and as he was just frora Bryantown the day
before, we asked hira the news. He was full
of news of the arrest of Dr, Mudd, and the
boot having been found with him, etc, and
then during the conversation he spoke of
what Dr. Mudd had told him a few weeks
before, in relation to the assassination of the
President Mr. Sullivan Wood and several
other gentlemen were present He had never
mentioned the subject to me before that time,
and I am certain that in that same conver
sation he spoke of Booth's boot being found
in Dr, Mudd's house,
I have attended my brother professionally
in some serious attacks. About six years
ago he had a very serious paralytic attack —
partial paralysis of the face and part of the
body. He labored under considerable nervous
depression for sorae tirae before he recovered.
He was raentally affected from it His raind
was not exactly right for a long tirae, and I
am under the impression that it is not now
at all times; and on these occasious he is
credulous and very talkative. He is very
apt to tell every thing he hears, and believe
every thing he hears, I do not pretend to
say that he would tell things that he did not
hear, or make up things; but he is very
talkative, *
His reason may be somewhat affected, and
his memory also, when these attacks come
on. He has fainting spells, and is confined
to his bed; but when he is up, and in the
enjoyment of good health, he seems to be

DEFENSE OF SAMUEL A. MUDD.

186

rational. These attacks come on at no par^
tioular time. When they do come on, he
labors under great nervous depression, and
has to be stimulated materially sometimes.
He has not had an attack now for some time ;
his health has been better.
Cross-examined by Assistant Judge Advocate
Bingham.
It was on the Sunday after the soldiers
were at Bryantown that my brother told
me that Dr. Mudd had said that Lincoln,
and the whole Cabinet, and all the Union
men of Maryland would be killed in a few
weeks; that was the first I heard any thing
about it By the Court.
My brother seemed to be as rational on that
Sunday as I ever saw him ; he was not at all
excited, and I think he was quite capable of
telling the truth on that day. I had no doubt
in my mind at that time that Dr Mudd had
said this, though I thought he might probably
have said it in joke. At first I thought my
brother was jesting, and told hira that if it was
not true he should not say so, and he said it was
certainly true; that Dr. Mudd had raade the
statement in Bryantown; and I supposed it
was so. I do not suppose my brother would
swear to any thing that was not true.
James W. Richards.
For ihe Defense. — June 6.
I live near Horsehead, Prince George's
County, Md. On the 1st of June last I met
Daniel J. Thomas, in corapany with John
R. Richardson, Benjamin J. Naylor, George
Lynch, Lemuel Watson, and William Watson,
at the door-yard of Mr. William Watson,
near Horsehead. Mr, Thomas said that he
had asked Mr, William Watson and Mr, Ben
jamin J, Naylor for a certificate, stating that
he was entitled to the reward, or a portion of
the reward, that was offered for the arrest of
Booth and his accomplices; and he thought,
if he could get a certificate from them to that
effect, he would be entitled to a portion of the
reward in the event of Dr. Mudd's being
convicted, as he (Mudd) was considered one
of Booth's accomplices. The reward, Mr.
Thoraas said, was $10,000; he stated that the
certificate was to certify that he inforraed
them concerning Dr. Mudd's arrest I do
not think he wanted a certificate stating that
he was the cause of Dr. Mudd's being arrested.
He said, if Dr. Mudd was convicted, he was
entitled to a portion of the reward,
I have known Daniel J, Thomas for the
past five years; his reputation in the com
munity for veracity is very bad. In any
thing in which he had a prejudice, or where
any money was at stake, I would not believe
him under oath.

Cross-examined by Assistant Judge Advooatb
Bingham.
When I rode up, Mr. Lemuel Watson re
marked to me, "You are a justice of the
peace ; I am glad you have come ; I want you
to try a case here. Daniel says he is entitled
to so much reward, and I want you to say
what you think of it" I do not remeraber
what reply I made to this. Mr. Thomas
stated that he had applied to Mr. Watson and
Mr, Naylor for a certificate to the effect that
he had informed thera concerning Dr, Mudd's
arrest, and that, if he could get such a certifi
cate, he would be entitled to a portion of the
reward. We told hira that we thought he
was entitled to $20,000, by way of a joke.
Both William Watson and myself told him
this. I remarked to him that I did not think
$10,000 was enough, and I thought he would
better take $20,000, Thoraas said he would
not want me to swear to a lie for him to get
$10,000. I understood Thomas pretended to
Mr, William Watson that he had told him
of the arrest of Dr Mudd,
By Mr, Ewing.
I have always been a loyal man, and a
hearty supporter of the measures of the Gov
ernment for the suppression of the rebellion;
I voted for Lincoln and Johnson,
In 1861 I met Mr. Thoraas on my way
from teaching school. He said that he was
going to join the Southern army, and that he
intended to come back, when Beauregard
would cross, and hang a man by the name of
Thoraas B. Smith. 'Ihomas was not a loyal
man at the beginning of the war.
[Mr. Ewing offered the following in evidence:]
[official.] War Department, "l
Washington, April 20, 1865. J
One Hundred Thousand Dollars Reward,
The murderer of our late beloved President,
Abraham Lincoln, is still at large. Fifty
thousand dollars reward will be paid by this
department for his apprehension, in addition
to any rewards offered by municipal authori
ties or state executives.^ 'Iwenty-five thousand
dollars reward will be paid for the apprehen
sion of G. A, Atzerodt, sometiraes called
" Port Tobacco," one of Booth's accomplices.
Twenty-five thousand dollars reward will be
paid for the apprehension of David E, Herold,
another of Booth's accomplices. Liberal re
wards will be paid for any information that
shall conduce to the arrest of either of th?
above-named criminals or their accomplices.
All persons harboring or screening the said
persons, or either of them, or aiding or assist
ing their concealment or escape, will be
treated as accomplices in the murder of the
President and the attempted assassination of
the Secretary of State, and shall be subject
to trial before a military commission, and the

186

THE CONSPIRACY TRIAL.

punishment of death Let the stain of inno
cent blood be removed from the land by the
arrest and punishment of the murderers.
All good citizens are exhorted to aid public
justice on this occasion. Every man should
consider his own conscience charged with
this solemn duty, and rest neither night nor
day until it be accomplished.
EDWIN M, STANTON,
Secretary of War.
William J. Watson.
For the Defense, — June 9.
By Me. Ewing.
I live in the Eighth Election District,
Prince George's County, Maryland, I am
acquainted, though not intimately, with Dan
iel J. Thomas. I was in my door yard, near
Horsehead, on the 1st of June, with John R,
Richardson, Benjamin Naylor, George Lynch,
Lemuel Watson, and Daniel .1. Thoraas, On
that occasion, Daniel J, Thoraas said, if my
memory serves me right, that if Dr. Mudd
was convicted upon his testimony, he would
then have given conclusive evidence that he
gave information that led to the detection of
the 'conspirators.
He said he thought his portion of the re
ward ought to be $10,000, and he asked me
if I would not, as the best loyal man in
Prince George's County, give him a certifi
cate of how much I thought he ought to be
entitled to.
Cross-examined by Assistant Judge Advocate
Bingham.
I told him I did not think he was entitled
to any portion of the reward, and would give
him no certificate. I then appealed to his
conscience in the most powerful manner I
could, and asked him if he believed he was
entitled to the reward? I did this three
times, but he waived the question every time
by saying that Daniel Hawkins said he was
entitled to it He did not say that Daniel
Hawkins had told him, but that he had told
somebody else so. Thomas then asked Mr.
Benjamin J. Naylor, I think, if he did not
mention to hira and to Arthur D. Gibson,
before the killing of the President, the lan
guage that Dr. Mudd had used to him. Mr
Naylor said that he had never done it before
or after.
When I was appealing to his conscience
in regard to the matter, Mr James Richards,
a magistrate in the neighborhood, rode up,
and my brother, Joseph L. Watson, or Lem
uel Watson as he is called, appealed to hira,
saying, "There is a contest going on here
between Billy and Daniel; you are a magis
trate, and I want you to decide it between
them." Mr Richards said, " Lem, let us say
that he is entitled to $20,000 of the reward."
Mr. Thomas then said, "No, sir, I would
i)pt have either of you gentlemen swear

falsely, though by your doing so it would give
rae $20,000. That is what I understood him
to say. By Mr. Ewing.
Mr Richards did not offer to take a false
oath. He was joking; I am confident of
that Mr. Richards is a true Union raan.
By Assistant Judge Advocate Bingham,
Q. Do you not consider that Daniel J.
Thomas is entitled to belief on his oath ?
A. I have no reasons bearing on my mind
to offer to the Court why I would not; there
fore, I must say, I would,
Q. Would you believe him on his oath ?
A, I would,
Q, He has as good a reputation for truth
as most of his neighbors down there?
A, I should not think he had as good a
reputation for truth as most of the neighbora
Mr, Ewing objected to this course of ex
amination as improper. It was not legiti
mate cross-examination. The witness had
been subpenaed by the Government, and, at
the consent of the Judge Advocate, was
called by the accused as to a single point,
with the understanding that he should be
treated as a witness for the accused only to
that one point
The Judge Advocate (while not yielding
the point that the line of examination pur
sued was improper) stated that he would
agree now to take this witness as one for the
prosecution; and the witness was accordingly
exarained for the prosecution in rebuttal.
By Assistant Judge Advocate Bingham.
I was not much acquainted with Daniel
J. Thomas till 1863. He lives in Charles
County, and I in Prince George's. I do not
know what kind of a reputation he bore in
Charles County, but in my neighborhood they
spoke evil of him. They say he tells a good
many lies, but I think people tell him as
many lies as he tells them. Though some
speak well of him, people generally say that
his reputation for truthfulness is bad,
Q, I ask you your opinion, whether you
consider, from all you hear of his reputation
there, that his character for truth is such
that he is entitled to be believed on oath ?
A, I believe that he is ; because if I was
to come here and say he was not qualified,
I should have to say that half the men
around there are not qualified.
By Mr. Ewing.
Q, Are you able to say that you know what
Mr. Thomas's general reputation is, in the
community in which he lives, for truth ?
A. I think I have stated that it is not good'
for truth in speaking; but I think he lies
more in self-praise, to raake the people think
a great deal of him, than in any other way.
I have never heard of Mr. Thomas telling a
lie that would make a difference between man

DEFENSE OF SAMUEL A. MUDD.

187

and man. I have known of no quarrels to
be kicked up in my neighborhood about any
thing Mr. Thomas has told from one man
to another.
Q, Do you know whether Mr Thomas was
a loyal man in the beginning of the war?
A. I do not know. He was represented
not, to rae ; but I suppose if he had been, his
feelings would have been coerced by the
people by whora he was surrounded,
Q, Do you know who he supported at the
last election for President?
A, I do not know; but he electioneered
for George B. McClellan.
John C. Holland.
For the Defense, — June 8,
By Mr. Ewing.
I hold the position of Provost Marshal of
the draft for the Fifth Congressional District
of Maryland. I know Daniel J. Thomas
from the fact that he was a drafted man,
and I examined him at Benedict, Charles
County, I never received a letter from him
in which the narae of Dr, Mudd was men
tioned; nor any letter stating that the Presi
dent, or any member of his Cabinet, or any
Union man in the State of Maryland would
be killed. I received a letter from him dated
February 9, 1865, but it contained no refer
ence whatever, direct or indirect, to this sub
ject, nor to Dr Sarauel A. Mudd. Mr.
Thomas, I believe, was comraissioned as an
independent detective; that is, commissioned
specially by me to arrest drafted raen that did
not report and deserters, receiving as compen
sation the reward allowed by law. He was not
under pay from the Government Such com
missions were given to any one who applied.
Cross-examined by Assistant Judge Advocate
Burnett.

The letter contained a reference to Dr
George Mudd, with whom I am acquainted,
but none whatever to Dr. Samuel Mudd; I
am not acquainted with him.
Richard Edward Skinner (colored.)
For the Defense. — June 27.
I live in Charles County, Md, I am the serv
ant of Mrs, Thomas, the mother of Daniel
J. Thomas, whom I have known for thirty
years, I know what is thought of him in the
comraunity for telling the truth, and he
does n't bear a good reputation among gen
tlemen, I have always been livjng with him,
and I have heard gentlemen say they would
not believe him under oath. 1 do not like
to say that I would not believe him when he
was under oath.
Mr. Daniel .1. Thoraas was not a loyal man
on the breaking out of the war; since then
he has sometiraes been loyal, and then again
he has not been so; just changeable like.

- Cross-examined by the Judge Advocate.
I never heard gentlemen speak of Mr.
Thomas testifying in a court of justice, and
I do not mean to say that Mr Thomas, when
he is on his oath in court, is not to be be
lieved.
John L. Turner.
For tho Defense, — June 9.
¦ By Mr. Ewing.
I live in the lower part Prince George's
County, near Magruder's Ferry, on the Pa
tuxent River, six or seven miles frora Dr.
Mudd's. I have a slight acquaintance with
Daniel J. Thomas. He is not regarded as a
truthful man by any means in that neigh
borhood. From his general reputation, I
could not believe him under oath, where he
was much interested.
Mr Thoraas has been loyal part of the
time since the war commenced, but I can
not say that he has been so all the time. He
has been loyal for the last year or two, but
I do not know how he stood at the begin
ning of the war.
Dr. George D, Mudd has been considered
a loyal man throughout the whole war. I
have always been a loyal man and a sup
porter of the Government. I voted for George
B, McClellan for President, because I con
sidered him as good a loyal man and as
good a Union raan as Mr. Lincoln; and as
he said that if he were elected the war would
only last a few months, I voted for him on
that ground,
I know Dr, Sam Mudd, I have known
him since he was a boy. His reputation for
peace, order, and good citizenship has been
very good, I have always considered him a
good, peaceable, and quiet citizen, as much
so as any raan we have among us. I never
knew him do any thing in aid of the rebel
lion. Polk Deakins.
For the Defense, — June 9.
¦By Mr. Ewing.
I live near Gallant Green, Charles County,
Md. I have been acquainted with Daniel J.
Thomas ever since I can remember. His
reputation in the community for trutli-telling
is very bad; and if he had any inducement
to speak other than the truth, I would not
believe him under oath.
In 1861, Mr. Thomas said he was going
over into Virginia, and he tried to persuade
me to go, but I did not
Jeremiah T. Mudd.
Recalled for the Defense, — May 27.
By Mr. Ewing.
I am acquainted with Daniel .T. Thomas,
and know his reputation in the neighborhood

188

THE CONSPIRACY TRIAL.

in which he lives; for truth and veracity it
is bad; and I do not think I could believe
him under oath.
Cross-examined by Assistant Judge Advocate
Bingham.
I base my opinion, as to his general repu
tation, on my knowledge of him, and on his
reputation in the neighborhood. He is known
to go riding about the country, telHng-things
th&t are marvelous and miraculous. I may
safely say I have heard as many as ten or
a dozen persons speak of his bad reputation for
truth and veracity. Among others, I have
heard Dr. George Mudd and Mr. Gardiner.
I have never heard any one say that Thomas
had ever sworn falsely in any court
By Me. Stone.
Thomas represents himself as a detective,
acting under the orders of Colonel Holland;
whether such is the fact I do not know.
Lemuel L. Oemb.
For the Defense, — June 6.
By Me. E'wing.
I am acquainted with Daniel J. Thomas;
I knew him first when he was not more than
thirteen or fourteen years of age. He is
looked upon in the community in which he
lives as a man that hardly ever tells the
truth; his reputation for veracity is very bad.
I never heard him tell any thing of any
length, without betraying himself in a story
before he got through; and I have scarcely
heard of a man in the neighborhood that
would believe any thing he might tell. If
he had the least prejudice against a person,
I could not believe him under oath.
Cross-examined by Assistant Judge Advocate
Bingham.
If he had a prejudice, and was under oath,
I should hardly believe him any how.
By the Judge Advocate.
To the best of my knowledge and belief,
I have been loyal to the Government during
this rebellion. I have never done any thing
to oppose the efforts of the Government in
suppressing the rebellion; I have always
wished that the Union might be sustained,
and that the Government might not be
broken up, and have always so expressed
myself I had no idea of the South ever
forcing the North to go to them; and so far
as the Union is concerned, I always expected
that, if maintained, it would be by the North.
By Me. E-jving.
If words testify any thing, Mr. Thomas
has not been a loyal man since the begin
ning of the war. In the fall of 1861, for a
distance of two miles, he talked to me, and
advised me to go South with him. He may
have changed his sentiments since, but dur

ing the first twelve or eighteen months of
the war, he was looked upon as a great
friend of the South ; helping as far as his
ability went He was not looked upon as
able to help anybody, but his conversations
were all that way.
John H. Baden.
For the Defense. — June 8.
By Me. Ewing.
I live in Anacostia District, Prince George's
County, Md, I know the reputation Daniel
J. Thomas bears for truth and veracity; he
is accounted a very untruthful man ; I be
lieve few place any confidence in what he
says. From the knowledge I have of his
reputation for veracity I would not believe
him under oath.
Cross-examined by the Judge Advocate.
I have never heard him charged with
swearing falsely. I have heard him tell a
great deal that was not true, but I never
heard him swear to it
Q. From your knowledge of human char
acter, do you not think there are many men
who talk idly and extravagantly, and some
times untruthfully, who would nevertheless,
when under the obligations of an oath, speak
the truth?
A. I do not know, sir. I do not place any
confidence myself in what I hear him say.
I have nothing against Mr. Thomas; I have
known him a good while, but I do not put
any confidence in what I hear him say.
Q. That is not an answer to my question.
Do I understand you to hold that a man who
will sometimes speak untruthfully, will neces
sarily swear to an untruth in a court of jus
tice ? Is that your j udgment of human char
acter and conduct?
A. Not all. Eli j. Watson.
For the Defense. — June 8.
By Me. Ewing.
I reside in the Eighth Election District,
Prince George's County, Md. I have known
Daniel J. Thomas ever since he was a boy.
I know his reputation for truth and veracity
in the neighborhood in which he lives, and it
is very bad. Frora that general reputation,
and my knowledge of his character, I would
not believe him under oath.
I saw Mr. Thomas on my farm on the Ist
of June; he said he had been a witness
against Dr. Mudd, and that Joshua S. Nay
lor had sworn to put down his oath ; he also
said that if his oath was sustained, he ex
pected a portion of the reward that the Gov
ernment was to give for Booth.
Q. And that Joshua S. Naylor had sworn
to put down his oath f what do you under
stand by that?

DEFENSE OP SAMUEL A. MUDD.

189

Assistant Judge Advocate Bingham objected
to the question, and it was waived.
Joshua S. Natloe.
For the Defense, — May 30.
By Mr, Ewing.
I reside in the Eighth Election District,
Prince George's County, Md, I have known
Daniel J. Thomas since he was a boy. His
general reputation for truth and veracity in
that neighborhood is bad, and such that 1
would not believe him under oath. His rep
utation is that he never tells the truth if a lie
will answer his purpose better; and, though
it is hard to say it of any man, I could not
believe him under oath.
Cross-examinM by the Judge Advocate.
. I can not say that he is reputed to be a
loyal and an honest man in his neighbor
hood. As to his loyalty, he is sometiraes
one thing and sometimes another, just as
the prospects of the different parties seem to
be going. During the latter part of the re
bellion, he has pretended to be a warm sup
porter of the Government, and he may have
been sincere ; but, from what others have told
me, he said to them he was not during the
early part of the rebellion,
I never heard him speak under oath, and
can not say that I have ever heard him
charged with swearing falsely.
By Me. Ewing.
I have been a supporter of the Govern
ment and the Administration of the United
States at all times and under all circum
stances. Dr. George Mudd I have heard
spoken of as a good Union raan, and a suj)-
-porter of the Government in the war against
the rebellion John Watees.
For the Defense. — May 9.
By Mr. Ewing.
I live in Charles County, Maryland. I
have been loyal to the Union, and a sup
porter of the Government in the prosecution
of the war.
I have known Daniel J. Thomas from a
boy. His reputation for truth and veracity
has not been very good ; I think the people
generally regard him as not very truthful.
I am acquainted with the prisoner. Dr.
Samuel Mudd; - his reputation in the com
munity, as a citizen, has been very good.
Before the arrest of Dr Mudd, I think I saw
Mr Thomas with a hand-bill in his hand,
offering a reward for the arrest of the assas
sins or their accomplices. That, I believe,
was on the Tuesday after the assassination
of the President

Daniel W. Ha-wikins.
For the Defense, — June 9.
By Mr, Ewing.
I am by profession a lawyer I live about
four miles and a half from Bryantown, in
Charles County. I have known Mr. Daniel
J. Thomas from ten to fifteen years. His
general reputation in the community for
truth and veracity is not very good. If I
were a juror or a judge, I should think it
very unsafe to convict on his evidence, I
should have very serious doubts about his
oath. I am very well acquainted with Dr George
Mudd; and I can say that I do not know a
more loyal man than he in the State of
Maryland, My attitude toward the Govern
ment during the war has been strictly loyal ;
and I have been a supporter of the Govern
ment in its war measures from the com
mencement of the rebellion.
Joseph Waters.
For the Defense.- — May 9.
By Mr. Ewing.
I live at Gallant Green, Charles County,
Maryland. I have known Daniel J. Thomas
frora childhood. His general reputation in
the community for truth and veracity is very
bad; and from my knowledge of his repu
tation I do not think I could believe him
under oath,
I have known Dr, Mudd from childhood.
His reputation as a citizen has been very
good, as far as I know. I have never known
any thing against him. I have not been in
any way engaged in aiding the rebellion,
but have been a loyal man throughout the
war.
Frank Ward.
For ihe Defense. — May 9.
By Mr. E'wing.
' I live at Horsehead, Prince George's
County, Maryland. I have known Daniel J.
Thomas ever since he was a boy. His repu
tation for veracity in the community is pretty
bad. I can not say that Mr. Thomas has
been a loyal man throughout the war. He
is first one thing and then another; some
times Union and sometiraes disloyal.
Cross-examined by Assistant Judge Advocate
Bingham.
I voted for McClellan. I do not recollect
whether I voted for Harris for Congress or
not; I certainly did not rejoice at the suc
cess of the rebels at the first battle of Bull
Run. By Assistant Judge Advocate Burnett.
I have heard many persons speak in refer
ence to the reputation of Mr. Thomas, but I

190

THE CONSPIRACY TRIAL.

can not recollect exactly what they said. I
live about fiv|| miles from Mr, Thomas.
By Mr. Ewing.'
My knowledge of his reputation was ob
tained before this trial commenced.

IN WASHINGTON, Dboembee 23, 1864.
Jeremiah T. Mudd.
For the Defense, — May 26.
By Mr. Ewing.
I reside in Charles County, Maryland,
about a mile and a half from Dr Samuel
A, Mudd. Dr. Mudd and myself went to
Washington together on the morning of the
23d of December last I recollect the date
distinctly, because we got home on the 24th,
Christmas eve. It was a little in the night
when we arrived in Washington; we put up
our horses near the Navy Yard, and went
to the Pennsylvania House, registering our
names for lodgings. We went to a restau
rant on the avenue, now Dubant's, I think,
for supper, and staid there possibly an hour.
We then went to Brown's Hotel, and after
ward to the National Hotel, and there was a
tremendous crowd there, and we got separated.
I met a friend at the National, conversed
with him a short time, then went down the
avenue and visited some clothing stores, and
returned to the Pennsylvania House. Dr.
Mudd came in there shortly after rae, and
we went to bed. There was no one with
him when I first saw him, as he came
through the folding doors to the room where
I was; but there may have been some few
persons in the adjoining room from which
he carae.
The next morning I went with Dr, Mudd
to purchase a cooking stove, and then we
separated, he to make some little purchases
for himself, and I to buy some clothing, etc, ;
but we saw each other repeatedly, every
ten or fifteen minutes, till about 1 o'clock.
Then we went together down to the Navy
Yard for our horses, and left the city about
3 o'clock, Q, Do you know who took the articles
which he bought down to his home?
Assistant Judge Advocate Bingham, I
object to any inquiry about the articles he
bought, or who took them. It is of no con
sequence, Mr Ewing, May it please the Court, it is of
a very great deal of consequence. The prose
cution has attempted to prove by one witness
a meeting between Booth and Dr Mudd, and
an introduction of Booth to Surratt by Dr
Mudd, here in Washington, We expect to
be able to show to the Court conclusively,
that if there was any such meeting, it must
have been at this Visit to the city of Dr
Mudd about which we are now inquiring.

In that view, it is of great consequence to
the accused to be able to show that he came
here on business unconnected with Booth, for
the purpose of rebutting the presumption or
inference unfavorable to him which might be
drawn from the fact of his having met Booth
here. That alleged meeting with Booth has
been put in evidence as part of the res gestae
of the conspirac.v; on any other ground, it
would have been irrelevant and inadmissible.
We have a right to show that Dr. Mudd came
to the city that time for other purposes; we
have a right to show the acts that he did, in
order to establish that his visit was a legiti
mate business visit to Washington. There
fore it is that we ask who took the things
down ; and we expect to show that he ar
ranged, before starting from home, to have
the things which he was coming here to pur
chase hauled down, and that therefore he
carae here on legitimate business.
Assistant Judge Advocate Bingham. If
the gentleman had shown that this man was
with Booth on that day, I could see some
thing in his argument; but as it is, it does
not amount to any thing,
Mr, Ewing, But I assure you we expect
to follow this up by testimony which will
conclusively establish that he could not have
been with Booth upon any other day between
that day and the assassination of the Presi
dent Assistant Judge Advocate Binghail They
undertake to prove by this witness that he
could not have been with Booth then ; this
five-minute operation is introduced for that
purpose, as I understand. But now, in order
to make out something, for some isurpose I
can not comprehend, they propose to prove
that this man bought crockery or something
that day in town, and got somebody to haul
it home. That has nothing in the world to do
with this case. The amount of it all is, that
we have introduced testimony here to prove
this man's association with Booth in 'Wash
ington, in another month, at the National
Hotel, If they can disprove that, well and
good ; but it does not tend to disprove it, and
does not tend to throw any light on the sub
ject, to show that, in December, (another
time altogether than that stated by our witr
ness. for the meeting of Booth and Mudd,
which the Court will remember was about
the middle of January,) Mudd bought cer
tain things, and hired somebody to take them
home. All that has nothing to do with the
case. The Commission overruled the objection.
Witness, I took a portion of them my
self The stove was to have been taken down
by Mr. Lucas, who had come to the market
to sell a load of poultry, and was then in
market with his wagon. His taking tho
stove depended upon his selling his poultry ;
it was a dull market, and Dr. Mudd and I
went three tiraes to see if he had sold out, so
that he could take it

DEFENSE OF SAMUEL A. MUDD.

191

I have known Dr. Mudd from early youth
His general character for peace, order, and
good citizenship in the neighborhood in
which he resides is exemplary; he has al
ways been amiable and estimable, a good
neighbor, honest and correct I never in all
my life heard any thing to the contrary, I
think him humane and kind to his servants ;
I have lived very close to him all my life;
he is so regarded universally, I believe. He
did not work them hard either; at least they
did jiot do a great deal of work.
I remember Booth being in that county;
I saw him at Church at Bryantown in the
latter part of November or early in Decem
ber last I noticed a stranger there, and
inquired who he was, and was told that his
name was Booth, a great tragedian. From
the description of him,, and from his photo
graph, I am satisfied it was the same raan,
I only know what I heard others say about
his business there — the common talk.
Q. What was the common talk?
Assistant Judge Advocate Bingham. The
witness need not state what the common talk
was. It is not competent evidence to under
take to prove common talk about a party
not on trial here,
Mr, Ewing, May it please the Court, I
know it is the object of the Government to
give the accused here liberal opportunities
of presenting their defense, I am sure the
Judge Advocate does not intend, by drawing
the reins of the rules of evidence tight, to
shut out testimony which might fairly go to
relieve the accused of the accusations made
against them, I think it is better, not only
for them, but for the Government, whose
majesty has been violated, and whose law
you are about to enforce, that there should
be liberality in allowing these parties to pre
sent whatever defense they have to offer.
We wish to show that Booth was in that
county ostensibly, according to the common
understanding of the neighborhood, for the
purpose of selecting and investing in lands.
We introduce this as explanatory of his
meeting with Dr, Mudd, whose family, as we
expect to show, were large land-holders, and
anxious to dispose of their lands, and I trust
to the liberality of the Court to allow us to
prove it
The Judge Advocate, I wish certainly the
utmost liberality in the introduction of the
t.e8timony of the defense here, and I hope the
Court will maintain it If I at any time fall
short myself of maintaining that spirit, I
trust the Court will do it I think, however,
in this caise there is no principle of evidence
that will admit the mere talk of a neighbor
hood. Any fact which any witness knows,
tending to show for what purpose Booth was
there, no matter what that fact may be, is
admissible; but a mere idle rumor, of which
you can not take hold, on which you can
not cross-question, in regard to which you
can not speak, it seems to me, on no princi

ple by which the ascertainment of truth is
sought, can be received, 1 wish to state
most distinctly to the Court that I desire
the utmost latitude of inquiry indulged in,
and that every thing shall be introduced
which tends in any manner to illustrate the
defense which is made for these prisoners, I
wish no technical objection, and shall never
make one, and, if made, I trust it will never
be sustained by this Court
The Commission sustained the objection.
Cross-examined by the Judge Advocate,
I really do not know Dr, Mudd's reputiir
tion for loyalty to the Government of the
United Slates during this war. I have my
self heard him say that he did not desire
to see two Governments here. I have never
known of any disloyal act of his, and never
heard of any. I never, that I am aware of,
heard any disloyal sentiments expressed by
him, I have heard him express sentiments
opposed to the policy of the Administration.
I do not know that he has been open and
undisguised in his opposition to the endeav
ors of the Government to suppress the re
bellion. For the past two or three years
our people have had no disposition to talk
about the rebellion or the war. For a long
time I would seldom talk about it with any
one; and would not send to the post-office
for my papers perhaps for a week, and then
would not read thera — just look over them
on Sunday, I never heard Dr, Mudd say
that the State of Maryland had been false to
her duty in not going with other States in
the rebellion against the Government; and
I never saw Confederate ^soldiers at his
house, I did hear of his shooting one of his
servants, and do not doubt that it was true.
I heard it was only a flesh wound, I do
not know that the boy is lame still; I do
not think I have seen him since.
By Mr. Ewing.
I heard that the servant who was shot
was obstreperous; that he had been ordered
to do something which he refused to do, and
started to go away; that the Doctor had hie
shot-gun with him, and he thought he would
shoot him to frighten him, and make, him
stop and come back. The Doctor told me
so himself I believe he shot the boy some
where in the leg,
I have heard Dr, Mudd make use of ex
pressions in opposition tb the policy of the
Administration, but only in reference to the
emancipation policy. He was a large slave
owner — and his father — toaj-and I suppose did
not want to lose his property; this I sup
pose to be the cause of his uncompromising
opposition to the emancipation policy of the
Government I never in my life heard a
violent expression from him; it is not in his
character; nor did he ever indulge in violent
denunciations of the Government

192

THE CONSPIRACY TRIAL.

Recalled for ihe Defense,- — May 27.
By Me. Ewing.
I have seen the handwriting of Dr Samuel
A, Mudd frequently, and am acquainted
with it
[Exhibiting to the witness the register of the Pennsyl
vania House, heretofore produced,]
I recognize his handwriting on the page
open before me; it is dated Friday, December
23, 1864. The book is the Pennsylvania
House register, with which I am very famil
iar, having repeatedly registered my name in
it for years past We went into the hotel
together, and I registered my name two
names above his. I do not know at what
tiotel Dr Mudd was in the habit of stopping
when he went to Washington, He had
some relatives there, and I frequently heard
of his staying the night with them, I never
i^-as in Washington with him before.
J. H. MONTGOMEEY.
For the Defense— May 29,
By Mr. Ewing.
I ara acquainted with the prisoner. Dr.
Samuel A. Mudd. On the 22d of last De
cember, I think, the Thursday raorning
before Christraas, he asked me if I could
bring a stove from Washington for him, I
told him that Lucas, who hucksters for me
and drives my wagon, could bring it down,
Lucas went up on Wednesday, and was to
come down on Thursday, but he did not
come till Friday, and returned the same day.
Francis Lucas.
For the Defense, — May 25.
By Mr. Stone.
I am a huckster, and live about two miles
from Bryantown, Maryland, On Christmas
eve last, Dr, Mudd came to me in market
and asked me to take a stove down for him ;
I promised to do so, if I could. He came
to me two or three times to tell me not to
forget it ; and I finally told him it was out
of my power to take it.
Cross-examined by Assistant Judge Advocate
Bingham.
I suppose it was about 9 or 10 o'clock on
Christmas eve that he came to ask me to
haul the stove, Samuel McAllister.
For the Defense. — May 26.
B§ Mr. Stone,
I have been a clerk at the Pennsylvania
House in this city since the 2d of December
last [Submitting to tho witness an hotel register,]
That is the register of the Pennsylvania
House. I have examined it very carefully.

and the name of Dr. Samuel A. Mudd does
not appear on it for the month of January.
I have never, to my knowledge, seen the
accused, Samuel A. Mudd, before. He may
have stopped at the house and I not know
him, but his name would certainly be on the
register; for no one is allowed to stop one
night without registering his name. Persons
often come in to take a meal, and jiay when
they go out, and do not register their names.
I find the name " Samuel A. Mudd " entered
under date of December 23, 1864, and also
"J. T. Mudd;" they both occupied the same

Cross-examined by Assistant Judge Advocate
Bingham.
I do not know who slept with Atzerodt at
the Pennsylvania House on the night of the
President's assassination ; I was in bed that
night The next morning I saw the name
of " Samuel Thomas" entered on the book;
further than that I do not know. It was
the rule of the house that the porter was
never to allow a person to go to bed without
registering his name; and I have never
known the rule to be violated. The register
does not show how long Dr. Mudd remained
at the house in December ; the cash-book
would show that
[By reqnest of Mr. Ewing, the witness retired to exam
ine the register of the Pennsylvania House for the name
of Dr, Mudd after December 23d,]
I have examined the register from the last
entry of Dr Mudd's name on the 23d of
December, 1864, up to this month. May, and
his name does not appear at all.
Julia Ann Bloyce (colored.)
For the Defense.— May 20
By Mr, Ewing,
I went to live at Dr, Sam Mudd's on the
day they call Twelfth Day after the Christ
mas before last, and left two days before this
last Christmas. I used to cook, and wash,
and iron, clean up the house, and sometiraes
wait on the table. I never saw Andrew
Gwynn, nor any Confederate officers or sol
diers about Dr Mudd's house, and never saw
a man called Surratt there, nor heard the
name mentioned.
[A photograph of John H. Surratt exhibited to the wit
ness,] I have never seen that man at Dr Mudd's.
I have seen Ben. Gwynn, but I did not see
him at Dr. Mudd's last year. I did not hear
his name nor Andrew Gwynn's mentioned.
Dr. Mudd was very kind to us all. I lived
with hira a year, and he treated me very
kindly; never gave rae a cross word, nor any
of the rest that I know of I did not hear of
his whipping Mary Simms; he never struck
her nor any of the others a lick, through
the whole year. I believe she left because
Mrs. Mudd told her not to go out walking
one Sunday evening; but she would, and the

DEFENSE OP SAMUEL A. MUDD.

193

next morning Mrs. Mudd gave her about
three licks with a little switch, but the switch
was small, and I don't believe the licks could
have hurt her. The general opinion of Mary
Simms among the colored people is, that
she is not a very great truth-teller. I know
she is not, because she told lies on me. The
colored folks think the same of Milo Sirams
as of Mary; if he got angry with you, he
would tell a lie on you to get satisfaction,
I never heard Dr, Mudd say any thing
against the Government or Mr, Lincoln,
On the day I left, two days before Christ
raas, Dr, Mudd went away early in the morn
ing, and his wife told me he was gone to
Washington to get a cooking stove. Since I
left Dr, Mudd's, I have been living in Bryan
town with Mr, Ward.

MUDD'S WHEREABOUTS, March 1-5.
Fannib Mudd.
For ihe Defense. — June 5.
By Mr. Ewing.
Dr. Samuel A, Mudd, the accused, is my
brother. I know of my brother's where
abouts from the 1st to the 4th of March last
On the 1st of March my sister was taken
sick, and on the morning of the 2d my father
gent to her room early to know how she
felt She sent hira word that she felt very
badly, and was afraid she had the small-pox.
My father iraraediately dressed, and went for
my brother, and he came there with ray
father and took breakfast with us. On the
3d, my brother came in between 11 and 12
to see my sister, and took dinner with us.
As he had not his medical case with him,
having come in from the barn, where he had
been stripping tobacco, he went home for it,
and came back with the medicine for my
sister. On the 4th he came to dinner again,
and on the 5th, Sunday, he was at my father's
in the evening, in company with Dr. Blan
ford, my brother-in-law.
I did not see my brother on the 1st of
March, but I am pretty sure he was at home.
I am confident my brother was not absent
from home at any time between the 1st and
6th of March, We live very near, about
half a mile distant, and we go backward and
forward sometimes twice a day,
I was in the habit of visiting my brother's
house very frequently last summer, and the
summer previous. I never saw or heard of
John H, Surratt being there. I heard of
Booth being there once, probably in Novem
ber; but I did not see him. Since this trial
commenced, I have heard that he was there
twice. I knew of three gentlemen, Mr Jerry
Dyer, Andrew Gwynn, and Bennett Gwynn,
sleeping in the pines near my brother s house,
in 1861 ; I do not think they secreted them-
13

selves except during the night Mr, Andrew
Gwynn was an intimate friend of ours, very
fond of music, and he spent two evenings
with us at my father's. He left that year, and
I have not seen him since, nor have I heard
of his being at my brother's, I never heard
of a Captain Perry, or Lieutenant Perry, or
of any Confederate soldiers being about ray
brother's house. My father's house is about
thirty or thirty-two miles from Washington,
Cross-examined by Assistant Judge AnvooA'rK
Bingham.
I think I heard of Booth being at my
brother's in the early part of last November.
I do not know personally that my brother
was at home on the Ist of March; I did not
see him at all on that day. I do not know
the officer who enrolled the names of those
in our neighborhood subject to the draft, nor
did I say any thing at all to the enrolling
officers as they passed by, or were at my
father's house. By Mr, Ewing.
I know that it was the 1st of March that
my sister was taken sick, because it was Ash
Wednesday, and it is customary with Catho
lics to go to church that day, if possible, to
prepare for the penitential season of Lent,
and we were Catholics, and were particularly
anxious to go to church. My sister attempted
to rise that morning, but was not able; and a
second time attempted, but was obliged to re
main at home,
I did not meet Booth when he was at Bryan
town, but I saw him in church; he sat in Dr.
Queen's pew, with his faraily.
Mrs, Emily Mudd.
For the Defense. — June 5.
By Mr. Ewing.
I live at the house of Mr. Henry L. Mudd,
the father of the prisoner, Samuel A. Mudd.
On Thursday, the 2d of March, Dr. Samuel
Mudd was summoned very early in the
morning to see his sister, who was sick, and
again on the next day, the 3d. He came
over about 12 o'clock that day and dined
with us, and finding his sister much worse,
he came over again in the evening and
brought her some raedicine. He was there
again on Saturday to see her, and took din
ner again ; and I think he was there on
Saturday afternoon. I am positive of the
dates from the fact that the 1st of March,
when the prisoner's sister was sick, was Ash
Wednesday, and she could not go to church,
I am sure that Dr. Samuel Mudd was not
from home at any time between the 1st and
the 5th of March ; he was attending his sick
sister, and was not absent from home at all.
I know Andrew Gwynn, but have not seen
him since the fall of 1860. He was in the
habit of visiting the house of Dr. Mudd's
father before that, but has not, to my knowl-

194

THE CONSPIRACY TRIAL.

edge, been there, or at the house of Di.
Samuel A. Mudd, since 1861. I never knew
John H, Surratt, or Lieutenant Perry, or
Captain Perry, and never heard of their being
at the house of Samuel A, Mudd ; nor have
I ever known or heard of parties of Con
federate officers or soldiers being about Dr.
Samuel Mudd's house, and I have been in
the habit of going to his house very frequently
since 1861. I saw Dr Mudd on his way home
frora Bryantown on the Saturday afternoon
after the assassination of the President; no
one was with him.
Cross-examined iy Assistant Judge Advocate
Bingham.
I saw him going by the road by his house
toward Bryantown, I expect, between 1 and
2 o'clock ; perhaps a little earlier ; and I saw
him coming back perhaps about 4; but I am
not positive as to the time. On the 2d of
March, he came to his father's very early,
before breakfast; I do not know what time
he left; 1 was sick and did not see him any
more ; on Friday I did not see him until
noon, at dinner. I did not see him at all on
Wednesday, the 1st of March, and do not
know of myself whether he was abroad or
at home on that day, nor do I know whether
he was at home or abroad after he left his
sister early in the morning of the 2d, until
the next day at noon.
Bettt Washington (colored.)
Recalled for the Defense. — June 5
By Mr. Ewing.
I went to live at Dr. Samuel A. Mudd's
house the week after Christmas, and was
there in March last; I know that on the
1st of March, Ash Wednesday, Dr. Mudd
was down at the tobacco bed, getting it
ready to sow; he was there until about dinner
time, and he and Mr. Blanford came in to
dinner together He was out all that after
noon, but was at home at night I saw him
the next morning, Thursday, at breakfast
time, and we cut brush all that day, and he
was there working with us all day'; he laid
the brush off for us to dig up. On Friday, he
was stripping tobacco in the barn. I saw him
on Friday morning, but not at noon; he went
from the barn over to his father's to dinner,
and came back after we had been to supper.
I saw hira on Saturday at breakfast, and
after dinner he went to the post-office at
Beantown, and came back at night On
' Sunday he went to church, and came home
Sunday night -
The tobacco bed that he was fixing on the
1st of March is down close to Mr. Sylvester
Mudd's. I was working on the bed with hira.
I never heard of John H. Surratt while I
lived at Dr Mudd's. If I had heard talk
of his name, I should know it I know Mary
Simms who used to live at Dr. Mudd's ; all the

colored folks about mere gave her a bad
name as a story-teller. Dr. Mudd treated me
very well; I have no fault to find with him.
Cross-examined by Assistant Judge Advocate
Bingham.
Dr. Mudd took breakfast at home on
Thursday, and he was there all day when
we were cutting brush; he was on one side
of the path, and we were on the other. I
know he was at home to breakfast, dinner,
and supper on Thursday.
By Mr. Ewing.
Q. Are you certain that Dr. Mudd took
breakfast at his house on the day after Ash
Wednesday ?
Assistant Judge Advocate Bingham objected
to the question as not proper re-examination.
The cross-examination had been confined to
matters brought out on the examination in
chief, and therefore this kind of re-examina
tion was not proper.
Mr. EwiNG desired to put the question in
order to explain a seeming contradiction, and
have the matter fully understood.
The Commission sustained the objection.
Frank Washington (colored.)
Recalled for the Defense, — June 5.
It is a little better than twelve months
since I went to live at Dr. Mudd's house. 1
was there last March, and I know that on
the 1st, which was Ash Wednesday, he was
out working with me on the tobacco bed
from morning until night; the next day he
was about the tobacco bed in the morning
and afternoon. On Friday he went to the
bed again, but it commenced raining. He
then went to the barn to strip tobacco, and
he staid in the barn until 12 o'clock, when
he went to his father's. On Saturday it
rained pretty hard, and he kept the house all
day until pretty late in the evening, when
he rode up to the post-office at Beantown.
On Sunday he went to church.
On Ash Wednesday night, and every other
night. Dr. Mudd was at home; Dr. Mudd
was also at home Tuesday, the last day of
February, and I saw him on Sunday night,
the 5th ; he was at home.
Cross-examined, by Assistant Judge Advocate
Bingham.
I always got up before Dr. Mudd, and I
saw hira go out of the house early on 'Thurs
day raorning ; I was working with him all
that day. He ate his breakfast before I had
mine, and he ate his dinner and supper at
home. John F. Davis.
For ihe Defense. — June 5.
By Mr. Ewing.
I live in Prince George's County, Md., about
a mile from the line of Charles County. 1

DEFENSE OF SAMUEL A. MUDD.

195

know that Dr. Samuel Mudd was at home on
the 3d of March, for 1 went down to see him,
and carried him half a dozen small perch,
I saw him at his house, within five miles of
Bryantown, at about 10 o'clock on Friday
morning, the 3d day of March.
Thomas Davis.
Recalled for the Defense. — June 5.
By Mr, Ewing.
Since the 9th of January I have been living
at Dr. Samuel Mudd's. I recollect that he
was at home on the 1st of March, because I
was sick, and he came into my room to see
me. He told me he could not give me any
meat on that day because it was Ash Wednes
day, the beginning of Lent He came up to
see me twice on that day, in the forenoon and
afternoon, and on the 2d of March he came
to see me twice, morning and evening. On
the 3d I saw him three times, and on the 4th
and 5th he came to see me as usual, in the
forenoon and afternoon of each day.
Cross-examined by Assistant Judge Advocate
Bingham.
I was sick and confined to my bed at Dr.
Mudd's only once last winter; I was taken
sick on the 22d of February, and remained
sick and confined to the house until about
the 15tli of March; thisiis the same sickness
that I swore to before the Court a week ago.
By Mr. Ewing.
Dr. Mudd was up to see me every day dur
ing the whole of that time, and generally
twice a day. Dr. Mudd did ¦not own a two-
horse buggy or rockaway while I lived there;
he had no buggy at all.
By Assistant Judge Advocate Bingham.
He had his father's carriage once on the
17lh of April. I do not know what he had
while I was sick; I was not out to see.
By Mr. Ewing.
His father's carriage is a two-horse one.
It is a close carriage; not a very heavy one.
There is one seat inside, and one outside for
the driver; I think it has a window in each
side, and opens at the side with a door.
By Assistant Judge Advocate Bingham,
It has curtains. I said it was a rockaway,
but I spoke of it first as a " carriage ; " I never
heard it called a rockaway.
Henry L. Mudd, Jr.
For the Defense, — June 6.
By Mr. Ewing.
Of the whereabouts of my brother, Samuel
A. Mudd, from the 1st to the 5th of March,
I can state that on the 1st of March I did not
see him, though he certainly was at home.

j On the 2d of March he was at my father's
house before breakfast, having come to see
my sister, who was sick. I saw him again
that day at 4 o'clock. On the 3d of March
he was sent for about 10 o'clock, and the boy
found hira in the barn stripping tobacco. He
came about halfpast 11 o'clock, remained to
dinner, and left about 2 o'clock; I am very
.positive of this. In the afternoon of the
same day he came again, and brought some
medicine. I saw him again that evening
when I went over to his house to fetch .some
medicine. On the 4th of March he was
again at my father's house to see my sister.
On the 5th of March I saw him at church,
and he dined at our house. The distance
from my father's house to the Navy Yard
bridge at Washington is from twenty-seven
to thirty miles.
My brother has not owned a carriage of
any description since I have known him. My
father does not own any buggy ; he owns a
large two-horse, close carriage, holding four
persons inside, two on the driver's seat, and a
large seat behind. It is as large as any of
the city hacks, and very heavy.
Cross-examined by Assistant Judge Advocate
Bingham.
I distinctly remember my brother being at
my father's house on the 3d of March, I
was at the barn stripping tobacco, and when
I carae to my dinner my brother came in im
mediately afterward, and he asked for some
water to wash his hands ; I noticed they were
covered with the gum of tobacco. My sister
was taken sick on the 1st of March, Ash
Wednesday; I remember I went to church
on that day.
Dr. j. H. Blanford.
For the Defense. — June 6.
By Me. Ewing.
I saw Dr. Mudd at his house on the 1st of
March, and I saw him at church on the 5th.
Dr Mudd's father does not own a buggy or
rockaway. His carriage is a large, close
family carriage; four seats inside and two
outside. Miss Mary Mudd.
For the Defense, — June 9.
By Me. Ewing.
On Ash Wednesday, the 1st of March, I
was making preparations to go to church,
when I was taken very sick. The sickness
passed off, and I grew better; but on the 2d
of March my father sent for Dr, Sarauel
Mudd, my brother, and brought him over.
My father found him in bed. He remained
with us till 7 o'clock, and then returned to
his own house.
On Friday morning, the 3d of March,
there was an eruption on my face, and my
mother, who was much frightened, sent a

196

THE CONSPIRACY TRIAL.

small colored boy over for my brother, who
sent back word that he would be there to
dinner. He carae between 11 and 12 o'clock
and dined with us. Having come from the
barn where he was stripping tobacco all day,
he brought no medicine, I reraember he
came directly into my room and washed the
tobacco gum off his hands. He left at 2
o'clock, and returned at 4, bringing with him
some medicine. On the same day my brother
Henry, late in the evening, went over and
returned with more medicine. On the 4th,
Saturday, my brother came to see me, and
dined with us. On the 5th, Sunday, he was
at our house in the evening. On Monday,
the 6th, he carae to see me again ; also on
Tuesday, the 7th, and on Wednesday I was
able to leave my room and did not need his
attention any more.
During this time, on one of the days, a
negro woman on the place was taken very
sick of typhoid pneumonia. My brother
saw her every day until the 23d of March.
That day I remeraber very well, because we
had a tornado, and his barn was blown
down. After that, during the whole of the
month, I saw hira every two or three days,
or heard of hira.
I have been in the habit of seeing my
brother every day or so, because my mother's
health is delicate, and he comes in frequently
to see her.
I know ,of my brother going to Washing
ton on the 23d of March, in company with
Lewellyn Gardiner. I remember his being
at a party at Mr. George Henry Gardiner's
in January, but I do not remember the date.
His wife and Mrs. Simms, who boards in
the family, were also there. They remained
until daybreak. A short time after that, he
came with my brother Henry to Giesboro to
buy sorae horses. Those are the only occa
sions I know of his being away frora home
between the 23d of December and the 23d of
March, and I never heard of his being ab
sent on any other occasion.
My brother never owned a buggy or car
riage. My brother has for the past year
worn a drab slouch hat I have never seen
him wear a black hat for a year.
I know Andrew Gwynn. I understand he
has been in the Confederate service since
1861. I never knew or heard of any Con
federate officers, or soldiers, or citizen Con
federates, stopping at my brother's house.
I saw Booth in Dr. Queen's pew at church
last fall or winter. It was the visit when
he purchased the horse of Mr. Gardiner. I
do not know of Booth having been at my
brother's at that visit I only heard of it; I
did not hear of his staying there over night
I never heard of a second visit until since
this trial commenced. Mr. Gardiner does
not live more than half a mile, I think,
from my brother's. Bryantown is on the
road between Dr. Queen's and Mr. Gardiner's.
My brother's house is also on that road.

My brother first went to St John's Col
lege in 1849, and he was there in 1850. In
1851 he went to Georgetown College. He
was not at home in the months of October,
November, and December of 1850, or Janu
ary, 1851, He never spent any holiday at
home except the summer vacation.

IN WASHINGTON, Maech 23, 1865,
Thomas L. Gaediner.
Recalled for the Defense — May 29.
By Mr. Ewing.
On the 23d of March last. Dr. Samuel A.
Mudd (the accused) and myself came to
Washington together. We left home about
8 or 9 o'clock in the morning, and came up
to attend the sale of Government conderaned
horses, which we were told would take place
on Friday; but when we got to Mr. Mar
tin's, we heard that the day of sale had
been changed to Tuesday, and we were dis
appointed in attending it
Dr. Mudd said he wanted to go over in
town; so we left our horses at Mr, Martin's,
where we had dined, walked across the
bridge and up to the Navy Yard gate ; then
we took a street-car and carae up on the
avenue. We went to Mr. Young's carriage
factory, where Dr. Mudd looked at some
wagons, and then around to one or two liv
ery-stables, where Dr. Mudd looked at some
second-hand wagons. From there we went
round on the island to Mr, Alexander Clark's.
Not finding him at home, we went down to
his store, staid there with him till dark, and
he closed his store, when we returned to his
house, and took tea with him. After tea,
Mr. Clark, Dr. Mudd, and myself went to
Dr. Allen's, reraained two or three hours,
then returned to Mr Clark's, and staid all
night — Dr. Mudd and rayself sleeping to
gether. After breakfast next morning, we
accompanied Mr, Clark to his store, and
then went to the Capitol and looked at some^
of the paintings. After this, we took a
street-car, returned to Mr. Martin's and or
dered our dinner, after which we got our
horses and returned horae. We were not
separated at all during the whole tirae; we
were not out of one another's sight, I am
confident, from the time we left Mr. Martin's
till we returned. We saw nothing of Booth
while there, nor did we go to the National
Hotel. I recollect the contest in our Congressional
district, in which Calvert and Harris were the
rival candidates. Mr Harris was running
as a peace candidate; I do not know tl;iat
he was termed a secessionist Calvert, I un
derstood was the unconditional Union candi
date. I can not say whom Dr. Mudd sup
ported at that election. I did not see hia
ticket, but from a conversation I had with

DEFENSE OF SAMUEL A. MUDD.

197

him, I supposed he would support Mr. Cal
vert I understood him to say that he thought
it would be better to elect Mr. Calvert
Cross-examined by Assistant Judge Advocate
BiNORAU.
I understood that Calvert was publicly re
puted to be a stronger Union man than
Harris. By Assistant Judge Advocate Burnett.
I do not know that there were three can
didates in the field ; that Colonel John C. Hol
land was the unconditional Union candidate in
that district, and the others both peace can
didates. I know that Colonel Holland was
a candidate when Harris was elected the last
time
De. Charles Allbn.
For the Defense, — June 6.
By Me. Ewing.
I am acquainted with the prisoner, Samuel
A. Mudd. The last time I saw him was at
my office in this city. On the evening of the
23d of March last He came there in com
pany with Mr. H. A. Clark and Mr. Gar
diner; the latter gentleman I had never seen
before. I was introduced to him on that
evening; I do not know his first name. I
understood that he lived in the same section
of the country that Dr. Mudd lived in. They
came in about 8 o'clock, and remained till be
tween 12 and 1 o clock at night There
were several other gentlemen in my office, to
whom Mr. Clark introduced Dr. Mudd and
Mr. Gardiner. I can fix the date of that
visit from the fact that a tornado had swept
over the city that day, unroofing one or two
houses, and killing a negro raan; and this
was spoken of by us in the evening; by ref
erence to the newspapers I flnd that it was
the 23d. I had seen Dr. Mudd once before,
in the early part of 1864, when Mr Clark
first introduced him to me. Those are the
only two occasions on which I have seen him.
Hbney a. Clark.
For the Defense, — June 6.
By Mr. Ewing.
In the latter part of last March, Dr. Mudd
(the accused) and Mr. Gardiner, a neighbor
of his, came to my store in this city, between
6 and 7 o'clock in the evening, and went
home with me, and took tea at my house.
After tea we went around to Dr. Allen's office,
and spent the evening there, in corapany with
a number of other gentlemen. Mr. Emerson
and Mr. Veighmyer were there. Mr. Gar
diner and Dr. Morgan were there for a few
minutes, and I think Ethan Allen, but ara
not positive; and perhaps Mr Bowman of
the Bank of Washington; there were per
haps ten or a dozen. We remained till be
tween 12 and 1 o'clock, playing carda Dr.

Mudd and Mr. Gardiner went to my house
with me; I gave them a bed-room, and they
remained together in my house, and went
away together the next morning, I have not
seen Dr Mudd on any other occasion this
year until yesterday.
I do not know either J. Wilkes Booth,
John H, Surratt, or Mr Weichman. No
one bearing either of those names was in
company with Dr. Mudd, Mr. Gardiner, and
myself at Dr. Allen's, at my house, or any
where else. Dr. Mudd was not out of my
sight that night from the time he came into
the store until he went into his room to bed.
There were no strangers about my house in
the morning, and there was no one in com
pany with Dr Mudd and Mr. Gardiner when
they left. They came to my house on the
day on which a severe storm had occurred,
by which a negro boy was killed. I fix the
time of their visit by this, for we were talk
ing about it at Dr. Allen's.
Cross-examined by Assistant Judge Advocate
Bingham.
I knew all who were at Dr. Allen's on
that evening, but I can not recall them, 1
spend the evening there often, and am pretty
much acquainted with the gentlemen that
visit there, but I can not state positively the
names of the ten or a dozen that were there
that evening

AT GIESBORO ON APRIL 11.
Henry L. Mudd, Jr.
For the Defense. — May 29.
By Me. Ewing.
I live about three miles from Bryantown,
and about three-fourths of a mile from my
brother, Samuel A, Mudd ; I have lived there
all my life. On the 10th of last April, I think
it was, my brother, Samuel A, Mudd, and
myself left home together and went to Blan
ford' s, ten miles from Washington, We staid
there all night, and the next morning Dr.
Blanford, Dr. Mudd, and rayself went to
Giesboro to buy conderaned Government
horses. Dr. Blanford left us about half-past
10 o'clock, and went to Washington. We
remained till about 1 o'clock, and finding no
horses that suited us, I proposed to Dr Mudd
to go down to Mr. Martin's, near the bridge,
and get some dinner, which we did. Dr.
Blanford came in just as we had dined, and
we all three returned home. Dr Mudd and
myself were not separated five minutes during
that visit We did not cross the Eastern
Branch, or come into Washington or the Navy
Yard, nor did I see any thing of John Wilkes
Booth during that visit I know of but two
other visits to Washington luade by my
brother, Samuel A. Mudd, during last winter
and spring; the first on the 23d or 24th of

198

THE CONSPIRACY TRIAL.

December, in company with Jerry Mudd, and
the second visit with Thomas L, Gardiner,
about the 23d of March. With the exception
of those visits to Washington, and when he
went to Giesboro with rae, my brother has
been at home, and I saw him nearly every
day, at least four times a week, at home and
at church. A part of last year I was at
college; I came home about the 29th of
June I do not know of any Confederate soldiers
or other persons having been about my
brother's house since my return from college,
nor did I ever see or hear of John H. Surratt
being there. My father is a large land-owner
in the county, and the farm which my brother,
the prisoner, holds is between four and five
hundred acres.
Cross-examined by Assistant Judge Advocate
Burnett.
My father gave that farm to my brother.
He has no deed for it, but he can get one
any time he wants it I suppose he is a tenant
of my father's. By Mr. Ewing.
I always understood that my father set
apart that farm for my brother; it is known
as my brother's farm, and goes by that name.
I know also that six years ago my father
bought the land on which Mr. John F. Hardy
now lives for my brother. Dr. Samuel Mudd,
The house was burned down, and a small
one built, which did not suit my brother,
and he sold the farm to Mr, Hardy, making
the agreement, and selling and receiving the
proceeds, although my father held the title.
Recalled for the Defense. — May 31.
By Mr. Ewing.
I did not say in my previous examination
that my brother was a tenant, if that means
that he pays rent I keep my father's ac
counts, and I know very well that my brother
has never paid the first cent of rent for the
farm since he has been on it, nor any of the
E reduce of the farm; it was treated as my
rother's farm in every respect
Robert F. Martin.
For the Defense, — May 29.
By Mr. Ewing,
I am acqiiainted with the prisoner. Dr.
Samuel A. Mudd, with his brother, Henry L.
Mudd, and Dr Blanford. Dr Mudd was at
my house, on the 23d of March last, with
Mr. Lewellyn Gardiner ; they took dinner, and
left their horses, then went over the river,
returned next day to dinner, and got their
horses. He was at my house again in April,
in company with his brother, Henry Mudd.
They had their horse put away, and took
dinner. Dr. Blanford joined them, perhaps between

3 and 4 o'clock, I am not positive, and they
all. three left together They said they were
going to Giesboro Point to buy horses. _ I
have no means of fixing the date of this visit
except from my book, which is at home; bat
I think it was the 4th of April. Neither
Dr, Mudd nor Dr Blanford was there, to my
knowledge, between that time and the assas
sination of the President
Cross-examined by Assistant Judge Advooatb
Bingham.
I did not register Dr. Mudd's name at all ;
but a man by the name of Stewart was there
that day, and his narae was registered; so
that the book will show the date.
Becalled for the Defense. — May 30.
By Me. Ewing.
Since I was upon the stand yesterday I
have referred to my register, and find that it
was Jerry Mudd that was at my house on
the 4th of April. It must have been on
the llth of April that Dr. Samuel Mudd,
his brother Henry, and Dr Blanford were
there; I know it from the fact that, when
they had been gone about half an hour,
Joshua S, Naylor and Lemuel Orme (whose
names are registered on that day) drove up
and asked if there was anybody up from
Charles County, and I told them that Dr,
Mudd and his brother had just left.
I saw Dr. Mudd and Jerry Mudd in market
in Washington on the 24th of December last.
Dr. Mudd helped me to sell sorae turkeys;
it was a dull market, and he said he thought
he could do better than I was doing ; so he
stood at the stand while I went round the
market, but when I came back I do not think
he had sold one. He was at my stand twice
that day. He inquired of Lucas if he could
carry a stove down for him, and Lucas's
reply was that, if he sold his poultry, he
would; if not, he would have to take it over
to me; but he did not sell his poultry, and
the stove was not moved that day.
Dr, Mudd was at my house on the 23d of
March ; his narae was registered on that day.
He and Mr. Gardiner carae together before
dinner. They left their horses there, and
took them away the next day after dinner. I
do not know where they went; I only know
they went across the river.
Mr. Ewing. I now propose to ask the wit
ness, what statement was made by the ac
cused to him, as to the purpose of his visit
Inasmuch as the visit has to be explained, I
think, under the rules of evidence, that state
ment is clearly admissible. There are plenty
of authorities for it.
Assistant Judge Advocate Bingham. I
undertake to say that there is not any au
thority in the world for it, because that is not
in issue,
Mr. Ewing. It is in issue whether he met
Booth in January.
Assistant Judge Advocate BiiraHAM. Not

DEFENSE OF SAMUEL A. MUDD.

199

in March. This is in relation to a visit of
the 23d of March.
Mr Ewing. It is in issue whether Dr.
Mudd met Booth in Washington. We are
not confined as to any particular day when
the meeting may have occurred. We want
to show that he could not have met Booth
from the 23d of December down to the time
of the assassination of the President; and, in
order to show that, we prove his presence at
home during all that period, except the visit
to Giesboro, and the one night he went to
the party; and we follow it by proof as to
what the visits were for, and as to what he
did, who was with him, and where he went
Now, as a part of the proof, to show the pur-
^se of the visits to Washington, his declara
tions as to the purpose of the visit made at
the time of making the visit are admissible,
under the rules of evidence. I will read to
the Court an authority on that subject, from
2 Russell on Crimes, p. 750: "Generally
speaking, declarations accompanying acts are
admissible in evidence as showing the nature,
character, and objects of such acts. Thus,
where a person enters into land in order to
take advantage of a forfeithre to foreclose a
mortgage, to defeat a disseizin, or the like.
Or changes his actual residence, or is upon
a journey, or leaves his home, or returns
thither, .... his declarations made at
the time of the transaction, and expressive
of its character, motive, or object, are re
garded as verbal acts, indicating a present
purpose and intention, and are flierefore ad
mitted in proof like any other material acts,"
The authority is exactly in point The fact
of the journey is legitimately given in evi
dence by us; and so the object of the journey
is legitimate; and, in connection with the ob
ject of the journey, his declarations as to its
purpose are admissible.
-Assistant Judge Advocate Bingham. The
great trouble is that the gentleman does not
read enough. I would yield the point if he
could show in the book from which he has
read, or in any other book, an authority say
ing that proof of the kind now offered was
adm:issible, when the point to which it re
lated was not in issue. The rule on the sub
ject is, that if the prosecution prove the
declarations and acts of the accused, he may
prove all that he said on those occasions, as
part of the res gestce; bi»t there is no such
thing in the text he read, or in any other, as
that a man may prove what he said at an
other tirae and place not involved in the
issue, and about which there has been no
proof offered by the prosecution. The gen
tleman says he wants to prove what the
prisoner said, as to the object of this jour
ney, in order to show that he was not coming
to see Booth. I suppose, if on the 2Sd of
March, he said he was not hunting Booth,
and they prove that, and if, when he got
back home he said he did not see Booth,

and they prove that, it would be proof of
that fact What authority is there for say
ing that that can be done? There is no book
in the world that says so. The text read by
the gentleman does not mean any such thing.
If the gentleman can show me a text which
says that a defendant may prove an act that
has not been put in issue by the accusation,
about which no proof has been offered by
the prosecution, and prove all he said on that
occasion, I shall yield. The same book from
which the gentleman read lays down the law,
that the party shall not introduce his own
declarations on his own motion. The text
is, page 750 : " Hearsay evidence of a fact is
not admissible;" and it goes on to say, "there
are, however, certain instances, which it will
be the object of this section to point out,
where hearsay evidence is admissible." But
when ? " When hearsay is introduced, not
as a medium of proof in order to establish a
distinct fact, but as being in itself a part of
the transaction in question."
Now, is thi-s transaction in question ? How
is the fact whether Dr Mudd came to Wash
ington on the 23d of March or not in ques
tion ? Is it so on the charge and specifi
cation ? Not at all. Is it so by any proof
offered by the prosecution ? Not at all. Our
proof is, that in January he was here, and
had an interview with Booth, and he is not
to disprove that by his mere declarations ;
and this testimony is offered for no other
purpose whatever. It is not to explain any
transaction, because there is no transaction
calling for explanation. The fact that he
carae here on the 23d of March is not in
evidence against him — it is not a matter of
accusation against him — it is not in ques
tion ; and therefore I say the declarations
of that date proposed to be offered in evi
dence are his declarations, offered in evidence
on his own motion, for no purpose except to
disprove the testimony offered against him
by the prosecution ; that he had an interview
with Booth in January; and there is no text
of any law-book any where that says he can
make evidence in that way by his own decla
rations. The Commission sustained the objection.
Witness. My hotel is about one hundred
yards from the Navy Yard bridge. Eastern
Branch bridge, and persona going from Bry
antown to Washington pass by it I have a
post-office there. I have not seen Dr. Mudd
at my house, on his way to or from Washing
ton, since the 24th of December, except on
those two occasions, I do not recollect big
stopping there on December 24th, but I saw
hira in market I attend market pretty reg
ularly, and am not at home much. I sup
pose I would recollect if he had stopped there
at any other time; I can not say positively
whether I have heard of his being there, or
not I kept no record of persons coming to
my house until the 20th of February.

200

THE CONSPIRACY TRIAL

Dr. j. H. Blanford.
For the Defense. — May 29.
By Mr. Ewino.
I live about twelve miles from this city, iu
Prince George's County, Maryland.
Ou the llth of April last, I accompanied
Dr Samuel A, Mudd and his brother, Henry
L. Mudd, to Giesboro, to attend a Govern
ment sale of horses, 'We arrived there some
time before the hour of sale, and I remained
with Dr. Mudd till after 12 o'clock, examin
ing horses. They were very inferior, and Dr,
Mudd did not purchase any. Having busi
ness in Washington, I left Dr Mudd about
half-past 12; arranging to meet hira at 3
o'clock, at Mr, Martin's, near the bridge, I
was with Dr. Mudd all the time till half-past
12. I went to Washington, and got back to
Mr Martin's about half-past 2, and found
Dr. Mudd there, waiting for me. In about
fifteen minutes, probably, we started toward
home, and rode together to the road leading
to my liouse, when I went home, and he
continued his journey.
His brother was with hira when I left him
at Giesboro, and was with him at Mr, Mar
tin's when I returned, Mr Martin's place
is on the other side of the Eastern Branch,
right in the forks of the road leading to
Giesboro and the stage road leading down
through the counties, and is not more than
fifty or one hundred yards from the bridge.
It is a mile and a half, or probably two miles,
fi-om the National Hotel, Washington,
During the last eighteen months, I have
several times heard Dr Mudd speak, in gen
eral terms, of being dissatisfied with his
place, and that he would sell if an advant
ageous offer were made to hira; but I have
no knowledge of his making a direct offer to
sell his farm.

MUDD'S ABSENCE FROM HOME.
Thomas Davis.
For ihe Defense, — May 29.
By Mr. Stone.
I have lived at Dr, Samuel Mudd's since
the 9th of January last, working on his
farm. I have been on the plantation all the
time, with the exception of one night some
tirae in January. Dr. Mudd has been absent
from home only three nights during that
time ; one night at a party at George Henry
Gardiner's, and the other tiraes in Washing
ton. It was on the 26th of January that he
went to Mr Gardiner's ; his faraily accom
panied him, and they returned a little after
sunrise. The next time he was from home
was on the 23d of March, when he went to
Washington with Mr, Lewellyn Gardiner to
buy some horses. They came back on the

24th. I remeraber the date because the barn
was blown down while he was away, and
the 25th was a holiday.
I do not know John H. Surratt, nor John
Wilke.-! Booth; I never heard their naraes
raentioned, nor the name of David E. Herold.
[A likeness of John Wilkes Booth was shown to tho wit
ness.] I never saw that man at Dr Mudd's while
I was living there. I was ill for more than
three weeks while I was there, and Dr, Mudd
attended me, I took my meals up stairs
then, but when I was well I took them with
the family, except when late on account of
feeding the horses, or doing other things;
then I took them by myself I saw Dr.
Mudd every day during all the while I lived
there, except the times I have mentioned,
when he was absent
I was at home on Saturday, the 15th of
April, and saw two horses there, and heard
that two men were there; but I did not see
thera ; I was working in the field. The men
left, as near as I can say, between 3 and 4
o'clock in the afternoon, I was there also
on the following Friday, at work on the
farm, Sorae soldiers came to the house on
that day, and wanted to see Dr. Mudd. He
was at his father's, and I went for him. I
told hira some soldiers were at the house and
they wanted to see hira, and he oame along
with me directly. He said nothing to me
then about a boot, nor I to him. He came
with me as far as the barn, and I went into
the field, and he and Mr, Hardy went on
toward the house, I never heard Dr. Mudd
express any disloyal sentimenta
By Mr, Ewing.
I did not take breakfast with the family
on the day after the President's assassina
tion ; I was attending to the horses, and was
not ready when the horn was blown ; nor did
I take dinner with them that day. All I
knew about the two men having been there,
was that one of them had a broken leg, and
one had been to meals, and the other had not
Cross-examined by Assistant Judge Advocate
Bingham,
That was what I understood about them ;
I did not Bee the men. When I came back
to the house, about 4 o'clock, the horses
were gone, and as I did not hear of the men
being there after that, I supposed they were
gone, I saw Dr Mudd and his wife start to go
to Mr. George Henry Gardiner's on the night
of the party; they walked in that direction.
Mr. Gardiner lives about three-fourths of a
mile from Dr Mudd's,
* By Mr. Ewing.
]Exhibitiug to the witness a photograph of John H.
Surratt.] I never saw that man at Dr. Mudd's; I
saw him at his own home about five years

DEFENSE OF SAMUEL A. MUDD.

201

aga I have not seen him since the 9th of
January, when I went to live at Dr. Mudd's.
Betty Washington (colored.)
For the Defense. — May 27.
By Me. Stonb.
I went to live at Dr Samuel Mudd's, as
near as I can tell, on the Monday after
Christmas, and have been living there ever
since. I was a slave before the eraancipa-
tion in Maryland, and belonged to Mrs.
Adelaide Middleton, I have not been away
from Dr. Mudd's house a single night since
I went to live there. Dr. Mudd has not been
away from home at night but three times
that I can recollect, but I can not say in
what month.
The flrst time, he and his wife went to a
party at Mr, George Henry Gardiner's ; they
went about sundown, and came back late at
night; 1 do not know what time. The next
time was when he went to Giesboro with
his brother, Mr. Henry Mudd, to buy some
horses. He started in the morning, and
came back, I think, next day. I can not
think what month it was, but it was since
the last Christmas The last time he went
to Washington, he started in the morning,
and came back the next day at night I
did not see any one leave the house with
him, but I heard that Mr, Gardiner went to
Washington with hira. I do not know who
came back with him. I think it was in the
latter part of the month that he went there.
He was awa_y, in all, two whole nights and
a part of a night
I did not see the two men that were at Dr
Mudd's lately — Booth and Herold; I saw one
of them, the small one. I was standing at
the kitchen window, and just saw a glimpse
of him going in the direction of the swarap,
I did not see any one with hira. In three
or four minutes after this Dr. Mudd came
to the door, and asked if they had gone for
the woman to clean up the house, Mrs.
Mudd had started off a little girl for a
woman to come and clean, as the gentlemen
had gone.
I never saw the small man before, and I
did not see the large man at all.
[A card photograph of J. Wilkes Booth was shown to the
witness.] If ever I saw that man at Dr. Mudd's, I
do not recollect; I never saw anybody like
that picture that I can recollect
Cross-examined by Assistant Judge Advocate
Bingham,
I do not know where Giesboro is. All
that I know about Dr. Mudd's going there
is, that he told me he went there, and so did
his wife. Mr Henry Mudd, hia brother,
was there to go with him, and they started
together to buy horses ; but he missed the
day, and could not buy any.
1 think there was a week, or two weeks.

between the time when he went to Giesboro
and the next time when he was away all
night; but I can not come at it exactly.

AT BRYANTOWN, April 15, 16.
George Booz (colored.)
For the Defense. — May 27.
I live with Mr. Henry L. Mudd. I am
attending to his lower place, next to Bryan
town, above the road, about half a mile from
Mr. John McPherson's.
On Easter Saturday, the 15th of April, I
saw Dr Mudd at my house. I also saw him
on the road coming up from toward Bryan
town and going toward home. The main
road from Bryantown, up to the swamps,
goes right through my place. You can go
from Bryantown to Dr, Mudd's either by con
tinuing along the main road, or through
the plantation path. As Dr, Mudd came
from Bryantown he passed through my place
by the by-road, I did not see anyperson
with him, either walking or riding, I had
been in the swamp looking for my hogs, I
had been below, and had crossed the main
road, and met Dr, Mudd coming up from
Bryantown ; I spoke to him. That was be
tween 3 and 4 o'clock in the afternoon. I did
not see any one, or pass any one on either road.
I did not see any person on horseback stand
ing in the swarap, nor any person at all. If
anybody had been standing in the road, I
think I should have seen hira, as I passed
from the big swarap across the main road up
to ray house, and as I came up to the hill.
I also passed near the little swamp, and could
have seen if any one had been there,
Dr, Mudd was riding at his usual pace.
He very frequently, in going to or coming
from Bryantown, would pass through our
place, and I would see him. Dr. Mudd, on
this occasion, on the Saturday, stopped and
spoke a few words, and asked me where I
had been, and then kept on. f
Cross-examined by Assistant Judge Advooatb
Bingham.
When we met. Dr. Mudd was going toward
his home. He did not ask me if I had seen
anybody, nor did he say any thing about
Bryantown, He was riding a bay filly; it
was his own horse; I know it well. As I
was not looking out for anybody, a person
might dismount and I not notice him. Some
of tlie bushes there are as tall as a man's
head, or taller.
Recalled for the Defense, — June 7.
I met Dr. Mudd on the by-road leading
through our farm on the day after the assas
sination. I crossed the road just opposite my
house, and about three hundred yards from
the big elm on the side furthest from Bryan-

202

THE CONSPIRACY TRIAL.

town. Where I crossed the road, I reckon I
can see a quarter of a mile in each direction ;
that is, from and toward Bryantown — a plain,
full view. There was no horseraan on the
road that I saw. If there had been any one
going along the road with Dr Mudd, and he
kept on the main road, away from Bryan
town, when Dr Mudd turned up through'this
by-road, I think I should have seen him;
there was nothing to prevent it
If anybody had been traveling with Dr
Mudd, and kept ou the main road when Dr.
Mudd turned in at the gate, he would have
been pretty nearly at or near the point where
and when I crossed the main road, and had
he been there I must have seen him.
Susan Stewart.
For the Defense. — June 3.
I live at Mr. John Morris's, about a mile
from Bryantown, and not more than a quarter
of a mile from George Booz's. I live on the
little cut-off road, leading through the farm.
I saw Dr. Samuel Mudd, the prisoner, on
ifester Saturday, about 3 or 4 o'clock. He
was about flfty yards from the road, inside
of the place at which I live. When I saw
him, he was just at the corner of the barn,
going up toward Mr. Morris's house, rid
ing very slowly by himself I saw no one
with him. It was cloudy and misty, and I
think raining a little. Standing at my door.
frora which I saw Dr. Mudd, I can see a
quarter of a mile or more of the main road.
if can see from the swarap clear up to the
tree called big elm. I did not see Dr. Mudd
when he came out of the main road. I did
not take particular notice of the main road,
but I could have seen very easily if there had
been anybody on the main road.
I saw George Booz meet Dr. Mudd that
day after he had passed our house.
By Assistant Judge Advocate Bingham.
Dr. Mudd, when I first saw hira, was
opposite the barn, which is not more than
fifty yards from the main road. He was
coming up toward our house, but I can not
say whether he was coming from the direc
tion of Bryantown or not
Primus Johnson (colored.)
For ihe Defense. — June 3.
I saw Dr. Sarauel Mudd coming from
Bryantown by Mr. Booz's on the Saturday
after the President was killed, about 3 o'clock.
Or a little after. I also saw him when he
was going to Bryantown; he was riding by
himself There was a man followed Master
Samuel, going toward Bryantown, and this
man came back by himself, and he came
back before Dr Samuel Mudd, I reckon,
about half an hour. Mr Booz's is about
two miles from Bryantown, and is on the
road between Dr. Mudd's and Bryantown.

Leonard S. Roby.
For the Defense. — June. 3.
I was in Bryantown on the Saturday after
the assassination of the President, about 3
o'clock in the afternoon, aud I staid there
until night Before getting to Bryantown, I
met a gentleman on the road, who told me
of the assassination, but he professed not to
believe it When I got near Bryantown, I
found soldiers stationed two or three hun
dred yards frora the village, I made inquiries
of thera, and learned that such was the fact,
and that somebody that belonged to the thea
ter was the assassin ; but, though I conversed
with several, none of them could give me
his name. I was not in Bean's store that
day. I also asked several persons, citizens as
well as soldiers, and it was not till a few
minutes before I left in the evening that I
received the information as to who was the
assassin, from Dr. George Mudd.
I know Daniel J. Thomas, and the repu
tation he bears for truth and veracity in the
neighborhood in which he lives. It is such
that I would not believe him under oath.
Cross-examined by Assistant Judge Advocath
Buenett.
I have known Mr. Thomas from boyhood.
My attitude toward the Government during
this rebellion has, I believe, been that of a
loyal citizen. I have given no assistance or
counsel to the enemy in any way, shape,
or manner. There are some acts of the Ad
ministration I may have spoken of not so
pleasantly, but nothing more; but I do not
think I have said any thing against the
Government in its efforts to put down the
rebellion. I know the man Boyle who murdered
Captain Watkins, but I never harbored him
at my house. I have only seen him once or
twice. He came to ray house the morning
after our general election, with some ten or
a dozen or fifteen, I live not far from the
road, and many call after the election. After
the general election, on their route home
ward, a party called, and Boyle was among
thera. I did not know hira at that time.
They staid but a short time. When I heard
his name, I had a reason not to want him
there, and I was not so particular in my
treatment toward those with him, and they
left after an hour or two, and I have not
seen him since. By Me. Ewing.
In what I said of Daniel J. Thomasi I
referred to his reputation before the war as
well as since. It appears to me he is a
kind of man who will imagine things, and
then bring himself to believe they are facta,
and, believing them, then assert and stand
to them to the last that they are facts, and
swear to them.

DEFENSE OF SAMUEL A. MUDD.

208

Db. Josbfh Blanford.
For the Defense, — June 3.
By Me. Ewing.
I am acquainted with the routes from
Washington through Surrattsville to Bryan
town, and through Surrattsville to Port To
bacco and Pope s Creek. I have traveled
these routes several times; I ara also famil
iar with the road from Dr. Mudd's to Bry
antown. [A roughly-drawn map of the locality was offered in evi
dence, from which it appeared, by the explanation of the
vitness. that' that portion of the road between the elm-
^ree ana the swamp, nearly half a mile in length, is visi-
nie from the houses of Booz and Mui'ray, and the whole
ctf the road that branches off from the main road, an(i
running by Murray and Booz's houses, is entirely visible
from those houses,]
By Assistant Judge Advocate Bingham.
Two weeks ago I made special inspection
of these roads, to ascertain what portion of
the roads was visible from the houses occu
pied by Booz and Murray.
I know where the colored people named
Bloyce live. The cluster of trees round the
houses would obstruct the view of this road,
I think. I do not think a person could see
any distance from these houses.
By Me. Ewino.
From the bridge, as indicated on the map,
to Bryantown, is not more than a quarter
of a mile, and you can look down the road
right into the main street of the town. A
person coming from the bridge to Dr, Mudd's
house would have to pass along the main
road by the big elm, or else by the cut-off
by John Murray's house.
E. D. R. Bean.
For ihe Defense. — June 3.
I am a merchant at Bryantown. On the
day following the assassination, I believe it
was. Dr. Samuel Mudd bought some goods
at my store. I sold him some calicoes; this
is the only thing that I particularly remem
ber. When I flrst heard that day that the
President was assassinated, I asked by
whom, and my impression is that they said
it was by Boyle, the man who is said to
have killed Captain Watkins, and who had
tbe reputation in that, neighborhood of being
a desperado. I can not state positively whether I heard
that day that it was Booth or not Soldiers
were in and out of the store that day, and
the assassination was the topic of general
discussion. Qi Did you have a conversation with the
prisoner, Samuel A. Mudd, that day, as to
the assassination of the Presideot ?
A. The* day I sold him tbe calico I bad
some conversation with him, and that eiiE-
camstance leads me to think it was th«: day
I heard of the assassination.

Q. What was the conversation 1
A. I remarked to him that there was very
bad news. " Yes," said he, " I am sorry to
hear it"
Assistant Judge Advocate Bingham ob
jected to the witness stating the conversation
between him and Dr. Mudd; but, inasmuch
as the witness had already partly answered
the question, he would allow the answer to
stand as far as it had gone.
By Mr. Ewing.
Q. What else did Dr Mudd say in regard
to the assassination of the President?
Assistant Judge Advocate Bingham ob
jected to the question, and the Commission
sustained the objection.
Q. It was from the conversation you had
with Dr. Mudd in regard to the assassination
of the President that you are enabled to fix
that as the day when he made the purchase
of calico ?
A. That led me to believe it was the day,,
because I remember his reraarks.
The distance from the Eastern Branch,
bridge to Surrattsville is about ten miles^
from Surrattsville to Bryantown is sixteen
railes ; from Bryantown to Port Tobacco it
is thirteen miles and a half.
Cross-examined by Assistant Judge AdtoOatb
Bingham.
I can not state positively when I first
heard that it was Booth who had assassin
ated the President I also heard that he had
been traced within three miles and a half
of Bryantown, but I can not say when I
first heard it; I certainly did not hear it ott
Saturday. I think it was Dr George Mudd
jthat told me on Saturday night that Booth
was the murderer.
I John Acton.
For the Defense, — June 5.
By Me. Ewing.
I live about three miles from Bryantown,
and about a mile and a quarter from Dr;
Samuel Mudd's, on the road from his house
to Bryantown. On the day after the Presi
dent was killed, I saw Dr. Mudd ridi'ng
toward Bryantown on a gray horse. He was
alone when I first saw him, but there was ik
man overtaking him. In about three-qua;r-
ters of an hour I saw the man come back.
I was about fifty yards from the road when
I saw the man returning; and I was there
for an hour, more or less, afterward, but did'
not see Dr. Mudd return toward his house.
I could not help seeing him if he had passed
along the road.
Cross-examined by Assistant Judgb^ Advooatb
Bingham.
When I first saw Dr. Mudd and the. man,
they were a little way apart, and the next

204

THE CONSPIRACY TRIAL.

thing I saw the man get up to him. I heard
no conversation between them. I did not
know the man, nor did I notice him much ;
I noticed the horse more ; he rode a bay
horse. I can not swear that that man
[pointing to the accused, David E. Herold]
18 the one; he looks more like him than
any of the other prisoners, but I can not say
that he is the man. It was about 3 or 4
o'clock in the afternoon that I., saw him
come back alone, on the same road that he
had gone down on, not more than an hour
before, at most, on the road leading to Dr,
Mudd's house, I did not see Dr. Mudd any
more that evening.
Mason L, McPherson.
For the Defense. — June 5.
By Mr. E'wing.
I live within three-fourths of a mile of
Bryantown. About 2 o'clock on the day
after tbe assassination of the President I
went to Bryantown, and was there till 7 or 8
o'clock in the evening. I did not hear any
one say that afternoon who had assassinated
the President I heard that Boyle had mur
dered the Secretary of State — John Boyle,
the guerrilla, that had passed through there
several times, and had killed Captain Wat
kins. I made inquiries of some of the sol
diers, but they could not tell me who had
killed the President I asked right smart
of people, citizens as well as soldiers, but
they did not know. I was in Bean's store a
short time, and heard the talk there, but
nobody mentioned the name of the assassin.
There were a good many people in town
that day. On Sunday I heard who the sup
posed murderer was.
On Monday morning, between 8 and 9
o'clock, I guess, I saw Lieutenant Dana in
the hotel at Bryantown, in conversation with
Dr. George Mudd. They were sitting off to
themselves. I am very well acquainted with Dr George
Mudd's reputation in the community as a
'Union man. He is as good a Union man
as any in the United States.
From general report, I know the reputa
tion of Daniel J. Thomas. His reputation
for truth and veracity in the community
where he lives is not very good.
Cross-examined by Assistant Judge Advocate
Bingham.
I am confident that it was on Monday
morning that Lieutenant Dana had this talk
with Dr. George Mudd.
John McPherson.
For the Defense, — June 5.
By Mr. Ewino
I was at Bryantown on Saturday, the day
tfUr the assassination of the President, from

2 o'clock till about 6, and heard the talk
about the assassination. It was the general
topic ; but I did not hear who was the assas
sin. I do not recollect that I made any in
quiries about it On Monday morning I first
heard that it was Booth.
I saw Lieutenant Dana at the hotel in
Bryantown, on Monday morning, about 8
o'clock, in conversation with Dr. George
Mudd. There were some three or four per
sons in the roora. Dr George Mudd's repu
tation as a Union man is as good as any
man's. The reputation of Daniel J. Thomas for
truth and veracity, in the neighborhood in
which he lives, is very bad. I know that
people generally think that he is not a truth-
telling man.
I ara acquainted with ' the prisoner. Dr.
Sarauel A. Mudd, and with his general char
acter, as a man of peace, order, and good
citizenship. He is considered a very good
man, peaceable, and a good citizen.
Cross-examined by the Judge Advocate.
I do not recollect whether or not I have
ever heard Daniel Thomas charged with
having sworn falsely in any case; I have
heard him spoken of as rather a bad man,
and not apt to speak the truth.
Q. Do I understand you to say, under the
oath you have taken, and with the knowl
edge which you have of Mr. Thomas, and
of his life and character, that you would
not believe him when speaking under oath
before a court ?
A. I can not say.
By Me. Ewing.
I do not think I have ever heard of
Thomas being a witness before this trial.
Peter Trotter.
For ihe Defense, — June 5.
By Mr. Ewing.
I am a blacksmith, and live in Bryantown.
I was there on Saturday, the day after the
President was killed. I heard the subject
of his murder talked of a good deal. There
were a good many soldiers there, some
twenty-four or twenty -five ; they were around
my shop the whole afternoon. I inquired
of some soldiers if they knew who killed
the President, and they said they did not
know. They mentioned Boyle as the one
that had assassinated the Secretary.
I am acquainted with Daniel J. Thomas;
have known him for eight years. His repu
tation for veracity in the community where
he lives is not very good. From my knowl
edge of his reputation I would believe him
under oath in some cases ; in others I would
not It would depend upon what it was
about I do not think I would believe him
on his oath, and very few in our community
would.

DEFENSE OF SAMUEL A. MUDD.

206

Cross-examined by the Judge Advocate.
Latterly I have been loyal to the Govern
ment, and desired that it should succeed in
putting down the rebellion. At first I may
have thought a good deal of the rebels, but
not for the last eighteen months.
Mr. Thomas is very unpopular in that
neighborhood; I never heard hira speak
much about his loyalty, in any shape or
form ; I have seen him both ways. Often,
when we would hear at Bryantown of some
great feat that was done, he would some
times think one way and sometimes another.
I never heard him speak in favor of the
rebellion, and never, at any time, have I
known him to be at all unfriendly to the
Government, or have any sympathy with the
rebellion. Before the last eighteen months, I thought
a good deal, but never did any thing un
friendly to the Government; I never spoke
much about my feelings. I do not know
that I should have thought better of Mr.
Thomas if he had been of my way of think
ing. I have never taken the oath of alle
giance. About three weeks ago I went to
take it, but the Captain had no blanks.
I never engaged in blockade-running, and
never crossed the military lines without a
permit If Mr. Thomas was under oath in
a court of justice, I would believe him if I
knew he was speaking the truth. If he was
speaking against the rebels, and I had to
rely upon him, I do not know that I could
bring myself to believe him.
By ihe Court.
I am a Scotchman, a British subject, and
have never been naturalized. I have used
the rights of a citizen, and have voted. The
flrst vote I gave was for Buchanan; after
ward I did not vote except for local officers
of the county. I have not voted for three
years. I do not know why I did not vote
on the adoption of the new constitution of
Maryland. By Mr. Ewing.
Mr. Thomas's reputation for veracity was
just the same before the war as now. In
the early part of the war he had not the
reputation of being a loyal man ; I am sure
he was not I came to this country twelve
years ago; am thirty-four years of age.
John I. Langley. ^
For ihe Defense, — June 5.
By Me. Ewing.
I was at Bryantown two or three times on
Saturday, the 15th of April ; it was sundown
when I last left. I heard that the President
was assassinated, but did not hear who as
sassinated him. I did not hear that till Mon
day morning. There were not many citizens
or many soldiers in the town, nor was there

much talk about the assassination. Some
of the citizens coming in heard that soldiers
were there, and that martial law was to be
proclaimed, and returned to their homes. I
first heard of the assassination from the
soldiers I asked them who had killed the
President, and they said they did not know.
I did not hear of any one, supposed to be
the assassin, being tracked to near Bryan
town. Cross-examined 6y Assistant Judge Advocate
Bingham.
I heard that the soldiers were in pursuit
of the President's assassin.

Marcellus Gardiner.
For the Defense, — May 30.
By Mr. Ewing.
I have heard Dr. Samuel Mudd, on several
occasions during the past two years, state
that he wanted to sell out.
I was at Reves's Church in our neighbor
hood on Easter Sunday, the 16th of April,
following the murder of the President The
assassination was known and generally talked
of; but it is my impression that the name
of the assassin was not known. I saw Dr.
Samuel Mudd there at church.
Q. State whether you heard Dr. Mudd say
any thing as to how he regarded the act of
assassination. Assistant Judge Advocate Bingham. I
object to introducing Dr. Mudd's declarations.
Mr. Ewing. I have brought that before
the Court again for the purpose of doing
what I failed to do yesterday, calling the
attention of the Court specially to the char
acter of the declarations that I expect to
prove. Assistant Judge Advocate Burnett. It is
the rule of military courts, when the counsel
states what he expects to prove by a witness,
that the witness should withdraw, so that he
may not be instructed by the remarks.
[The witness retired from the stand and the court
room.] Mr E'WING. I expect to prove that Dr.
Mudd spoke of the assassination as an atro
cious and revolting crime, and a terrible
calamity to the country ; and that he spoke
of it generally among his neighbors at the
church in that way. I again call the atten
tion of the Court to the principle upon which
I claim that it is applicable; and that is,
that Dr. Mudd is charged with concealment
of the fact of those men having been there —
a concealment extending through Sunday — •
and that his declarations, showing his feeling
with reference to the crime during the time
that they allege him to have been acting as
accessory to it, are admissible.
The Commission sustained the objection
of the Judge Advocate.

206

THE CONSPIRACY TRIAL.

Dr. George D. Mudd.
For ihe Defense, — May 29.
By Mr. Ewistg.
_ I am a practitioner of medicine in the
village of Bryantown, Charles County, Md,
Dr Samuel A. Mudd was a student of medi
cine under me for many years. His father
and my father were first-cousins, I know
his reputation in that neighborhood for peace,
order, and good citizenship, and I know of
none whose reputation is better. As a mas
ter, I have always considered him a humane
man to his servants, as well as to others.
He always, to my knowledge, clothed and
fed his servants well, and treated them kindly,
as far as I know.
I was at Bryantown the Saturday, the
15th, when the news of the assassination of
the iPresident reached there, and reraained
there all the evening. Lieutenant Dana, on
whom I called for information, told me that
the party who had attempted the assassina
tion of Secretary Seward was naraed Boyle,
and claimed him to be the same party who
assassinated Captain Watkins of Anne Arun
del County, and that the party who assas
sinated the President was supposed to be a
man by the name of Booth, but that he
thought he had not yet got out of Washing
ton. Boyle, who was known in our region
of country, and had been there three or four
weeks before, was a noted desperado and
guerrilla. I was at church on Sunday, the 16th ; it was
then known that the President had been
assassinated, but no one, to ray knowledge,
supposed that Booth had crossed the river;
this at least was my impression ; I did not
make much inquiry relative to it. I saw Dr.
Samuel Mudd at church. On returning home
he overtook me, and I rode with him as far
as his house.
Q. State whether he said any thing to you
about any persons having been at his house?
The Judge Advocate. You need not an
swer that question. The Governraent has not
introduced the declarations of the prisoner.
Dr. Mudd, at that time.
Mr Ewing. I propose to offer that state
ment for the purpose of showing that Dr.
George Mudd, a resident of Bryantown, and
who I will prove is a man of unquestiona
ble loyalty, was informed by the prisoner at
the bar that there were two suspicious per
sons at his house on Saturday morning; he
told him of the circumstances of their coming
there; expressed to him a desire that he
should inform the military authorities, if he
thought it advisable, of the fact of their
having been there ; stated to him that he
wished hira to take it direct to the mili
tary authorities, and not tell it at large
about the streets, lest the parties or their
friends might assassinate him for the dis
closure. I can imagine no declaration of a prisoner

more clearly admissible than this. It ac
companies, or is connected with, acts which
they have shown of the preceding day, and
of subsequent days; it is a part of the very
gist of the acts and omissions by which he
is sought to be implicated here, and to refuse
to allow hira to show that he inforraed the
Government, through one of its most loyal
friends, of the presence of these men in his
house, and his suspicions in regard to them,
would be to strip hira of a complete and ad
missible defense. On the subject of such ac
tions — for this statement was an act — I read
an authority from Russell on Crimes, vol. 2,
p, 750 : "When hearsay is introduced, not as
a medium of proof, in order to establish a
distinct fact, but as being in itself a part Of
the transaction in question, it is then admis
sible; for to exclude it might be to exclude
the only evidence of which the nature of the
case is capable, 'Thus, in Lord George Gor
don's case, on a prosecution for high treason,
it was held that the cry of the mob might be
received in evidence as part of the transac
tion. ^ (21 How. St Tr 535) And, generally
speaking, declarations accompanying acts are
admissible in evidence as showing the na
ture, character, and objects of such acts.
Thus, when a person enters into land in
order to take advantage of a forfeiture, to
foreclose a mortgage, to defeat a disseizin, or
the like, or changes his actual residence, or
is upon a journey, or leaves his home, or
returns thither, or remains abroad, or se
cretes himself, or, in fine, does any other
act material to be understood, his declara
tions made at the time of the transaction,
and expressive of its character, motive, or
object, are regarded as verbal acts indi
cating a present purpose and intention, and
are therefore admitted in proof, like any
other material facts. They are part of the
res gestce."
In a note to this section, the learned Amer
ican editor of the work. Judge Sharswood,
gives the following, among other decisions,
in this country: "Thus, the declarations of
the prisoner may be admitted to account for his
silence when that silence would operate against
him. The United States v. Craig, 4 Wash. C.
C, Rep. 729." That is just the case here.
" Whenever the conduct of a person at a given
time becomes the subject of inquiry, his expres
sions, as constituting a part of his conduct
and indicating his intention, can not be re
jected as irrelevant, but are admissible as
part of the res qestce, Tenney v. Evans, 14
New Harap. 353."
It is to explain his silence up to the time
of his making the communication to Dr.
George Mudd, and to rebut the evidence of
detective Lloyd as to his concealment, on the
Tuesday following, of the fact that these tw(>
men had ever been at his house, that I pro
pose to introduce that statement in evidence.
This statement was made before he could
have known that any suijpicions were directed

DEFENSE OP SAMUEL A. MUDD.

207

against him. It was an act done during the
time of that silence and alleged concealment,
by reason of which they seek to implicate
him as an accessory before and after the fact
in the assassination. That conversation with
Dr. George Mudd accounts for the silence;
that conversation broke the silence. If the
fact of his having been silent is to be urged
against him, may not the fact that he broke
the silence, and communicated all the facts
to the military authorities, be introduced in
his behalf? I, hope the Judge Advocate and
the Court will mark the fact that we do not
introduce this for the purpose of showing
that what Dr. Mudd then said was true. We
do not introduce it for the purpose of explain
ing any thing as to the presence of these men
in the house, or the acts they did there; we
introduce it simply to show that he commu
nicated, as well as he could, to the military
authorities the fact of their presence, and at
the same time gave the explanation of his
caution then and his silence before. No
authority could be more direct upon this
point than the authority in United States v.
Craig, 4 Washington Circuit Court Reports,
which is briefly stated in the note to Russell,
which I before read: "Thus, the declara
tions of a prisoner may be admitted to
account for his silence, where that silence
would operate against him."
The Judge Advocate, If the Court please,
the principle here is almost too well settled
to be the subject of discussion. While it is
competent for the Government to give in evi
dence declarations of a prisoner on trial, his
confessions, it is not competent for him to
do so ; that is perfectly clear. But when
these confessions are introduced, he has a
right to insist that the whole of them shall
be given. Now, we have offered no declara
tions in evidence which were made by the
prisoner at the bar on Sunday, the day spoken
of by the witness. The ground, then, on
which it is sought to introduce them is,
that they are part of the res gestce. The res
gestce at that moment had been completed.
The res gestce in which he was involved, and
which is the subject of arraignment on the
part of the Government, had closed the day
before. That consisted in his having received
and entertained these raen, and sent them on
their way rejoicing, having fed thera, having
set the leg of the one whose leg was broken,
having comforted and strengthened and en
couraged them, as far as his hospitality and
professional skill could do, to proceed on their
journey. That is the res gestce, the transac
tion on which the Government arraigns hira,
and that was complete at 4 o'clock on Satur
day evening. Now, on a subsequent day, on
Sunday, after carefully reviewing his own con
duct, he proposes to introduce a line of dec
laration on his part, nearly twenty-four
hours afterward, by which he seeks to relieve
himself of the imputation which the law at
taches to his previous conduct, which has

been the subject of the testimony before this
Court I say it is not competent for hira to
do so; it is not competent for him to declare
the motives by which his previous action
was governed, because we have no means of
reaching those motives; we have introduced
no testimony in regard to them, and we have
no means of doing so. The great principle
which says that.a criminal shall not manu
facture testimony for his own exculpation,
intervenes and forbids that this Court shall
hear that testimony. Any act of the pris
oner he may introduce, because in regard to
that we ourselves can introduce testimony,
but declarations which may have been framed
upon careful review of his own conduct, solely
for the purpose of his vindication against
the accusation which he must have seen
would arise from that conduct, can not be
heard upon any principle of testimony what
ever. Mr, Ewino. The Judge Advocate says
that the transaction was wholly closed. Not
so. The charge here is a charge of conceal
ment, among others, and the concealment, as
they have sought to prove it, was a conceal
ment not only of their presence while they
were in the house, but a concealment, ex
tending until Tuesday or Friday, of the fact
of their having been there. Two of the
witnesses for the prosecution who went there
on Tuesday — two out of the four — said, upon
their-examination in chief, that Dr Mudd de
nied that two men had been at his house.
That was part of the testimony for the pros
ecution. It was not irrelevant testimony;
it was legitimately applicable to this charge
of concealment, which is made in broad and
general terms, and which applies as well to
his concealing them while they were there as
to his concealing their course after they left,
and the fact that they had been there. In
support of that charge of concealment, as I
said before, they have introduced testimony
that he denied on Tuesday that they had
been there, and now they propose to exclude
us from proving that he informed the Gov
ernment on Sunday that they had been there.
It would be most unjust to exclude it, and
contrary to the authorities which I have
cited, one of which is explicitly and clearly
in point
¦The Judge Advocate. If the gentleman
will frame his question so as to bring out
simply the conduct of the party in the act he
did, I shall not object; but I must object to
his declarations.
Mr. Ewing. The question has been asked
I can not prove how he informed the Gov
ernment without proving the words he used.
If the witness were the Judge Advocate
General, I could not prove that Dr Mudd
had informed him of their presence there
without proving what he said to him.
Assistant Judge Advocate Burnett. The
question could certainly be asked, " Did Dr
Samuel A. Mudd direct you to go to the

208

THE CONSPIRACY TRIAL.

authorities, and inform them that these
parties had been there ? "
Mr. Ewing. I claim more than that; I
claim the whole statement
The Commission sustained the objection of
the Judge Advocate. By Mr. Ewing.
Q. State whether you communicated to the
military authorities in Bryantown the fact
of any suspicious persons having been at
the house of Dr Samuel A. Mudd on Satur
day. A, I did to Lieutenant Dana, who was the
principal in comraand of the military there
at that time.
Q. When did you communicate it to him?
A, I think it was on Monday morning,
Q, What stateraent did you raake to hira ?
A. I stated to hira that Dr, Sarauel A,
Mudd had informed rae that two suspicious
parties came to his house a little before day
break on Saturday morning; and that one
of them had, as he said, a broken leg, which
Dr Samuel Mudd bandaged; that they were
laboring under some degree of excitement —
more so, he thought, than should arise from
a broken leg; that these parties stated that
they came frora Bryantown, and were inquir
ing the way to the Rev, Dr, Wilmer's; that
while there one of them called for a razor
and shaved himself, thereby altering his ap
pearance; that he improvised a crutch or
crutches for the broken-legged man, and
that they went in the direction of Parson
Wilmer's. I also told the officer that Dr, Samuel
Mudd went from his house with the younger
of the two men to try and procure a carriage
to take them away from his house; that he
went down the road toward Bryantown and
failed to get one, and that they left his house
on horseback, I told him that one bone of
the man's leg was broken, said by him to
have been by a fall from his horse. All this
information I received from Dr. Samuel
A, Mudd.
When I was leaving Dr Samuel Mudd, I
told him I would mention the matter to the
military authorities at Bryantown, to see what
could be made of it He told me he would be
glad if I would ; but that, if I could make the
arrangements, he would much prefer that he
be sent for, and that he would give every in
formation in his power relative to it; that,
if it became a matter of publicity, he feared
for his life, on account of guerrillas that
might be infesting the neighborhood,
Q, By whose authority did you make the
comraunication to him ?
A. The mentioning of that matter to me,
or any other matter bearing on an assassina
tion, particularly such an assassination as
the country and the world now mourn, was
my warrant and authority from him, or any
body else who knew me.
Q, Did you make any other communica

tion to any other military authorities of the
facts stated to you by Dr, Samuel A. Mudd?
A. Yes, sir. After that, I was sent for to
my house, I think, on Tuesday afternoon.
There were four detectives, who asked me to
go up in a room with them. They there
questioned me very particularly relative to
this affair I stated to them what I have
already stated here; and upon my inability
to answer all their questions, they ordered
their carriage and asked me to direct them
the way to Dr. Samuel Mudd's house. I
accordingly went with them to Dr. Samuel
Mudd's house. Dr, Sarauel Mudd was not
in the house, I was outside of the door, and
saw him coming, and told him, as he entered
the house, that the detectives had come there
for the purpose of ascertaining the particulars
relative to that matter which he had spoken
to me about, and that I had made the state
raent to the military authorities which he
had made to me on Sunday, and that they
were up there for the purpose of making
special inquiry in reference to it, I had
already stated to the detectives that I felt
confident the Doctor would state the matter
just as I had stated it to them, and would
not and did not stay in there during their
examination, _
Q, Can you name the officers that went
with you?
A. Lieutenant Lovett, John Lloyd, Gavacan,
an Irishman, and Williams was the fourth.
After their conversation with Dr, Samuel
Mudd, I think just before they got into their
conveyance, they asked me if 1 could direct
thera the way to Parson Wilmer's, It was
then nearly night I told them I certainly
would, and turning to Dr, Samuel Mudd,
who was standing outside the door, I asked
him what was the best road to Parson Wil
mer's, which he told me, and also stated that
there was a bad bridge on that way, which
I remember very well
Before we got to the main road leading to
Bryantown, these officers concluded, in con
sequence, it seems, of my stating to them that
it was very little out of the way, to go back
by Bryantown to Parson Wilmer's — to go
that way, being a much better road, as I
thought Nothing, to my knowledge, was
said by either of those officers about Dr.
Samuel Mudd having denied that the two
men had been at his house.
Q, Did you have any conversation with
Dr Samuel Mudd at the church, or hear
his conversation, as to what he knew of the
assassination ?
A, No, sir; I heard —
Assistant Judge Advocate Bingham. You
need not state any thing you heard him say
there. Mr Swing, I think it admissible, as ex
planatory of the conduct of the accused
during the very .time of the occurrence of
the offenses charged — because, as I said be
fore, one of the offenses charged is conceal-

DEFENSE OP SAMUEL A. MUDD.

209

ment, which relates beyond that Sunday — as
showing his frame of mind, his information,
his conduct
Assistant Judge Advocate Bingham, If
the Court please, that is not the point here.
Supposing the declaration to be that he did
not know any thing about them; the gentle
man claims here to prove, on his own motion,
the declarations of Dr Mudd on Sunday at
Church, If we had introduced any declara
tions of Dr Mudd at that time and place, I
udmit the well-known rule of law is that
whatever he said, aud all that he said at
(.hat time, is admissible on his motion ; what
we did not give, he would have a right to
give ; but I deny that there is any authority
for introducing testimony of this sort as to
his declarations at that time about this trans
action. That is the question now. The
gentleman read a while ago from a text that
everybody is familiar with, which has rela
tion to the declarations of third persons not
parties to the record, Thei'e is not one single
line in that text which he read which sustains
any position he assumes here in regard to
thia matter, I desire to read the rule that
does apply in regard to the prisoner on trial
and his declarations — -Wharton's American
Criminal Law, vol. 1,, p. 358, sec, 699: "De
clarations made by a prisoner in his own
favor, unless part of the res gestce, are not
admissible for the defense. Thus, on an in
dictment for larceny, the defendant can not
give in evidence his declarations, at the time
of the arrest, of his claims of ownership in
the property taken; and on an indictment
against a prisoner for having in his po.sses-
«ion coining tools, with intent to use thera,
he can not give in evidence his declaration
to an artificer, at the time he employed him
to make such instruments, as to the purpose
for which he wished thera made. One in
dicted for murder can not give in evidence
Ills own conversations had after going half
a mile from the place of murder; and so,
too, when a prisoner, in conversation with a
witness, admitted the existence of a particular
tact, which tended strongly to establish his
guilt, but coupled it with an explanation
which, if true, would exculpate him, it was
held that the accused could not show that
he had made the same statement and expla
nation to others,"
So it goes on all the way through. That
is the law in regard to the matter. The
man's declarations at the time he committed
tliat murder, being a part of the transaction,
were admissible; but after he had gone half
n mile they were inadmissible. Here is a
party charged with harboring, concealing,
and comforting a man, knowing him to be
the murderer of the President of the United
States. What he said in connection with
the fact of his harboring and concealing
him at the time to these parties, he has a
right to prove, because we have brought out
that evidence ourselves. If he said any thing
14

in addition to what we have proved, he has
a right to bring it out Everybody knows
that But we have introduced no evidence
whatever of what he said on Sunday at
church. If we had introduced any evidence
of that sort, I admit that, on the principles
I have before stated, the accused would have
a right to give in evidence all that he said
at that time and place; but we have not
offered any such evidence. If he is allowed
to introduce his declarations on Sunday
in regard to that transaction, and all that
he said then — because the question implies
that the witness is to tell all he did say —
then he is to be allowed to introduce every
declaration he may have made frora that
Sunday to this day, to everybody, and at
every place ; and, as I have before stated to
the Court, on that subject, the law has
hedged itself about so that criminals shall
not make evidence, at their pleasure, in their
own behalf, and adduce it in court to excul
pate themselves from crime. If there were
such a rule as that, there would be an end
to the administration of justice, provided the
courts should give credence to such testi
mony. Mr. EwiNO. I wish to call the attention
of the Court specially to the fact that the
declaration as to which I am now inquiring
was made during the time of the alleged
comraission of the offense of concealment
The offense of concealment, as cliarged, and
as attempted to be sustained by the proof on
the part of the Government, was a conceal
ment after the fact of the- persons having been
there, and of the route which they took ; in
other words, a concealment after their de
parture as well as during their stay. Ac
cording to the theory of the prosecution, he
was committing that offense during all the
time, frora Saturday till the following Tues
day; and I say his declarations at the time
of the alleged commission of the offense are
admissible. The declaration now inquired
about was on Sunday, showing his knowl
edge and frarae of mind with reference to the
assassination, and therefore I think it ad
missible, I assure the Court that I do not
wish to take up its time by pressing upon
it irrelevant or inadmissible testimony; and
if I seem pertinacious, it is only because I
think we have a right to show what is here
offered, I ask the decision of the Court on
the objection, V
The Commission sustained the objection
of the Judge Advocate,
Witness. I am acquainted with Daniel
J. Thomas. His reputation for veracity has
been bad ever since I have known him, and
I have known him since he was a boy.
From my knowledge of his character for
veracity, I would not, if he had a motive to
misstate facts, believe him under oath. I
consider him an insane man.
I have seen him manifest a sufficiently ab
normal condition of mind as would confer in

210

THE CONSPIRACY TRIAL.

the courts irresponsibility for a criminal act
He is not always so insane as this, however.
There seem to have been exacerbations and
remissions in his manifestations of insanity.
Sometimes I have met him when he was not
in a more disordered condition of mind than
would indicate eccentricity. By the Court.
Q, What is the form of insanity under
which Mr, Thomas labors?
A, There is no specific form that I know of,
except at times a peculiar excitement and in
ability to appreciate matters and things as
other people do. It is not dementia; it is not
a monomania; it is not what is called aber
ration of mind. There are certain forms of
insanity which exacerbate and remit, and are
known by no specific narae as any particular
form of insanity,
Q, Do you think the form of insanity under
which he is laboring would lead hirn to im
agine that he heard a conversation, for in
stance, that he never did hear?
A, I have seen hira in a mood of mind
when I would not doubt but that he would
be so insane,
Q, Would he fancy that he heard some
thing said that was not said ?
A, Yes, sir; I have known hira to labor
under the most decided delusions and hallu
cinations, Q, Have you known him to narrate things
which might have occurred, and which he
might have heard, that to your knowledge
were purely imaginary, and that he never did
bear? A, Yes, sir, oftentimes,
Q, How long have you entertained the
opinion that Mr, Thomas was not of sound
mind? A, I went to a family school in our neigh
borhood with Mr Thomas when he was a
small boy, I was his senior, perhaps, four or
five years; There was something very ec
centric and amusing about hira at that time,
different frora other boys, and he was a source
of amusement in the way of eccentricity to
his schoolmates. Seven or eight years ago,
or perhaps longer than that, his insane
condition of mind seemed to manifest itself
in the estimation of almost everybody in
our neighborhood, Tbe common expression
was that Dan Thomas was crazy. I have
entertained that' opinion for seven or eight
years, and expressed it over and over again
before the war, I have not known of his
being objected to as a witness before a court
of justice, on the ground that he was not of
sound mind, and I have known him to testify
under oath on one occasion.
With respect to the reputation of Samuel
Mudd for loyalty, frora my association with
him, I have to consider him as sympathizing
with the South. I never knew, however, of
any disloyal or treasonable act of his, nor did
I ever know of his harboring rebels or per

sons who were in sympathy with the South,
I have generally considered him as very tem
perate in his discussions and expressions
relative to the war He has contended for
the right or legality of secession, but has
generally spoken temperately, never using
abusive or opprobrious epithets toward the
heads of the Government In saj'ing that
he was very temperate in this regard, I must
add, if I may be allowed, that he was very
much more so than many of the citizens of
benighted Charles County, in Southern Mary
land, Q, Were there not certain local military or
ganizations in that neighborhood in the early
part of the war? What was their object?
A, There was an organization at Port To
bacco, the object of which, I think, was
treasonable, 1 think it probable, but I am
not satisfied of that ; that was my impression
at the time, though it was said it was for the
purpose of quelling insurrections, etc., in the
neighborhood. It may have been so, I
have regarded Dr, Sarauel Mudd, for several
months prior to the fall of Riohirfbnd and the
surrender of the rebel army of Lee, as taking
a very handsome prospective view of the
downfall of the rebellion, I remember ad
ministering an oath to him last year, and
was forcibly impressed with the respect and
reverence with which he took the oath, mak
ing a decided contrast from many others to
whom I administered the oath on that occa^
sion; and, so far as I know, he has abided
the provisions of that oath.
By Mr, Ewing.
I administered the oath to Dr, Samuel
Mudd, if I remember rightly, when the sense
of the people was taken relative to the calling
of a convention to frame a new constitution
for the State of Maryland, in June or July
of last year — I do not remember — or it may
have been earlier, I was improvised by two
of the judges as the chief judge of the elec
tion that day, in the absence of the judge,
I think I administered the oath to some two
hundred that day. From and after that time,
if not before, he has spoken of the downfall
of the rebellion as being assured.
Recalled for the Defense. — June 9.
The Judge Advocate, This witness is
recalled by the defense to prove what was
rejected the other day by the Court on ob
jection — the declarations made by the pris
oner, Dr, Mudd, on Sunday at church, in
regard to the two suspicious men having
been at his house. Although I think that
the admission of such statement to be irreg
ular, yet wishing that the Court shall have
the benefit of every thing which can possibly
aid it in arriving at a correct conclusion, I
am willing that the statements of the pris
oner, made the day after these men had left
his house, shall be heard, and taken for what
they are worth.

DEFENSE OF SAMUEL A. MUDD.

211

Witness, I had very little conversation
with Dr. Mudd at church. He reraarked
that he regarded the assassination of the
President, to use his own expression, as a
most damnable act He overtook me on the
road after church, and stated to rae that two
suspicious persons had been at his house;
that they carae there on Saturday morning a
little while before daybreak; that one of
them had a broken leg, or a broken bone in
the leg, which he bandaged; that they got
while there soraething to eat; that they
seemed laboring under some degree, or prob
ably quite a degree, of excitement — more ex
citement than probably should necessarily
result from the injury received; that they
said they came frora Bryantown, and were in
quiring the way to Parson Wilmer's; that
while there one of them called for a razor, and
shaved himself; I do not remeraber whether
he said shaved his whiskers or moustache,
but altered somewhat, or probably materially
altered, his features; he did not say which it
was that had shaved himself; that he hira
self, in corapany with the younger one, or
the smaller one of the two, went down the
road toward Bryantown, in search of a vehicle
to take them away from his house; that he
arranged or had fixed for them a crutch or
crutches (I do not reraember which) for the
broken-legged man; and that they went away
from his house, on horseback, in the direc
tion of Parson Wilmer's. I do not think he
stated what time they went
When I was about leaving him, he turning
into his house, I told him that I would state
it to the military authorities, and see if any
thing could be made of it He told rae that he
would be glad if I would, or that he particu
larly wished me to do it; but he would much
prefer if I could make the arrangement for
him to be sent for, and he would give every
information in his power relative to the mat
ter; that, if suspicions were warrantable, he
feared for his life on account of guerrillas
that were, or might be, in the neighbor
hood. This was about half-past 11 o'clock in the
forenoon, and when I parted with him, I was
within fifty yards of his house.
As I left Dr, Samuel Mudd, I went tpward
Bryantown. I dined at his father's house
that day, and on ray way towftd Bryantown
I stopped to see a patient, and it was nights
fall before I got to the village of Bryantown,
What Dr, Samuel Mudd had told me I com
municated to the military authorities at Bry
antown next morning,
Benjamin Gardiner.
For the Defense. — June 5.
By Mr, Ewing.
I saw Dr Samuel Mudd at church on the
Sunday after the assassination, I saw hira
in conversation with his neighbors before the

service coraraenced, which usually begins
about 10 o'clock,
Q, Will you state whether or not Dr.
Samuel Mudd there raentioned any thing
about two suspicious persons having been at
his house on Saturday morning?
Assistant Judge Advocate Bingham. I
object to Dr, Mudd giving his declarations,
what he said on Sunday morning at church.
Mr, EwiNG, It is like the evidence of his
informing Dr, George Mudd of the presence
of those suspicious persons at his house,
which the Court refused to allow to be given
in evidence; and which, for the reasons that
I then very fully stated, I then thought, and
still think, a most important item of testi
mony, and one most clearly admissible.
A.ssistant Judge Advocate Binoham, I
have heretofore stated to the Court the
ground of the objection. It is this: that it
is the declaration of the prisoner himself, at
a time and place about which the prosecu
tion has given no evidence at all ; to-wit, his
declarations on Sunday at church,
Mr, Ewing, But it is during the alleged
commission of the crime of concealment, and
it is evidence of his having broken that si
lence, for which they propose to convict him
of complicity in the crime.
Assistant Judge Advocate Bingham, There
is no allegation of time in the charge or speci
fication that is important The matter of
time becomes important by the evidence, and
the evidence of the prosecution has not gone
to any thing he said or did on Sunday,
Mr, Ewing, But the evidence of the prose
cution has gone, with one witness, to the fact
of his having, as late as Tuesday, concealed
the fact of the presence of two suspicious
persons at his house.
Assistant Judge Advocate Bingham. The
evidence has gone to Tuesday as to what he
said. Assistant Judge Advocate Burnett. As
to his misstating the facts —
Mr Ewing. As to his concealing the fact
and denying it
Assistant Judge Advocate Bingham. As
to what he said ; and all he said on Tuesday
at that time and place of course is admissi
ble ; but that is not Sunday.
The Commission sustained the objection.
Recalled for the Defense. — June 9.
The Judge Advocate. This witness is
here to prove the declarations made at church
by the prisoner, Dr Mudd, on the Sunday
after the assassina.tion. The statement is al
lowed for the reason stated with respect to
the testimony of the previous witness.
By Mr. Swing.
I had heard on Saturday evening of the
assassination, but it was in such a way that
I did not believe it As I got to church on
Sunday morning, I saw the people collected
together in the church-yard talking in appar-

212

THE CONSPIRACY TRIAL.

ently earnest conversation. It turned out to
be about the assassination of the President
As I advanced toward the church, I happened
to go where Dr Samuel Mudd was, I walked
up to where he was, and spoke to him, and
he spoke to me, I asked him if it was a fact
that the President had been assassinated.
He then turned around to me from the crowd
and said, "Yes, such seems to be the fact; "
and he added, "Sir, we ought to imraediately
raise a home guard, and to hunt up all sus
picious persons passing through our section
of country and arrest them, and deliver them
up to the proper authorities ; for there were
two suspicious persons at my house yester
day morning" I paid no particular atten
tion to what he said about suspicious per
sons, because since the war coramenced we
have always had in our neighborhood de
serted soldiers constantly, and detectives and
soldiers of the United States, and we could
hardly tell who they were,
whether Dr, Mudd said any thing further
about the assassination or not, I can not tell.
Everybody was talking about it until church
commenced, and I can not tell whether he
said any thing more, or if what I heard was
said by others.
Daniel E, Monroe.
For the Defense. — June 10.
On Sunday, the 16th of April, I heard at
Bryantown, frora Mr, William Henry Moore,
that the man who had assassinated the Presi
dent was Edwin Booth, Mr, Moore had come
from Bryantown that morning. It was about
10 o'clock in the morning that I heard this,
Mr. Philip A. Lasser and Mr, Warren were
present when Mr, Moore told me. I think
he said he heard it from the soldiers. It was
some time afterward that I heard the assas
sins had been traced near Bryantown.
I know Daniel J, Thomas by reputation.
The neighbors generally think he is very un
truthful. This rs not the opinion of one
party, but of the comraunity generally. Frora
that reputation I could not believe him under
oath. I approved of the efforts of the Federal
Government in its suppression of the rebel
lion under the Constitution as it formerly
stood. I did not approve of the manner in
' which slavery was abolished. In the last
Presidential election I used my influence in
favor of Lincoln and Johnson,
John F. Davis,
Recalled for the Defense, — June 6.
I was at Dr. Samuel Mudd's house on the
Tuesday following the assassination of the
President I went into the field and inforraed
him that Lieutenant Lovett and a party of
soldiers were at his house, and had come to
see him. When I came up to the house I
met Dr. George Mudd. Dr Samuel Mudd

met Dr George Mudd just at the end of his
kitchen, Q, State what Dr George Mudd told Dr
Samuel Mudd,
Assistant Judge Advocate Bingham. I ob
ject to the question,
Mr Swing, May it please the Court, one
of those four officers who testified, contra
dicting the others, it is true, stated that Dr
Samuel Mudd, on that visit, denied that there
had been any persons at his house on Satur
day morning. We have proved, in a round
about sort of a way, owing to the objections
that were made, (but still it is proved,) that
Dr Samuel Mudd informed Dr, George Mudd,
on Sunday, that there were two suspicious
persons at his house on Saturday morning,
and requested him to communicate the fact
to the military authorities, and have him sent
for, if necessary, to give further information on
the subject One, or perhaps more, of those
persons who went with Lieutenant Lovett
spoke of the fact of Dr, George Mudd having
a short conversation with Dr, Samuel Mudd
outside the door, before Dr, Samuel Mudd
saw the officer and the detectives, I wish to
prove by this witness that Dr George Mudd's
whole conversation with Dr, Samuel Mudd
was, that, in pursuance of the information
which Dr, Samuel Mudd had given him on
Sunday, and of his request, he had commu
nicated the facts that Dr Samuel Mudd
stated'W him to this officer and the detec
tives, and that they had come for the purpose
of questioning him upon the subject The
purpose of this evidence is twofold : first, to
show that Dr, Samuel Mudd knew that these
parties had been acquainted by Dr, George
Mudd with the circumstance of those two
suspicious persons having been at Dr, Samuel
Mudd's house on Saturday morning, for the
purpose of showing that he could not, after
that, as a rational man, have gone into the
roora and denied that there were two persons
in his house qn Saturday morning; second,
to show that the conversation was not one
that was in any manner objectionable, but,
on the contrary, in strict pursuance of the
request of Dr, Sarauel Mudd, and that that
was all there was of it It is true, it is a
conversation of Dr, George Mudd with the
accused, I do not wish to prove any thing
the accused skid ; I wish to prove merely
what Dr, George Mudd- stated to him, to
show the information he had as to the pur
pose of this visit, and as to the knowledge
of the visitors with reference to those per
sons, before he entered the room to have his
conversation wiHi them.
Assistant Judge Advocate Bingham, The
witness is asked to state what a third person
told the prisoner at the bar, and that I object
to as utteriy incompetent
The Commission sustained the objection.
Witness, Dr Samuel Mudd did not betray
the least unwillingness to go to the house to
see the officer, or manifest any alarm.

DEFENSE OF SAMUEL A. MUDD.

218

John F. Haedy.
For the Defense, — May 29.
By Me. Ewino.
I live in Charles County, about two miles
and a half from Bryantown. I was with Dr.
Samuel Mudd on Friday, a week after the
assassination of the President; we dined to
gether at his father's. While there a mes
senger came for Dr, Samuel Mudd to go
to his house. I went with him, and met
there Lieutenant Lovett in Dr. Mudd's yard.
Dr. Mudd introduced Lieutenant Lovett to
me. When we got into the house, Dr Mudd
told the Lieutenant that there was a boot
there, and asked him if he wanted it Lieu
tenant Lovett said he did. No inquiry had
been, addressed to him about the boot, or
any thing said in my hearing about it before
that Dr Mudd's wife said that she had
found the boot under the bed, in dusting up
the room a day or two after the men left.
By Assistant Judge Advocate Buenett.
Tl»ere was no word said about searching
»he house before Dr. Mudd spoke of the
boot When we got to the house, I counted
twenty-eight horses belonging to the soldiers,
I do not know what had occurred in the
house before we got there. I think it was
Mr Davis who sent for Dr. Mudd while at
his father's. By Me. Ewing.
Dr Mudd himself gave the boot to the
officer. 1 do not think Dr. Mudd had any
conversation with anybody before the fact of
the boot being there was mentioned to the
officer.
Jane Herold
Recalled for the Defense, — June 9.
By Mr. Ewing.
I live on Eighth Street, east, in this city,
not a hundred yards from the Navy Yard
gate, and about a quarter of a mile from
the Navy Yard bridge. I have lived there
eighteen years. It is not on the direct route
from the city to the bridge, but it is on one
that is very much used.
I am not acquainted with the prisoner.
Dr. Samuel A. Mudd; I never heard him
spoken of in our house, nor by my brother.
Mrs. Mart E. Nelson.
For the Defense, — June 9.
By Mr. Ewing.
David E. Herold, one of the accused, is
my brother I never heard him speak of
Dr. Samuel A. Mudd, and never heard the
name mentioned in the family until his
arrest

Rev. Charles H. Stonbstebet.
Recalled for the Defense. — June 10.
By Mr. Swing.
In the year 1850, I was the President of
Frederick College, in Frederick City, Mary
land, and the accused, Samuel A. Mudd,
was a pupil there. I have recently seen the
book, kept by myself, in which his name is
entered. At the close of 1850, in December,
I think, I was transferred to Georgetown
College, and I am under the impression that
he was there when I left
At Frederick College we had one princi
pal vacation, commencing in July and con
tinuing during August; other vacations were
only for a few days, during which those
pupils that resided at a distance of a hun
dred miles or so from College did not go
home. Cross-examined by Assistant Judge Advooatb
Bingham.
There were no holidays in the fall, and
only a few days recess at Christmas. I can
not say certainly that Dr. Mudd was there
in December. It was the rule not to go
away during the temporary vacation, and
pupils could not go without the authority of
the President L. A. Gobright.
For the Defense, — June 10.
By Mr. Ewing.
I am telegraphic correspondent of the As
sociated Press, I was at Ford's Theater on
the night of the 14th of April, after the
assassination of the President, and heard
some persons say positively that it was J.
Wilkes Booth who was the assassin, while
others said they knew J. Wilkes Booth, and
that the man who jumped upon the stage
and made his exit differed somewhat in ap
pearance from Booth. So far as I could
ascertain, there did not seem to be any cer
tainty at that time, and I was not thoroughly
satisfied in my own mind that night as to
who was the assassin.
Cross-examined by Assistant Judge Advocate
Bingham.
I was not perfectly satisfied that night
that it was J. Wilkes Booth who had killed
the President It was telegraphed over the
country that he was the assassin, but not by
me; I could tell by whom, if necessary.
After I saw the official bulletin the next
morning, I came to the conclusion that J.
Wilkes Booth was the man.

James Judson Jaebob.
For the Defense. — June 7.
I live in Prince George's County.

usually called Judson Jarboe.

I am
I and my

214

THE CONSPIRACY TRIAL.

brother, William Jarboe, are the only adults
of that name in Prince George's County. I
do not know and never saw Dr. Samuel
Mudd before his arrest I saw Mrs, Surratt
some time in April, since her arrest; I had
not seen her before that for two or three
years, I have never been at her house on
H Street, nor have I ever met her daughtei;
at any house in Washington,
I have known Mr. Evans for several
years; he used to live in my neighborhood,
and attend a Methodist Church there; I used
to see him passing, • I have not seen him
for a year or two, certainly, till two or three
weeks before my arrest I was standing at
the corner of Ninth and G Streets, when
Mr Evans passed by me, walking, I had
not Seen him before, I think, for a year or
two. Cross-examined by Assistant Judge Advocate
Bingham.
I know John H. Surratt, but have not
met hira very often. I met him on Seventh
Street, in this city, I believe, some time in
March last It was at the restaurant nearly
opposite Odd Fellows Hall, There were
several gentlemen with Surratt I just spoke
to him, passed the time of day, and passed
on, I do not know the persons who were
with him. I do not know .John Wilkes
Booth, I have seen David E, Herold ; I
recognize him among the prisoners. He
was not with Surratt when I saw him at
the restaurant I have not, to my knowl
edge, raet Surratt since. Before that I passed
Surratt on the road some time last fall ; he
was riding alone.
I was arrested on the 15th of April, I
do not know that I have been charged with
any disloyal conduct down in Maryland,
Bor do I know for what I was arrested. On
the night I was arrested, I was asked some
questions by Major Wooster, at Fort Baker,
I think. He asked me about a man by the
name of Bojde, and if I had not harbored
him, I told him I had not Boyle, he said,
was charged with assassination and horse
stealing, I think he said Boyle had killed
a Captain Watkins,
I knew Boyle when he was a boy, but I
have not seen him for four years. I know
he was not harbored on my premises,
Q, How have you stood yourself in rela
tion to this rebellion since it broke out?
A. I do not exactly understand you,
Q. Have you made any declarations against
the Government of your country since this
rebellion broke out ?
A. No, sir
Q. Have you joined in any glorification
down in Prince George's County, Maryland,
over rebel victories?
A. No, sir.
Q, Have you wished for the success of the
rebellion?

A, 0, no, sir; I could not expect that
Q, Did you want it, whether you expected
it or not ? Did you want this rebellion — this
Southern Confederacy, if you please — to tri
umph ?
Mr Swing, I will state to the witness
that he has the privilege of declining to an
swer I do not care about interfering further
than that What I called him to, was one
single question of fact
Assistant Judge Advocate Bingham, I have
already stated to the witness that if he thinks
his answer to any question will criminate
him, he can say so, and decline to answer
The Judge Advocate, I do not think a
mere wish is such criminality as should be
protected from exposure,
Mr, Swing, I think this a species of in
quisition, which counsel ought not to indulge
in. The Judge Advocate, Loyalty is a ques
tion of feeling and conviction, as well as of
action. Assistant Judge Advocate Bingham, If the
witness thinks it will criminate hira to make
a full and complete answer, he can say so.
If he does not think it will criminate him,
he must answer the question.
Witness. I hardly know what would
criminate me here,
Q, I should like to know whether it is your
opinion that the Southern Confederation was
criminal or not?
A. I do not know much about it
Q, Have you not expressed yourself that
it was all right?
A, What was all right?
Q, The Southern Confederacy and the re
bellion ?
A. I do not think that I did.
Q, Did you not think that?
A. I think a good many things,
Q, State whether you made an assault upon
a raan at the election about four years ago,
and what you did to him.
A. Are you going to try me for that?
Q, No ; but I ask you the question ?
A. I have been tried for that same offense
twice. Q, State whether you made an attack,
about four years ago', at the time of the elec
tion, on a Union man down there, and killed
him, A. There was a pretty smart attack made
upon rae.
Q, What became of the man?
A. It would be very hard for me to tell
now. Q, Was he killed or not at the time?
A. I understood that he was,
Q, Do you not know who did it?
A. No, I do not know exactly who did it
Q, Do you know whether you had a hand
in killing him?
A. I do not know. I have answered all
the questions so often that —

DEFENSE OP SAMUEL A. MUDD.

216

Q. You can answer that question or let
it alone. If you say you can not answer
it without criminating yourself, you need
not A. I have answered that several times.
Q. You have not answered me yet
A. I have answered these questions before
other courts; I have been asked these ques
tions over and over.
Q, Did yoii kill him, or did somebody else
kill hira ?
A, I can not tell you whether some one
else did it
Q, Did you have a hand in it ?
No answer.
Q. Where was it that this man was killed?
A. I understood that he was killed at the
election. Q. Do you not know the man was killed ?
Were you not there?
No answer,
Q, What was the man's name that was
killed? No answer.
Assistant Judge Advocate Bingham. I
shall not insist on an answer If you do not
wish to answer, you need not answer. It is
your privilege to decline or do so.
By Mr. Swing,
Q, Have you any statement you wish to
make in regard to the difficulty about which
the Judge Advocate has been questioning
you ? If you have any thing to say to the
Court, say it.
A. Well, I do not know. If the Judge
wants to know all the particulars about
it- Assistant Judge Advocate Bingham, I do
not insist on knowing any more, »,You have
declined to answer, as is your right
Witness, I have answered these questions
before, and have been tried for that thing by
our courts,
Mr, Ewing, What was the result?
Assistant .ludge Advocate Bingham, You
- need not state,
"V^itness. I was acquitted.
Assistant Judge Advocate Bingham. I
object to all that
"Mr, Swing, You have been going into the
question whether he was tried or not, and I
ask him the question in what court he was
tried, -
Assistant Judge Advocate Bingham, The
gentleman has made an issue with me. I
deny his assertion.
Mr Swing, The witness can state in what
court he was tried.
Assistant Judge Advocate Bingham, He
can not state where. I did not ask him in
what court he was tried. He chose not to
answer my questions, and that was all.
Mr. Swing. If the Court please, I think
the character of the cross-examination of
this witness has been most extraordinary,
catching the witness, badgering him with

questions, and snapping him up when he
started to answer, and undertaking to present
to the Court the impression from his answers
that he was a felon, and then not allowing
the witness to stale that he was tried for the
offense alleged against him, in a high court
of the country, and was acquitted. That is
not fair. And, more than that, the gentle
man is certainly wrong. He drew out of the
witness, on cross-examination, the fact that
he was tried. Now, I want to know where
he was tried. I want to know whether there
was a solemn inquiry into it; and whether
he was tried in a high court
Assistant , Judge Advocate Bingham.
Whether I badgered the witness or the wit
ness badgered me and justice both, is a ques
tion that will appear by the record. The
point I make is, that I never asked this wit
ness a question whether he was tried.
Mr. Swing. You drew it out
Assistant Judge Advocate Bingham. I did
not draw it out of him. What I tried to
draw out of him was legitimate; but as the
gentleman chooses to arraign me here —
Mr, Swing, I take that back.
Assistant Judge Advocate Bingham. I am
glad of it Holding myself as the humblest
raan here, I beg leave to say, in vindication
of ray conduct, that there is not a law book
on evidence fit to be brought into a court of
justice, which does not say that I had the
right to ask hira whether he had been guilty
of murder ; and I am not going to let this
witness go away from this court with the
impression that I have invaded any right of
his. I had a right to ask him whether he
was guilty of murder, and he had a right, as
I told him, to refuse to answer it if he saw
fit Now, what I say to the Court is, that
he never answered my questions.
Mr Swing. You did not ask him whether
he was guilty of murder.
Assistant Judge Advocate Bingham. I
asked him whether he killed a man, and
whether he had any thing to do with it
Mr. Ewing. That is not necessarily mur
der. Assistant Judge Advocate Bingham. If I
may ask whether he was guilty .of murder, I
may ask him whether he killed a man.
Mr, Swing, You did not ask him whether
he had comraitted murder.
Assistant Judge Advocate Bingham. The
greater includes the less.
Mr. Swing. But you asked the less.
Assistant Judge Advocate Bingham. What
I say is that the law authorized me to ask
squarely whether he was guilty of murder,
and he is not to go out of court with the
impression that I have invaded any rights of
his. I never asked him about any trials.
He did not answer my questions. He had a
right not to answer thera, but I never asked
hira about trials at all. He never stated
whether he had killed the man; he did not
even state whether he had a hand in killing

216

THE CONSPIRACY TRIAL.

the man, and ne would not tell me whether
the man was killed at all or not Now, in
that stage of the case, upon that record, the
gentleraan proposes to prove by parol evi
dence what appears on record. The man
has not admitted yet that anybody was killed;
and if nobody was killed, how could he be
tried? Then, in the next place, if he was
tried, how are you going to prove it by pa
rol ? We have not the benefit of any testi
mony on the subject The truth is, I do the
witness the justice to say that he has not an
swered my question at all. He has not stated
tnat the man was killed ; he has stated that
he understood he was killed. He would
not state that he himself had a hand in it,
and he would not state that he knows the
man's name. That is the way it stands, and
I object to any thing further about it
Mr, Swing, He has stated that he was
tried, and I now ask him in what court?
Assistant Judge Advocate Bingham, I did
not ask hira if he was tried,
Mr Swing, He stated that he was tried,
and now I ask siraply, in what court? I do
not ask the result of the investigation.
Assistant Judge Advocate Bingham, If
there was nobody killed, there was nobody
hurt, 1 reckon,
Q, In what court were you tried ?
A. In Prince George's County Court
Q, Were you, during last spring, winter, or
fall, in any house on H Street, in the city
of Washington?
A, I do not recollect I do not think I was
in any house on H Street, though,
Q, Have you anv acquaintances living on
H Street?
A, No, sir, none at all, that I know of
Q, Have you any acquaintances living on
H Street, between Sixth and Seventh?
A, I do not think I have,
Q, Do you know in what part of the city
Mrs, Surratt lives ?
A, I do not I never saw her house in
my life, I do not know any thing about
Mr,s, Surratt's residence.
By Assistant Judge Advocate Binghail
Q, You say you were tried in a court
What were you tried for ?
No answer,
Q, Do you know what you were tried
for? A, I suppose I was tried for what you
stated awhile ago.
Assistant Judge Advocate Bingham. No,
sir ; I did not state it at all,
¦Witness, You said I killed a man.
Assistant Judge Advocate Bingham. No,
I did not
Witness. You asked me if I did not
Assistant Judge Advocate Bingham. I
asked you if you did, and you did not answer
the question. Now I ask you for what you
were tried?
A, I was tried in that case.

Q, What were you tried for? Were you
tried for murder?
A, Well, if I understand the case aright, I
do not think —
Q, Were you charged in that case with tha
murder of a Union man?
A. I do not know whether he was a Union
man or not
Q, Was he called a Union man?
A. That I do not know,
Q, But you were tried for murder
No answer,
Q, In what county ?
A. Prince George's.
Q, When?
A. I do not recollect exactly when it was,
Q. Since this rebellion broke out?
A, Yes, I think it was somewhere about
the first of the war.
Henry Burden.
For the Defense, — June, 8.
By Mr. Dostee.
I know Marcus P. Norton, who testified
here to-day. His general reputation for ve
racity in Troy, New York, is very bad, and I
would not believe him under oath.
Cross-examined by the Judge Advocate.
I live in Troy, and hold some valuable
patents for the manufacture of horseshoes,
etc. I have had legal controversies about
these patents, and Mr. Norton was engaged
as counsel by one of the parties opposed to
me in those suits. I have not formed my
opinion of him from his conduct in conduct
ing those suits ; I did not know him prior to
his engagyjg in those controversies. When
I say that Mr, Norton is not to be believed
under oath, I think I am expressing what
the people of Troy generally think, I derived
my knowledge of his character from testi
mony taken to impeach him in a case tried
in Troy.
By Assistant Judge Advocate Bingham.
A large array of witnesses were called, most
of whom I knew, to impeach Mr Norton.
1 did not hear the witnesses testify, but I have
seen them. By Me. Doster,
It is the general opinion of the people of
Troy that Mr. Norton is not to be believed.
D. W. Middleton.
For the Defense. — June 6.
I am clerk of the Supreme Court of the
United States, Mr. Marcus P, Norton ar
gued a motion in the Supreme Court in the
case of Willis Hamiston v. John Stainthrop.
et al, on the 3d of March, 1864.
[The entry from tho court records was read by the wit
ness.]

DEFENSE OF SAMUEL A. MUDD.

217

Judge A. B. Olin.
For the Defense, — June 9.
By Mr. Dostee.
I resided in the city of Troy, New York,
about twenty years prior to my coming to
this city, two years ago, I knew Marcus P,
Norton, a lawyer of that city. Judging by
what people say of him in respect to his char
acter for veracity, I should say his reputation
was bad, and where his interests, or passions,
or prejudices were enlisted, I would not rely
upon his testimony under oath.
Cross-examined by the Judge Advocate.
The opinion I express has been formed
from the speech of those who have been
brought into contact with him ; generally
persons against whora he has been employed
as counsel or attorney, or parties litigating
in patent suits that he had been connected
with. Q. State whether you have knowledge of
the fact that that particular class of suits,
probably more than others, excites bitter per
sonal animosity ?
A, All the knowledge I have of them
mostly arises since the commencement of my
duties here as a judge of this District I had
uniformly refused to take employraent in that
kind of cases, though I had opportunity to
do so, and I had very little knowledge of those
controversies, except incidentally, until I carae
here, where appeals are frequently brought
from the Commissioner of Patents to the
court of which I am a member, and I have
seen enough of them to know that they are
about as bitter as any controversies in law
that I have any knowledge of
Q, Are not the parties and counsel in these
cases extreraely censorious in the tone of
conversation about each other?
A. I have seen instances of that kind.
I know Mr. Burden, of Troy, very well,
Mr. Marcus P. Norton has been employed as
Counsel in opposition to him in patent cases,
Mr. Burden is a very wealthy man. He has
had several very warmly contested suits.
One of tliem is known all over the country —
the suit in reference to the spike machine,
his invention for making hook-headed spikes.
His controversy with Corning & Co, has
been pending now before Chancellor Wal
worth for ten or twelve years, taking testi
mony iu reference to the damages that he
sustained. I believe he has not got through
with it He has had several other very
warmly contested suits of the same kind,
Q, Would not the conversation of a man
of his fortune and influence, and that of his

friends, continued through a series of years,
under the influence of excited legal contro
versies in which this witness was involved
against him, afford to your mind some ex
planation of the reputation which you say
exists ?
Mr Doster, I object to that question.
The Judge Advocate. I wish to get at the
grounds of the witness's opinion, and I think
this is a legitimate mode of reaching it
Mr. Dostee, Judge Olin can scarcely be
brought here as an expert as to the character
of the testimony of Mr Burden, It is not
material to the issue what Mr, Burden said.
The Judge Advocate, It is not an im
peachment of Mr Burden ; it is an explana
tion. Mr, Dostee, It is evidently brought here
to contradict and invalidate the testimony of
Mr Burden. There can be no other object
The Judge Advocate, I can not take the
opinion of Judge Olin without the privilege
of looking at the foundation for that opinion,
and the question is directed but to that ob
ject The Commission overruled the objection.
Witness. Yes, undoubtedly it would. Mr.
Burden is a man of wealth, high social posi
tion, and many friends, and he usually speaks
his mind freely.
Mr. Norton's reputation, I believe, was
very questionable before he had any contro
versy or connection with Mr. Burden. Mr.
Norton is not considered one of the leading
lawyers of Troy, and is not classed among
lawyers of any considerable attainments, as
far as I know. He is, I understand, an in
genious and excellent raechauic, and is prob
ably very efficient in oases of the description
in which he is usually era ployed.
Mr Swing, by the consent of the Judge
Advocate, presented the following agreement
entered into between him and the Judge
Advocate :
" It is admitted by the prosecution that
John F. Watson, John R. Richardson, and
Thomas B. Smith, loyal citizens, will testify
that they are acquainted with the reputation
of Daniel J.'^Thomas where he lives, and
that it is bad; and that, from their knowl
edge of it, they would not believe him on
oath. And, further, that John R. Richard
son above named will testify that Daniel J.
Thoraas (the witness for the prosecution)
made the statement on the 1st of Jime (the
National Fast Day,) as sworn to by William
J. Watson before the Court this day. And
the prosecution agree that this statement be
put upon record, and received and weighed
by the Court as though said witnesses had
actually so testified before it"

218

THE CONSPIRACY TRIAL.

TESTIMONY IN REBUTTAL

John F. Hardy.
Mir the Prosecution, — June 8.
I live about two and a half or three miles
from Dr. Mudd, the prisoner at the bar On
Saturday evening, the day after the assassin
ation, just before sundown, I saw Dr Mudd
within a few hundred yards of my house.
He said that there was terrible news ; that
the President and Mr. Seward and his son
had been assassinated the evening before.
Something was said in that connection about
Boyle (the man who is said to have killed
Captain Watkins) assassinating Mr. Seward.
I remember that Booth's name was men
tioned in the same connection, and I asked
him if it was the man who had been down
there, and was represented as Booth. His
reply was that he did not know whether it
was that man or some of his brothers; he
understood that he had some brothers. That
ended the conversation, except that he said
it was one of the most terrible calamities that
could have befallen the country at this time,
Q. Did you say that it was understood or
said that Booth was the assassin of the
President? A. There was sorae such reraark as that
made, but I do not exactly remeraber the
remark. He said nothing to me in that conversa
tion about two strangers having called at his
house, and remaining there all day.
When I asked if it was Booth that had
been down there, I referred to the stranger
thalt I had seen at church some tirae before
last Christmas, perhaps in November, whose
name I was told was Booth. I saw him
outside the church; I do not know whether
he went into church. I saw him at the same
place sorae tirae afterward, and asked if it
was the same man, and the answer was
"Yes." I do not remeraber whether Dr.
Mudd was there on either occasion.
Cross-examined by Me. Swing.
I do not think I asked Dr. Mudd what
was the news; he told me there was bad
news in the country. He said that he had
been to Bryantown and got the news there,
I had not heard a word of it before. Dr,
Mudd seemed to be in earnest when he
spoke of this being a terrible calamity, and
I do honestly think he felt the sorrow
he expressed. The conversation took place
about two hundred yards from my door, and
my house is two and a half miles walking
distance, or three miles horseback, frora Dr
Mudd's. Dr. Mudd came to see me about
some rail lumber, about which I had spoken
to him some time early in the winter; they

were some chestnut-trees, which Dr. Mudd
had ordered me to fell and cut up into rails
for him.
I can not recall the dates on which I saw
Booth in the county. I do not remember
any dates at all. I think the two visits were
about a month apart, perhaps a little more
or less, and the first visit I think must have
been sorae time in November. It strikes me
that Booth's visits were before Christmas, I
saw him twice on his second visit; on Sun
day at church, and on Monday evening I
met him riding by himself on the road lead
ing straight to Horsehead,
When Dr, Mudd raentioned the news he
had got at Bryantown, he seemed to be
somewhat excited, but not more so than the
people of the county generally when they
first heard it When I flrst heard it, I could
hardly believe it I could hardly express my
feelings when I heard it ; I felt very singular.
He seemed to feel sincerely sorry. I do not
think he staid ten minutes.
From the position in which we were, I
could not notice whether any one rode with
him along the main road; there was a
bunch of pines on an elevated spot, just
above where we were standing, from which
the road goes, and then makes a turn, so that
I could not see. I heard of no one being
with him.
I know where Esquire George Gardiner
lives very well ; he is the gentleman that is
said to have sold a horse to Booth. It is
the nearer road from Bryantown 'to Esquire
Gardiner's to go by Dr Mudd's house, which
is a little off the main road, than to go by
the main road.
By Assistant Judge Advocate Bingham.
Dr. Mudd did not tell me how or from
whom he had obtained the information that
the President had been assassinated the
evening before; he simply said he had heard
it at Bryantown. Francis R. Farrell.
For the Prosecution, — June 8.
I live near Bryantown, and am very well
acquainted with Dr. Sarauel A. Mudd. He
came to my house on Easter Saturday .even
ing last, the day following the assassination
of the President, as near as I can judge, be
tween 4 and 5 o'clock. My house is about
midway between Dr. Mudd's and Bryantown ;
he came from the road leading to Bryantown,
and turned into the road that leads to my
house. I do not know whether he was
coming from Bryantown, and did not learn
it from his conversation.

TESTIMONY IN REBUTTAL.

219

Q. While he was at your house, was the
assassination of the President a subject of
conversation between him and yourself?
A. Yes, sir, he told' it there.
Mr. Ewing. I object
The Judge Advocate. The gentleman
objects to our giving the statements of Dr.
Mudd in evidence, I suppose.
Mr, Swing. I object to it on the ground
that it is not rebutting evidence.
The Judge Advocate. I could offer it on
another and distinct ground; that it is, so far
as we understand it, a confession on the part
of the prisoner — which is at all tiraes com
petent evidence — and that it has come to our
knowledge since the commencement of this
trial, and since the close of our testimony
on this point On that ground alone, I-think
the Court, in the exercise of a sound dis
cretion, would allow it to be introduced ; but
I think also it is strictly rebutting testimony
offered for the defense.
Mr, Swing. I will state to the Court, that,
if this testimony is admitted, it will be indis
pensable to the rights of the accused to have
one or more witnesses frora that neighbor
hood who have not already been subpenaed.
The CommivSsion overruled the objection.
Witness, Mr, Hardy and myself were in
the house when Dr, Mudd came there, and
Mr Hardy went out and had some talk with
the Doctor; I do not know what Directly
after he went out, he called out to me that
the President was assassinated, and also Sew
ard and his son, I think. Then I called out
to where Dr. Mudd and Mr. Hardy were, and
asked if it was so; I understood the Doctor
to say it was.
7 asked the question who assassinated the
President, and the Doctor replied and said,
" A man by the name of Booth." Mr. Hardy
then asked him if it was the Booth that was
down there last fall The Doctor said that
he did not know whether it was or not; that
there were three or four men of the name
of Booth, and he did not know whether it
was that one or not; he said that if it was
that one, he knew him. That was all he
said about it, excepting that he said he
was very sorry that this thing had occurred —
very sorry.
He did not give any particulars ef the
assassination, and made no allusion to two
raen having been at his house that morning
and during the day. I don't think he staid
over fifteen minutes. I can not say which
way he turned when he got on to the main
road after he left ; neither did I see from
which wav he came when he turned into
the lane leading to my house.
Cross-examined by Me. Ewing.
It was Mr John F. Hardy that was in my
house when Dr Mudd came. Dr Mudd
said that he thought at this tirae that the,
killing of the President was the worst thing

that could have happened. That was the
only reason he gave why he was sorry, ac
cording to my recollection. He said it would
make it a great deal worse for the country ;
I am not certain, but I think he said it
would be a great deal worse than while the
war was going on. From his appearance, I
think he was entirely in earnest in express
ing his sorrow for the crime.
I do not know whether any one was with
Dr. Mudd on the main road; I can not see
any part of it from my house, but there
was no one with him in the road lead
ing down to ray house, after he left the main
road. Dr. Mudd came to see Mr Hardy about
getting some rail timber, so he said; but
he did not get any; Mr. Hardy had let Mr.
Sylvester Mudd have the timber, I can not
be sure about the time when Dr Mudd came
therej it was cloudy and I could not see the
sun ; it might have been as late as 5 o'clock ;
it seemed a short tirae after he left till it
was dark, not more than a couple of hours,
any how. Jacob Shavor.
For the Prosecution, — June 12.
Since the summer of 1858, I have known
Marcus P. Norton quite intimately. We
have both lived in Troy. He has been em
ployed by the firm of Charles Eddy & Co.,
of which I am a member, for six years, as
patent lawyer. He has had, and is still
getting, practice in Troy. I know that his
reputation, as a man of integrity and truth,
is good there; and from my knowledge of
his reputation, his conduct, and character, I
would fully believe hira under oath. In the
early part of 1863, an attempt was made to
impeach Mr, Norton's credibility as a wit
ness, but it was unsuccessful, and it was so
regarded by the public and by myself
Cross-examined by Me. Dostee.
Mr, Norton's reputation for veracity among
the business men of Troy generally is good.
I do know that an unsuccessful attempt to
impeach him was made; but I do not know
that eighty men in Troy swore that he could
not be believed ; others in Troy know that,
as you yourself know.
'We employed Mr. Norton in the Stanley
case, and in a number of others; we have
more or less every year. In an individual
case of my own, I employed another lawyer,
and Mr Norton was a witness. It was an
important case, and it was in this case that
an attempt was made to impeach Mr. Nor
ton's testimony.
Q. And if this man's testimony had been
successfully impeached, you would have lost
the case, would you not ?
Assistant Judge Advocate Bingham ob
jected to the question, and it was waived.

220

THE CONSPIRACY TRIAL.

Willis Hamiston.
For ihe Prosecution, — June 12.
I reside in Troy, and have known Marcus
P. Norton for nine or ten years, intimately
for six. His reputation for truth and integ
rity, as far as my knowledge extends, is good,
and I would believe him under oath or not
He was engaged in two patent cases for me,
and is extensively employed in patent cases
in the United States Courts.
Cross-examined by Me. Doster.
Mr. Norton is not employed as a witness
in my individual case ; he is my lawyer.
There is considerable money involved in it
Hon. Horatio Kino.
For ihe Prosecution, — June 12.
I reside in Washington City, and have
been an Assistant Postmaster-General and
Postmaster-General. While living here, I
have made the acquaintance of Marcus P.
Norton, of Troy; I have known him quite
intimately for eight or ten years. Before I
left the Department I saw him very fre
quently, once or twice a year, perhaps oft-
ener; but since I left the department 1 have
had business with him, and have seen him
oftener, and known more of him, than be
fore. I have always regarded him as scru
pulously honest and correct So far as his
business with me is concerned, I never dealt
with a more truthful man, or one more par
ticular to keep his engagements; and frora
my knowledge of him and his character, I
would most unhesitatingly and fully believe
him under oath.
Cross-examined by Mr. Doster.
I feave never lived in Troy, and do not
know Mr. Norton's reputation there. I know
nothing of his reputation for veracity except
as I came in contact with him here. My
business with him was in reference to patent
post-rating and canceling stamps, I know
nothing of him beyond that here, but I knew
him quite intimately. I never heard any
one here speak otherwise than favorably of
him. I never heard that his character for
veracity was impeached until the present
time. By the Judge Advocate.
I saw Mr. Norton frequently in March
last; I used to meet him nearly every day
while he was here last winter
Q. State whether or not, in any of those
conversations, he mentioned to you the sin
gular manner in which some person had
called at his room, asking for Booth.
Mr. Dostbe. I object to that question,
because it is not material to the point in
issue. Besides, it has not been brought out
on the cross-examination.
The Judge Advocate. It is entirely com

petent for me to corroborate the statement
which Mr Norton made before the assas
sination of the President, and before there
had arisen any possible motive for the fabri
cation of this testimony, to show that that
statement was substantially the same, as far
as it went, as that which he has now made
before the Court in regard to the call the
prisoner, Mudd, made at his room, asking
for Booth. I think it is competent to sus
tain him, assisted as he has been by testi
mony for the defense.
The Commission overruled the objection.
Witness. I recollect perfectly that he
mentioned at the tirae that sorae person had
corae into the room very abruptly, so much
so as to alarm his sister-in-law, who was in
an adjoining room; I do not remember for
whom he said the person inquired. I think
he told me this some time in March, but I
can not state positively, nor can I state Ore-
cisely when this entrance was made.
By Mr, Doster.
Mr Norton did not, that I remember, men
tion his having overheard a conversation
between Booth and Atzerodt while he was
there; he first alluded to it in a letter he
wrote to me on the 15tli of May.
By Assistant Judge Advocate Burnett.
Q, [Submitting to the witness a letter.j Is
that the letter to which you refer ?
A. It is. It was received by me, I pre-
surae, on the 17th of May. It bears my in
dorsement The letter is dated Troy, New
York, May 15, 1865, addressed to me, and
signed " Marcus P. Norton."
Mr. Doster. I object to the reading of
the letter.
Assistant Judge Advocate Burnett. [To
the witness,] Read the passage of it which
relates to the matter of which you are now
speaking. Witness, It is: "I believe Johnson was
¦poisoned on the evening of March 3d, or the
morning of March 4th, last I know of
¦some things which too'ii place at the Nar
tional Hotel last winter, between Booth and
strangers to me, which, since the death of
our good President, have thrown me into
alarm and sugpicion, and about which I will
talk with you when I see you."
By Mr. Doster.
I think that is the first intimation I had
of it; I do not reraember Mr Norton's men
tioning that conversation to me before. I
met him nearly every day last winter.
By Me. Ewing.
Mr. Norton was here at the inauguration ;
I procured tickets for him and his friends
to go into the Capitol, and my impression
is that he did not leave the city until sev
eral days afterward. I know that I saw him
after the inauguration, because he spoke of

TESTIMONY CONCERNING MICHAEL 0 LAUGHLIN.

221

reeling grateful to me for having procured
the tickets for him. I should say it was
about the time of the inauguration, though
1 have no means of fixing the date, that Mr
Norton mentioned to rae the fact of a per
son entering his room. It was the abrupt
manner of the person that excited his sus
picions, and it alarmed his sister very much,
I think he said she was unwilling to remain
in the room alone after that
I do not remember his stating the time, but
I think the circumstance occurred just about
at the tirae he told me, because I was in free
intercourse with him nearly every day while
he was here. I do not remember that he
gave me any description of the man, or that
he mentioned his inquiring after anybody ; I
know he told me that he followed the man.
He e.xpected the man to go up stairs, but in
stead of that he went down stairs, and he fol
lowed him; he did not say how far, whether
down to the office or not I do not remeraber
whether Mr. Norton spoke of having any
conversation with the raan, but ray impres
sion is that he said the man made some ex
cuse for his abrupt entrance.
William Wheelee.
For the Prosecution. — June 9.
By the Judge Advocate.
I have known Marcus P. Norton intimately
for twelve or fifteen years; I knew him first
at school in Vermont, and subsequently at
Troy, New York. From my long personal
acquaintance with him, I am enabled to state

that his reputation as a man of truth and in
tegrity is good, and from this knowledge of
his character I would have no hesitation in
believing him under oath.
Cross-examined by Mr. Doster.
I know by rumor only of one or two cases
of attempted impeachment of Mr, Norton,
but they were failures, Mr, Norton has a
large business at Troy, and is employed by
first-class houses.
Silas H. Hodges.
For the Prosecution, — June 9.
I reside in Washington, and hold the ap
pointment of examiner-in-chief in the Patent
Office. I resided for twenty years at Rutland,
Vt I have known Marcus P. Norton for at
least eleven years. Some years ago Mr. Nor
ton moved to Troy, and I do not know how
he stands there so well as I do at Rutland.
Until within the last two or three years I
never heard any thing against his reputation,
and what I have heard has grown out of liti
gations in which he has been engaged. Out
side of these litigations, I never heard his
veracity questioned.
Cross-examined by Mr, Doster, -
I do not know that I can recall any inci
dents in which I have heard any person speak
of Mr Marcus Norton as a man distinguished
for veracity. It is about five years since I
left Rutland, and I have known him per
sonally evier since.

TESTIMONY CONCERNING MICHAEL O'LAUGHLIN.

William Wallace.
For the Prosecution. — May 9.
On the 17th of April, I arrested the pris
oner, O'Laughlin, at the house of a family
named Bailey, on High Street, Baltimore,
TIms was not his boarding-house, I asked
him why he was there instead of at his board
ing-house; he said that when he arrived in
town on Saturday he was told that the officers
had been looking for him. and that he went
away to a friend of his on Saturday and Sun
day night When he wasarrested, he seemed
to understand what it was for, and did not
ask any questions about it
Cross-examined by Mr. Cox
Q. Did the brother-in-law of the prisoner
send for you or go for you to arrest him ?

Assistant Judge Advocate Bingham ob
jected to the question. The brother-in-law
is not the prisoner. The proposition is to
show a declaration of the prisoner on his
own motion, and at another time and place;
it is the declaration of a third person, and I
object '
- Mr Cox, The object is to show that the
prisoner voluntary surrendered himself by
sending for the officer. The evidence offered
on the part of the prosecution was designed,
to show that O'Laughlin was avoiding the
arrest In cross-examination, I desire to show
that the arrest was raade at the instance of
the brother-in-law; and I propose to follow
that hereafter, by proof that the prisoner
hiraself sent his brother-in-law to coramuni-
cate his whereabouts to the officer. I think
that is legitimate on cross-examination.

222

THE CONSPIRACY TRIAL.

Assistant Judge Advocate Bingham. It is
not cross-examination; it is new matter al
together. We have not offered any evidence
of what the prisoner said to his brother-in-
law; this witness's testimony was as to what
the prisoner said to him.
Mr Cox. It is not the declaration of
a fact that I offer, but of an act done by
the brother-in-law, on which the officer
acted. The Comraission overruled the objection.
Witness, I am well acquainted with Mr,
Maulsby. He was recommended to me on
Sunday evening as a good Union man, one in
whom I could put implicit confidence. He
knew I was looking for O'Laughlin, I told
him I wished him to assist me in getting him.
He said he would do all he could to assist me.
On Monday morning he came and told me
that, if I would go with hira, he thought he
could find O'Laughlin, and I went with him
to the house where we found him,
O'Laughlin, I think, said that when he got
to his brbther-in-law's house, on Saturday
afternoon, he heard that the detectives had
been there. He said he knew nothing of
the assassination whatever, and could account
for his whereabouts during all the time of his
stay in Washington by the parties who were
with hira. Marshal James L, McPhail.
For the Prosecution. — May 22.
Michael O'Laughlin, the prisoner, came
into our lines about the time of the battles
of Antietam and South Mountain. He came
in at Martinsburg, I think, about September,
1863, He stated to me that he had taken
the oath of allegiance at Martinsburg, I
found in the records of my office, this morn
ing, the oath of allegiance of one Michael
O'Laughlin, dated Baltimore, June 16, 1863,
and signed Michael O'Laughlin, and is, I be
lieve, in the handwriting of the prisoner I
have seen a great deal of his handwriting
within the last two or three weeks, and have
no doubt the signature is his.
When O'Laughlin was first brought to my
office, he stated that he had not reported; he
afterward sent for me to correct that error,
and to say that he had reported at Martins
burg when he came into our lines, and had
there taken the oath of allegiance.
By ihe Court.
I, only know of O'Laughlin being in 'the
rebel service from his own declarations. Mr,
O'Laughlin's family have resided in Balti-
raore as long as I can reraember, I have
known them, I suppose, for thirty years.
Mrs, Mary Van Tine.
For the Prosecution. — May 15.
I reside at No. 420 D Street, in this city,
»nd keep rooms to rent I see two gentle

men here [pointing to the accused, Michael
O'Laughlin and Samuel Arnold] who had
rooms at my house, I am not positive, but
I think it was on the 10th of February last
they came, John Wilkes Booth came very
often to see the prisoners, O'Laughlin and
Arnold, but did not, as a general thing, re
main very long, I was told by Arnold, when
I inquired, that the gentleman's name was
John Wilkes Booth, Sometimes Booth would'
call when they were out; sometimes he called
two or three times before they returned. He
generally appeared very anxious for their re
turn. Sometimes, when he found them out,
he requested, that if they returned before he
called again, that they would come to the
stable. Or he sometimes left a note, going
into their room to write it Booth, who fre
quently came in a carriage, would sometiraes
inquire for one, sometimes the other, but
I think he more frequently inquired for
O'Laughlin, The only arms I ever saw in
their rooms was a pistol; this I saw only
once. [Photograph of Booth exhibited to the witness,]
I recognize that as a likeness of Booth, but
I should not call it a good one, I think him
a better looking man than this is. The last
time Booth played here, about the 18th or
20th of March last, when he played Pescara,
I expressed a desire to see him, and Mr.
O'Laughlin gave me complimentary tickets.
A man used sometimes to call to see them,
and I think he passed one night with them,
by his leaving the room very early one morn
ing, I never heard his name. He was not
what you would call a gentleman in appear
ance, but a very respectable-looking me'chanic.
His skin was hardened like that of a man
who had been exposed to the weather, and
he had sandy whiskers, I do not see him
among the prisoners,
Arnold and O'Laughlin said they were in
the oil business, but they did not say that
they were connected with Booth in it Let
ters occasionally came for them, but not a
great many. The letters were sometimes ad
dressed to one, sometimes to the other, Ar
nold and O'Laughlin left my house, I think,
on the Monday following the Saturday on
which Booth played at the theater; about
the 20th of March.
Cross-examined by Mr. Cox
I think these gentlemen had been at my
house two or three weeks when they said
they were in the oil business. When they
left, I understood they were going to Pennsyl
vania. Nothing was said by them at any
time about having abandoned the oil busi
ness. They did not stay a great deal in their
roora, and they were sometimes out all night
I can not say whether Mr Booth's visits
were more frequent during February or
March. He was a constant visitor. I never
heard any of their conversations.

TESTIMONY CONCERNING MICHAEL O'LAUQHLIN.

223

Billy Williams (colored,)
For the Prosecution, — May 15.
I know the prisoner, Mr O'Laughlin, and
I know Mr. Arnold by sight
In March last I was going by Barnum's
Hotel, when Mr J. Wilkes Booth, the actor,
came down the steps and asked me if I would
take two letters for him. He told me there
was one for O'Laughlin, and the other he
said I was to take to the number that was on
it. He did not tell me who it was for. There
was a colored fellow with me, and I asked
him to look at it and see what it was, as I
could not read writing. He told me one was
for Mr, O'Laughlin, and the other was for Ar
nold, I took one to Mr O'Laughlin at the
Baltimore Theater, and one I carried to Mr
Arnold, As I was in a hurry, I gave it to a
lady who was at the door, and she said she
would send it up to him, I saw O'Laughlin
at the theater, and gave him his letter there,
I said, "Mr O'Laughlin, here is a letter Mr
Booth gave to me," and I handed it to him,
Mr. Cox, I must object to the whole of
this evidence of the delivery of this note to
O'Laughlin, and I desire, if the objection is
sustained, that it be struck out of. the record.
The Judge Advocate. If the Court please,
it is simply going to establish the intimacy
of these raen, their close personal relations
with each other, as evidenced by their cor
respondence; and I think, in that point of
view, it is clearly competent We have pre
sented them as visiting each other constantly.
Now we are following them to Baltimore, and
showing them as corresponding with each
other constantly. Both facts go to establish
an intihiacy which is ih accordance with the
theory of the prosecution, which is, that they
are co-conspirators. We do not offer the con
tents of the letter; simply the fact of their
corresponding with each other
Mr Cox, I object to any evidence of the
acts of Booth hiraself. The act of sending
a note to an individual, no matter what may
be the contents of that note, would be no
evidence against that individual, unless the
contents were accepted and acted upon by
him. The mere fact of intimacy alone is an
innocent fact on the part of the accused, and
therefore is not evidence, I think, of a con
spiracy, I therefore object to it in the first
place, as an act of Booth to which the de
fendant is not a party at all. He could not
help receiving a letter from Booth. Jhe act
of receiving a letter was an entirely innocent
one, I object, furtherraore, that even if it
tends to show intimacy, it does not tend to
prove the guilt of the party of the charge
now made against him.
The Court overruled the objection.
Cross-examined by Me. Cox.
I think it was in March that I took the
letters, because I heard Tom Johnson say it
was March. I never took much notice of

the months. It might have been the middle
of March or toward the end, Mr O'Laugh
lin's letter I took round to the Holliday
Street Theater; it was in the afternoon, and
I found hira in the dress-circlo. I know Mr.
O'Laughlin right sraart
Cross-examined by Mr, Swing,
When Mr. Booth gave me the letters, he
said that one was to go up to Fayette Street,
above Hart, and I asked a lady at the door,
and she read the direction to me, 1 asked
Mr Booth how his mother was, and he said
very well; and he said he was going away
to New York at half-past 3 o'clock.
John Hapman.
For the Prosecution. — May 18.
[Submitting to the witness a telegraphic dispatch,]
I have seen that dispatch before. It reads ;
Washington, March 13, 1854.
To M. O'Laughlin, Esq.. No, 57 North Exeter
Street, Baltimore, Md,
Don't fear to neglect your business. You
had better come at once,
[Signed] J, BOOTH.
[The original of the foregoing dispatch was offered in evi
dence,] This dispatch was sent by telegraph from
this city to O'Laughlin, March 13, 18R5, We
used the old printed forms of the year before,
which accounts for the date being 1864, I
knew J, Wilkes Booth, and saw hira write
that message. Cross-examined by Mr, Cox.
Q, Can you say whether this is a question
or a command, "Don't you fear to neglect
your business ? "
Assistant Judge Advocate Bingham ob
jected to the question. The writing must be
its own interpreter, ^
The Commission sustained the objection.
Edward C. Stewart.
For the Prosecution. — May 18.
I ara a telegraph operator at the Metro
politan Hotel in this city,
[A telegraphic dispatch was landed to the witness,]
I sent this dispatch myself over the wires
to Baltimore; it is: Washtnqton, March 27, 186-1.
To M. O Laughlin, Esq., 57 North Exeter
Street, Baltimore, Md.
Get word to Sam, Corae on, with or with
out him, Wednesday morning. We sell that
day sure. Don't fail,
J. WILKES BOOTH.
[The dispatch was offered in evidence.]
I did not know the man who gave it to
me; he wrote it and asked me to send it I
think I should know him if I were to sef
his photograph.

224

THE CONSPIRACY TRIAL.

[The photograph of Booth shown to the witness,]
That is the gentleman who sent it The
true date of the telegram is March 27, 1865,
not 1864, Cross-examined by Mr. Cox
This paper does not show that the dis
patch was sent last March, it is dated 1864,
but that was because we used last year's
blanks, I remember sending this very mes
sage this year; it was given to me by the
gentleraan whose photograph has been shown
to me. By the Court.
I have been an operator at the Metropolitan
Hotel about ten months, I was not there in
March, 1864. Samuel Stebbtt.
For the Prosecution, — May 15.
I have known the prisoner, Michael O'
Laughlin, frora his youth. About the lstr,of
April last, I saw hira in this city, conversing
with John Wilkes Booth, They were con
ferring together in a confidential manner on
the stoop of a house, on the right-hand side
of the avenue going toward the Treasury
Department; I do not know what house it
was. There were three of thera in company;
Booth appeared to be the speaker of the
fiarty, and the third person was an attentive
istener, I addressed O'Laughlin first, having
known hira more familiarly than I did Booth,
O'Laughlin called rae to one side, and told
rae that Booth was busily engaged with his
friend, or was talking privately. They were
conversing in a low tone. The third party,
as near as I reraember, had curly hair; he
had on a slouch hat, and seemed to be in a
stooping position, as though talking to Booth
in a low tone, or attentively listening to
Booth's conversation, [Looking at the pris
oners,] I can not swear that the raan is
here. Cross-examined by Mr. Cox.
The house at which I saw Booth and
O'Laughlin conversing was, I believe, on the
avenue between Ninth and Eleventh Streets:
I am not certain about the date, but I think
it was nigh on to April, When O'Laughlin
made the remark that Booth was engaged
with his friend, it is likely that I asked
O'Laughlin to ^opose to Mr, Booth to take a
drink, and O'Laughlin's reraark, that Booth
was engaged with a friend, might have been
in reply to my invitation,
Bernard T, Early.
For the Prosecution. — May 15.
I am acquainted with the prisoner, O'
Laughlin, and slightly with Mr Arnold. I
came down to this city from Baltimore on the
Thursday before the assassination — the night
of the illumination — with Mr. O'Laughlin ;

there were four of us in company. Mr Ar
nold was not, to my knowledge, on the cars.
When we arrived in this city, O'Laughlin
asked me to walk with hira as far as the Na
tional Hotel. He did not take a room there.
I do not know that he made inquiries for
Booth at the desk, nor did I see him associ
ating with Booth, We stopped that night at
the Metropolitan Hotel, On Friday I was
with O'Laughlin the greater part of the day.
When we got up, we went down and took
breakfast at Welch's (Welcker's) on the ave
nue. After that, all four of us came up the
avenue in company. When passing the Na
tional Hotel, about 9 o'clock, I think, I
stopped to go back to the water-closet When
I came out, Mr, Henderson, one of the com
pany, was sitting down. As I was going out,
he called me back, and told rae to wait for
O'Laughlin, who was gone up stairs to see
Booth, We waited, I judge, about three-
quarters of an hour, but as he did not come
down, we went out without hira. In about
an hour after that, when we were at a res
taurant on the avenue, between Third and
Foui'-and-a-half Streets, O'Laughlin came in.
O'Laughlin, Henderson, and rayself had
supper at Welch's, and the last time I saw
O'Laughlin that night was at a restaurant,
going out with Mr. Fuller It was pretty
late, but whether it was before or after the
assassination I can not say. O'Laughlin
had been there for supper. We had been
drinking considerably. The name of the
present proprietor of the restaurant, I believe,
is Liohau, I think, though I would not be
certain, that O'Laughlin remained there until
after the assassination. However, I distinctly
remember seeing him go out in company
with Mr Fuller Mr Fuller used to be
employed by O'Laughlin's brother in this
city, O'Laughlin returned to Baltimore with me
next day, Saturday, by the 3 or half-past 3
o'clock afternoon train. After we arrived in
Baltimore, on going down to his house, we
met his brother-in-law on the way. He
told Mr. O'Laughlin that there had been
parties there that morning looking for him.
O'Laughlin went into the house, and asked
rae if I would remain there for awhile; after
that he invited me to come in, I went in,
and sat in the parlor, while he went up stairs
to see bis mother ; he remained a few min
utes, and then came down and said he was
not going to stay home that night I can not
say that he appeared to manifest any excite
ment, except when he heard that there were
parties after him because of his known inti
macy vvitli Booth, having been acquainted
with him, and in the habit of going with him,
and from being supposed to be connected
with him in the oil business.
Cross-examined by Mr. Cox
I came down to Washington with Mr.
Henderson, who is, I believe, a Lieutenant in

TESTIMONY CONCERNING MICHAEL 0 LAUGHLIN.

225

the United States navy, Edward Murphy,
O'Laughlin, and myself I was invited down
by Mr, Henderson. He came to the store
after me that afternoon, and asked me to
come down, with the intention of having a
good time, and to see the illumination, 1
heard Mr, Murphy say that he invited them,
Mr. O'Laughlin came to the store with Mr,
Henderson, and Henderson invited me to go
along with thera. We slept at the Metro
politan Hotel on Thursday night Hender
son, Smith, and myself slept together in a
three-bedded room, and O'Laughlin, whose
name came last as we signed our names,
had a room to himself- It was on the same
floor as that on which we slept, and the
aecond or third door from our room. It was
about 2 o'clock on Friday morning when we
went to bed. In the morning 1 rapped at
O'Laughlin's door; I peeped in at the key
hole, and saw that he was in the room and
asleep, and I woke him up,
1 do not know for what purpose O'Laugh
lin called to see Booth. After waiting. I sup
pose, three-quarters of an hour at the National
Hotel, during which time we had sorae cards
written b3' a card-writer, we sent up sorae
oards to Mr, Booth's room for O'Laughlin,
that he might take it as a hint, and come
down, for we were tired of waiting. The
cards were returned with the message that
there was nobody in the room. We left the
cards with the clerk at the desk. O'Laugh
lin took a stroll round the city with us, and
then four of us had dinner at Welch's; I do
not know the hour; it was between 12 and 2,
After dinner we took another stroll. Whether
O'Laughlin was with me or not I can not
say. We had been drinking pretty freely,
all of us. Between 4 and 5 O'Laughlin went
with me to a friend's house to pay a visit to
a lad.y, I was not well acquainted with the
etreetis, and I asked him to go with me to
flnd the place. The lady invited us to din
ner. She took our hats, and we had to stay.
We had a second dinner there, and left, I
suppose, about 6 o'clock. We returned to
gether to the Lichau House, and were found
there by Murphy and Henderson. We staid
there until about 7 or 8, and then went to
Welch's and had supper We were there
when the procession of the Navy Yard men
passed up the avenue. That was perhaps
between 8 and 9 o'clock. After that I went
back to the Lichau House, and sat there until
I went to bed. O'Laughlin was there the
best part of the evening. I was there when
I heard of the assassination. It was, I be
lieve, about 10 o'clock when I saw O'Laugh
lin go out with Mr. Fuller, but I could not
say whether I saw hira there when the news
came or not Mr Henderson was in the bar
room, I believe, but Mr. Murphy had left us
on the avenue previous to that
When we came down on Thursday, it was
our intention to go back on Friday ; at least
I tinderstood so. I guess it was the liquor
15

we had aboard that kept us. We did start
to retilrn by the 11 o clock Saturday morning
train. We went as far as the depot, and Mr.
Henderson got the tickets. O'Laughlin
wanted to go, and I said to Mr Henderson,
"If you press Mike, he will stay until the
afternoon." So we all concluded to stay
until the next train, at 3 o'clock in the after
noon. Q- During this visit did you see any thing
in Mr O'Laughlin that betrayed a knowledge
of any thing desperate which was to take
place ?
Assistant Judge Advocate Bingham object
ing to the question, it was varied as fol
lows :
Q. During this visit, state what his conduct
was. A. His conduct was the same as I usually
saw him — jovial -and jolly as any of the rest
of the crowd.
Q, In good spirits 1
A, Yes, sir; he was particularly so coming
down in the cars with us that Thursday even
ing Q, No nervousness?
A, No, sir.
When O'Laughlin got to Baltimore and
went to his house, he went up stairs, I sup
pose, to see his mother. On returning he said
he would net stay at horae that night The
remark he made was, that he would not like
to be arrested in the house; that it would be
the death of his mother, I told O'Laughlin
that I thought it best for hira to stay at home
until the parties who were looking for him
came again ; but he said no, it would be the
death of his mother if he was taken in the
house. Re-examined by the Judge Advocate.
We, all four of us, returned to the Metro
politan Hotel between 1 and 2 o'clock, I sup
pose, when we went to bed ; that is, on Friday
raorning. After having supper on the Thurs
day evening, we went to see the illumination,
and walked a considerable distance up the
avenue. After returning, we went, at the
invitation of Mr. Henderson, to the Canter
bury Music Hall, O'Laughlin was not sep
arated frora us during that night
James B. Henderson.
For the Prosecution, — May 15.
I ara acquainted with the prisoner, Mr.
O'Laughlin, I saw hira in this city on
Thursday and Friday, the 13th and 14th of
April, I do not know whether he visited J.
Wilkes Booth on either of those days, but he
told me on Friday that he was to see him
that morning. Cross-examined by Mr. Cox.
He only told me he was to see Booth, bnt
did not say what for. I can not tell exactly
whether he said he had an engagement

226

THE CONSPIRACY TRIAL.

David Stanton.
For the Prosecution. — May 16.
I have seen that man with the black
moustache before, [pointing to the accused,
Michael O'Laughlin.] I saw him on the
13tli of April, the night before the assassina
tion, at the house of the Secretary of War,
I saw him pass in the door, and take a po
sition on one side of the hall. I asked him
what his business was, and he asked me
where the Secretary was, and I told him he
was standing on the steps. He said nothing
further, but remained there some minutes,
until finally I requested him to go out He
followed me out as far as the gate on the
left-hand side of the house, and that was
the last I saw of him. He did not ask for
any one else besides the Secretary, nor did
he explain why he was there. At first I
supposed he was intoxicated, but I found
out, after having some conversation with
him, that he was not
General Grant was in the parlor He
and the Secretary were being serenaded.
O'Laughlin could see General Grant frora
his position. He did not inquire for any
one but the Secretary, and after I pointed
hira out he did not go to him, and did not
tell me what his business was, I did not
see him go away from the house; there was
such a crowd there. That was, I presume,
about half-past 10 o'clock.
Cross-examined by Mr. Cox
That was the first tirae I ever saw this
man, and- I did not see him again until I
saw him on the Monitor as a prisoner, on
the day on which Booth's body was taken
away, from the vessel. I can not be sure as
to the exact tirae when I first saw the raan ;
the fireworks coramenced at about 9 o'clock,
and lasted about an hour and a half, and it
was after they were over. He was dressed
in a suit of black ; dress-coat, vest and
pants, and his hat, which was a black slouch
hat, I think, he had in his hand. The
hall was very well lit up; the parlor, where
General Grant was sitting, was also lit up,
and I was directly in front of him when I
addressed him.
He was inside of the door, about ten feet,
standing next to the library door. He was
about five feet four inches in hight When
I saw him on the Monitor he stood up, but I
had an indistinct view of him there, as it
was dark. I thought the man was intoxi
cated, from the way he came into the house.
I inquired, before I went to him, of differ
ent members of the faraily, if they knew
him. Finding they did not know hira, I
addressed hira, and requested him to go out,
which he did, going after rae. There were
a good many people about The Secretary
of War and Major Knox were on the door
steps, and this man had got behind them.
He had, I think, the same moustache and

beard that he has now ; I see no change,
with the exception of that caused by the
want of shaving.
Majoe Kilbuen Knox
For the Prosecution — May 16,
I was at the house of the Secretary of
War, in this city, on the evening of the 13th
of April last, and saw there a man whom I
recognize among the prisoners. There he is,
[pointing to the accused, Michael O'Laugh
lin,] I left the War Department at 10
o'clock, after the illumination there was
over, and walked up ta the Secretary's house.
There was a band playing at the house, and
on the steps were General Grant, Mrs. Grant,
the Secretary, General Barnes and his wife,
Mr. Knapp and his wife, Miss Lucy Stan
ton, and two or three small children. I was
standing on the upper steps, talking to Mrs.
Grant and the General, Sorae fireworks
were being set off in the square opposite,
and I stepped down a little to allow the
children to see thera. I got down on the
step, I think, next tO the last one, leaning
against the railing, and this man [O'Laugh
lin] came up to me, after I had been there
ten minutes probably, and said, " Is Stanton
in ?" Said I, " I suppose you mean the.
Secretary?" He said, "Yes," I think he
made the remark, " I ara a, lawyer in town ;
I know him very well," I was under the
impression he was under the influence of
liquor, I told him I did not think he could
see him then, and he walked to the other
side of the steps, and stood there probably
flve minutes, I still staid there, I suppose,..
for about five minutes, and he walked over
to rae and said, " Is Mr. Stanton in ?" and
then said, " Excuse rae, I thought you wer^
the officer on duty here." Said I, " There is
no officer on duty here." He then walked
on to the other side of the steps, and walked
inside of the hall, the alcove, and stood on
the inside step. I saw him standing ther^,
and I walked over to Mr. David Stanton
and said, " Do you know that man ?" He
.said he did not I said to him, " He says he
knows the Secretary very well, but he is
under the influence of liquor, and you had
better bring him out" Mr David Stantoft
walked up to him, talked to him a few mo
ments, and then took him down the steps.
He went off, and I did not notice him again.-
He did not say any thing about General
Grant By that time, I think, the General
had gone into the parlor,
I think the Secretary stood on the steps
outside, and this man stood behind the Sec
retary, and from where he stood he could
see into the parlor. On the left-hand side
of the hall, going in, is the library; on the |
other side is the parlor door. He stood on
the side next to the library, and in that posi
tion he could have looked into the parlor,
and seen who was in there, through the door

TESTIMONY CONCERNING MICHAEL o'LAUGHLIN.

227

The whole house was lighted up, and I feel
pretty certain that the prisoner, O'Laughlin,
IS the man I saw.
Cross-examined by Me, Cox
I do not recollect whether it was moon
light or dark that evening. There was a
great crowd round the Secretary's house, and
close up to the steps. I did not notice the
man until he walked up on the steps and
spoke to me, and after he went out again I
saw him no more. I did not go inside the
hall while he was there. Secretary Stanton
was on the left-hand side of the steps, talk
ing to Mrs. Grant, and the man went up on
the right-hand side past thera, and went in
and took a place on the left-hand side. He
had on a black slouch hat, a black frock-
coat, and black pants; as to his vest I can
not say. That was while the fireworks were
going on. I had never seen the raan before,
I have seen him once since in this prison; I
came here a week ago last Sunday for the
purpose of identifying him,
Mr. John C. Hatter.
For ihe Prosecution, — May 16.
1 recognize that man, sitting back there,
[pointing to the prisoner, O'Laughlin,] He
is the raan I saw at Secretary Stanton's
house at about 9 o'clock, or after, on the
night of the illumination, the 13th of April.
I was standing on the steps looking at the
illumination, and this man [O'Laughlin]
approached me, and asked me if General
Grant was in. I told him he was. He said
he wished to see him. Said I, " This is no
occasion for you to see him. If you wish
to see him, step out on the pavement, or on
the stone where the carriage stops, and you
can see hira." That was all that occurred
between us. He did not attempt to go into
the house. When he spoke to me, he left
the steps and walked away toward the tree-
box, talking as he went, but I did not under
stand what he was saying. He seemed to
reflect over something, and came back; then
he walked off, and I did not see him any
more. The house was illuminated, and it
was pretty light outside, too.
Cross-examined by Mr, Cox
I am a sergeant in the Adjutant-General's
service, at the 'War Department, on duty at

the Secretary's room. To my knowledge I
had never seen the man before that evening.
The next time I saw him was last Sunday
week, in prison, in this building, I carae
down here with Major Eckert and Major
Knox, I did not know what I was coraing
for; but when I was inside the room, and
looking round, I saw that man, and I
thought to myself, " I see the object of m.y
coming down,"
The first time I saw him it was very light,
and he had on a dark suit of clothes, with a
heavy moustache, black, and an imperial,
and the way I took so much notice of him
was, while I was speaking to him he was
standing a little lower down, and I was
looking right in his face.
He wore a dark slouch hat, a little low,
and dark dress-coat and dark pantaloons. I
should judge him to be about flve feet four
or five inches. There was a crowd about
the house, come to serenade 'the Secretary;
four or five bands were there. The Secre
tary was in the parlor with General Grant;
they had not come out then ; there was no
body on the steps but me. Both doors were
open, the front door and another door like
the front entry, and the gas was fully lit all
around.
Marcus P. Norton.
For ihe Prosecution. — June 3.
From about the 10th of .January until
about the 10th of March, I was stopping at
the National Hotel in this city. I knew J.
Wilkes Booth, having seen him several times
at the theater. I saw the prisoners, George
A, Atzerodt and Michael O'Laughlin, at the
National Hotel prior to the inauguration of
President Lincoln, in company with Booth.
I saw Atzerodt twice, and O'Laughlin four
or five times, I believe, in conversation with
him. Cross-examined by Mr. Cox
"WTien I saw O'Laughlin talking with Booth
at the National Hotel, he was in the presence
of other people, and iu the hall, but there
was no one else in company with them. I
heard no portion of the conversation. It
was during the two months I was there, but
I can not fix the precise date.
See also testimony of
Marcus P. Norton  page 177
Eaton G. Horner  " 234

228

THE CONSPIRACY TRIAL.

DEFENSE OF MICHAEL O'LAUGHLIN.

Bernard J. Early.
Recalled for the Defense. — May 25.
By Mr. Cox.
We left Baltimore on Thursday, the 13th
of April, by the half-past 3 o'clock train, and
arrived here about half-past 5, After leaving
the cars, we went along the avenue to a
restaurant kept by Lichau, I think it is
called Rullman's Hotel, We reraained there
b«ut a short time, Mr, Henderson went into
the barber's shop to gel shaved ; while he
was in there, Mr, O'Laughlin asked me to
walk down as far as the National Hotel with
him, I did so ; when there, he walked up
to the desk and inquired for some person,
and told me to wait; he would detain me
only a few minutes, I told him that I did
not like to wait; that I did not want to miss
the rest of the party. He said he would
not detain me more than ten or fifteen
, minutes, and left me standing in the front
door. He then went in, and returned again
in from three to five minutes. Henderson
had not got through with his shaving by the
time we got back. We all four then walked
up the avenue, I guess as far as Eleventh
Street; then returned, and went into Welch's
dining-saloon for supper. This saloon is
oyer Wall & Stevens', We left there about
half-past 7, and returned to Rullman's Hotel,
and proceeded frora there down as far as the
corner of Third Street, where O'Laughlin
and Murphy left Henderson and me, saying
they were going around to see Mr, Hoffman,
who was sick, and who lived on B Street
They returned in ten or fifteen minutes with
Mr, Daniel Loughran. All five of us then
started up the avenue to see the illumina
tion. About Seventh Street, one of the party
complained of having sore feet, and said he
would not go any further. Seeing a notice
of the Canterbury Music Hall perforraances,
we all went there, and got in about at the end
of the first piece. It was then getting on
for 9 o'clock. We reraained there till 10
o'clock, when we proceeded to the Metropoli
tan Hotel, and from there down to Lichau's
or Rullman's Hotel, reaching there about
halfpast 10, O'Laughlin \*as with us all
the time. We i-emained at the hotel about
an hour, I suppose. As we were there on
the steps, Mr. Grillet passed by with a lady,
and spoke to Mr O'Laughlin, We left there
with Mr. Giles, one of the men of the house,
and went down as far as Second Street I
believe Mr O'Laughlin is acquainted at the
saloons on the corner of B Street and Second.
There was a dance or some thing going ou
there. He took the lead over there and we

followed him. One of the party bought
tickets to go back into the ball. We did
not stay there more than about an hour; we
got tired of the affair and carae out We
then went up the avenue, stopped at several
places, and went into the Metropolitan Hotel,
between 1 and 2 o'clock. We went out
again for about five minutes, and returned at
about the hour of 2, when we went up stairs
to bed, Mr. O'Laughlin was with us all
that night
I do not know where Mr. Stanton's resi
dence is; but I know the situation of the
Treasury Building,
Q, Mr, Stanton's house is six squares
north of that, and one square east ; I ask
you if it is possible that Mr, O'Laughlin
could have been at Mr. Stanton's at 9
o'clock, or at any time between that and 11
o'clock. Assistant Judge Advocate Bingham ob
jected to the question, and it was waived.
Witness, On Friday night, O'LaughliH
was in Rullman's Hotel frora about supper
time until he went out with Mr, Fuller We
had supper at Welch's at about 8 o'clock,
and I suppose we staid there from about
three-quarters of an hour to an hour. From
Welch's we went to Rullman's, Whether
Mr, O'Laughlin went out with Mr. Fuller
before or after the assassination I can not
say, but I distinctly reraember his going out
witli him,
Mr, O'Laughlin had on a dahlia coat — -
something of a frock — a double-breasted vest,
and pantaloons of the same material — a
Scotch plaid, purple and green. I made
these things for him.
Cross-examined by Assistant Judge Advocate
Bingham.
On Friday evening, about 10 o'clock, I
suppose, we were all under the infiuence of
liquor. We might have drank as many
as ten times; it was mostly ale, though, that
Mr O'Laughlin and myself drank, I hardly
ever saw hira drink liquor, I was not
separated frora O'Laughlin until he went out
from Rullman's Hotel, That was about 10
o'clock, or a little after, I next saw him
again on Saturday morning, Rullman's
Hotel is between Third and Four-and-a-half
Streets, By Mr, Cox
I have very seldom, if ever, seen O'Laugh
lin drink whisky. I have never seen him
intoxicated but twice. I have known him
slightly for about four years, and intimately
for the last ten months.

DEFENSE OP MICHAEL O'lAUGHLIN.

229

Edward Murphy.
For the Defense, — May 25.
By M. Cox
I reside in Baltimore. On the 13th of
April last, in company with James B. Hen
derson, who proposed the trip, Michael
O'Laughlin, and Barney Early, I came 'to
Washington. We arrived here about 5 in
the afternoon. From the depot we went to
Rullman's, had a drink or two, and started
for the Metropolitan, We went to several
places; took supper at Welch's, somewhere
about 8 o'clock. We were there about half
an hour, and then came down to Rullman's
again. There we met, I think, John Lough
ran, and took a walk up the street to see
the illumination of the Treasury, and stopped
on the corner of Ninth Street and the avenue.
After standing debating there some time, we
went to the Canterbury Music Hall, staid
there some time, walked down to the Metro
politan Hotel, and then came back to Rull
man's. It was about a quarter to 10 when
we got into Rullman's O'Laughlin was
with us all the time. Then we went up to
Platz's and back again. That brought us
to about half-past 11 or 12. We then started
down to Riddle's, on the corner of B and
Second Street, where we staid until half-past
12 or 1 ; from there we went to Dubant's, on
the corner of Sixth and the avenue, where
we took a hack, and went to the corner of
Tenth and the avenue. There is an all-
night house there, and we went in and got
some refreshments. I suppose it was about
halfpast 1 when we were there. It was
about 2 o'clock when we got to the Metro
politan and registered our names. Before
going to bed, we went across the street to
Gilson's and got a drink. It made it about
half-past 2 when we got to bed. Michael
O'Laughlin was with us all the time from
leaving the cars until we all went to bed
except that when we first came down, while
Henderson was being shaved, O'Laughlin
and Early left us for about five minutes and
went as far as the National Hotel, They
were back before Henderson was shaved;
were not gone more than five or six minutes.
I think I know where the house of Mr,
Stanton, the Secretary of War, is, and
O'Laughlin was no nearer to it that night
than the corner of Ninth and the avenue,
I was with him all day Friday and up to
8 o'clock that night, when I went to the
Metropolitan Hotel, and did not see him
again until Saturday morning. On Saturday
I was with him from 9 o'clock in the morn
ing till we went to the depot to go to Balti
more. I did not know of the assassination
till 9 o'clock Saturday morning. I never
saw O'Laughlin in better spirits in my life
than he was during this trip. When we
started from Baltimore, it was our intention
to go up on Friday afternoon, but we staid

Henderson, who wanted to see a lady friend
of his that night, and the whole party staid
on that account I remember Mr Grillet
joined us on the steps of the Rullman Hotel
on Thursday night
Recalled for the Defense, — May 25,
By Me, Cox
I saw O'Laughlin in Baltimore on the
Sunday after the assassination, and he told
rae that the officers were in search of hira,
and that he was going to surrender himself
on the Monday following.
James B. Henderson
Recalled for the Defense, — June 12.
By Mr. Cox
I am an Ensign in the United States Navy.
I have been acquainted with the prisoner,
Michael O'Laughlin, for about six years, 1
proposed to hira that we should corae to
Washington on Thursday, the 13th of April,
and we left Baltimore at 3:30 on that after
noon, arriving in this city between 5 and 6,
I judge. On our arrival, we came up the
avenue, and stopped at the Lichau House,
or Rullman's Hotel, I went into the barber's
shop adjoining to get shaved, and O'Laugh
lin went up the street in the mean time, but
he returned before I had finished shaving,
and, with the exception of that, he was not
out of my company the whole evening until
bedtime. I went up the avenue to look at
the illumination. We did not go up as far
as Ninth Street We stopped at the corner
of Seventh, and then went back to the Can
terbury Music Hall, We reached there
about 9 o'clock; after sta.ving there perhaps
three-quarters of an hour, we returned to
Rullman's Hotel, We got there between 10
and 11, and staid about half an hour there.
I retired for the night, at the Metropolitan
Hotel, at between 1 and 2 o'clock in the
morning. The avenue was very much crowded. It
was almost impossible for a person to get
along, and we did not go further west than a
little beyond Seventh Street, on Thursday
evening; O'Laughlin was not any where in
the neighborhood of Franklin Square — Mr.
Stanton s ; he was with me all the time, except
when I was being shaved, I do not know
certainly whether he slept at the Metropolitan
that night; I saw him in his room, and was
there the next morning when they called him.
On the Friday afternoon he left rae in com
pany with Mr. Early, I think, but I met hira
again in the evening at Rullman's Hotel. He
was there with me until 10 o'clock I should
think, and then he went out with a raan
named Fuller, He was- there when the
news of the President's assassination came.
Our party had arranged to return to Balti
more on Friday morning, but I proposed to

in Washington at the solicitation of Mr them to stay until Friday evening.

230

THE CONSPIRACY TRIAL.

f Cross-examined by ihe Judge Advocate.
I do not know the name of the street on
which Mr Stanton resides, but I have been
shown the house. It was impossible for
O'Laughlin to have been there on the even
ing of Thursday, the 13th of April, for I was
with him the whole evening. There was a
good deal of free drinking that night by our
party, and it was continued until a late
hour. It would be impossible for me to say
how many drinks we had; 1 should think
not more than ten. They were mostly taken
at hotels and restaurants on the avenue. One
of the party was drunk — Mr. Early — but the
others were sober enough, I think, to be con
scious of each other's movements, or presence,
or absence.
O'Laughlin left me but for a short time
on our arrival in Washington, while I got
shaved, and told me he had been to see Booth.
That was between 5 and 6 o'clock. I knew
of his going to see Booth the next morning
at the National Hotel, and I went there to
call for him, but found he had left. On going
back to Rullman's, I found he was there,
and he said he had been to the National
Hotel, but Booth was out I do not know
of any other attempt on his part to see
Booth, nor do I know his object in seeking
that interview. By Mr. Cox
O'Laughlin did not say any thing to me
about Booth owing him money, and that he
wanted to get some from hira. He only told
me that he had been to see hira; he did not
say whether he had seen him or not; and on
Friday he said that '.e had been to see hira,
and he was not s'. nome.
By the Judge Advocate.
I had no particular reason for not return
ing to Baltimore on Friday ; I wanted to stay
a little while rayself, and asked the others
to stay. O'Laughlin himself had not spoken
of staying over. It was on the Wednesday
that we arranged to come to Washington on
the Thursday; I proposed that we should all
come down on that day. I do not remem
ber that O'Laughlin made any suggestions
about it; I think I asked him to comedown.
I had been on terras of intimate association
with him for only about a week previous to
that Daniel Loughran.
For the Defense, — May 25.
By Mr, Cox
I reside in this city. I have known the
accused, Michael O'Laughlin, for eighteen or
twenty months. On Thursday evening, the
13th of April, at about a quarter past 7, I
saw him in front of Rullman's Hotel, on
Pennsylvania Avenue, in company with Lieu
tenant Henderson, Edward Murphy, and Ber
nard Early. I did not join them then ; I went

home to supper O'Laughlin and Murphy
came to my boarding-house, and we met
Henderson and Early in frontof Adams' Ex
press Office, on Pennsylvania Avenue; that
was about 8 o'clock. After we joined them,
we went into Platz's Restaurant, and from
there to Rullman's Hotel. From Rullman's
we went up to the corner of Pennsylvania
Avenue and Ninth; it was about 9 o'clock
then, for I looked at my -watch. We then
went into the Canterbury, staid there until
10 or perhaps halfpast; from there we went
to the Metropolitan Hotel, and then to Rull
man's, reaching there probably at half-past'
10; perhaps a little earlier or later. Michael
O'Laughlin was with me from the time we
joined Henderson and Early until we went
down to Rullman's Hotel.
I do not know where Mr. Stanton's house
is, but I know where Frankhn Square is,
and I know that O'Laughlin could not have
been up there during that time. Mr. Grillet
joined us at Rullman's at about half-past 10,
and I was with them until after 12 o'clock.
O'Laughlin was there all that time.
I saw them the next evening, I judge, be
tween 7 and 8, at Rullman's Hotel; I was
there until perhaps halfpast 9. I do not
know that they went to Welcker's; 1 heard
thera speaking about going to supper, but
where they went I do not know, nor do 1
know whether O'Laughlin went to supper.
I did not miss hira from the time I went
there until about half-past 9, when I went
home, and saw him no more that night
O'Laughlin wore a plaid vest and pants; the
pants he wears now look like the ones. I
think he had on a black slouch hat
By the Court.
We occupied different seats at the Canter
bury play-house; two of us sat on one seat,
and the other two sat right behind. I saw
them there all the time, and we all left to
gether. By Mr. Cox.
O'Laughlin seemed very lively. The re
mark was made that they had come down
from Baltimore to see the illumination and
have a good time. I do not think he was in
toxicated on Tlfursday evening ; he was lively
and merry, but I can not say he was tight
or drunk. George Grillet.
For the Defense. — May 25.
By Mr. Cox.
I reside in Washington, and am solicitor
for the New York Cracker Bakery, 96 Louis
iana Avenue, I have known the accused,
Michael O'Laughlin, one or two years, I,
saw him on the steps of Rullman's Hotel,
between 10 and half-past 10, on the night of
Thursdf^y, the 13th of April, and he bowed
to me. Lieutenant Henderson and Edward
Murphy were with him, and Henry Purdy,

DEFENSE OP MICHAEL o'LAUGHLIN.

231

the superintendent of the house, was on the
^orcli, I believe. After I had escorted home
the lady that was with me, I returned to the
house and joined the party, and did not lea^ve
them until between 12 and 1 o'clock, I saw
O'Laughlin the next morning, and then not
Until 8 o'clock at night; I staid with thenl
lintil between 11 and 12, I was at the Lichau
House or Rullman's Hotel when I heard
the news of the President's assassination.
O'Laughlin was there at the time, I did not
notice how he behaved when he heard of the
assassination. He left shortly after the news
carae that the President was killed; he and
a man named Fuller left together. On that
evening 1 know he had on a Scotch plaid vest
and pants; I can not swear 'positively to the
coat, but he had a habit of wearing a sack-
coat
Henry E. Purdy.
For tlie Defense. — May 25.
By Mr. Cox
i am superintendent of Rullman's Hotel
in this city. I saw the accused, Michael
O'Laughlin, at about half-past 10 on the
night of Thursday, the 13th of April, with
George Grillet, Loughran, Murphy, and Early ;
I do not know where they came from. I was
principally in the kitchen and the dining-
room, and walking around; in the bar only
occasionally. Whenever I was in the bar
they were there, until a few minutes after 12
o'clock, when I closed up, and they went out
at the side door I am confident that O'Laugh
lin was with them when they came there at
about half-past 10; I have known him about
three months, I saw them again on Friday
at the same place,
I was standing in front of the door when
I heard of the assassination, and I went in
and told thera what I had just heard from
a cavalry sergeant; that the President had
been assassinated, and that Booth was the
one who had done it They were all stand
ing together drinking. O'Laughlin was right
at the end of the bar, and he was the One I
first spoke to when I went in.
"When I went in he seemed surprised, and
Said he had been in Booth's company very
often, and people might think he had some
thing to do with it I do not reraember when
he individually left that night, but it was after
12 when the whole party was gone. He has
staid at my house when he has come dovvn to
the city. By the Court.
¦ Sometiraes he would come down pretty
often in a week, and sometimes I would hot
see him for two weeks. On the Thursday
hiffht he had dark clothes on ; he generally
wore dark clothes. I did not take particular
notice of his dress, and can not say ivhether
it was the same as that he now wearS.

John H, Fuller.
For the Defense. — May 25
By Mr, Cox,
I am engaged in business in this city. I
have known the accused, Michael O'Laugh
lin, for twelve or fourteen years. On Friday,
the 14th of April, I saw hira at Rullman's
on the avenue between 7 and 8 o'clock, and
again between 10 and 11. He and I were
both there when the news of the President's
assassination was brought in, and we left
there together to go to the Franklin House,
where I was stopping. He staid all night
with me, and got up about 8 o'clock next
morning, and went with me to New Jersey
Avenue, and then to the Lichau House, and
there I parted with him; he joining his other
friends there. When he heard Of the Presi
dent's assassination, he did not show any
fright, nor did he say any thing about Booth ;
he said he was sorry for it; that it was aH
awful thing.
Cross-examined by Assistant Judge Advocate
Bingham.
O'Laughlin was stopping at another hotel,
but I invited hira to go with me that night;
he used to go down tliere with me at times
to stay, I do not know where he stopped on
Thursday night By Mr. Cox.
He used to reside in Washington; hlS
brother was in business here.
John R. Giles.
For the Defense. — June 3.
By Mr, Cox
I ara bar-tender at No. 456 Pennsylva
nia Avenue, late Rullman's Hotel, I have
known the accused, Michael O'Laughlin,
personally, about four months. He was at
our place oh the evening of Thursday, the
13th of April, with Barney Early, Murphy,
Lieutenant Henderson, Purdy, and several
others. He was there early in the evening,
and again about 10 o'clock, and staid till
after 11. I joined them when they went out,
and was with them until 1 o'clock. They
were there again on Friday evening, nearlj'
all the evening. The news of the assassina
tion came in, I think, between halfpast 9
and 10; and O'Laughlin was there at that
time, "He afterward v?ent out with Mr Ful
ler, The Lichau House is on Louisiana
Avenue, between Four-and-a-half and Sixth
Streets, and the, Canterbury Music Hall is
next door.
Cross-examined by Assistant Judge Advocate
Bingham.-
It nlight have been after 10 o'clock that
the liews of the President's assassinatiofl
\Vas broiight in — I can not say exactly;

232

THE CONSPIRACY TRIAL.

O'Laughlin was at our house on Friday
evening from 7 or 8 o'clock till 11. He was
out on the pavement, and in and out drink
ing, but was not away from the house.
P. H. Maulsby.
For the Defense. — May 26.
By Mr, Cox
I am a clerk with Eaton Bros. & Co., of
Baltimore, and ara brother-in-law to the
accused, Michael O'Laughlin, O'Laughlin,
I believe, came from the South to Baltimore
in August, 1862. He carae home somewhat
sick. He then went with his brother, who
was in the produce and feed business, and
reraained with hira until the fall of 1863,
His brother then sold the business, but
Micliael O'Laughlin remained here and re
ceived orders, which his brother supplied
from Baltimore, O'Laughlin was here off
and on from that period up to the 14th of
March, I knew J, Wilkes Booth intiraately, Mrs.
Booth owns the property in which the
O'Laughlin family resides, and Mrs, Booth
lived opposite for four years. The boys,
Michael and William, were schoolmates of
J. Wilkes Booth. To ray knowledge, their
intiraacy has continued for twelve years.
After leaving Washington, the home of
Michael O'Laughlin was with rae, at 57
North Exeter Street From the 18th of
March to the 13th of April he was with me,
and frora the 30th of March to the 12th of
April, I can speak positively as to his being
with me at Baltimore, I know he was at
home on the 7th of March, and remained
at horae some days, I know of his being
sent to Washington by his brother on the
13th of March, and on the 14th his brother
telegraphed him here respecting a car-load
of hay,
[A telegraphic dispatch relating to the hay was read and
put in evidence.]
He returned to Baltimore on the following
Saturday, and from that time he remained
at home till he came to Washington on the
13th of April. In February, I could not
state positively as to his V)eing at home. He
was at home on the 7th and on the Mth,
and ray impression is that he was then home
for a couple of weeks
Q, At what time did he arrive at home
after the assassination ?
A. He came up on Saturday evening; I
saw hira about 7 o'clock,
Q, Had the officers been to the house then
in search of hira ?
A. They had,
Q, Did you infornf him of that?
A. I did,
Q, Then what took place?
A. He told me that— -
Assistant Judge Advocate Bingham ob
jected to the accused giving his own declara
tions in evidence, for the reason that he had

stated yesterday, in regard to a similar ques
tion, in which he had been sustained by the
Court, that if such a rule as that were
adopted and acted upon by courts, all that
a guilty raan would have to do, after he had
comraitted a great crime, would be to pour
his statements into the ears of all honest
people that he met up to the time of his ar
rest, and then prove those statements on his
trial. The law says that he shall not do any
such thing, and I object to it on that ac
count Mr. Cox stated that he desired to prove
by this witness, that the prisoner, Michael
O'Laughlin, was informed that the officers
had been in pursuit of him ; that he in
forraed the witness that he had an engage
ment on Saturday night, but would commu
nicate with him the next day ; that on Mon
day he did send for him to come to him, and
authorized hira to procure an officer, and
put himself in his custody, declaring all the
time his entire innocence of any complicity
with this affair.
The Judge Advocate said the witness
should be instructed that he is not to give
the declarations of the prisoner, but simply
his acts, in evidence.
Q, You say you informed him on Satui^
day afternoon that the officers had been in
search of him ?
A, I did
Q, Did he protest his innocence ?
Assistant Judge Advocate Bingham ob
jected to the question. There was po au
thority in the world for such a question as
that; it was a burlesque upon judicial pro
ceedings, Mr, Cox insisted on the question. If a
party flees and avoids arrest, it would cei^
tainly be receivable for the prosecution; but
if he candidly comes forward and says, " 1
am not guilty, and I offer myself for investi
gation and trial," it should equally be re
ceivable for the defense.
.The Judge Advocate stated that that was
not the rule of law. The Government could
give the declarations of the accused in evi
dence, but it did not follow from that that
the prisoner could,
Mr Cox replied that where it was a part
of his conduct, he could. He could not
prove his innocence by declaring himself so,
but where it was a part of his conduct it
was receivable upon the question of how far
he was conscious of guilt
The Commission sustained the objection.
Witness. On Monday morning Michael
O'Laughlin authorized me to procure an
officer, and voluntarily surrendered himself
I have known O'Laughlin for about twelve
years. Q, State his disposition and character;
whether he is violent and bad-hearted, or,
on the contrary, amiable, raild-terapered, eta
A. As a boy, he was always a very timid
boy. From my observation of twelve years,

DEFENSE OP MICHAEL O LAUGHLIN.

233

I believe him to be the last one who would
have any thing —
Assistant Judge Advocate Buenett. What
you believe is not evidence.
Mr Cox. I meant to ask the witness
whether, from his knowledge of the accused,
he believes him capable of being engaged in
any thing of this sort
Assistant Judge Advocate Bingham. I ob
ject to his swearing to conclusions. He
can state the general character of the ac
cused, but he can not swear to conclusions.
This is a matter exclusively for the Court
Witness. I was merely about to speak of
his capability, judging from my observation
of his disposition.
Assistant Judge Advocate Bingham. You
can state his disposition.
Q. State what his disposition is as to amia
bility, peacefulness, etc.
A. I have always regarded him as an
amiable boy.
Q, Was he violent on political questions ?
A. I never recollect having seen him in a
passion in my life. On political questions
he has never been violent I have never
heard him express any opinion, except in a
very moderate way, on the issues of the
times. Q, There has been some testimony by Mr,
Wallace about his arrest of the accused. I
would like you to state the facts in regard
to that alleged arrest, and what Mr. Wallace
had to do with it In the flrst place, I will
inquire whether Michael had authorized you
to go for an officer ?
Assistant Judge Advocate Bingham. That
I object to.
Mr. Cox Then I will ask the witness
whether he went for an officer, and whom
he procured.
A. The facts in the case are simply these:
When I met Michael I suggested to him —
Assistant Judge Advocate Bingham, You
need not state any thing that you said to
Michael, Q, State what you did after leaving hira
on Monday morning,
A. On Monday morning he sent for me
and said —
Assistant Judge Advocate Bingham, You
need not state what he said.
Q. What did you do in consequence of
what he said to you ?
Assistant Judge Advocate Bingham ob
jected. The question assumes that the ac
cused told the witness something, and the
witness was asked to swear that, in conse
quence of what the accused told him, he did
something else. The counsel had no right
to assume any thing here as proof that was
not proof; and more especially had he no
right to assume as proved what was incapa
ble of being proved — the declarations of his
client Mr. Cox replied that the whole object of
the inquiry was to ascertain, for the satisfac

tion of the Court, whether the accused, with
that consciousness of innocence which would
govern a raan who was innocent, did really
act in accordance with that consciousness,
by voluntarily submitting himself to the
officers of justice, professing his willingness
to submit to an investigation. If the flight,
which the prosecution have attempted to
prove, was evidence of guilt, certainly it was
competent for the defendant to meet that
evidence by proof, on the contrary, that
there was no flight, no evasion, but a volun
tary submission to the officers of the law,
with a view of having the merits of the case
fairly tried.
The Judge Advocate said that the witness
might be asked if he did it himself, or if he
did it by the prisoner's authority.
Q. State whether you surrendered the ac
cused into the custody of an officer by the
authority of the accused himself
A. I did, sir, most certainly.
On Saturday evening, at 7 o'clock, I met
Mr. O'Laughlin and Mr. Early together, just
as they returned from Washington. On
Sunday morning Mr Wallace and other
officers came to our house in search of
O'Laughlin. I believe officers had been there
on Saturday, though I had not seen them.
On Monday I was sent for by Michael. I
went for a hack, and called for Mr, Wallace,
who was not then aware of O'Laughlin's
whereabouts, I went into the house, Mr
Wallace remaining in the hack, and Michael
came out, and I introduced him to Mr, Wal
lace and Mr, James S. Allison. There was
nothing, I believe, said from that time till
we reached the Marshal's office.
Q. I ask you to state, further, whether he
oft'ered to inform you where he could be
found that night, if wanted,
A8.=!istant Judge Advocate Bingham ob
jected to the question, and the Commission
sustained the objection.
Q. Did you know Booth intimately?
A. Yes, sir.
Q, State whether he was a man of pleas
ing address.
Assistant Judge Advocate Bingham. I
object to all that
Mr. Cox What I desire to show to the
Court, and what all the counsel desire, is to
have some evidence as to the character of
this raan, John Wilkes Booth, There is
nothing in the case yet to reflect any light
at all on that question. If any of these ac
cused should be found guilty of association
with him in this serious crime. Booth's in
fluence upon them, whatever it may have
been, would not affect the question of their
innocence, but it is a consideration, which
goes in mitigation of their guilt, that Booth
was a man who naturally acquired a great
ascendency over young men with whom h*
associated, and could warp them from the
right by means of his control over them.
My desire is to introduce some evidence on

234

THE CONSPIRACY TRIAL.

that subject, and it is the desire of all the
counsel for the defense. The question which
I propound to the witness is a preliminary
question, designed to introduce that sub
ject The Judge Advocate, It does not miti
gate the assassination at all, that it was per

formed by a man of fascinating address and
pleasing manners.
Mr Cox No, but it mitigates the act of
the other parties that they were acting under
his influence.
The Judge Advocate. Not at all.
The Commission sustained the objection.

TESTIMONY CONCERNING SAMUEL ARNOLD.

Eaton G. Hoener.
For the Prosecution, — May 18.
On the morning of the 17th of April, Mr.
¦Voltaire Randall and rayself arrested the
prisoner, Sarauel Arnold, at Fortress Monroe.
We took hira in the back room of the store,
where he slept We there searched his per
son and his carpet-bag, in which we found a
Eistol, something like a Colt's. He said he
ad left another pistol and a knife at his
father's, at Hookstown.
Cross-examined by Mr. Swing.
Arnold made a statement verbally to us at
Fortress Monroe. Before we left Baltimore,
a letter was given to us by" his father to give
him when we should arrest him. We handed
him the letter, and he read it I inquired of
him if he was going to do as they asked him
to do, and he said that he was. He then gave
us a statement and the names of certain men
connected with a plan for the abduction of
Abraham Lincoln.
Mr. Stone. I object to the declarations of
one of the accused against others of the ac
cused, made perhaps to throw the responsi
bility off his own shoulders ou that of the
Others. Mr. Ewing. The confession of one of the
accused in a conspiracy or alleged conspiracy,
after the conspiracy has been either executed
or abandoned, is not admissible — that is, will
not be considered by the Court in weighing
the question of the guilt or innocence of
those who are associated with hira in the
charge; but that is a rule of law which
should not be so applied as to cut off one of
the accused from giving in evidence any state
ment which he made, accompanying such an
incident as his confession of the possession of
arms. Mr. Stone. I take it, that is. not the rule
which governs courts-martial, as it certainly
does not govern any other courts in the con
sideration of evidence. Whatever is not com
petent evidence is not allowed to go to a jury
at all ; it is excluded from their consideration
entirely; and I take it for granted that this
tJourt, having to determine both the law

(under the guidance and Sdvice of the learned
Judge Advocate) and the facts of the case,
will discard entirely from the record all evi
dence which is clearly inadmissible, and
which ought not to be weighed adversely to
a prisoner, because it is impossible for any
man, in the nature of things, to discard from
his consideration and prevent his judgment
from being biased bj' evidence which is once
submitted to him, and which may be in its
nature adverse to the prisoner, although it
may be incompetent and illegal evidence.
Mr Ewing. The Judge Jidvocate, in the
charges and by the evidence, has sought to
associate him with the conspiracy, and one of
the links of the association is the arms thera
Therefore it seemed to rae that any statement
he made at that time and place, with refer
ence to his connection with the conspiracy,
is legitimate. If the Court will allow me, I
will read a short paragraph from Roscoe's
Criminal Evidence, page 53:
" Where a confession by one prisoner is
given in evidence which implicates the other
prisoners by name, a doubt arises as to the
propriety of suffering those names to be men
tioned to the jury. On one circuit the prac
tice has been to omit their names, {Fletcher's
Case, 4 C, & P, 250,) but it has been ruled
by Littledale, J., in several cases, that the
names must be given. Where it was objected,
on behalf of a prisoner whose name was thus
introduced, that the witness ought to be di
rected to omit his narae, and merely say
another person, Littledale, J., said, 'The
witness must mention the narae. He is to
tell us what the prisoner said, and if he left
out the name he would not do so. He did
not say another person, and the witness must
give us the conversation just as it occurred;
but I shall tell the jury that it is not evidence
against the other prisoner' {Hdarne's Case,
4 C & P. 215 ; Clewe's Case, Id 255)."
That paragraph evidently contemplated
only confessions introduced by the prosecu
tion; but if the course of the examination has
been such as to make it the right of a prisoner
to introduce a confession or statement, raade at
a particular moment, on his own behalf, he
has just as much right to introduce the con-

TESTIMONY CONCERNING SAMUEL ARNOLD.

238

fession, even though there be others associated
with him in the charge, as the prosecution
would have, if it saw fit to do so.
The President, after consultation with the
members of the Commission, announced that
the objection was overruled.
The question was repeated to the witness.
Witness. About three weeks previous to
Arnold's going to Fortress Monroe, he said he
was at a meeting held at the Lichau House,
on Pennsylvania Avenue, between Sixth and
Four-and-a-half Streets, J. Wilkes Booth,
Michael O'Laughlin, George A. Atzerodt,
John H, Surratt, and a man with the alias
of Moseby, and another, a small man, whose
name I could not recollect, were there. I
asked hira if he ever corresponded with Booth.
A.t first he denied, but on my mentioning the
letter that had been found in Booth's trunk,
mailed at Huntstown, he admitted that he
wrote that letter. In the same conversation
he told rae about the pistol and knife at his
father's farm. We imprisoned hira till even
ing, when we brought him to Baltimore.
Cross-examined by Mr. Swing.
In that conversation, Arnold said that
Booth had letters of introduction to Dr,
Mudd and Dr. Queen, but he said he did not
know from whora Booth got the letters. On
arriving in Baltimore, we took Arnold to
Marshal McPhail's office. At the meeting
at which Arnold and others were present an
angry discussion took place. Booth, he said,
got angry at something he said, Arnold said
that if the thing was not done that week that
he was there, he would withdraw. Booth
got angry at this, and said that he ought to
be shot for expressing himself in that way,
or he had said enough for Booth to shoot
him, or words to that effect, when Arnold
said that two could play at that garae.
Arnold said that he withdrew at that time,
and on the 1st of April occupied a position
at Fortress Monroe with Mr W. Wharton,
He did not state, or I do not remeraber,
the precise date of the meeting, and I do not
know whether he said he had seen Booth
since or not
Q, But he stated that he had nothing more
to do with the conspiracy?
Assistant Judge Advocate Bingham objected
to the question. «
Witness, Arnold said that he would with
draw, or would have no connection with the
business, if it was not done that week, on
which Booth said something to the effect
that he would be justified in shooting him
for expressing hiraself in that way. I do not
remember that he said after that that he would
withdraw. He said that after that he did have
nothing more to do with the conspiracy, but ac
cepted a position under Mr. Wharton. He said
the purpose of the parties in this conspiracy,
up to the time he withdrew, was to abduct or
kidnap the President, aud take him South, for
the purpose of making this Government have

an exchange of prisoners, or something like
that I aslted him what he was to do in it,
what his part was; I think he said he was
to catch the President when he was thrown
out of the box at the theater.
On my asking Arnold where he got the
arms, he said that Booth furnished the arms
for all the raen, Arnold said he asked Booth
what he should do with the arras; Booth
told hira to take them and do any thing with
them ; sell them if he chose. There was a
knife and a pistol at his father's, and a pistol
he brought with him to Fortress Monroe to
sell ; that is the one we got in his carpet-bag.
By Mr. Cox
From what Arnold said, I do not think
that the meeting to which he referred was
the flrst meeting. He said that at that
meeting there weye some new men that hd
had not seen before. He said that after dis
cussing the scheme, he came to the con
clusion that it was impracticable; that wa?
the word he used. I understood hira that
he individually abandoned the scheme at that
time, but I did not understand that the
scheme was abandoned by the party, but that
he considered that plan or mode of kidnap
ping the President as impracticable, and
vfished to withdraw from having any thing
further to do with it This meeting, I under
stood Arnold to say, was a week or two, it
raight have been two or three -^feeks, befora
he went to Fortress Monroe. There was no
rope found in Arnold's sack.
VoLTAiRB Randall.
For the Prosecution, — May 25.
I know the prisoner, Sarauel Arnold.
When we arrested hira, I examined hia
carpet-sack, and found in it some letters,
papers, clothing, a revolver, and sorae car
tridges. [Snhmitting to the witness a revolver.]
This is the same revolver; the number is
164,557. I made a memorandura of it at
the time, and this is the same. It was loaded
then and is now. It is a Colt's navy pistol.
[The pistol was offered in evidence.]
Cross-examined by Me. E'wing.
I arrested Arnold at the storehouse of John
W. Wharton, near Fortress Monroe. I be
lieve the place is called Old Point; it was
not in the fort.
Lieutenant William H. Terrt
For the Prosecution, — May 18.
I am attached to Colonel Ingraham's office
in this city. On the night after the assassin
ation, Mr. William Eaton, who has testified
in this case, and who took charge of the
trunk of J. Wilkes Booth, placed in my
hands the papers found among Booth's
effects.

236

THE CONSPIRACY TRIAL.

IA letter was handed the witnois.]
That is one of the papers, and it was in
that envelope. Colonel Taylor marked the
envelope " Important," and signed his initials
to it
[The letter was read as follows :]
Hookstown, Baito. Co.,'!
March 27, 1865. J
Dear John: Was business so important
that you could not remain in Balto. till I
saw you ? I came in as soon as I could,
but found you had gone to W — n, I called
also to see Mike, but learned frora his mother
he had gone out with you, and had not re
turned, I concluded, therefore, he had gone
with you. How inconsiderate you have been !
When I left you, you stated we would not
meet in a month or so. Therefore, I made
application for employraent, an answer to
which I shall receive during the week. I
told my parents I had ceasffd with you. Can
I, then, under existing circumstances, corae
as you request? You know full well that
the G — t suspicions something is going on
there; therefore, the undertaking is becom
ing more complicated. Why not, for the
present, desist, for various reasons, which, if
you look into, you can readily see, without
my making any mention thereof You, nor
any one, can censure me for my present
course. You have been its cause, for how
can I now come after telling thera I had left
you ? Suspicion rests upon rae now from my
whole family, and even parties in the county.
I will be compelled to leave home any how,
and how soon I care not None, no not one,
were more in favor of the enterprise than
myself, and to-day would be there, had you
not done as you have — by this I mean, man
ner of proceeding. I am, as you well know,
in need. I am, you may say, in rags,
whereas to-day I ought to be well clothed.
I do not feel right stalking about with means,
and more from appearances a beggar. I feel
my dependence ; but even all this would and
was forgotten, for I was one with you. Time
more propitious will arrive yet Do not act
rashly or in haste. I would prefer your first
query, "go and see how it will be taken
at R  d, and ere long I shall be better
prepared to again be with you. I dislike
writing ; would sooner verbally make known
my views; yet your non-writing causes me
thus to proceed.
Do not in anger peruse this. Weigh all I
have said, and, as a rational man and a. friend,
you can not censure or upbraid my con
duct I sincerely trust this, nor aught else
that shall or may occur, will ever be an
obstacle to obliterate our former friendship
and attachment Write me to Balto,, as I
expect to be in about Wednesday or 'Thurs
day, or, if you can possibly come on, I will
Tuesday meet you in Balto., at B  . Ever
I subscribe myself. Your friend, SAM.
[The letter was put in evidence.]

William McPhail.
For the Prosecution. — May 18.
I am acquainted with the handwriting of
Samuel Arnold.
[Exhibiting to the witness the letter signed "Sam."]
That has somewhat the appearance of his
handwriting, though I think it is rather
heavier in some parts of it I should say il
was his handwriting.
Cross-examined by Mr. Ewing.
I became acquainted with his handwriting
from having a confession of his placed in
my hands. It was a 'paper purporting to
state all he knew in regarf to this affair. It
was written in the back roora of Marshal
.laraes McPhail's office. No. 4 Fayette Street,
Baltimore, The paper was handed by me to
the Marshal, and I was informed that the
officers delivered it to the Secretary of War
George R, Magee.
For ihe Prosecution, — May 25.
By ihe Judge Advocate.
Q. State to the Court whether you know
the prisoner at the bar, Samuel Arnold.
A, I do.
Q. State to the Court whether or not he
has been in the military service of the rebela
Mr. Swing. I object to that question.
Arnold is here on trial for having been en
gaged in a conspiracy to do certain things,
and it is not competent for the Government
to show (if such be the fact) that before he
entered into the conspiracy he was in the
military service of the Confederate States
He is not on trial for that He is on trial
for offenses defined clearly in the charge and
specification, and it seems to me it is not
competent to aggravate the offense of which
he is charged, and of which they seek to
prove him guilty, by proving that he . has
been unfaithful to the Government in other
respects and at other times, and it can be
introduced for no other purpose than that
of aggravating his alleged offenses in connec
tion with this conspiracy. That course of
testimony would be, in effect, to allow the
prosecution to initiate testimony as to the
previous character of the accused ; and that is
a rijht that is reserved to the accused, and is
never allowed to the prosecution. It would
do more than that: it would allow thera to
do what the accused is not allowed on his
own behalf on the point of character — that
is, to show acts wholly unconnected with the
crimes with which he is charged, from which
his previous character may be inferred.
The Judge Advocate. I think the testi
mony in this case has proved, what I believe
history sufficiently attests, how kindred to
each other are the crimes of treason against
a nation and the assassination of its chief
magistrate. I think of those crimes the

TESTIMONY CONCERNING SAMUEL ARNOLD.

237

one seems to be, if not the necessary conse
quence, certainly a logical sequence from
the other The murder of tho President of
the United States, as alleged and shown, was
pre-eminently a political assassination. Dis
loyalty to the Government was its sole in
spiration. When, therefore, we shall show,
on the part of the accused, acts of intense
disloyalty, bearing arms in the field against
that Government, we show with him the
presence of an animus toward the Govern
ment which relieves this accusation of much,
if not all, of its improbability. And this
course of proof is constantly resorted to in
criminal courts. I do not regard it as in the
slightest degree a departure from the usages
of the profession in the administration of
public justice. The purpose is to show that
the prisoner, in his mind and course of life,
was prepared for the comraission of this
crime; that the tendencies of his life, as
evidenced by open and overt acts, lead and
point to this crime, if not as a necessary,
certainly as a most probable result, and it is
with that view, and that only, that the testi
mony is offered.
Mr Swing, Can the learned Judge Ad
vocate produce authority to sustain his posi
tion ?
Assistant Judge Advocate Bingham. There
is abundance of authority to sustain the
position. In Roscoe there is express au
thority. The book is not here now, but as
the gentleman calls for authority, I will state
now, and pledge myself to bring the book
into the court-room, that Roscoe's Criminal
Evidence, about page 85 or 89, contains the
express text in the body of it, that when the
intent with which a thing is done is in issue,
other acts of the prisoner not in issue, to
prove that intent, may be given in evidence,
and that is exactly the point that is raade
here by the Judge Advocate General, It is
not the point contemplated by the counsel,
and, putting it on the ground on which he
puts it, nobody contends for it It is alleged
in this charge and specification that this
party engaged in this conspiracy to murder
the President of the "United States, to raur-
der the Secretary of State, to murder the
'Vice-President, and to murder Lieutenant-
General Grant, the commander of the arraies
in the field under the direction of the Presi
dent, with intent to aid the rebellion against
the "United States, The intent is put in issue
here by the charge and specification against
all these prisoners, and the atterapt now
made is to establish that intent by proving
what? By proving that this man himself
was part of the rebellion ; that he was in it
I undertake to say that there is no authority
which is fit to be read in a court of justice
any where that can be brought against it
I may remark, in this connection, that the
general rules of evidence which obtain in
the courts of the common law, are always
recognized by the military courts. The

ground on which it is put — I state the au
thority in words — is that on a criminal trial,
where the intent is in issue, other acts of the
prisoner not in issue may be proved against
him by the prosecution, in order to show
that intent The cases are very numerous.
Mr Swing. Just refer to the allegation.
Assistant Judge Advocate Bingham. The
gentleman asks me to refer to the allegation.
I will. The charge is, " Maliciously, unlaw
fully, and traitorously, and in aid of the ex
isting armed rebellion against the United
States of America, on or before the 6th day
of March, A. D, 1865, combining, confed
erating, and conspiring together," with the
persons named in the charge, " and others
unknown, to kill and murder, within the
Military Department of Washington, and
within the fortified and intrenched lines
thereof, Abraham Lincoln,'' etc. Combining,
confederating, and conferring together "in
aid of the existing armed rebellion against
the United States of America," is the allega
tion ; that is the intent
Mr, Ewing. It is an allegation of fact, and
not of intent
Assistant Judge Advocate Bingham. L un
derstand the gentleman, but I assert that the
words there used, "in aid of the existing arraed
rebellion against the United States of Amer
ica," are words of intent; the formality of an
indictment is simply departed from. If the
charge had followed the common-law form, it
would have read, " With intent to aid the
existing armed rebellion against the United
States, the parties did then and there agree,
combine, and confederate together, to kill and
murder the President of the United States."
These words are not the express terms used,
but they are by necessary implication im
plied ; it is nothing but an allegation of in
tent, and never was any thing else. It is no
part of the body of the charge beyond the
allegation of intent
Then coraes the specification in regard to
the prisoner, Arnold. The first clause of the
specification is that the various persons here
on trial, "and others unknown, citizens, of
the United States aforesaid, and who were
then engaged in armed rebellion against the
United States of America, within the liraits
thereof, did, in aid of said armed rebellion,
on or before the 6th day of March, A, D.
1865, and on divers other days and times
between that day and the 15th day of April,
A. D. 1865, combine, confederate, and con
spire together, at Washington City, within
the Military Department of Washington, and
within the intrenched fortifications and mili
tary lines of the said United States, there
being, unlawfully, maliciously, and traitor
ously to kill and murder Abraham Lincoln,"
etc., . . . "and, by the means aforesaid,
to aid and comfort the insurgents engaged
in armed rebellion against the said United
States as aforesaid," Is not that the same
as saying, " designing and intending thereby

238

THE CONSPIRACY TRIAL.

to aid and comfort the insurgents engaged in
armed rebellion against the United States?"
There is the specification, and I should like
to know how an intent could be laid any
more strongly than that, or more formally
than that It is an allegation of intent, and
I say the question stands on authority.
Mr Swing. If the Court will allow me,
I will refer to an authority enunciating the
great principle which I claira :
"Evidence will not be admitted on the
part of the prosecution to show the bad char
acter of the accused, unless he has called
witnesses in support of his character, and
even then the prosecution can not examine
as to particular act" (Benet on Military
Law and Courts-martial, p. 287.)
That is the general principle of law, which
is, doubtless, familiar to the Court; but the
learned gentleraan seeks to take this case
out of the general principle, upon the argu
ment that it is alleged in the charge that
the crimes for which the accused is being
tried, were done with the intent of aiding
the rebellion. Now, if, by the practice of
military courts, the allegation that these
crimes were committed with intent to aid
the rebellion, were a necessary allegation,
the Court should reject the testimony now
offered on the ground of irrelevancy. The
acts charged are acts of conspiracy to mur
der the President, the heads of Government,
and the leader of the armies of the United
States during the existence of the rebellion;
and proof of these acts would be conclusive
as to the intent to aid the rebellion ; and
that evidence of intent would not be in the
least aided by proof of service in the Con
federate array prior to and unconnected with
the acts of conspiracy.
But the allegation of intent here is an
unnecessary allegation. The crimes charged
are the crimes of murder and attempted as
sassination, and it is unnecessary to go fur
ther, and allege that they were done with
the intent to aid the rebellion.
If, to support this unnecessary allegation
as to intent, the Court should admit evidence
which would be inadmissible in the civil
courts in a trial on an indictment for the
crimes here charged, it would, I think, vio
late the law of evidence, because the prose
cution has seen fit to disregard the rules of
pleading. The law of evidence is — and it
applies to cases of conspiracy as to all other
crirainal cases — that the prosecution can
show no criminal acts, not part of the res
gestce of the offenses charged, unless the
offenses charged consist Of acts which are
not in theraselves obviously unlawful, and
from the commission of which, therefore,
the evil intent can not be presumed — such
as uttering forged instruments, or counterfeit
money, or receiving stolen goods.
Before any jury, or almost any body of
men, proof that a persoh charged with one
crime, and on trial, had before that com

mitted some other crime, would prejudice
his cause materially; and it is to avoid that
result that this wholesome rule of law has
been established.
That the assassination of the President
grew out of the spirit of the rebellion, and
was one of its monstrous developments, is
rriost true; but the prisoners who are here
on trial, are to be tried on evidence admis
sible under the rules of law, and the accused
was not called upon to show here whether
or not, a year or eighteen months before this
alleged conspiracy was begun, he committed
the crime of having taken up arms against
his Governraent He is not on trial for
that, and I think it is unjust to prejudice
his case by hearing and recording evidence
of it, if such evidence can, in fact, be pro
duced, I refer thft-Court, in further support of my
objection, to Wharton's Criminal Law, voL 1,
p. 297, and Roscoe's Criminal Evidence, p. 76.
Assistant Judge Advocate Bingham, I
have no desire to delay the Court; but I am
very anxious to make good what I said, and
to vindicate the proposition of the Judge
Advocate General, My proposition was, that
when the intent with which a thing was done
is put in issue, other acts of the prisoner not
in issue on the trial, of the same character,
may be given in evidence to prove that in
tent Now I propose to read from the book
which the gentleman hiraself has read;, but
he did not read quite far enough : '
" Knowledge and intent, when material,
must be shown by the prosecution." (Whar
ton's American Criminal Law, p. 309, sec.
631) It becomes material here, because it is
alleged as to the conspirators that they con
spired with the intent to aid this rebellion,
both in the charge and in the specification;
not that they murdered with that intent, but
conspired to murder with that intent, to aid
the rebellion. The language of this author
(Wharton) is, "Knowledge and intent, when
material, must be shown by the prosecution.
It is impossible, it is true, in most cases, to
raake them out by direct evidence, unless
they have been confessed, but may be gath
ered from the conduct of the party as shown
in proof; and when the tendency of his ac
tions is direct and manifest, he must always
be presumed to have designed the result
when he acted."
As to guilty knowledge, on the same page
of the book, the author says:
"The law in this respect seems to be, that
evidence of other acts, or conduct of a sim
ilar character, even although involving sub
stantive crimes, is admissible to prove guilty
knowledge," even although it shows other
crimes not involved before the Court On
the very next page the same author says:
" The same evidence is generally admissi
ble to prove intent as to show guilty knowl
edge."

TESTIMONY CONCERNING SAMUEL ARNOLD.

239

That is to say, other acts, although in
volving substantive crime, may be admitted.
On the point the gentleman made, the writer
concludes on that question by saying, "That
if the crime itself is comraitted, the intent
is necessarily presuraed by the law," To be
sure it is. But there are two allegations
here. One is a conspiracy —
Mr, Ewing, To murder the President
Assistant Judge Advocate Bingham, A
conspiracy, with intent to aid the rebellion,
to murder the President; and then there is
the murdering of the President in aid of the
rebellion, in pursuance of the conspiracy.
Now, we are trying to prove the intent with
which they entered into this conspiracy, and
executed it This book, in answer to that
suggestion of the gentleman, says:
" A defendant's conduct during the res
gestce, as his manner at the time of passing
the note, or his having passed by several
names, is also admissible for the same pur
pose; but the intent, the guilty knowledge,
must be brought directly home to the de
fendant; but in no ca.se can evidence tend
ing to show it be admitted, until the corpus
delicti is first clearly shown." What then ?
Then it may be.
Mr, Swing, That is the res gestce.
Assistant Judge Advocate Bingham, No,
as to the intent What becoraes of the ob
jection now ? The body of the crirae has
been proved according to the practice of the
coramon law, as a general thing, and the
only exception that I know of, of any note, is
the exception made at common law in cases
of conspiracy, which the gentleman will re
member is written in the text of Starkie,
Then what next? In order to prove the
intent, you may have other acts of the
prisoner, although they involve substantive
crime ; and the same text and section of
Wharton goes on to say:
"On the charge of sending a threatening
letter, prior and subsequent letters frora the
person to the party threatening may be given
in evidence, as explanatory of the meaning
and intent of the particular letter upon which
the indictment is framed." What do you say
to that?
Mr, SvnNG, I say it does not apply at all.
Assistant Judge Advocate Bingham, I
say it does apply; that sending prior and
subsequent letters is a distinctive crime, for
Jhich he might also be indicted, and enter-
<r into this is a distinctive crime, for which
the party may be also arraigned; but when
he entered it, he entered into it to aid it, did
he not?
Mr, Ewing. He did not enter into that
to assassinate the President
Assistant Judge Advocate Bingham. Yes,
he entered into it to assassinate tlie Presi
dent; and everybody else that entered into
the rebellion, entered it to assassinate every
body that represented this Government, that
either followed the standard in the field, or

represented its standard in the councila
That is exactly why it is german.
The Commission overruled the objection.
Witness, — I can not state positively of
my own knowledge that the accused, Samuel
Arnold, has been in the military service of
the rebellion, I have seen him in Richmond
with the rebel uniform on; whether it was
the uniform of a private soldier or an officer,
I can not remember. This was in the year
1862, Cross-examined by Mr, Swing,
I would not say positively that it was not
in 1861 I saw him, I know he had been
ill, but I can not state the year positively, I
saw him several times; it was since the re
bellion.
James L, McPhail.
Recalled for ihe Prosecution. — May 18.
[Exhibiting the " Sam " letter to the witness,]
I think that letter is in the handwriting
of Samuel Arnold; the direction, "J. Wilkes
Booth," I should also think is his. I am
acquainted with the handwriting of the
prisoner, from having received a letter of his
from his father, dated the 12th of April,
from Fortress Monroe, the writing of which
looks similar to that of this letter signed
"Sam." Littleton P. D. Newman.
For the Prosecution. — May 18,
I know the accused, Samuel Arnold, On
the 9th, lOth, or 12th of September, Mr.
Arnold had been helping us to thrash wheat
at a neighbor's, and during that time there
was a letter brought to hira. In that letter
there was either a twenty or a fifty -dollar
note; I am not positive which. He read
the letter, and remarked that he was flush
of money, or soraething to that effect After
having read the letter, he handed it to me,
and I read sorae half a dozen lines, possi
bly — not more. I did not understand it; it
was very ambiguous in its language; and I
handed it back to him, and asked him
what it meant He remarked that some
thing big would take place one of these
days, or be seen in the paper, or something
to that effect That was about all that oc
curred. I do not remember that I saw the signa
ture to the letter; if I did, I do not remem
ber what it was.
The Judge Advocate here announced that
the testimony on the part of the Government
had closed.
See testimony of
William E. Cleaver  page 71
Mrs. Mary Van Tine  " 222
Billy Williams  " 223
Edward C. Stewart  " 223

240

THE CONSPIRACY TRIAL.

DEFENSE OF SAMUEL ARNOLD.

William S. Arnold.
For ihe Defense, — May 31.
By Mr. Swing.
I am brother to the prisoner, Samuel
Arnold, and reside at Hookstown, Baltimore
County, Md. From the 21st of March up
to Saturday, the 25th, my brother was with
me in the country, at Hookstown,
We went into Baltimore on Saturday even
ing, the 25th, and returned to the country
again on Sunday, the 26th, We carae again
into town either on Tuesday or Wednesday.
I went to the country again, and came in
on Friday night He went out with me on
the 1st of April, and in the afternoon he
went to Fortress Monroe,
As 1 was coming into Baltimore on the
21st, I saw hira in the coach going to Hooks
town, From the 21st to the 25th, I saw him
every day, and he slept with me every night
We arrived in Baltimore on the 25th, be
tween 5 and 6 o'clock. I saw my brother
at supper at ray father's, and when I went
to bed, between 9 and 10 o'clock, he was in
bed. When we got up the next raorning, I
went down to the Government bakery, left
him at horae, told him I would be back in
about half an hour, and we would go out in
the country together When I came back
he was home, and between 9 and 10 o'clock
that morning we .started for the country.
He staid there until the 28th or 29th, and I
saw hira every day and every night It was
on either a Tuesday or a Wednesday that
he left, about 8 o'clock. I saw him next on
Friday, when I came in frora the country to
my father's; my brother was there to^ sup
per. He was at horae at ray father's on
that night I did not sleep with hira ; ray
brother did; and I slept in the same room.
The next day, Saturday, I took him out in
the country. We started about 8 o'clock, and
came in between 12 and 1 at noon. In the
afternoon, between 3 and 4, he left for For
tress Monroe. That was on the 1st of
April, I am certain about these dates,
Hookstown is about six miles from Balti
more. Cross-examined by Assistant Judge Advocate
Burnett.
I can fix the date of the 21st as being
tbe day on which I saw my brother in the
coach going to Hookstown, as I was going
to Baltimore, because on that day Mr
Buffington, of the Three-mile House, had a
sale of farming utensils, and Mr Ditch had
a sale the day before, at which I bought
some things, and entered them in my book.

I do not know where my brother was be
tween supper and bedtime on the next Satur
day; I went out and left him at home, and
he was in bed when I carae back. On the
following day he went back to Hookstown,
and returned to Baltimore on the Tuesday
or Wednesday, He gave those arms to me
on the 1st of April, when he went to For
tress Monroe, He had had them out in
the country from the day he went there, the
21st The pistol was loaded when it was
given to me,
[The pistol found in Arnold's bag at Fortress Monroe
shown to the witness,]
That is not the pistol my brother gave to
me; he gave me the pistol and knife by
themselves. They were not in the valise. I
did not give them to anybody, but I remem
ber my father coraing to the desk where they
were placed, getting them, and taking them
to Baltimore, It was a large-sized pistol,
something like the one just shown me.
By Mr, Swing.
On the 20th of March, I saw my brother
shoot off two rounds out of the pistol, at the
chickens; then he went into the house and
reloaded it I wSs at the door, and did not
see hira reload it
Frank Arnold.
For the Defense. — May 31.
By Mr. Swing.
The accused, Samuel Arnold, is ray brother.
I generally reside at my father's in Balti
more. I saw my brother on the 30th and
31st of March last; Thur.sday and Friday.
On the Friday raorning I gave hira a letter,
which carae for hira from Mr, Wharton, in
reference to his application for a situation,
telling him to come down, and he went down
on Saturday afternoon, the 1st of April, on
the Norfolk boat, at about half-past 4. Cap
tain Moffatt of the Eighth Maryland took a
state-room with hira.
By Assistant Judge Advocate Bingham.
My brother had raade application for efflB
ployment to Mr. Wharton, but I do not know
the date. Jacob Smith.
For the Defense, — May 31
By Mr. Swing.
I live in Hookstown, Baltimore County,
Md; about half a mile from the residence
of William S. Arnold, brother of the prisoner,
Samuel Arnold. Our farms join. From the
1 20th to the 22d of March last, up to near the

DEFENSE OF SAMUEL ARNOLD.

241

30th, as near as I can get at it, I saw the
prisoner, Samuel Arnold, nearly every day;
sometimes three or four times a day.
Cross-examined by Assistant Judge Advocate
Burnett.
I can not be sure whether it was the 20th
or 22d that I saw him, I do not think it
was the 23d or 19th, I have no particular
reason for fixing the date; only an indistinct
recollection of it It is just about the same
with the 30th; I kept no note of it

By Mr, Swing,
I was over at his brother's place several
times during that period, I used to go there
for marketing stuff to take to the city ; and
I used to go right in the field and get it It
was only on those occasions that I saw him
on his brother's place, and coraing over.
Charles B. Hall.
For the Defense. — June 2.
By Me. Swing.
For the past two months I hafe been at
Fortress Monroe, as clerk to Mr, Wharton,
a sutler there. His store is outside of the
fortification, at what is called "Old Point"
I got acquainted with the prisoner, Sarauel
Arnold, at Mr. Wharton's store. He came
tiiere the latter part of March, or 1st of
April, He was employed by Mr. Wharton
to assist him in book-keeping. I think he
staid there two weeks and one day. I saw
him every day, but not all the time.
I was engaged in another place part of
the time. Mr, Wharton has the contract for
Fortress Monroe, I was engaged there from
about 7 o'clock until 2. I had business then
at the lower store; and at about 5 o'clock I
would return.
I can not say positively, but I think it
was about the 1st of March that he made
the application in writing for employment
I only know of one letter from hira, the
one I answered, telling hira to come, and he
came in about a week. ' Major Stevens, a
Government officer, has Arnold's letter
Arnold staid at the lower store and slept at
Mr. Wharton's. I saw him every night
Cross-examined by Assistant Judge Advocate
Bingham.
I was not at all acquainted with him
before he came there. He opened the cor
respondence himself, as far as I know, in
March last

I

Gboege Craig.
For ihe Defense. — May 31.
By Mr. Swing.

I have lived at Old Point during the past
two months, and have been employed as
salesman in Mr. Wharton's store. I have
16

seen the prisoner, Samuel Arnold, there; he
was a clerk — chiefclerk, I believe — in the
same establishment He came there on a
Sunday morning, some time in the latter part
of March or the 1st of April, and remained
there about two weeks, up to the time of
his arrest I saw him every day during that
time. MiNNiB Pole.
For the Defense, — June 7.
I reside in Baltimore. I ara acquainted
with the prisoner, Sarauel Arnold, I saw
him in that city on the 20th, 27th and 28th
of April. On the 20th, I saw him in an
omnibus, going to Hookstown; and on the
28th, I saw him at our house on his way to
Baltimore. I have not seen him since, until
now. Eaton G. Horner.
For the Defense, — June 6.
By Me. Swing.
The facts stated to me by the accused,
Samuel Arnold, to which I have testified,
were communicated to me by Arnold at
Fortress Monroe. He did not speak of any
thing that occurred on the boat The con
fession of Samuel Arnold, referred to by
William McPhail was written in Marshal
McPhail's office.
John W. Wharton.
For the Defense, — June 7.
By Mr. Swing.
I live in the city of Baltimore; my place
of business is at Fortress Monroe, outside.
The prisoner, Samuel Arnold, was in my
employ from the 2d of April to the 17th,
when he was arrested. He was employed
by the week as a clerk. I was absent about
three days during that tirae, but I have rea
son to believe he was there all the tirae, or
I should have been told of his absence. He
was employed by me in consequence of a
letter received by me from his father; also
one frora himself
Q, In that letter did he make any reference
to the business in which he had theretofore
been engaged ?
Assistant Judge Advocate Bingham re
plied, that if the letter were here, it would
be utterly inadmissible in regard to any
thing contained in it about his former pur
suits or whereabouts, and doings of any sort,
for the simple reason that a party could
not, either in writing or orally, make evi
dence at his pleasure, to bar the doors of
justice against the power of the Government,
which he is charged to have offended. Here
tofore, testimony had been admitted as to the
contents of the letter, so far as to show that
Arnold had applied to the witness for em
ployment That had been admitted, because

242

THE CONSPIRACY TRIAL.

itseemed perhaps to be fair to the accused
without doing injustice to the Government
He had the benefit of that application, but
the proposition now raade was entirely inad
missible. Mr. Ewing stated that it had been proved
that the letter in question was taken frora
the store of the witness by Major Smith, an
officer of the United States, at the tirae of
Arnold's arrest; the Judge Advocate had
been requested some days since to produce
the letter, and he had been unable to flnd
it; so that if the letter itself would be ad
missible in evidence, it was now competent
to prove its contents by parol. It was a
declaration by the prisoner, Arnold, at the
time of his application to the witness, as to
his having abandoned the business in which
he had formerly been engaged. Under the

latitude of examination which had been in
dulged in on the part of the prosecution, this
proof might fairly be admitted.
The Judge Advocate. We have estab
lished that intimacy clearly iu their associa
tion in Washington. We are siraply follow
ing them to Baltimore, and showing that
there they were in correspondence with each
other. It is a fact of the same order, and
although it raay not have the same force
with the other fact, its tendency certainly is
in the same direction. We do not offer the
contents of the letter; we offer the fact of
their correspondence with each other
The Court sustained the objection.
Each of the counsel for the accused here
announced, on behalf of his client, that the
defense was closed.

Tuesday, May 16, 1865.
discussion on the daily reading op the
record.
The President. One of the merabers of
the Court has moved that the reading of the
record be dispensed with, inasmuch as the
counsel on the part of the prisoners are fur
nished with an official copy of the record,
and have an opportunity of examining it
during the intervals between the meetings of
the Court, and can object to any thing that
is incorrect, when they corae into Court, if
they find any inaccuracies.
Colonel Tompkins, Besides, it is very ac
curately published in the morning papers.
Mr. Ewing. If the Court will allow me, I
will state that the reporters are not able to
furnish us imraediately with an official copy
of the record ; it is always behindhand a day
or so; but inasmuch as the record is pub
lished quite accurately in the Intelligencer,
from the notes of the reporters, if the Court
will allow us the privilege at any time, even
though it be not the day after the examina
tion of a witness, in case we discover an
error, to ask that the witness be recalled, it
would be satisfactory, so far as I am con
cerned. If this arrangement is made, it will
be necessary for the Judge Advocate to de
tain witnesses for, say, two days after their
examination, so that we may have time to
read the testimony as published in the paper,
or as furnished us by the reporters. We
have not yet been furnished with the last of
yesterday's proceedings, nor has that portion
been published in the paper.
The Pebsidbnt. I should think a deten
tion of one day would be ample.
Mr. Swing. If the witnesses who were
examined yesterday were detained until after
the Court meets to-morrow, I think that

would be sufficient The evidence of the
last witnesses examined yesterday will prob
ably be published in the Intelligencer to
morrow. The Peesident. Has the Judge Advocate
any objection to that arrangement?
The Judge Advocate. I do not wish to
embarrass the Court, certainly, by any sug
gestions of mine. I am as anxious for the
dispatch of business as anybody can be; but
if this precedent is now established, it will
be, I think, not only the first one which has
been set in the military service, but the first
in the civil service. I never, in my whole
life, have been in connection with any court,
the proceedings of which were not read over
in the hearing of the court itself, before
they were declared by the court to be accu
rate and coraplete. Although I have as
much confidence in the accuracy of our re
porters as anybody can have, I think it
would be a dangerous example to set, and I
would rather see it in any case that has
arisen in the military service of the country
than in this, where there are so many lives
at stake, and where it is so vastly important,
not only that there should be strict accu
racy, but that the country should feel assured
that it is so, and that all the precautions
necessary to secure that result, have been
resorted to. If it shall be known hereafter,
in connection with this trial, that the Court
departed from the usages of the service, and
did not even have its own record read over,
but trusted simply to the reporters for ac
curacy, it might go very far to shake the
confidence of the country in the accuracy of
these reports, and would certainly leave an
opening for criticism.
General Fostee. I think the reading
should be proceeded with every morning for
the purpose of correction, if any correction
should be necessary.

M CULLOUGH S AFFIDAVIT.

243

The President. I am very much inclined,
after hearing the opinion of the .Judge Ad
vocate General, to change ray first impression
on the subject, and I will vote against the
proposition, though I thought favorably of it
at first
The motion was then withdrawn, and the
record was read and approved.

Thursday, June 8, 1865.
Mr. Aiken proposed to offer in evidence a
telegraphic dispatch from Montreal, Canada,
containing' an affidavit of John McCuUough,
made before the Vice-Con sul of the United
States in Montreal," for the purpose of con
tradicting a statement made by Louis J.
Weichmann, a witness for the prosecution,
that he had seen McCuUough at Booth's
room in the National Hotel on the 2d day
of April last
Assistant Judge Advocate Bingham ob
jected to the introduction of the paper. It
was a wholly immaterial question whether
McCuUough ever met Weichraann or not
Mr. Aiken claimed that it was competent
to disprove any statement made by 'Weich
mann which was not true. Mr. Weichmann
had sworn to certain stateraents which were
contradicted in this sworn affidavit of Mr,
McCuUough. If he was mistaken in such
small matters, might he not also be mistaken
in the greater matter of the guilt or inno
cence of some of the accused.
Assistant Judge Advocate Bingham replied
that this was an illegal mode of attacking a
witness. If, on cross-examination, a witness
is asked an immaterial question, his answer
concludes the party asking the question.
The Judge Advocate proposed to read to
the Court an authority on this point, as it
was raised so often, and might be again;
and he wished the authority borne in mind,
namely :
"Irrelevant questions will not be allowed
to be put to a witness on cross-examination,
although they relate to facts opened by the
other party, but not proved in evidence.
Nor can a witness be cross-examined as to
any facts which, if admitted, would be col
lateral and wholly irrelevant to the matters
in issue, for the purpose of contradicting
him by other evidence, and in this manner
to discredit his testimony. And if the wit
ness answers such an irrelevant question
before it is disallowed or withdrawn, evidence
can not afterward be admitted to contradict
his testimony on the collateral matter."
(Benfet, p. 307.)
Assistant Judge Advocate Bingham stated
that the same position was sustained by Ros
coe's Criminal Evidence, p. 87, from which
he read the following extract:
"Evidence to contradict the opponent wit-\
nM«e«.— This may always be given on poiria

relevant to the issue. But if any opponent
witness be asked questions on cross-examin
ation which are not relevant to the issue —
which, as we shall hereafter see, raay be
done, (p, 146) — the answer must be taken,
and he can not be contradicted by other ev
idence, Spenceley v. DeWillott, 7 East 108;
R. V. Tewin, 2 Camp,, 638, where a witness
was asked whether he had not been charged
with robbing the prisoner, his master, which
he denied, an,d Lawrence, J,, refused to allow
him to be contradicted on this point" (Ros
coe's Criminal Evidence, p, 87.)
The Court sustained the objection.

:0E, f-
2, 1863. J

June 8, 1865.
Mr Ewing offered in evidence, on the part
of the defense, a copy of General Order*
No. 26, War Department, Adjutant-General's
Office, Washington, February 2, 1863, as fol
lows: War Department,
AnjUTANT-GENERAL's OFFICE,
Washington, JB'ebruary 2,
General Orders No. 26.
The district of country north of the Poto
mac River, from Piscataway Creek to An
napolis Junction and the mouth of the
Monocacy, and south by Goose Creek and
Bull Run Mountain to the mouth of the
Occoquan, will constitute the Department of
Washington, and troops in that department
will constitute the Twenty-second Army Corps,
to be coraraanded by Major-General Heintzel-
man. By order of the Secretary of War.
L. THOMAS,
Adjutant- General.
Mr Swing, with the consent of the Judge
Advocate, offered as evidence of the same
validity, as if the same fact were testified to
by Mr, John McCuUough, the actor, on the
stand, the following telegraphic dispatch :
Montreal, Jnne 2, 1865,
To John T, Ford, National Hotel :
I left Washington on Monday evening,
March 26th, and have not been there since.
You can have my testimony before American
Consul here, if requisite. JOHN MoCULLOUGH.
The Judge Advocate offered in evidence,
for the prosecution, the proclaraation of the
President of the United States, for the in
formation and government of the army and
all concerned, dated September 25, 1862, with
accompanying certificate of the Secretary of
War, dated May 30, 1865.
[See Appendix, page 419.]
The Judge Advocate also offeredi m evi
dence, for the prosecution. General Orders
No. 100, AdjutantGeneral's Oflice, Washing
ton, April 24, 1863, containiog " lostructiona

244

THE CONSPIRACY TRIAL.

for the government of the armies of the
United States in the field," prepared by
Francis Leiber, LL,D,, and revised by a
Board of Officers, of which Major-General
E, A, Hitchcock was president
[See Appendix, page 410.]

June 12, 1865.
Assistant Judge Advocate Bingham offered
in evidence certified copies of the journals
of the joint ses,sions of the Senate and the
House of Representatives on the 2d Wednes
day of February, 1861, and the 2d Wednes
day of February, 1865 (certified to be correct
copies by the Clerk of the House of Repre
sentatives, under the seal of that House,)
showing that Abraham Lincoln and Hannibal
Hamlin were elected President and Vice-
President of the United States, for the term
of four years, comraencing on the 4th day
of March, 186l, and that Abraham Lincoln
and Andrew Johnson were elected President
and Vice-President of the United Stales, for
the term of four years, commencing on the
4th day of March, 1865.
[Votes for President and Vice-President of the United
States for the constitutional term, commencing on the
Ith day of March, 1861.
Nnmberof States  33
Number of Electoral Votes  303
Abraham Lincoln, for President  ISO
John C, Breckinridge, for President  72
John Bel], of Tennessee, for President  39
.Stephen A, Douglas, for President  12
Hannibal Hamlin, for Vice-President  Tr-,.,.. 180
Joseph Lane, for Vice-President  72
Edward Everett, for Vice-President  39
HerscbelV, Johnson, for Vice-President  12
Votes for President and Vice-President of the United
states for tbe constitutional term, commencing on the
-1th day of March, 1865.
Number of States (Kansas, West Virginia, and
Nevada being added since 1861)  35
Number of Electoral Votes (Virginia, North Caro
lina, South Carolina, Georgia, Tennessee, Louis
iana, Mississippi, Alabama, Arkansas, Florida,
and Texas not voting;  233
Abraham Lincoln, for Prtjsident  212
GleorgeB, McClellan, for President  21
Andrew Johnson, for Vice President  212
George H. Pendleton, for Vice-President  21
Ortiiied to as being a correct extract from the Journal
of the Senate of the tJnited States of 13th February, 1861,
and 8th February, 1865, respectively,
(Signed,) JOHN W, FOKNBY.]

Abraham Lincoln, on the 15th of April,
1865? A. Yes, sir.
Assistant Judge Advocate Bingham offered
in evidence a certified copy, under the seal
of the Department of State, of the oath of
office of Andrew Johnson, as President of
the United States, before the Chief-Justice,
on the 15th day of April, 1865.
Also a duly certified copy of the resolu
tion of the Senate, dated March 5, 1861, con
senting to the appointment, and advising the
same, of William H, Seward as Secretary of
State of the United States; and, also, a duly
certified copy of the commission of William
H, Seward as Secretary of State of the United
States, dated March 5, 1861, signed by Abra
ham Lincoln, President of the United States,
and attested by J. S. Black, Secretary of
State, under the seal of the United States.

June 14, 1865.

Beigadiee-Genbeal E. D, Townsend,
Recalled for the Prosecution,
Q, Do you know the fact that Abraham
Lincoln acted as President of the United
States from and after the 4th of March, 1861,
until the 15th of April, 1865, when he died?
A, Yes, sir; I had frequent official inter
course with him as President of the United
States during that time,
Q, Do you know the fact that Hannibal
Hamlin acted as Vice-President during the
four years preceding the 4th day of March,
1865? A, Yes, sir.
Q. And that afterward Andrew Johnson
acted as Vice-President until the death of

Mr Swing. On behalf of Mr Stone and
myself, who are jointly counsel for Dr. Sam
uel A, Mudd, and who separately represent
other of the defendants, I ask leave to say
to the Court, that the arguments in defense
of those of the prisoners we represent, can
not be made in such manner as to give effi
cient aid to the Court in its investigation of
the questions arising under the charge and
specification preferred, unless the said charge
and specification are relieved of ambiguity
by an opening statement from the Judge
Advocate, indicating the offense or offenses,
for the commission of which he may claira
those of the accused whom we represent
should severally be convicted, and the laws
creating such offense or offenses, and pre
scribing the penalties thereof In support of
this suggestion we submit the following rea
sons: I There is but one charge, inform, against
the accused; but, in fact, there seem to be
four charges, each alleging the commission
of a separate and distinct offense, as follows:
1, Maliciously, unlawfully, and in aid of
the existing armed rebellion against the
United States of America, combining, confed
erating, and conspiring to kill and murder,
within the military department of Washing
ton, and within the defenses of the city,
Abraham Lincoln, late, and at the time of
conspiring, President of the United States,
and Commander-in-chief of the army and
navy thereof; Andrew Johnson, then Vice-
President of the United States; William H.
Seward, Secretary of State; and Ulysses S,
Grant, Lieutenant-General of the array, etc.
2, In pursuance of said malicious, unlaw
ful, and traitorous conspiracy, maliciously,
unlawfully, and traitorously murdering the
said Abraham Lincoln, President, etc.
3. Maliciously, unlawfully, and traitor-

DISCUSSION.

245

ously assaulting, with intent to kill and mur
der, the said 'William H. Seward, Secretary
of State, etc.
4. Lying in wait with intent maliciously,
unlawfully, and traitorously to kill and mur
der the said Andrew Johnson, then Vice-
President of the United States, and Ulysses
S. Grant, Lieutenant-General, etc.
The offenses enumerated, as aforesaid, in
the said charge, are separate and distinct,
and we, therefore, ask that the Judge Advo
cate should state, in regard to those of the
accused whom we represent, of which of said
offenses, under the evidence, he claims they
should each be convicted.
II. We further respectfully say we are not
advised of the law creating and defining
certain of said offenses, as the same are laid
in the said charge, and therefore ask that
the Judge Advocate specify the law cre
ating said offenses, or the code or system of
laws in which the same may be found, that
we may be able to present the case of such
of the accused as we represent, in a manner
conducive to the ends of justice, and there
fore more satisfactory to the Court
The crime of murder — assault with intent
to kill and murder, conspiracy to murder,
and conspiracy in aid of the rebellion — are
well understood and accurately defined by
the common or statute law, and for the com
raission of those crimes just and appropriate
penalties have been prescribed; but no laws
known to us define the crime of " traitor
ously " murdering, or of " traitorously " as
saulting with intent to kill and murder, or
of lying in wait "traitorously" to kill and
murder. If the last-named offenses, designa
ted and described in the charge, are created
crimes by some code of laws unknown to us,
and penalties are prescribed for their com
mission by such code, it is respectfully sub
mitted that to advise us of what that code
is, before we are called upon to present our
arguments, could certainly not defeat, and
might materially promote the ends of justice.
III. We further respectfully state, that the
Constitution of the United States provides
that in all crirainal prosecutions the accused
shall be entitled to be informed of the na
ture and cause of the accusations against
them. That several of the offenses charged
are, if they are crimes defined by the Consti
tution or the laws, offenses in the trial of
which rules of evidence are applicable, dif
ferent in important respects from the general
rules of criminal evidence. And the accused
have the right now (as they have had the
right at all prior stages of this trial) to
know for which of the offenses each is sev
erally held, so that counsel and the Court
raay know what part of the evidence pre
sented against all is applicable to the cases
of the accused severally. And that the con
stitutional guaranty above referred to, in our
judgment, entities the accused to such desig
nation of the specific charges on which it

may be claimed each should be convicted, as
well as to an indication of the code of laws
by which the last three of the offenses as
charged are defined, and their punishments
provided. The Judge Advocate, If the Court please,
when I recall the character of the pleadings
in this case, the complete distinctness of the
charge and of the specification, I confess
myself somewhat surprised at the appeal
which is now made to the Government on
behalf of the counsel for the prisoners. Cer
tainly, if I were to go over the ground again,
either orally or by writing, I could not make
known to the counsel with more certainty,
or with more appropriateness or terseness of
language, than has been already employed in
these pleadings, the precise offenses with
which the prisoners are charged, on which
they have been arraigned, in reference to
which the entire range of inquiry has been
directed, and upon which the judgment of
this Court is finally asked.
The general allegation is a conspiracy ;
and certainly the gentleman would not ask
me to expound to hira the law of conspir
acy, nor to bring frora the library here the
books which treat upon it As a profes
sional gentleraan of eminence, he is entirely
familiar with the range of the authorities on
that general subject
The pleadings proceed, after averring this
conspiracy, (in which it is alleged all these
prisoners participated,) to set forth clearly
and specifically the part which it is believed
and alleged each one of them took in the
execution of that conspiracy.
The investigation here has carefully fol
lowed the line of allegation. We have
sought, in every instance, to show, as far as
the testimony would enable the Government
to do, that these parties, in the execution of
the conspiracy, performed precisely the acts
which it was charged they had performed.
Now, it can not be possible, in view of
these allegations, and in view of the proofs
which have been sifted again and again, in
the presence of the gentleraan and those as
sociated with hira, that he can have any
doubt, or can feel any embarrassment as to
the precise measure and manner of crimin
ality which is charged upon these parties,
and upon which the judgment of this Court
is invoked. They are all alleged to have
participated in the general conspiracy, and in
the execution of that conspiracy, so far as
the assassination of the President is con
cerned; and then the particular parts which
each one performed therein afterward, either
in execution or in the atterapt to execute,
are set forth. It is for the Court to de
termine how far the proof sustains these
allegations; but it can not be that the gen
tleraan i^left with any doubt to embarrass
him as to the precise ground on which the
judgraent of this Court is asked in reference
to each of these parties.

246

THE CONSPIRACY TRIAL.

Then, as to the law applicable to this
case : that is a matter of which the counsel
are expected to take notice. We have no
special statute to which we can point him.
We have the great principles of jurispru
dence, which regulate this trial, with which
he is familiar, with which all men belonging
to his profession are expected and held to be
familiar I do not suppose we shall intro
duce a solitary authority which will in any
manner surprise the gentleman, or with which
he is not already perfectly conversant If I
had any such, I should certainly gladly pro
duce it for his inspection and consideration
in advance. But I decline making a formal
opening on the part of the Government It
is not necessary. It is not in accordance
with the practice of military courts, and in
this case I have not felt that I was at all
required to depart from the usage on that
subject This investigation has been con
ducted in the frankest and most open man
ner, and the gentleman is just as familiar as
the Judge Advocates, who represent the
Government, are with all the facts of this
case, on which these parties are sought to be
charged. As to the legal inferences which
result from those facts, he raust be expected
also to be advised,
Mr, Swing. I see no answer in the state
ment of the learned Judge Advocate to the
request that I have made. I understand
from the Judge Advocate that the only
crime charged against these parties is con
spiracy. Am I right?
The Judge Advocate. A conspiracy, as
alleged, to murder the President of the United
States, and the merabers of the Government
mentioned, and the execution of that con
spiracy as far as it went, and the atterapt to
execute it as far as alleged.
Mr. Swing. But I ask what crimes are
charged? I should like to have them enu
merated. The Judge Advocate, I confess that my
knowledge of language does not afford me
any more distinct designations than those
which I have employed in these pleadings.
General Kautz, It seems to me this ap
plication should have been made when the
charge and specification were first read.
Assistant Judge Advocate Burnett. If
the pleadings were not sufficiently distinct,
that was the time when a request should
have been made to correct them,
Mr Ewing, The application is certainly
pertinent now, and it would, of course, have
been pertinent at the beginning, I did not
see- the charge and specification until after
my clients had pleaded; nor did I get a seat
in the court-room until evidence was being
introduced, 1 have devoted a great deal of
time to the study of this charge and specifi
cation, and the statement *hich I have pre
sented is presented in entire good fhith, for
the purpose of learniiig whether my clients
are charged with, and being tried for, four

distinct crimes — to-wit: conspiratiy, murder,
assault and battery with intent to kill, and
lying in wait — or whether they are charged
simply with one crime — conspiracy. And
after the same deliberate consideration of
the charge and specification, I am utterly
unable to know in what code or system of
laws the crimes of " traitorously murdering,"
" traitorously lying in wait," " traitorously
assaulting with intent to kill," are defined,
and their punishments provided, I should
like an answer to the question, how many
distinct crimes are the accused charged with,
and what are those crimes? I can not tell,
from the charge and specification with cer
tainty. Assistant Judge Advocate Bingham, I
understood you to say there were four.
Mr Swing. It seems to me so, but I should
like to know whether I am right iu that
The Judge Advocate. I stated, in the
brief remarks I submitted, that I regarded
them all as charged with conspiring to assas
sinate the President of the United States,
and the various members of the Governraent
named in the pleadings; and they are further
charged with having executed that conspir
acy, so far as the assassination of the Pres
ident was concerned, and the attempt to
assassinate the Secretary of State, and to
have attempted its execution, so far as con
cerns the lying in wait and other matters,
which are distinctly set forth as indicating
the individual action of each of these con
spirators in connection with the general pro
gramme of crime as charged, all being in
pursuance of the conspiracy, all alleged to
be in aid of the rebellion, and therefore
properly charged as " traitorously '' done, as
well as feloniously done.
Assistant Judge Advocate Bingham, I
have no hesitation, if the Judge Advocate
General will excuse me in making this re
mark to Mr, Ewing, not at all under the
belief that by it I shall do any thing more
than to suggest to him what he already
knows, that the act of any one of the par
ties to a conspiracy in its execution, is the
act of every party to that conspiracy; and
therefore the charge and specification that
the President was murdered in pursuance of
it by the hand of Booth, is a direct and un
equivocal charge that he was murdered by
every one of the parties to this conspiracy,
naraing the defendants by narae. We rely
for the support of that part of this case upon
the general and accepted rules of the com
mon law, as declared in our own courts, as
well as in other courts where the coramon
law obtains,
Mr. Swing, I understand that law of
conspiracy perfectly well, but I want to re
new again my inquiry, whether these persons
are charged with the crime of conspiracy
alone, and that these acts of murdering, as
saulting, and lying ih wait, were merely acta
done in execution of that conspiracy — •

FINDINGS AND SENTENCES.

247

Assistant Judge Advocate Bingham. And
not crimes?
Mr. Swing. Or whether they are charged
with four distinct crimes in this one charge?
Assistant Judge Advocate Bingham. I
answer the gentleman again, that where par
ties are indicted for a conspiracy, and the
execution thereof, it is but one crime at the
common law, and that, upon all authority,
as many overt acts in the execution of that
conspiracy as they are guilty of, may be laid
in the same count; and I rest it upon the
authority of Hale, and Foster, and Hawkins,
Mr, Ewing. It is, then, I understand, one
crime with which they are charged.
Assistant Judge Advocate Bingham. One
crime all round, with various parts per
formed. Mr, Swing, The crime of conspiracy.
Assistant Judge Advocate Bingham. It is
the crime of murder as well. It is not simply
conspiring, but executing the conspiracy
treasonably and in aid of the rebellion.
Mr. Swing. I should like an answer to
my question, if it is to be given : How many
distinct crimes are my clients charged with
aud being tried for? I can not tell.
Assistant Judge Advocate Bingham, We
have told you, it is all one transaction.
The Judge Advocate, It may be my mis
fortune, but I think it is not my fault, if
the gentleman- has not already the answer
which he seeks. I can not give him a better
one. Mr. Swing. Inasmuch as I get no answer
intelligible to me in response to that question,
a question of the utmost gravity, a question
deeply affecting the lives and liberties of
those whom I represent, I now respectfully
ask an answer to the other branch of the
inquiry: By what code or system of laws is
the crime of "traitorously" murdering, or
"traitorously'' assaulting with intent to kill,
or "traitorously" lying in wait, defined?
The Judge Advocate. I think the com
mon law of war will reach that case. This
is a crirae which has been committed in the
midst of a great civil war, in the capital of
the country, in the camp of the Coramander-
in-chief of our armies, and if the common
law of war can not be enforced against crim
inals of that character, then I think such a
code is in vain in the world.
Mr, Swing, Do you base it, then, only on
the law of nations ?
The Judge Advocate. The common law
of war,
Mr. Swing. Is that all the answer to the
question ?
The Judge Advocate. It is the one which
1 regard as perfectiy appropriate to give.
Mr. Swing. I am as much in the dark
now as to that as I was in reference to the
other inquiry.
General "Wallace. I understand Mr. Ewing
to make an application that the Court shall
direct the Judge Advocate or his assistants

to open the case, responding to tho questions
which he has propounded.
Mr Swing. That is my application.
The Commission overruled the application.

[Omitted from pago 133.]
Henry Hawkins (colored.)
For the Defense, — June 13.
By Mr. Aikbn.
I have lived at Surrattsville about eleven
years. I was formerly a slave of Mrs. Sur
ratt She always treated me kindly, and she
was very good to all her servants. I remem
ber the Government horses breaking away
from Giesboro, and that seven of them came
to Mrs, Surratt's stable ; they were there for
a fortnight or more, and then the Government
sent for thera, I do not know that Mrs, Sur
ratt had a receipt for them, but I know that
she bought hay and grain to feed them with.
I have never heard Mrs. Surratt talk in
favor of the South; never heard any expres
sions, loyal or disloyal, frora her while I was
there. She has often fed Union soldiers that
passed her house, and always gave thera the
best she had ; and I do not think she took
any pay for it; she took none that I know of
I do not know much about Mrs. Surratt's
eyesight being bad, but I he^rd she could not
see some time back, and that she had to wear
specs.

Court-Room, Washington, D. 0., "l
June 29, 1865, 10 o'clock A. M. J
The Comrpission met, with closed doors,
pursuant to adjournment
All the merabers present; also the Judge
Advocate and the Assistant Judge Advocates.
The Commission then proceeded to deliber
ate upon the evidence adduced in the case
of each of the accused.
Pending the deliberation, at 6 o'clock P.
M., the Comraission adjourned to meet again,
with closed doors, on Friday, June 30, at It)
o'clock, A. M.

Court-Room, Washington, D. C, "l
June30, 1865, 10 o'clock A.M. J
The Commission met, with closed doors,
pursuant to adjournment
All the members present ; also the Judge
Advocate and the Assistant Judge Advocates.
The Commission then proceeded to deliber
ate upon the evidence adduced in the case
of each of the accused.
David S, Herold.
After mature consideration of the evidence
adduced in the case of the accused, David
E, Hbrold, the Commission find the said
accused —
Of the Specification  Guilty,
Except "combining, confederating and con-

248

THE CONSPIRACY TRIAL.

spiring with Edward Spangler ;" as to which
part thereof  Not Guilty.
Of the Charge  Guilty.
Except the words of the charge, "combining,
confederating, and conspiring with Edward
Spangler;" as to which part of the charge.
Not Guilty,
And the Commission do, therefore, sentence
him, the said David E. Herold, to be hanged
by the neck until he be dead, at such time
and place as the President of the United
States shall direct; two-thirds of the Com
mission concurring therein,
Gborgb a. Atzerodt.
After mature consideration of the evidence
adduced in the case of the accused George
A. Atzerodt, the Commission find the said
accused —
Of the Specification  Guilty.
Except "combining, confederating, and con
spiring with Edward Spangler ; " of this
Not Guilty.
Of the Charge  Guilty.
Except "combining, confederating, and con
spiring with Edward Spangler;" of this
Not Guilty,
And the Comraission do, therefore, sentence
hira, the said George A. Atzerodt, to be
hanged by the neck until he be dead, at such
time and place aS the President of the United
States shall direct; two-thirds of the Com
mission concurring therein.
Lewis Payne.
After mature consideration of.the evidence
adduced in the case of the accused, Lewis
Payne, the Commission find the said ac
cused —
Of the Specification  Guilty.
Except " combining, confederating, and con
spiring with Edward Spangler ; " of this
Not Guilty,
Of the Charge  Guilty.
Except "combining, confederating, and con
spiring with Edward Spangler;" of this
Not Guilty.
And the Commission do, therefore, sen
tence him, the said Lewis Payne, to be hanged
by the neck until he be dead, at such time
and place as the President of the United
States shall direct; two-thirds of the Com
mission concurring therein.
Mrs. Mary E. Sueeatt.
After mature consideration of the evidence
adduced in the case of the accused, Maey E.
Surratt, the Commission find the said ac
cused —
Of the Specification  Guilty.
Except as to " receiving, sustaining, harboring,
and concealing Samuel Arnold and Michael

O'Laughlin," and except as to " combining
confederating, and conspiring with Edward
Spangler;" of this  Not Guilty.
Of the Charge  Guilty.
Except as to "combining, confederating, and
conspiring with Edward Spangler;" of this
Not Guilty.
And the Commission do, therefore, sentence
her, the said Mary S, Surratt, to be hanged by
the neck until she be dead, at such time and
place as the President of the United States
shall direct; two-thirds of the raembers of
the Commission concurring therein.
Michael O'Laughlin.
After mature consideration of the evidence
adduced in the case of the accused, Michael
O'Laughlin, the Commission find the said
accused —
Of the Specification  Guilty.
Except the words thereof, "And in the fur
ther prosecution of the conspiracy aforesaid,
and of its murderous and treasonable pur
poses aforesaid, on the nights of the 13th and
14th of April, 1865, at Washington City, and
within the military department and military
lines aforesaid, the said Michael O'Laughlin
did there aud then lie in wait for Ulysses S.
Grant, then Lieutenant-General and Com
mander of the armies of the United States,
with intent then and there to kill and mur
der the said, Ulysses S. Grant;" of said
words Not Guilty; and except "combining,
confederating, and conspiring with Edward
~ langler;" of this  Not Guilty.
Of the Charge  Guilty.
Except " combining, confederating, and con
spiring with Edward Spangler;" of this
Not Guilty.
The Commission do, therefore, sentence the
said Michael O'Laughlin to be imprisoned
at hard labor for life, at such place as the
President shall direct
Edward Spangler.
After mature consideration of the evidence
adduced in the case of the accused, Edward
Spangler, the Commission find the said ac
cused —
Of the Specification  Not Guilty.
Except as to the words, " the said Edward
Spangler, on said 14th day of April, A. D.
1865, at about the same hour of that day, as
aforesaid, within said military department
and the military lines aforesaid, did aid and
abet him (meaning John Wilkes Booth) in
making his escape after the said Abraham
Lincoln had been murdered in manner afore
said;" and of these words  Guilty.
Of the Charge  Not Guilty.
But of having feloniously and traitorously
aided and abetted John Wilkes Booth in
making his escape after having killed and

PRESIDENTS APPROVAL.

249

murdered Abraham Lincoln, President of
the United States, he, the said Edward
Spangler, at the time of aiding and abetting
as aforesaid, well knowing that the said
Abraham Lincoln, President as aforesaid,
had been murdered by the said John Wilkes
Booth, as aforesaid  Guilty.
The Comraission do, therefore, sentence the
said Edward Spangler to be imprisoned at
hard labor for six years, at such place as the
President shall direct
Samuel Aenold.
After mature consideration of the evidence
adduced in the case of the accused, Samuel
Arnold, the Commission find the said ac
cused —
Of the Specification  Guilty,
Except " combining, confederating, and con
spiring with Edward Spangler;" of this
Not Guilty.
Of the Charge  Guilty.
Except " combining, confederating, and con
spiring with Edward Spangler;" of this
Not Guilty.
The Commission do, therefore, sentence the
said Samuel Arnold to imprisonment at hard
labor for life, at such place as the President
shall direct Samuel A. Mudd.
After mature consideration of the evidence
adduced in the case of the accused, Samuel
A. Mudd, the Commission find the said ac
cused —
Of the Specification  Guilty.
Except " combining, confederating, and con
spiring with Edward Spangler;" of this Not
Guilty; and excepting "receiving, entertain
ing, and harboring aud concealing said Lewis
Payne, John H, Surratt, Michael O'Laugh
lin, George A, Atzerodt, Mary S, Surratt, and
Samuel Xrnold;" of this  Not Guilty.
Of the Charge  Guilty.
Except "combining,, confederating and con
spiring with Edward Spangler," of this
Not Guilty,
The Commission do, therefore, sentence the
said Sarauel A, Mudd to be imprisoned at
hard labor for life, at such place as the Pres
ident shall direct
War Department, Adjutant-General's Office, \
Washington, July 5, 1865. J
To Major-General W. S, Hancock, United
States Volunteers, commanding the Middle
Military Division, Washington, D, C, :
Whbebas, By the Military Commission ap
pointed in paragraph 4, Special Orders No,
211, dated War Department, Adjutant-Gen
eral's Office, Washington, May 6, 1865, and
of which Major-General David Hunter, United
States Volunteers, was President, the follow

ing persons were tried, and, after raature con
sideration of evidence adduced in their cases,
were found and sentenced as hereinafter
stated, as follows.
[Hero follow tho findings and sentences in tho case of
David E, Herold, George A. Atzorodt, Lewis Payne, and
Mary 15, Surratt,]
And whereas, the President of the United
States has approved the foregoing sentences,
in the following order, to wit :
Executive Mansion, July 5, 1865.
The foregoing sentences in the cases of
David E. Herold, G. A. Atzerodt, Lewis
Payne, and Mary E. Surratt, are hereby ap
proved ; and it is ordered, that the sentences
in the cases of David E, Herold, G, A, Atze
rodt, Lewis Payne, and Mary E. Surratt, be
carried into execution by the proper military
authority, under the direction of the Secre
tary of "War, ou the 7th day of July, 1865,
between the hours of 10 o'clock, A. M., and
2 o'clock, P, M., of that day.
(Signed) ANDREW JOHNSON,
President,
Therefore, you are hereby coraraanded to
cause the foregoing sentences in the cases of
David E, Herold, G. A. Atzerodt, Lewis
Payne, and Mary S. Surratt, to he duly ex
ecuted, in accordance with the .President's
order. By command of the President of the
United States.
E. D. TOWNSEND,
Assistant Adjutant- General

PEBSlDENT S APPEOVAL OF THE FINDINGS AND
SENTENCES.
Executive Mansion, July 5, 1865.
The foregoing sentences in the cases of
David S, Herold, G. A. Atzerodt, Lewis
Payne, Michael O'Laughlin, Edward Span
gler, Samuel Arnold, Mary S. Surratt, and
Samuel A. Mudd, are hereby approved, and
it is ordered that the sentences of said David
S. Herold, G. A. Atzerodt, Lewis Payne, and
Mary S. Surratt be carried into execution
by the proper military authority, under the
direction of the Secretary of War, on the 7th
day of July, 1865, between the hours of 10
o'clock, A. M,, and 2 o'clock, P. M,, of that
day. It was further ordered, that the prison
ers, Samuel Arnold, Samuel A, Mudd, Ed
ward Spangler, and Michael O'Laughlin be
confined at hard labor in the Penitentiary
at Albany, New York, during the period
designated in their respective sentences.
ANDREW JOHNSON,
President.
Executive Mansion, July 15, 1869.
The executive order, dated July 5, 1865,
approving the sentences in the cases of
Samuel Arnold, Samuel A. Mudd, Edward
Spangler, and Michael O'Laughlin is hereby
modified, so as to direct that the said Arnold,

250

THE CONSPIRACY TRIAL.

Mndd, Spangler, and O'Laughlin, be confined
flt hard labor in the military prison at Dry
Tortugas, Florida, during the period desig
nated in their respective sentences.
The Adjutant-General of the army is di

rected to issue orders for the said prisoners
to be transported to the Dry Tortugas, and
to be confined there accordingly,
ANDREW JOHNSON,
President

APPLICATION FOR WRIT OF HABEAS CORPUS IN BEHALF OF
MARY E. SURRATT.

Washington, D. C, July 7, 1861
To the Son, Andrew Wylie, one of the Justices of
the Supreme Court of the District of Columbia:
The petition of Mary E. Surratt, by her coun
Sfel, F. A. Alkeu and John W. Clampitt, most
respectfully represents unto your Honor, that on
or about the 17th day of April, A. D. 1865, your
petitioner was arrested by the military authori
ties of the United States, under the charge of
complicity with the murder of Abraham Lin
coln, late President of the United States, and
has ever since that time been and is now con
fined on said charge, under and by virtue of the
Said military power of the United States, and is
in the special custody of Major-General "W. S.
Hancock, commanding Middle Military Divi
sion ; that since her said arrest your petitioner
has been tried, against her solemn protest, by a
Military Commission, unlawfully and without
warrant, convened by the Secretary of War, as
will appear from paragraph 9, Special Orders,
No. 211, dated War Department, Adjutant-Gen
eral's Office, "Washington, May the 6th, 1865,
and by said Commission, notwithstanding her
formal plea to the jurisdiction of the said Com
mission, is now unlawfully and unjustifiably
detained in custody and sentenced to be hanged
on to-morrow, July 7th, 1865, between the hours
of 10 A. M. and 2 P. M. ; your petitioner shows
unto your Honor that at the time of the com
mission of the said offense she was a private
citizen of the United States, and in no manner
Connected with the military authority of the
same, and that said offense was committed
within the District of Columbia, said District
being at the time within the lines of the armies
of the United States, and not enemy's territory,
or under the control of a military commander
for the trial of civil causes. But, on the con
trary, your petitioner alleges that the said crime
was an offense simply against the peace of the
tJnited States, properly aud solely cognizable
under the Constitution and laws of the United
States, by the Criminal Court of this District,
and which said court was and is now open for
the trial of such crimes aud offenses. ¦Where
fore, inasmuch as the said crime was only an
offense against the peace of the United States,
and not an act of war; inasmuch as your peti
tioner was ft private citizen of the same, and
not subject to military jurisdiction, or in any
wise amenable to military law; inasmuch as
said District was the peaceful territory of the
tfnited States, and that all crimes committed
within such territory are, under the Constitu
tion and laws of the United States, to be tried
only before its criminal tribunals, with the right
of public trial by jury ; inasmuch as said Cofli-

mission was a Military Oommission, organized
and governed by the laws of military court-
martial, and unlawfully convened without war
rant or authority, and when she had not the
right of public trial by jury as guaranteed to
her by the Constitution and laws of the United
States, that, therefore, her detention aud sen
tence are so without warrant against positive
law and unjustifiable: wherefore she prays your
Honor to grant unto her the United States' most
gracious writ of habeas carpus, commanding the
said Major-General W. S. Hancock to produce
before your Honor the body of your said peti
tioner, with the cause and day of her said de
tention, to abide, etc., and she will ever pray.
MARY E. SURRATT.
By Frederick A. Aiken, John W. Clampitt.
iNDOHSEn, — Let the writ issue as prayed, returnahle be
fore the Criminal Court of the District of Columbia, now
sitting, at the hour of 10 o'clock A, M,, this 7th day of
July, 186,'), ANDREW WYLIE,
A Juntice of the Supreme Court of the District of Columbia.
JULV 7th, 1865.
At half-past 11 o'clock on the morning of tha
7t.h of July, Major-General Hancock, accompa
nied by Attorney-General Speed, appeared be
fore Judge 'Wylie in obedience to the writ, and
made the following return;
Head-quarters Midblb Military Division, '(
Washington, D. C, July 7, 1865. J
To Hon. Andrew Wylie, Justice of the Supremi
Court of the District of Columbia :
I hereby acknowledge the service of the writ
hereto attached and return the same, aud respect
fully say that the body of Mary E. Surratt ia in
my possession, under and by virtue of an order
of Andrew Johnson, President of the United
States and Commander-iu-ohief of the Army and
Navy, for the purposes in said order expressed, a
copy of which is hereto attached aud made part
of this return ; aud that J do not produce said
body by reason of the order of the President of
the United States, indorsed upon said writ, to
which reference is hereby respectfully made,
dated July 7th, 1866. "W. S. HANCOCK,
Maj.- Gen. U. S. Vols., Commanding Middle Div.
The President's Indorsement.
Executive Oeeice, July 7, 1865, 10 A. M.
To Major- General W. S, Hancock, Commander, etci
I, Andrew Johnson, President of the United
States, do hereby declare that the writ of habeas
corpus has been heretofore suspended in such
oases as this, and I do hereby especially suspend
this writ, and direct that you proceed to execute
the order heretofore given upon the judgment of
the Military Commission, and you will give thia
order in return to the writ.
ANDRB'W JOHNSON, President.
The Court ruled that it yielded to the suspen
sion of the writ oi habeas corpus by the President
of the United States.
Tho sentences were duly carried into execution.

.A.K.a-TJ3i>^E3SrT

JURISDICTION OF THE MILITARY COMMISSION,

KEVEKDY JOHNSON,
Of Coumel-for Mrs, Surratt.

Mr, Predde/nt and Oentlemen of the Commission:
Has the Commission jurisdiction of the cases
before it, is the question which I propose to dis
cuss. That question, in all courts, civil, crim
inal, and military, must be considered and an
swered affirmatively before judgment can be
pronounced. And it must be answered cor
rectly, or the judgment pronounced is void.
Ever an interesting and vital inquiry, it is of
engrossing interest and of awful importance
when error may lead to the unauthorized taking
of human life. In such a case, the court called
upon to render, and the officer who is to approve
its judgment and have it executed, have a con
cern peculiar to themselves. As to each, a re
sponsibility is involved which, however consci
entiously and firmly met, is calculated and can
not fail to awaken great solicitude and induce
the most mature consideration. The nature of
the duty is such that even honest error affords
no impunity. The legal personal consequences,
even in a case of honest, mistaken judgment,
can not be avoided. That this is no exaggera
tion, the Commission will, I think, be satisfied
before I shall have concluded. I refer to it now,
and shall again. With no view to shake your
tii-mness. Such an attempt would be alike dis
courteous and unprofitable. Every member com
prising the Commission will, I am sure, meet all
the responsibility that belongs to it as becomes
gentlemen aud soldiers. I therefore repeat that
my sole object in adverting to it is to obtain a
well considered and matured judgment. So far
the question of jurisdiction has not been dis
cussed. The pleas which specially present it,
as soon as filed, were overruled. But that will
not, because properly it should not, prevent your
considering it with the deliberation that its
grave nature demands. And it is for you to
decide it, and at this time for you alone. The ccim-
raissiom you are acting under of itself does not
and could not decide it. If unauthorized it is a
mere nullity — the usurpation of a pbwer not
vested in the Executive, and conferring no au
thority whatever upon you. To hold otherwise
would be to make the Executive the exclusive
and conclusive judge of its own powers, and
that would be to make that department omnipo
tent. The powers of the President under the
Constitution are great, and amply sufficient to

give all needed efficiency to the office. The con
vention that formed the Constitution, and the
people who adopted it, considered those powers
sufficient, and granted no others. In the minds
of both (and subsequent history has served to
strengthen the impression) danger to liberty was
no more to be dreaded from the Executive than
from any other department of the Government.
So far, therefore, from meaning to extend its
powers beyond what was deemed necessary to
the wholesome operation of the Government,
they were studious to place them beyond the
reach of abuse. "With this view, before entering
"ou the execution of his office," the President is
required to take an oath "faithfully" to dis
charge its duties, and to the best of his " ability
preserve, protect, and defend the Constitution of
the United States." He is also liable to "be re
moved from office on impeachment for and con
viction of treason, bribery, or other high crimes
and misdemeanors." If he violates the Consti
tution ; if he fails to preserve it ; and, above all,
if he usurps powers not granted, he is false to
his official oath, and liable to be indicted and
convicted, and to be impeached. For such an
offense his removal from office is the necessary
consequence. In such a contingency, " he shall
be removed " is 'the command of the Constitu
tion. What stronger evidence could there be
that his powers, all of them, in peace and in
War, are only such as the Constitution confers ?
But if this was not evident frbm the instrument
itself, the character of the men who composed
the Convention, and the spirit of the American
people at that period, would prove it. Hatred of
a monarchy, made the rttore intense by the con
duct of the monarch from whose government
they had recently separated, and a deep-seated
love of constitutional liberty, made the more
keen and active by the sacrifices which had il
lustrated their revolutionary career, constituted
them a people who could never be induced to
delegate any executive authority not so carefully
restricted and guarded as to render its abuse or
usurpation almost impossible. If these observa
tions are well founded — and I suppose they will
not be denied — it follows that an executive aet
beyond executive authority can furnish no de^
fense against the legal consequences of what is
done under it. I have said that the question of
jurisdiction is ever open. It may be raised by
251

252

ARGUMENT OF REVERDY JOHNSON.

counsel at any stage of the trial, and if it is not,
the Court not only may, but is bound to notice
it. Unless jurisdiction then exists, the authority
to try does not exist, and whatever is done is
" coram non judice," and utterly void. This doc
trine is as apphoable to military as to other
courts. O'Brien tells us that the question may be
raised by demurrer if the facts charged do not
constitute an offense, or if they do, not an of
fense cognizable by a military court, or that it
may be raised by a special plea, or under the
general one of not guilty. O'Brien, 248.
DeHart saya: The court "is the judge of its
own competency at any stage of its proceedings,
and is bound to notice questions of jurisdiction
whenever raised." DeHart III,
The question then being always open, aud its
proper decision essential to the validity of its
judgment, the Commission must decide before
pronouncing such judgment whether it has juris
diction over these parties and the crimes im
puted to them. That a tribunal like this has no
jurisdiction over other than military offenses, is
believed to be self-evident. That offenses defined
and punished by the civil law, and whose trial
is provided for by the same law, are not the sub
jects of military jurisdiction, is of course true.
A military, as contradistinguished from a civil
offense, must therefore be made to appear, and
when it is, it must also appear that the military
law provides for its trial and punishment by a
military tribunal. If that law does not furnish
a mode of trial, or affix a punishment, the case
is unprovided for, and, as far as the military
power is concerned, is to go unpunished. But
as either the civil, common, or statute law em
braces every species of offense that the United
States, or the States have deemed it necessary to
punish, in all such cases the civil courts are
clothed with every necessary jurisdiction. In a
military court, if the charge does not state a
" crime provided for generally or specifically by
any of the articles of war,'' the prisoner must
be discharged. O'Brien, p. 235. Nor ia it suffi
cient that the charge ia of a crime known to the
military law. The offender, when he commits it,
must be subject to such law, or he is not subject
to military jurisdiction. The general law has
" supreme and undisputed jurisdiction over all.
The military law puts forth no auch preteuaions ;
it aims solely to enforce on the soldier the addi
tional duties he has assumed. It constitutes tri
bunals for the trial of breaches of military duty
only." ffBrien, 26, 27. "The one code (the
civil) embraces all citizens, whether soldiers or
not ; the other (the military) has no jurisdiction
over any citizen as auch." Ibid.
The provisions of the Constitution clearly
maintain the same doctrine. The Executive haa
no authority " to declare war, to raise and sup
port armies, to provide and maintain a navy,"
or to make "rulea for the government and regu
lation " of either force. Theae powers are ex
clusively in Congress. An army can not be
raised or have law for ita government and regu
lation except as Congresa shall provide. This
power of Congresa to govern and regulate the
army and navy, waa granted by the convention
without objection. In England, the King, as the

generalisaimo of the whole kingdom, has this
Bole power, though Parliament has frequently
interposed and regulated for itself. But with
ua, it was thought safest to give the entire power
to Congreas, "since otherwiae summary and
severe puniahmenta might be inflicted at the
mere will of the Executive." 3 Story's Com,,
sect. 1192. No member of the Convention, or
any commentator on the Constitution since, has
intimated that even this Congressional power
could be applied to citizens not belonging to the
army or navy. In respect, too, to the latter
class, the power was conferred exclusively on
Congress to prevent that class being made the
object of abuse by the Executive — to guard them
especially from "summary aud severe puniah-
ments " inflicted by mere Executive will. The
existence of auch a power being vital to diaoi-
pline, it was neceaaary to provide for it. But no
member suggested that it should be or could be
made to apply to citizens not in the military
service, or be given to any other department, iu
whole or iu part, than Congress. Citizens not
belonging to the army or navy were not made
liable to military law, or under any circum
stances to be deprived of any of the guaranties
of personal liberty provided by the Constitution.
Independent of the consideration that the very
nature of the Government ia inconsistent with
such a pretension, the power is conferred upon
Congress in terms that exclude all who do not
belong to " the land and naval forces." It is a
rule of interpretation coeval with its existence,
that the Government, in no department of it,
possesses powers not granted by express delega
tion or neceaaarily to be implied from those that
are granted. This would be the rule incident to
the very nature of the Constitution , but to place
it beyond doubt, and to make it an imperative
rule, the 10th amendment declares that " the
powera not delegated to the United States by
the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or
to the people." The power given to Congress,
"ia to make rules for the government and regu
lation of the land and naval forces." No arti
fice of ingenuity can make these words include
those who do not belong to the army and navy ;
and they are therefore to be construed to exclude
all others, aa if negative words to that effect had
been added. And thia is not only the obvious
meaning of the terms, conaidered by themaelves,
but ia demonstrable from other provisions of the
Constitution. So jealous were our anoeators of
ungranted power, and so vigilant to protect tho
citizen against it, that they were unwiUing to
leave him to the safeguards which a proper-
conatruction of the Constitution, as originally
adopted, furnished. In thia they resolved that
nothing should be left in doubt. They de
termined, therefore, not only to guard him against
executive and judicial, but against Congreaaional
abuse. "With that view, they adopted the fifth
constitutional amendment, which declares that
" no person ahall be held to answer for a capital
or otherwise infamoua crime, unless on a pre
sentment or indictment of a grand jury, exoepi
in cases arising in the land or naval forces, or in
the militia when in active service in time of war or
public danger," This exception is designed to

THE CONSPIRACY TRIAL.

253

leave in force, not to enlarge the power vested
in Congress by the original Constitution, "to
make rules for the government and regulation
of the land and naval forces." " The land or
naval forcea " are the terms uaed in both, have
the same meaning, and until lately, have been
auppoaed by every commentator and judge, to
exclude from military jurisdiction offensea com
mitted by citizens not belonging to such forces.
Kent, in a note to hia 1 Coma., p. 341, states,
and with accuracy, that "military and naval
crimes, aud offenses committed while the party
is attached to and under the immediate authoi'-
ity of the army and navy of the United States
and in actual service, are not cognizable under
the common law jurisdiction of the civil courts
of the United States." According to this great
authority every other class of persons and every
other species of offense, are within the juris
diction of the civil courts, and entitled to the
protection of the proceeding by presentment
or indictment, and a public trial in auch a
court. If the constitutional amendment has
not that effect, if it does not secure that pro
tection to all who do not belong to the army
or navy, then the provisions in the sixth
amendment are equally inoperative. They,
"in all criminal prosecutions," give the ac
cused a right to a speedy and public trial; a
right to be informed of the nature and cause
of the accusation, to be confronted with the
w^itnesses against him, to compulsory process
for hia witnesses, and the assistance of counsel.
The exception in the 5th amendment of cases
arising in the land or naval forcea applies by
necessary implication, at least in part, to this.
To fconstrue this aa not containing the ex
ception would defeat the purpose of the ex
ception ; for the provisions of the 6th amend
ment, unless they are subject to the exceptions
of the 5th, would be inconsistent with the 5tb.
The 6th ia therefore to be conatrued as if it in
words contained the exception. It is submitted
that this is evident. The consequence is, that
if the exception can be made to include those
who, in the language of Kent, are not, when
the offense was committed, "attached to and
under the immediate authority of the army or
navy, and in actual service," the securities
designed for other citizena by the 6th article
are wholly nugatory. If a military oommis-
Bion, created by the mere authority of the
President, can deprive a citizen of the benefit
of the guaranties secured by the 5th amend
ment, it can deprive him of those secured by
the 6th. It may deny him the right t!o a " speedy
and public trial," information " of the nature
and cause Of the accusation," of the right " to
be cqnfronted with the witnesses against him,"
of compulsory process for hia witnesses," and
of "the assistance of counsel for hia defense."
That this cap be done no one has aa yet main
tained; no opinion, however latitudinarian, of
executive power, of the effect of public neces
sity, in war or in peace, to enlarge its sphere,
and authorize a diaregard of ita limitations;
no one, however convinced he may be of the
policy of protecting accuaing witneaaes from a
public examination, under the idea that their
testimony can not otherwise be obtained, and

that crime may consequently go unpunished,
has to thia time been found to go to that extent.
Certainly, no writer haa ever maintained aaioh
a doctrine. Argument to refute it, ia unneces
sary. It refutes itaelf. For, if eound, the 6th
amendment, which our fathers thought so vital
to individual liberty when assailed by govern
mental prosecution, ia but a dead letter, totally
inefficient for ita purpose whenever the Govern
ment shall deem it proper to try a citizen by ".
military commiaaion. Againat such a doctrine
the very instincts of freemen revolt. It haa no
foundation but in the principle of unrestrained,
tyrannic power, and passive obedience. If it
be well founded, then are we indeed a nation
of slavea, and not of freemen. If the Executive
can legally decide whether a citizen ia to enjoy
the guaranties of liberty afforded by the Con
stitution, what are we but alaves? If the Presi
dent, or any of his subordinates, upon any pre
tence whatever, can depri've a citizen of auch
guaranties, liberty with ua, however loved, is
not enjoyed. But the Constitution is not ao
fatally defective. It is subject to no such re
proach. In war and in peace, it is equally po
tential for the promotion of the general welfare,
and aa involved iu and neceasary to such wel
fare, for the protection of the individual citizen.
Certainly, until thia rebellion, this haa been the
proud and cherished conviction of the country.
And it is to this conviction and the assurance
that it could never be shaken that our past
prosperity is to be referred. God forbid that
mere power, dependent for its exercise ou Ex
ecutive will (a condition destructive of political
happiness), shall ever be substituted in its
place. Should that unfortunately ever occur, un
less it waa soon corrected by the authority of the
people, the objects of our Revolutionary strug
gle, the sacrifices of our ancestors, and the de
sign of the Constitution will all have been in
vain. I proceed now to examine with somewhat of
particularity the grounds on which I am in
formed your juriadiction is maintained.
lat. That it ia an incident of the war power.
I. That power, whatevfer be its extent, is ex
clusively in Congresa. 'War can only be de
clared by that body. 'With its origin the
President has no concern whatever. Armies,
when necessary, can only be raised by the
same body. Not a soldier, without its author
ity, can be brought into service by the Execu
tive. He is as impotent to that end as a pri
vate citizen. And armies, too, when raised
by Congressional authority, can only be gov
erned and regulated by " rules " prescribed
by the same authority The Elecutive pos
sesses no power over the soldier except such
as Congresa may, by legislation, confer upon
him. If, then, it was true that the creation of
a military commission like the present ia in
cidental to the war power, it must be author
ized by the department to which that power
belongs, and not by the Executive, to whom
no portion of it belonga. And if it be said to
be involved in the power " to make rules for
the government and regulation of the land
and naval forces," the result ia the same. It

254

ARGUMENT OF REVERDY JOHNSON.

must be done by Congress, to whom that power
also exclusively belongs, and not by the Ex
ecutive. Haa Congress, then, under either
power, authorized auch a commiasion as this
to try auch cases aa these ? It is confidently
asserted that it ,has not. If it has, let the
statute be produced. It is certainly not done
by that of the 10th of April, 1806, " establish
ing articles for the government of the armies
of the United States." No military courts are
there mentioned or provided for but courts-
martial and courta of inquiry. And their
mode of appointment and organization, and
of proceeding, and the authority vested in
them are also prescribed. Military commis
sions are not only not authorized, but are not
even alluded to. And, conaequently, the par
ties, whoever theae may be, who, under that
act, can be tried by courta-martial or courts
of inquiry, are not made subject to trial by a
military commission. Nor is such a tribunal
mentioned in any prior statute, or in any sub
sequent one, until those of the 17th of July,
1862, and of the 3d of March, 1863. In the
5th aection of the first, the records of " mili
tary commissions are to be returned for re
vision to the Judge Advocate General," whose
appointment it also provides for. But how
such commisaiona are to be conatituted, what
powers they are to have, how their proceed
ings are to be conducted, or what casea and
parties they are to try, is not provided for.
In the 38th section of the second, they are
mentioned as competent to try persona "lurk
ing or acting aa spies." The same absence in
the particulars stated in respect to the first
is true of this. And as regards this act of
1863, this reflection forcibly presents itself.
If military commiaaions can be created, and
from their very nature possesa jurisdiction to
try all alleged military offenses (the ground
on which your jurisdiction, it is said, in part
rests), why was it neceaaary to give them the
power, by express words, to try persona "lurk
ing or acting as spies ?" The military char
acter of such an offense could not have been
doubted. What reason, then, can be suggested
for conferring the power by express language
than that without it it would not be possessed?
Before these statutes a commission, called a
military commission, had been issued by the
Executive to Meaars. Davis, Holt and Camp
bell, to examine into certain military claima
againat the Western Department, and Con
gress, by its resolution of the llth of March,
1862 (No. 18), provided for the payment of its
awarda. Against a commiaaion of that char
acter no objection can be made. It is but an
cillary to the auditing of demands upon the
Government, and in no way interferes with
any constitutional right of the citizen. But
until this rebellion a military commission like
the present, organized in a loyal State or Ter
ritory where the courta are open and their
proceedings unobatructed, clothed with the
juriadiction attempted to be conferred upon
you — a jurisdiction involving not only the
liberty, but the lives of the parties on trial —
it is confidently stated, is not to be found
sanctioned, or the most remotely recognized,

or even alluded to, by any writer on military
law in England or the United States, or in
any legislation of either country. It has its
origin in the rebellion, and like the danger
oua heresy of aeoesaion, out of which that
aprung, nothing is more certain in my opin
ion than that, however pure the motives of its
origin, it will be considered, as it is, an al
most equally dangerous heresy to constitu
tional liberty, and the rebellion ended, perish
with the other, then and forever. But to pro
ceed ; such commissions were authorized by
Lieutenant-General Scott in hia Mexican cam
paign. When he obtained posseasion of the
City of Mexico, he, on the 17th of September,
1847, re-publiahed, with additiona, his order of
the 19th of February preceding, declaring
martial law. By this order, he authorized
the trial of certain offenaes by military com
missions, regulated their proceedings, and
limited the punishments they might inflict.
From their jurisdiction, however, he excepts
cases "clearly cognizable by court-martial,"
and in words limits the casea to be tried to
such aa are (I quote) " not provided for in the
act of Congress establishing rules and arti
cles for the government of the armies of the
United States," of the lOth of April, 1806.
The second clause of the order mentions,
among other offensea to be so tried, "assassi
nation, murder, poisoning ;" and in the fourth
(correctly, as I submit, with all respect for a
contrary opinion), he states that " the rules
and articlea of war" dc not provide for the
puniahment of any one of the designated of
fenses, " even when committed by individuals
of the army upon the persona or property of
other individuals of the same, except in the
very restricted case in the 9th of the articles."
The authority, too, for even this restricted
commiasion — Scott — not more eminent aa sol
dier than civilian — placed entirely upon the
ground that the named offensea, if committed
in a foreign country by American troops,
could not be puniahed under any law of the
United States then in force. " The Constitu
tion of the United States and the rulea and
articlea of war," he aaid, and said correctly,
provided no court for their trial or punish
ment, " no matter by whom, or on whom "
committed. Scotfs Autobiography, 392.
Aud he further tella ua that even thia order,
ao limited and so called for by the greatest
public neceasity, when handed to the then
Secretary of War (Mr. Marcy) "for his ap
proval," " a startle at the title (martial law
order) was the only comment he then, or ever,
made on the subject," and that it was " soon
silently returned as too explosive for safe
handling." "A little later (he adds), the At-
torney-General (Mr. Gushing) called and
asked for a copy, and the law officer of the
Government, whose busineaa it is to speak on
all such matters, waa atrioken with legal dumb
ness," lb. How much more startled and
more paralyzed would these great men have
been had they been conaulted on such a com
mission aa thia ! — a commisaion, not to ait in
another country, and to try offenses not pro
vided for by any law of the United Stately

THE CONSPIRACY TRIAL.

266

eivil or military, but in their own country,
and in a part of it where there are laws pro
viding for their trial and puniahment, and
civil courts clothed with ample powers for
both, and in the daily and undiaturbed exer
cise of their juriadiction ; and where, if there
should be an attempt at disturbance by a force
which they had not the power to control, they
could invoke (and it would be his duty to af
ford it) the President to use the military
power at his command, and which everybody
knows to be ample for the purpose.
If it be suggested that the civil courts and
juries for this District could not safely be re
lied upon for the trial of theae cases, because
either of incompetency, disloyalty or corrup
tion, it would be an unjust reflection upon the
judges, upon the people, upon the Marshal, an
appointee of the President, by whom the ju-
riea are summoned, and upon our civil insti
tutions themselves — upon the very institu
tions on whose integrity and intelligence the
safety of our property, liberty a]>d lives, our
ttnceators thought, could not only be safely
rested, but would be safe nowhere else. If it
be suggeated that a secret trial, in whole or
in part, aa the Executive might deem expe
dient, could not be had before any other than
a military tribunal, the answer is that the
Constitution, "in all criminal prosecutions,"
gives the accused "the right" to a "public
trial." So abhorrent were private trials to
our ancestors, so fatal did they deem them to
individual security, that they were thus de
nounced, and, aa they no doubt thought, so
guarded againat as in all future time to be
impoasible. If it be suggested that witnesses
may be unwilling to testify, the answer is
that they may be compelled to appear and
made to testify.
But the suggestion, upon another ground,
is equally without force. It reats on the idea
that the guilty only are ever brought to trial
— that the only object of the Constitution and
lawa in thia regard ia to afford the means to
establish alleged guilt; that accusation, how
ever made, ia to be esteemed prima facie evi
dence of guilt, and that the Executive should
be armed, without other reatriction than his
own discretion, with all the appliancea deemed
by him neceaaary to make the presumption
from such evidence conclusive. Never was
there a more dangerous theory. The peril to
the citizen from a prosecution ao conducted,
as illustrated in all history, ia so great that
the very elementary principles of constitu
tional liberty, the spirit and letter of the Con
stitution itself repudiate it.
II. Innocent parties, sometimes by private
malice, sometimea for a mere partiaan pur-
poae, aometimes from a suppoaed public policy,
have been made the aubjects of criminal accu
sation. History is full of such instances.
How are such parties to be protected if a pub
lic trial, at the option of the Executive, can
be denied them, and a secret one, in whole, or
in part, substituted? If the names of the
witneasea, and their evidence, are not pub
Ushed, what obatacle does it not interfpose to
establish their innocence? The character of

the witnesaea against thorn may bo all import
ant to that end. Kept in priaon, with no
meana of consulting the outer world, how can
they make the necessary inquiries? How can
those wlio may know the witnesses be able to
communicate with them on the subject? A
trial so conducted, though it may not, aa,
no doubt, is the case in the preacnt inatance,
be intended to procure the punishment of any
but the guilty, it ia obvious, subjects the inno
cent to great danger. It partakes more of the
character of the Inquiaition, which the en
lightened civilization of the age has driven
almost wholly out of exiatenco, than of a tri
bunal suited to a free people. In the palmiest
days of that tribunal, kings, aa well as people,
stood abashed in its preaence, and dreaded its
power, The accused was never informed of
the names of hia accusers ; heresy, suspected,
waa ample ground for arreat; accomplices and
criminala were received aa witnesses, and the
whole trial was secret, and conducted in a
chamber almost as silent as the grave. It was
long since denounced by the civilized world,
not because it might not at times puniah the
heretic (then, in violation of all rightful hu
man power, deemed a criminal), but because
it waa as likely to punish the innocent as the
guilty. A public trial, therefore, by which the
names of witnesaea and the testimony are
given, even in monarchical and despotic Gov
ernments, is now esteemed amply adequate to
the punishment of guilt, and essential to the
protection of innocence. Can it be that thia
ia not true of us ? Can it be that a aecret
trial, wholly or partially, if the Executive so
decides, is all that an American citizen is en
titled to? Such a doctrine, if maintained by
an English monarch, would shake his govern
ment to ita very center, and, if persevered in,
would lose him his crown. It will be no an
swer to these observations to say that this
particular trial has been only in part a aecret
one, and that secrecy will never be reaorted to,
except for purpoaes of justice. The reply is,
that the principle itself ia inconsistent with
American liberty, as recognized and secured
by constitutional guaranties. It supposes
that, whether these guaranties are to be en
joyed in the particular case, and to what.ex-
tent, is dependent on Executive will. The
Constitution, in thia regard, is designed to
secure them in spite of such will. Ita patri
otic authors intended to place the citizen, in
this particular, wholly beyond the power, not
only of the Executive, but of every depart
ment of the Government. They deemed the
right to a public trial vital to the security of
the citizen, and especially and abaolutely
necessary to hia protection againat Executive
power. A public trial of all criminal prose
cutions they, therefore, s,ecured by general and
unqualified terms. "What would these great
men have aaid, had they been aaked so to qual
ify the terms aa to warrant its refuaal, under
any oircumatancea, and make it dependent
upon Executive diacretion ? The member who
made the inquiry would have been deemed by
them a traitor to liberty, or insane. What
would they have said if told that, without

256

ARGUMENT OP REVERDY JOHNSON.

such qualification, the Executive would be able
legally to impose it as incidental to Executive
power? If not received with derision, it
would have been indignantly rejected aa an
Imputation upon those who, at any time there
after, should legally fill the office.
III. Let me present the question in another
view. If auch a Commisaion as this, for the
trial of cases like the present, can be legally
constituted, can it be done by mere Executive
authority ?
1. You are a Court, and, if legally exist
ing, endowed with momentous power, the
higheat known to man, that of passing upon
the liberty or life of the citizen. By the ex
press words of the Constitution an army can
only be raised, and governed and regulated,
by laws passed by Congress. In the exercise
of the power to rule and govern it, the act be
fore referred to, of the 10th of April, 1806, ea-
tabliahing the articles of war, waa passed.
That act provides only for courts-martial and
courts of inquiry, and designates the cases to
be tried before each, and the laws that are to
govern the trial. Military commissions are
not mentioned, and, of course, the act con
tains no provision for their government.
Now, it ia submitted, as perfectly clear, that
the creation of a court, whether civil or mili
tary, is an exclusive legislative function, be
longing to the department upon which the
legislative power ia conferred. The jurisdic
tion of such a court, and the lawa and regula
tions to guide and govern it, is also exclu-
aively legislative. What cases are to be tried
by it, how the judgea are to be selected, and
how qualified, what are to be the rules of evi
dence, and what punishments are to be in
flicted, all solely belong £o the same depart
ment. The very element of constitutional
liberty, recognized by all modern writers on
government as essential to its security, and
carefully incorporated into our Constitution,
is a separation of the legislative, judicial, and
executive powers. That this separation is
made in our Constitution, no one will deny.
Article 1st declares that "All legislative pow
ers herein granted shall be vested in a Con
gress." Article 2d vesta "the Executive
power" in a Preaident, and Article 3d, "the
judicial power" in certain designated courts,
and in courta to be thereafter constituted by
Congress. There could not be a more careful
segregation of the three powers. If, then,
courts, their laws, modes of proceeding, and
judgments, belong to legislation (and thia, I
suppose, will not be questioned), in the absence
of legislation in regard to this Court, and its
juriadiction to try the present caaea, it has for
that purpose no legal existence or authority.
The Executive, whose functions are altogether
executive, can not confer it. The offenses to
be tried by it, the laws to govern its proceed
ings, the punishment it may award, can not,
for the same reason, be preacribed by the Ex
ecutive. Theae, as well as the mere constitu
tion of the Court, all exclusively belong to
Congress. If it be contended that the Execu
tive haa the powers in queation, beoauae by im
plication they are involved in the war power.

or in the Preaident'a constitutional function as
commander-in-chief of the army, then this
consequence would follow, that they would
not be subject to Congressional control, as
that department has no more right to interfere
with the constitutional power of the Executive
than that power has a right to interfere with
that of Congresa. If, by implication, the
powers in queation belong to the Executive, he
may not only constitute and regulate military
commissions, and prescribe the laws for their
government, but all legislation upon the aub-
ject by Congreas would be usurpation. That
the proposition leads to this result would seem
to be clear, and, if it does, that result itself ia
so inconsistent with all previous legislation,
and all executive practice, and'' ao repugnant
to every principle of constitutional liberty,
that it demonstrates its utter unsoundness.
Under the power given to Congress, " to make
rules for the government and regulation of the
land" forces, they have, from time to time, up
to and including the act of the 10th of April,
1806, and since, enacted such rules as they
deemed to be neceasary, as well in war as in
peace, and their authority to do so has never
been denied. This power, too, to govern and
regulate, from its very nature, is exclusive.
Whatever is not done under it, ia to be conaid
ered. as purposely omitted. The worda used in
the delegation of the power, " govern and reg
ulate," necessarily embrace the entire subject,
and exclude all like authority in others. The
end of such a power can not be attained, ex
cept through uniformity of government and
regulation, and this ia not to be attained if tho
power is in two handa. To be effective, there
fore, it must be in one, and the Constitution
gives it to one^to Congreas — in expreas
terms, and nowhere intimates a purpose to be
stow it, or any portion of it, upon any other
department. In the absence, then, of all men
tion of military commissions in the Constitu
tion, and in the presence of the sole authority
it confers on Congress, by rules of ita own en
acting, to govern and regulate the army, and,
in the absence of all mention of auch commia-
sions iu the act of the 10th of April, 1806, and
of a single word in that act, or in any other,
how can the power be conaidered aa in the
President? Further, upon what ground, other
than those I have examined, can hia authority
be placed ?
I. Is it that the conatitutional guaranties
referred to are designed only for a atate of
peace? There is not a syllable in the instru
ment that justifies, even plausibly, such a
qualification. They are secured by the most
general and comprehensive terms, wholly in
consistent with any reatriction. They are,
also, not only not confined to a condition of
peace, but are more peculiarly necessary to
the security of personal liberty in war than in
peace. All history tella ua that war, at.timea,
maddens the people, frenzies government, and
makes both regardless of conatitutional lim-
itationa of power. Individual aafety, at such
perioda, ia more in peril than at any other.
Conatitutional limitationa and guaranties are,
thon, also absolutely necessary to the protoo-

THE CONSPIRACY TRIAL.

257

tion of the Government itaelf. The maxim,
"salui populi suprema est lex," is but fit for a ty
rant's uae. Under its pretense the grosseat
>yi'ongs have been committed, the most awful
Crimea perpetrated, and every principle of
freedom violated, until, al laat, worn down by
suffering, the people, in very despair, have
acquiesced in a resulting despotism. TJio
safety which liberty needs, and without which
it aickeua and diea, is that which law, and not
mere unlicensed human will, att'ords. The
.Vriatotelian maxim, "Salus publica supremas est
lex" — "Let the public weal bounder the pro
tection of the law" — is the true and only safe
maxim. Nature, without law, would be chaos ;
government, without law, anarchy or despot
ism. Against both these last, in war and in
peace, the Constitution happily protects us.
II. If the power in question ia claimed un
der tho authority supposed to be given the
President in certain cases to suspend the writ
of habeas corpus and to declare martial law,
the claim ia equally, if not more evidently,
untenable. 1. Because the first of these powers, if given
to the President at all, is given "when, in cases
of rebellion or invasion," he deems the public
safety requires it. I think he has this power,
but there are great and patriotic names who
think otherwise. But if he has it, or if it be
in Congress alone, it' is entirely untrue that
its exercise works any other result than the
suspension of the writ — the temporary suspen-
aion of the right of having the cause of arrest
passed upon at once by the civil judges. It
in no way impairs or suspemds the other rights
secured to the accused. In what court he is to
be tried, how he is to be tried, what evidence is
to be admitted, and what judgment pronounced
are all to be what the Constitution secures, and
the laws provide in similar cases, when there is
no suspension of the writ. The purpose of the
writ is merely, without delay, to ascertain the
legality of the arrest. If adjudged legal, the
party is detained ; if illegal, discharged. But
in either contingCBCy, when he is called to an
swer any criminal accusation, and he is a civil
ian, and not subject to the articles of war con
stitutionally enacted by Congress, it must be
done by presentment or indictment, and hia
trial be had in a civil court, having, by State or
Congressional legislation, jurisdiction over the
crime and under laws governing the tribunal
and defining the punishment. The very fact,
too, that express power is given in a certain
condition of things to suspend the writ referred
to, and that no power is given to suspend or
deny any of the other aeourities for personal
liberty provided by the Constitution, is conclu
sive to show that all of the latter were designed
to be in force " in cases of rebellion or inva
sion," as well as in a, state of perfect peace and
safety. III. I have already referred to the act of
1806 establishing the articles of war, and said
what must be admitted, that it provides for no
miUtary court like this. But for argument' a
sake, let it be conceded that it does. And I
then maintain, with becoming confidence and
due respect for a different opinion, that it doea
17

not embrace tho crimes charged againat these
parties or the parties themaelves.
First. Tlie charge ia a traitorous conspiracy
to take the lives of the designated persona "in
aid of the exiating armed rebellion." Second.
That in the execution of the conspiracy, tho
actual murder of the late President, and the
attempted murder of the Secretary of State,
occurred. Throughout tbe charge and its spec
ification, the conspiracy and its attempttd
execution are alleged to have been trattoront.
The acouaation, therefore, ia not one merely o)
murder, but of murder deaigned and in pari
accomplished, with traitorous purpose. If the
charge is true, and Ihe intent (which is made u
substantial part of it) be also true, then the
crime is treason, and not simple murder.
Treason against the United States, aa defined
by the Constitution, can "consist only in levy
ing war against them, or in adhering to their
enemies, giving them aid and comfort."
/// Art, This definition not only tells us what
treason is, but tells us that no other crime than
the defined one shall be conaidered the offenae.
And the same section providea that "no person
shall be convicted of treaaon, except on the tea-
timony of two witneasea to the same overt act,
or on confeaaion in open court," and gives to
Congress the power to declare what ita puniah
ment ahall be. The offense in the general ia
the same in England. In that country, at no
period since its freedom became settled, has any
other treason been recognized. During the
pendency of this rebellion (never before), it has
been alleged that there exists with us the offense
of military treason, punishable by the laws of
war. It is so stated in the instructions of Gen
eral Halleck to the then commanding officer in
Tennessee, of the 6th of March, 1863. Law
rence's Wheaton, Suppt, p, 41. But Halleck
confines it to acts committed against the army
of a belligerent, when occupying the territory
of the enemy. And he aays what is certainly
true, if such an offense can be committed, that
it "is broadly distinguished from the treason
defined in the constitutional and statutory laws,
and made punishable by the civil courts." But
the term military treason is not to be found in
any English work or military order, or, before
this rebellion, in any American authority.
It has evidently been adopted during tbe
rebellion as a doctrine of military law on the
authority of continental writers in governments
less free than those of England and the United
States, and in which, because they are less free,
treason is made to consist of certain specific
acts, and no others. But if Halleck is right,
and all our prior practice, and that of England,
from whom we derive ours, is to be abandoned,
the cases before you are not cases of "military
treason," as he defines it. When the offenae
here alleged ia stated to have occurred in this
District, the United States were not and did
not claim to be in ita occupation as a belliger
ent, nor was it pretended that the people of
thia District were, in a belligerent sense, ene
mies. On tho contrary, they were citizens
entitled to every right of citizenship. Nor
were the parties on trial enemies. They were
either citizens of the District, or of Maryland,

258

ARQUxHENT OF REVERDY JOHNSON.

and under the protection of the Constitution.
The offense charged, then, being treaaon, it is
treaaon as known to the Constitution and laws,
and can only be tried aud punished as they
provide. To consider these parties belligerents,
and their alleged offenae military treason, ia not
only unwarranted by the authority of Halleck,
but ia in direct conflict with the Constitution
and laws which the President and all of us are
bound to support and defend. The offense, then,
being treason, aa known to the Constitution, its
trial by a military court is clearly illegal. And
this for obvious reasons. Under the Constitu
tion no conviction of such an offense can be had,
"unless on the testimony of two witnesses to
the same overt act, or on confession in open
court." And under the laws the parties are
entitled to have " a copy of the indictment and
a list of the jury and witnesses, with the names
and places of abode of both, at least three en
tire days before the trial." They also have the
right to challenge peremptorily thirty-five of
the jury, and to challenge for cause without
limitation. Aud finally, unless the indictment
shall be found by a grand jury within three
years next after the treason done or committed,
they shall not be prosecuted, tried or puniahed.
Act 30th April, 1790, 1 stat. at large, 118, 119.
Upon what poaaible ground, therefore, can this
Commission possess the jurisdiction claimed for
it? It is not alleged that it is subject to the
proviaious stated, and in its very nature it is
impossible that it should be. The very safe
guards designed by the Constitution, if it has
such jurisdiction, are wholly unavailing. Trial
by jury in all cases, our English ancestors
deemed (as Story correctly tells us), "the great
bulwark of their civil and political liberties,
and watched with an unceasing jealousy and
solicitude." It constituted one of the funda
mental articles of Magna Charta — " Nullus liber
homo capiatur nee imprisonetur aut exulet, aut
aliquo mode, deslruaiur, etc.; nisi per legae judicium
parium suorum, vet per legem ierrea," This great
right the American colonists brought with them
as their birth-right and inheritance. It landed
with them at Jamestown and on the rock
of Plymouth, and was equally prized by Cav
alier and i?uritah; and ever since, to the
breaking out of the rebellion, has been enjoyed
and esteemed the protection and proud privi
lege of their posterity. At times, during the
rebellion, it has been disregarded and denied.
The momentous nature of the crisis, brought
about by that stupendous crime, involving, as
it did, the very life of the nation, has caused
the people to tolerate such disregard and de
nial. But the crisis, thank God, has passed.
The authority of the Government throughout
our territorial Umits is reinstated so firmly
that reflecting men, here and elsewhere, are
convinced that the danger haa passed never to
return. The result proves that the principles
-^ un which the Government rests have imparted
to it a vitality that will cause it to endure for
all time, in spite of foreign invasion or domes
tic insurrection; and one of those principles —
the choicest one — is the right in oases of "crim
inal prosecutions to a speedy and public trial
by an impartial jury," and in casea of treason

to the additional securities before adverted to.
The great purpoae of Magna Charta and the
Constitution was (to quote Story again) "to
guard against a spirit of oppression and tyran
ny on the part of rulers, and againat a spirit
of violence and vindictiveness on the part of
the people." The appeal for safety can, under
such circumstances, scarcely be made by inno
cence in any other manner than by tbe severe
control of courts of justice, and by the firm an I
impartial verdict of a jury sworn to do riglil,
and guided solely by legal evidence and a sense
of duty. In auch a course there is a double
security against the prejudices of judges, whv
may partake of ihe wishes and opinions of ihe Gov
ernment, and against the passions of the multi
tude, who may demand their victim with a
olamoroua precipitancy." And Mr. Justice
Blackstone, with the same deep sense of its
value, meeta the prediction of a foreign writer,
"that because Rome, Sparta, and Carthage havo
lost their liberties, those of England in time
must perish," by reminding hira, "that Rome,
Sparta, and Carthage, at the tine when their
liberties were lost, were strangers io ihe trial bti
jury." 3 Bla,, 379. That a right so valued, and
esteemed by our fathers to be so necessary to
civil liberty, so important to the very existence
of a free government, was designed by them to
be made to depend for its enjoyment upon the
war power, or upon any power intrusted to any
department of our Government, is a reflection
on their intelligence and patriotism.
IV. But to proceed: The articles of war, if
they provided for the punishment of the crimes
on trial, and authorized such a court as tliis,
do not include such parties as are now on
trj,^l. And, until the rebellion, I am not
aware that a different construction was ever
intimated. It is the exclusive fruit of the re
bellion. '
The title of the act ia, " An act for establish
ing rules and articles for the government of
the armies of ihe United States,"
The first aection states "the following shall
be the rules and articles by which the armie,i
of the United States shall be governed," and every
other section, except the 56th and 57th, are, in
words, confined to persona belonging to the
army in some capacity or other. I under
stand it to be held by some, that because such
words are not used in the two sections re
ferred to, it was the design of Congress to in
clude persons who do not belong to the army.
In my judgment, this is a wholly untenable
construction ; but if it was a correct one, it
would not justify the use sought to be made
of it in this instance. It would not bring
these parties for their alleged crime before a
military court known to the act ; certainly
not before a military commission — a court un
known to the act. The offense charged is a
traitorous conspiracy, and murder committed
in pursuance of it. Neither offenae, conspir
acy or murder, if indeed two are charged, is
embraced by either the 56th or 57th articles
of the statute. The 5Gth prohibits the reliev
ing "the enemy with money, victuals or am
munition, or knowingly harboring and pro
tecting him.'' Sophistry itself can not bring

THE CONSPIRACY TRIAL.

25y

the offenses in question, under this article.
The 57th prohibits only the "holding corre
spondence with, or giving intelligence to tho
enemy, either directly or indirectly." It is
equally clear that tho offenses in qucslion are
not within this provision. But, in fact, the
two articles relied upon admit of no such con
struction as is understood to be claimed.
This is thought to be obvious, not only from
the general character of the act, and of all the
other articles it contains, but because the one
immediately preceding, Uke all those preced
ing and succeeding it, otlier than the 56th and
57th, includes only persons belonging to the
" armies of the United States." Its language
is, " whosoever belonging to the armies of the
United States, employed in foreign parts," shall
do the act prohibited, shall suffer the pre
scribed punishment. Now, it is a familiar
rule of interpretation, perfectly well settled,
in such a case, that unless there be something
in the following sections that clearly shows a
purpose to make them more comprehensive
than their immediate predecessor, they are to
be construed as subject to the same limitation.
So far from there being in this instance, any
evidence of a different purpose, the declared
object of the statute, as evidenced by its title,
its first section, and its general contents, are
all inconaiatent with any other construction.
And when to thia it is conaidered that the
power exercised by Congress in passing the
statute was merely the constitutional one to
make rules for the government and regulation
of the army, it is doing great injustice to that
department to suppose that in exercising it
they designed to legislate for any other class.
The words, therefore, in the 55th article, " be
longing to the armies of tho United States,"
qualifying the immediate preceding word,
" whosoever," are applicable to the 56th and
57th, and equally qualify the same word
"whosoever" also used in each of them. And,
finally, upon this point I am supported by the
authority of Lieutenant-General Scott. The
Commission have seen from my previous ref
erence to his autobiography that he placed his
right to issue his martial law order, establish
ing, among other things, military commis
sions to try certain offenses in a foreign coun
try, upon the ground that otherwise they
would go unpunished, and his army become
demoralized. One of these offensea was mur
der committed or attempted, and for such an
offense he tells us that the articlea of war pro
vided no court for their trial and punish
ment, " no matter by whom or on whom com
mitted." And this opinion ia repeated in the
4th clause of his order, as true of all the des
ignated offensea, "except in the very restricts
ed case in the 9th of the article."
V. There are other views which I submit to
the serious attention of the Commiasion.
I. The mode of proceeding in a court like
thia, and which haa been pursued by the pros
ecution, with your approval, because deemed
legal by both, is so inconsistent with the pro
ceedings of civil courts, as regulated for ages
by established law, that the fact, I think, dem
onstrates that peraona not belonging to the

army can not bo aubjccted to such a jurisdic
tion. 1. The character of tho pleadings. The
offense charged is a conspiracy with persons
not within the reach of the Court, and some
of them in a foreign country, to commit the
alleged crime. To give you jurisdiction, the
design of the accused and their co-conspira
tors is averred to have been to aid the rebel
lion, and to accomplish that end not only by
the murder of the President and Lieutenant-
General Grant, but of the Vice-President and
Secretary of State. It ia further averred that
the President being murdered, the Vice-Presi
dent becoming thereby President, and as such,
Commander-in-Chief, the purpose was to mur
der him; and as, in the contingency of the
death of both, it would be the duty of the Sec
retary of State to cause an election to be held
for President and Vice-President, he was to
be murdered in order to prevent a " lawful
election" of theae officera ; and that by all
these meana, " aid and comfort " were to be
given "the inaurgents engaged in armed re
bellion against the United States," and " the
subversion and overthrow of the Constitution
and laws of the United States " thereby
effected. That such pleading as this would
not be tolerated in a civil court, I suppose
every lawyer will concede. It is argumenta
tive, and even in that character unsound.
The continuance of our Government does not
depend on the lives of any or of all of its pub
lic servants. As fact, or law, therefore, the
pleading is fatally defective. The Govern
ment has an inherent power to preserve itaelf,
which no conspiracy to murder, or murder,
can in the slightest degree impair. And the
result which we have just witnessed proves
this, and shows the folly of the madman and
fiend by whose hands our late lamented Pres
ident fell. He, doubtless, thought that he had
done a deed that would subvert the " Consti
tution and laws." We know that it has not
had even a tendency to that result. Not a
power of the Government was suspended ; all
progressed as before the dire catastrophe. A
cherished and almost idolized citizen was
snatched from us by the assassin's arm, but
there was no halt in the march of the Govern
ment. That continued in all its majesty
wholly unimpeded. The only effect waa to
place the nation in tears, and drape it in
mourning, and to awake the sympathy, and
excite the indignation of the world.
II. But this mode of pleading renders, it
would seem, inapplicable, the rules of evi
dence known to the civil courts. It justifies,
in the opinion of the Judge Advocate and the
Court (or what has been done would not have
been done), a latitude that no civil court
would allow, aa in the judgraent of such a
court the accused, however innocent, could
not be supposed able to meet it. Proof has
been received, not only of distinct offensea
from those charged, but of such offensea com
mitted by others than the parties on trial.
Even in regard to the party himself, other of
fenses alleged to have been previously com
mitted by him can not be proved. At one time
a different practice prevailed in England, and

260

ARGUMENT OF REVERDY JOHNSON.

does now, it is believed, in some of the Conti
nental governments. But since the days of
Lord Holt (a name venerated by lawyers and
all admirers of enlightened jurisprudence), it
haa not prevailed in England. In the case of
Harrison, tried before that judge for murder,
the counsel for the Government offered a wit
ness to prove some felonious design of the
prisoner three years before. Holt indignantly
exclaimed, "Hold! hold I what are you doing
now ? How can he defend himself from
charges of which he haa no notice ? And how
many isaues are to be raised to perplex me
»nd the jury? Away! away! that ought not
to be — that ia nothing to the matter." 12 State
Trials, 833-874. I refer to this case, not to as-
.'lu.il what has been done in these cases contrary
to this rule, because I am bound to infer that
before such a commission as this the rule has
no legal force. If, in a civil court, then, these
parties would be entitled to the benefit of this
rule, one never departed from in such courts,
they would not have had proved against them
crimes alleged to have been comraitted by oth
ers, and having no necessary or legal connec
tion with those charged. With the same view,
and not denying the right of the Commission
in the particular case 1 am about to refer to,
but to show that the Constitution could not
have designed to subject citizens to the prac
tice, I cite the same judge to prove that in a
civil court those parties could not have been
legally fettered during their trial. In the case
of Cranbum, accused as implicated in the "as
sassination plot," on trial before the same
judge. Holt put an end to what Lord Campbell
terras " the revolting practice of trying prison
ers in fetters." Hearing the clanking of
chains, though no complaint was made to him,
he said, "I should like to know why the pris
oner is brought in ironed." "Let them be in
stantly knocked off. When prisoners are tried
they should stand at their ease," 13 State
Trials, 221, 2d Campbell, Lives Chief Justices,
110. Finally, 1 deny the jurisdiction of the
Coramission, not only because neither Consti
tution or laws justify, but, on the contrary, re
pudiate it, but on the ground that all the ex
perience of the past is against it. Jefferson,
ardent in the prosecution of Burr, and aolioit-
ous for hia conviction, from a firm belief of hia
guilt, never suggested that he should be tried
before any other than a civil court. And in
that trial, so ably presided over by Marshall,
the prisoner was allowed to " stand at his
ease;" was granted every constitutional priv
ilege, and no evidence was permitted to be
given againat him but such as a civil court
recognizes; and in that case, as in this, the
overthrow of the Government was the alleged
purpose, and yet it was not intimated in any
quarter that he could be tried by a military
tribunal. In England, too, the doctrine on
which thia prosecution is placed is unknown.
Attempts were made to assassinate George the
Third and the present Queen, and Mr. Perci-
val, then Prime Minister, waa assassinated aa
he entered the House of Commons. In tho first
two instances, the design was to murder the
;ommander-in-ohief of England's army and

navy, in whom, too, the whole war power of
the Government was also vested ; in the laat,
a secretary, clothed with powera aa great, a*
least, as those that belong to our Secretary of
State; and yet, in each, the parties accused
were tried before a civil court, no one suggest
ing any other. And during the period of the
French Revolution, when its principles, if
principles they can be termed, were being in
culcated in England to an extent that alarmed
the Government, and caused it to exert evcty
power it waa thought to posseas to frustr.ate
their effect, when the writ of habeas corpus was
suspended, and arrests and prosecutions re
sorted to alraost without limit, no one suggest
ed a trial, except in the civil courts. And
yet the apprehension of the Government waa,
that the object of the alleged conapiratora was
to subvert its authority, bring about its over
throw, and subject the kingdom to the horrors
of the French Revolution, then shocking the
nations of the world. Hardy, Home Tooke,
and others, were tried by civil courts, and
their names are remembered for the principles
of freedom that were made triumphant mainly
through the efforts of " that great genius," in
the words of a modern EngUsh statesman (Earl
Russell), " whose sword and buckler protected
justice and freedom during the disastrous pe
riod;" having "the tongue of Cicero and the
soul of Hampden, an invincible orator and an
undaunted patriot." Erskine.
As it was, these trials were conducted in so
relentless a spirit, and, as it was thought, with
such disregard of the rights of the subject,
that the administration of the day were not
able to withstand the torrent of the people's
indignation. What would have been their
fate, individually aa well aa politically, if the
caaea had been tried before a military commia
aion, and life taken ? Can it be that in this
particular an American citizen is not entitled
to all the rights that belong to a British sub
ject? Can it be that with ua Executive power
at timea caats into the shade and renders all
other power subordinate? An American
statesman, with a world-wide reputation, long
since gave answer tb theae inquiriea. In a
debate in the Senate of the United States, in
which he assailed what he deemed an unwar
ranted assumption of Executive power, he
said, "the first object of a free people is the
preservation of their liberties, and liberty is
only to be maintained by conatitutional rea-
traints and .iuat divisions of political power."
"It doea not trust the amiable weaknesses of
human* nature, and, therefore, will not per
mit power to overstep its prescribed Umits,
though benevolence, good intent, and patri
otic intent come along with it." And he
added, "Mr. President, the contest for agea
haa been to rescue liberty from the grasp of
Executive power." "In the long list of the
champions of human freedom there is not one
name dimmed by the reproach of advoca
ting the extension of Executive authority."
Thoughta so eloquently expressed appeal with
subduing power to every patriotic heart, and
demonstrate that Webster, if here, would be
heard raiaing his mighty voice against the ju-

THE CONSPIRACY TRIAL.

261

risdiction of this Commission — a jurisdiction
placed upon Executive authority alonei But it
has been urged that martial law warrants such
a oommission, and that such law prevails here.
The doctrine is believed to be alike indefensible
and dangerous. It is not, however, neceasary
to inquire whether martial law, if it did pre
vail, would maintain your jurisdiction, aa it
doea not prevail. It has never been declared
by any competent authority, and the civil courta
we know are in the full and undiaturbed exer
cise of all their flinctions. We learn, and the
fact is doubtless true, that one of the parties,
the very chief of the alleged conspiracy, haa
been indicted, and is about to be tried before
one of those courts. If he, the alleged head
and front of the conapiraoy, ia to be and can
be so tried, upon what ground of right, of
fairness, or of policy can the parties who are
charged to have been his mere instruments be
deprived of the same mode of trial? It may
be aaid that in acting under this commiaaion
you are but conforming to an order of the
President, which you are bound to obey. Let
me examine this for a moment. If that order
merely authorizes you to investigate the cases
and report the facts to him and not to pro
nounce a judgment, and is to that extent legal,
then it ia because the President haa the power
himself, without such a proceeding, to punish
the crime, and has only invoked your aaaiat-
ance to enable him to do it the more juatly.
Can thia be ao? Can it be that the life of a
citizen, however humble, be he aoldier or not,
depends in any case ou the mere will of the
President? And yet it does, if the doctrine be
sound. What more dangerous one can be im
agined ? Crime is defined by law, and is to be
tried and punished under the law. What is
murder, treason, or conspiracy, aud what is
admissible evidence to prove either, are all
legal questions, and many of them, at timea,
difficult of correct solution. "What the facts
are may also present difficult inquiriea. To
pass upon the first, the Constitution provides
courts consisting of judgea selected for legal
knowledge, and made independent of Execu
tive power. Military judges are not ao selec
ted, and so far from being independent, are
abaolutely dependent on such power. To pass
upon the latter, it providea juries as being not
likely to "partake of the wiahes and opiniona
of the Government." • But if your function ia
duly to act aa aide to the Preaident, to enable
him to exeroiae hia function of punishment,
and as he is under no obligation by any law to
call for auch aid, he may puniah upon his own
unassisted judgment, and without even the
form of a trial. In conclusion, then, gentle
men, 1 submit that your responsibility, what
ever that be, for error, in a proceeding like
this, can find no protection in Presidential
authority. Whatever it be, it grows out of the
laws, and may, through the laws, be enforced.
I suggeated in the outset of these remarks that
that responsibility in one contingency may be
momentous. I recur to it again, disclaiming,
as I did at first, the wish or hope that it would
cauae you to be wanting in a single particular
of what you may believe to be your duty, but

to obtain your boat and moat matured judg
ment. The wiah and hope disclaimed would be
alike idle and discourteous; and I trust the
Commiaaion will do mo the justice to believe
that I am incapable of falling into either
fault. Eesponsibility to peraonal danger can never
alarm soldiora who have faced, and will ever
be willing in their country'a dofenee to face,
death on the battle-field. But there is a re
sponsibility that every gentleman, be he soldier
or citizen, will constantly hold before him,
and make him ponder — responsibility to tiio
Constitution and lawa of his country and an
intelligent public opinion — and prevent hi,'*
doing anything knowingly that can justly sub
ject him to the censure of cither. 1 have aaid
that your responaibility ia great. If the com
misaion under which you act is void and confers
no authority, whatever, you may do may in
volve the most serious peraonal liability. Caaea
have occurred that prove this. It is sufficient
to refer to one. Joseph Wall, at the time tho
offenae charged against him was committed,
was Governor and commander of the garrison
of Goree, a dependency of England, in Africa.
The indictment was for the murder of Benja
min Armstrong, , and the trial was had in Jan
uary, 1802, before a special court, consisting
of Sir Archibald McDonald, Chief Baron of
the Exchequer; Lawrence, of the King's
Bench, and Rocke, of the Common Pleas. The
prosecution was conducted by Law, then Attor
ney General, afterward Lord EUenborough,
The crime was committed in 1782, and under a
military order of the accused, and the sentence
of a regimental court-martial. The defense
relied upon was, that at the time the garrison
waa in a atate of mutiny, and that the deceased
took a prominent part in it; that, because of
the mutiny, the order for the court-martial was
made, and that the punishment whibh was in
flicted and aaid to have cauaed the death, was
under ita sentence. The offenae was purely a,
military one, and belonged to the jurisdiction
of a military court, if the facta relied upon by
the accuaed were true, and ita judgment consti
tuted a valid defense. The court, however,
charged the jury, that if they found that there
was no mutiny to juatify such a court-martial
or its aentence, they were void, and furnished
no defenae whatever. The jury so finding,
found the accused guilty, and he was soon after
executed. 28 St, Tr,, 51, 178. The application
of the principle of this case to the question 1
have considered is obvious. In that inatance
want of jurisdiction in the court-martial was
held to be fatal to its judgment as a defense for
the death that ensued under it. In this, if the
Commission haa no jurisdiction, its judgment
for the same reason will be of no avail, either
to Judges, Secretary of War, or President, if
either ahall be called to a responsibility for
what may be done under it. Again, upon the
point of jurisdiction, 1 beg leave to add that
the opinion I have endeavored to maintain is
believed to be the almost unanimous opinion
of the profession, and certainly is of every
judge or court who has expressed any.
In Maryland, where auch commiaaiona have

262

ARGUMENT OF REVERDY JOHNSON.

been and are held, the Judge of the Criminal
Court of Baltimore recently made it a matter
of special charge to the grand jury. Judge
Bond told them: "It has come to my knowl
edge that here, where the United States Court,
presided over by Chief Justice Chase, has al
ways been unimpeded, and where the Marahal
of the United States, appointed by the Presi
dent, selects the jurors, irresponsible and un-
i iwful military commissions attempt to exercise
criminal jurisdiction over citizens of thia
.State, not in the military or naval sert^ice of
ihe United States, nor in the militia, who are
charged with offenses either not known to the
law, or with crimes for which the mode of trial
and punishment are provided by statute in the
courts of the land. That it ia not done by the
paramount authority of the United States, your
attention is directed to article 5, of the Con
stitution of the United States, which says: 'No
person shall be held to answer for a capital or
otherwise infamous crime, unless on a present
ment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in
the militia when in actual service in time of
war or public danger.'" Such persons exercising
such unlawful jurisdiction are liable to indictment
by you, as well as responsible in civil actions io ihe
parties. In New York, Judge Peckhara, ot- the
Supreme Court of that State, and speaking for
the whole bench, charged the grand jury as
follows: " The Constitution of the United States, Ar
ticle 5, of the amendments, declares that 'no
person shall be held to answer for a capital or
otherwise infamous crime, unless on present
ment or indictment of a grand jury, except in
eases arising in the land or naval forces, or in
the militia, when in actual service in time of
war or public danger.'
"Article 6 declares that, 'in all criminal
prosecutions, the accused shall enjoy the right
to a speedy and public trial.'
"Article 3, section 2, declares that 'the trial
of all crimes, except in casea of impeachment,
ahall be by jury,' etc.
"These proviaions were made for occaaiona
of great excitement, no matter from what
cauae, when paasion, rather than reason, might
prevail. " In ordinary times, there would be no occa
sion for such guards, as there would be no dis
position to depart from the usual and estab
lished modes of trial.
"A great crime has lately been committed
that has shocked the civilized world. Every
right-minded man desires the punishment of
trhe criminals, but he desires that punishment
to be administered according to law, and
through the judicial tribunals of the country.
No star-chamber court, no secret inquisition,
in this nineteenth century, can ever be made
acceptable to the American mind.
"If none but the guilty could be accused,
then no trial could be necessary — execution
should follow accusation.
"It is almost as neceasary that the public
should have undoubted faith in the purity
of criminal justice, aa it is that justice in
fact be administered with integrity.

" Grave doubts, to say the least, exist in the
minds of intelligent men aa to the conatitu
tional right of the recent military commis
sions at Washington to sit in judgment upon
the persons now on trial for their lives before
that tribunal. Thoughtful men feel aggrieved
that such a commission should be established
in this free country, when the war is over, and
when the common-law courts are open and
accessible to administer justice, according to
law, without fear or favor.
" What remedy exiata ? None whatever, ex
cept through the power of public sentiment.
"As citizens of this free country, having an
interest in its prosperity and good name, we
may, as I desire to do, in all courtesy and
kindness, and with all proper respect, express
our disapprobation of this course in our
rulers in Washington.
"The unanimity with which the leading
press of our land has condemned thia mode
of trial, ought to be gratifying to every patriot.
"Every citizen is interested in the preserva
tion, in their purity, of the institutions of hia
country; and you, gentlemen, may make such
presentment on this subject, if any, as your
judgment may dictate."
The reputation of both of these judges is
well and favorably known, and their authority
is entitled to the greatest deference.
Even in France, during the consulship of
Napoleon, the institution of a military com
mission for the trial of the Prince Due d'En-
hien, for alleged conspiracy againat hia life,
was, to the irreparable injury of his reputa
tion, ordered by Napoleon. The trial was had,
and the Prince was at once convicted and ex
ecuted. It brought upon Napoleon the con
demnation of the world, and is one of the
blackest spots in his character. The case of
the Duke, saya the eminent historian of the
Consulate and the Empire, furnished Napo
leon " a happy opportunity of saving his glory
from a stain," which he lost, and adds, with
philosophic truth, that it was " a deplorable
consequence of violating the ordinary forms of
justice," and further adds, " to defend social
order by conforming io ihe strict rules and forms
of justice, without allowing any feeling of re
venge to operate, is the great lesson to be
drawn from these tragical events." Thier's
History, etc, 4 vol,, 318, 322.
Upon the whole, then, I think I shall not be
considered obtrusive if I again invoke the
Court to weigh well all that I have thought it
ray duty to urge upon thera. I feel the duty
to be upon me as a citizen sworn to do what I
can to preserve the Constitution, and the prin
ciples on which it reposes. As counsel of one
of the parties, I should esteem rayself dishon
ored if I atterapted to rescue ray client from a
proper trial for the offense charged againsjt
her, by denying the jurisdiction of the Com
mission, upon grounds that I did not con
scientiously believe to be sound. And, in
what I have done, I have not more had in
view the defense of Mrs. Surratt, than of the
Constitution and the laws. In ray view, in
this respect, her cause ia the cause of every
citizen. And let it not be supposed that I am

THB CONSPIRACY TRIAL.

26S

seeking to secure impunity to any one who
may have been guilty of the horrid crimes of
the night of the 14tU of April. Over these the
civil courts of this District have ample juria
diction, and will faithfully exeroiao it if the
oasea are remitted to them, and guilt ia le
gally eatablished, and will surely award tho
punishment known to the laws. God forbid
that such crimes should go unpunished ! In
the black catalogue of offensea, these will for
ever be eateemed the darkest and deepest ever
committed by sinning man. And, in common
with the civilized world, do I wish that every
legal punishment may be legally infiicted
upon all who participated in them.
A word more, gentlemen, and, thanking you
for your kind attention, I shall have done. As
you have discovered, I have not remarked on
the evidence in the case of Mrs. Surratt, nor is
it my purpose ; but it is proper that I refer to
her case, in particular, for a single moment.
That a woman, well educated, and, as far as
we can judge from all her past life, as we have
it in evidence, a devout Christian, ever kind,
affectionate and charitable, with no motive
disclosed to us that could have caused a total
change in her very nature, could have partici
pated in the crimes in question it is almost

impossible to believe. Such a belief can only
bo forced upon a reasonable, unauspecting,
unprejudiced mind, by direct and uncontra
dicted evidence, coming from pure and per
fectly unsuspected sources. Have wo these?
Is the ovidouco uncontradicted ? Are the two
witnesaea, Weichmann and Lloyd, pure and
unsuspected? Of tho partioulara of their evi
dence 1 say nothing. They will be brought
before you by my associates. But this con
clusion in regard to these witnesses must be,
in the minds of tho Court, and is certainly
strongly impressed upon my own, that, if the
facts which they themaelvea atate as to their
connection and intimacy with Booth and
Payne are true, their knowledge of the pur
pose to commit the crimes, and their partici
pation in them, is much more satisfactorily
established than the alleged knowledge and
participation of Mrs. Surratt. As far, gentle
men, as I am concerned, her case is now in
your hands. EEVERDY JOHNSON.
June 16, 1865.
As associate counsel for Mrs. Mary E. Sur
ratt, we concur in the above.
FREDERICK A. AIKEN,
JOHN W. CLAMPITT

j^:R<3-TJii^:EiisTrr

ON THE PLEA ID THE

JURISDICTION OF THE MILITARY COMMISSION,

THOMAS EWING, Jr.

June 23, 1865.
May it please the Court: The first great quea
tion — a queation that meeta ua at the thres
hold — is, do you, gentlemen, constitute a court,
and have you jurisdiction, as a court, of the
persons accused, and the crimes with which
they are charged ? If you have auch juriadic
tion, it muat have been conferred by the Con
stitution, or some law consistent with it, and
carrying out its provisions.
1. The 5th article of the Constitution de
clares :
"That the judicial power of the United
States shall be vested in one Supreme Court,
aud in such inferior courts as Congress raay,
from time to time, ordain and establish; " and
that "the judges of both Supreme and inferior
courts shall hold their offices during good be
havior." Under this provision of the Constitution,
none but courts ordained or established by
Congresa can exeroiae judicial power, and
those courts raust be composed of judgea who
hold their offices during good behavior. They
must be independent judgea, free from the in
fluence of Executive power. Congresa has not
" ordained and established " you a court, or
authorized you to call these parties before you
and sit upon their trial, and you are not
" judges " who hold your offices during good
behavior. You are, therefore, no court under
the Constitution, and have no jurisdiction in
these cases, unless you obtain it from some
other source, which overrules this constitu
tional provision.
The President can not confer judicial power
upon you, for he haa it not. The executive, not
the judicial, power of the United States is
vested in him. His mandate, no matter to
what man or body of men addressed, to try,
and, if convicted, to sentence to death a citi
zen, not of the naval or military forces of the
United States, carries with it no authority
which could be pleaded in justification of the
sentence. It were no better than the simple
mandate to take A B, C D, E F, and G. H, and
put them to death.
2. The Preaident, under the 5th amendment
to the Constitution, may constitute courta pur
suant to the Articlea of 'War, but he can not
give them jurisdiction over citizens. This ar
ticle provides that " no person shall be held to
answer for a capital or otherwiae infamous
264

crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the
land or navalforces, or in the militia when in actual
service in time of war or public danger.
The presentment and indictment of a grand
jury is a thing unknown and inconaiatent
with your comraission. You have nothing of
the kind. Neither you nor the law officers
who control your proceedings seem to have
thought of any such thing. Theae defendants
did not and do not belong to the " land or na
val forces" of the United States — nor were
they " militia, in time of war or public danger, in
actual service," The Constitution, therefore, in
the article above cited, expressly says: Tou
shall not hold them to answer to any of the cap
ital and infamous Crimea with which they are
charged. Is not a single, direct, conatitutional prohi
bition, forbidding you to take jurisdiction in
these caaes, sufficient ? If it be not, read the
provision of the 3d section of the 3d article.
It ia aa foUowa :
" The trial of all Crimea, except iu caaes of
impeachment, shall be by jury,"
But lest this should not be enough, in their
anxious care to provide against the abuses
from which England had recently escaped, and
which were still fresh in the memories of
men — aa the Star Chamber, the High Commia
aion Courts, and their attendant enormities —
the framers of the ConatitHition further pro
vided, in the 6th amendment, that —
"In all criminal prosecutiona the accuaed
ahall enjoy the right to a speedy and public
trial by an impartial jury of the State and dis
trict wherein the crime ahall have been com
mitted." Now, whence, and what, is the authority
which overrules theae distinct constitutional
prohibitions, and empowers you to hold these
citizens to answer, despite the mandates of the
Constitution forbidding you?
Congress has not attempted to grant you the
power; Congress could not grant it. A law
to that effect, against the constitutional prohi
bition, would be merely void. Congresa haa
authorized the suspension of the writ of ha
beas corpus, as the Constitution permits (Art. 1,
Sec. 9) ; but the Constitution does not thereby
permit the military to try, nor has Congress
attempted to deliver over to the military for
trial, judgment, and execution, American citizens,
not in the land or naval forces or in the mili-

THE CONSPIRACY TRIAL.

265

tia in actual service, when accused of crime.
Congress and the President, the law-making
power, were incompetent to this, and have not
attempted it. Whence, then, comes the dis
pensation with the constitutional prohibi
tion ? Where and wheuoe is the affirmative
grant of jurisdiction under which you pro
pose to try, and, if convicted, pass sentence
upon these men, citizens of the United Statea —
not soldiers, not militia-men — but citizens, en-
,!;aged in Uie ordinary avocations of life? I
am not permitted to know. Congress haa not
iu any form attempted to violate or impair the
Constitution. They have suspended the writ
of lutbeas corpus; this goes to imprisonment —
not trial, conviction, or punishment. This is
the extreme limit to which the law-making
power is permitted to go, and it is only in
cases of atrong neceasity that this is permit
ted. Congress has repealed so much of the
102d aection of the act of September 24, 1739,
as required that in all capital cases twelve
petit jurors should be summoned from the
county in which the offense was committed
(par. 221, sec. 102, repealed July 16, 1862, page
1164, sec. 22), but has preserved all other legal
provisions made in aid of the Constitution to
protect citizens from the oppression of unreg
ulated and unrestrained Executive power.
The accused shall be tried upon an indictment
or presentment of a grand jury. If two or
more crimes of a like nature be charged, they
must be set fortli in separate counts, (Act of
February 26, 1853, sec. 117.) You may not
compel an accused to answer to a loose story
or accusation of several crimes in one count. If
the crime charged be treason, which this paper
approaches more nearly than anything else,
the accused shall have a copyjjf Jhe jndict-
ment, and a list jjf^the jury ,_and- of all the
witnesses to be produced on the trial for prov
ing the said " indictment (mentioning the
names and places of abode of such witnesses
and jurors), delivered unto him at least three
entire days before he shall be tried for the
same ; and in other capital offensea, shall have
such copy of indictment and list of the jury
two entire days, at least, before the trial. (Act
of April 30, 1790, sec. 24, p. 221.)
Against this array of constitutional and
legal prohibition and regulation, I know of
nothing that can be adduced, except, perhaps,
an Executive order authorizing, by direct man
date or implication, the thing to be done which
the Constitution forbids you to do. If you be
proceeding in obedience to such Executive
mandate, and if that give jurisdiction, still
you proceed in a form and manner which the
Constitution and law expressly forbid. If my
clients be charged with treason or murder (and
I conjecture they are charged with murder, at
least), they must be proved to have been pres-'
eni, aiding in or actually commiiing the overt act, or
alleged murder. For either of these the punish
ment on conviction is death. Tho Judge Ad
vocate has been unable, in the cases of Arnold
and Mudd, to present any evidence remotely ap
proaching that prescribed by the Constitution
and the lawa aa the condition of conviction ;
and yet I am led to infer that he will claim a

conviction of one or both of them on the
proof presented. What ia the profeaaion, on
this and on the other aide of the Atlantic, to
think of auch adminiatration of criminal ju-
riaprudence? — for thia, the firat of our State
triala, will be read with avidity everywhere.
I aak the officers of the Government to think
of this carefully now, lest two or three years
hence they may not like to hear it named.
But we may mistake the whole case aa it pre
sents itaelf to the mind of the Judge Advocate.
We are here as oounael for the accuaed, but are
not allowed to know explicitly with what
crime, defined by law, any one of thera ia charged,
or what we are here to defend. No crime
known to the law is legally charged in the
paper which is here substituted for an in
dictment. In this paper three distinct crimes
are strongly hinted at in a single charge, to
each of which different rules of law and evi
dence are applicable, and different penalties
are attached; and I had wished to know, 80
that I might shape the defense of my clients
accordingly, for which alleged or intimated
crime any one, or each, or all of them, are to
be tried. The information has been denied us.
The Judge Advocate puts these parties on
trial, and refuses (in the most courteous terms)
to advise their counsel on what law or author
ity he rests his claim to jurisdiction ; of what
crime he intends to convict each or any of the
defendants; in what laws the crimes are de
fined and their puniahmenta prescribed ; or on
what proof, out of the wild jungle of testi
mony, he intends to rest his claim to convic
tions. But it has been said, and will perhaps be
said again, in support of this jurisdiction,
that the necessitiea of war juatify it — and
" silent leges inter arma," So said the Roman
orator when Rome had become a, military des
potism, and ceased forever to have liberty, and
when she retained law only as the gift or by
the perraiasion of the ruling despot. " The
law is silent amid arms," Yes, it is so in a con
quered country, when the victorious general
chooses to put the law to silence ; for he ia an
autoci'at, and may, if he chooaes, be a deapot.
But how extravagant is the pretense that a
bold, and spirited, and patriotic people, be
cause they rise in their majesty and send forth
conquering armies to rescue the republic,
thereby forfeit all constitutional and legal pro
tection of life, liberty, and property I
Cases have often arisen, in which robber
bands, whose vocation is piracy on the high
aeaa, or promiacuoua robbery and murder on
land — hosies humani generis — may be lawfully
put to the sword without quarter, in battle, or
hung on the yard-arm, or otherwise put to
death, when captured, according to the neces
sities of the ease, without trial or other con
viction, except the knowledge of the command
ing general that they were taken flagrante hel
lo, and that they are pirates or land robbers.
A military court may be called, but it is advisory
merely ; the general acts, condemns, and exe
cutes. But the Constitution of the United
States has nothing to do with this. It does
not protect pirates or marauders who are ene-

266

ARGUMENT OF THOMAS EWING, JR.

mies of the human race ; or apies, or even ene
mies taken in battle. It protects, not bellig
erent enemies, but only citizena and those
persons not citizena who, in civil life, aeek
and claim ita protection, or aliens who are en
gaged in its military or other service. The
power of the commanding general over theae
elasaea is restrained only by the usages of war
among civilized nations. But these defend
ants are not charged as apies or pirates, or
armed and organized marauders, or enemies
captured in war, or persons in the land or na
val service of the United States. They belong
to none of these classes, over whom military
discretion or martial law extends, unless they
extend over and embrace all the people of the
United States.
But if the jurisdiction in this case exist,
whether by law or by the power of arms, I re
gret that a Military Commission should be
charged with the trial of theae cauaea. Th
crimes are, as far as hinted at and written about
in the charge and specifications, all cognizable
in our civil courts. Those courts are open, un
obstructed, without a single impediment to
the full and perfect administration of justice —
ready and prompt, as they always are, to per
form the high duties which the well-known
principles of law under the Constitution de
volve on them. What good reason can be
given in a case like this, to a people jealous
of their rights, for a resort here and now to
miUtary trials and military executiona? We
are at the advent of a new, and 1 truat a suc-
ceaaful. Administration. A taint auch as
thia — ^namely, the needless violation of the
constitutional rights of the citizen — ought not
to be permitted to attach to and infect it. The
jurisdiction of this Comraission has to be
sought dehors the Constitution, and against
ita expreas prohibition. It ia, therefore, at
least of dou'btful validity. If that jurisdic
tion do not exist ; if the doubt be resolved
against it by our judicial tribunals, when the
law shall again apeak, the form of trial by
this unauthorized Commission can not be
pleaded in justification of the seizure of prop
erty or the arrest of person, much less the in
fliction of the death penalty. In that event,
however fully the recorded evidence may sus
tain your findings, however moderate may
seem your sentences, however favorable to the
accused your rulings on the evidence, your
aentence will be held in law no better than the
rulings of Judge Lynoh's courts in the ad
ministration of lynch law. When the party
now in power falls — as in the vicissitudes of
things it must one day fall, and all the sooner
for a reckless use of its present power — so it
will be viewed by that party which succeeds
it. This is to be expected, and, indeed, hoped;
but if, unfortunately, this proceeding be then
accepted and recorded as a precedent, we may
have fastened on ua a military deapotiara. If
we concede that the exerciae of jurisdiction
claimed ia now necessary, and for the best pos
sible object, before we consent that it stand as
a precedent in our jurisprudence, we should
recall to mind the statesmanlike and almost
prophetic remarks of Julius Caeaar, in the Ro

man Senate, on the trial of Lentulus and his
accomplices in Catiline's conspiracy: "Abuses
of ten grow from precedents good in principle; but
when the power falls into hands of men less en
lightened or less honest, a just and reasonable pr^
cedent receives an applicaiion contrary to justice
and reason." It ia to be reraerabered that crim
inal trials involving capital punishment were
not then within the competency of the Roman
Senate; and neither the Consul nor the Sen«
ate, nor both of them, had the right to con
demn a Roman citizen without the concurrence
of the people.*
If you believe you possess the power of life
and death over the citizens of the United
States in' States where the regular tribunals
can be safely appealed to, still, for the sake of
our common country and its cherished institu
tions, do not press thatpower too far. Our ju
dicial tribunala, at some future day, I have no
doubt, will be again in the full exerciae of
their constituted powers, and may think, as a
large proportion of the legal profession think
now, that your jurisdiction in these cases ia an
unwarranted assumption ; and they may treat
the judgment which you pronounce, and the
sentence you cause to be executed, aa your
own unauthorized acts.
This assumption of juriadiction, or this use
of a legitimate jurisdiction, not created by law,
and not known to the law or to legal men, has
not for ita sanction even the plea of necessity.
It may he'convenient. Conviction raay be easier
and more certain in this Military Commission
than iu our constitutional courta. Inexperi
enced as moat of you are in judicial investi
gations, you can admit evidence which the
courts would reject, and rejectwhat they would
admit, and you may convict and sentence on
evidence which those courts would hold to be
wholly insufficient. Means, too, may be re
sorted to by detectives, acting under promise
or hope of reward, and operating on the fears
or the cupidity of witnesses, to obtain and in
troduce evidence, which can not be detected
and exposed in this military trial, but could
be readily in the free, but guarded, course of
investigation beforeour regular judicial tribu
nals. The Judge Advocate, with whom chiefly
rests the fate"'bf th'eser citizens, ia learned in
the law, but from hia position he can not be an
impartial judge, unless he be more than man.
He is the prqseoutor, in the most extended
sense of the word. As in duty bound, before
this Court was called, he received the reports
of detectives, pre-examined the witnesses, pre
pared and officially signed the charges, and as
principal counsel for the Government, con
trolled on the trial the presentation, admis
sion and rejection of evidence. In our courta
of law, a lawyer who has heard hia client's
story, if transferred from the bar to the bench,
may not sit in the trial of the cause, lest the
ermine be sullied through the partiality of
counsel. This is no mere theoretical objec
tion — for the union of prosecutor and judge
works practical injustice to the accused. The

¦ Cicero, who was Consul, Cato, Silanus, and others
of their associates in the Senate, were afterward tried for
the murder of the conspirators, convicted, and hanished.

THE CONSPIRACY TRIAL.

267

Judge Advocate controls the admission and
rejection of evidence — knows what will aid
and what will injure the case of the proaeou-
tion, and inclinea favorably to the one, and
unfavorably to the other. The defense ia met
with a bias of feeling and opinion on the part
of the judge who controls the proceedings of
the Court, and on whom, in great measure, the
fate of the accused depends, which morals and
law alike reject. Let it not be supposed I cen
sure or reflect on any one, for I do not. The
wrong suffered by the parties accused has its
root in the vfce of this system of trial, which
I have endeavored to expose.
Because our Chief, so venerated and be
loved (and no one venerated and loved him
more than I), has fallen by the hand of a ruth
less assassin, it ought not to follow that the
Constitution and law should be violated in
punishing men suspected of having compassed
hia death, or that men not legally found guilty
should be sacrificed in vengeance aa vic
tims generally because of the crime.
There may be a lurking feeling among
men which tends to this harshness of ret
ribution, regardless of the innocence of
those on whom vengeance may fall. Tending
to this feeling, exciting or ministering to it,
was the two days' teatimony which, without
other apparent point or purpoae, detailed the
horrors of the Libby Prison ; and the evidence
that, in 1861, one of my clients took part in

the rebellion ; and the further teatimony
(which we showed waa utterly fabulous) that
another of my clients, in 1863 or 1864, enter
tained rebel officera and aoldiers, and corres
ponded with rebela in Richmond. As if to
say : "What matters it how we try, or whether
we legally try at all, provided we convict and
execute men who have been associated with,
or in sympathy with, monsters such as thoae ?"
Homer makes Achilles immolate, at tho fune«
ral pyre of Patroclus, twelve Trojan captives,
simply because they were Trojans, and because
Patroclus had fallen by a Trojan hand. If
that principle of judicial action be adopted
here, it were surely not too much to sacrifice
to the manes of one so beloved and honored as
our late Chief Magistrate a little lot of rebel
sympathizera, because, like the assassin, some
of them, at some time, participated in the re
bellion, or gave aid and comfort to rebels.
If thia courae of reaaoning do not develop the
object of that atrange teatimony, I know not
how to read it. Indeed, a position taken by
the learned Aasiatant Judge Advocate, in dis-
cuaaing my objection to the part of that e'vi-
dence which relates to my clients, goes to
this — and even beyond it — namely, that parti
cipation in the rebellion waa participation in
the asaasaination, and that the rebellion itself
formed part of the conspiracy for which thesa
men are on trial here.

.A-RO-xjiMiEisra?

DEFENSE OF DAVID E. HEROLD.

FREDERICK STONE, ESQ.

May it please the Court:
At the earnest request of the widowed mother
and eatimable sisters of the accused, I have
consented to act as his counsel in the case now
before the Court.
It is a source of some embarrassment to the
counsel for the accused that the Judge Advo
cate General haa seen fit not to open this case
with a brief statement of the law upon which
this prosecution ia founded. It would have
been a great, and, as he thinks, proper assist
ance to the accused and his counsel to have
known with more accuracy than is set out in
the charge, the special offense for which he is
arraigned. In the absence of such opening
statement, the accused can only discuss the law
on which he supposes the Judge Advocate to
rely. 'While the counsel for the accused does not,
and can not, concede the question of jurisdic
tion, it is not proposed by him to discuss the
question of the jurisdiction of this Court over
the accused in thia case, except so far aa may
be neceasary incidentally in discussing the
effect of General Order No. 141. The queation
of the general juriadiction he will leave in
abler hands.
But, aupposing this Court should be entirely
satisfied that they have jurisdiction, another,
and, as the counsel for the accused thinks, a
more important question arises ; and that quea
tion is : What ia the law governing the several
offenses with which the accused stands charged,
and what is the law prescribing the punish
ment thereof? I ahall first consider what is
the law governing the case as to the crime and
the punishment, upon the hypothesis that mar
tial law generally was in force in the District
of Columbia on the 14th of April, 1865, and
still so continues in force; and I shall, in the
second place, consider whether martial law did,
in fact, exist within the Diatrict of Columbia
on the 14th of April, and does now exist, and
to what extent.
In time of peace, the civil law is adminis
tered by civil tribunals, whoae mode of pro
cedure and juriadiction are clearly defined; in
time of war, juatice ia administered in the ene
my's country, occupied by the belligerent, and
also in that part of the belligerent's own coun
try which is under martial law, by miUtary
268

commiaaions, according to a system of juris
prudence sometimes called the common law of
war. In this changed condition of things, the
military commission supersedes the civil tri
bunal, and the common law of war supersedes
the civil law; but the rules of the common law
of war are as clearly defined as are those of
the civil law, and the jurisdiction of the mili
tary commission is as accurately defined aa the
juriadiction of the civil tribunal. The com
mon law of war determinea the manner in
which a military commission, charged with its
administration, shall be organized, the mode in
which proceedings before it shall be conducted,
the rules by which it shall determine questions
of evidence arising in the course of the trial,
and the penalty to which it shall subject the
accused upon conviction.
By this law a military commission must be
organized in the manner in which courts-mar
tial are organized, and its proceedings must
conform to the manner of proceedings before
courts-martial, and be conducted according to
the rules prescribing the mode and manner of
conducting proceedings before theae tribunals.
By the same common law of war, the juris
diction of a military commission aa to peraons
and offensea ia alao limited and defined. A
military commission posaeases no power to try
a person in the army or navy of the United
Statea for any offense provided for in the arti
clea of war. It haa no juriadiction in the case
of a aoldier charged with diaobedience of or-
dera, desertion, etc. Offensea of this nature,
and committed by persons subject to military
law, are expressly cognizable before the mili
tary courta created by that law, and known as
courta-martial. If, in time of peace, a soldier
commit an offense against the civil law not
provided for iu the articles of war, he is sur
rendered up to the civil jurisdiction to be tried;
and if he commit such an offense in time of
war in a district aubject to martial law, he will
be tried by military commission, which, in such
district, supersedes the civil courta in the ad
ministration of justice. It is, therefore, appa
rent that everything in the organization of the
military commiaaion, or in the manner of con
ducting proceedinga before it, from the filing
of the chargea and apecifioations, down to the
final decision of the court, and its juriadiction
aa to peraons, is not entirely within the die-

ARGUMENT OF FREDERICK STONE.

269

cretion of the Commander-in-Chief or of the
commission itaelf, but ia aubject to tho estab
lished rules and principles of the common law
of war, which calls it into existence, to admin
ister justice according to those rules and prin
ciples. What are these rules and principles ? They
aro clearly indicated iu article 6 of General
Order No. 100 (already in evidence in thia
case), which ia as follows:
"All civil and penal law shall continue to
take its usual course in the enemy's places and
territories under martial law, unless inter
rupted or stopped by order of the occupying
miUtary power; but all functions of the hostile
government — legislative, executive or adminis
trative — whether of a general, provincial or
local character, cease under martial law, or con
tinue only with the sanction, or, if deemed
neceaaary, the participation, of the occupier or
invader." This order proves that, in the enemy's coun
try, under martial law, the civil and penal
law ahall remain as the rule of conduct and law
of the people, unless interrupted by express
command. In the absence of any command
interrupting the operation of the civil and
penal law, what ia the law over that portion of
the enemy 'a territory to which this order refers?
Martial law certainly prevails, because the
territory referred to is described as territory
under martial law. The civil and penal law
of the country also prevails, because the order
expressly declares that it shall continue. It is
apparent, therefore, that two systems of juris
prudence prevail at the same time on the same
territory; one, the system which martial law
establishes, and known aa the system of the
common law of war, and the other, the system
in force over the territory at the time of its
conquest. But the latter system, although pre
vailing, can not be enforced, except by the con
queror, for the article further provides that all
the "functions of the hostile government,
legislative, executive or administrative, whether
of a general, provincial or local character,
cease under martial law, or continue only with
the sanction, or if deemed necessary, the par
ticipation, of the occupier or invader."
Judicial power is one of the functions of
government, and ia specifically designated in
the order by the word "administrative." All
the functions of the government, including the
administrative functions, must cease under
martial law; but still, by the terms of the
order, the civil and penal law ahall continue
and take ita courae, and be administered. By
whom? By what tribunala? The civil courts
can no longer exercise functions of theiradmin-
istering the law, and military courts administer,
not civil and penal law, but miUtary law and
the common law of war. Article 18 of the
order referred to says:
"Military jurisdiction is of two kinds : first,
that which is conferred and defined by statute;
second, that which is derived from the common
law of war."
How, then, can a military jurisdiction ad
minister civil and penal law? There is but one
solution to the difficulty, and it is in the appli

cation of the principle lying at the foundation
of the common law of war, and determining
the system of jurisprudence known by that
name, and it is this : That where, by virtue of
the existence of martial law, tho common law
of war is required to be administered, the civil
and penal law of tho territory subject to mar
tial law becomes part of that coramon law of
war, and, as such, is to be administered by
military tribunals, under military modea of
procedure, with the aame effect in aecuring the
rights of litigants and the punishment of criraes
as if administered by civil tribunals, accord
ing to the modes provided and adopted in the
civil courts.
I do not mean to contend that the code of the
common law of war is exclusively made up of
the civil and penal law of the country which
haa become subject to martial law, but that the
civil and penal law becomes a part of the com
mon law of war in all caaea to which it ia ap
plicable. Under martial law many acts become
crimes which are innoxious and innocent in
time of peace and under the civil code, and
which are not, therefore, provided against in
the civil and penal law.
In regard to the trial of persona arraigned
for any of this class of crimes, the Commission
muat conform in its action, as nearly as may be,
to the authenticated precedents of tho common
law of war, and administer justice with sound
discretion; but in regard to the trial of persona
arraigned for offenses created and recognized
by the civil and penal law, the Commiasion
must administer, aa part of the common law of
war, the civil and penal law aa it ia written.
The civil and penal law becomea part of the
common law of war by the fact of the inaugu
ration of martial law.
It ia true the operation of thia principle may
be interrupted by order of the occupying mil
itary power, in the exercise of an authority
derived from, and limited by, the military ne
cessity; but the right to interrupt the operation
of the principle by special order, shows that the
principle continues in force until the interrupt
ing order ia promulgated. It may, however,
be contended that a apecial order in auch caae
ia not necessary according to the laws of war,
and would not be required except for the
mandate of section 6, above quoted from. If
this is true, then the principle for which I have
contended should be stated with a qualification,
and the civil and penal law of the country sub
ject to martial law becomes a part of the com
mon law of war, except as to such parts thereof
as military necessity requires should be sus
pended. Section 3 of General Order No. 100
provides aa foUowa:
"Martial law in a hostile country consists in
the auspenaion, by the occupying military au
thority, of the civil and criminal law, and of
the domeatic adminiatration and government
of the occupied place or territory, and the aub-
stitution of military rule and force for the
same, as well as in the dictation of general
lawa, as far aa military neceaaity requires this
suspension or dictation."
According, then, to thia section of the order,
the civil and penal law is suspended only as

270

THE CONSPIRACY TRIAL.

far as miUtary necessity requires a suspen
sion. The rule, therefore, is that the civil and penal
law shall continue in force, and the exception
is as to such parts thereof as military neces
sity may require to be suspended. This ne
cessity, as ia well underatood, is not a condition
in which the suspenaion of the civil and penal
law would be more convenient to the occupying
military power, or would simply gratify the
caprice of the commander, but a condition in
which auch suspension is imperatively de
manded to meet the exigencies of war, and
absolutely required to conduct that war suc
cessfully. Military necessity is thus defined
by section 14 of General Order No. 100:
"Military necessity, as understood by mod
ern civilized nations, consists in the necessity
of those measures which are indispensable for
aecuring the enda of the war, and which are
lawful according to the modern law and usages
of war."
That portion of the civil and penal law sus
pended in the enemy's country subject to martial
law, on the ground of military necessity, must,
therefore, be such portions of said law aa it is in
dispensable to suspend for securing the ends of
the war, and which it is alao lawful to suspend
according to the modern law and usages of
war. Sections 3 and 6, above quoted, of General
Order No. 100, by their terms, refer only to the
"enemy's country," but they indicate the effect
of martial law upon the system of jurisprudence
to be adpainiatered wherever martial law pre-
vaila. That effect will be greater or less in
modifying or suspending the civil and penal
laws of the various territories that may be sub
ject to martial law, according to the measure of
the necessity existing in each.
Section 5 of General Order No. 100 provides
as follows :
" Martial law should be leaa stringent in
places and countries fully occupied and fairly
conquered. Much greater severity may be ex
ercised in places or regions where active hos
tilities exist, or are expected, and must be pre
pared for. Its most complete sway ia allowed
even in the commander's own country, when
face to face with the enemy, because of the ab-
Bolute necessities of the case, and of the para
mount duty to defend the country againat in-
vaaion." It is apparent, therefore, that the effect of
martial law in modifying and changing the
civil and penal code, or the civil adminiatration
of the district or territory in which it prevails,
depends upon the military necessity growing
out of the condition of things existing in such
territory or diatrict. And if in any portion of the
conquered and occupied territory of the enemy
the civil and penal law is allowed to continue,
certainly in auch portions of the commander'a
own country as may be declared subject to mar
tial law, the civil and penal law ahould not
be interrupted, unless some extraordinary and
overwhelming necessity arises to juatify it.
I will not enter into the inquiry suggeated by
section 5, quoted above, aa to whether or not
martial law can prevail in the commander's

own country iu any case other than that re
ferred to in tho article, to-wit : when face to face
with the enemy, and to which condition thia
article would seem to limit the rightful exercise
of that law. But conceding that it may prevail
within the commander's country, where hoatile
armies are not arrayed against each other on
its soil, and war is not in actual progress, what,
under such circumstances, is its effect in inter
rupting or suspendingthe civil and penal law '!
I concede, for the purpose of this argument,
that it establishes the coramon law of war as
suspending the civil and penal law, that it su)>-
stitutes a railitary tribunal for civil courts, and
the summary process of military arrests for the
ordinary mode and form of civil arrests; but,
when the military court is convened and organ
ized, what law is it required to administer?
The answer is obvious : it is to administer the
coramon law of war. What part of the civil
and penal law has been excluded from that
common law of war and suspended under the
force of a necessity making such suspen
sion indispensable for securing the enda of the
war? This Commission is sitting not only in the
commander's own country, but in the capital of
that country. Before it met, the last hostile
gun of the war had been flred, a thousand milee
away. During its aeasion 200,000 veterans
have returned from the field, and passed in re
view in sight of the windows of this court-room,
their faces homeward turned, their swords
sheathed, their work accomplished. No enemy
now remains in arms against the Government
of the country ; but the war is over, and peace
restored. Again, I ask, what military neces
sity renders a suspension of the civil and penal
law of the United States, in the capital of the
United States indispensable for securing the
ends of war?
The second inquiry which I propoae to make
before thia Comraission, is, whether martial law
did exist on the 14th of April, 1865, in the city
of Washington, and if so, to what extent, and
whether it doea now exist ? The only evidence
before the Commiasion of the existence of mar
tial law in the city of Waahington, on the 14th
of April last, is the proclamation of the Preai
dent of the United States, issued in September,
1862. That proclamation is in these words:
" That during the existing insurrection, and
as a necessary measure for suppressing the
same, all rebels and insurgents, their aiders
and abettors, within the United States, and all
persons discouraging volunteer enlistments,
resisting militia drafts, or guilty of any dis
loyal practice, affording aid and comfort to
rebels againat the authority of the United
States, shall be subject to martial law, and lia
ble to trial and punishment by courts-martial
or military commission."
It appears clearly, from General Order No.
100, that martial law ia not, if I may use audi
an expreaaion, an unbending code ; that it can
be made, in the discretion of the commander,
more or leaa stringent, as the exigencies of the
case may require. It alao ia apparent, from
the aame General Order, that martial law in
the commander's own country, must exist by

ARGUMENT 0* FREDERICK STONB.

271

virtue of some proclamation or announcement.
To what extent, then, does it appear that mar
tial law was declared by the proclamation of
the President of September, 1862, and which is
sometimes deaignated as General Order No.
141? The President of the United States, if
he had the right to issue the proclamation at
all, had the right to limit its duration and the
persons to whom it should apply. In the exor
cise of this constitutional right, the President
did both; he limited the time of existence of
martial law, as well as the persons to whom it
is applied. By the terms of that order declar
ing martial law, the existence of that martial
law is made to depend entirely on the existence
of the rebellion. It required no order to annul
or revoke it; it carried, if I may use such an
expreaaion, its own death-warrant upon its face.
"During the existing insurrection, and as a
necessary measure for its suppression," per
sons guilty of affording aid and comfort to the
rebels are liable to be tried by courts-martial
or military commission. Had the President
of the United States intended that the crime
of aiding the insurgents by giving to them aid
and comfort, which occurred during the rebel
lion, should be punished after the rebellion had
ceased, apt words were at hand so to express
the order; but the order is not so expressed;
both the crime and the punishment are made
to depend upon the existence of the rebellion.
That order, too, only touches a particular
class of crimes. It does not touch the crime
of murder, of an assault v/ith intent to kill,
of aiding or abetting in a murder, or aiding
or abetting the escape of a ranrderer from jus
tice, or of a conspiracy to murder. The same
facts raake the crime, and the same punish
ment follows conviction, and the same mode of
punishment exists after the issue of that order
as did before.
Loyal civil courta in the city of Waahington
have been conatantly, since the issue of that
proclamation, in session, with full and ample
power and authority to try the crimes of mur
der, of conspiracy to murder, of assault with
intent to kill and murder, and of aiding and
abetting in the escape of a murderer. The
jurisdiction of the civil courts over all auch
crimes last above enumerated has been left
untouched and undisturbed by that order.
There has been no hour since the issue of that
proclamation that the Supreme Court of the
District of Columbia has not had full and ample
powers to try every crime enumerated in the
charge in this caae. Upon the suppression of
the rebellion, that proclamation expired, and
became from that and continues to thia hour a
dead letter upon the statute book, and that
martial law which it inaugurated can never
again exist in the capital of the country until
the Commander-in-Chief, in the exercise of
hia conatitutional powera, ahall again declare it.
But supposing the proclamation to be atill
in force, aupposing it to be as valid this day
as it was on the day it was issued, still the fact
remains that it only applies to one single class
of persons and to one single crime, and that
crime is aiding and abetting the rebellion.
And if this Commiaaion should conclude that

General Order No. 141 ia atill in force, and
that they derive their power and authority to
hoar and determine theae cases by virtue of
that general order, still the fact remains that
they have only tho power under that order to
try the naked crime of aiding and abetting the
rebellion. The charge in this case consists of several
distinct and separate offenses embodied in one
charge. The parties accused aro charged with
a conspiracy in aid of the rebellion, with mur
der, with assault with intent to kill, and with
lying in wait. It is extremely doulDtful from
the language of the charge and the specifica
tion, under which of tho following crimes the
accused, Herold, ia arraigned and now on his
trial, viz, ,
I. Whether he ia on trial for the crirae of
conapiracy to overthrow the Government of the
United States, aa punishable by the act of the
Congress of the United States, as passed the 31at
of July, 1861; or,
II, Whether he ia on hia trial for giving aid
and comfort to the existing rebellion, as pun
ishable by the act of Congress passed the 17th
of July, 1862; or,
III. Whether he is on trial for aiding and
abetting the murder of Abraham Lincoln, Pres
ident of the United States.
Hia counsel well understands the legal defi
nition of the three crimes above mentioned,
but does not understand that either to the com
mon law or to the law of war is known any
one offense comprised of the three crimes men
tioned in this charge. He knows of no one
crime of a conspiracy to murder and an actual
murder, all in aid of the rebellion, distinct and
separate from the well-known and defined
crimes of murder, of conspiracy in aid of the
rebellion, or of giving aid and comfort to the
rebellion as defined by the acts of Congress.
It is extremely doubtful, from the language of
this charge, whether the murder of the Presi
dent of the United States is not referred to as
the mere means by which the conspirators gave
aid and comfort to the rebellion — whether it
was not merely tbe overt act by which the
crime of aiding the rebellion was completed.
If the crime of aiding and abetting the re
bellion, as laid in the charge and specification,
ia only laid aa the inducement to the crime of
murder, then the crime as laid in the charge
and specification does not come within the terms
of the proclamation of September, 1862, It is
the actual crime, and not the motives which in
duced it, that confers the juriadiction. In the
first general specification of the charge we find
the following worda used : " And by the means
aforesaid" (referring to the murder of the
President, Vice-President, the Secretary of
State, and the Lieutenant-General), " to aid and
comfort the insurgents in armed rebellion
against the United States aa aforesaid, and
thereby to aid in the subversion and overthrow
of the Constitution and laws of the United
States." In that sentence the murder of the
President of the United States and the rest of
the crimes aforesaid are merely spoken of as
the meana, and not aa the end.

272

THE CONSPIRACY TRIAL.

The ambiguity in the charge and the first
general specification is not relieved by the
special specification against the accused, Her
old. The special specification against him uses
theae terma :
"And in further prosecution of the aaid un
lawful, murderoua and traitorous conspiracy,
and in pursuance thereof, and with the intent
aforesaid," etc.
The special specification then goes on to
charge Herold with two matters : first, with aid
ing and abetting in the murder of the President
of the United States ; and second, with aiding
and abetting Booth in his escape from justice
after the murder.
The language of the charge and of the gen
eral specification, as well as of the special
specification, leaving it doubtful whether the
accused is charged with all three or any one, it
ia neceasary for hia oounael to present his de
fenses to all three of the crimes mentioned in
the charge and specification.
First, as to the crime of conspiracy. What
evidence is there of the accused, Herold, having
conspired to murder the President, or to aid the
rebellion and overthrow the Constitution and
lawa of the United States ? The evidence upon
that point consists of but very few facts.
The first that it is necessary to notice is the
testimony of Weichmann, who says that he saw
Herold once at Mrs. Surratt's house since he
went there to board, which was in November,
1864. It is hardly possible that this Commis
aion will take a single visit of a young man to
a house, where there were both young raen and
young ladies, as evidence of complicity in a
conspiracy of so grave and heinous a character,
especially as the same witness deposes that
Herold was a previous acquaintance of the Sur
ratts, aa he had seen him before they moved to
town, down in the country, at a serenade there
some eighteen months before.
The same witness (Weichmann) also deposes
that once in the winter of 1865, he, Holahan,
Atzerodt, and this boy Herold went to the thea-
ater to see Booth play; that, on leaving the
theater and going down the street, he (the wit-
neaa, Weichmann) and Holahan going in ad
vance, they found that they had outwalked the
other three of the party ; that the witness(Weich-
mann) returned, and fonnd Booth, Atzerodt,
and Herold in a restaurant, and, to use his ex
pression, "in close conversation near a stove,"
and upon his going in they invited him to take
a drink. If the fact of two persons going to a
theater to see a popular play, and leaving that
theater with the addition of a third, and stop
ping at a restaurant and taking a drink, or stand
ing all three as (in the witness' opinion) in
confidential conversation, is an evidence of con
spiracy, probably half of the population of Wash
ington city during the winter could be convicted
on the same testimony.
The only other testimony ia that of John M.
Lloyd, who depoaea that John Surratt and At
zerodt, some weeks before the assassination,
paaaed hia house, and that on their return Her
old waa with them, Herold being in a buggy
alone ; that they atopped at his house and took
drinks; that John Surratt took him (Lloyd)

out by himself, apart from Herold, and out of
Herold's sight and hearing, and handed him
(Lloyd) two carbines. There ia no evidence
whatever in Lloyd's testimony that Herold had
the most remote knowledge that Surratt had
given Lloyd the carbines.
There is one other point which was given in
evidence by the Government, and that ia the
testimony of the witness Taltavull, the restau
rant keeper, who deposes that one night, either
Friday, the night of the assassination, or
Thursday, the night before it, Herold came into
his restaurant and asked if Booth had been
there. Fifty people could probably be convicted if
facts like these were sufficient to convict; but
they do not give, either separately or collec
tively, the slightest evidence that this boy Her
old ever conspired with Booth and others in
aid of the rebellion, and for the overthrow of
the Government of the United States. They
show nothing that might not have occurred to
any one, perfectly consistent with the most per
fect innocence. The term "confidential com
munication" is the witness' (Weichmann'a)
own construction. He meant only to say that
the three were talking together — that after leav
ing the theater, where they had been, the three
stopped and went into a restaurant, and that
he found them there talking together near a
stove. So much for the conspiracy.
In the special specification there are two
things charged. The first is the murder of the
President of the United States ; the second,
aiding and abetting Booth in his escape from
justice after the murder. An accesaory after
the fact is thus defined: "An accessory after
the fact is one who, when knowing a felony to
have been committed by another, receives, re
lieves, comforts or assists the felon." There
is no reasonable doubt, frora the evidence in
this case, that the accused, Herold, was guilty
of aiding and abetting Booth in his escape
frora justice. It is not the object of the coun
sel for the accused either to raisrepresent the
law (which would be useless in the presence
of the able and learned Judge Advocates who
are conducting this case on the part of the
Government), or to attempt to misrepresent the
facts that have been disclosed iu the evidence,
which would be equally useleas before this
Court. Of the fact that thia boy, Herold, was
an aider and abettor in the escape of Booth,
there ia no rational or reaaonable doubt. He
was clearly guilty of that crime, and muat
abide by ita consequencea. But the accused,
by his counsel, altogether denies that he was
guilty of the murder of Abraham Lincoln,
Preaident of the United Statea, or that he aided
and abetted in the murder of Abraham Lin
coln, Preaident of the United States, as set
forth in the specification and the charge.
Herold is charged in the charge with the
murder of the President. It is shown, as clearlj-
as the sun shines, that he did not do the murder
with bis own hands, that he did not strike the
mortal blow; and the only question that can
arise under the charge and specification, and
the evidence, in thia cauae, is whether he waa
such an aider and abettor as would make him

ARGUMENT OF FREDERICK STONE.

273

equally guilty with the party who did strike
the blow; and in order to arrive at a aatiafao-
tory conclusion whether he did ao aid and abet
in the murder of the President of the United
States, it is necessary to examine what will
constitute an aider and abettor.
An aider and abettor, termed in the law a
principal in the aecond degree, is thus defined;
"Principals in the aecond degree are those
who are present aiding and abetting at the
oommission of the fact. To constitute princi
pals in the second degree tliere must be, in the
first place, a participation in the act committed,
and, in the second place, presence, either
actual or constructive, at the time of its com
mission." Wharton's American Criminal Law,
ith edition, \ 116.
What ia that "actual or constructive" prea
ence is thus explained in the same book, § 124 :
'¦It is not necessary that the party should be
actually present, an ear or eye-witness of the
transaction. He is, in construction of law,
present aiding and abetting if, with the inten
tion of giving assistance, he be near enough
to afford it should the occasion arise."
Now, did the accused, in the language of the
law, participate in the act? Did he strike the
illustrious victim the fatal blow? Did he point
or hold the weapon? Did he open the door of
that accursed box? Did he bar that outer door?
Did he clear the passage of the theater? Did
he atop or attempt to stop pursuit? Was he
even in the theater at the time the fatal deed
was done? To all these questions the evidence
answers, distinctly and eraphatioally, no.
Aa to the second branch of the definition of a
principal in the second degree, was he con
structively present? He was not actually
present, as we have seen above. Was he, then,
constructively present? That ia to aay, in the
language last quoted frora Wharton, was he,
"with the intention of giving assistance,"
" near enough to afford it, should the occasion
arise?" What says the evidence on this point?
John Fletcher, the only witness who raentions
Herold at all on the 14th of April, 1865, aaya
that he saw Herold at twenty-five minutes past
ten o'clock that night, riding on horseback,
slowly, on Pennsylvania avenue, near Willard's
Hotel, coming from the direction of George
town ; that his horse seemed to be somewhat,
though not very, tired, and gave evidencea of
having been ridden. The main portion of the
teatimony places the assassination of the Pres
ident at fifteen minutes after ten o'clock. That
the aasaasination took place in the midst of a
crowded theater, there is no controversy or dis
pute. Now, what possible asaiatance could the ac
cused have rendered to a murder committed in
Ford's theater about the time that he was riding
slowly down the middle of Pennsylvania av
enue? No living man saw Herold nearer Ford's
theater, on that fatal night, than the witness,
Fletcher. Every circumstance attending that
dreadful act has been minutely detailed to this
Court by witnesses who were present. What
possible assistance could the accused, Herold,
have rendered to the murderer ? The only time
that he was seen on that night, and about the
18

time of the murder, ho was fully half a mile
from the scene of the dreadful tragedy.
In order to convict him of being near enough
to give aid, should the occasion arise, Ihe Court
must be satisfied of the nature of the aid that
he waa able to give. What aid could he have
possibly given ? Was he near enough to hand
Booth another pistol in case the first missed
fire? Was he near enough to prevent assist
ance being given to the lamented President in
case the first shot did not take effect? Was he
in a situation to give the murderer any aid in
his escape from the theater? As far as this
testimony discloses, Herold was entirely un
armed. Can the Court conceive any possible
assistance that, under these circumstances, he,
ou the outside of the theater, in the middle of
the principal street of Washington, half a mile
from the theater, about the time the murder was
committed, could have given Booth in the mur
der, or even in his escape?
To constitute an aider and abettor, tho ac
cused must have been in a situation to render
aid. Booth might have supposed him to be in
a situation, the accuaed might have supposed
himself even to be in a situation to render aid ;
but it is not sufficient, unless the Court are sat
isfied, from the evidence brought before them,
that he was actually and positively in a situa
tion where he could have rendered aid in the
commission of the act; and, in support of this
position, I refer to 9 Pickering's Reports p.
496: "To be present aiding and abetting the com
mission of a felony, the abettor must be in a
situation where he may actually aid the perpe
trator. It is not enough that he is at a place
appointed, where the perpetrator erroneously
supposes he might render aid."
But it may be argued that the accused said
to Jett, a witness produced from the State of
Virginia, "We are the assassinators of the
President." If the Court will examine, they
will find that this declaration was qualified
one moment after it was made; that, pointing
to Booth, the accused said, " Yonder is the as
sassinator." Herold is on trial for his acta,
and not for his worda. It ia shown conclu
sively, in this case, that Booth, and not Her-^
old, assassinated the President. If Jett heard
accurately the worda used by Herold, taken
in connection with the facta diaoloaed to this
Court, they only disclosed to Jett the charac
ter of the party. Declarations are only a
means to arrive at the true character of acts.
They muat be taken in connection with the
facts of every case ; and it ia clear, from every
particle of testimony in this case, that Herold
waa not the " assassinator" of the President;
and even if he used the worda aa repeated by
Jett, the meaning is clear enough; he meant
to designate and point out to Jett, the witness,
the character of the party that he waa with.
But it may be urged that the flight of Herold
is evidence of his guilt. It is true that flight,
unexplained, is always regarded as evidence
of guilt, but not conclusive evidence.
" By the common law, flight was regarded so
strong a presumption of guilt, that, in cases
of treaaon and felony, it carried forfeiture of

274

THE CONSPIRACY TRIAL.

the person's goods, whether he was found
guilty or acquitted. These several acts, in all
their modifications, are indicative of fear,
which, however, may spring from causes very
different from that of conscious guilt. Mr,
Justice Abbott, on the trial of Donnall for the
murder of Mrs, Downing, observed, in his
charge to the jury, that a person, however con
scious of innocence, might not have the cour
age to stand a trial, but might, though inno
cent, think it beat to conault hia safety by
flight." Wharton, 4th ed., aec. 714.
But what guilt in this case is the flight of
Herold evidence of ? He is found with Booth,
and his flight in this case is not only evidence,
but constitutes the guilt that he has acknowl
edged ; it constitutes the guilt of his aiding in
the escape of Booth, but no more. It by no
means follows, because he aided Booth to escape,
that he aided him to kill the President. It is
bad reasoning to conclude that because he was
guilty of one crime he was guilty of others.
But it may be asked, why did he leave in
the dead hour of the night with a murderer ? A
slight glance at the relativecharacter of the two
men may explain this difficulty. John Wilkea
Booth, as appears frora all the evidence in this
case, was a man of determined and resolute
will, of pleasing, fascinating manners, and
one who exercised great influence and control
over the lower orders of men with whom he
was brought in contact. He was a man of
meana, quite a prominent actor, fine in per
sonal appearance and manners, and an adept
in athletic and manly exercises. All the force
of hia mind, all hia means, and his time in the
winter of 1865, were devoted to get agents to
aid in his desperate enterprise. In hia search
he met with Herold, then out of employment,
and he at once marked him for his own.
Who ia Herold, and what doea the testimony
disclose him to be ? A weak, cowardly, fool
ish, miserable boy. On this point there is no
conflict. Dr. McKim, who probably knew him
beat, and in whoae employ he had been, de
clares that his mind was that of a boy of
eleven years of age, although his age actually
was about 22 — not naturally vicious, but weak,
.light, trifling, easily persuaded, good tempered,
ready to laugh and applaud, and ready to do
the bidding of those around him. Such a boy
was only wax in the handa of a man like Booth.
But though Booth exerciaed unlimited con
trol over thia miserable boy, body and soul, he
found him unfit for deeda of blood and vio
lence; he was cowardly; he waa too weak and
trifling ; but still he could be made useful. He
knew some of the roads through Lower Mary
land, and Booth persuaded him to act aa guide,
foot-boy, companion. This accounts for their
companionship. There is one piece of evidence introduced by
the Government that siould be weighed by the
Commisaion. It is the declaration of Booth,
made at the time of hia capture : " I declare,
before my Maker, that this man ia innocent."
Booth knew well enough, at the time he made
that declaration, that hia hours, if not his min
utes, were numbered. In natures the moat de
praved, there seems to be left some spark of a

better humanity, and thia little, remnant of a
better nature urged Booth to make that dec
laration while it was yet time to do ao. What
did he mean by that declaration? Not that
Herold waa not guilty of the act of aiding and
aasisting him (Booth) to escape ; but what he
did mean, and what he tried to convey, was,
that Herold was guiltless of the stain of blood
being upon his hands, either as an accessory
before the fact to the murder of the President,
or as an aider and abettor in that murder, or
any other deed of violence. That ia what he
meant. I ahould mention here, what I might more-
properly, perhapa, have mentioned in another
place, that I think it haa been made clear from
the testimony, that Dr. Merritt, who aaid
Herold was in Canada between the 15th and
20th of February last, was manifestly mistaken.
Merritt was positive as to the location of the
time, and if he did not see him there during
that time, he did not see him at all. He did
not profess to have been introduced to him, or
to have had conversation with him, nor was he
pointed out to him, aa Merritt aaya, by narae ;
but the aura of his testimony is, that between
the 15th and 20th of February last, a man was
pointed out to him whose name was Harrison,
and who, he thinks, was the prisoner Herold.
It appears, from the testimony of his little sis
ter, as well as that of Mrs. Jenkins, that Her
old was at horae on the 15th of February ; it
appears conclusively, from the testimony of
Mrs. Potts, that he was at home, as she paid
him some money and took his receipt, on the
18th of February; and it appears equally con
clusively from the testimony of Captain Ed
monds, an officer in the navy, that he was at
home on the 20th of the same raonth, showing
clearly that Herold was not in Canada ; that
Dr. Merritt was mistaken ; it was sorae other
man; more than probable Surratt, who was
called very frequently by his middle name of
Harrison. It has been intimated by one of theAaaistant
Judge Advocates that " where partiea are in
dicted for a conspiracy and the execution there
of, it is but one crime at the common law ; and
that, upon all authority, as many overt acts in
the execution of that conspiracy as they are
guilty of may be laid in the same count." To
this doctrine the accused can not assent. The
crime of conspiracy is thus defined by Mr. Ser
geant Talfourd:
"The offense of conapiracy conaiats, accord
ing to all authorities, not in the accomplishment
of any unlawful or injurioua purpose, nor in
any one act moving toward thatpurpoae, but in
the actual concert and agreement of two or
more persons to effect something, which, being
so concerted and agreed, the law regards aa the
object of an indictable conspiracy." Per Bayley
J,, 2 Barnewall and Alderson, 205.
If this decision is correct — and of its cor
rectness I think there can be no doubt — the
crime of conspiracy becomes complete upon the
concert and agreement. The overt act is not
essential to the completion of the crime.
In Wharton's American Criminal Law, section
2,335, the law ia thus set out :

ARGUMENT OF FREDERICK STONB.

275

" It is usual to set out the overt acts, that is
to say, those acts which may have been done
by any one or more of the conspirators in pur
suance of the conspiracy, and in order to effect
the common purpose of it ; but thia is not requi
site, if the indictment charge what is in itself
an unlawful conapiraoy. The offenae ia com
plete on the consummation of the conspiracy,
and the overt acts, tliough it is proper to set
them forth, may be either regarded as matters
of aggravation, or discharged aa surplusage."
It seems to me clear frora these authorities
that the conspiracy to commit a crime, and the
actual commission of that crime, are nowhere
regarded in the eye of the law as constituting
but one offense. They do, in fact, constitute
two separate and distinct offensea, and the party
may be jndicted for them both, or for either of
them separately. The prevailing doctrine in
this country ia, that where the conapiracy ia
to commit a felony, if the felony ia afterward
committed, the conapiracy merges in the felony,
conapiracy being regarded by all the writera
aa a misdemeanor merely.
Again, if upon a conspiracy being entered
into to commit murder, the murder ia after
ward actually committed by one of the conspir
ators, it is not a conclusion of law that the
murder is committed also by the other co-con
spirators. Another principle here comes in. To the
crime of murder, there may be principala and
accessories before and after the fact. A co-
conapirator may be an accessory before the
fact, but it doea not follow, because he is a co
conspirator, that he is an accessory before the
fact. What ia an accessory before the fact, is
thus defined:
" An accaesory before the fact, ia one who,
though absent at the time of the commission
of the felony, doth yet procure, counsel, com
mand, or abet another to commit such felony."
Now, where ia the evidence that Herold pro
cured, counseled, commanded, or abetted Booth
to aaaaaainate the President of the United
States ?
I beg leave again to refer the Court to the
case of the Commonwealth vs. Knapp, 9 Picker
ing's Reports, 518:
"The fact of the conspiracy being proved
against the person is to be weighed aa evidence
in the caae having a tendency to prove that
the priaoner aided, but it ia not in itself to be
taken as a legal presumption of his having
aided unless disproved by him. It ia a quea
tion of evidence for the consideration of the
jury." Should, then, the Court determine that Her

old waa one of the conspirators, it is not to be
taken of itself aa any ooncluaive evidence that
he aided or abetted in any manner the murder.
This case is being tried by the rules of ev
idence aa known to the common law and the
general principlea of that law applicable to
criminal caaes. I beg leave to call the atten
tion of tho Court to one of the moat important
and most thoroughly established rules of the
common law in the investigation of all Crimea,
and that rule ia thia: That whenever upon anj
queation there should arise in the minds of the
investigating tribunal any reasonable doubt,
the accused should have the benefit of that
doubt. Thia rule haa met with the unqualified
approbation of every judge in England and
America whose name adorns the judicial his
tory of either country. While I do not con
tend that the Court should for a moment ex
amine the record for the purpose of raising
capricious doubts, still, whenever the record
does present a case of reasonable doubt, I in
sist that the accused shall have the benefit of
that doubt. Apply this principle to the main
charge in this case : Can the Court say, from
the evidence before them, that, on the night of
the 14th of April, 1865, the accused, Herold,
was in a situation where he could render aid
in the actual murder of the Preaident ? Taking
into consideration the mode and manner of
the execution of that murder, and Herold's
position from the time of ita commisaion, it
aeems to me that it is almost, if not quite, clear
that he was not in a situation where he could
render such aid. Can the Court say, beyond
a reasonable doubt, then, that he was an ac
cessory before the fact? Can they aay that
Herold did procure, counsel, command, or abet
Booth to kill and murder the President of the
United States ? If so,' what word or deed of
Herold's can they point to in this record that
does amount to procuring, counseling, com
manding or abetting? There is clearly none.
The feeble aid that he could render to any en
terprise was rendered in accompanying and
aiding Booth in his flight, and nothing beyond.
That of itself is a grave crime, and carries with
it its appropriate puniahment.
I beg leave to conclude this defense with a
quotation from Benet on Miliiary Law and
Courts-martial :
" Where the punishments for particular of
fenses are not fixed by law, but left discretion
ary with the courts, the above mandate of the
Constitution muat be atrictly kept in view,
and the benign influence of a mandate from
a atill higher law ought not to be ignored, that
justice should be tempered with mercy."
DAVID E. HAROLD.

-A.I^C3-TJIs^ElsrT

DEFENSE OF EDWARD SPANGLER

THOMAS EWII^G, Jr,

Mr, President and Gentlemen of the Commission :
In presenting to you thia morning the case
of the accused, Edward Spangler, I shall con
fine myself to a discussion of the evidence,
leaving whatever I may see fit to aay on the
question of jurisdiction, and on the character
of the charges and specifications to the occa
sion when my argument in the case of Mudd
is presented.
Preliminary to a consideration of the spe
cific items of testimony against Edward Spang
ler, I will briefly refer to and ask considera
tion of the evidence as to hia character, his
occupation, his relations to Booth, and Booth's
habita of resorting to the theater and frater
nizing with its employees.
John T. Ford saya, on his cross-examina
tion: Q. [By Mr. Ewing.] State what were the du
ties of the accused, Edward Spangler, on the
stage. A. Spangler was employed as a stage hand,
frequently misrepresented as the stage car
penter of the theater. He was a laborer to as
sist in the shoving of scenery into its place,
and removing it within the groves, as the ne
cessity of the play required. These were his
duties at night, and during the day to aasist in
doing the rough carpenter work incidental to
playa to be produced.
Q. State his relations to Booth, as far as you
have known thera to be together at all.
A. He seemed to have a great admiration for
Booth. I have noticed that, in ray business on
the stage with the stage manager. Booth was
a peculiarly fascinating man, and controlled
the lower class of people, such aa Spangler
belonged to, I auppose, more than ordinary
men would — a man who excelled in all manly
sports. And on his second examination, Ford says :
Q. How long have you known the accused,
Edward Spangler?
A. Nearly four years, I think.
Q. Was he in your employ through that
time ?
A. Most of that time.
Q. State what his character ia for peace,
good nature and kindness.
A. He waa always regarded as a very good-
natured, kind, wilUng raan. Hia only fault
was ocoaaionally participating in drinking
276

liquor more than he should have done — dia-
posed to drink at tiraes — not so as to make
hira vicious, but more to unfit him to work.
Q, Is he a quarrelsome man ?
A, I never knew him to be but in one quar
rel since he haa been in my employ, and that
was through drink.
Q. Was he faithful in attending to his du
ties ?
A. Very ; a good, efficient drudge ; always
willing to do anything; I never found him un
willing. Q. "Was he a man that was trusted with the
confidence of others?
A. I should think not to any extent. He had
no self-respect. He waa not one who had many
associates. He usually slept iu the theater — a
man who rarely slept in a bed. r
Q. A harmless man ?
A. Very harmless — always esteemed so, I
think, by all the company around the theater;
often the subject of sport and fun ; but never,
except on one occasion, did I know him to be
engaged in a, quarrel.
Q. How was he as to politics? Was he a
man of intense feeling?
A. I never knew anything of his poUtical
sentiments in this city. In Baltimore he was
known to be a member of the American Order.
I never heard an expreaaion of political aenti-
raent from him.
Gifford says [cross-examination] :
Q. What were his relations with Booth?
A. Nothing that I know of, further than
friendly. Everybody about the house was
friendly with him.
Q. With Booth?
A. Yea, air, actora and all; they were all
friendly with him. He had auch a very winning
way that it made every person like him. He
was a good-natured and jovial kind of man.
The people about the house, as far as I know,
all liked Mm.
Q, Was he much in the habit of frequenting
the theater ?
A. Sometimes I have seen him there for a
week, and then he would go off, and I would
not see him for a couple of weeks. Then he
would come again for a week, perhaps, and af
ter that I would not see him for a couple of
weeks or ten daya, or something of that sort.
When the house was open, he had free access
all through the house.

ARGUMENT OF THOMAS EWING, JR.

277

Q. Day and night?
A. Yes, sir; except when the house was
locked up and the watchman waa there ; he
had no access to it then.
Q. Was not Spangler a sort of a drudge for
Booth? A. He appeared so; he used to go down and
help him to hitch his horse up, and such things,
I nin told; I have seen him once or twice hitch
ing the horae up myself.
It is to be remarked here, that a stable a few
yards from the back of the theater, and from
the doors of the negro women, Mrs. Turner and
Mrs. Anderson, was used by Booth for his
horses and buggy, from early in January until
the assassination, and Burroughs and Span
gler, employed at the theater, attended to the
drudgery at the stable.
Burrougha ("Peanuta") says [cross-exam
ination]: Q. Was not Spangler in the habit of bridling,
and sadling, aud hitching up Booth's horse?
A. When I was not there he used to hitch
him up^
Q. Was he not in the habit of holding him,
too, when you were not about?
A. Yes, sir; and he used to feed him when
[ was not about.
While calling the attention of the Court to
the evidence aa to the relations existing be
tween Spangler and Booth, I desire it also to
mark the fact that in the great volume of tes
timony as to the letters, conversations, meet
ings, associations, acts done, and things said
wMch have been adduced, as evidence in theae
caaea, there ia not the alightest indication that
Spangler ever met Booth except in and around
the theater, that he ever got a note or a message
from him, or ever saw or heard of any one of
the persons suspected to have been associated
with Booth, in either the conspiracy to capture
or that to assassinate the President and the
heads of the Government.
Now, in the light of the above-recited evi
dence, I am certain tiiere is nothing shown to
have been said or done by anybody prior to
the moment of assassination — outside of the
testimony of Sergeant Joseph M. Dye and
John F. Sleickman — tending at all to show that
Spangler had any intimation of Booth's guilty
purpose, or was in any way, even innocently,
instrumental in effecting it. Let us briefly
consider the several items of evidence of acts
done and things said prior to the conversation
with Booth, narrated by Sleickman, and con
sultation with him noticed by Sergeant Dye,
which have been adduced here as evidences of
Spangler's guilt.
1. He repaired Booth's stable, in January,
Burroughs aays. What of that? He waa a
-ough carpenter, and a drudge at the theater,
and the atable was near at hand. The inci
dent is unworthy of further notice or comment.
2. He sold Booth's horse and buggy several
days before the assassination, at the horse mar
ket or at a livery atable. (Burrougha'.) The
same witness aays he prepared them for sale,
and went with Spangler, and that Gifford aent
them to make the sale. And Gifford -says he
received, and J. R. Ford receipted for the money,

and he (G.) paid it over to Booth. This item
is at least as good against Gifford and "Pea
nuta" as against Spangler, and amounts to
nothing against either.
3. There was found in Spangler's carpets
sack, at his boarding-house, on tho 17tli of
April (the day of his arrest), rope 81 feet long,
some letter paper, and a shirt-collar. (Rosch.)
The rope was offered in evidence ; the letter
paper and shirt collar were not. The rope was
just like forty or fifty others used about the
theater as "border ropes," and to "haul up
lumber to the top dressing rooms, because the
stairs are so narrow tho timber can not be got
up that way." (Carland). "The border ropes
are seventy to eighty feet long — not leas than
80 feet." (Lamb.) "They are of just the same
material, texture and size aa thia." (Carland,
Lamb, Eaybold.) "We used such ropes as this
at the time of the Treasury Guards' ball, to
stretch from the lobby to the wings, to hang on
it the colors of different nations." (Raybold.)
"This rope has evidently been in use." (Car-
land, Lamb, Raybold). "Sometimes we use
them, and a great many of them, and then
again we have to take them down, and they lie
up there on the acene loft until we need them
again." (Raybold). From the evidence, it ap
pears probable Spangler stowed away this rope
to use on his frequent fishing excursions as a
crab line. Gifford says:
Q, State whether you- know anything of the
accused, Edward Spangler, being accustomed
to crabbing and other fishing during' the re
cesses of his engagement.
A. I never saw him at it; but I have known
him to tell me that he went crabbing — that he
would go down to the Neck on Saturday night,
and stay tintil Monday morning, and come
home on Monday morning. I have never seen
him at it myself; but I know that is wha£ he
told me, and I have seen others who said the '
same thing — that they had been crabbing to
gether. Q. [Exhibiting to the witness the rope].
Will you state whether that rope is such a one
as might be used in that sport?
A. They have a line something of thia sort,
and small lines tied on to it about that dis
tance [three feet], with pieces of meat attached,
and as they go along they trail it along. I
have seen them at it, although I have never
done anything at it myself. They pull up the
crabs as they go along, and let the line go
down, and dip them up out of the boat.
And John T. Ford says:
Q. State whether or not you know anything
of the prisoner, Spangler, having been in the
habit of going to Baltimore, and for what, dur
ing the spring.
A. I know that he had lived in Baltimore,
and buried his wife there some eight or ten
months, or probably a year ago, while in ray
employ, and that he considered Baltimore his
home, and usually spent the aummer months,
during the vacation of the theater, there, chiefly
in crabbing and fiahing. He was a great fisher
and crabber. I know nothing positive of my
own knowledge as to that. I only heard that.
and we used to plague him about it.

278

THE CONSPIRACY TRIAL.

Q. [Exhibiting to witneas the coil of rope
found in a carpet-sack at the house where Spang
ler took his meals.] Look at that rope, and
see whether or not it might be used for any
such purpose, and in what way.
A. I suppose that could be used as a crab
line, though it is rather short for that purpose.
I have seen some as short used. I have read
that the length of this is eighty feet, but I do
not know from its appearance.
Q, This ia such a rope aa you have seen
used by amateurs in that sport ?
A. Yea, sir; I have aeen such ropes. I fre
quently go fiahing in the summer.
While it ia unqueationably true that, so far
as the evidence goes, Spangler may have got
this rope for some purpose other than that
suggested, it is also true that there are many
other uses for which we can more readily
imagine he got it than for the assassination
plot. In the devilish scheme of that conspiracy
I can imagine no use for a rope eighty feet
long. It could not have been provided for
lariats, for there was then no graaa; nor for
haltera, for it would make a half score. If,
however, it had been provided for any purpose
connected with the conspiracy, it would have
been kept at the theater, or the atable, and
not off at a remote boarding houae. It ia
eaaier to imagine him frugal enough to provide
for his horae, in Baltimore, a clothes line or a
bed cord, than foolish enough to provide for
the assassin's scheme an article so unnecessary
aa an eighty-foot rope. My only embarrass
ment in this point of the case arises from a
failure to show that he fairly got title to the
rope; but in this embarrassment I find conso
lation in reflecting that I am not called on to
show what he meant to do with the #hirt collar
and the letter paper — which would have been
a much more difficult task.
4. Two boxes had always been thrown into
one when the President came to the theater on
several former occaaiona during the season.
(H. Clay Ford). Except while taking out the
partition, Spangler was not in the box as it waa
being prepared and decorated. (H. Clay Ford).
But Burrougha aays:
Q. What waa he doing?
A. Harry Ford told me to go in with Spang
ler and take out the partition of the box, aa the
Preaident and General Grantwere coming there.
I then went after Spangler.
Q. Do you remember whether, while Spang
ler waa doing that, he said anything in re
gard to the President?
A. He raade reraarks and laughed.
Q. What were they?
A. He said, " Damn the Preaident and Gen
eral Grant."
Q. While damning the President, or after
damning him, did he say anything else?
A. I said to him, " What are you damning
the man for — -a man that has never done any
harm to you?" He said he ought to be cursed
when he got so many men killed. I stayed
there until they took the partition out, and aat
down in the box.
Q. Did you observe what elae they did in the
box?

A. No, sir. Spangler said it would be a
nice place to sleep in after the partition was
down. That ia all I recollect.
Judge Advocate omitted to ask his -witness
(Jake Ritterspack) as to this conversation, so
that it rests on the evidence of "Peanuts"
only. I do not think it goes a great way to
ward establiahing Spangler's connection with
the conspiracy, or calls for special comment.
But I will present a set-off to this exhibition
of ill feeling toward the Presidentby Spangler,
at being called away from his work on the stage
to do an extra job in fixing the box, by liis
equally strong exhibition of ^ooif feeling, when,
as the President entered the theater, "he
clapped his hands and stamped his feet, and
seemed as pleased as anybody to see the Pres
ident come in." (James.)
5. Burroughs further says, between five and
six o'clock Friday evening. Booth carae with
his horae to the atable and called for Spangler
and wanted a halter. That Spangler aent
Ritterspack up stairs for one; that Maddox
was there with them, and Spangler wanted to
take the bridle and saddle off, but Booth would
not let hira, but that he (Spangler) did after
ward take,them off. The fact that Booth wanted
the saddle and bridle lefton, and Spangler
wanted to take them off, and did subsequently do
it, indicates that Spangler had, up to that time,
no intimation of Booth's need of the horse that
night. 6. I have no doubt that the actual and the
apparent preparations in and about the Pres
ident's box for the assassination, more than all
other circumstances combined, led the Govern
raent to arrest Spangler and put him on trial
as a conspirator. They were sufficient to direct
suspicion against him and to justify his arrest,
for in thera they appeared to the casual observer
the hand of a mechanic in aid of Booth's
plan. But the evidence has wholly cleared the
defendant of that suapicion. Theae actual and
apparent preparations were:
1. A quarter of an inch hole bored through
the door of box 7, which was the closed door
when the two boxes, 7 and 8, were thrown into
one for the Preaident'a party. This hole was
bored with a gimlet, and enlarged on the out
side with a penknife. (Plant, Ferguson, Olin.)
A giralet was found in Booth's room, after he
fled, about the size of the hole, but it was lost
or mislaid, and, therefore, could not be fitted to
the hole. Booth occupied box 7 one night, about
two weeks before the assassination. (Ray
bold.) "He secured#)ox No. 7 three or four
tiraes during the season before the assaaaina-
tion, but T can not say whether he occupied it or
not." "Sometimes he would use it and some
times he would not." "He always engaged that
box." (H. Clay Ford.) The fact that Booth
apparently brought the gimlet, bored the hole,
and carried tho giralet to hia room again, leaves
thia item of testimony not only of no effect
against Spangler, but of great significance in
his favor. For, if Booth had a confidant and
confederate in thia rough carpenter, the work
would have been done by Spangler, or, at leaat
with Spangler'a tools.
2. The hole in the plaatering, two by three

ARGUMENT OF THOMAS EWING, JR.

279

inohea, into which the brace rested which faat-
ened the outer door leading from the dress-cir
cle into the little passage from which the doora
open into the private boxea. Thia hole waa cut
with a penknife, apparently, from the aoratches
down the wall. (Rathbone.) It waa not cut
into the brick, but about an inch, or an inch
and a-half, into the plaater. It would take ten
or fifteen minutes to do it with a penknife. (Gif
ford.) That passage was pretty dark, even
when the door is opened. (H. Clay Ford.) If
done with a knife, even with the door opened,
it would make no noise auffioient to attract at
tention. (Gifford.) This item, like the last,
tenda in Spangler'a favor, and not against him.
For a carpenter, with tools at hand, would have
made the hole with a chisel, rather than with a
penknife. The chips which fell from whittling
one side of the gimlet-hole, and the plastering
from the hole in the wall, were not on the floor
next morning. (Judge Olin.) This indicates
that the work waa done in advance, or on some
jne of the occasions when Booth occupied box
7, opposite the door of which the hole in the
wall was cut.
3. A penknife waa found in the President's
box next morning. This was used on Friday
afternoon by Harry Ford, in cutting the strings
to tie up the flags and the picture of Washing
ton, and was left by him accidentally in the
Dox. (H. Clay Ford.)
4. The screws which fastened the keepers
of the locks on the doors of 7 and 8, were so
loose that the doora could be easily pushed open,
even when locked. (Judge Olin.) The theory
of the prosecution was that the screws were
drawn by Spangler, in advance, in aid of
Booth's plan. Raybold saya that several weeks
before the assassin.ation, he burst open the door
of box 8 to admit Mr. Merrick, and that after
that the lock waa not repaired and wouldn't
fasten the door; but Merrick says it was the
door of box 7. This conflict of evidence is of
no consequence, however, because O'Bryon, the
usher, says:
A. In box 8 the keeper was wrenched off,
broken off in some way; I do not know how.
I was absent one evening; I was at home sick,
and when 1 came again I found that it was
broken off, but the door itself was pretty tight
at the top, and I never thought of speaking
about it. All I had to do was to close the door,
and the door itself would shut tight, and I do
not know that I ever said anything about it.
Q. When did you first notice that the keeper
of the door of box 8 was broken?
A. On tbe first occasion that I went into the
box afterward ; I can not tell when that
was. Q. Was it before the assassination?
A. Oh yea, sir, some time.
Q. About how long before?
A. That I could not aay.
Q. Which door waa uaed when the Presi
dential party was occupying the two boxes?
A. The door of box 8.
Q. How waa it generally left after the party
entered? A. Always open.
Q. Do you know whether the door leading

into the pasaage, which separates the two boxea
from tho wall, had a lock upon it?
A. No, air, it had no look.
And Plant, an expert, unconnected with the
theater, who, a few days ago, examined the
keepers of both boxes, aays:
A. 1 examined tho keepers on boxes 7 and 8.
To all appearances they had both been forced.
The woodwork in box 8 is shivered and splin
tered by the screws. In box 7 1 could pull the
screw with my thumb and finger; tho tap was
gone clear to the point. I could force it back
with my thumb. In box 4, which ia directly
under box 8, the keeper is gone entirely.
Q. State whether or not, according to your
profeaaional opinion, the keepers of the looks
in boxes 7 and 8 were made loose by an instru
ment, or by force applied to the outside of the
doors? A. I ahould judge by force.
Q. Ia there any appearance of an instrument
having been uaed to draw the screws in either
of those boxea?
A. I could see no such evidence.
5. A square pine stick, about four feet
long, and beveled at one end, with which the
outer door was braced, was picked up in the
box that night. (Jaquette.) Through the bev
eled end are driven two lath nails, bent at the
ends, which Gifford, the carpenter, says might
have been put there to hold that end against the
door, but which obviously were not put there
for any auch purpose, as they were wholly un
necessary for that purpose, and were not driven
into the door. In the other end are two large
nails, which, he says, could have been of no use
to liold the butt end in the hole. The stick had
evidently been prepared for some other use. It
is doubtful whether it waa the stick that Booth,
used, as it was found, not in the passage, but
in the box (Jacquette) ; and Major Rathbone
says: "I found the door barred by a heavy
piece of plank;" and "My impression was, it
was a different piece of wood." Whether thia
is in fact the bar is of no apparent importance.
The members of the Court have observed Ihat
the wall forms with the door, when shut, an
acute angle, and are doubtless satisfied that a
strong stick or piece of plank, anywhere from
three to five feet long, would answerr well to bar
the door. But if thia waa the bar, it waa not
prepared by Spangler for the purpoae, for he, a
carpenter, would not have driven the naila in
the butt end.
These three acts of preparation — the boring
the hole in the door, the cutting the hole in the
plaster, and providing the brace — were acts of
mere drudgery, which, if Spangler had been a
conspirator. Booth would naturally have called
on him to do; and the fact that Booth certainly
did one, and probably did the others, and the
presumption that Spangler did neither, tend
strongly to the conclusion that he was not in
the plot when theae preparationa were made.
Ritterspack, in his last examination, said
that just before he and Spangler went home to
supper, on the day of the asaasaination, and
about aix o'clock in the evening, they were at
work together on the stage, and saw a stranger
in the dress circle amoking a cigar. He called

280

THE CONSPIRACY TRIAL.,

Spangler'a attention to him, but he aaid "he
had no charge on that side of the theater, and
no right to order the man out." That presently
the stranger entered one of the lower private
boxea oppoaite the President's box, when Spang
ler said something, in consequence of which
the man left. The Assistant Judge Advocate
objected to the witness saying what it waa
Spangler said to the atranger to make him leave.
Doubtleaa thia man waa there inspecting the
President's box for Booth, a,ud possibly eutting
the hole in the wall, and bringing in the bar.
Had Spangler been in the conspiracy, would
Booth have needed the services of thia inapector
and assistant?
We now come to the consideration of the tes
timony of Sleickman, referred to above.
Q. Do you know J. Wilkes Booth?
A. Yes, sir.
Q. Did you or not see him on that night, and
if so, at what hour and under what circum
stances ?
A. I saw him about nine o'clock, I guess it
was. He came up on a. horse and came in a
little back door to the theater. Ned Spangler
was standing there by one of the winga, and
Booth aaid to him, " Ned, you will help me all
you can, won't you ?" and Ned said, " Oh, yes."
Q. I understand you to say that as Booth
came up to the door with his horse, he said
that? A. When he came in the door after he got off
the horse.
Q. How long was that before the President
was shot?
A. I should judge it to be about an hour and
a-half. Q. Did you observe the horse afterward, by
whora it was held?
A. I did not.
Q. You did not see Booth any more?
A. I just got a glimpse of him as he was
going out the first entrance on the right-hand
side. Q. What hour was that when you saw him
goi Jg out of the first entrance ?
A. About half-past ten o'clock, I think. That
was after he shot the President.
Q. How close were you to Booth and Spang
ler when Booth aaid those worda to him on en
tering the theater, from the door?
A. About as far as I am from you. [A dia-
tance of about eight feet,]
Q. How far was Spangler from hira?
A. Spangler was standing as close to him aa
the gentleraan next to you ia to you. [About
three feet.]
Q. He spoke, then, in a loud voice ?
A. Yea, sir.
Q. Could he have aeen you from where he
was standing?
A. Oh, yes.
Now thia evidence ia flatly contradicted by
the evidence of J. L. Debonay, the "reaponsi-
ble utility " man.
In his second examination he says:
Q. Did you see anything of Mr. Sleickman
when Booth said he wanted Spangler to hold
his horse, and you went over for Spangler?
-A. They were both standing at the same

place, very near, close to each other, on the op
posite aide of the stage.
Q, That is, on the left-hand aide of the stage
looking to the audience?
A. Yea, air; and the aame side that the
President's box was on.
Q. Did Mr. Sleickman go over to the door?
A. I did not see him go over there.
Q. Did you see Spangler go over?
A. Yea, sir; because I went right behind
him, pretty close.
Q. Did you see Spangler go out of the door?
A. Yes, sir.
Q. Did you see Booth then come in?
A. I did.
Q. How long was it after Spangler went out
before Booth came in ?
A. About a minute, or a minute and a-half —
not longer than that.
Q. How far were you from the door?
A. I was about half-way between the back
door and the green-room — about eighteen or
twenty feet, I auppose.
Q. Did you hear any conversation between
Spangler and Booth?
A. I did not.
Q. Did you hear anything to indicate that
there was conversation going on between them?
A. No, sir.
Q. Did Booth meet Spangler inaide of the
door? A. He waa standing at the door ; he was on
the outside. The door was about half open
when Spangler went out.
Q. Would you have seen any person who fol
lowed Spangler, and went out, too?
A. Yes, sir ; I think I should have seen any
one, Q. And you did not see Sleickman?
A. I did not.
Q, When Booth came in, what did he do?
A, He went under the atage to the oppo
site side, and he went out the side door. «
Q. How do you know that he went out of tho
side door?
A. Because I went under the stage and
creased to the opposite side rayself.
Q. Did you go under with Booth ?
A. Yes, sir ; I went under with him.
It raay be suggested that the conversation
between Booth and Spangler occurred at some
time during the play, prior to the time when
Booth rode up to the back door and called for
Spangler to hold his horse. But, if that be
claimed, I assert that the evidence shows con
clusively that Booth came io the door with his
horse but once that night during ihe play. And
in support of that assertion I here refer the
Court to each item of evidence (except that of
Sleickman and Debonay, the confiicting wit
nesses), as to Booth entering the theater by the
back door during the performance.
1. John Miles, colored, whoae place was in
the flies, from which he could see out of the
window down into the alley by the door, aays :
Q. Did you see J. Wilkes Booth there?
A. I saw him when he came there.
Q. What hour did he corae? Tell us all you
saw. A. He came there, I think, between nine and

ARGUMENT OF THOMAS EWINO, JR.

281

ten o'clock, and he brought a horse from the
stable and came to the back door and called
"Ned Spangler" three timea out of the theater.
Ned Spangler went across the stage to him.
After that I did not see what became of Booth,
and never noticed him any more until I heard
the pistol go off.
Cross-examined by Mr. Ewino:
Q. Was the play going on when Booth rode
up and called for Spangler?
A. They had just closed a scene, and were
fetting ready to take off that acene at the time
e called for Spangler. Spangler was at the
second groove then, and pushed a scene across.
Booth called him three times.
Q. Where were you then ?
A. Up on the flies, about three and one-half
stories from the stage.
Q. Do you know who held the horae ?
A. John Peanuts held him ; he was lying on
a bench, holding the horse, when I noticed
him. I was at the window pretty nearly all
the time from the time Booth brought the horse
until he went away. Every time I looked out
the window, John Peanuts was lying on the
bench holding the horse. I did not see any one
elae hold him.
2. Joaeph Burroughs ("Peanuts") says:
Q. Did you see him on the afternoon of the
14th of April ?
A. I saw him when he brought his horse to
the stable, between five and six o'clock.
Q. Did you see him again at a, later hour
that evening ?
A. I saw him on the stage that night.
Q. Did you or not see him when he came
with hia horae, between nine and ten o'clock
that night ?
A. No, air; I did not aee him when he came
up the alley with hia horse.
Q. Did you see the horse at the door ?
A. I saw him when Spangler called me out
there to hold the horse.
Q. Did you see Booth when he came there
with hia horae?
A. No, air ; I did not see him.
Q. Did you hear him call for Ned Spangler ?
A. No, sir; I heard Debonay calling Ned,
that Booth wanted him.
8. Mary Ann Turner (colored) says:
Q. Did you know John Wilkes Booth?
A. I knew him when I saw him.
Q. Will you state what you saw of hira on
the afternoon of the 14th of April last ?
A. That afternoon I saw him, I think, to the
best of my recollection, between three and four
o'clock, standing in the back door of Ford's
Theater, with a lady by his aide ; I did not take
any particular notice of him at that time, but 1
turned from the door, and I aaw no more of
him until, to the best of my recollection, be
tween seven and eight, or near about eight,
o'clock that night, when he brought a horae up
to the back door, and opened the door, and
called for a man by the name of "Ned" three
times, to the beat of my recollection, not more
than three timea; thia "Ned" carae to Mm,
and I heard him aay to "Ned," in a low voice,
"Tell Maddox to come here." I then aaw
Maddox come ; he (Booth) said aomething iu a

very low voice to thia Maddox, and I saw
Maddox reach out hia hand and take the horse;
but where "Ned" went 1 can not tell; this
Booth went on into the theater.
Ci'oss-oxaminod by Mr. Ewino :
Q. How far is your houae from the back
door of the theater?
A. My front door fronta to the back of the
theater; it comea out into the open alley,
which leads up to the door; there is another
house between mine and the theater; the two
houses are adjoining, and my house stands as
far from the door of the theater as from here
to the post. [About twenty-two feet.] I think
it would allow that space for the two houses.
4. Mary Jane Anderson.
Q. Does your house adjoin that of Mrs.
Turner, who has just testified?
A. Yes, sir; my house and her's are adjoin
ing. He came up to the theater door, this gen
tleman did, with the horse by the bridle. He
pushed the door open, and said aomething in
a low tone, and then in a loud voice he called
" Ned," four timea. There waa a colored man
up at the window, and he aaid: "Mr. Ned,
Mr. Booth calls you." That is the way I came
to know it was Mr. Booth. It was dark, and
I could not see his face. When Mr. Ned came,
Booth said to him, in a low tone, "Tell Maddox
to come here." Then Mr. Ned went back, and
Maddox came out.
Q. How long waa it from the time that Booth
rode up there until the people aaid he had ahot
the President?
A. I auppose it was about an hour — not
quite an hour — from the time he came up there
to the time they said the President was shot. I
think it was almost an hour, but I do not think
it was quite an hour.
These six witnesses (including Sleickman
and Debonay) are all who have testified to
Booth's coming to, or entering, the back door
of the theater that night. Every one of them,
except Sleickman and Burroughs, refers to his
calling loudly several times for Spangler. Bur
roughs, who was too remote from the door to
hear Booth calling for Spangler, fixes it as
being the same time, by saying that he heard
Debonay repeat Booth's call for Spangler; and
Sleickman says it was when Booth came up
with his horse to the back door that he saw him
and heard him talk to Spangler. If Booth had
previously, during the play, come up the alley
to the back door with his horse, Mrs, Turner,
Mrs. Anderson and John Miles, from their po
sitions adjacent to and overlooking that part
of the paved alley, would certainly have seen
or heard, and noticed him or the horse; and if
Booth had entered the theater previously during
the play, and atopped by the acenes to talk
to Spangler, surely some one else, on that
small, thronged atage, would have seen or heard
hira. It would have been, of itself, a trifling
incident; but on the day following tho assas
sination, when it was established that Booth
was the murderer, I venture to say there was
not a man or woman in the city of Washing
ton, who ever saw Booth, who did not recall
when and where he or she saw the assassin
last. And, therefore, I feel safe in asserting

282

THE CONSPIRACY TRIAL.

that, had he rode up to the .back door and
gone into the theater at any other time that
night than the one time fixed by the concur
rent testimony of so many witnesses, we would
have learned it in this investigation ; for every
step the villain took about the theater that
night is recounted in the evidence before us.
If, then, he was there but once, what cre
dence can be given to Sleickman' s evidence aa
to Booth s statement to Spangler and the reply?
I claim that the evidence overthrowa it. If
the issue as to it were to be settled by a con
sideration only of Sleickman's evidence with
the flatly contradictory evidence of Debonay, I
might reasonably claim an even balance of tes
timony, as the two witnesses were apparently
equally credible. But Debonay's evidence is
consistent with, and supported by, the other
evidence of the case, and Sleickman's is not.
For, if Sleickman's statement be true, some
other man, not disclosed by the proof, muat
have held Booth's horse while this colloquy was
going on in the theater. Mrs. Turner, in her
confused statement, says, in aubatance, that
after Booth came up, Spangler first held the
horae a few minutea, and from that time it waa
held by the aame man who held him at the
time of the assasaination, to-wit. Burroughs,
whora she mistook for Maddox, one of the wit
nesses for the prosecution. She testifies the
horse was held all the time, and if any one
else had held him, surely he would not have
escaped the vigilant and incessant search of
the Government.
But grant Booth did say to Spangler, "Ned,
you will help rae all you can, won't you? " and
Ned replied, " Oh, yes," all said in a loud
tone, and in sight and hearing of Sleickman.
If there were preceding incidents in proof
showing Spangler's knowledge of Booth's guilty
purpose, this aUeged colloquy might be regarded
as a link in a chain of evidence against him.
But of itself, unaccompanied with the slightest
evidence or ground of presumption of Spang
ler's previous knowledge of Booth's purpose,
and followed (as we will see in thia diacussion
of the evidence), by not the alightest act, or
arrangement, or apparent intent of co-opera
tion in the crime, or the escape, it ahould, I
think, be treated by the Court (if it be thought
to have occurred), aa on Spangler's part noth
ing but the unwitting response of a drudge to
a remark of one he looked up to as a superior,
whom he was accustomed to serve, and of which
he knew not the special intent. Had he known
Booth's purpoae, and meant to aid hia escape,
would he not have got a substitute to above
the scenes, and been in the paasage, or at the
door, ready to help baffle the pursuers? Or
would he not, at least, when he heard the pis
tol fired, have crossed to the passage and
opened the door which Withers, and Ritterspack,
and Stewart say was shut when Booth reached
it? Is it possible he would have stood 'motion
less (as Ritterspack and James say he did), re
mote from the pasaage and the door, and thua
leave Booth to the hazard of his flight, un
aided? Would he, as Debonay says he did,
instead of following Booth to see him off, have
shoved back the scene behind which he stood.

ao as to allow free exit for the crowd who
sprang on the atage to follow and catch the
assassin, and himself run for water for the
President? His whole conduct before and after
the shot was fired shows that if that remark
was in fact made to him by Booth, he was
wholly ignorant of ita imputed meaning.
I here deaire to calUattention of the Court
to a fact in the evidence which, to my mind,
conclusively shows that if Booth did in fact say
that to Spangler, and get that reply, still
Spangler neither knew Booth's criminal pur
pose nor was a party to its execution. That
fact is, that Booth knocked "Peanuts" down as
he took the horse from him, and fled. Now, I
assert that if the evidence shows that Booth
intended for Spangler, or assigned to him any
part to perform in the conspiracy, it waa to
hold his horse in the alley at the back door,
and nothing else whatever. That Spangler failed
to do that, but stuck to his duties on the stage,
is evidence drawn from his conduct that he was
no party willing to aid and abet the crime.
That Booth knocked the horse holder down is
evidence equally conclusive frora his conduct
that Spangler was not intrusted with the
secret of the crime to be committed, nor relied
on to knowingly aid and abet it. For he, in
all probability, thought it was Spangler, and
not "Peanuts," who held Ms horse. He had
left him with Spangler, who did not call "Pea
nuts" to hold him until Booth had passed under
the stage and out the aide entrance (Debonay),
to return on the stage no more until fleeing
from his pursuers. As Booth fled he-"<!ould not
have seen Spangler on the stage; and the night
waa 80 dark he did not distinguish "Peanuta"
frora Spangler, both being of near the sarae
hight and frame. It was so dark that Mrs.
Simras and Mrs. Turner both took "Peanuta"
for Maddox — a man less like him than Spang
ler is — though he was but a few yards off,
holding the horse an hour. And surely Booth,
rushing frora the glare of the stage, into the
blinding darkness of that night, wild with ex
citement and passion, would not scrutinize the
features of his horse boy. He knocked "Pea
nuts" over, supposing him to be Spangler, thus
showing a fear that Spangler would pursue
him, and thus, in the midst of his own crime,
giving us convincing evidence of Spangler's
innocence. The other item of evidence tending to show
that Spangler knew of Booth's purpose and
waa oonaenting, advising, or aiding to accom
plish it, is the testimony of Sergeant Jos. M.
Dye, which I will now conaider. He says he
saw a roughly-dressed man standing on the
pavement, just outside the door of the theater,
from twenty-flve or thirty minutes past nin«,
till ten minutea past ten, by the time of the
theater clock. That Booth frequently whis
pered to thia man during that time, and that
juat aa the call waa made by Booth's other and
unknown companion, at ten minutes past ten,
from the clock in the theater hall. Booth whis
pered to this roughly-dressed man and entered
the theater. The roughly-dressed man was not
seen to leave by the Sergeant, who himself
at that time left and went with a friend to a

ARGUMENT OF THOMAS EWING, JR.

283

grocery around the corner, where in flfteen
minutes, or less, news camo that the Preaident
waa shot. Ho could describe no article of the
roughly-dressed man's clothing, but a black
slouch hat, thought him five feet eight or nine
inches high, heavily built, and dreaaed in worn
clothes. He recollects distinctly, and asserts
most postively, that this man wore a heavy black
mustache. He did not recollect the color of his eyes,
his hair, or any of his clothes, nor knew whether
he wore an overcoat. He saya (pointing to
Spangler), " If that man had a rauataohe, it
would be just the appearance of the face ex
actly." It is fortunate for the accused that this wit
ness states with certainty three oircumatancea,
by meana of which the theory that thia man
was Spangler haa been completely over
thrown. 1. He aaya (six timea in the course of hia
evidence) that the man he aaw had a muatache,
and said also it was black and heavy.
Miles, Sleickman, Burrougha, Maddox and
Gifford, witnesses for the prosecution, who all
saw Spangler during the play, said he wore no
muatache then, and they never aaw Mm wear one.
Maddox saw him in hia place three or four
minutes before the assassination, and then he
wore none. Buckingham, Withers, and Fergu
son, witnesses for prosecution, and Goen
ther, Harry Ford, and others, for defenae, who
saw him daily, say they never saw him wear
ing a mustache. If he had been in front of the
theater that night for three-quarters of an hour,
wearing a heavy black muatache, red-headed as
he is, no one can doubt that many of the em
ployees and habitues of the theater who knew
him would have noticed hia grotesque disguise,
and having their attention drawn to the sub
ject by the daily publication of testimony on
this point, would have offered themselves as
witnesses against him.
2. Sergeant Dye also aays, this man re
mained on the pavement just at the front en
trance of the theater constantly from twenty-
five or thirty minutes past nine until ten min
utes past ten by the theater clock, including a
part of the second act, the whole interval be
tween the aecond and third acts, and that part
of the third act before ten minutea past ten —
for he speaks of the " rush" coming down to
drink after he had been there some time, and
returning some time before he left.
If the man had been Spangler, Buckingham,
the door-keeper, who waa at the ticket win
dow all the evening, would in all probability
have noticed him; or Maddox, who waa in front
of and in the ticket office during the evening,
but neither aaw Mm. During all the interval
between the acta, before he held Booth'a horae,
Burrougha (Peanuta) was in front of the thea
ter, but did not see him. Sleickman waa in
front ten or fifteen minutea belore the cloae of
the second act, and he did not see him there ;
nor did Debonay, who was on the pavement front
about five minutes before the assassination.
Gifford, on cross-examination, says :
Q. You were in front of the theater during
the performance of the aecond act?
A. During the performance of the second act

I was in front, I think, to the best of my knowl
edge. Q. All the time ?
A. No, sir ; not all the time. I would walk
in, and may be stay five or ten minutes, and
then walk out again.
Q. State whether or not you saw the priaoner,
Spangler, at any time during that play, in front
of the theater.
A. I did not see him in front of the theater.
We have not only this negative evidence of
persons who were in front of the theater, or in
the passage during the time named by Sergeant
Dye, but we have alao further negative evi
dence on the aame point in the fact that Spang
ler is shown, by many witneasea, not to have
been missed from his place that night, and
that hia duties on the stage were such aa to re
quire hia constant presence at hia post, and
make an abaence of three-quarters of an hour
impoaaible, without marring the play and at
tracting attention of employees and actors to
the fact of hia absence. On this point John T.
Ford, tBe proprietor of the theater, says;
Q. State whether or not Ms duties were such
as to require Ms presence upon the stage dur
ing the whole of the play.
A. Strictly so. His absence for a moment
might imperil the success of the play, and
cause dissatisfaction to the audience. It is very
important to the effect of a play that the scenery
should be well attemded to in all ita changes ;
and he ia abaolutely important there every mo
ment from the time the curtain rises until it
falls. There are intervals, it is true, but he can
not judge how long or how brief a scene may be.
Q. What were his duties in the intervals be
tween the scenes ?
A. To 'be prepared for the next change ; to
be ready at his scene; to remain on the side
where the stage carpenter had assigned him as
hia post of duty. Emergencies often arise
during an act that require extra service of a
stage hand.
But, though the negative evidence above re
ferred to would, in my opinion, be quite suffi
cient to relieve Spangler of the suspicion of be
ing the person seen by SergeantDye, fortunately
an alibiia shown conclusively by the concurrent
testimony of many witnesses for the prosecu
tion and the defense, which testimony shows,
beyond all doubt, that he was not only not in
front of the theater in consultation with Booth,
but was, throughout the play, until the fatal
shot, at hia peat on the aide opposite and moat
remote from the passage and the door by which
the murderer escaped — on that part of the
stage where, from his position, he would be
least able to aid the villain's flight.
John Miles (colored) says he saw Booth ride
up to the back door about three-quarters of an
hour before the President was shot, and heard
him call Spangler three times: and that he
looked down frora the "flies," and saw Spang-
gler in his place, shoving a scene across on the
second groove. Debonay saya :
WheniBooth rode up he came to the alley door
and called for Spangler; he called me first ; but
whether he came on a horae or not, I do not
know. He aaid to me, "Tell Spangler to come

284

THE CONSPIRACY TRIAL.

to the door and hold my horse." I did not see
a horse, though.
Q. What did you do?
A. I went over to where Mr. Spangler was,
on the left hand side, at his post, and called
him from Ms post. Said I, "Mr. Booth wants
you to hold his horse." He then went to the
door, went outside, and was there about a
minute, and Mr. Booth came in. He asked me
if he could get acroaa the stage. I told him no,
the dairy acene was on ; that he would have to
go under the stage, and corae upon the other
side. About the time that he got upon the other
side, Spangler called to me, " Tell Peanut John
to come here and hold this horse; I have not
time; Mr Gifford is out in the front of the the
ater, and all the responsibility of the scenes lies
on me. " I went on the other side and called
John, and John went thereand held the horse, and
Spangler came in and returned to his post again.
Q. Did you aee Spangler any more that
evening ?
A. I did, three or four times that evening.
Q. Where?
A. On the stage.
Q. In Ms proper position?
A. Yes, sir.
Q. At what time during the play ?
A. I could not say, for certain, what times.
It was between and during the acts.
Q. Did you see him about the time the shot
was fired ?
A. I saw Mm about two minutes before that,
I think. Q. Where was he then?
A. He was on the same side I was on — the
same aide as the President's box.
Maddos says:
Q. Where was Spangler's position on the
stage? A. His position was on the left-hand aide of
the stage.
Q. The same side that the President's box
was on ?
A. Yes, sir ; he has always been on that side
since I have been about the theater.
Q. Did you see Spangler that night?
A. Yes, air, I did.
Q. State at what timea you saw him, and
where he was during the performance.
A. I saw him pretty nearly every scene. If
he had not been there I should certainly have
missed him. I do not recollect of seeing him
away from the flats at all. He may have been
away, but I can not say.
Q. Where were you at the moment the Prea
ident waa aaaaeainated?
A. I was in the first entrance, left hand.
Q. That is the side the Preaident'a box is on ?
A. Yes, air.
Q. Did you aee Spangler very ahortly before
that? A. Yea, sir, I think I did. I saw him stand
ing at his wing when I crossed the atage with
the will, while the second scene of the third act
was on.
Q. You saw him in hia place, then ?
A. Yes, sir.
Q. How long was that before the President
was assassinated?

A. I think that was about three or four
minutes ; it could not have been longer than
that before, but I will not say positively.
Ritterspack saya :
Q. Where were you atanding when you heard
the pistol fired?
A. In the center of the stage.
Q. Where was Spangler then ?
A. He was at the same place, juat about
ready to above off the acenes, and I was stand
ing there and listening to the play.
Q. Which was nearest the door, you or
Spangler? A. I was.
Henry M. James says:
Q. State your position and the position of
Edward Spangler, if you know what it was, at
that time.
A. I was atanding ready to draw off the flat,
and Mr. Spangler waa standing oppoaite to
me on the stage at the time it happened.
Q. You heard the shot fired?
A. Tes, air.
Q. From the position you were in, you could
not then see the President's box ?
A. I could not. There waa a flat between me
and the President.
Q. From the poaition Spangler waa in, could
he see it?
A. No air.
Q. Could he aee the front part of the stage
on which Boothjumped?
A. No air. He was standing behind the
scene. Q. On which side of the center of the stage?
On the side toward that on which the President's
box was?
A. Mr. Spangler was on the side toward
the President's box.
Q. Had you seen him previously during the
play? A. I had often seen him every time there
was anything to do there; 1 did not notice him
any otlier time, only when the scenes had to be
changed I saw Mm there at his post.
On cross-examination, Gifford says :
Q. State at what times during the perform
ance you were on the stage that night?
A. I was on the stage until the curtain went
up at each act. When the curtain was down I
would go around on to the stage, to see that
everything was right, and then go out again.
Q. State at what times during that evening,
when you came on the stage between the acts,
you saw Mr, Spangler.
A. I could not state the time. I should
judge the last time I saw him was at about
half-past nine o'clock.
Q. State whether you saw him each time you
came on the stage. A. Yea, sir; I aaw him
each time.
Q. He waa your subordinate, I believe?
A. Yea, sir. Thua we have Miles and De
bonay, who saw him at hia place when Booth
called for him; Debonay, who saw him in his
proper place three or four timea after that, before
the assassination, "between and during the
scenes; " Maddox, who saw Mm "pretty nearly
every scene;" Ritterspack and, James, who saw
Mm " where he ought to be to do the work he had

ARGUMENT OF THOMAS EWING, JR.

285

to do, behind the scenes ready to shove his flat, at
the moment the shot waa fired ; " Jamea, who
during the play, "had often seen him, every
time there was anything to do there;" and
Gifford, who was on the stage between each
act, and each time saw him subordinate there,
once, twenty minutes before the assassination.
If any member of this Court should be called
on two months hence to prove his presence here
during any hour of this day's session, ho could
hardly bring as much positive evidence, or
more or better negative evidence of the fact,
than has been presented here to show that
Spangler was on the stage throughout the hour
preceding the assasaination. Either the pos
itive or the negative evidence on this point
taken alone shows beyond a possibility of doubt
that it was not Spangler whom Sergeant Dye
saw in front of the theater from half-past nine
till ten minutes past ten that night.
I do not mean at all to discredit Sergeant
Dye's testimony as to seeing a man in front of
the theater that night iu consultation with
' Booth, or as to that man resembling Spangler.
Greenawalt saya a man, who called himself
Thomas, came to the Pennsylvania House at
two o'clock that night and stayed until morning,
who resembled Spangler "somewhat; " but that
he had darker hair, cut down half over his ears,
was of heavy body, wore a black heavy mus
tache, and "his beard came front, and was cut
down frora the raustache up; but it was either
that way or whiskers all round. I know he
had whiskers in front. "He describes him too,
as wearing a black, worn slouch hat, such as
Sergeant Dye describes the man in consulta
tion with Booth to have had, being the only
article of clothing either Greenawalt or Dye de
scribes. It is highly probable both saw the
same man. That Spangler is not the man
Greena-rf-alt saw is certain from his description
of his person, and also from the fact that
Spangler slept in the carpenter shop adjoining
the theater that night. (Carland.)
I have thus presented to the Court all the
evidence taken before it on both sides, which
in any way illustrates the acts done and words
spoken up to the moment of the assassination,
having any relation to the accused. I will now
proceed to discuss the evidence as to his conduct
from that moment to his arrest, on the 17 th
of April.
Colonel Stewart says that he pursued Booth
through the passage which passes between the
green and dressing rooms and the stage, and got
within twentyfeetof the back door at the end of
the passage, when Booth dashed out, and
the door slammed shut; that he reached the door
next after Booth, and opened it and rushed out;
that in the passage he passed several actora
and actresses, who were greatly agitated; that
instantly after the door slammed shut he aaw
a man within three feet of the door, who
aeemed composed, and waa turning from the
door toward Mm; " that that man resembled
Spangler more than he did any of the other
prisoners; Spangler makes the impression of
that man's visage as I caught it as I waa going
along very rapidly."
Q. And you swear now simply to a mere im

pression, hardly a fixed opinion, aa to his being
the person?
A. I do not undertake to swear positively
that that person sitting there waa the person
I saw. 1 do say that I saw a person there,
and 1 see no person among these prisoners who
calls to mind the appearance of that person ex
cept the one I have indicated, and that one, I am
told, is Mr. Spangler.
Q. I wish to know how strongly you are of
opinion, or under the impression, that that was
probably the man, or whether you are under
that impression?
A. 1 am decided in my opinion that the
person now referred to resembles the person I
saw there.
Colonel Stewart further says that he thinks
the person had some beard, but not heavy enough
to attract marked attention, and was in a
position where he might have shut the door.
But the Court will recollect that the person de
scribed was turning in just ihe opposite way
from that in which a man' s body would nat
urally be turned by the act of slamming the
door. This testimony is of not much value on thia
point: 1. Because Captain Stewart does not recog
nize the prisoner as the man, and because he
describes the person be saw as having beard,
which the prisoner had not.
2. Because he could not, in the nature of
things, recognize the stranger he so hurriedly
saw, were he to see him again.
3. Because Ritterspack says he saw Bootli
open the door and shut it, and that he waa
then the first who opened the door after Booth,
and he left it open, and that a very large man
(Capt. Stewart) followed him. The evidence of
Ritterspack, on this point, is strengthened by
that of Ferguson and Smith, who testify that
Booth ran off the stage before Stewart got on it,
and that Stewart turned and looked up at the
J'resident's box before pursuing Booth.
4. Because Ritterspack says Spangler waa '
on the other side of the stage, near the center,
behind the scenes, when the shot was fired,
and did not go to the door. James' testimony
strengthens Ritterspack's on thia point. Both
were in view of Spangler when the shot was
fired, and between him and the door, aud he
could not have gone to it without their seeing ,
Mm go. Neither saw him move.
2. Ritterspaclj, says when the shot was fired
Spangler was standing behind the scene wait
ing the time to shove in, and he was between
hira and the door, listening to the play. That
he could not tell what had happened, for neither
he nor Spangler could see the President's box,
nor the front of the atage, where they stood.
That some cried " Stop that man I " That after he
rushed out and returned, Spangler was stand
ing in the same place, and "looked the same aa
if he waa crying, a kind of acared." He then
hit me on the face with the back of hia hand,
and he said, " Don't say which way he went, " I
asked him what he meant by slapping me in
the mouth, and he said, "For God' s sake,
thua up, and that was the last he said."
Gifford, to whom Ritterspack says he told

286

THE CONSPIRACY TRIAL.

this at Carroll Prison, saya he only told him he
had forgotten to tell something in Ms first ex
amination, and that he (Gifford) certainly would
have recollected this had it been told him.
Carland, to whom Ritterspack aaid he told it on
the night of the assassination, says he told
Mm that he said to Spangler, as ,Boo^A ran aion^
the passage, "That's Mr. Booth, " and Spangler
slapped Mm and said, " You don't know who it
is — it may be Mr. Booth, or it may be some
one else." Lamb, to whom, Ritterspack said he
told it next day, says he told him substantially
the same he told Carland the night before, and
aaya that Ritterapack waa grumbling at Spang
ler for slapping Mm. All three of these wit
nesaea aasert raost positively that Ritterspack
did not represent Spangler aa saying, " Don't
say which way he went."
At the time Ritterspack told these gentlemen
of the conversation with Spangler, the theater
had been taken possession of by the military
authorities, and general suspicion directed to
the employees, under the belief that Booth had
accomplices among them. Each employee was
doubtleaa scanning the reported conduct of his
fellows, and especially that of Burroughs and
Spangler, Booth's horse holders. Ritterspack'a
statement was one they would be likely to
weigh and recollect. If Carland and Lamb
recollect aright what Rit*erapack told them,
there can be no queation but that his statement
of the conversation, made on the witness stand,
is incorrect. For if the conversation did occur
between him and the accused, he would recol
lect and tell it more exactly that night and
next day than he would after undergoing a
month's confinement, and alarm, and detective
discipline, in Carroll Priaon.
The evidence of Dabonay, in hia aecond ex
amination, tenda atrongly to show that Spang
ler had shoved hia acene back and got on the
front of the atage before Ritterspack could have
returned and held the reported conversation.
He says;
Q. State to the Court again where you were
atanding when the shot was fired in the thea
ter on the night of the 14th of April.
A. I waa atanding on the left-hand side, firat
entrance. Q. You mean the aide the President's box
waa on?
A. Yea, sir.
Q. How long was it after you saw Mr. Stew
art run out after Booth, befqfe you aaw the
accused, Edward Spangler ; and where did you
see him, and what did you aee hira do?
A. The firat time I saw Mm he was moving
hia scene, I think. They ahoved the acene back
to give the whole of the atage to the people who
came on. I do not know who aaaiated him.
Q. How long was that after Mr. Stewart had
left the stage ?
A. I guess it waa about a minute and a-half,
or two minutes.
Q. Was it long enough for Mr. Stewart to
have got out of the back door ?
. A. / think he had just about time to get to ihe
back door before they shoved the scenes.
Q. What did Spangler do then ?
A. He came in front on the stage, with the

rest. There was a cry for water, and I started
to the green-room, and he started the same
way. About half a dozen of us went to get
some water to carry it to the private box.
Q. How far did Spangler go after the water?
Did he go into the green-room ?
A. We all went into the green-room ; about
half a dozen of us went into the green-room.
By that tirae the stage was full of people.
Maddox says he saw Booth just as he left
the stage, and that he then " run on the atage
and heard the call for water."
This evidence of Debonay and Maddox, and
the stateraents of Carland and Lamb, and the
strong improbability of Spangler'a atanding,
still amid the great commotion, render it nearly
certain that Spangler was not in his place be
hind the scene when Ritterspack returned;
and that if anything was said between them,
it was as stated by Ritterspack to Carland and
Lamb. If that be so, of what significance were
Spangler's acts or words? He waa not in posi
tion to see Booth when he jumped ou the stage, and
and ran off, for tbe scene was between them. He'
heard nothing but the shot, followed by the
cry, "Stop that man," as the assassin, bending
forward, hatless, fied through the bewildered
crowd in the narrow passage opposite. How
would he know it was Booth instantly, when
Booth's name had not then been called (Ritter
spack) and when men who knew Booth well,
and saw Mm leap on the stage and face the
audience in the glare of the foot-lights, shouts
ing "Sic Semper Tyrannis!" before he fled, did
not recognize Mm ? (Gobright) And if he did
recognize Booth, how could he know what had
been done ? And what could be more natural
or apparently innocent than his telling Ritter
spack, who cried, "That's Mr. Booth! "Shut
up, you don't know who it is. It raay be Mr.
Booth and may be some one elae !"
But even if Ritterspack's last statement be
true (which I think it clearly ia not), and
Spangler was atill standing behind the scene,
and said, " Shut up, don't say which way he
went!" "For God's sake, shut up," lie only
knew that Booth had fled, and was being pur
sued. He had seen nothing, and was stunned
by the clamor and excitement. He, probably,
did not think that Booth had comraitted crime,
or know what crime had been committed, or
how Booth was connected in it. It was a stu
pid, ineffective exclamation — for Ritterspack
waa not then pursuing Booth, but dozens of
others were.
But whatever view we take of Ritterspack's
evidence. Captain Stewart's faint recognition of
Spangler as the man he met at the door, falls
to the^^ground, for Withers, who knows Spang
ler well, and saw Booth open and shut the
door, did not see Spangler there, and from
Spangler'a position when the shot waa fired,
as sworn to by both Ritterspack and James,
who were both between hira and the do'or, and
who did not notice him move, it is certain he
waa not at the door when Stewart ran down
the paasage.
3. After the assassination, John Miles (col
ored) came down from the fliea, three stories
above the atage, and met Spangler and several

ARGUMENT OF THOMAS EWING, JR.

287

others at the back door, " and I asked him
who it was that held tho horse, and he told me
to ' hush, not to say nothing,' and I did not aay
anything more, though I knew who it waa, be-
. cauae I aaw the boy (Peanuts) holding the
horse. Hesaid 'hush don't say anything to
me,' or 'hush don't say anj'thing about it.' "
Mary Jane Anderson (colored) says that a
short time after Booth had gone, she went to the
door of the theater, where sorae people were
standing, and said to Mr. Spangler, " That gen
tleman (Booth) called you, and he said ' no he
did not. — he did not call me, ' and I said ' he
did call you, ' and I kept on saying so. With
that he walked down the alley." It was prob
ably not fear of the authorities, but of the
infuriated people, which led Spangler to this
effort , to conceal the fact that Booth called him,
and that he took the hoi'se. It is as consistent
with the theory of Ms innocence as of his guilt,
and therefore amounts to nothing.
4. Carland says Spangler usually slept in
the theater — that on Friday night he slept in
the carpenter shop, which is part of the thea
ter building. Lamb s.aya he waa in the theater
all day Saturday, and saw Spangler there
through the day. Carland says Spangler slept
in his roora Saturday night, adjoining the thea
ter, saying there was talk of burning the thea
ter, and he was " afraid to stay in it alone, as
he was a heavy sleeper;" and that he waa ar
rested there that night anddischarged Sunday
morning. Sunday afternoon he saw him again,
near the theater, and went with hira visiting
some friends; and there, hearing that he was
to be arrested again, he (Spangler) went to the
Detective Police office, and learned it was not so.
During this time he had no money. He was
arrested Monday, and up to that time was at
his meals, aa usual, at a boarding house where
he had taken them for five or six months
(Boigi, Goenther), and where Ms carpet-sack
reraained, with the rope in it. During these
three days and nights there is not a word or
act of Spangler's shown in evidence which
doea not indicate a consciousness of innocence.
There are several circumstances and general
considerations I will now present to the Court
remotely affecting the case of the accused, and
with it the question of the probable complicity
of any of the raen connected with the theater
in the horrid crirae of the conspiracy.
It will be recollected that Chester, the New
York actor, says that in the latter part of De
cember, or early in January, Booth solicited
him to engage in a scheme to capture the Presi-
ident, and said he proposed to do it at Ford's
Theater, which the President frequently visited,
and that he wanted him to open the back door
at a preconcerted signal, "and that it must be
some one connected or acquainted with that
theater who could take part in it." 1 offered to
show that by the " some one connected or famil
iar with Ford'a Theater," was meant Chester
himself, by showing Booth's repeated solicita
tions to Ford, in January and February, to
employ that actor, but the Judge Advocate ob
jected, and the objection was suatained. That
inference, however, ia clearly deducible from
Chester's own statement.

I alao proposed to show that from its con
struction an escape could be more readily made
from the private boxes of Ford's Theater, than
from those of the other principal thoatera here;
but the Judge Advocate again objected, and his
objection was sustained.
It is fit 1 should advert to these rulings of the
Court, to show it that if Chester's evidence is
without explanation, it is so by reason of its
own rulings. I do not feel, however, that, as it
stands, that evidence is of weight against the
accused. It is rather in his favor, for the only
thing Chester said Booth wanted him to do ia a
thing which Spangler could easily have done,
without of itself attracting auapicion, and
which would have greatly aided .Booth's es
cape, but which Booth did for himself — open
ing the back door after the shot was fired.
It has been generally thought that Booth
could not have accomplished the crime and
then escape without one or more acoompUces
employed about the theater. I feel safe in say
ing not only that it does noi appear he had one,
but also that it does appear he did not need one,
1. Booth was an actor of some distinction,
who had played at Ford's, and had, through
professional courtesy, as well aa hia engaging
manners, free access to the theater at all hours
and by every entrance, when it was open. He
had, therefore, abundant opportunities to make
his preparations about the President's box, un
observed and unaided.
2. The leap from the box needed no rehearsal.
It is one which any man of good strength and
action could make with safety. Had it not
been — apparently through a providence of God
— that the villain's spur caught in the folds of
one of our country's battle flags, which adorned
the box, he would have made the leap with ease.
John T. Ford saya:
Q. State to the Court whether, from your
knowledge of Booth, the leap from the box upon
the stage would be a difficult one.
A. By no means, I think. He excelled in
everything of that kind. He had a reputa
tion for being a great gymnast. He introduced,
in some Sliakesperian plays, some of the most
extraordinary and outrageous leaps, deemed so
by the critics and condemned by the press at
the time.
3. The passage leading to the alley door, by
which Booth escaped, was always kept clear of
furniture and other obstructions during the
play. Hess, Gifford, Maddox, James, Ford and
others testify, raost eraphatioally, to that. C.
D. Hess, the manager of Grover's 'Theater, a
rival of Ford'a, says:
Q, State whether or not it is customary in
theaters to keep the passage-way between the
scenes and the green-room and the dressing
room clear.
A. Yes, sir; that is a point of excellence in
a stage carpenter. If he keeps a clean atage
and hia scenes well put away, the pasaage as
clear as poasible, we look upon him as a care
ful man.
And John T. Ford aaya;
Q. Then I understand the prisoner, Spangler,
would not be charged with the duty of keeping
the passage-way in order?

288

THE CONSPIRACY TRIAL.

A. That was no duty of hia, unless specially
assigned to him by the stage carpenter; he was
subordinate entirely to tho stage carpentek-.
Q. Now state whether or not that passage
way is generally obstructed in any way.
A. It ahould never be obstructed. My posi
tive orders are to keep it always clear and in
the best order. It is the passage-way used by
all the parties coming from the dressing rooms.
Where a play was performed like the American
Cousin, the ladies were in full dress, and it was
abaolutely necessary that there should be no
obstruction there, in order that the play ahould
be properly performed. Coming from the dress
ing rooma and the green-room of the theater,
every one had to use that passage.
I have no doubt that Booth, knowing the
passage would be clear, was confident that,
with his bowie-knife drawn, he would meet
with no resistance from the unarmed men and
women who might fiock from the green-roora in
wonder and amazement at the shot and shouts.
If ao, he would not have wanted or provided
any help, except some one to hold his horse,
which "Peanuts" did, and some one to open the
door for Mm and shut it ou his pursuers, which
nobody did but hiraself.
4. C. D. Hess, the manager of Grover's Thea
ter, says:
Q. State whether you were in the habit of
seeing John Wilkes Booth during the last sea
son before the assassination of the President,
A. Yes, sir, very frequently.
Q. State whether he ever made any inquiry
of you in regard to the President's attending
your theater.
A. He did make such an inquiry.
Q. When?
A. On the day before the assassination.
Q. State the circumstances under which the
inquiry was made.
A. He came into the office some time during
the afternoon, I think, of Thursday, interrupted
me and the prompter of the theater in reading
a manuscript, seated himself in a chair, and
entered into conversation on the subject of the
illumination. There was to be a general illu
mination of the city on Thursday night, and he
asked me if I intended to illuminate. I told

him yes, I would illuminate to a certain extent
that night, but that the next night would be my
great night of the illumination, that being the
celebration of the fall of Sumter. He asked
me the question — my impression is, Ma worda
were, "Do you intend," or "Are you going to
invite the President?" I think my reply 'vvas,
"Yes, that reminds me I must send that invita
tion." I had it in my raind for several days to
invite the Presidential party down on that
night — on the night of the 14th.
Q. Was there anything marked in Booth's
manner in making the inquiry of you?
A. It struck me as rather peculiar, his enter
ing in the manner that he did; he must have
observed that we were busy, and it was not
usual for him to come in and take a seat unless
he was invited. He did upon that occasion, and
made such a point of it that we were both con
siderably surprised. He pushed the matter so
far that I got up and put the manuscript away
and entered into conversation with him.
It ia probable from this that Booth would
have attempted the aasassination of the Presi
dent in Grover's Theater, had he gone there in
stead of to Ford's on that fatal night; and it
tends to show that he had no accomplices at
either theater.
I have now presented to the Court every point
in the evidence which seems to rae may, by any
possibility, be relied on as indicating guilty
knowledge of or participation by Spangler in
the conapiracy, or any of its crimes. From
the natural partiality of a counsel to his client,
I may not have noticed all that bears against
him, or presented it in its true light, but I have
earnestly sought, in this discussion, to show all
that ia of weight for or against him, extenu
ating nothing. I can see in the evidence no
ground for such suspicion as would, in the
civil courts, lead a grand jury to present him
for trial, and believe that, so far from his
guilt being established beyond a reasonable
doubt, a review of the evidence will leave, in
few candid minds, a reaaonable doubt of his
innocence. EDWARD SPANGLER.
By his Counsel.

IN DEFENSE OF MRS. MARY E. SURRATT,
BY
FREDERICK A. AIKEN, ESQ.
Of Counsel for Mrs, Surratt,

Mr President and Gentlemen of the Commission :
- For the lawyer aa well as the soldier, there
is an equally pleasant duty — an equally im
perative command. That duty is to shelter
from injustice and wrong the innocent, to pro
tect the weak from oppression, and to rally at
all tiraes and on all occasions, when necessity
demands it, to the special defense of those
whom nature, custom, or circumstance raay
have placed in dependence upon our strength,
honor and cherishing regard. That comraand
emanates and reaches each class from the same
authoritative and omnipotent source. It comea
from a Superior, whoae right to command none
dare question, and none dare to disobey. In
this command there is nothing of that lex ialionis
which nearly two thousand years ago nailed
to the cross its Divine Author.
" Therefore, all things whatsoever ye would
that raen should do to you, do ye even so unto
them; for this is the law and the prophets,"
God has not only given us life, but He has
filled the world with everything to make life
desirable ; and when we sit down to determine
the taking away of that which we did not give,
and which, when once taken, we can not re
store, we consider a subject the most solemn and
momentous within the range of human thought
and human action.
Profoundly impressed with the innocence of
our client, we enter upon this last duty in her
case with the heartfelt prayer that her honor
able judges may enjoy the satisfaction of not
having a single doubt left on their minds in
granting her an acquittal, either as to the testi
mony afl'ecting her, or by the surrounding cir
cumstances of the case.
The first point that naturally arises in the
presentation of the defense of our client, is
that which concerns the plea that has been
made to the jurisdiction of this Commission to
try her — a plea which by no means implies
any thing against the intelligence, fairness, or
integrity of the brilliant and distinguished
officers who compose the Court, but which
merely touches the question of the right of thia
tribunal, under the authority by which it ia
convoked. This branch of her caae is left to
depend upon the argument already submitted
by her senior counsel, the grande decus colu-
menque of his profession, and which is exhaust-
19

ive of the subject on which it treats. There
fore, in proceeding to the discussion of the
merits of the case against her, the juriadiction
of the Court, for the sake of argument, may be
taken as conceded.
But, if it be granted that the juriadiction is
complete, the next preliminary inquiry natu
rally is as to the principlea of evidence by
which the great mass of accumulated facts is
to be analyzed and weighed in the scalea of
justice and made to bias the minds of her
judges ; and it may be here laid down as a
concessum in the case that we are here in this
forum, constrained and concluded by the same
process, in this regard, that would bind and
control us in any other Court of civil origin,
having jurisdiction over a crime such as is
here charged. For it is asserted in all the
books that courts-martial must proceed, so far
as the acceptance and the analysis of evidence
is concerned, upon precisely those reasonable
rules of evidence which time and experience,
ai antico, surviving many ages of judicial wis-
dora, have unalterably fixed aa unerring guides
in the administration of the criminal law.
Upon this conceded proposition it is unneces
sary to consume time by the multiplication of
references. We are content with two brief
citations from works of acknowledged author
ity. In Greenleaf it is laid down, "that courts-
martial are bound, in general, to observe the
rules of the law of evidence by which the
courts of criminal jurisdiction are governed."
3 Greenleaf, sec, 467.
This covers all the great jencraZ principles of
evidence, the points of difference being wholly
aa to minor matters.
And it is also affirmed in Benet, " that it
has been laid down as an indisputable princi
ple, that whenever a legialative act erects a
new juriadiction, without prescribing any par
ticular rules of evidence to it, the common
law will supply its own rules, from which it
will not allow such newly-erected Court to
depart. The rules of evidence, then, that ob
tain in the criminal courts of the country,
must be the guides for the courts-martial ; the
end sought for being the truth, these rulea
laid down for the attainment of that end, must
be intrinsically the same in both caaes. These
rules constitute the law of evidence, and in-
289"

290

THE CONSPIRACY TRIAL.

volve the quality, admissibility, and effect of
evidence and its application to the purposes
of truth." Benet, pp, 226, 227.
Therefore, all the facts that tend against the
accused, and all those that make for her, are
to be weighed and are to operate upon her con
viction or acquittal precisely as they would in
a court of law. If they present a case such
as would there convict her, she may be found
guilty here ; and if, on the other hand, the
rules of law upon these facts would raise any
presumption or create any doubt, or force any
conclusions that would acquit ber in a court
of law, then she must be discharged, upon the
same principlea, by this Commission. This is
a point which, in our judgraent, we can not too
strongly impress upon the minds of her judges.
The extraordinary character of the crime ;
the aasassination that removed from us the
President of the United States, makes it most
desirable that the findings of this tribunal
shall be so well founded in reason as to satisfy
and secure public confidence and approval ;
for many of the raost material objects of this
prosecution, and some of the most important
ends of justice, will be defeated and frustrated
if convictions or acquittals, and more espe
cially the former, shall be adjudged upon
grounds that are notoriously insufficient.
Such a course of action would have a ten
dency to draw sympathy and support to the
parties thus adjudged guilty, and would rob
the result of this investigation of the whole
some support of professional and public opin
ion. The jurisdiction of the Commission, for
example, is a matter that has already provoked
considerable criticism and much w.irra disap-
prov.il ; but in the case of persons clearly found
to be guilty, the public mind would easily over
look any doubts that might exist as to the
regtfjarity of the Court in the just sentence
that Would overtake acknowledged criminals.
Thua, if Booth hiraself and a party of men
clearly proved, by ocular evidence or confes
sion, to have aided him, were here tried and con
demned, and, as a consequence, executed, not
much stress, we think, would be laid by many
upon the irregularity of the mode by which
they should reach that just death which all
good citizens would affirm to be their deserts.
But the case is far different when it affects per
sons who are only suspected, or against whom
the evidence is weak and imperfect ; for if citi
zens raay be arraigned and convicted for so
grievous an offenae as this upon insufficient
evidence, every one will feel Ms own personal
safety involved, and the tendency would be to
intensify public feeling against the whole pro-
3es3 of the trial. It would be felt and argued
that they had been condemned upon evidence
that would not have convicted them in a civil
court, and that they had been deprived, there
fore, of the advantages which they would have
bad for their defensor Reproach and con
tumely upon the Government would be the
natural result, and the firat occasion would
arise in all our history for such demonstrations
as would be sure to follow the condemnation of
mere citizens, and particularly of a woman,
upon evidence on wMch an acquittal would fol

low in a civU court. It is, therefore, not only
a matter of the highest concern to the accused
themselves as a question of personal and pri
vate right, but also of great importance upon
considerations of general public utility and
policy, that the results of this trial, as affecting
each of the accused, among them Mrs. Surratt,
shall be rigidly held within the bounds and
limitations that would control in the premises,
if the parties were on trial in a civil court
upon an indictment equivalent to the charges
and specifications here. Conceding, as we have
said, the jurisdiction for the purposes of this
branch of the argument, we hold to the princi
ple first enunciated as the one great, all-import
ant, and controlling rule that is to guide the
Comraission in the findings they are now about
to make. In order to apply this principle to
the case of our client, we do not propose to
range through the general rules of evidence
with a view to seeing how they square with the
facts as proven against her. In the examina
tion of the evidence in detail, raany of these
must from necessity be briefly alluded to ; but
there is only one of them to which we propose
in this place to advert specifically, and that is
the principle that may be justly said to lie at
the foundation of all the criminal law — a prin
ciple so just, that it seems to have sprung from
the brain of Wisdom herself, and so undoubted
and universal as to stand upon the recognition
of all the times and all the mighty intellects
through and by which the common law has
been built up. We allude,, of .oouxse,,,to.. that
principle -which declares that " ever2_jn.aj]. is
held to be innocent until he_ shall 'be^jproven
guilt.y^'^ — a principle so natural that it has
fastened itself upon the common reason of
mankind, and been iramemorially adopted as a
cardinal doctrine in all courts of justice
worthy of the name. It is by reason of this
great, underlying legal tenet that we are in
possession of the rule of law, administered by
all of tbe courts, which, in mere technical ex
pression, may be termed "the presumption of
innocence in favor of the accused." And it is
frora hence that we derive that further applica
tion ofjhe general principle, which has also
become a'rul'e "or"Ia'vv*and of universal applica
tion wherever the common law is respected
(and with which we have more particularly to
deal), by which it is affirmed, in coramon lan
guage, that in any prosecution for crime " thb
ACCUSED MUSI BE ACQUITTED JVnERE THERE IS A
REASONABLE DOUBT OF His'ou'iLT." We hardly
think it necessary to adduce authorities for thia
position before any tribunal. In a civil
court we certainly should waive the citations,
for the principle aa stated would be assumed
by any civil "judge, and would, indeed, be the
starting point for any investigation whatever.
Though a muxim so common and conceded, it is
fortified by the authority of all the great lights
of the Isiw. Before reference, however, is made
to thera, we wish to irapreas upon the minds of
the Court another and important rule which we
shall have occasion to refer to :
"The .evidence in support of a cj).!}5piracy is
generMj circumstantial." RusseU on Crimes vol
'2, I 698.' ' ' ¦

ARGUMENT OF FREDERICK A. AIKEN.

291

In regard to circumstantial evidence, all the
best and ablest writera, aucient and modern,
agree in treating it as wholly inferior in
cogency, force, and effect, to direct evidence.
Aud now for the rule which must guide the
jury in all oases of reaaonable doubt :
" If evidence leave reaaonable ground for
doubt, the -conclusion can not be morally cer
tain, however great may be the preponderance
of probability in its favor." Wills on Circum
stantial Evidence. Law Library, vol. 41.
" The burden of proof in every criminal
case ia on the Government to prove all the ma
terial allegationa in the indictment ; and if, on
tbe whole evidence, the jury have a reasonable
doubt whether the defendant is guilty of the
crime charged, they are bound to acquit him.
If tbe evidence leads to a reasonable doubt,
that doubt will avail in favor of the prisoner."
1st Greenleaf, sec 34 — Note,
Perhaps one of the best and clearest defini
tions of the meaning of a "Reasonable doubt"
is found in an opinion given i'n Dr. Webster's,
case by the learned and accurate Chief-Justice
of Massachusetts. He said : (^.
" The evidence must establish the truth of
tbe fact to a reasonable and moral certainty ; a
certainty that convinces and directs the under
standing, and satisfies the reason and judgment
of those who are bound to act conscientiously
upon it." Commonwealth vs. Webster, 5 Cash.,
320. Far back in the early history of English
jurisprudence we find that it was considered
a raost serious abuse of the common law " that
justices and their officers, who kill people by
false judgraent, be not destroyed as other mur
derers, which King Alfred caused to be done,
who caused forty- four justices in one year to
be hanged for their false judgment. He hanged
Freburne because he judged Harpin to die,
whereas tbe jury were in doubt of their verdict;
for in doubtful cases we ought rather to save
than to condemn."
The spirit of the Roman law partook of the
same care and caution in the condemnation of
those charged with crime. The maxim was :
" Saiius est, impunitum relinqui fecinus nocentis,
quam innoceniem damnare,"
That there may be no mistake concerning the
fact that this Commiasion is bound as a jury
by these rules, the same as juries in civil
courts, we again quote from Benet :
" It is in the province of the Court (Court-
martial) to decide all questions on the admissi
bility of evidence. Whether there is any
evidence is a question for the Court as judges,
but whether the evidence is sufficient is a ques
tion for the Court as jury to determine, and
this rule applies to the admissibility of every
kind of evidence, written as well as oral."
Benet, pp, 225, 226.
These citations may be indefinitely multi
plied, for this principle ia as true in the law as
any physical fact in the exact sciences. It is not
contended, indeed, that any degree of doubt is
sufficient to acquit, but the doubt must be of a
reaaonable nature, ao as to overset the moral
evidence of guilt; a mere possibility of inno
cence will not suffice, for, upon human teati

mony, no case is free from possible innocence.
Even the moat direct evidence of crime may
possibly be mistaken. But tho doubt required
by tbe law must be so consonant with reason
as, in analogous circumstances, would affect the
action of a reasonable creature concerning his
own affairs. We may make the nature of such a
doubt clearer to the Court by alluding to a veiy
common rule in the application of the geiier:il
principle in certain oases, and the rule will
readily appeal to the judgment of the Court as
a remarkable and singularly beautiful example
of the inexorable logic with which the law ap
plies its own unfailing reason.
Thus, in cases of conspiracy, and some others,
where many persons are charged with joint
crime, and where the evidence against most of
them must, of necessity, be circumstantial, the
ple'a er "reasonable do_ubt" becoraes peculiarly
valuable to the separate accused, and the mode
in wMch it is held it can best.be applied is the
test whether the facts as proved, circumstantial,
as aupposed, can be made to consist just as
reasonably with a theory that is essentially dif
ferent from the theory of guilt.
If, therefore, in the development of tbe whole
facta of a conspiracy, all the particular facts
against a particular person can be taken apart
and shown to support a reasonable theory that
excludes the theory of guilt, it can not be de
nied that the moral proof of tbe latter is so
shaken as to admit the rule concerning tbe pre
sumption of innocence. For surely no man
should be made to suffer because certain facts
are proved against Mm, which are consistent
with guilt, when it can be shown that they are
also, and more reasonably, consistent with in
nocence. And, as touching the conspiracy
here charged, we suppose there are hundreds
of innocent persons, acquaintances of the
actual assassin, against whom, on the social
rule of "nosciiur a sociis," mercifully set aside
in law, many facts might be elicited that would
corroborate a suspicion of participation' in his
crime; but it would be monstrous that they
should suffer from that theory when the same
facts are rationally explainable on other the
ories. The distinguished Assistant Judge Advocate,
Mr. Bingham, who has brought to the aid of
the prosecution, in this trial, such ready and
trenchant astuteness in tbe law, has laid the
following down as an invariable rule, and it
will pass into the books as such:
"A party who conspires to do a crime may
approach the most upright man in the world,
with whom he had been, before the criminality
was known to the world, on terms of intiraacy,
and whose position in ihe world was such ihat he
might be on terms of intimacy with reputable gentle
men. It is the misfortune of a man that is ap
proached in that way; ii is not his crime, and it
not COLORABLY his crime either,"
This rule of construction, we humbly submit,
in connection with the question of doubt, lias a
direct and most weighty bearing upon the case
of our client. Some indication of the mode in
which we propose to apply it raay be properly
i,ted here. Now, in all the. evidence, there is
not a shadow of direct and positive proof which

292

THE CONSPIRACY TRIAL.

connects Mra. Surratt with a participation in
this conspiracy alleged, or with any knowledge
of it. Indeed, considering the active part sh(
is charged with taking, and the natural com
municativeness of ber sex, the case is most
singularly and wonderfully barren of even cir
cumstantial facts concerning her. But all there
is, is circumstantial. Nothing is proved against
hef',~oxcepf~soiri"e few detached facts and cir
cumstances, lying around the outer circle of
the alleged conspiracy, and by no means neces
sarily connected with guilty intent or guilty
knowledge. It becomes our duty to see :
1. What these facts are.
2. The character of the evidence in support
of thera, and of the witnesses by whom they
are said to be proven. And,
3. Whether they are consistent with a rea
sonable theory by which guilt is excluded.
We assume, of course, as a matter that does
not require" argumeat, that she has committed
no crime at all, even if these facts be proved,
unless there is the necessary express or implied
criminal intent, for guilty knowledge and guilty
intent are the constituent elements, tbe princi
ples of ail crime. The intent and malice, too,
in her case must be express, for the facts proved
against her, taken in themselves, are entirely
and perfectly innocent, and are not such as
give rise to a necessary implication of malice.
This will not be denied. Thus, when one com
mits a violent homicide, the law will presume
the requisite malice; but when one only de
livers a raessage, which is an innocent act in
iitself, the guilty knowledge, raalice and intent,
that are absolutely necessary to make it crim
inal, must be expressly proven before any
criminal consequences can attach to it. And,
to quote, "Knowledge and intent, when ma
terial, must be shown by tbe prosecutor."
Wharton's American Criminal Law, see. 631. The
intent to do a criminal act, as defined by
Bouvier, implies and means a pre-conceived
purpose and resolve, and determination to
commit the crime alleged. To quote again:
"But the intent or guilty knowledge must be
brought directly home to the defendant." Whar
ton's American Criminal Law, sec, 685. When an
act, in itself indifferent, becomes criminal, if
done with a particular intent, then the intent
¦must be proved and found." 3 Greenleaf, sec,
.13. In the light of theae principlea, let us ex
amine the evidence as it affects Mrs. Surratt.
1. What are the acts she has done? The speci-
.'fication against her, iu the general charge, is as
follows: "And in further prosecution of the said con
spiracy, Mary E. Surratt did, at Washington
-city, and within the military department and
rmilitary lines aforesaid, on or before tbe 6th
day of March, A. D. 1865, and on divers other
days and times between that day and the 20th
day of April, A. D. 1865, receive, entertain,
harbor and conceal, aid and assist the said John
Wilkes Booth, David E. Herold, Lewis Payne,
John H. Surratt, Michael O'Laughlin, George
A. Atzerodt, Samuel Arnold, and their confed-
eratea, with knowledge of the murderoua and

traitoroua conspiracy aforesaid, and with intent
to aid, abet and assist thera in the execution
thereof, and in escaping from justice after the
murder of the said Abraham Lincoln, as afore
said." _ -
The first striking fact proved ia h?r acquaint
ance with j:""WilteB Booth — that he was an oc-
castoiial visitor at her house. From the evidence,
if it is to be relied on, it distinctly appears
that this acquaintance commenced tbe latter
part of last January, in tbe vicinage of three
months only before tbe assassination of tbe
President, and, with slight interruptions, it
was continued down to tbe day of tbe assassi
nation of the President. Whether he was first
invited to tbe house and introduced to the fara
ily by Weichmann, John H. Surratt, or some
other person, the evidence does not disclose.
When asked by tbe Judge Advocate "whom did
he call to aee," the witness, Weichmann, re
sponded, "He generally called for Mr. Surratt —
John H. Surratt — and, in the absence of John
H. Surratt, he would call for Mrs. Surratt."
Before calling the attention of the Commis
sion to the next evidence of importance against
Mrs. Surratt, we deaire to refresh the , recollec
tion of tbe Court as to tbe time and manner,
and by whom, according to tbe teatimony of
Lloyd, tile carbinea were, .first_ brought to his
(Lloyd's) bouse.
From the official record the following is
taken: Q. Will you state whether or not, sorae five
or six weeks before the assassination of the
President, any, or all of these men, about whom
I have inquired, came to your house?
A. They were there.
Q. All three together?
A. Yes; John H. Surratt, Herold and Atze
rodt were there together.
Q. What did they bring to your houae, and
what did they do there?
A. When they drove up there, in the morn
ing, John H. Surratt and Atzerodt came first;
they went from my houae, and went toward T.
B., a post-office kept about five miles below
there. They had not been gone more than half
an hour when they returned with Herold ; then
the three were together — Herold, Surratt aud
Atzerodt. Q. What did they bring to your house?
A. I saw nothing until they all three came
into the bar-room. I noticed one of the bug
gies — the ono I supposed Herold waa driving or
went down in — standing at the front gate. All
three of tbem, when they came into the bar
room, drank, I think, and then John Surratt
called rae into the front parlor, and on tbe sofa
were two carbines, with ammmunition. I think
he told me they were carbines.
Q. Anything beside the carbines and am
munition? A. There was a rope and alao » monkey-
wrench. Q. How long a rope ?
A. I can not tell. It waa in a coil — a right
smart bundle — probably sixteen or twenty
feet. Q. Were those articlea left at your house ?
A. Yea, sir; Surratt asked me to take care

ARGUMENT OF FREDERICK A. AIKBN.

293

of them, to conceal the carbines. I told him
there was no place there to conceal them, and
I did not wish to keep auob thiuga iu tbe house.
Q. You aay that he aaked you to conceal
those articles for Mm ?
A. Yea, sir; he asked me to conceal them.
I told him there waa no place to conceal them.
He then carried me into a room that 1 had
never been in, wMoh was just immediately
above the store room, aa it were in the bacli
building of the house. I had never been in
that room previous to that time. He showed
me where I could put them, underneath the
joista of the house— tbe joists of the second
floor of the main building. This little unfin
ished room will admit of anything between
the joists.
Q. Were they put in that place ?
A. They were put in there according to his
directions. Q. Were they concealed in that condition?
A. Yes, sir ; I put them in there. I stated
to Colonel Wells through mistake, that Surratt
put them there ; but I put them in there myself.
I carried tbe arma up myself.
Q. How much ammunition was there ?
A. One cartridge-box.
Q. For what purpoae, and for how long, did
tie aak you to keep these articles ?
A. I am very positive that he said he would
call for tbem in a few days. He said be juat
wanted them to atay for a few daya and be
would call for them.
It alao appeara in evidence againat Mra.
Surratt, if the testimony is to be relied on, that
on the Tuesday previous to the murder of the
President, the Hth- of April, ahe met John M.
Lloyd, a witness'fbr the prosecution, at Union-
town, when the following took place :
Question by the Judge Advocate;
Q. Did she aay anything to you in regard
to those carbines?
A. When ahe firat broached the subject to
me, I did' not know what she had reference to;
then she came out plainer, and I am quite pos
itive ahe aaked me about the " shooting irons."
I am quite positive about that, but not alto
gether positive. I tMnk she named " ahooting
irona," or something to call my attention to
those things, for I had almost forgotten about
their being there. I told her that they were hid
away far back- — ^that I was afraid the house
would be searched, and they were shoved far
back. She told me to get them out ready; they
would be wanted soon.
Q. Was her question to you first, whether
tbey were still there, or what was it?
A. Really, I can not recollect the first ques
tion she put to me. I could not do it to save
my life.
On the afternoon of the 14th of April, at
about half-past five, Lloyd again"metMrs. Sur
ratt, at Surrattsville, at which time, according
to his version, she met him by the wood-pile,
near the house, and told him to have those
shooting irona ready that night, there would
be aome parties calling for them, and that she
gave him something wrapped in a piece of
paper, and asked him to get two bottles of
whisky ready also. TMs message to Mr. Lloyd

is the second item of importance against Mra.
Surratt, and in support of the specification
againat her. The third and laat fact that makes
against her in the minds of the Court, is tbe
one narrated by Major 11. W. Smith, a witness
for the prosecution, who states tEat while at
tho bouse of Mra. Surratt, on the night of tbe
17th of April, aaaiating in making the &.'r""t
of ita inmatea, the prisoner, Payne, came in.
He (Smith) stepped to the door of the parlor
and said : " Mrs. Surratt, will you step here a
minute?" As Mrs. Surratt came forward, he
asked her the queation, "Do you know this
man?" She replied, quoting the witness' lan
guage, "Before God, sir, I do not know this
man, and I have never Seen him." An addi
tion to this ia found in the testimony of the
same witneas, as be was drawn out by the
Judge Advocate. The witness repeats the
language of Mrs. Surratt, " Before God, I do
not know this raan, and have never aeen bim,
and did not hire Mm to dig a gutter for me."
The fact of the pbotographa and card of the
State arms of "Virginia have ceaaed to be of tbe
sUghtest importance, since the explanations
given in evidence concerning tbem, and need
not be alluded to. If there ia any doubt aa to
whom they all belonged, reference to the teati
mony of Miases Surratt and Fitzpatrick will
aettle it.
These three circumstances constitute the part
played by the accused, Mary E, Surratt, in this
great conspiracy. They are tbe acta ahe has
done. Tbey are all that two months of patient
and unwearying investigation, and the most
thorough search for evidence that was probably .'
ever made, has been able to develop against
ber. Tbe acquaintance with Booth, the mea-^
sage to Lloyd, the non-recognition of Payne, '
constitute the sum total of her receiving, enter- \
taining, harboring, and concealing, aiding, i
and assisting thoae named aa conspirators and |
their confederates, with knowledge of tbe mur
deroua and traitorous conspiracy, and with
intent to aid, abet, and assist them in the execu
tion thereof, and in escaping from justice.
The acts she baa done, in and of themselves,
are perfectly innocent. Of themselves they con
stitute no crime. They are what you or I, or
any of us might have done. She received and
entertained Booth, the assassin, and so did a
hundred others. She may have delivered a
raessage to Lloyd — ao have a. hundred othera.
She might have said she did not know Payne—
and who within the sound of my voice can say
that they know him now ? Tbey are ordinary
and commonplace transactions, such aa occur
every day and to almost everybody. But as all
tbe case againat her must consist in the guilty ¦
intent that will be attempted to be connected
with these facta, we now propoae to show that
tbey are not so clearly proven as to free them
from great doubt, and, therefore, we will inquire.
2d. How are these acta proven? Solely by
the teatimony of Louis J. Weichmann and John
M. Lloyd. Here let ua state that we have no
malice toward either of them, but if in the
analysis of their evidence we should seem to
be severe, it is that error and duplicity may be
exposed, and innocence protected.

294

THE CONSPIRACY TRIAL.

We may start out with the propoaition that a
body of men, banded together for tbe consura-
mation of an unlawful act againat the Govern
ment, naturally would not disclose their purpose
and hold suspicious consultations concerning it
in the presence continually of an innocent
party. In the light of thia fair presumption,
let us look at tbe acts of Weichmann, aa dis
closed by his own testimony. Perhaps tbe most
singular and astonishing fact that is made to
appear is his omnipresence and co-action with
those declared to be conspirators, and bis pro
fessed and declared knowledge of all their plans
and purposes. His acquaintance with John H.
Surratt commenced in tbe fall of 1859, at St.
Charles College, Maryland. In January, 1863,
be renewed Ms acquaintance with bim in this
city. On tbe 1st of November, 1864, he took
board and lodgings with Mra. Surratt, at her
house, No, 541 H street, in tbia city. If this tes
timony be correct, be was introduced to Booth
on the 15tb day of January, 1865, At this first,
very first meeting, he waa invited to Booth's
room, at the National, where he drank wine and
took cigars at Booth's expense. After consulta
tion about soraething in an outer passage be
tween Booth and the party alleged to be with
him by Weichmann, tbey all came into the roora,
and for the first tirae business was proceeded
with in bis presence. After that he met Booth
iu Mrs. Surratt's parlor and in his own room,
and had conversations with Mm. As near as
Weichmann recollects, about three weeks after
his introduction, be raet tbe prisoner, Atzerodt,
at Mrs. Surratt's. (How Atzerodt was received
at tbe bouse will be referred to.) About the
time that Booth played Peacara, in the "Apos
tate," at Ford's theater, Weichraann attended
the theater in company with Surratt and At
zerodt. At the theater they were joined by
Herold. John T. Holahan, ,a gentleman not
suspected of complicity in the great tragedy,
also joined tbe company at the theater. After
tbe play was over, Surratt, Holahan and hira
self went as far as the corner of Tenth and E
streets, when Surratt, noticing that Atzerodt
and Herold were not with them, sent Weichmann
back for them. He found them in a reataurant
near by, in conversation with Booth, by whose
invitation Weichmann took a drink. After that
the entire party went to Kloman's, on Seventh
street, and had some oysters. The party there
separated, Surratt, Weichmann and Holahan
going home. In tbe month of March last the
prisoner, Payne, according to Weichmann, went
to Mrs. Surratt's house and inquired for John H.
Surratt. "I rayself," says Weichmann, "went
to open the door, and he inquired for Mr. Sur
ratt. I told bim Mr. Surratt was not at home,
but I would introduce him to tbe family, and
did introduce him to Mrs. Surratt — under the
name of Wood." What more? By Weicb-
mann's request Payne remained in tbe house all
night. He had supper served to him in the
privacy of Weiobmann's own room. More than
that, 'Weichmann went down into the kitchen
and got the supper and carried it up to him
himself, and as nearly as he recollects, it was
about eight weeks previoua to the assassination.
Payne remained as Weichraann's guest until the

next morning, when he left in tbe early train
for Baltimore, About three weeks after that
Payne called again. Says Weichmann, "I
again went to tbe door, and / again ushered
bim into tbe parlor;" but says he had forgotten
his name, and only recollected that he bad given
the name of Wood on tbe former visit, when
one of the ladies called Payne by that name.
He who had served supper to Payne in his own
room, and bad spent a night with him, could not
recollect for three weeks the coraraon narae of
"Wood," but recollects with such distinctness
and particularity scenes and incidents of much
greater age, and by which he is jeopardizing
the lives of others. Payne remained that time
about three days, representing hiraself to the
faraily as a Baptist preacher ; that be had been
in prison in Baltimore about a week, and that
he had taken the oath of allegiance and was
going to become a good loyal citizen. To Mrs.
Surratt this seemed eccentric, and she said " he
was a great looking Baptist preacher," "Tbey
looked upon it as odd, and laughed at it." It
seems frora Weiobmann's testimony that he
again shared his room with Payne, and when
returning from his office one day, and finding a
false mustache on the table in bis roora, he took
it and threw it into his toilet box, and after
ward with a box of paints, in his trunk, and
the mustache was subsequently found in Weich
raann's baggage. When Payne, according to
Weicbmauii's testiraony, inquired, " Where is
my raustache ?" Weichraann said nothing, hut
"thought it r.ather queer that a Baptist preaclier
should wear a raustache." He says he did not
want it about bis room ; " thought no honest
person bad any reason to wear a false mus
tache," and as no "honest person"^?) should be
in possession of it, he locked it up in bis own
trunk, Weichmann professes tbiougbout his
testiraony the greatest regard and friendship
for Mrs. Surratt and her son. Why did be not,
on this occasion, and while his suspicions were
aroused — if he is an honest man, why did he
not go to Mrs. Surratt and communicate tbem
at once ? She, an innocent and guileless woman,
not knowing what was occurring in her own
bouse; he, tbe friend, coming into possession
of important facts, and not making them known
to her, tbe head of the household, but claiming
now, since this overwhelming misfortune has
fallen upon Mrs, Surratt, that, while reposing
in tbe very bosom of the family as a friend and
confidant, be was a spy and an informer I and
that, we beUeve, is the best excuse the prosecu
tion is able to make for him. His account and
explanation of this mustache would be treated
with contemptuous ridicule in a civil court.
But this is not all. Concede Weichmann's
account of the mustache to be true, and if it
was not enough to rouse his suspicions that all
was not right, he states that, on the same day,
he went to Surratt's room and found Payne
aeated on the bed with Surratt, playing with
bowie-knivea, and surrounded with revolv
ers and spurs. Miss Honora Fitzpatrick
testifies that Weichmann was treated by Mrs.
Surratt " more like a son than a friend."
Poor return for motherly care I Guilty knowl
edge of and participation in crime or in wild

ARGUMENT OF FREDERICK A. AIKEN.

295

schemes for the capture of the Preaident; would
be a good excuse for not making all this known
to Mrs. Surratt. In speaking of tbe spurs and
pistols, AVeichmann Imew that there were just
eight spurs, and two long navy revolvers. Bear
in mind, we ask you, gentlemen of the
Commiasion, that there ia no evidence before
you abowing that Mra. Surratt knew anything
about theae tbinga. It seema farther on, about
the 19th of March, that Weichmann went to tbe
Herndon House with Surratt to engage a room.
He saya he afterward learned that it was for
Payne, from Atzerodt, but contradicts himself
in tbe same breath by stating that he inquired
of Atzerodt if be was going to aee Payne at the
Herndon House. Hia intimate knowledge of
Surratt's movements between Richmond and
Waahington, fixing the dates of the trips with
great exactitude; of Surratt's bringing gold
hack; of Surratt's leaving on tbe evening of
the 3d of April for Canada, spending his last
moments here with Weichraann; of Surratt's
telling Weichmann about bis interviews with
Davis and Benjamin in all tbia knowledge
concerning hiraself, and asaociationa with those
named as conspiraliors, he is no doubt truthful
as far as bis statements extend, but when be
comes to apply some of this knowledge to others,
be at once shakes all faith in his testimony
bearing upon tbe accused.
"Do you remeraber," the question was asked
him, "early in the month of April, of Mrs. Sur
ratt having sent for you and asking you to give
Mr. Booth notice that she wished to see him ?"
Weichmann in bis reply stated that she did ;
that it was on tbe 2d of April, and that be found
in Mr. Booth's room John McCuUough, tbe actor,
when he delivered tbe message. One of two
things to which be swears in this statement
can not be true : 1. That be met John McCnl
lough in Booth's room, for we have McCuUough's
sworn statement that at that time he was not in
tbe city of Washington, and if, when be delivered
the message to Booth, McCuUough was in tbe
room, it could not have been on the 2d of April,
" St. Lawrence Hall, "l
"Montreal, June 3, 1865. /
" I am an actor by profession, at present fulfill
ing an engagement at Mr. Buckland's theater,
in this city. I arrived here on the 12th of
May. I performed two engagements at Ford's
theater, in Washington, during the past winter,
the last one closing on Saturday evening, 25tb
of March. I left "Washington on Sunday even
ing, 26th March, and have not been there since.
I have no recollection of meeting any person
by the name of Weichmann. "JOHN MoCULLOUGH.
" Sworn to and subscribed before me, at tbe
United Statea Consulate General's in Montreal,
this third day of June, A. D. 1865. -
" C. H. POWERS,
" U. S. Vice Consul General."
If he can be so mistaken about thoae factsi
may he not be in regard to the whole transac
tion ? It ia alao proved by Weichmann that be
fore Mra. Surratt atarted for tbe country, on
the 14th of April, Booth called; that be re
mained three or four minutea, and then Weich

mann and Mrs. Surratt started for tbe country.
All this comes out on his first examination
in chief. The following is also told in his first
oroaa-examination : Mrs. Surratt keeps a
boarding houae in this city, and was in tbe
habit of renting her rooms out, and that ho was
upon very intimate terms with Surratt ; that
they occupied the same room; that when he
and Mrs. Surratt went to Surrattsville on tbe
14tb, she took two packages, one of papers, tho
contents of the other were not known. That
peraona have been in tbe habit of going to Mra.
Surratt's and staying a day or two ; that At
zerodt stopped in the house only one night ; that
tbe first time Payne came to tbe house he was
dressed genteelly, like a gentleman ; that he
heard both Mrs. Surratt and her daughter say
that they did not care about having Atzerodt
brought to tbe house ; and at tbe conclusion, in
swearing as to Mrs. Surratt's character, he said
it was exemplary and lady-like in every par
ticular, and apparently, as far as he could judge,
she waa all the time, from the 1st of November
up to tbe 14tb of April, " doing ber duties to
God and man." It also distinctly appears that
Weichmann never bad any conversation with -
Mrs. Surratt touching any conspiracy. One
thing is apparent to our minds, and it is forced
upon us, as it must be upon every reasonable
mind, that in order to have gained all this
knowledge Weichmann must have been witMn
tbe inner circle of tbe conspiracy. He knows
too much for an innocent man, and the conclu
sion ia perfectly irreaiatible that if Mra. Surratt
bad knowledge of what was going on, and bad
been, with others, a particeps criminis in tbe
great conspiracy, ahe would have certainly done
more than she did or has been shown against
ber, and Weichmann would have known it.
How does ber non-recognition of Payne, her ac
quaintance with Booth, and the delivery of the
message to Lloyd, compare with tbe long and
startling array of facts proved againat Weich
mann out of his own mouth ? All the facts
point strongly to bim as a co-conspirator.
Is there a word on record of conversation be
tween Booth and Mrs. Surratt? That they did
converse together, we know; but if anything
treasonable had passed between them, would
not the quick ears of Weichmann have caught it,
and would not he have recited it to thia Court?
When Weichmann went, on Tuesday, the llth
of April, to get Booth's buggy, he was notasked
by Mra. Surratt to get ten doUara. It was prof-
ferred by Booth, according to Weichmann, and
he took it. If Mrs. Surratt ever got any money
from Booth, she paid it back to iiim. It is not
ber character to be in any one's debt. )
There was no intimacy with Booth, as Mrs. '
Surratt baa proved, but only common acquaint- ,
ance, and such as would warrant only occa- ;
sional calls on Booth's part, and only intimacy
would have excuaed Mrs. Surratt to heraelf in
accepting such a favor, had it been made known
to her. Moreover, Miss Surratt has attested to
remarks of ber brother, which prove that inti
macy of Booth with bis aiater and mother were
not deairable to him.
The preceding facts are proven by statements
made by Weichmann during hia first examina-

296

THE CONSPIRACY TRIAL.

tion. But, as though the Commission had not
sufficiently exposed tbe character of one of its
chief witnesses in the role of grand conspira
tor, Weichmann is re-called and farther attests
to the genuineness of the following telegram:
"New York, March 23d, 1865.— To Weich
mann, Esq., 541 H street : Tell John telegraph
number and street at once."
[Signed,] "J. BOOTH."
What additional proof of confidential rela
tions between Weichmann and Booth could the
Court desire ? If there was a conapiracy
planned and maintained among the persons
named in the indictment, Weichraann must have
had entire knowledge of the same, else he bad
not been admitted to that degree of knowledge
to which he testifies ; and in such case, and in
the alleged case of Mrs. Surratt's complicity,
Weichmann m-ust have known the same by cir
cumstances strong enough to exclude doubt,
and in comparison with which all present facts
of accusation would sink into insignificance.
We proceed to the notice and review of the
second chief witness of tbe prosecution against
Mrs. Surratt, John M. Lloyd. He testifies to
the fact of a meeting with Mrs. Surratt at
Uniontown on tbe llth of April, 1865, and to
a conversation having occurred between Mrs.
Surratt and himself, in regard to which he
states ; "I ara quite positive ahe asked me about
the 'shooting irons;' lam quite positive about
that, but not altogether positive ; 1 think she
named shooting irons, or something to call my
attention to those tbinga, for I bad almost for
gotten about their being there." Q. " Was ber
question to you first, whether tbey were there,
or what was it?" A. " Really, I can not recol
lect the first question she put to me — I could
not do it to save my life." The question was
asked Lloyd, "During tbia conversation, waa
the word carbine mentioned ?" He anawered,
"No." "She finally came out, but can not be
determined about it — that she said ahooting
irons — asked rae in relation to tbem." The
question was then asked ; " Can you swear, on
your oath, that Mrs. Surratt mentioned tbe
words 'shooting irons' to you at all?" A. "I
am very positive she did." Q. " Are you cer
tain ? " A. "I am very positive that she named
ahooting irons on both occasions. Not so pos
itive as to the first as I am about the last."
Here comes in tbe plea of " reasonable_doubt."
If the witness himself is not absolutely posi
tive as to what occurred, and as to tbe conver
sation that took place, bow can tbe jury assume
to act upon it as they would upon a matter
personally concerning themselves ?
On this occasion of Mra. Surratt's visit to
Uniontown, three days before the assassination,
where she met Lloyd, and where this conver
sation occurred between them, at a time when
Lloyd was, by presumption, sober and not in
toxicated, he declares definitely before the Com
mission that be is unable to recollect tbe con
versation, nor parts of it, with distinctness.
But on the 14th of April, and at a time when,
as testified by Ms sister-in-law, he waa more
than ordinarily affected by intoxicating drink
—and Capt. Gwynn, James Lusby, Knott, bar

keeper, and others, corroborate the testimony
as to Ms absolute inebriation — ^he attests that
he positively remembers that Mrs. Surratt aaid
to bim ; " Mr. Lloyd, I want you to have those
shooting irons ready." "That persons would
oaU for them." " That was the language she
made uae of, and she gave me this other thing
to give to whoever called."
In connection with the fact that Lloyd can
not swear positively that Mra. Surratt men
tioned " shooting irons" to him at Uniontown,
bear in mind the fact that Weichmann aat in
tbe buggy on tho same seat with Mrs. Surratt,
and he swears be heard nothing about " shoots
ing irons." Would not the quick ears of Weich
mann have beard the remark had it been made ?
Tbe gentlemen of the Commission will please
recollect that these statements were rendered
by a man addicted to excessive use of intoxi
cating liquors; that he was even inordinately
drunk at the time referred to ; that he had vol
untarily complicated hiraself in the conceal
ment of the arma by J. H. Surratt and his
friends ; that he was in a state of maudlin ter
ror when arrested, and when forced to confess,
that for two days he maintained denial of all
knowledge that Booth and Herold had been at
his house; and that at last, and in tbe condi
tion referred to, he was coerced by threats to
confess, and in a weak and coraraon effort to
exculpate himself by the accusation of another,
he proceeded to place blame upon Mrs. Surratt
by statements of conversation already cited.
Notwithstanding his utter denial of all knowl
edge of Booth and Herold having called at Ms
house, it afterward appears, by Ms own testi
mony, that immediately Herold commanded
bim (Lloyd) "for God's sake, make haste and
get those things," he comprehended what
things" were indicated, without definition, and
brought forth both carbines and whisky. He
testifies that J. H. Surratt had told him, when
depositing tbe weapons in concealment in bis
bouse, that they would soon be called for, but
did not instruct bim, it aeema, by .whom they
would be demanded.
All facts connecting Lloyd with the case, tend
to his implication and guilt, and to prove that
he adopted the dernier resort of guilt — accusa
tion and inculpation of another. In caae Lloyd
were innocent and Mrs. Surratt tbe guilty co-
adjutrix and messenger of the conspirators,
Lloyd would have been able to cite so much
more open and significant remarks and acts of
Mrs. Surratt that he would not have been
obliged to recall, in all perversion and weak
ness of uncertainty, ao common and unmean
ing deeda and speech as Ms testimony includes.
It is upon these considerations that we feel
ourselves safe and reasonable in tbe poaition
that there are facts and circumstances, both
external and internal, connected-with tlie tes
timony of Weichmann and Lloyd, which, if
they do not destroy, do certainly greatly shake
their credibility, and which, under tho rule
that will give Mrs. Surratt tbe benefit of all
reasonable doubts, seem to forbid that she
should be convicted upon the unsupported evi
dence of these two witneaaes. But even admit
ting tho facta to be proven aa above recited, it

ARGUMENT OF FREDERICK A. AIKEN.

297

remains to be seen where ia the guilty knowl
edge of the contemplated assasaination ; and
tliia bringa ua to the inquiry whether theae
facts are not explainable so aa to exclude guilt.
From one of tbe most respected of legal au
thorities tbe following ia taken; "Whenever,
therefore, the evidence leavea it indifferent
which of several hypotheses is true, or merely
catabliahes some finite probability in favor of
one hypothesis rather than another, such evi
dence can not amount to proof. The maxim of
the law ia that it is better that ninety-nine of
fenders should escape than that one innocent
man should be condemned." Starkie on Evidence,
The acts of Mrs. Surratt must have been ac
companied with a criminal intent in order to
make thera crirainal. If any one suppoaea
that such intent existed, the supposition comes
alone from inference. If disloyal acta and
conatant disloyal practices; if overt and open
action againat the Government on her part had
been shown down to tbe day of tbe murder of
the President, it would do something toward
establishing tbe inference of criminal intent.
On tbe other hand, just the reverse is shown.
The remarks here of the learned and honorable
Judge Advocate are peouUarly appropriate to
this branch of the discussion, and, with bis
authority, we waive all others :
"If the Court please, I will make a single
remark. I think tbe testimony in this case has
proved, what I believe history sufficiently at
tests, how kindred to each other are the crimes
of treason against a nation and the aaaassina-
tion of its Chief Magiatrate. I think of those
crimes, the one seems to be, if not the neces
sary consequence, certainly a logical sequence
from tbe other. 'Che murder of tbe President
of the United States, as alleged and shown,
was pre-eminently a political assassination.
Disloyalty to tbe Government waa ita sole, its
only inspiration. When, therefore, we shall
show, on the part of the accused, acts of in
tense disloyalty, bearing arms in tbe field
against that Government, we show, with him,
the presence of an animus toward the Govern
ment which relieves this accusation of much,
if not all, of its improbability. And thia
course of proof is conatantly resorted to in
criminal courts. I do not regard it as in tbe
slightest degree a departure from the usages
of the profession in the adrainistration of pub
lic justice. The purpose is to show that the
priaoner, in hia mind and courae of life, was
prepared for tbe commission of this crime; that
the tendencies of his life, as evidenced by open
and overt acta, lead and point to this crime, if
not as a neceaaary, certainly aa a moat proba
ble reault, and it ia with that view, and that
only, that tbe teatimony ia offered."
Ia there anything in Mra. Surratt'a mind and,.
course of life to show that she was prepared
for the commission of this crime? The busi
ness transacted by Mrs. Surratt at Surrattsville,
on the Hth, clearly discloses her only purpose
in making the visit. Calvert's letters, tbe
package of papers relating to tbe eatate, tbe
business with Nothe, would be sufficiently clear
to most minds, when added to the fact that the
other unknown package had been handed to

Mrs. OffUtt; that, while at Surrattsville, she
made no inquiry for, or allusion to, Mr. Lloyd,
and was ready to return to Washington when
Lloyd drove up to the house. Doea not this
open wide tho door for the admission of tbe plea
of "reaaonable doubt?" Had she really been
engaged in aasisting in tho great crime, which
makes an epoch in our country'a history, her
only object and moat anxioua wiah would have
been to see Lloyd. It waa no ruse to transact
important business there to cover up what the
uncharitable would call the real business. Cal
vert's letter was received by her on the fore
noon of the 14th, and long before she saw
Booth that day, or even before Booth knew that
tbe President would bo at the theater that
night, Mrs. Surratt had disclosed her intention
to go to Surrattsville, and had she been one
moment earlier in her start, she would not have
seen Booth at all. All these things furniah
powerful presumptions in favor of the theory
that, if she delivered tbe message at all, it was
done innocently.
In regard to the non-recognition of Payne,
the third fact adduced by tbe prosecution
againat Mrs. Surratt, we incline to tbe opinion
tiiat, to all minda not fore-judging, tbe testi
mony of Miss A. E. Surratt, and various friends
and servants of Mrs. Surratt, relative to phys
ical causes, might fully explain and account
for such ocular remissness and failure. In
times and on occasions of caaual meeting of
intimate acquaintancea on tbe street, and of
common need for domestic uses, the eyesight
of Mrs. Surratt had proved treacherous and
failing. How much raore liable to fail ber was
ber imperfect vision on an occasion of excite
ment and anxiety, like the night of ber arrest
and the disturbance of her household by mili
tary officers, and when tbe person with whom
she was confronted was transfigured by a dis
guise which varied from the one in which she
had previously met bim, with all the wide dif
ference between a Baptist parson and an earth-
soiled, uncouthly dressed digger of gutters?
Anna E. Surratt, Emma Offutt, Eliza Holahan,
Honora Fitzpatrick, Anna Ward, and a servant,
attest all to the visual incapacity of Mrs. Sur
ratt, and the annoyance she experienced there
from, in passing friends without recognition in
tbe daytime, and from inability to sew or read
even on a dark day, aa well aa at night. The
priests of her church, and gentlemen who have
been friendly and neighborhood acquaintances
of Mrs. Surratt for many years, bear witneas
to her untarniahed name and discreet and
Christian character, and absence of all impu
tation of disloyalty, to her character for patri
otism. Friends and servants attest to her vol-
'jintary and gratuitous beneficence to our soldiers
'stationed near her; and, "in charges for Mgh
treason, it is pertinent to inquire into the hu
manity of the priaoner toward tboae represent
ing the Government" is the maxim of the law;
and, in addition, we invite your attention to
tbe singular fact that of the two officers who
bore testimony in this matter, one asserts that
the hall, wherein Payne sat, was illuminated
by a full head of gas; the other that the gas-
Ught waa purposely dimmed. Tbe uncertainty of

298

THE CONSPIRACY TRIAL.

th3 witneaa, who gave testimony relative to the
coat of Pay ne, may alao be recalled to your notice.
Should not this valuable teatimony of loyal
and moral character shield a woman from ready
belief, on tbe part of judges who judge ber
worthineaa in every way, that within tbe few,
few moments in -n-hicb Booth detained Mra,
Surratt from her carriage, already waiting,
when he approached and entered the houae,
she became so converted to diabolical evil as to
hail with ready assistance Ms terrible plot,
which must have been framed (if it were com
plete in his intent at that hour, half-past two
o'clock), since the hour of eleven that day?
If any part of Lloyd's statements ia true,
and Mra, Surratt did verily bear to hia or Mra.
Offutt's hands tbe field-glass, enveloped in
paper, by tbe evidence itself, we may believe
she knew not the nature of the contents of the
package; and, had she known, what evil could
she, or any other, have attached to a commis
sion of so common a nature? No evidence of
individual or personal intimacy with Booth has
been adduced against Mrs. Surratt; no long
and apparently confidential interviews; no in
dications of a private comprehension mutual
between tbem; only the natural, and not fre
quent, custom on the part of Booth — as any
other associate of her son might and doubtless
did do — of inquiring through tbe mother, whom
he would request to see, of the son who, he
would learn, was absent from home. No one
has been found who could declare any appear
ance of the nursing or mysteriously discussing
of anything like conspiracy within the walls
of Mrs. Surratt's house. Even if the son of
Mrs. Surratt, from the significancies of asso
ciations, is to be classed with the conspirators,
if such body existed, it is monstrous to suppose
that the son would weave a net of circurastan-
cial evidences around tbe dwelling of bis
widowed mother, were he never ao reclileas and
sin-determined; and that tbey (tbe mother and
the son) joined bands in such dreadful pact, is
more monstrous atill to be thought.
A mother and son aasooiate in crime ! and
such a crime as this half of the civilized world
never saw matched, in all its dreadful bearings !
Our judgments can have hardly recovered their
unprejudiced poise since the shock of the late
horrors, if we can contemplate with credulity
such a picture, conjured by tbe unjust apirita
of indiacriminate accusation and revenge. A
crime which, in ita public magnitude, added to
its private miaery, would have driven even tbe
Atia-baunted heart of a Medici, a Borgia, or a
Madame Bocarme to wild confeaaion before ita
accomplishment, and daunted even that soul, of
all the recorded world the most eager for nov
elty in license, and most unshrinking in sin —
tbe indurated soul of Christina of Sweden ;
auch a crime aa profoundest plotters within
padded walls would scarcely dare whiaper ;
the worda forming the expreaaion of which,
spoken aloud in tbe upper air, would convert
all listening boughs to aspens, and all glad
sounds of nature to ahuddering wails. And
this made known, even surmiaed, to a woman !
a mater familias, the good genius, the "placens
uxor" of a home where cMldren had gathered all

the infiuenoes of purity and tbe reminiscences
of innocence, where Religion watched, and the
Church waa Minister and Teacher.
¦yVho— were circumstantial evidence strong
and conclusive, such as only time and tbe slow
weaving fates could elucidate and deny— -who
will believe, when the mists of uncertainty
which cloud the present shall have dissolved,
that a woman born and bred in respectabihty
and competence — a Christian mother, and a
citizen who never offended tbe laws of civil
propriety ; whose unfailing attention to the
most sacred duties of life has won for her the
name of "a proper Christian matron;" whose
heart waa ever warmed by charity; whose
door unbarred to the poor, and whose Penates
had never cause to veil their faces ; — who will
believe that she could so suddenly and so
fully have learned the intricate arts of
sin ? A daughter of tbe South, her life asso
ciations confirming ber natal predilections, her
individual preferences incUned, without logic
or question, to tbe Southern people, but with no
consciousness nor intent of disloyalty to her
Government, and causing no exclusion from her
friendship and active favors of the people of
tbe loyal North, nor repugnance in tbe dis
tribution among our Union soldiery of all
needed comforts within her command, and on
all occasions.
A strong but guileless-hearted woman, her
maternal solicitude would have been the flrst
denouncer, even abrupt betrayer, of a plotted
crime in which one companion of ber son could
have been implicated, liad cognizance of auch
reached her. Her days would have been ag
onized and her nights sleepless, till she might
have exposed and counteracted that spirit of
deflant bate which watched its moment of van
tage to wreak an immortal wrong — till she
might have sought the intercession and abso
lution of the Church, her refuge, in behalf of
those she loved. The braina, which were bold,
and crafty, and coucbant enough to dare the
world'a opprobrium in the conception of a
scheme which held as naught tbe lives of men
in highest places, never imparted it to tbe in
telligence, nor sought the aid nor sympathy of
any living woman, who bad not, like Lady
Macbeth, "unsexed herself" — not though she
were wise and discreet as Maria Theresa or
the Caatilian Isabella. This woman knew it
noi. This woman, who, on tbe morning pre
ceding that blackest day in our country's
annals, knelt in tbe performance of her
most sincere and sacred duty at the con
fessional, and received tbe mystic rite of
the Eucharist, knew it not. Not only would
she have rejected it with horror, but such
proposition, presented by tbe guest who had
sat at ber hearth as tbe friend and convive of
her son, upon whose arm and integrity her
widowed womanhood relied for solace and pro
tection, would have rotised ber maternal wits to
some sure cunning which would have contra
vened the crime and sheltered ber son from the
evil influences and miserable results of such
companionship. Tlie mothers of Charles tbe IX and of Nero
could harbor, underneath their terrible smiles.

ARGUMENT OF FREDERICK A. AIKEN.

299

Bohemes for the violent and unshrlveu deaths,
or the moral vitiation and decadence which
would painfully and gradually remove lives
sprung ftom their own, were they obstacles to
their demoniac ambition. But they wrought
their awful romances of crime in lands where
the sun of supreme civilization, through a gor
geous evening of Syberitisb luxury,was sinking,
with red tents of revolution, into the night of
anarchy aud national caducity. In our own
young nation, strong in its morality, energy,
freedom, and simplicity, assassination can never
be indigenous. Even among the desperadoes
and imported lazzaroni of our largest cities, it is
comparatively an infrequent cause of fear.
The daughters of women to whom, iu their
yet preserved abodes, the noble mothera who
adorned the daya of our early independence
are vividly remembered realities and not
haunting shades — -the descendants of earnest
seekers for liberty, civil and religioua, of rare
races, grown great in heroic endurance, in
purity which comes of trial borne, and in hope
born of conscious right, whom the wheels of*
Fortune sent hither to transmit such virtues —
the descendants of these have no heart, no ear
for tbe diabolisms born in hot-beds of tyranny
and intolerance. No descendant of these, no
woman of tbia temperate land could have seen,
much lesa joined, her aon, descending the san
guinary and irrepassable paths of treason and
murder, to ignominious death, or an expatriated
and attainted life, worse than the punishing
wheel and bloody pool of the poets' hell.
In our country, where reason and moderation
so easily quench tbe fires of insane hate, and
where "La Vendetta" ia so easily overcome by
tbe sublime grace of forgiveness, no woman
could have been found so desperate as to sacri
fice all spiritual, temporal, and social good,
self, offspring, fame, honor, and all tbe desiderata
of life, and time, and immortality, to the com
mission, or even countenance, of such a deed
of horror as we have been compelled to con
template tbe two past months.
In a Christian land, where all recorda and
veaulta of the world's intellectual, civil and
moral advancement mold the human heart and
mind to highest impulses, the theory of old Hel-
vetius is more probable than desirable.
Tbe natures of all born in equal station are
not so widely varied as to present extremes of
vice and goodness, but by tbe effects of rarest
and severest experience. Beautiful fairies and
terrible gnomes do not stand by each infant's
cradle, sowing tbe nascent mind with tendereat
gracea or vilest errors. The slow attrition of
vicious associations and law-defying indul
gences, or the sudden impetus of some terribly
multiplied and social disaster, muat have worn
away the auaceptibility of conscience and self
respect, or dashed tbe mind from the hight of
these down to the deeps of despair and recklesa-
neaa, before one of ordinary life could take coun
sel with violence and crime. In no such man
ner was the life of our client marked. It was
the parallel of nearly all the competent masses ;
surrounded by tbe acenes of her earliest recol
lections, independent in her condition, she was
satisfied with the mundus of her daily pursuits.

and the maintenance of her own and children's
status in society and her church.
Remember your wives, mothera, sisters and
gentle frieiida, whose gracea, purity and careful
afl'eotion ornament and cberiab and atrengthen
your Uvea. Not widely different from their
natures and spheres have been the nature and
sphere of the woman who sita in the priaoner's
dock to-day, mourning with tbe heart of Alcea-
tia ber children and her lot ; by whoae deaolated
hearthstone a solitary daughter wastes ber un-
comforted life away in tears and prayers and
vigils for the dawn of hope; and this wretcbedneas
and unpitied deapair have closed like a shadow
around one of earth's common pictures of do
mestic peace and social comfort, by the one sole
cause — suspicion fastened and fed upon tbe facts
of acquaintance and mere fortuitous intercourse
with that man in whose name so many miseries
gather, the assassinator of tbe President.
Since tbe days when Christian tuition first
elevated womanhood to ber present free, refined
and refining position, man's power and honor
ing regard have been the palladium of her sex.
Let no stain of injuatice, eager for a sacrifice
to revenge, rest upon tbe reputation of the men
of our country and time.
This woman, who, widowed of her natural
protectors; who, in helplessness and painfully
severe imprisonraent, in sickness and in grief
ineffable, sues for justice and mercy from your
hands, may leave a legacy of blessings, sweet
aa fruition-haatening sbowera, for tHoae you
love and care for, in return for tbe bappineas
of fame and home restored, though life be ab
breviated and darkened through this world by
tbe miaeries of this unmerited and woeful trial.
But long and chilling is tbe shade which just
retribution, slow creeping on with its "pede
claudo," casts around the fate of Mm whose
heart is merciless to Ma fellowa bowed low in
misfortune and exigence.
Let all tbe fair womanhood of our land hail
you with a pseon of joy that you have restored
to her sex, in all its ranks, tbe aegis of impreg
nable legal juatice which circumvallates and
sanctifies tbe tbresbbold of home and tbe pri
vacy of home life againat the rude irruptions
of arbitrary and perhaps malice-born suspicion,
with its fearful attendants of arrest and incar
ceration, which in this case have been sufficient
to induce sickness of soul and body.
Let not this first State tribunal in our coun
try's history, which involves a woman's name,
be blazoned before tbe world with tbe harsh
tints of intolerance, which permits injustice.
But aa tbe benignant heart and kindly judging
mind of the world-lamented victim of a crime
which wound, in ita ramifications of woe, around
so many fates, would himself have counseled
you, let the heralds of Peace and Charity, with
their wool-bound atavea, follow the fasces and
axes of Judgment and Law, and without the
sacrifice of any innocent Iphigenia, let tbe ahip
of State lanoh with dignity of unatained saila
into the unruffled aea of Union and Prosperity.
MAUT E. SUKBATT.
By FKEDBBICK A. AIK3SN, of Counsel.
BEVBKDY JOHNSON,
JOHN W. CLAMPITT, Associate Counsel.

JkI?,a-TJ3N^E3SrT

DEFENSE OFGEORGE A. ATZERODT.

W. E. DOSTER, ESQ.

May iiplease ihe Court:
The prisoner, George A. Atzerodt, is charged
with the following specification : " And in
further prosecution of said conapiracy, and ita
traitorous and murderoua deaigna, the aaid
George A. Atzerodt did, on tbe night of the 14th
of April, A. D. 1865, and about tbe same hour
of the night aforesaid, within the military de
partment and military lines aforesaid, lie in
wait for Andrew Johnson, then Vice-President
of the United States aforesaid, with the intent,
unlawfully and maliciously, to kill and murder
him, the aaid Andrew Johnson." In support
of tMs specification the proaecution has sub
mitted tbe following testimony : The testimony
of Weichmann and Misa Surratt, that be waa
frequently aeen in company with Booth at tbe
house of Mrs, Surratt. Tbe testimony of
Greenawalt, that Atzerodt had interviews with
Booth at tbe Kimmell House, and that tbe pris
oner once said, tbe 1st of April, "Greenawalt,
I am pretty near broke, though I have friends
enough to give me as much money aa will keep
me all my life. I am going away one of these
days, but I will return with as much money aa
will keep me all my lifetime." The testimony
of Marcus P. Norton, that he overheard bim in
conversation with Booth, in which it was said,
about the evening of the 3d of March, that,
"If tbe matter aucceeded aa well with Johnson
as it did with old Buchanan, tbe party would be
terribly sold;" and, also, that "The character
of the witnesses would be auch that nothing
could be proved by tbem." Tbe teatimony of
Col. Nevins, that he waa aaked by tbe priaoner,
between four and five of tbe afternoon of tbe
12tb of April, at tbe Kirkwood Houae, to point
out Mr. Johnaon while at dinner. 'The teati
mony of John Fletcher, that on or about April
3d, tbe prisoner owned a horse and saddle,
which he afterward aaid waa sold in Montgom
ery county, and which was afterward found
near Camp Barry Hospital, on tbe night of tbe
14th of April. The testimony of Fletcher, also,
that on the evening of the 14th, tbe prisoner
got a dark bay mare at Naylor's (which he had
brought there in tbe morning), rode her away
at half-past six, brought her back at eight, re
turned again at ten, ordered his mare, took a
drink ; said, " If thia thing happena to-night,
you will hear of a present ; " and of the mare,
" She is good on a retreat ; " that he then rode
to the Kirkwood House, came out again, went
800

along D street, and turned up Tenth street.
The testimony of Thomas L. Gardner, that the
aame dark bay one-eyed horse found near Camp
Barry, was sold by hia uncle, George Gardner,
to Wilkea Booth. Testimony of John L. Toffey,
that the same horse was found at twelve and a-
balf A. M,, Saturday, the 15th of April, near
Camp Barry, about three-quarters of a mile
east of tbe Capitol. The testimony of Wash
ington Briscoe, that on the evening of the 14th,
between twelve and half-past twelve, the pris
oner got into the cars near tbe Navy Yard, and
asked bim three timea to let him aleep in the
store; that he waa refuaed, and aaid be was
going to tbe Kimmell House. The testimony
of Greenawalt, again, that he came to tbe Kim
mell House at two P. M, andiu company with a
man by tbe name of Tbomaa, and beaitated to
register his name, and went away in tbe morn
ing, about five, without paying his bill. Teati
mony of Lieutenant Keim, that he alept in the
same room with Atzerodt that night at the
Kimmell Houae, and when Keim apoke of the
aasassination, he aaid " it was an awful affair,"
and that on tbe Sunday before he saw a knife
in his posseaaion — " a large bowie-knife in a
sheath " — and that Atzerodt remarked, " If one
fails, I want the other." Testimony of Wm.
Clendenin, that he found a knife similar to the
one aeen by Keim, in F street, between Eighth
and Ninth streets, opposite tbe Patent Office, at
aix o'clock of tbe morning after the aasassina^
tion. Teatimony of Robert Jonea and John Lee,
that Atzerodt took a room at tbe Kirkwood
Houae, No. 126, and that in it, on the morning
of the 15th, were found a coat containing a
loaded pistol and a bowie-knife, and a hand
kerchief marked with the name of J. Wilkes
Booth. Teatimony of Provost Marshal McPhail,
that Atzerodt confessed he threw his knife
away near tbe Herndon Houae ; that he pawned
bis pistol at Caldwell's store, at Georgetown,
and borrowed ten dollars, and that the coat
and arma at the Kirkwood House belonged to
Herold. Testimony of Sergeant Gemmill, that
he arrested Atzerodt near Germantown, and
that he denied having left Washington re
cently, or having had anything to do with the
asaaasination. Testimony of Heiekiah Metz,
that on the Sunday following the assassination
Atzerodt aaid at bis houae, " If the man had
followed Gen. Grant that waa to have followed
him, he would have been killed." To negative
this specification the defease has submitted the

ARGUMENT OF W. E. DOSTER.

801

following testimony; The testimony of Som
erset Leaman, that the priaoner said at the
house of Mr. Metz, when asked whether Gen.
Grant waa killed, " No, I do not auppoae be
was. If he was killed, be would have been
killed probably by a man that got on tbe aame
train of cara that he did," and tbatbe never uaed
the language imputed to him by Mr. Metz ;
that be was confused, but that the daughter of
Mr. Metz, to whom be was paying his ad
dresses, was showing bim the cold aboulder on
that day. The aame confirmed by Jamea E.
Leaman, The testimony of Jamea Keleber, pro
prietor of a livery stable, corner of Eighth
and E streets, that Atzerodt hired a dark bay
mare from Ms stable at half-past two o'clocli
on the afternoon of the 14th, wrote his name
in a large hand, did not hesitate to put down
bis name, willingly gave references, told him
he lived in Port Tobacco, and was a coacbraa-
ker by trade, and gave the names of John Cook
and Stanley Higgius as references. Testimony
of Samuel Smith, that the bay mare was re
turned about eleven o'clock on the evening of
the 14tb, very much in the same condition as
when she went out ; no foam on ber. Samuel
McAllister, that the prisoner rode up to tbe
Kimmell Houae about ten o'clock on the even
ing of tho 14th, and called to tbe black boy to
bold his mare. Samuel McAllister further re
cognizes the knife found opposite tbe Herndon
House, and tbe new revolver pawned at Cald
well's, as having been in tbe possession of Atze
rodt, but does not recognize the coat found at
the Kirkwood House, in Atzerodt's room, nor
any of its contents. Provost Marshal McPhail's
testimony, to show the coat and arms belonged
to Herold. The testimony of Mra, Naylor, to
show that tbe handkerchief in the pocket of tbe
coat in Atzerodt'a room was marked with the
name of Herold's sister. The testimony of
Hartman Richter, that the priaoner came to hia
houae in Montgomery county, Maryland, made
no effort to eacape, worked in the garden, and
went about among tbe neighbora. Testimony
of Somerset Leaman, that he is of respectable
family, and visited the most respectable farai-
liea in Montgomery county. Of Samuel Mc-
AlUater, again, that he waa generally conaid
ered a coward. Of Waahington Briscoe, that
he was a noted coward. Of Lewis C. Haw
kins, that he is a notorious coward. Of
Henry Brawner, that he is a well-known cow
ard. Testimony of Governor Farwell, that he
came to tbe President's room, at the Kirkwood,
immediately after the assassination ; could have
seen anybody lying in wait, but saw no one ;
remained there half an hour, but no one at
tempted to enter by violence. Testimony of
William A. Browning, private secretary to Mr.
Johnson, that the Vice-President was in his
room from five for the balance of the evening.
Testimony of Matthew J. Pope, that Atzerodt
was, on the 12tb, about noon, at his atable, try
ing to sell a horse, and remained there until he
went off with John Barr. Teatimony of John
Barr, that he met Atzerodt on that day ; knows
it was on the 12th, because the same day, by
his memorandum, he made two spring blocks.
Testimony ot Henry Brawner and Lewis C.

Hawkins, to show that, on tbe 3d of March he
was at Port Tobacco. Teatimony of Judge Olin
and Henry Burden, that they do not believe
Marcua P. Norton on oath.
Now, the prisoner aubmita that the testimony
adduced by the proaecution fails utterly to sup
port tbe specification, but corroborates his own
statement in every particular. Firat, the spe
cification charges him with "lying in wait" for
Andrew Johnaon, the Vice-President of the
United Statea, "within the military depart
ment and military linea aforeaaid." Tbe evi
dence on this point of "lying in wait" is alto
gether circumstantial. Colonel Nevins aays be
inquired for President Johnson on tbe after
noon of the 12th, between four and five. TMs
decrepit gentleman, sixty years of age, ac
knowledges that he never saw tbe prisoner af
ter that until tbe day he gave bis testimony,
about six weeks afterward, although he saw him
but for a minute at the time of the conversa
tion, and describes him as looking exactly as he
did then. Now, all tbe other witnesaea say that
Atzerodt ia much thinner; all of tbem, even
bis moat intimate friends, have bad difficulty in
recognizing him, and yet this peremptory old
gentleman, with failing eyesight, says he looks
just the same, although be saw Mm but for a
moment, and then not again for six weeks.
The testimony of this witness, besides tbe nat
ural anxiety of a Government officer to serve
bis Government, and of an old one to retrench
his waning importance, is incredible ou the
face of it ; but if it were not, it is absolutely
contradicted, beyond a doubt, by tbe witnesses
for tbe defense. Matthew Pope, a livery-stable
keeper, near the Navy Yard, says a man carae
to bis stable and tried to sell him a horse on
the noon of tbe same day iu April. He can not
recognize tbe prisoner, neither can he give tbe
date, only be knows that he left bis umbrella,
and that he went off with John Barr, and was
there between four and five. John Barr, being
called, very well remembers that the person
who left hia umbrella, and who rode off from
Pope's stable, was Atzerodt, who went home
with him to supper; and he knows it was the
day that he made two spring blocks for San
derson & Miller, and be sees by reference to
bis book that it was tbe 12tb of April.
The testimony of Col. Nevins must, therefore,
fall to tbe ground ; and while it is conceded
that some one out of the multitude at tbe Kirk
wood may have asked the Colonel tbia common
question, it is certain that this raan was not
Atzerodt, for at tbe given hour and day he waa
a mile from the bouae. The second point
brought in support of this specification is the
declaration of Marcus P. Norton, a lawyer, from
Troy, New York, to the effect that he saw Atze
rodt in company with Booth, be thinks, on the
evening of tbe 3d of March, at tbe National,
and beard it said that, "If the matter succeeded
as well with Johnson as it did with old Bu
chanan, the party would be terribly sold;" also
the words, "Tbe character of the witnesses
would be such that nothing could be proved by
tbem." Now, tbe prisoner aays that this testi
mony is a deliberate falsehood. To prove that
on the 2d and 3d days of March he was not in

302

THE CONSPIRACY TRIAL.

Washington, he brought Henry Brawner, pro
prietor of the Brawner House, at Port Tobacco,
who says be knows that about that time he was
at home; and Lewis P. Hawkins confirms tbe
declaration. Neither of these two ia absolutely
certain of tbe date, for iu country towns people
can seldom prove their exact whereabouts on a
given day three months back. This alone would
be sufficient to throw doubt on the stateraents
of Norton. But there is other evidence that be
was deliberately making testimony. He says
that on tbe same day be saw Dr. Mudd asking
for Booth. Dr. Mudd has shown that on that
day be was not at the National Hotel, nor in
Washington city. Thia ingenious fabricator of
teatimony (in whose raind tbe bad character of
himself as witness seems to dominate, and ivbo,
therefore, appears to put hia own thoughts into
the mouths of others), chose tbe 3d of March,
the day before the inauguration, to give his
story tbe probabiUty which arises from connect
ing conversation with a given place. He ap
pears, before he wove this fine perjury, to have
omitted reading the testimony of Conover, who
says the narae of Andrew Johnson was not
joined in tbe plot until after the inauguration,
and that at that time the narae of Mr, Haralin
was on the list; and so he perpetrated an egre
gious blunder. And be seems to have forgot
ten how strange it would seem, if, after having
heard these things at the very time, eight years
ago, when a plot waa suspected to poison Mr.
Buchanan, be should neither have suspected
nor informed of such a plot, nor bow curious
an instance of memory that be should reraem
ber words exactly for three months, and faces,
although be is short-sighted, and yet remembers
no others. As we might conclude from internal
evidence, tbe man is a notable false witness.
It is in evidence that be takes patent cases,
and, if be can not win by argument, be takes
the witness-box and swears tbem through. Mr,
Henry Burden, an old, wealthy and honorable
gentleman, swears be would not believe hira
under oath, and that Ms reputation for veracity
is very bad. Justice Abraham B. Olin, of tbe
Supreme Court of this District, formerly raem
ber of Congress from Troy, swears be has never
had any difference with Norton, but his reputa
tion for veracity is sufficiently bad, and he
would not believe bim under oath. It is true
they have brought here three witnesses to
bolster up this false character. One never
knew bim at all at Troy. Tbe other knew hira
at Troy, but is a client who has the very case
pending in which Norton's testimony was at
tempted to be impeached. It is not likely,
then, that he would swear away tbe character
of his own witness. Tbe third, Horatio King,
knew hira only in business relations at Wasli-
ington city.
The internal evidence of Norton's teatimony,
its falsity in tbe matter of Dr, Mudd, its proven
falsity in the time of Atzerodt's visit to the Na
tional, and his known reputation aa a falae
witneas, leaves no shadow of doubt that bis tea
timony is the offspring of a desire to distinguish
himself on tbe witness-atand, and that Atzerodt
never met Booth at the National on the 3d of
March, nor had the alleged conversation with

Mra. Tbe third strong point jf tbe prosecution
is, that Atzerodt left room No. 126, at the Kirk
wood House, taking the key along, and in his
room waa found a coat, containing a bowie-
knife, a pistol, loaded, and bsindkerchiefs marked
with tbe name of J. Wilkes Booth, together
with notes on tbe Ontario Bank, in the name
of Booth, and memoranda showing they once
belonged to Booth, The coat and all its con
tents were disposed of by tbe prosecution itaelf.
McPhail swears Atzerodt told him the coat and
arms all belonged to Herold. Tbe clerk at tho
Kirkwood swears somebody called for Atzerodt
in tbe afternoon. It was Herold who visited
Atzerodt, and left the coat in his room. One
handkerchief is marked with tbe narae of Mary
E. Naylor, tbe sister of Herold. Another is
marked "H," tbe initial of Herold. But why
did Atzerodt suffer this coat aud arma to be in
his room? Because he was in a plot to capture
the President. In so far be waa tbe colleague
of Herold and Booth. No farther. Because,
for this purpose, to capture the President, and
to be used in defense, he carried tbe knife and
pistol which McAllister used to keep for him —
the sarae knife he threw away and tbe same
pistol he pawned — and, therefore, he suffered
Herold to leave Ms arraor for the same reason
he carried his own. But why did Atzerodt go
away with tbe key and never come back ? Be
cause be did not want to be arrested. Because
he was not guilty of aiding in the assassina
tion of Mr. Lincoln. Because he was in tbe
plot so far as to capture tbe President, and
when he was ordered to kill tbe Vice-President
and refused, he was unable to resolve either to
inform tbe authorities, for fear of Booth, or to
do the deed for fear of being hung; and ao he
just abandoned the room as he abandoned eve
rything else connected with the conspiracy.
Had he been able to resolve to carry out his al
lotted duty, he would naturally have taken tbe
coat of Herold and put it on, and used tbe
arms. Had be been able to resolve to fly at
once, be would have removed all traces of his
participation. One reason of leaving without
paying was because it appears he had no
raoney, and tbe reason for leaving tbe coat was
because it did not belong to bim, and be had no
reason to conceal what could not implicate him.
But the main reaaon, we must admit, was that
he was between two fires, which brought out
bis native irresolution, and so he cut the Gor-
dian knot by running away. We shall see
that be left the Kimraell House, without paying
his bill, tbe next morning. It was for tbe same
reason — be had no money until after he had
pawned his pistol at Georgetown.
The fourth point of tbe prosecution is that
Atzerodt lodged in the same house with the
Vice-President, and tbe relative situation of
the rooms was favorable to assassination. Prob
ably five hundred people roomed at the Kirk
wood tbe same night, and had rooma which
enabled the owners to command tbe room occu
pied by tbe Vice-Preaident. Tbe Vice-Presi-
dent'a room is tbe first on the rigbt-hand side,
after reaching the landing of the second floor.
It ia a room which nobody can help passing,
either going down or coming up. It is impossi-

ARGUMENT OF W. E. DOSTBR.

303

ble to got a room lower than that in the house.
That Atzerodt, therefore, might, in passing,
have entered it, is saying that everybody in
tbe house might have done tbe same. But this
room. No. VAd, is about aa remote from Mr,
Johnson's as possible. It ia in a different
wing, and removed by many perplexing turns
and four flights of stairs. It is very evident,
at a moraent's inspection, that any one desirous
of lying in wait for the Vice-President could
not well have miaaed bis purpose farther, and
Ihat with that intent he would have sought, at
least, a room on the same floor. But tbe actual
fact ia better than auppositiona. Mr. Browning
tells us that the "Vice-President was in his
room from flve in the evening to ten at night,
and that there were, therefore, six hours in
which tbe deed could have been done. In all
that time we have no evidence that Atzerodt
was at tbe Kirkwood House, except tbe state
ment of Fletcher, the hostler at Naylor's sta
bles, who says be followed Atzerodt, and saw
him dismount at tbe Kirkwood, stay five min
utes, and come out again. What was he doing
there? He was taking a drink at the bar. It
ia impossible to show this. The barkeeper does
not remember the faces of all who take a drink.
[f be was lying in wait, why did it take him
but five minutes? But if he tried to kill Mr.
Johnson, if he tried to get into his room, why
is it not shown in evidence? If be was in any
way prevented from getting into bis room, why
was it not shown in evidence? Governor Far-
well, who went first to tbe Vice-President's
roora after the assassination, saw no one lying
in wait; be was not told by tbe President there
had been anybody lying in wait; the lock bad
not been tampered with; no attempt whatever
was raade; the Vice-President was in his room
six hours, but at the very time when the Presi
dent waa shot he was left undisturbed, even by
a knock, in bis room. And why? Because
Atzerodt refused to go and kill hira. Because
Atzerodt, during tbe evening, kept up appear
ances, but backed out. Beoau,se the instrument
which waa to have assassinated the Vice-Pres
ident was either too conscientious or afraid to
do it. During the whole half hour following
no one attempted to kill him, no one was seen
lying in wait. Why? Because there had been
and there was no one lying in wait. He who
was to do it was somewhere else, getting drunk,
A fifth point alleged in corroboration of Ms
guilt ia, that, on Ms arrest by Sergeant Gem
mill, be gave a false name, denied having left
Washington recently, and said be had nothing
to do with tbe assassination. In tbe last state
ment be but told tbe truth. Assasaination and
murder were tbinga for which he was not by
nature intended, and be bad nothing to do with
it. As for giving a falae name, it appears tbe
Sergeant understood his name to be Atwood,
and had been ordered to arrest Atwood, and
finally aays he did not really understand- tbe
name, it was in German. Certainly he might
say he bad not left Washington recently. He
knew that he had been in a plot to capture the
President, and be knew that he had been a col
league of the President's murderer in another
scheme, and, of course, he waa afraid to confesa

hia part then and there. Any presumption of
guilt that might ariae from these oircumstancea
is negatived by Richter, his cousin, at whose
bouso be was staying. He tolls us that he
worked in tbe garden; saw tho neighbors; made
no attempt to escape, nor waa bu in an unuaual
frame of mind, lie waa, doubtleaa, in that
frarae of mind when ono, who had been on tbe
verge of being dragged into murder for gold,
had fled from the temptation and been aaved —
a happy and a tranquil mood. Finally, that be
atatcd to Metz, "Gen. Grant would have been
killed, if the man had followed that was to have
followed hira," is denied by the two brothers,
Loaman, who state he said; "That Grant, if be
was killed, must have been killed by somebody
that got into the same car" — an innocent and
most truthful proposition; and any remarks be
raade at that time about bis "Having more
trouble than be would ever get rid of," even
supposing the words bad not reference to the
love matters which immediately preceded it,
are by no means so much a sign of guilt as the
honest expression of fear, lest one who has
been a colleague in a leaser crime may get into
difficulty about a greater, of which be was in
nocent. Tho sixth point is, that Atzerodt said to
Fletcher, on tlie evening of the 14lb, after 10:
"If this thing happens to-night you will hear
of a present;" and also iu reference to the
mare: "She is good on a retreat;" and that tbe
Sunday before he said to Lieut. Keim, at the
Kimraell House, after finding bis knife; "If
one fails, I shall want the other." On tbe firat
occasion both parties bad been drinking, and
Fletcher says he thought Atzerodt half drunk,
wbile tbe other remark was raade after each
party bad taken three cocktails. So that, even
if we credit the drunken memories of tbe wit
nesses, we can not do more than ascribe it to
pot valor, pointing to tbe possible desperate
melee of an attempt to capture.
All tbe evidence to prove that tbe prisoner
was lying in wait to assassinate Mr, Johnson
may be summed up thus: On tbe sarae evening
that tbe President was assassinated he had a
room at the same hotel as tbe Vice-President,
in which were found arms and the name of tbe
President's murderer. He was before seen with
the murderer, and used expressions indicating
expectation of gold and the use of Ms arma,
and afterward be fled tbe city, and said be had
trouble on his mind. These circumstances are
nothing by themselves. Any friend of Booth's
raight have carried arras, stayed at tbe Kirk
wood, bad Booth's coat in bis room, said be ex
pected to be rich, and afterward said be bad
troubles. These things might have naturally
happened to John Ford, tbe manager of tbe
theater ; to Junius Brutus Booth ; to any other
friend of Booth's, innocent of the plot as tbe
babe unborn. These circumstances are only
important if it is proved that tbe person who
is involved in tbem either tried to murder
Mr. Johnson or was prevented. That proven,
tbe arms are tbe tools of murder, the coat the
coat of an accomplice, tbe talk of gold an ex
pression of intention, tbe talk of trouble a con
fession of guilt. But if it ia not ahown that an

804

THE CONSPIRACY TRIAL.

\

attempt was made to murder, or that it waa im
poasible to attempt murder ; aud if, on the con
trary, it is shown that there was every
opportunity for murder, and nothing in tbe
world to prevent it, then these ciroumatancea
lose all their force, and we are bound to be
lieve that where there waa every opportunity
and no attempt, there waa no intention and no
lying in wait.
Adopting the theory that Adzerodt intended
to murder, and lying in wait to murder,
we are met at every atep with denials. Thus,
if he was lying in wait, why did be not
stay at the Kirkwood House during tbe even
ing? Why did nobody see bim lie in wait?
Why did be come out of tbe Kirkwood at about
ten minutes after ten without having tried to
attack the Vice-President ? Why did be not
enter tbe room ? Why, at 10:20, was be drink
ing at the Kimmell House ? Why, in short, was
he riding about town instead of waiting outside
the Vice-President's room? There is only one
theory that will make everything agree : At
zerodt backed out. He would have liked the
money for capturing, but be did not like to be
hung for murder. He never heard of murder
before that evening at eight, or he would long
before have Md himself. When be did hear it
be bad firmness enough to object. Coward con
science carae to his rescue. But Booth threat
ened to kill, and be knew well enough be was tbe
raan to cloae tbe mouth of any one who troubled
bim. So be went off, driven like a poor frail
being between irreaolution and fear; took
drinks, feigned to be doing bis part, talked
valiantly wbile tbe rum was in bis throat,
promised gloriously, galloped around fiercely,
looked daggers, and when tbe hour struck did
nothing aud ran away. This, gentlemen, is tbe
history in a small compass — ve7iit, videt, fugit.
He tried to become a hero, but be was only a
coachmaker. Look at tbe face of this impoasible Brutus,
and see whether you can see therein that
he is — "For dignity composed and, high exploitB,"
Why, gentlemen, this hero, who, under the
influence of cocktail courage, would capture
Presidents and change the destinies of empires,
is tbe same fleet-footed Quaker, famous iu Port
Tobacco for jumping out of windows in bar
room fights ; an excellent leader. — of a panic,
this son of arms who buries bis knife in a gut
ter and revolves Ms revolvers into a greenback.
Well might it have been said to Booth :
" O, Cassius, you are yoked to a lamb
That carries anger as tho flint bears lire ;
Who much enforced sho-ws a hasty spark.
And straight is cold again,"
He has tbe courage of vanity and of folly.
As long as be could be aeen on intimate terms
with Booth about hotels, it did Ms soul good to
be so great a confederate ; and as long as be
could see a bold stroke by which he might sud
denly change tbe coachmaker into a prince, he
was, doubtless, brave. But when he heard of
murder, conceived to himself hia going into tbe
Vice-President's room and stabbing him to the

heart, tbe pigeon-liver asserted itself, the
prince was gone, and the habits of the tavern-
brawler re-appeared. Nor was he a natural
boaster. He was simply tbe Curius of the con
spiracy, who could neither keep his own secrets
nor those of others; who waa big with tbe por-
tentoua future, although be knew not what it
waa ; who exchanged hia wrath for a. sudden
prudence ; and so as be imitated hia prototype,
"Repente glorians maria moniesque polieeri ccepii,"
so he afterward imitated him by pointing out
Booth, and informing, under tbe promise of
mercy, upon bis fellows. There ia, then, no
evidence whatever that be waa "lying in wait
to kill Mr. Johnson, with the intent, unlawfully
and maliciously, to kill and murder him."
There is only one other clause of tbe specifica
tion that deserves notice — the allegation that
tbe lying in wait waa "about the same hour of
tbe night," viz.: Ten o'clock and fifteen min
utes, on the evening of the 14th of April. Let
us see, again, where tbe prisoner was at thia
time, i0:15. Fletcher says be came to Naylor's
stable at ten. He then asked Mm whether he
would have a drink. Fletcher said yes. They
went down to Tbirteen-and-a-balf and E street,
to tbe Union Hotel, and took a drink apiece;
went back to tbe stable, and had some conver
sation about tbe mare. Meanwhile tbe boy had
got tbe wrong horse, and had to go back and
get the mare. Then tbey bad aorae converaa-
tion about Herold. Then be rode down E, past
Tbirteen-and-a-half street, and finally carae to
the Kirkwood House. Fletcher says tbatbe rode
so slowly that be kept up with him. Now, believ
ing what is improbable, that Fletcher did keep
up with a man on horseback for three squares
(for from Naylor's to tbe corner of Tbirteeu-
and-a-balf and E streeta ia one square, to
Twelfth and E two squares, and to Twelfth and
Pennsylvania avenue three squares), we are
further obliged to believe that, in fifteen min
utes, Atzerodt ordered a horse, walked two
squares, waited for two drinks, paid for tbem,
held two conversations, mounted, dismounted,
bad a horse changed, and, afterward, rode three
squares so slowly that a hostler could follow
bim. It is not possible. At 10:15 Atzerodt
was either not yet at tbe Kirkwood House, or
else Mr. Fletcher made a mistake in his time.
His course after this was as follows : Fletcher
says be rode up D in the direction of Tenth ;
yet at this very time, about ten, McAllister
says be ci^gae with Ma mare to tbe Kimmell
House, "rode up to tbe door, and called the
black boy out to bold hia horae." Now, the
Kimmell ia on C street, near Four-and-a-half,
and, of course, when he rode down D he went
to tbe Kimmell.
Thus we now know what he was doing at the
time Payne waa at Mr, Seward's, and at the
time Booth shot the President. He was riding
round from bar-room tb bar-room; and it is
very plain he waa now in liquor. He waa half
tight when Fletcher saw bim, and yet took an
other drink with him. He went to the Kirk
wood and took another drink ; be -went to the
Kimmell and took another. Certainly, of get
ting drunk, of riding from tavern to tavern, of
guzzling like a Falataff, of having an inex-

ARGUMENT OF W. E. DOSTER.

tinguisbable thirst — of this be is guilty; but
of lying in wait for the President at 10:15, we
are paying him an undeserved compliment.
There is, therefore, no part of the specifica
tion proven, but the immediate contrary. Dur
ing tbe whole of that evening, as far as tbe evi
dence throws any light on his conduct, instead
of lying in wait near tbe Vice-President to
murder bim, be was standing over the different
bars, from the Union House to tbe Kimmell,
with the intent then and there, unlawfully and
maliciously, to make Atzerodt drunk. Thua
much of the specification.
There is one suggestion I will answer before
I leave the specification. Why, if be was ao
cowardly, so halting, so irresolute a character,
did Booth employ bim? Booth employed him
for an emergency which bo was perfectly com
petent to meet. In tbe plot of the capture, tbe
part assigned to tbe prisoner was to furnish the
boat to carry the party over tbe Potomac. For
this his experience in a seaport town fitted him.
TMs required no resolution and no courage.
For participation in tbe President's assassina
tion he could never have been intended. Booth,
as theae men all agree, as bis own conduct
shows, waa ambitious to carry off the glory of
tbia thing. Payne aaya Booth remarked, he
" wanted no botching with tbe President and
Gen. Grant." As for tbe rest, therefore, of the
Cabinet, be probably had no concern ; he was
far more interested in hia own part than in
othera. When be, therefore, told Atzerodt to
take charge of the Vice-Preaident, be must have
known that tbe prisoner bad not the courage,
and therefore did not care particularly whether
he accomplished it or not, only so be himself
could attain tbe desired immortal infamy. He
wanted Atzerodt as the Charon, tbe ferryman
of the capture, and, after the failure, reserved
him for greater things, the duties of Oreus, which
he was incompetent to perform.
Tbe charge is divisible into two separate and
distinct allegations. First, "For maliciously,
unlawfully, traitorously and in aid of the armed
rebellion against tbe United States, combining,
confederating and conspiring with Booth, Sur
ratt, Davis, etc., to kill and murder Abraham
Lincoln, General Grant, Andrew Johnson and
William H. Seward, on or before tbe 6th day of
March." The substance of this allegation ia, that aa
early as the 6th of March there was a project
on foot to kill the President and the heads of
State ; and, to involve the prisoner, it raust be
shown thai; as early as March 6tb be was ad
vised of and agreed to it. Now, what evidence
is there that there was a conspiracy to kill the
President as early as March tbe 6th? Chester,
the actor, says he knew of a plot to capture iu
tbe latter end of February. Weichmann, the
chief witnesa for the prosecution, statea that as
late as tbe middle of March — ^about the 16th or
18th, be thinks — about three weeka before the
assassination, John Surratt, Booth, Atzerodt
and Payne, took a ride into the country, armed,
and returned. What doea this show, but that
two weeka after the 6th of March it was tbe
intention of Booth to capture the Preaident at
th* Soldiera' Home, and abduct him ? Before
20

and during tho early part of March, Atzerodt
waa at Brawncr's Hotel, at Port Tobacco, and
could have known nothing of it, oven bad the
plot existed. As late as the 18th of March, as
was shown in the casea of O'Laughlin and Ar
nold, there was a project to capture, from which
tbey backed out. .'Vs late as the 18th of March
Booth admits tbe sale of horses, the detection
of parties, and fixes tbe time of tbe abandon
ment of the scheme. Payne aaid he never knew
of any plot to assassinate until tbe evening of
the 14th, at eight o'clock, at a meeting held at
the Herndon Houae, wbile Atzerodt confirms it
in all bis confeaaion, that tbe evening of tbe
14tb day of April waa tbe firat time be ever
heard of a plot to kill the beads of State. Tbe
only evidence against this is tbe testimony of
Norton, who declares that on the 8d of March,
Booth and Atzerodt spoke as follows : " If the
matter succeeded as well with Johnson as it did
with old Buchanan, tbe.party would be terribly
sold ;" from which it might be inferred that on
that date assassination was broached to Atze
rodt. Fortunately we know that this Norton ia
an egregioua falaifier, aa it waa shown that nei
ther Atzerodt nor Dr. Mudd was in Washington
that day, and be himself is proved not worthy
of being believed on oath.
Tbe prisoner, therefore, can not be found
guilty of tbe first raember of tbe charge.
Tbe second member of the charge is, in sub
stance, as follows: "For, on the 14th of April,
A. D. 1865, with John Wilkea Booth and John
Surratt, maliciously, unlawfully and traitor
ously assaulting, with intent to kill and murder,
William H. Seward, and lying in wait to kill and
murder Vice-President Johnson and Gen. Grant."
This charges Atzerodt with being an accom
plice of Payne in the assault on Mr. Seward, and
an accomplice of whoever was lying in wait for
Gen, Grant and Vice-President Johnson. Now,
it was proved beyond a shadow of doubt, under
tbe specification, that Atzerodt himself was not
lying in wait for President Johnson, nor was
anybody else shown to be lying in wait for
bim, Atzerodt is, therefore, neither principal
nor accessory to tbe lying in wait for Vice-
President Johnson. But was he not an accom
plice or accessory to Payne's assault of Mr.
Seward, or to Booth's killing of tbe President?
If ao, be muat have been accessory either be
fore the fact or after tbe fact. An accessory
before the fact is "one who, being at tbe time
of tbe crime committed, doth yet procure, coun
sel or command another to commit a crime."
Now, was Atzerodt tbe one who procured, coun
seled or commanded either Booth or Payne ?
Certainly not. The position Atzerodt held was
one of subordinate; he waa the procured, tbe
counaeled, tbe commanded, as far as we can
judge of tbe different characters, aa far as we
know that Booth was the ringleader ; as far as
we know that in all tbe dealings Atzerodt was
the slave, and Payne and Booth the masters.
Waa Atzerodt, then, acceaaory after tbe fact?
There is greater plausibility of this, but no
evidence. "An accessory after the fact may be
where a person, knowing a felony to have been
committed, receives, relieves, comforts or as
sists tbe felon." Did Atzerodt in any way help

306

THE CONSPIRACY TRIAL.

Booth or Payne after tbe felony was committed ?
No ; he never saw either of tbera after tbemeet-
ing at eight o'clock until be raet Payne on the
monitor. Instead of assisting them, be kept
getting drunk ; instead of helping tbem across
tbe river, tbe sergeant says only two passed tbe
bridge, viz.: Booth and Herold; instead of
showing by bis horse be had assisted, bis horse
came back Justin the same condition as it went
p.way, and that at eleven o'clock; instead of
comt'orting or relieving tbem across tbe river,
he went to Washington Briscoe, and finally to
bed at tbe Kimmell House, instead of receiving ;
he flrst told McPhail and "V'P"ells Booth bad gone
in the direction of Bryantown, and confessed
the whole affair, and had them all arrested. The
assistance be has rendered the assault and mur
der is such neither of tbe principals has any
occasion for gratitude; and, therefore, be can
not be found guilty of being an accessory after
the fact, neither helping Booth nor Payne. But
tbe prosecution have laid great stress on a big
bay horse, with large feet, and blind in one eye.
Tbey show that such a horse was found aad-
dled (near Camp Barry), and without a rider,
at twelve o'clock on the night of tbe asaassi-
nation. Tbey show that this horse was brought
to Naylor'a atable by Atzerodt and anotlier
man on tbe 3d of April, to be sold and kept
there until the 12tb of April; that on the 14th,
Atzerodt came to tbe stable again and said be
bad sold tbe horse in Montgomery county; that
Fletcher, the hostler, swears tbe horse, saddle
and bridle Atzerodt said be sold, are the
sarae found near Camp Barry. Well, what,
if this testimony be true, is the conclusion ?
One conclusion is, that Atzerodt told a lie ;
for how, if he sold this horse in Montgom
ery county on the 12tb, comea he to Camp Barry
on tbe 14th? Well, let ua concede that Atze
rodt lied. We are not trying Mra for bis ve
racity. He is not bound to tell every hostler
bow he disposes of his horses. But the second
conclusion tbe prosecution draws is, that
Payne rode this horse, and that Atzerodt fur
nished him tbe horse. Let us examine what
ground there is for tbe conclusion. According
to Fletcher, the horse when brought to Naylor's
in April did not belong to Atzerodt. He be
longed to tbe gentleman with him, who " left
bim in Atzerodt's care to sell." He was, there
fore, factor of the gentleman in tbe horse bus
iness, and took the horse away on the 12th.
Tbe negro who aaw the horae Payne rode, says
be was a "big bay, very stout." But waa this
horse not belonging to some one else ? Was tbe
horse found at Camp Barry ever ridden by
Payne ? Tbe truth of tbe whole matter is this:
The horse brought to Naylor's was bought by
Boothof Mr. Gardiner, Uving in Prince George's
county, in tbe latter part of last November,
according to tbe evidence of Thomas Gardiner.
On April 3d, Atzerodt went to Naylor's with
Booth, and was ordered to sell him there. Tbe
saddle and all belonged to Booth. It waa tbe
same big bay which Atzerodt, on tbe 12tb, tried
to sell to Matthew Pope, at tbe Navy Yard, for
Booth. On tbe 12tb, Atzerodt, not succeeding
in selling him, returned bim to Booth, and that
is the last connection that Atzerodt ever had

with tbe borse. He tried to sell, and could not,
and so gave bim back to Booth. Here ends the
brokerage and tbe responsibility of Atzerodt.
Whether Booth ever gave this borse to Payne,
and where be kept hira until that evening, are
questions that Payne alone can answer. It is
probable that this borse was kept for two days
in the stable in the rear of Ford's, and on that
nigbt given to Payne, But there ia no evi
dence that Atzerodt gave Payne a horae over
which he bad ceaaed to have control, and which
belonged to Booth. Oi tbe contrary, it is
shown that Atzerodt was never seen in com
pany with that horse after tbe 12tb, and never
claimed to be the owner. Any inference of
complicity, therefore, drawn from this borse is
turning borse-brokera.ge into murder. The
prisoner, then, being neither guilty as accessory
before nor after tbe fact, neither counseling nor
aiding Payne and Booth before, nor assisting
and receiving Payne and Booth after tbe fact,
can not be found guilty of any branch of the
charge. What is, then, tbe plain, unvarnished trulb
of Atzerodt's part in this conspiracy ? I will
briefly relate it. During tbe latter part of Feb
ruary, John Surratt and Booth wante,d a man
who understood boating, and could both get a
boat and ferry a party over tbe Potomac on a
capture. Surratt knew Atzerodt, and under
tbe influence of great promises of a fortune,
the prisoner consented to furnish the boat, and
do the ferrying over. Tbe plot was attempted
the 18tb of March, and failed. Booth, how
ever, kept Ms subordinates uninformed of hia
plan8,exceptitwa8 underatood that tbe President
waa to be captured. Meanwhile, everybody
was waiting for Booth. On the 18th of March
Atzerodt went to tbe Kimmell House. On the
1st of April he talked of future wealth. On
the 6th be spoke to Lieut. Keim, over their liquor,
of " using one, if tbe other failed." On the
12tb be stayed at tbe Kirkwood, and tried to
sell the bay horse at Pope's. On tbe 14th Booth
unfolded his plans at the Herndon House, and
Atzerodt refused. From the Herndon Houae be
went to Oyster Bay aud took drinks till ten.
At ten he took a drink with Fletcher at the
Union ; at ten minutes after ten be took adrink
at tbe Kirkwood ; at twenty minutes after ten
be took a drink at the Kimmell House, and rode
about the city. At eleven be returned<bis borse ;
at twelve be was at the Navy Yard ; at two be
went to bed. Next morning at five be got up
and went to Georgetown, pawned hia piatol, and
went to Mr. Metz' . On tbe 16th (Sunday) he
took dinner at Metz'. On Sunday evening ho
went to Hartman Ricbter'a. On the 19tb he
was arrested. Thus ends this history, which,
under a greater hand, might have become a
tragedy, but with the prisoner has turned into
a farce. Before I close, it is my duty to submit some
refiections as to the nature of tbe crime and
tbe nature of the penalty, in case you should
find him guilty, which I hold can not be done
under the evidence. This man is principal in
an attempt to abduct tbe Preaident of the
United Statea. He has assaulted no one ; be
has sheltered no one that did assault. He has

ARGUMENT OF W. B. DOSTBR.

307

killed no one, nor has he sheltered anyone that
did kill. You can, tberolore, only find hira
guilty of a crime for which be is not on trial.
If it be argued, that although tho prisoner ran
away, he intended to kill Mr, Johnson, the an
swer is, intention can only be inferred from
acts. " It is a universal rule that a raan shall
be taken to intend that wliich be does." Hide,
P, C, 229. And tbe convoj-se of this is true,
that a man shall not be taken to intend what
he does not do, Exteriora acta indicuni animis
secreia, 8 Co,, 146. And, therefore, as we know
he ran away we are bound to infer that he
bad no intention of murder. If it be argued
that, although neither guilty as accessory in
felony nor principal in treason, be is yet
guilty of the conspiring, which is the essence of
the offense, the answer is, tbe conspiracy in
which he was engaged is not the conspiracy
for which be is on trial; and that as soon as
be knew of the latter be hastened to dissolve
all connection with tbe conspirators.
Aa for tbe punishment, supposing he could be
found guilty of either the charge or tbe speci
fication, tbe offense, in either case Vfould only
be technical, and* have damaged no one ; and
even supposing be were proven guilty of tbe
charge and specification, be has already turned
states-evidence to the Provost Marshal, and
therefore his punishment would fall under tbe
practice usual in the courts of justice, that one
who confesses has an equitable right to tbe len
iency of tbe 'court. His case, however, rests
on no such slender ground. Instead of con
spiring to kill, he refused to kill; and instead
of lying in wait to murder, he intoxicated him
self at the appointed hour, and next morning
ran away. He is guilty solely bf what be con
fesses — of conspiring to abduct the President —
and of that can be found guilty only under a
new indictment.
I claim, therefore, at your bands an unqual
ified acquittal. That be did wrong in conspir
ing to capture, is admitted. That be should
be punished for it whenever tried for it, is also
admitted. But that he is innocent of both
charge and specification, aa now laid, is so
transparent, that bia acquittal will, I trust, be
urged by tbe Judge Advocate as a matter of
form, if it were not also a matter of justice.

STATEMENT BY GEORGE A. ATZERODT,
Read by his counsel, W, E, Doster, Esq,
The priaoner, Atzerodt, submits tbe following
statement to the Court :
I ara one of a party who agreed to capture
the President of tbe United States, but I am
not one of a party to kill the President of the
United States, or any member of tbe Cabinet,
or General Grant, or Vice-President Johnson.
The first plot to capture failed ; tbe aecond — to
kill — I broke away from the moment I beard
of it.
Thia ia the way it came about; On the even

ing of tho 14tb of April I met Booth and Payne
at tho Herndon House, in this city, at eight
o'clock. He (Booth) said be himself should
murder Mr. Lincoln and General Grant, Payne
.ibould take Mr, Seward, and I should take Mr.
Johnson. I told bim I would not do it ; that I
bad gone into tbo thing to capture, but I was
not going to kill. He told me I was a fool;
that I would be bung any how, and that it was
death for every man that backed out ; and so
we parted. I wandered about tbe streets until
about two o'clock in tbe morning, and then
went to the Kimmell House, and from there
pawned my pistol at Georgetown, and went to
my cousin's bouse, in Montgomery county,
where I was arrested tbe 19tb following. Af
ter I was arrested, I told Provost Marshal Wells
and Provost Marshal McPhail the whole atory ;
also told it to Capt. Monroe, and Col. Wells told
me if I pointed out the way Booth bad gone I
would be reprieved, and ao I told him I thought
be had gone down Charlea county in order to
cross the Potomac. Tbe arms which were found
in my room at the Kirkwood House, and a black'
coat, do not belong to me ; neither were they
left to be used by me. On tbe afternoon of the
14tb of April, Herold called to see me and left
tbe coat there. It is his coat, and all in it be
longa to bim, as you can see by tbe handker
chiefs, marked with hia initial, and with tbe
name of bia slater, Mra. Naylor, Now I will
state bow I passed tbe whole of the evening of
the 14th of April. In the afternoon, at about
two o'clock, I went to Keleher's stable, on
Eighth street, near D, and hired a dark bay
mare and rode into the country for pleasure,
and on my return put her np at Naylor's sta
ble. Tbe dark bay borse which I bad kept at
Naylor's before, on about tbe 3d of April, be
longed to Booth ; also tbe saddle and bridle. I
do not know what became of bim. At about
six in tbe evening, I went to Naylor'a again
and took out tbe mare, rode out for an hour,
and returned ber to Naylor's. It was then
nearly eight, and I told hira to keep the raare
ready at ten o'clock, in order to return ber to
tbe man I hired ber from. Frora there I went
to tbe Herndon House. Booth sent a messen
ger to tbe " Oyster Bay," and 1 went. Booth
wanted me to murder Mr. Johnson. I refused,
I then went to the " Oyster Bay '' on tbe Ave
nue, above Twelfth street, and 'wbiled away tho
time until nearly ten. At ten I got the mare,
and having taken a drink with the hostler, gal
loped about town, and went to tbe Kimmell
House. From there I rode down to tbe depot,
and returned my borse, riding up Pennsylva
nia Avenue to Keleher's. From Keleher's, I
went down to tbe Navy Yard to get a room
with Wash.Briscoe. He had none, and by the
time I got back to the Kimmell House it was
nearly two. The man Thomas was a stranger
I raet on tbe street. Next morning, as stated,
I went to my cousin Ricbter's,, in Montgomery
county. George A. Atzerodt.

.A-I^G-TJls/^Ensrx

DEFENSE OF LEWIS PAYNE,

W. E. DOSTER, ESQ.

3Iay it please the Court :
I. There are three things in the case of tbe
prisoner, Payne, which are admitted beyond
cavil or dispute ;
1. That be ia tbe person who attempted to take
tbe Ufe of the Secretary of State.
2, That he is not within tbe medical definition
of insanity,
3. That be believed what he did was right
and justifiable.
The question of his identity and the question
of bis sanity are, therefore, settled, and among
the things of tbe paat. The sole question that
remains ia, bow far shall Ms convictions serve
to mitigate bis punishment? I use the word
punishmentdeliberately, and with tbe conscious
ness that in so doing I admit that if be is a re
sponsible being he ought to be punished. And
I aay it, because I can not allow my duties as
counsel to interfere with my convictions as a
man so far as to make me blind to tbe worth of
tbe Ufe of a distinguished citizen, and tbe aw
ful consequences of an attempt to take it away.
If, indeed, such an attempt be allowed to go with
out rebuke, then it seema to me the office ia but a
perilous expoaure to violence ; then tbe highest
compensation for public aervicea ia tbe distinc
tion which follows assasaination, and then our
public aervants are but pitiable and defenaeless
offerings to sedition. And surely, if any public
servant deserved to be excepted from that fate,
it was be, tbe illustrious and sagacious states
man, who, during a long life of arduous serv
ices, has steadfastly checked all manner of fac
tious and public discontent ; who, in the darkest
days of discord, has prophesied tbe triumph of
concord, and who at all times has been more
ready to apply antidotes than the knife to the
nation'a wounds. How far, then, shall the con
viction of the prisoner that be was doing right
go in extenuation of bia offense ? That we may
accurately, and as fully as tbe occasion de-
jnanda, underatand tbe convictiona of the pria
oner, I invite your attention to asketcb of his life,
the customs under which he was reared, and tbe
education which he received. Lewis Thornton
Powell is tbe son of tbe Rev, Geo, C. Powell, a Bap-
.tist minister, at present auppoaed to live at Live
Oak Station, on the railroad between Jackaon-
ville and Tallabaaaee, in the State of Florida,
^nd was born in Alabama in tbe year 1845.
Beaides himself, his father had six daughters
308

and two sons. He lived for some time in Worth
and Stewart counties, Georgia, and in 1859
moved to Florida. At tbe breaking out of tbe
war, but four years ago, the priaoner was a lad
of sixteen, engaged in superintending his
father's plantation and a number of slavea.
We may safely presume that, occupied in tbe
innocent pursuits of country life, he daily beard
tbe precepts of tbe Gospel from his father ; that,
in tbe society of his sisters, tbe hardy life of a
planter was softened by tbe charms of a refined
and reUgious circle, and that, iu the natural
course of events, be would be to-day, as be waa
then, a, farmer and an honest man. But, in
1861, war broke out — war, the scourge and pes
tilence of tbe race. The signal, wMch spread
like a fire, was not long in reaching Live Oak
Station. His two brothers enlisted, and Lewis,
though but sixteen, enlisted in Capt. Stuart's
company, in tbe Second Florida Infantry, com
manded by Col. Ward, and was ordered to
Richmond. Let us pause a moment in thia narrative, and
consider what, in tbe eyes of thia Florida boy,
was the meaning of war, and what tbe thoughts
that drove bim from a pleasant home to the field
of arms. At another tirae I might picture to you
the scene, but too familiar, of bis taking leave ;
a mother, like tbe mothers of Northern boys,
shedding tears, less bitter, because she waa
dedicating a son to her country ; siste.ra, whoae
sorrow, lilie the sorrow of tbe sisters of Northern
boys, was alleviated with pride that tbey had a
brother in tbe field ; tbe father's blessing ; the
knapsack filled with tributes of affection, to be
fondled by distant bivouac fires, and the heavy
sigh, drowned in the roUipg of tbe drum. But tMs
is not a stage for effect. We know tMs wks
mistaken pride and sorrow in a mistaken cause,
though tbe object of them was a son and brother,
and we must not consider them, though the boy
was but aixteen when he launched on the terri
ble aea of civil war.
In tbe State of Florida were two aeparate
races — one white and the other black — of which
tbe one was slave to tbe other, arid Lewis be
longed to the race which was master. It was
a custom of this State for masters to whip their
slaves, sell tbem, kill them, and receive the con
stant homage which the oppressed offer to the
powerful. It was the cuatom of tMs State to
whip and burn men who preached againat the
custom. It was the custom to defend this insti-

ARGUMENT OF W. E. DOSTBR.

309

tution in meeting-housea, at poUtical gather
ings, in family prayera. It was the custom to
bunt fugitives with bloodhounds — even those
who tried to help tbem to freedom.
In this custom the priaoner waa bred ; educa
tion made it a second nature ; politicians bad
taught Mm to find it in the Constitution,
preachers bad taught bim to find it in tbe Bible,
the laws taught bim to regard it as property,
liabit bad made it a very part of his being. In
(be eyes of the lad, tbe war meant to abolish
this custom and upheave society from its foun
dations. His inheritance waa to be diaaipated,
liis vassals equals, hia lawa invaded, bia re
ligion confounded, bis politics a heresy, his
habits criminal. Hereafter, to strike a slave
was to be an aaaault, to sell one felony, to kill
one murder. For this, then, tbe lad waa going
to fight — the defense of a social system. That waa
tbe reaaon. It was a traditional political pre
cept of tbe State in which the prisoner lived,
that tbe State, like its elder sisters, had reserved
tbe right of divorcing itself at pleasure from the
Union, and that great as the duty of a citizen
might be to the Union, Ms firat duty was to
Florida. Schoolmasters taught that the rela
tive rights of State and Nation had been left
unsettled; politicians taught that tbe local
power was greater than the central, and iu sup
port of it men were sent to Washington. Tlie
war, in tbe eyes of tbe boy, meant to reverse
this, to Subordinate the State to the Nation, tbe
Governor to tbe Preaident, Tallahassee to Wash
ington City. And,tberefore,he was going tofigbt;
to defend State rights. That was tbe second reason.
It was a deep-seated conviction of the people
in this State that their blood and breeding
were better than the blood and breeding of
Nortbernera ; that tbey had more courage, more
military prowess, and were by nature superiors.
This conviction tbe war threatened to over
throw, this boast the war was to vindicate, this
superiority was, by the war, intended to be
proved. And tbia waa the third reason be was
going to fight — to show ihat he was a better man
than Northerners,
There was a frantic delusion among these
people that Northern men were usurping the
Government, were coveting their plantations,
were longing to pillage their houses, ravage
their fields, and reduce tbem to subjection. The
war was to defend mother, sister, home, soil,
and honor, and beat back an insolent invader.
TMs was the fourth reason — io repel invasion.
These were, in the mind of this lad, the incentives
to war. Let us not pass unnoticed bow he was
schooled in tbe instincts and morals of war.
Under the code of slavery we know that tbe
murder of a companion with a bowie-knife or
in a duel was an ipdex of apirit; the torture of
negroes evidence of a commanding nature;
concubinage with negroes a delicate compliment.
to wives ; spending wealth earned by other
men in luxuriance, cbivalric; gambling the
aweet reprieve for confinement to plantations.
Instead of morals had sprung up a code of
honor — perhaps a false, but aurely an exacting
and imperious cpde, that kept bowie-knivea in
the belt and pistols in the pocket, and had no
hesitation in uaing them when alavery was aa-

aailed, and a code that remembered friends and
never forgave enemies. Theae, then, were the
morala and inatincts of the lad — it is right to
kill negroes, right to kill abolitioniata ; it is
only wrong to break promises, to forget a
friend, or forgive an enemy ; and to do right
is to be ready with bowie-knife and pistol.
Now let me ask whether in the wide world
there is another school in which tbo prisoner
could so well have been trained for assassina
tion as in this slave aristocracy ? Tbe stealth-
iest Indian that ever shot from ambush was not
so well instructed in tbe social uae of bis knife;
the deadlieat Gbeber that ever strangled bis
victim had not tbe animosity which comes from
power in danger of losing its slaves, nor tbe
cheap regard for human life which comes from
trading in and killing slaves. All tbe horrible
acoomplisbmeuts of assaaaination, which Ma-
chiavel says are three — " fierceness of nature,
resolute undertakings, and having had one's
hands formerly in blood," are bia by religion, by
politics, by law, by education, and by custom.
Aud who is responsible for this training of the
lad? Standing, as we do to-day, at the end of
a four years, war, having just beard again re
cited tales of prisoners starved, cities infected,
cities burned, prisons undermined — things that
seem unparalleled in tbe barbarity of all ages
— and all by men who, four years ago, aat side
by side with us, and seemed no different, we
now know, what we never dreamt of, that this
ia tbe spirit of slavery, stripped of its disguise.
In rebellion we now recognize the master never
taught to obey ; in arson of cities we see again
tbe fagot and the stake ; in Libby and Ander
sonville we see again the slave-pen ; in cap
tures the bloodhound and tbe lasb; in assassin
ation tbe social bowie-knife and pistol; and in
thia prisoner the legitimate moral offspring of
slavery. State rights, chivalry, and delusion.
But who is to blame that be, with five millions
more, was so instructed, so demoralized, so ed
ucated to crime ? Is it his father and mother ?
They found their precepts in the Bible ; tbey
gave their son but the customs tbey bad them
selves inherited. Is it tbe society of Florida?
It waa a aociety that ruled tbia country until
within four yeara, and occupied the seats of
Government. Is it the laws of Florida ? Tbey
were but rescripts of tbe Constitution. Is it
tbe Constitution ? That is but the creation of
our forefathers. Who, then, ia responsible that
slavery was allowed to train assassins ? I
answer, it is we; we, the American people;
we who have cherished slavery, have compro
mised with it, have for a hundred years ex
tended it, have pandered to it, and have at last,
thanks be to God, destroyed it. Let us, then, not
shrink from our responsibility. If there be
any Southerner here who has sought to foster
alavery, he is in part father of tbe assassin iu
this boy. If there be any Northerner here who
has been content to live with slavery, he is also
in part father of tbe assassin in this boy. If
there be any American that has been content
to be a citizen of a slaveholding republic, he is
part father of tbe assassin in this boy. Nay,
all of us — such aa he is we have made bim —
the murderous, ferocious, and vindictive cMld

310

THE CONSPIRACY TRIAL.

of by-gone American Constitution and laws.
And what is to be tbe fate of our offspring ?
Let us aee. That it is criminal, let us reform
it; that it is deluded, let us instruct it. But let
us not destroy it, for therein we punish others
for our own crimes. Let tbe great American
people rather speak thus; "For twenty years
v,e have sent you to a wicked school, though we
knew not tbe wickedness thereof, until our own
child rebelled against us. Now we have torn
iLOwn tbe school- bouse and driven out tbe mas-
ler. Hereafter you shall be taugfit in a better
school, and we will not destroy you, because
you learnt but as instructed."
II, But there ia another school before him —
the school of war. At Richmond his regiment
joined the array of Gen. Lee, and was joined to
A. P. Hill's corps ; with it he shared the fate of
tbe rebel army, passed through the Peninsular
campaign, tbe battles of Chanoelloraville and
Antietam. Here be beard that bia two brothers
were killed at Murfreesboro. Finally, on tbe
3d of July, 1863, in tbe charge upon the Federal
center, at Gettysburg, be was wounded, taken
prisoner, and detailed aa a nurse in Pennsyl
vania College Hospital.
Let us pause again to consider the effect of
two years' campaigning as a private in tbe
army of Gen. Lee upon the moral nature of tbe
accused. He was one of that array who made
trinkets and cups out of the bones of Union
soldiers — an army where it was customary to
starve prisoners by lingering agonies, which
supplied its wants by plundering tbe dead,
which slew men after surrender, that was com
manded by officers who bad violated their sacred
oaths to the United States, and who taught their
subordinates that such violation was justifiable;
an army who were taught by Jackson that God
was tbe champion of their cause ; an army that
held the enemy in questof "booty and beauty;"
an army which believed no means that helped
the cause of Southern independence unjustifi
able, but glorious ; an army who for two years
explained victory by tbe righteousness of the
cause — finally, an army that held tbe person and
Cabinet of tbe President in holy execration.
Surely be could not paaa through these two ter
rible years without being in bis moral nature
tbe same as tbe army of which he formed a
part. He is now eighteen, and the last two
years have formed his character. He also ab
hors tbe President of tbe Yankees; be also be
lieves that victory comea beoauae God is juat;
he also believes that nothing ia bad so tbe South
be free ; he also regards a Federal as a ravisber
and robber; be also prays with Jackson to God
for the victory. He further believes in Heaven
and General Lee; dresses himself in the clothes
of Union dead; stiands guard over starving pria-
onera ; alao has bis cup carved out of some Fed
eral skull. Besides, be has learned the ordinary
soldier's lessons, to taste blood and like it; to
brave death and care nothing for Ufe ; to hope
for letters and get none ; to hope for tlie end of
the war and see none ; to find .n victory no
more than tbe beginning of another march ; to
look for promotion and get none; to pass from
death and danger to idleness and corruption; to
aak for furlougba and get none, and finally, to

deapair, and hope for death to end Ma Bufferings.
Tbe slave-driver has now become u, butcher;
tbe slaveholder a pillager; he who found divine
authority to support slavery in sermons now
finds it in action; be who was led by fanatical
politicians is now led by fanatical generals;
and be who bad once only tbe instincts, has
now the practice and habit of shedding North
ern blood. These two years of carnage and
suffering, from aixteen to eighteen, when tbe
character is mobile and pliable, and which he
would have naturally spent at college among
poets and mythologies and tutors, are spent on
picket, with fierce veterans, in drunken quar
rels, with carda, with oaths, in delirious charges,
amid shot and shell, amid moaning wounded
and stinking dead, until, at eighteen, be has the
experience of a Cambronne, tbe ferocity of an
Attilla, and tbe cruelty of a Tartar. This, gen
tlemen, is tbe horrible demoralization of civil
war. It makes loyalty a farce, justifies per
jury, dignifies murder, instills ferocity, scorns
religion and enjoins assassination aa a duty.
And whose fault is it that be was so demoral
ized, and so educated in public vices, instead
of public virtues, on tbe field of war ? Let us
be juat, and not shrink from tbe inquiry. Was
it our forefathers who sowed tbe aeed of diacord
in the charter of Union ? If so, then let their
memories pay the penalty ; but spare the fruit
which has involuntarily ripened in the heart
of this boy. Was it the Southern leaders?
Then let tbem pay tbe penalty ; but spare their
ignorant and misguided tool. Was it Generals
Lee and Jackson and Hill, who were bis imme
diate models and tutors in crime ? Then pun
ish them; but spare their pupil. Was it, per
haps, fanatical malcontents among Northern
men who first lighted the torch of war ? Then
extirpate them from tbe land ;' but spare tbe
boy whose passions cauglit fire, and burnt until
tbey consumed him. Rest, then, tbe responsi
bility of this war with whom it will — with tbe
living or dead, with tbe vicissitudes of things or
in tbe invisible plans of God — it is not with this
plastic boy, who cameinto tbe world in the year
of tbe annexation of Texas, has lived butfourad-
rainistrations, and is younger than the last com-
proraise with slavery. He is the moral product of
the war, and belongs to tbem who first began it.
Now, I hear it said, true, tbe boy has been a
rebel soldier, and we can forgive him; but we
can not forgive assassina. Let ua, for a mo
ment, compare a rebel soldier with tbe prisoner,
and see wherein tbey differ. The best rebel
soldiers are native Southerners. So ia be. The
beat rebel soldiers have for four years longed
to capture Washington, and put its Government
to the sword. So has be. The best rebel
soldiera have fought on their own book, after
the fashion of the provincials during tbe Revo
lution, finding their own knives, their own
horses, their own pistols. So has he. The bet, 1
rebel soldiers have fired at Mr. Lincoln and
Mr. Seward, have approached tbe city by stealth
from Baltimore, and aimed to destroy tbe Gov
ernment by a audden blow. So has be. The
best rebel aoldiers have picked off high officera
of tbe Government — Kearney, Stevena, Baker,
WadSworth, Lyon, Sedgwick. So has he.

ARGUMENT OF W. E. DOSTER.

311

What, then, baa he done that every rebel
soldier baa not tried to do? Only this: bo baa
ventured more; he haa shown a higher courage,
a bitterer bate, and a more ready aacrifice; he
has aimed at the bead of a department, instead
of the bead of a corps; he has struck at the
bead of a nation, instead of at its limbs; be
has struck iu tbe day of his humiliation, when
nothing was to be accomplished but revenge,
and when be believed he was killing an op
pressor. i\s Arnold Vinkelried was braver
than all tbe combined legions of Switzerland,
when he "Felt aa though himself were he
On -whose sole arm hung victory;"
as Leonidas, who threw himself in the gap of
Thermopyla), was braver than all tbe Grecian
hosts; as Mucius Seaevola was tbe bravest of
the Roman youth when be approached Porsena
with intent to assasainate, and said: "Hostis
hostem occidere volui; nee ad mortem minus animi
est, quam fait ad ccedem, Et facere et paii fortia,
Romanum est;" ao was this youth braver than
all the rebel hosts when be carae to offer up bis
life by killing tbe chief of the enemy.
As Harmedius aud Aristogeton were more
careless of their lives than the rest of tbe
Athenian youth when tbey killed Hippias and
Hipparcbua, as Brutus said on the market
place; "As I slew my best lover for the good of
Rome, I have the same dagger for rayself when
it shall please my country to need ray death;"
so was this boy more ready to offer up his Ufe
for what he believed to be tbe good of his coun
try. And as Gerard was the bitterest Catholic
of tbe Netherlands when be slew tbe Prince of
Orange; Ravaillac tbe bitterest enemy of the
Protestants when he slew Henry IV,; as Jacques
Clement was tbe bitterest Catbolic when be
killed Henry III; as Orsini was tbe most bitter
Italian when be tried to kill Louis Napoleon,
so this boy, remembering bis two slaughtered
brothers, waa the bitterest Southerner of all
that defied tbe Government.
Courage, then, martyrdom, inextinguishable
bate for oppression, are bis sins. Now, if
courage be a crime, then have you and I, and
all of us, who have braved death, been criiiv
inals? Then are tbe emblems of valor, which
a grateful country has placed upon your shoul
ders and breasts, but marks of crime. Is
readiness to be sacrificed for tbe coraraon good
a crime? Then are tbe millions of heroic youths,
who have left the plow and girded on tbe sword
for four years, but criminals; then is our ban
ner but the flag of crirae; then are our battle
fields but loathsome scenes of general fratri
cidal raurder. Ia, then, undying hatred for
what is believed to be oppression a crime?
Then was our Revolution but successful crime.
Then were the struggles of Tyrol, of Hungary,
of Venice, of Greece, but unsuccessful crimes.
Then was Byron a traitor to Greece, Garibaldi
a traitor to .Vustria, Kossuth a traitor to Aus
tria, Hofer a traitor to Austria, and Washing
ton a traitor to England. Mark, throughout
tbe history of tbe world, there is no lesson
taught in clearer language than that tbe noblest
deed of men ia to free tbe world of oppreasora.

But I bear a student of history reply: True;
but tbey must have been oppressors. Granted;
but who is to be tbo judge? There can be no
ono but tbo assassin himself. It ia be, and he
only, who takes the risk of becoming a deliv
erer, or a foul and parricidal murderer. Let
us, then, see what these people were, againat
whom he aimed bis blow aud what tbey ap
peared to Mm, In truth, if you seek for char
acters in history, you will find none further
removed from tbe oppressors than our late Presi
dent and the Secretary of State. The one was
the great emancipator, tbe deliverer of a race
from bondage, the great salvaior, tbe deliverer
of a nation from civil war. The other was the
great pacificator, the savior from foreign war,
tbe unit.er of fa'ctions, the constant prophet and
messenger of good will and peace. TMs is
how tbey seemed to us ; but auch were they not
in the eyes of tbia boy, or of five millions of
his fellow-countrymen. To tbem, tbe ono ap
peared a usurper of power, a violator of laws,
a cruel jester, an invader, a destroyer of life,
liberty and property ; the other a cunning time-
server, an adviser in oppression, and a slippery
advocate of an irrepressible conflict. These
Southern men bad long borne power, and, in
their obscurity, felt the envy for greatneaa
which once cried:
" Te gods I it doth amaze us,
A raan of such a feeble temper should
So pot the start of the majestic -world
And bear the palm alone."
,;= * * * ft
" Why man, ho doth bestride the narrow world
Like a colossus, aud we petty men
Walk under his huge lege, and peep about
To find ourselves dishonorable graves."
Tbia waa bis idea of Mr. Lincoln and Mr.
Seward. TMs was what be beard in Florida,
among tbe village politicians. This was what
he read in tbe Richmond papers, in tbe orders
of tbe generals, in tbe gossip of tbe camp-fire,
in the letters that he got from home. Every
farmer by whose well be filled his canteen told
him that; every Southern lass that waved her
handkerchief toward Mm repeated it; bis mother
in mourning told it; every prisoner returned
from Northern prisons told it; every way aide
cripple but confirmed it. Lincoln, the op
pressor, was in tbe air, it was in the echo of the
drum, it waa in the whizzing of tbe shell, it
came on every breeze that floated from the
North. Wonderful was bis error; strange, in
deed, is it that charity and Uberty should be
thus misconstrued. Let us, tben,jfemeraber that
if be was wrong he erred on the side of courage,
on the side of self-sacrifice, and on tbe side of
hatred to what he believed to be oppression;
that be differs frora tbe Southern array simply
because he surpassed it in courage; that be
differed from a patriot and a martyr, simply
because be was mistaken in Ms duty.
If, then, you praise men because tbey kill
such as they believe oppressors, you must praise
him; if you praise men who are ready to die
for their country, you will praise him; and if
you applaud those who show any courage su
perior to tbe res t of mankind you will applaud bim.
III. But there is a third school before him.
From Gettysburg he was aent to West Building

312

THE CONSPIRACY TRIAL.

Hospital, Pratt street, Baltimore, and remained
until October, 1863, when, seeing no hope of an
exchange, he deserted for his regiment, and,
walking through Winchester, met a regiment
of cavalry at Fauquier. Not being able to get
through our lines, be was joined to tbia arm of
tbe service, and remained in that service until
January 1, 1865. On that day, as we see by
the narrative of Mrs. Grant, he saved tbe lives
of two Union soldiera. About the sarae time
be, like many of tbe Southern soldiers, began
to despair of the Confederacy, came to Alex
andria, sold his borse, gave hia name aa Payne,
took the oath of allegiance aa a refugee from
Fauquier, went to Baltimore, took a room at tbe
bouse of Mrs. Branson, tbe lady be bad met at
Gettysburg, and resolved to waft for tbe return
of peace. Now, let us see what be learned in
the third school.
The rebel cavalry of Northern Virginia, as
we now know, was considered, in tbe Southern
army, tbe elite of their horsemen. Dismounted
cavalrymen of tbe army of tbe Potomac were
sent to Northern Virginia, re-mounted and
then returned to their comraands. In the spirit
of war, however, they differed materially from
the rest of the Southern forces. First, tbey
came intimately in contact with tbe people of
Loudon and Fauquier, who bad suffered most
from tbe war, and whose hatred of Northern
troops was more bitter, so that tbey fought
rather from personal hate, and in individual
contests, than from political sentiments, and
in battle. Accordingly, whatever edge of acri
mony was wanting in tbe temper of Powell be
gained at tbe houses of ruined slaveholders in
Leesburg, Aldie, Middlebnrg, and Uppervillc.
It was also the custom of those soldiers, and
esteemed honorable from their stand-point, to
capture quartermasters and paymasters, lie
in wait for bearers of dispatches and import
ant generals, and to make sudden attacks and
hurried retreats. Accordingly, if be wanted a
certain feline intrepidity in planning and es
caping — a capacity to approach by stealth, exe
cute with rapidity, and hurry off before bis
victims had recovered from their consterna
tion — we may well believe that he learned it in
this third school. And who ia responsible for
tbe third school ? His Colonel? Then let bim
be punished. His Captain? He is now at lib
erty. General Lee ? Then let him abide tbe
consequences. Jefferson Davis, who commis
sioned tbem ? Then let tbe blow fall on him,
Tbia boy com^^ here with no marvellous spirit
of fury, that we should wonder and aay, where
haa be learnt all this? Where among men are
savages formed like thia ? He comea liere fresh
from Northern Virginia, with all its sorrow and
all its bitterness. On tbe tablets of bis mem
ory are written curses of many a ruined mas
ter; in bis ears are ringing tbe cries of women
and children, and the moans of dying men.
Before bis eyes are visions of burning barns,
ravaged fielis, a people prostrate, bumble,
starving, homeless — a land once beautiful, now
a barren waste, peopled by famine, disease, and
ruin — and these have brought him here to seek
a quick revenge. We know that we have done
theae things righteously, with malice to

ward none, for tbe salvation of the State and
for liberty. But tbe wail of woe and lainen-
tation is not tbe less piercing ; the thirst for a
dire, bitter and consuming revenge, is not tbe
less keen. As the woes of Normandy brought
Charlotte Corday to tbe chamber of Murat, as
tbe humiliations of France brought Louvel to
the side of tbe Duke de Berri, as tbe ravages
in Tburingia brought - Stapps to Napoleon at
Scbonbronn, so is tbe prisoner at tbe bar tbe
messenger of Virginia's sorrow and bitterness
to tbe chamber of tbe Secretary of State. And
how are we to meet those woes and bitterneaa
and their deluded measenger? In anger?
That were only to confeas that we were wrong
in infiicting tbem. No; rather let ua say,
" What we have done was more in love than in
bate. Let us forget tbe past. For your sor
rows there is sympathy — ^for your bitterness
there is charity. Frora henceforward let there
be peace, and let the great aacrifice which we
have paid you make ua forever even."
IV. But there is a fourth school before him —
tbe school of necessity.
Arrived at Baltimore and having taken up
bis residence with Mrs. Branson, he looked
around for something to do. He bad no trade
or profession. Tbe period in which he would
have learned one was spent in the army; and
we know how abhorrent it was to men of tbe
South to engage in manual labor; and as his
hands attest, he has never engaged in any.
Accordingly, in perplexity about bis future —
for tbe little money be got for his horae was
fast going — be whiled away the time in read
ing medical books and brooding in his cham
ber. Wbile in tbia condition, unable to get
horae, unable to see bow be was to live at Bal
tiraore, the fracas occurred by which be was
arrested, brought before tbe Provost Marshal,
and ordered north of Pbiladelpbia.
Picture to yourself the condition of tbia un
fortunate victim of Southern fanaticism, sud
denly again caat into tbe street and exiled from
Baltimore, a stranger, sundered from his only
friends, in a strange land. He thinks of Ms
own home in far-off Florida, but between bim
and it are a thousand miles and a rebel army
on whose rolls he ia a deaerter. He thinks of
rejoining that army, but between bim and it is
a Union army. He thinks of tbe unknown
North into which be is banished, but bis fingers
refuse tbe spade ; be thinka of a profession, but
the very dream of one is now a mockery; he
thinks of going where no one knows Mm, but
be fears that after all tbe curse of aeceaaion
will follow him; be thinks of eluding tbe au
thorities and staying at Baltimore, but then
be is afraid of compromising bis frienda, and
leavea them. Everywhere the sky is dark.
Among Northern men he is persecuted, for he
is a rebel; among Southern men at Baltimore
he is despised, for he is a recreant Southerner;
among Southern men at home be is a by-word,
for be is a deserter. Tbe earth seems to reject
Mm, and God and mai^ to be against Mm.
Now, if there be any man in this Court who
has ever wandered, penniless, houseless, friend
less, in that worst of solitudes, tbe streets of
a atrange city, with hunger at his stomach, and

ARGUMENT OF W. B. DOSTER,

313

a great sense of wrong at his heart, in rags,
and theae very rags betraying bim aa a thing
to be despised and spurned ; afraid of meeting
at every corner the peering eyes of a Govern
ment detective ; too proud to beg, and, when
hunger overcame pride, rejected with a frown,
that man will understand bow tbe prisoner
felt in the beginning of March, 1865. If there
be any man who has ever been hunted down by
misery in hia youth, and before much sorrow
bad made tbe burden easy, until he wondered
why be was born, and hid Ma face in bia banda,
praying to God to end Ma pain forever, be alao
can underatand bow, in tbe fulneasof suffering,
he has been brother to the accuaed.
Well, indeed, had it been for bim if some
angel of mercy bad on that day, as be wan
dered a hungry specter through the streets of
Baltimore, with flashing eyes and disordered
hair, stretched forth ber band and said: "Here
is bread ; take, eat, and live." A loaf of bread
might have saved bim ; a single word of kind
ness might have saved bim; tbe gracious lick
of a friendly dog might have saved tbe glow
of a once generous heart from going out for
ever. We have all, my friends, bad these turn
ing points in our Uvea, and we all reckon back
to a time when we stood in tbe midst of gloom,
and suddenly it was glorious day, for we found
a plank and reached tbe shore. His Creator,
in His inscrutable wisdom, thought it good there
should be no ray of light, no beckoning hand,
no hope for the prisoner. Perhaps it bad been
better if be had dragged himself to tbe pier
and ended bis career in suicide. It waa ordered
that Ms very weakneas ahould make bim the
prey of a human devil. We can already fore
see the consequencea. He is desperate, anxious
for death, only be is a soldier, and be will not
die ingloriously, after having faced death an
hundred times. He is pursued by tbe Govern-
'ment in which be bad confided, and for which
he bad deserted hia own; pursued, tracked, fol
lowed like an outlaw among mankind. He
will show that Northern Government that be is
not a dog, and that Southern Government that
be ia not a traitor; and give him but a chance,
and he will, with one stroke, pay off tbe scores
he owes tbe abolitionists, restore himself in tbe
eyes of bis comradea in arms, and throw him
self into tbe arms of a pitiful eternity.
And who is to blame that he waa urged to
deaperation and conaequent revenge ? I an
swer, thia civil war. The civil war took him
from tbe magnoUas and orange groves of Flor
ida, and left bim a waif upon tbe pavements of
a Northern city. Tbe civil war took tbe inde
pendent farmer from bis fields, and left Mm a
beggar among strangers. The civil war took
bim from honest pursuits and professions, and
left him to make bis living without any other
accomplishments than dexterity in murder.
The civil war forbade him a horae among
Northern men, after it had taken bim away
from bis home in the South. The civil war
made Mm an outcast and a fugitive on the face
of the earth ; took the bread out of hia mouth,
and gave him tbe alternative of dying ob
scurely by bis own hand, or notoriously by tbe
death of a public officer.

V. The education of our farmer's boy is now
complete. IIo haa been in four achoola. Slavery
baa taught him to wink at murder, the South
ern army lias taught bim to practice and juati
fy murder, cavalry warfare has taught him to
love murder, necessity haa taught him reaolu-
tion to commit murder. He needs no further
education ; hia four terras are complete, and he
graduates an assassin I And of tbia college
we, tbe re-united people of tbe United States,
have been tbe stern tutors, guides and profeaa-
oi's. It needa now only that aome one ahould
employ bim.
I need not puraue this dolorous history fur
ther. You know the rest. If you did not know
it, you could infer it from what has gone be
fore. That he should meet Booth at Barnum's
Hotel, enter into bis plans eagerly, and execute
tbem willingly, are matters of courae. Tbatbe
should care nothing for money, but only for re
venge ; that he should bate the Lincoln Gov
ernment Uke a slaveholder ; that be should en
ter tbe bouse of a cabinet officer like a guer
rilla ; that he should try to murder, and justify
his murder Uke a Southern aoldier ; that he
should then give bimself up willingly, as one
who exchanges tbe penalties of assassination
for suicide ; that be should sit here like a
statue, and smile aa one who fears no earthly
terrors, and should tell tbe doctors, calmly and
stoically, that he only did what be thought was
right — all these things are as certain to follow
as use, education and employment neceasity.
Now, in considering tbe condition of Powell
at this crisis, I do not ask you to believe he was
insane. That is a declaration of mental dis
ease of which I am no judge. I only ask you
to believe that he was human — a human being
in the laat stage of deaperation, and obeying
aelf-preservation, nature's first law. It is ac
knowledged by all that the possession of reason
only makes man responsible for crime. Now,
there are two ways in which reason ia van
quished. One is when tbe pasaions raake war
againat reason and drive her from ber throne,
which is called insanity. Another is when the
necessities of tbe body overcome the suggestions
of tbe mind, a state in which the reason is a
helpless captive. And if you find that wbile
his reason was so in captivity, be surrendered
to temptation, I am sure you will set it to the
credit, not of reason, but of tbe body, whose
wants were imperioua wbile there was yet no
reason in it, in childhood, and which will again
exiat without reason after death.
At tbe beginning of tbe war, Powell, one
nigbt, secured a pass and went to the theater at
Richmond. It was the first play that Powell
ever saw, and be was spellbound with that mag
ical influence wielded by tbe stage over such,
to whom its tinsel is yet reality. But he was
chiefly attracted by the voice and manner of
one of tbe actors. He was a young man of
about twenty-five, with large, luatroua eyes, a
graceful form, features classical and regular as
a statue, and a rich voice that lingered in the
ears of those who heard Mm. Although only a
private soldier, Powell considered bimself the
equal of any man, and after the play was over
sought and gained an introduction to the actor.

814

THE CONSPIRACY TRIAL.

Never were two natures thrown together so dif
ferent, yet so well calculated, tbe one to rule,
the other to be ruled. Tbe soldier was tall,
awkwark, rough, frank, generous and illiterate.
The actor was of delicate mold, polished, grace
ful, subtle, ivith a brilliant fancy, and an
abundant stock of reading. Each was what
the other was not, and each found in tbe other
an admirer of tbe other's qualities. Tbe actor
was pleased to have a follower so powerful in
his muscles, and Powell was irresistibly drawn
to follow a man so wondrously fascinating and
intellectual. Tbey saw enough of one another
to form a close intiraacy, and confirm tbe con
trol of tbe actor over Powell, and parted, not to
meet for nearly four years.
In the twilight of that memorable day in
March, which I have described, Powell was
dragging bimself slowly along tbe street past
Barnum's Hotel^a poor creature overcome by
destiny. Suddenly a familiar voice hailed him.
Looking up the steps, be saw tbe face of tbe
Richmond actor. Tbe actor on his side ex
pressed astonishment to find Powell in such a
plight — for tbe light in tbe eyes of a desperate
man needs no translation — and in that distant
city. Powell answered bim in few words
" Booth, I want bread— I am starving." In or
dinary circumstances, I do not doubt but Booth
would have said, comeinand eat; but justnow
he was filled with a mighty scheme, for he had
just been to Canada, and was lying in wait for
agents. So be did not give bim to eat ; be did
not tell him to go and die, but he seized with
eagerness upon this poor man's hunger to wind
about bim his accursed toils, saying, "I will
give you as much money aa you want, but first
you must swear to stink by me. It is in tbe
oil business." An empty stomach is not cap
tious of oaths, and Powell then swore that fa
tal oath, binding bis soul as firmly to Booth as
Faust to Mepbistopbeles, and went in and.
feasted. Next morning Booth gave bim money
enough to buy a change of clothing and keep
him for a week. Powell now became anxious
to know what plan it was that was to make
Mm rich, but Booth answered evasively that it
was in the oil business. He knew well enough
that be bad to do with a desperate man, but be
knew, also, that any proposition of a guilty
character might as yet be rejected. He must
get full control of this desperate tool, and instil
into bis nature all tbe subtle monomania of bia
own. Accordingly be proceeded to aecure ev
ery thought and emotion of Powell. With a
maater pencil he painted before tbe eyea of this
boy tbe injuries of tbe South and the guilt of
her oppressors. He reminded Mm of devastated
homes, negroes freed, women ravished, tbe
graves of his brothers on a thousand hillsides.
He reminded bim that he was a traitor to the
Southern cause, and that it waa neceasary be
should regain tbe favor of his country. He
pointed out to him his desperate condition — a
fugitive from bia frienda, and an exile among
strangers. He touched him upon Ma pride, and
showed Mm how be was born a gentleman, and
ought to live as a gentleman. He touched upon
his helplessness, and showed him that there was
no hope for him, in peace or war, in heaven or

earth, except by rendering a great service to
tbe South. He touched upon bis melancholy,
and said if be must die, he ahould ofler up Ms
Ufe in a manner that would bequeath bia
name as a blessing to posterity. Powell now
awoke from tbe depth of despair to the highest
pinnacle of agonized excitement. It was as it
he had been breathing that subtle Eastern poi
son, wherein the victim sees swimming before
bis eyes a vision of more than celestial felicity,
but far off and unattainable. What wonder be
swam in dreams of delicious pain ! Instead of
that former melancholy, be felt an eager desire
to live. Instead of that long torpor, be felt all
tbe old wounds bleeding again, and burned to
avenge the South, Instead of laboring like a
negro, be aaw a vague vision of rolling in
boundleas wealth. Instead of being cursed by
bis kinsmen, be waa fired with zeal to be cber-
iabed as one of her chief martyra. Instead of
being the toy of fortune, be dreamed of being
ber conqueror. But yet be saw no avenue to
all this, and, spell-bouud as he was^turned to
bis tormentor, who held him as firmly aa ever
Genii did their fabled imps, for tbe explana
tion, for the means and quick road to happiness.
Booth saw his victim was ready, and hastened
to impart bis mysterious plans. Tbe first plan
was to go to Washington, take a ride with con
federates, on horseback, to the Soldiers' Home,
capture the President, and deliver him to the
Rebel authorities. This failed. Tbe aecond
plan waa to kill the heads of tbe State — a plan
first broached to Payne on tbe evening of the
14tb of April, at eight o'clock.
Booth, on the evening of the 14th, at eight
o'clock, told bim tbe hour bad struck ; placed in
bis bauds tbe knife, tbe revolver, and tbe bogus
package of medicine ; told bim to do bis duty,
and gave Mm a horse, with directions to meet be
yond the Anacosta bridge; and he went and did
tbe deed, I have asked why be did it. Hia
only anawer is ; "Because I believed it my duty."
VI. Now, let us not be deceived by the spe
cial name of assassination, and confound it
with tbe conscientious killing of what is be
Ueved to be an oppressor. When we read of
assassination we involuntarily bring to mind
examples of men hired by statesmen to make
away with princes. There is tbe Italian per
fumer, Rogeri, of Catherine de Medici ; there ia
Orloff, of Catherine, and Alexander, of Russia ;
we tliiuk of tbe tools used by Tiberius, by
Richard III, Philip tbe II, by Mary of Scotland,
by Louis Xt, and our minds are filled with as
sociations with State murders accompliahed by
tigers in human shape killing for gdld.
But there ia another type of aasassination
and of so-called assassins. That comes to pass
when a fanatic, religious or political, deems
it bis duty to offer up bis life in exchange for tbe
life be believes to be a public enemy. This is the
Sand of Kotzebue, tbeCordayof Murat, tbe Count
Ankeratroem of Gustavus III, tbe Brutua of Cse-
aar, tbe Gerard of Orange, tbe Ravaillac of
Henry IV — men who may ally themselves with
others, but who receive their orders immediately,
aa they believe, from God himself.
Tbe first order kills for money^ it is hired
by princes, it would for money kill Hs em-

ARGUMENT OF W. B. DOSTER.

815

ployera, it uses concealment, it ia ashamed, it
strikes in masks and dominoes, and when
caught gives way to despair. Not so the sec
ond order. It glories in ita deed, it goes joy
fully to its own death, it has commandments
from Heaven, it stabs without changing its
dress, it makes no eft'ort to escape, it gladly de
livers itself up ; on trial it is composed as on
tbe eve Of triumph, it justifies its crirae, it
makes no defense, and longs for death, saying,
in tbe words of Corday, " To-morrow 1 hope to
meet Brutus and the other patriota in Elyaium."
It needa no argument to abow to which claaa
the prisoner belongs. He did, indeed, consort
with others, but be lent Ma ear only, aa one
ivould say :
" "What is that you -would impart to me ?
If it be aught toward the geueral good
Set honor iu one eye and death in tho other,
And I will look on both indifferently ;
For, let the gods so speed mo, as I love
The name of honor more than I fear death."
You have not shown that any gold has soiled
his motive. You have shown that be gained
frora others plans, raade with thera agreements
of time and place ; but the motive, tbe spirit,
tbe self-sacrifice, tlie courage, tbe justification,
the longing for death is all bis own. He alone
saya be thought it was bis duty.
I say be is the fanatic, and not tbe hired
tool; tbe soldier who derived Ms orders from
conscience, and who, in the applause of that
tribunal, smiles at all earthly trials. How else
do you explain his bearing ? He smiles at all
that you can do against Mm. To Mm the clank
ing of these chains is the sweet music of his tri
umph. The efforts of the prosecution and its
bitter witnesses to convict bim are but the con
firmation of bis glory. Tbe power and majesty
of the Government brought upon his bead aeem
but clear and pleasant praises of bis deed. He
lives in that land of imagination where it
seems to bim legions of the souls of Southern sol
diers wait to crown bim as their chief com
mander. He sits here like a conqueror; for
four weeks be baa held Ms bead erect when all
others have quailed; be meets tbe stare of cu
riosity as a king raight face Ms subjects; be
keeps bis state even in Ma cell, and tbe very
keepers, in adrairation, acknowledge him their
master. Now, I know I dare not call bim
mad — tbe doctors have forbidden it. I might
say that if ever man fell within that definition
of Chief-Justice Shaw of insanity, "A very
common instance is where a person fully be
lieves the act be is doing is done by the imme
diate command of God, and be acts under the
delusive but sincere belief that what be is do
ing is by command of a superior power, which
supersedes all human laws and tbe laws of na
ture," this is tbe man. But the doctors have
said he is not insane, and though he fills tbe
legal definition he does not fill the medical, and,
therefore, I can not hope that you will hold him
insane. But I appeal from medical definitions and
from legal definitions to your good aenae, and
I ask you to explain for me the riddle of this
man's conduct in any other way than that be
is a political fanatic ; a monomaniac on tbe

subject of his duty — call him sane or insane—
yet one who is responsible only to that God
from whom he derives his commandments. Be
fore another tribunal, where all his previous
life might be inquired into, and where time
would be given for all tbia myatery to be un
raveled, I do not heaitato to aay 1 could con
vince tbe judgea beyond a doubt that be is no
more responsible for what he has done to tbe
lawa of tbo United Statea than a Chinaman
whom custom and religion give tbe right to
strangle bis daughters. You have not the
time, and I must end the inquiry. But aa you
are aworn to try tbia man on your consciencea,
so I charge you to give him the benefit of hia.
Gentlemen, when I look at the prisoner, and
see (as it has been my duty for four weeks to
see) the calm composure with which he has
gone through tbe horrors of this trial; the
cheerful and firm fortitude with which he has
listened to the evidence against Mm, and with
which be has endured tbe gaze of tbe public,
as well as the ignominy of fetters ; tbe frank
and honest way in which he speaks of his
crime, as a thing revolting in itself, but due to
a cause which be thinks boly ; and, more than
all, the settled conviction, which robs tbe trial
of all terrors, that be has but obeyed tbe voice
of custom, education, and conscience; and tbe
calm serenity with which he regarda all paina
that men can inflict upon bim aa contemptible,
and part of bis duty to endure, I can not help be
ing proud — though blood is on bis hands — that
such fortitude, unparalleled in history, is the
growth of American soil ; and I can not help
wishing that throughout all the coming vicissi
tudes of life, in all perplexities and doubts, on
all occasions of right and wrong, in all miscon-
structiona and trials, I may have so cheering,
so brave, so earnest a conviction that I have
done my duty.
And what is this duty ? What is tbia doing
right ? Ask tbe Indian, as be returns to bis
wigwam, laden with tbe dripping acalpa of tbe
dispossessors of Ms soil, why he baa done it,
and he will answer you, with a flourish of his
tomahawk and his face turned toward Heaven,
that he is doing right — tbe Great Spirit baa
coraraanded it. Aak tbe Hindoo, aa he disera-
bowels some English officer by tbe Ganges, and
riots in Ms blood, the reaaon of Ma crime, and
be will tell you it is hia duty, be ia doing
right — the Brahmins have decreed it. Consult
the records of Vendee, and see why Cbarette
and Gastou murdered the Republican soldiery
in ambuscades and thickets, and you will find
they entered, at the bar of the Parisian Court,
the plea that tbey were. doing right; it was
their duty. Now go through tbe devastated
South ; speak with a few of the five millions,
and ask tbem why they have thirsted for and
taken Northern blood in secret places, mur
dered atragglers, waylaid orderlies, and killed
by stealth, and they will answer you, pointing
to tbe charred remains of some ancestral home
and aome neighboring bill dotted with gravea ;
Because it was our duty ; because we felt bound
in conscience to do it.
Let us not undervalue the force of conteienoe.
It is man's aole director, hia highest judge, his

316

THE CONSPIRACY TRIAL.

last resort. Without it he is but an erring wan
derer, tossed by every wind of paaaion, inter
est, and caprice. With it, bia course is as cer
tain and regular as the stars. In labor it
cheers him ; in pleasure it restrains him ; to all
manner of good it prompts him ; from all man
ner of evil it defends Mm. In peace it teaches
Mra to labor; in war to fight; for religion it
tells bim to fear God; for his country it says,
protect and defend it; for himself it says, thy
country, thy home, thy friends first, and thyself
last. It is this spark of heavenly fire which
baa aupported martyrs at the stake ; which has
suatained good men on the acarfold; which
brought Uberty and preserved it in this land
for you and me and all of us. Let ua, then,
reapect it, even when it speaks iu a voice which
we can not underatand. Let ua honor it as
tbe same voice which directs us, even when it
directs others to a grievous fault. We are but
men. The same God who created us all, may
reconcile all that, and find in our difference
but ignorance on tbe one side and ignorance
on the other. And if we dare to judge tbe dic
tates of conscience, do we not arrogate to our
selves the prerogatives of tbe Sovereign Law
giver of tie Universe, who gave the rule,
"Judge not, that ye be not judged?" Therefore,
considering that we have tbe limit set, and that
we can not go beyond without becoming in
turn tranagreasors, let us leave that cause with
Him who measures the conduct of men by no
standard of success, but by obedience to tbe
invariable dictates of conscience. For us it is
enough that we are weak judges of weak men.
If we were beasts, unconscious of tbe sacred
Umits of right and wrong, we might excuse
Mm; if we were Gods and superior to destiny,
we might destroy bim ; but aa we are men who
know our duties, but also our weakness, often
seek good but do evil, therefore let us do tbe
work of man to man — punish and reform bim.
VIL Gentlemen, I have done with narrative
and reflections. 'We now know that this Flor
ida boy is not a fiend, but an object rather of
compassion. We now know that slavery made
him immoral, that war made him a murderer,
and that necessity, revenge, and delusion made
him an aaaassin. We now know that in all
regarda be ia like ua, only, that be waa taught
to believe right what we were taught to believe
wrong ; and that if we had been taught in bia
school, we would be like bim, and if be had been
taught in ours, he would be Uke us. We know
that, from his point of view, he justifies the
murder of our Secretary of State ; we know
that, from our standpoint, we would gladly
have seen, for four years, tbe death of the rebel
Secretary of State. We know that we were on
the side of tbe Government, because we were
born North; we know that he was against it,
because he was born South ; and that bad we
been born South we would have been in bis
place, and had he been born North he would be
incurs. We know, also, that all tbe enemy
desired the death of tbe Preaident, and that be
surpaaaed them only in courage ; and that if
we forgive them who killed our brothera,
we must, in conaiatency, forgive him who
tried to kill Mr. Seward, becauae he thought

Mr. Seward guilty of murdering his broth-
era. We know, further, that this man desires to
die, in order to gain the full crown of martyr
dom; and that, therefore, if we gratify bim, he
will triumph over ua ; but if we spare him, we
will triumph over him. We know, also, that
the public can gain nothing by bis death from
the example ; for if he die aa he lived, there
will be more anxious to emulate his bravery,
aa Adam Luc, a deputy from Mentz, who, on
the death of Corday, fired with admiration,
wrote to the tribunal requesting to die Uke
Charlotte Corday, wbile the multitude exclaimed;
"She is greater than Brutus." But if he is
suffered to live, he will receive tbe worst pun
ishment — obscurity — and the public will have
nothing to admire. We also know, and we
can not consider it too much, that be has killed
no man, and that if he be put to death we ahall
have the anomaly of the victim surviving tbe
murderer; and that, under the laws, this man
can be punished only for assault and battery
with intent to kill, aud, therefore, imprisoned.
We know, also, that we are at the end of a civil
war, a time when it is desirable there should
be no farther mention or remembrance of fra
ternal strife. If we put this man to death, be
will live forever in tbe hearts of Ms comrades,
and bis memory will forever keep our brethren
from us. If, moreover, we put Mm to death, we
will show that war is still in our hearts, and
that we are only content to live with them be
cause we have subdued tbem.
Finally, we know that if we let him live and
teach bim better, we show tbe whole world that
this war was carried on to undeceive a deluded
people and to maintain tbe supremacy of tbe
laws, so that, now that tbe laws are supreme,
we may begin with reform; but if we put Mm
to death we show only that we are vindictive,
and use our victory only to gratify our anger.
Let Mm, then, live. Hia youth asks it, frater
nity asks it, the laws ask it, our own sins aak it,
the public good demands it. Becauae you and
I taught him tbe code of assassination in
slavery; because you and I brought about a
civil war, which practiced bim in assassina
tion and made him justify it; because you and
I spurned bim from ua when he sought refuge
with us, and bade bim destroy bimself, ignobly,
by bis own band, or grandly, by assaaaination ;
because, in short, you and I have made tbia
boy what he is, therefore, lest we who are really
ourselves guilty of this attempt at murder,
should perpetrate a real murder, let him live,
if not for bia sake, for our own. Take from
the refugee Ms desperation, and you have the
cavalryman; take from tbe cavalryman his
bate, and you have the aoldier of Hill ; take
from 'tbe aoldier bia martial habits, and you
have tbe slave-bolder; take from the slave
holder bis slavery, and you have again tbe
pure and simple child, who, four yeara ago,
went singing in innocence over tbe land.
Before . I close, one word from myself. I
have heretofore spoken of tbe prisoner as bis
counsel; I may also speak of him in my char
acter as a man ; and I can testify that in the
four weeks' acquaintance I have had, hearing

ARGUMENT OF W. B. DOSTER.

317

him converse with freedom and explain all hia
secret thoughts, in spite of tbo odious crime
with which he is charged, I have formed an
estimate of Mm little short of admiration, for
bis boneaty of purpose, freedom from decep
tion and malice, and courageous resolution to
abide by the principles to which be waa reared.
I find in bim none of that obstinacy which
peraeveres in crime beoauae it ia committed,
and hopea to aecure admiration in a feigned
consistency. Neither is there about him a
false desire of notoriety, nor a cowardly effort
to screen hiraself from punishment; only one
prominent anxiety — that is, lest people should
think him a hired assassin, or a brute; an aver
sion to being made a public spectacle of, and
a desire to be tried at tbe hands of bis fellow-
citizens. Altogether, I think we may safely apply
to him, witho-it spurious aympatb • or exag
geration, the words which were sa d of Bru
tus —

" This was tho noblest Boman of them all
All tho conspirators, save only ho.
Did that they did in envy of groat Cajsar ;
Ho only, in a general honest thought,
Aud common good to all, made one of thorn.
His life -was gentle, and the oleraonts
So mi.xed in him, that nature might stand up
Aud say to all the world, " Tfiis was a man T*
I commit him, then, without hesitation, to
your charge. ' You have fought on the same
fields, and aa you have never been wanting in
mercy to the defeated, ao I know you will not
be wanting in mercy to bim. You have all com
manded private soldiers, and aa you could esti
mate the enthusiasm of your own raen, so you
will know bow to estimate the enthusiasm of
those who fought againat you. Tbe Uvea of all of
you have ahown that you were guided in all per-
plexitiea by the atern and infallible dictates of
conacience and duty, and I know that you will
underatand and weigh in your judgment of tbo
priaoner, dictatea and dutiea ao kindred to your
own. LEWIS PAYNE.

ON THE
LAW AND EVIDENCE IN THE CASE OF DR. SAM'L A. MUDD,

THO MAS EWING, Jr.

May it please ihe Court: If it be determined
to take jurisdiction here, it then becomes a
question vitally important to some of these
parties — a question of life and death — whether
you will puniah only offenaea created and
declared by law, or whether you will make and
declare the past acts of tbe accused to be
crimes, which acts the law never heretofore
declared criminal: attach to them tbe penalty
of death, or such penalty as may seem meet to
you ; adapt the evidence to the crime and tbe
crime to the evidence, aud thus convict and
puniah. This, I greatly fear may be tbe pur
pose, especially since the Judge Advocate aaid,
in reply to my inquiriea, that be would expect
to convict " under the common law of war." This
ia a term unknown to our language — a quid
dity — wholly undefined and incapable of defi
nition. It ia, in short, just what tbe Judge
Advocate chooses to raalke of it. It may cre
ate a fictitious crime, and attach to it arbitrary
and extreme punishment, and who shall gain
say it ? The laios of war — namely, our Articles
of War — and tbe ha.bitual practice and mode
of proceeding under tbem, are familiar to ua
all ; but I know nothing, and never beard or"
read of a common law of war, aa a code or
system under which military courta or com
miaaiona in this country can take and exerciae
juriadiction not given them by express legal
enactment or constitutional grant. But I still
hope the law is to govern, and if it do, I feel
that my clients are still safe.
I will now proceed to show you, that on tbe
part of one of my clients — Dr. Mudd — no
crime known to tbe law, and for which it is
pretended to prosecute, can possibly have been
committed, 'fhough not diatinctly informed
as to tbe offense for which the Judge Advocate
claims conviction, I am safe in saying, that
the testimony does not point to treason, and
if be is being tried for treason, tbe proceed
ings for that crirae are widely departed from.
Tbe proaecution appears to have been inatituted
and conducted under tbe proclamation of the
Secretary of War, of April 20, 1865. Tbia
makes it a crime, punishable with death, to
harbor or acreen Booth, Atzerodt, or Herold,
or to aid or aasist th^m to escape. It makes it
a crime to do & particular aet, and punishes that
crime with death. I suppose we must take this
proclamation as law. Perhaps it is part of what
the Judge Advocate means when be speaks of
the " common law of war." If this be so, my
318

clients are still safe, if we be allowed to con
strue it as laws are construed by co^-rts of justice.
But I will show, first, that Dr. .iludd is not,
and can D t possibly be, guilty of any offense
known to che law.
1. Not f treason. The overt act attempted
to be alkged is the murder of the President.
Tbe proof is conclusive, that at the time tbe
tragedy was enacted Dr. Mudd was at hia res
idence in tbe country, thirty miles from tbe
place of tbe crime. Those who committed it
are shown to have acted for themselves, not as
the instruments of Dr. Mudd. He, therefore,
can not be charged, according to law and upon
tbe evidence, with tbe coramission of this overt
act. Tb' re are not two witnesses to prove that
be did .omrait it, but abundant evidence to
show negatively that he did not.
Chief Justice Marshall, in delivering an
opinion of tbe Court in Burr's case, says :
"Those only who perform a part, and who are
leagued in tbe conspiracy, are declared to be
traitors. To coraplete the definition both cir
cumstances must concur. They must "per
form a part " which will furniah tbe overt act,
and tbey must be leagued with the conspiracy."
4 Cr,, 474.
Now, as to Dr. Mudd, there is no particle of
evidence tending to show that he was ever
leagued with traitors in their treason ; that he
bad ever, by bimself, or by adhering to, and
in connection with, others, levied war against
the United States. It is contended that he
joined in compassing tbe death of the Presi
dent (" the King's death"), Foster, p. 149, speak
ing of the treaaon of compassing the king's
death, aays : "From what has been said it fol-
loweth, that in every indictment for thia ape-
cies of treason, and indeed for levying war
and adhering to tbe king's enemies, an overt
act must be alleged and proved," 4 Cr., 490.
The only overt act laid in theae charges
aga,inst_ Mudd is the act of aasassination, at
which it is claimed he was constructively
present and participating. His presence, and
participation, or procurement, must heproved
by two witnesses, if the charge be treason ; and
such presence, participation, or procurement,
be tbe overi aet.
Chief Justice M.arsban, in Burr's case [Dall,
500), aaya : " CoUateral pointa, aay the booka,
may be proved according to tbe course of the
common law; but ia this a collateral point?
Is the fact without which the accused does

ARGUMENT OF THOMAS EWINI},, JR.

319

not participate in the guilt of the assemblage,
if tbey wore guilty (or in any way in the guilty
act of others), a collateral point? This can
not be. Tbe presence of the party, when
presence is neceasary, being part of tbe overt
act, raust be positively proved by two wit
nesses. No presumptive evidence, no facts
from which preaence may be conjectured or
inferred, Vill aatiafy the Constitution and tbe
law. If procurement take the place of pres-
I'lioe, and become part of tbe overt act, then
110 presumptive evidence, no faota from wMcb
llie procurement may be conjectured or in
ferred, can aatisfy tbe Constitution and tbe
law. Tbe mind is not to be led to tbe conclu
sion that tbe individual was present by a
train of conjectures or inferences, or of reason
ing. The fad itself must be proved by two wit
nesses, and raust have been committed within
the district."
2. Not of murder. For tbe law is clear,
that, in cases of treason, presence at tbe com
mission of tbe overt act is governed by the
same principle as constructive presence in
ordinary felonies, and has no other latitude,
greater or leaa, except that in proof of trea
son two witnesses are necessary to tbe overt
act, and one only in murder and other felonies.
"A person is not constructively present at an
overt act of treason, unless he be aiding and
abetting at tbe fact, or ready to do so, if neces
sary." 4 Or., 492, Persons not sufficiently
near to give assistance are not principals.
And although an act be committed in pursu
ance of a previous concerted plan, those who
are not present, or so near aa to be able to
afford aid and assistance^ at tbe time when tbe
offense is committed, are not principals, but
accessories before tbe fact. Wharton Am, Crim,
Law, 112 to 127.
It is, therefore, perfectly clear, upon the
law as enacted by tbe Legislature and ex
pounded by jurists, that Dr. Mudd is not guilty
of participating in tbe raurder of tbe Presi
dent; tbatbe was not actually or construct
ively present when tbe horrid deed waa done,
either as a traitor, chargeable with it as an
overt act, or a conspirator, connected as a prin
cipal felon fberewitb.
3. The only other criraes defined by law for
the alleged commission, of which the Judge
Advocate may, by possibility, claim tbe con
viction of tbe accused, are; 1st. Tbe crirae of
treasonable conspiracy, which is defined iby tbe
law of 21st July, 1861, and made punishable
by fine not exceeding 56,000, and imprison
ment not exceeding six years. 2d. The crime
of being an accessory before, or after ihe fact to
tbe crimes of murder, and of assault with
intent to kill. That the accused is not guilty
of either of theae crimes, will be clearly shown
in tbe discussion of the evidence which follows.
4. Admitting the Secretary's proclamation
10 be law, .it, of course, either supersedes or
defines tbe unknown soraething or nothing
which tbe Judge Advocate calls " tbe common
law of war." If so, it is a definite, exiating
thing, and I can defend my clients against it;
and it is easy to show that Dr. Mudd ia not
guilty of violating that proclamation. He did

not, after ihe date of the proclamation, see either
of tho partiea named therein — dreas tbo wound
of Booth or point out tbo way to Herold —
and the proclamation relatea to future acts, not
to past,
5. But of the common law of war, as distinct
from the usages of Military Courts, in carry
ing out and executing the Articles of War, I
know nothing, and on examining tbe books, I
find nothing. All that is written down in
books of law or authority I ara, or ought to be,
prepared to meet; but it were idle and vain to
search for and combat a mere phantom of the
imagination, without form and void.
I now pass to a consideration of tbe evidence,
which I tbink will fully satisfy tbe Court that
Dr. Mudd is not guilty of treasonable conspir
acy, or of being an accomplice, before or after
tbe fact in tbe felonies committed.
Tbe accused has been a practising physi
cian, residing five miles north of Bryantown,
in Charles county, Maryland, on a farm of
about five hundred acres, given to bim by bia
father. Hia bouse is between twenty-seven
and tbirtj' miles frora "Washington, and four or
five miles east of tbe road from Washington to
Bryantown. It is shown by Dr. George Mudd,
John L, Turner, John Waters, Joseph Waters,
Thomas Davis, John McPherson, Lewellyn
Gardiner, and other gentlemen of unimpeached
and unquestionable loyalty, who are in full
sympathy with the Governraent, that be is a
raan of raost exeraplary character — peaceable,
kind, upright, and obedient to tbe laws, Hia
family being slaveholdera, be did not like tbe
anti-slavery measures of tbe Government, but
was always respectful and temperate in dis
cussing tbem, freely took tbe oath of alle
giance preacribed for votera (Dr. George
Mudd), aupported an Union candidate against
Harris, tbe secession candidate, for Congress
(T. L. Gardiner), aud for more than a year past
regarded tbe rebellion it failure, (Dr, George
Mudd,) He was never known or reported to
have done an act or said a word in aid of the
rebellion, or in countenance or support of the
enemies of tbe Government.
An effort was made, over all objections and
in violation, I respectfully submit, of the plain-
eat rulea of evidence, to blacken bia character
as a citizen, by showing that be waa wont,
after tbe war broke out, to threaten bia alaves
to send them to Richmond "to build batteries."
But it will be seen hereafter, that all that part
of tbe testimony of the same witnesses, which
related to tbe preaence of Surratt and of rebel
officers at the bouse of tbe accused, was ut
terly falae. And Dyer, in presence of whom
Eglent aays the threat waa made to him, awears
be was not in tbe country then, and no auch
threat was ever made in Ms presence. The
other colored servants of tbe accuaed, Charles
and Julia Bloyce, and Betty and Frank Wash
ington, say tbey never heard of such threats
having been made ; and J. T. Mudd and Dr,
George Mudd, and his colored servants Charles
and Julia Bloyce, and Betty and Frank Wash
ington, describe him aa being remarkably
easy, unexacting aud kind to all about him —
slavea and freemen.

320

THE CONSPIRACY TRIAL.

From this brief reference to the evidence of 1
the character of tbe accused, I pass to a con
sideration of tbe testimony adduced to prove
Ms connection with tbe conspiracy.
And, firat, as to bia acquaintance with Booth,
J. C. Tbompaon says, that early in Noveraber
last Booth went to tbe bouse of witness' father-
in-law. Dr. William Queen, four or five miles
south of Bryantown, and eight or ten from Dr.
Mudd's, and presented a letter of introduc
tion from a Mr. Martin, of Montreal, who said
he wanted to see the county. It does not ap
pear who Martin was. Booth said bis busi
ness was to invest in land and to buy horses.
He went with Dr. Queen's family to a church
next day, in the neighborhood of Bryantown,
and was there casually introduced, before ser
vice, by Thompson, to tbe accused. After
service Booth returned to Queen's bouse, and
stayed until tbe next raorning, when be left.
Wbile at Queen's, he made inquiries of Thomp
son aa to boraea for aale, tbe price of landa,
their qualitiea, tbe roads to Washington,
and to the landings on the Potomac ; and
Thompson told bim that the father of Dr. Sam
uel Mudd was a large landholder, and might
sell part of bia land. On Monday morning,
after leaving Dr. Queen's, Booth came by the
house of the accused, who went with bim to
the bouSe of George Gardiner, to look at some
boraea for sale. Tbe accused Uves about one-
quarter of a mile from Gardiner's (Mary
Mudd, Thomas L. Gardiner), and on tbe most
direct road to that place from Dr. Queen's,
through Bryantown. (Mary Mudd, Hardy.)
There Booth bought tbe one-eyed saddle-horse
which be kept here, aud which Payne rode
after tbe attempted assassination of Mr, Sew
ard. Mudd manifested no interest in tbe
purchase, but after it was made Booth di
rected tbe borse to be aent to Montgomery's
Hotel, in Bryantown, and Booth and the ac
cuaed rode off together iu tbe direction of tbe
house of tbe accused, which was also tbe
direction of Bryantown, Witnesa took the
horae to Bryantown next morning, and deliv
ered him in person to Booth there. Witness
saya tbe horae was bought on Monday ; but be
thinks in tbe latter part of November; though
be says be is " one of tbe worst banda in the
world to keep datea." ^
Thompson further says, that after Booth's
first introduction and visit to Dr. Queen's,
" he came there again, and stayed all nigbt,
and left very early next morning. I tbink it
was about the middle of December following
bis first visit there,"
There is nothing whatever to show that
Mudd saw Booth on this second visit, or at any
other time, in the country, prior to tbe assas
sination ; but a great deal of evidence that be
never was at Mudd's bouae, or iu bis immedi
ate neighborhood, prior to tbe aaaassination,
except once, and on bis first visit. I will refer
to the several items of testimony on this
point. 1st, Tbomaa L. Gardiner saya be was back
and forth at Mudd's house, sometimes every
day, and always two or three timea a week,
and never heard of Booth being there, or in

tbe neighborhood, after the purchase of the
horae and before tbe asaaasination.
2d. Mary Mudd aays she saw Booth one
Sunday in November at church, in Dr. Queen a
pew, and with his family, and that she heard
of hia being at tbe bouse of her brother, the
accuaed, on that viait, but did not bear that he
stayed all nigbt; and that on tbe same visit
he bought tbe horse of Gardiner. She lives at
her father's, on tbe farm adjoining that of
accused, and was at his bouse two or three
times a week, and saw him nearly every day
on his. visits to bis mother, who was an invalid,
and whose attending physician he was; and
never saw or heard of Booth, except on that
one occasion, before tbe assasaination.
3d. Fanny Mudd, sister of tbe accused, liv
ing with ber father, testifies to tbe aame effect.
4th. Cbarlea Bloyce was at tbe bouse of tbe
accused Saturday and Sunday of each week
of last year until Christmas Eve (except six
weeka in April and May), and never saw
or beard of Booth's being there.
5th. Betty Washington (colored) lived there
from Monday after Christmas until now, and
never aaw or heard of Booth there before the
assassination. 6tb. Thomas Davis lived there from 9th of
January last. Same aa above.
Nor is there any evidence whatever of
Booth's having stayed all night with tbe accused
on tbe visit when tbe borse was bought of
Gardiner, or at any other time, except that of
Col. Wells, who says, that after Mudd'a arreat,
"he aaid, in answer to another question, that
be met Booth sometime in November. I tbink
be said be was introduced by Mr. Thompson, a
son-in-law of Dr. Queen, to Booth. I tbink
be said tbe introduction took place at tbe
cbapel or church on Sunday morning; that,
after the introduction had passed Ijetween
tbem, Thompson said, Booth wants to buy
farming landa; and tiiey had some little con
versation on tbe aubject of lands, and then
Booth asked the question, whether there were
any desirable horses that could be bought in
that neighborhood cheaply; that he mentioned
the name of a neighbor of Ms who bad some
horses that were good travelers ; and that he
remained with him that night, I think, and the next
morning purchased one of those horses'' Now, it
will be recollected that Thompson says Booth
stayed at Dr. Queen's on that visit Saturday
night and Sunday nigbt, and Thomas L. Gar
diner says tbe horse was bought Monday morn
ing. So that, if Col. Wells is correct in
recollecting what Mudd said, then Thompson
must be wrong. It is more probable that
Thompson is right, as to Booth's having spent
Sunday nigbt at Queen's. Thompson's testi
mony is strengthened, too, by that of Mary
Mudd, Fanny Mudd, and Charles Bloyce, who
would, in all probability, have beard the fact
of Booth spending Sunday nigbt at the bouse
of tbe accused, bad he done so; but they did
did not hear it.
It is here to be observed, that though tbe
accused was not permitted to show, by Booth's
declarations here, that be was contemplating
and negotiating purchases of lands in Charlea

THE CONSPIRACY TRIAL.

321

county, yet evidence waa admitted as to bis
declarations made there to that effect. Dr,
Bowman, of Bryantown, says that Booth nego
tiated with him, on one of these visits, for tbe
purchase of his farm, and also talked of buy
ing horses. And a few days after witness
bad negotiated with Booth for the sale of bis
farm, be met Dr. Mudd, and spoke of the
negotiation with Booth, and Mudd said, " Why
ihat fellow promised to buy my land." It is also
shown by Dr. Blanford, Dr. Bowman, M. P.
Gardiner, and Dyer, that Mudd, for a year
past, wanted to sell Ms land, and quit farm
ing. Tbia, then, is all that is shown of any meet
ing between Mudd and Booth in that country
before tbe assassination — a casual introduc
tion at church on Sunday in Noveraber — Booth
going next morning to Mudd's, talking of
buying his farm, and riding with Mm a quar
ter of a mile to a neighbor's to buy a borse,
and their going off together toward Mudd'a
and Bryantown, where tbe horse waa deliv
ered to Booth next raorning.
We will now turn to consider the evidence
as to the accused's acquaintance with John H.
Surratt. If be knew Surratt at all, tbe fact is
not shown by, nor inferable frora, tbe evi
dence. Miss Surratt was educated at Bryan
town, before the war, and her family lived at
Surrattsville, and kept tbe hotel there (which
is on tbe road from Dr. Mudd's house to Wash
ington), until tbey removed, in October last,
to a house on H street, in this city, where they
have since resided. (Miss Surratt, Holaban,
Weichmann). Dr. Mudd probably had raet
Surratt at the hotel at Surrattsville, or, before
tbe war, at Bryantown, wbile his sister was at
school; but it is not shown by credible testi
mony that he knew bim at all. Let us exam
ine tbe evidence on this point.
1st. Mary Simms, formerly Dr. Mudd'a slave,
aays that a man whom Dr. and Mra, Mudd
called Surratt was at Mudd's bouse from almost
every Saturday night until Monday night
through tbe latter part of the winter, and
through tbe spring and summer of last year
until apples and peaches were ripe, when she
saw bim no more; and that on the last of No
vember she left Dr. Mudd's house. That be
never slept in the house, but took dinner tiiere
six or seven times. That Andrew Gwynn, Ben
nett Gwynn, Capt. Perry, Lieut. Perry, and
Capt. White, of Tennessee, slept with Surratt
in tbe pines near tbe spring, on bed-clothes
furnished from Dr. Mudd's house, and that
they were supplied by witness and by Dr.
Mudd with victuals frora tbe bouse. That
William Mudd, a neighbor, and Rachel Spen
cer, and Albin Brooke, members of Mudd'a
bouaehoid, used to see Surratt there then.
She says that tbe lieutenants and officers had
epaulettes on their shoulders, gray breeches
with yellow stripes, coat of same color and
trimming. Their horses were kept in Dr.
Mudd's stable, by Milo Simras.
2d. Milo Simms, brother of Mary, fourteen
years old, formerly slave of Dr. Mudd, left
there Friday before last Chriatmas. Saw two
or three men there last summer, who slept at tbe
21

spring near Dr. Mudd's bouse. Bedding
taken from tbe bouse; meals carried by Mary
Simms, generally, though tliuy sometiraes ate in
tbe house, and tbey all alept at tbe spring,
except one called John Surratt, who slept once
in tbe bouse. Don't aay bow long they
stayed. It was in "planting tobacco tirae,''
He attended their horses in Dr. Mudd's stable,
3d. Rachel Spencer, slave of Dr, Mudd and
cook at bis bouse, left bim early in January,
1865; saw five or six men around Dr. Mudd's
bouse last summer ; slept in tbe pines near the
bouse, and were furnished with meals from it.
Were dressed in black and blue. Were there
only a week, and never saw them there before or since.
She heard no names of the men except Andrew
Gwynn and Watt Bowie. That Albin Brooke
Uved at Dr. Mudd's then, and was with theae
men occasionally.
4tb. Elzee Eglen, formerly Dr, Mudd's slave,
left him 20tb August, 1863; saw a party sleep
ing in the pines, by tho spring, near tbe
ho-ase, summer before last. KneMv Andrew Gwynn,
and be was one of tbem; did not recollect any
other names. Mary Simms carried tbem meals,
and Milo Simms attended tbe horses in Dr.
Mudd's stable. Sorae wore gray clothes with
brasa buttons, but without other marks — aome
black clothes. Did not say bow many there
were, nor bow long tbey stayed.
5tb. Melvina "Washington, formerly Dr,
Mudd'a slave, left bim October, 1863; saw
party sleeping in the pines near tbe house
summer before last; victuals furnished from the
bouse. Party stayed there about a week, and
then left. Some were dressed in gray, and
sorae in short jackets with little peaks behind,
with black buttons. She saw tbem seven or
eight timea during one week, and then tbey
all left, and she never saw any of them at any
other time except during that week. That An
drew Gwynn's name was tbe only one she
heard; that Mary Simms used to tell her, when
tbe raen were there, tbe names of others, but
she bad forgotten tbem.
That these five witnesses all refer to the
sarae party of men and the sarae year is cer
tain, frora tne fact that Elzee Eglen says that
Mary Simm3 carried tbe party he describes as
being there in the summer of 1863, their
victuals, and that Milo Siraras kept their horses
in the stable, and Melvina Washington says
Mary Simms used to tell her the names of the
party which she describes as being there in
1863; and also from the fact that all of tbem,
except Milo Simms, named Andrew Gwynn as
being one of tbe party. I will not waste the
time of tbe Court in pointing out to it in
detail the discrepancies in their evidence
apparent from tbe foregoing synopsis of their
testimony; and therefore, only calling its
attention to "the fact that all of these wit
nesses were living with Dr. Mudd during and
after tbe year 1861 (Dyer), down to the sev
eral dates given above, when tbey respectively
left, I will proceed to show from tbe evidence
wliai and when tbe occurrences really were
about which tbey have testified.
1st. Ben. Gwynn (named by Mary Simms as
one of the party) says :

322

ARGUMENT OF THOMAS EWING, JR.

Q. Will you state whether during last sum
mer, in company with Captain White, from Ten
nessee, Captain Berry, Lieut. Perry, Andrew
Gwynn, and George Gwynn, or either of tbem,
you were about Dr. Samuel A. Mudd'a bouse for
severaldays? A, Iwasnot. I do not knowany
of the parties named, and I never heard of tbem,
except Andrew Gwynn and George Gwynn.
Q, Were you with your brothers, Andrew
Gwynn and George Gwynn, about Dr, Mudd's
bouse last year ? A. No, sir. I have not been
in Dr. Mudd's house since about the first of
November, 1861. I have not been on his
place, or nearer his place than church, since
about the 6tb of November, 1861.
Q, Where did you and tbe party who were
with you near Dr. Mudd's sleep? A. We slept
in tbe pines near tbe spring.
Q, How long were you there? A. Four or
five days. I left ray neighborhood, aud went
down there and stayed around in tbe neigh
borhood — part of the time at bis place, and part
of tbe time elsewhere. He fed na there — gave
ua something to eat, and bad sorae bed-cloth
ing brought out of the house. That was all.
He further said, that the party was com
posed of his brother, Andrew Gwynn, and
Jerry Dyer, who, on tbe breaking out of tbe
war, were, like all the people of that section,
panic-stricken, and apprehending arrest; that
he came up to Washington on tbe lOth of No
vember, gave bimself up, found there were no
charges againat bim, took tbe oath, and went
back home. That John H. Surratt, when thia
party were there, waa at college, and witness
never saw bim in Charles county then or
since. That his brother, Andrew Gwynn, went
South in the fall of 1861, and was never, to
bis knowledge, back in that county but once
since, and that was last winter sometime. He
corrected bis statement as to when the party
were there, and fixed it in August, 1861.
2d. Jerry Dyer, brother-in-law of the ac
cused, testifiea to tbe sarae as Ben. Gwynn.
Says he and tbe two Gwynns were members
of companies organized by authority of Gov
ernor Hicks for home protection In 1860; were
present on parade in "Washington at tbe inau
guration of a statue, on tbe 22d of February,
1860. When tbe war broke out tbe companies
were disbanded ; many of the merabers going
South, and many of thoae who remained in
Charlea county scattering about from rumors
of arrests; that there was a general panic in
tbe county then, and almost everybody waa
leaving home and "dodging about;" that
wbile be and tbe two Gwynns slept in tbe
pines these three orfour days, Mary Simms car
ried them victua"ls from lie house, and Milo
Simmaattended to tbeboraesinMudd'sstables;
that they were dressed in citizens' clothing;
that Andrew Gwynn went South in tbe fall
of 1861; witness never beard of bis being back
since; that Surratt was not there then, nor,
so far as he knows, since.
3d. William Mudd, a near neighbor of the
accused, named by Mary Sirams as having seen
tbe party she describes, says he saw Benjamin
Gwynn there in 1861, but aaw none of tbe oth
era, then or aince.

4th. Albin Brooke, referred to by Mary
Simms and Rachel Spencer as having seen the
party they describe (and by Mary Simms aa
having seen Surratt especially), saya be knows
Surratt, having met bim in another county
once, and knew Benjamin Gwynn and Andrew
Gwynn, but that be never saw Surratt with
any of the men named by Mary Simms at Dr.
Mudd's, nor beard of bis having ever been
there ; never heard of Andrew Gwynn being
back frora Virginia since 1861. That he lived
at Dr, Mudd's from the 1st of January to be
tween tbe lat and the 15th of September of
last year, and was at the atable morning, noon,
and nigbt, each day, and was about the spring
daily ; wbUe there, never saw any strangers'
horses in tbe stable, nor any signs about the
spring of persons sleeping there; but that,
wbile living near Dr. Mudd'a, in the aummer
of 1861, be knew of Ben. and Andrew Gwynn
"and Dyer sleeping in the pines there.
5tb. Mrs. Mary Jane Simms boarded, or was
a guest, at Dr. Mudd's all last year, except
through March ; knew Andrew, Ben. and
George Gwynn, and George Surratt. Never
saw or beard of any of tbem there, nor of any
of tbem sleeping in tbe pines.
6tb. Frank Washington (colored) lived al
Dr. Mudd's all lastyear ; knew Andrew Gwynn
by sight ; never aaw or heard of bim or Sur
ratt (of whom a photograph was shown bim),
or of any of tbe men named by Mary Simms,
being there, or of any men being there in uni
form ; at tbe atable three times daily, and of
ten at tbe spring, and aaw no strange horses in
tbe stable ; saw no signs of men sleeping about
tbe spring.
7th. Baptist Washington, carpenter, at work
there putting up kitchen, etc., from February
till Christmas laat year, except tbe month of
August; same as above, except as to knowl
edge of Andrew Gwynn. (Photograph of Sur
ratt shown bim.)
8th. Charles Boyce (colored), at Dr. Mudd's
through every Saturday and Sunday all last
year, except from lOtb April to 20th May;
same as Frank Washington, except as to
knowing Andrew Gwynn.
9th. Julia Ann Bloyce (colored cook), there
from early in July to 23d December, 1864;
same, substantially, as Frank Washington;
knew Ben. and Andrew Gwynn. (Photograph
of Surratt shown witnesaj
10th. Emily Mudd and Fanny Mudd live on
adjoining farm to Dr. Mudd, at hia father's;
at bis bouse alraost daily for years ; knew of
tbe party in tbe pines in 1861, coraposed of
Dyer and the two Gwynns; knew Andrew
Gwynn weU ; never beard of his being back
from Virginia since 1861, nor of Surratt ever
being at Dr. Mudd's, nor of any of the others
named by Mary Simms, except the Gwynns, in
1861. ' 1^ J' .
llth. Henry L. Mudd, jr., brother of the ac
cused, Uving at his father's; same as above as
to Surratt.
None of tbe five witnesses, whose testimony
has been shown falae in all essential parts by
the evidence of the twelve witnesses for de
fenae, referred to above aaid that Surratt was

THE CONSPIRACY TRIAL.

one of the party sleeping in the pines, except
Mary and Milo Simms. These two witnesses
are ahown to have established reputations as
liars, by tbe evidence of Charles Bloyco, Julia
Ann Bloyce, and Frank, Baptist and Betty
Washington. So all that testimony for tbe
prosecution, of the "intelligent contrabands,"
who darkened tbe counaela of tbe court in tbia
caae, ia cleared away. Tbe only part of it at all
admissible under the rules of evidence, or enti
tled to the consideration of tbe Court, was that
showing Surratt was intimate with itudd, and
often at bis house last year and year before;
and that, like nearly all tbe rest of their tes
timony, has been conclusively abown to be
false. Another witness, who testifiea to implicate
Mudd aa an associate of Surratt, is William
A. Evans, who, aaid be aaw Mudd some time
last winter enter a bouae on H atreet, just as
Judson Jarboe, of Prince George's county, was
going out of it; and that Jarboe was then
shaking bands with a young lady, whom wit
ness took to be a daughter of Mrs. Surratt,
from ber striking likeness to ber mother, he
having known or seen all the family ; and that
he stopped a policeman on tbe street, and
asked whose house it was, and he said, "Mrs,
Surratt's;" and that be drove up to tbe pave
ment, and asked also a lady who lived near by
and she said tbe same. He aaid this bouse
was between Eighth and Ninth, or Ninth and
Tenth — be was not perfectly certain aa to tbe
streets, but was certain it was between tbe Pat
ent Oifice and tbe President's. Through an
hour's cross-examination, be fought by equiv
ocation, or pleading defect of meraory, against
fixing any circumstance by which I could
learn, directly or indirectly, tbe day or tbe
month when it occurred, and, finally, he could
only aay it was "sometime last winter." Al
though bis attention bad been so strongly at
tracted to the house, he firat said it was on one
aide of tbe atreet and then on the other ; and
could not tell whether it had any porch or any
portico, nor describe its color, nor whether it
bad a yard in front, nor whether it waa near
the center of tbe square, nor describe a single
house on either side of tbe same square. He
said be knew Dr. Sarauel Mudd, having met
him flrst at Bryantown church, in December,
1850. Every material thing he did say, which was
susceptible of being shown false, has been so
shown. lat. Mra. Surratt's bouae is not between the
Patent Office and tbe President's, but next tbe
corner of Sixth, (Weichmann, Holahan, Misa
Surratt.) 2d. Misa Surratt, an only daughter, says she
never saw or heard of Samuel Mudd being at
ber mother's bouae, nor heard his name men
tioned in tbe family, and never met Judaon
Jarboe there or elsewhere before the asaaasin
ation. 3d. Miss Fitzpatrick, who boarded at Mrs.
Surratt's from the 6th of October last to tbe
assassination, and Holaban, who was there
from the first week of February last, never
saw either Mudd or Jarboe there, or heard of

either being there, or tbo name of either men
tioned in the family.
4tb. Weichmann who boarded there through
last winter, never heard of Mudd being at the
houae. 5th, Judaon Jarboe says he never was at
Mrs. Surratt's bouse, or raet Dr. Mudd or Miss
Surratt in Washington before tbe assassina
tion. 6tb. Mary Mudd says Samuel Mudd was at
Frederick College, at Fredericktown, Mary
land, in December, 1850, and was not at home
during the collegiate year, beginning in Sep
tember of that year ; and Rev. Dr, Stonestreet,
who was president of that college until De
cember of that year, testifies the accuaed waa
then entered aa a atudent there, and could not
by tbe rulea of the college have gone home.
This witness, Evans, boasted often to tbe
Court that be was a minister of the Gospel,
and reluctantly admitted, on cross-examina
tion, that be was also one of tbe secret police.
In bis reckless zeal aa a detective, be forgot
tbe ninth coraraandment, and bore false wit
neas against bis neighbor. It is to be hoped
bia teatimony that he ia a miniater of tbe Gos
pel is as false aa bia material evidence. I feel
bound in candor to adrait, however, that hia
conduct on tbe stand gave an air of plausibil
ity to one of bis material statements — that for
a mouth past he has "been on tbe verge of
insanity." I have now presented and considered all tbe
testimony going to show that Mudd ever raet
Surratt at all, and all that be ever met Booth,
before tbe assasaination, and after tbe first
visit Booth made to Charles county — except
tbe testimony of Weichmann, which I will now
consider. That witness saya that about tbe middle of
January laat, be and Surratt were walking
down Seventh atreet one night, and passed
Booth and Mudd walking up tbe street, and
just after tShey bad passed, Mudd called, " Sur
ratt, Surratt." Surratt turned and recognized
Mudd as an old acquaintance, and introduced
Mudd to witness, and then Mudd introduced
Booth to witness and Surratt. That soon after
the introduction, Booth invited tbem all to Ms
room at tbe National Hotel, where wine and
cigars were ordered. That Dr. Mudd, after
tbe wines and cigars came, called Booth into
tbe passage, and they stayed there five to eight
minutes, and then botbcame and called Surratt
out, and all three stayed thereabout as long as
Mudd and Surratt had stayed, both interviews
together making about ten to twenty minutea.
On returning to tbe room. Dr. Mudd aeated
himaelf by witness, and apologized for their
private conversation, saying, "that Booth and
he had aome private buainess — that Booth
wished to purchase bia farm." And that, aub-
sequently. Booth also apologized to bim, giv
ing tbe same reason for tbe private conversa
tion. Booth at one time took out tbe back of
an envelope, and made marks on it with a pen
cil. "I should not consider it writing, but
raore in tbe direction of roada or lines." The
three were at the tirae seated round a center
table in the middle of the room. " The room^

324

ARGUMENT OF THOMAS EWING, JR.

was very large — ^half the size of this court
room." He was atanding, when this was done,
within eight feet of them, and Booth was
talking in a low tone, and Surratt and Mudd
looking on tbe paper, but witness beard no
word of tbe conversation. About twenty min
utes after the second return from tbe passage,
and after a good deal of general conversation,
they all walked round to tbe Pennsylvania
House, where tbe accused aat with witnesa on
a lounge, and talked about tbe wa'r, " ex
pressed the opinion that tbe war would soon
be over, and talked like a Union man," Soon
after getting there, Booth bid the accused good
nigbt, and after Booth left, witness and Sur
ratt followed, at about balf-past ten o'clock.
It will be observed that tbe only men spo
ken of by this witness aa having seen the ac
cused on this occasion are, Booth, who is dead,
and Surratt, who is a fugitive from tbe coun
try. So there is no one who can be called to
confirm or confute bis statements, as to tbe
fact of these raen being together, or as to tbe
character of tbe interview. But there waa one
fad about which be said be could not be raia-
taken, and by raeans of which bis evidence
against Mudd is utterly overthrown. That is,
be .alleges tbe meeting waa about tbe middle
of January, and fixes tbe tirae with certainty
by three distinct circurastanoes :
1st. He made a visit to Baltiraore about tbe
middle of January, and near the date of this
meeting. 2d, lie bad, before the meeting, got a letter,
which he received on tbe 16^A of January,
3d, It was after tbe Congressional holidays,
and Congress bad resumed its session. He re
collects this fact of itself, and is confirmed in
bis recollection by tbe fact that Booth's room
waa one a member of Congresa bad occupied
before tbe holidays, and which was given
Booth, as he learned, until tbe member, who
had been delayed beyond tbe time of the re
assembling of Congress, should return. Booth
told hira this.
In refutation of this evidence, we have
proved, beyond all controversy, that Dr. Mudd
was not in Washington /rom the 2Zd of Decem
ber io the 23(i of March,
On the 23d of December be came to Wash
ington with J. T. Mudd, who says they left
their horses at tbe Navy Yard, and went into
the city at dark, on tbe street cars, and regis
tered at tbe Pennsylvania House, They then
went out and got supper at a restaurant, and
then went to the Metropolitan Hotel and
stayed there together a quarter of an hour,
and then to tbe National, where witness met
a friend, and becarae separated in the crowd
from tho accuaed. Witness strolled out and
v/ent back to tbe Pennsylvania House, to
which accused returned in a few minutea
after he got there. He aaw and beard no one
with tbe accuaed, though there might have been
persons with him in the front part of the
room (which was separated from where wit
nesa aat by open folding doors), without wit
ness seeing them. Witness and accuaed then
went to bed; were together all next day;
• were about the market together, and at tbe

atore making purchases ; were ¦ not at the
National Hotel, and left the city about one
o'clock in the afternoon of the 24th, and re
turned home together. Witness never aaw
Booth, except on bis visit to Bryantown in
November. We have shown by tbe evidence
of Lucas, Montgomery, Julia Bloyce and Jerry
Mudd, that accused came here on that visit on
a sufficient and legitimate business errand —
to purchase a cooking stove and other articles,
which he bought here then.
On the 23d of March, Lewellyn Gardiner
aaid accused again came to Waahington with
bim to attend a aale of condemned horses, but
that the sale did not occur at that time, 'They
got to Washington at four or five P. M,, left
their horses at Martin's, beyond the Navy
Yard, and went about looking at some wagons
for sale, and went then to the Island to the
bouse of Henry Clark, where they took tea.
Tbey spent the evening at Dr. Allen's playing
whist ; alept together that nigbt at Clark'a,
and after breakfast next morning went through
tbe Capitol, looking at tbe paintinga in the
Rotunda, and returned to Martin's at dinner,
and after dinner left and returned home. Ac
cuaed was not separated from or out of sight
of witness five minutes during tbe whole visit,
and did not go to any of the hotels or to tbe
post-office, or see or inquire for Booth. Dr.
Allen, Clark, Martin, Thomas Davis, Mary
Mudd, Henry Mudd and Betty Washington
confirm witness as to the objects or incidents
of the visit.
On tbe lltb of April, three days before the
assassination, wbile Booth, aa appeara by tbe
hotel register, was at tbe National in this city,
accused came to Giesboro to attend the sale of
Government horses, which he and Lewellyn
Gardiner bad come on tbe 23d of March to at
tend. Though in sight of Washington, he did
not come into tbe city, but took dinner at
Martin's, and after dinner left and returned
home. On this visit be stayed all night at
Blanford's, twelve miles from the city, coming
up, but not returning. (Lewellyn Gardiner,
Henry L. Mudd, Dr. Blanford, Martin, Davis,
Betty Washington, Mary Mudd.)
On tbe 26th of January, he went with his
wife to tbe bouse of bia neighbor, George
H. Gardiner, to a party, and stayed till
daylight. (Betty Washington, Tbomaa Davis,
Mary Mudd.) Except for one nigbt on the oc
casion of each of those four visits — two to
Washington, one to Giesboro, and one to Gard
iner's — accused was not absent from home a
nigbt from tbe 23d of December until his ar
rest. (Betty Washington, Thomas Davis,
Henry L. Mudd, Mary Mudd, Frank Washing
ton.) After tbe evidence for tbe defense above re
ferred to bad been introduced, refuting and com
pletely overwhelming Weiobmann's testimony
and all inferences as to Dr. Mudd's complicity
with Booth, which might be drawn from it, a new
accuser was introduced against him on tbe
same point, in tbe person of Marcus P, Norton,
who said that at balf-past 10 o'clock on the
morning of the 3d of March, as he was prepar
ing his papers to go to the Supreme Court to

THB CONSPIRACY TRIAL.

325

argue a motion in a patent case there pending,
(which motion the record of the Court shows he
did argue on that day), a stranger abruptly en
tered his room and as abruptly retired, saying
be was looking for Mr. Booth's room ; and though
witness never saw Dr. Mudd before or since, until
the day of bis testifying, he saya that atranger
ia tbe prisoner at tlie bar. He could not tell any
article of tbe atranger's clothing except a black
bat. Win. A, Evans, a part of whose evidence
we have hereinbefore considered, comea to the aup-
port of Norton by saying that early on tbe morn
ing of either tho 1st, or 2d, or 3d of March (wit
ness is certain it was one of those three days).
Dr. Mudd paaaed witness on tbe road from Bry
antown to Washington, a few miles from the
city, driving a two-borae rockaway, and there
was a man in with bim, but whether a black or
a white man witness could not recollect. Fortu
nately for tbe accused, tbe 1st day of March was
Ash Wednesday — the first day of Lent — a reUg
ious holiday of note and observance in the com
munity of Catholics among whom he lived. For
tunately for him, too, Ms sister Mary was taken
ill on that day, and required Ms medical attend
ance (at her father's bouse, on tbe farm adjoin
ing Ms own, tMrty miles from Washington) each
day, from the 2d to tbe 7th of March, inclusive.
By the aid of these two circumstances we have
been able to show, by Thomas Davis, that accused
was at home at work on tbe 28th of February- — ¦
the day before Ash Wednesday ; by Dr. Blan
ford, Frank Washington and Betty Washington,
that be was there at work at home on tbe 1st of
March ; by Mary, Fanny, Emily and Henry L.
Mudd, Betty and Frank Washington and Thomas
Davis, that be was there on tbe 2d, 3d, 4th and
otb of March, at various hours of each day. At or
within two hours of tbe tirae when Norton says
he saw the accused enter the room at tbe National
(half past 10 A. M., 3d of March), Mary, Emily,
Fanny and Henry L. Mudd, Frank and Betty
WasMngton, Thomas and John Davis, all testify
moat emphatically to having seen bim at Ma
house, on bis farm, or at his father's bouse ad
jacent to his own — six hours' ride from Wash
ington ! We have shown, too, by Mary Mudd,
that tbe accused has always worn a lead-colored
bat whenever she has aeen Mra tbia year, and
that ahe has seen him almost daily ; and by
Henry Mudd, Dr. Blanford and Mary Mudd, that
neither be nor Ms father owns a rockaway.
Now, Norton either saw tbe accused enter Ms
room on tbe morning of the 3d of March, or not
at all, for Ms evidence, clinched as to tbe date
by the record of tbe Suprerae Court, excludes the
supposition that he could have been mistaken as
Io the day. Nor can theae eight witnesses for tbe
defense be mistaken as to tbe day, for the inci
dents by which they recollect Mudd's presence
at home, fix the time in their memories exactly.
With all this evidence before the Court, it can
not hesitate to bold the alibi established beyond
all cavil.
Tbe only other item of evidence as to anything
done or aaid by Dr. Mudd, or by anybody, be
fore the asaasaination, tending in the leaat to
show him implicated in the conspiracy, is tbe
evidence of Daniel J, Thomas, who aays that sev
eral weeks before the aaaassination he met Mudd

at Uie houae of hia neighbor. Downing, and there,
in tbe course of conversation, Mudd said (laugh
ingly) that " Lincoln and bis whole Cabinet, and
every Union man in the State of Maryland,
would be killed within six weeks." Witneas said
be wrote to Col. John C. Holland, proVost mar
shal of that district, at ElUcott's Mills, before the
assassination, advising bim of Mudd's statement.
But Col. Holland aaya be got a letter from wit
neas about that time, and there was not a word
of tbe statement in it, nor a reference to tbe ac
cused, nor to any statement by anybody about
killing anybody. Thomas says he told bis
brother. Dr. Tbomaa, of tbe declaration before
tbe President was killed, but bia brother saya
emphatically be did not tell bim until after
Mudd'a arrest — the boot found at Mudd'a bouse
having been named in tbe same conversation.
Thomas says he told Mr. Downing about it be
fore the assassination, but Downing says em
phatically be did not tell bim a word about it at
any time. Downing also saya that be himself
waa preaent every moment of the time Mudd and
Thomas were together at bis bouse, and beard
every word said by either of tbem, and Mudd
did not make that statement, nor refer to tbe
President, or tbe Cabinet, or the Union men of
Maryland, at all, nor say a word about anybody
being killed. He says, bov/ever, Mudd, when
Thomas was bragging and lying about being a
provost marshal, did tell him, "be waa a jack,"
which insult was doubtless an incentive to the
invention of tbe calumny. But it was not the
only incentive. Thomas knew that if that lie
could be palmed oft' on tbe Judge Advocate and
tbe Court for truth, it might lead to Mudd's ar
rest aud conviction aa one of tbe conspirators.
He bad, on Tuesday, before Mudd'a arrest, and
before this lie was coined and circulated, been
posting handbills, containing tbe order of the
War Department offering liberal rewards for any
information leading to tbe arreat of Booth'a ac
complices, and he then doubtless conceived tbe
idea of at once getting reward in money from
tbe Government for bis information, and revenge
on Mudd for bia inault in Downing's bouae.
That be gave that evidence corruptly is shown
by Wm, Watson, John B. Richardson and Ben
jamin Naylor, who say that Thomas, after testi
fying againat Mudd, went to see tbem, and said
that "if Dr, Mudd was convicted upon his testi
mony, he would then have given conclusive evidence
that he gave the information that led to the detection
of the conspirator I "He then asked Mr, Benja^
min J, Naylor if he did not mention io him and
Gibbons, before the killing of the President, the
language thai Dr, Mudd had used. Mr, Naylor
said thai he had never done it before or after!''
¦He said his portion of the reward ought to be
510,000 — and asked me ( Watson) if I would not,
as the best loyal manin Prince George's county, give
him, a certificate of how much lie ought to be entitled
to," The testimony of Richards, and of Eli J.
Wataon, coupled with Tbomaa' teatimony in de
nial of these statements, fill tbe record of infamy
of this false witness.
To accumulate evidence that Thomas' state
ment is utterly unreliable, tbe defense brought
over twenty of his neighbors, who testified that
be could not be believed on oath — among whom

326

ARGUMENT OF THOMAS EWING, JR.

were Naylor, Roby, Richards, Orme, Joseph
Waters, John Waters, J. F. Watson, Eli Watson,
Smith, Baden, Dickens, Hawkins, Monroe and
others, of undisputed loyalty, nearly all of whom
had known bim from boyhood. His brother,
Dr. Thomas, testifies that he is at times de
ranged ; and Dr. George Mudd says that he is
mentally and morally insane. And, although
Thomas' evidence was tbe most important in tbe
case against Dr. Mudd, tbe Judge Advocate has
not seriously attempted to sustain him — ^bas not
tried to show that be ever told or hinted at this
story to anybody before tbe assassination — and
has not asked one of tbe scores of witnesaea for
tbe proaecution in attendance from Thomas'
neighborhood a question as to his reputation for
veracity — except Wm. Watson, who said it was
decidedly bad, A feeble attempt was made to
sustain him, by endeavoring to show tbatbe was
a zealous supporter of tbe Administration, aud
that, therefore, tbe general voice of his comrau
nity was against bim. But we showed that he
was a rebel at the beginning of the war, and an
opponent of tbe Administration at tbe laat elec
tion — aud then the Judge Advocate dropped hira !
Tbia ia all tbe evidence of every act or word
done or said by any body, prior to tbe assassi
nation, tending in tbe remotest degree to con
nect Mudd with tbe conspiracy. It consists, in
large part, of tbe testimony of the five negroes, as
to tbe Confederate officers frequenting Mudd'a
house last year and tbe year before — two of
them, Milo and Mary Simms, as to Surratt's visit
ing his house last year — of Evans, as to Mudd's
going to Surratt's bouse last winter — of Evans
and Norton, as to Mudd's being here on the 3d
of March — of Weichmann, as to tbe interview
between Mudd, Booth and Surratt, about the
middle of January, and of Tbomaa, as to Mudd's
prediction of tbe assassination in March, I ven
ture to say that rarely in tbe annala of criminal
triala baa tbe life of an accused been assailed by
auch an array of false teatimony as is exhibited
in the evidence of these nine witnesses — and
rarely has it been the good fortune of an inno
cent man, arraigned and on trial for bia life, to
ao confute and overwhelm bis accusers. I feel
it would be a waste of tirae, and an imputation
on tbe intelligence of tbe Court to delay it with
fuUer diacussion of tbe evidence of these wit
nesses, and feel sure it will cast their testimony
from its deliberationa, or recollect it only to re
flect bow foully and miatakenly tbe accused has
been assailed.
Having now discussed all the evidence ad
duced that calls for discussion, or may by possi
bility be relied on as showing Mudd's acquaint
ance with Booth, or connection with tbe con
apiracy, and having, I tbink, ahown that there
is no reliable evidence that be ever met Booth
before tbe assaaaination but once on Sunday,
and once tbe day following, in November last, I
will proceed to a consideration of the testimony
relied on to show that he knowingly aided tbe
escape of tbe assaaain.
First. Why did Booth go to Dr. Mudd's and
stop there from daybreak till near sundown on
his flight? I answer, becauae he had a broken
leg, and needed a physician to set it. And as
to tbe le'ngth of tbe stay, tbe wonder is he was

able to ride off on horseback with bis broken and
swollen limb at all — not that be took ten hours'
rest. Tbe Court will observe frora tbe map in
evidence, that Booth, taking SurrattsviUe in his
route to Pope's creek, opposite Matthias Point,
where be crossed tbe Potomac (Capt. Doherty),
traveled at least eight or ten miles out of his way
to go, after leaving SurrattsviUe, by Dr. Mudd's.
(See Dyer's testimony.)' Would be have gone
that far out of Ms route to the Potomac crossing
if be bad not broken bia leg ? Or was it part of
bis plan to break it ? Obviously, be could not
in advance have planned to escape by crossing
tbe Patuxent, nor to evade his pursuers by lying
concealed in Charles county, within six hours'
ride of Washington. He must, as a sane man,
have contemplated and planned escape across
the Potomac into Virginia, and thence South or
abroad ; and it could never have been part either
of tbe plan of abduction, or of that of assassina
tion, to go the circuitous route to a crossing of
tbe Potomac by Bryantown or Dr. Mudd's. So
that the fact of Booth going to tbe houae of the
accused and stopping to get his leg set and to
rest, does not necessarily lead to any concluaion
unfavorable to tbe accused.
Booth got there, with Herold, about daybreak
(Frank 'Washington). He usually wore a mus
tache (see photograph), but be then wore heavy
whiskers, and had bia face muffied in a shawl,
so as to disguiae bim. Tbe disguise was kept
up all day. (Col. Wells.) He was taken to a
lounge in tbe hall, and then to a front room up
stairs, where tbe broken bone was set, where a
fee of $25 was paid for tbe service, and where,
it is probable, be slept moat of the day. Tbey
represented that tbe leg bad been broken by a
fall of tbe horse ; that tbey had come from Bry
antown, and were going to Parson Wilmer's.
After breakfast accused went to Ma field to work.
Herold, whom Mudd had never met (Colonel
Wells), came down to breakfast and dinner with
the faraily, and after dinner he and Mudd went
oft' together to the house of Mudd'a father to get
a family carriage to take tbe wounded man to
tbe bouse of Parson Wilmer, five miles off, at
Piney Chapel. (Lovett Wella.) Now, can any
man suppoao for a moment that Mudd, at this
time, had tbe alightest auapicion or intimation of
tbe awful tragedy of tbe nigbt before ? Could
be, knowing or auspecting the crime or the crimi
nal, have thua recklessly given bimself up to ar
reat and trial, by publicly aiding the escape of
tbe assassin ? Could he have been ready to ex
pose bis old father to suspicion by thus borrow
ing Ma carriage, which would have been noticed
by every man, woman and child on the road, to
oariT- off the aasassin? Impoaaible! I need
nothing more of the Court than ita consideration
of this fact, to clear the accused of all auapicion
of having, up to that time, known or suspected
that a crime had been committed by the crippled
atranger, whom be was thus openly and kindly
seeking to aid.
But the carriage could not be got, and Mudd
and Herold rode off toward Bryantown to get
one there. Col. Wells thinks the accused told
him that Herold turned back when getting one
and a-half miles from the elder Mudd's house,
saying he could take bia friend off on horaebaok.

THB CONSPIRACY TRIAL.

327

Betty Briaooe and Eleanor Bloyce, however, aay
tbey saw a man riding toward Bryantown with
tbe accused, who turned back at the bridge at
the edge of tbo town.
Mudd made some purchases of calico and other
articles, and beard of the assassination. (Bean.)
It waa not generally known then among tbo
citizena who was tbe assassin. (Bean, Roby,
Trotter, B. W. Gardiner, M. L. McPherson, John
McPherson.) In fact it was not generaUy known
with certainty at the theater, or in Washington,
Friday night, whether Booth was the murderer.
(Gobright.) In Bryantown it was commonly
understood that Boyle, a noted desperado of that
region, who assassinated Capt. Watkins last fall,
was one of the aasassins, (M. L. McPherson,
Bean, Trotter, Roby.) It was not known that
tbe murderer bad been tracked into that neigh
borhood. (Bean, Dr. Geo. Mudd.) Lieutenant
Dana told Dr. Geo. Mudd, Saturday afternoon,
that Boyle assassinated Mr. Seward, and Booth
the Preaident, but tbatbe thought Booth bad not
then got out of Waahington. Even next day
(Sunday) it was reported there that it was Edwin
Booth who killed tbe President.
The accused left Bryantown about four
o'clock to return home. Betty Briscoe says the
same raan who bad turned back at tbe bridge
Stopped in tbe edge of a branch, ^wbicb the
road crosses a couple of hundred yards from
tbe bridge, until Mudd returned from tbe
town, and then tbey rode off together across
tbe branch, "up the road." But Boozsajs be
saw Mudd a couple of hundred yards beyond
that crossing leisurely going through tbe farm
Booz Uves on, by a near-cut which be usually
traveled, alone; and that he would himself
have probably noticed tbe man at tbe crossing,
which was in full view of where be was, bad
be been waiting there; and would have cer
tainly noticed bim had ho been with Mudd
traveling tbe main road, when Mudd turned
into tbe cut-off through the farm — ^but be aaw
no one but the accuaed. Sisan Stewart alao
saw Mudd in tbe by-road returning home
alone, and did not aee any man going tbe
main road, which waa in full view. I call the
attention of the Court to the plat by which
the branch and these roads are shown, and to
the fact that there is no road turning off frora
the main road between Booz's place and Bry
antown, except tbe side road by Booz's bouse.
If further refutation of tbe testimony of Bet
ty Briscoe on this point be required, it is
found in the evidence of Primus Johnson, who
aaw Herold pass the elder Mudd's in tbe main
road, going toward the house of tbe accuaed,
and some time after that, bimself caught a
horse in the pasture, and rode toward Bry
antown, and met and passed Dr. Mudd coming
leisurely from Bryantown, alone, ai Booz's
farm; and that from tbe time be saw Herold
until he- met and passed Mudd was full an
hour and a-balf. And in the evidence of John
Adon, who waa on tbe roadside, three miles
from Bryantown, when Herold passed, at
between three and four o'clock, and who
remained there an hour, and Dr. Mi^dd did
not go by in that time. Acton also aays,
that, between the time Herold and Mudd went

toward Bryantown and tbe time Hnrold
returned alone, waa but three-quarters of an
hour. From the fact that Herold could not
have ridden to the bridge and back in that
time (six miles), it seems highly probable that
bo did not go to the bridge, but turned back
about where Colonel Wells thinks Mudd aaid
he did. But however that may be ia not ira-
portant, aa it ia certain from the evidence of
these four witneaaes that Herold did not wait
at tbo branch for Mudd'a return from Bry
antown. Aa Mudd rode home, he turned out of bis
way to see bis neighbor. Hardy (who lives
half-way between the house of tbe accuaed
and Bryantown), about some rail-timber he
bad engaged there. Tbe house is not in view
of tbe road, a clump of pines intervening.
He told Hardy and Farrell of tbe news. Har
dy aays:
"He said to me that there was terrible news
now, that tbe President and Mr. Seward and
hia son bad been aasaasinated tbe evening
before. Something was said in that connec
tion about Boyle (tbe man who ia said to have
killed Captain Watkins) aasasainating Mr.
Seward. I remember that Booth's name was
mentioned in tbe same connection, and I asked
him if Booth was tbe man who bad been down
there. His reply was that be did not know
whether it was that man or one of bis broth
ers; he understoo.l that he bad some brothers.
That ended tbe conversation, except that he
said it was one of the most terrible calamities that
could have befallen ihe country at this time,
" Q. Did you say that it was understood or
said that Booth waa the aaaaaain of the Prea
ident? A. There waa sorae such remark made,
but I do not exactly remeraber the remark."
Tbey both say he aeemed heartily aorry for
the calamity, and that he said he had juat
come from Bryantown, and beard tbe newa
there. Hardy aaya be stayed there only
about ten minutea, and left just about sun
down. Farrell corroborates Hardy as to tbe
conversation, except that be reports nothing
as to Boyle's name being mentioned; but be
says tbe conversation was going on when he
joined Hardy and Mudd. He says \be house
ia leaa than a quarter of a mile off the road,
and that accused stayed there about fifteen
minutes. Now, I ask tbe Court, what is there up to
this point to indicate that Mudd knew or bad
any suspicion that tbe broken-legged man was
implicated in the crime? If there is anything
in proof showing that fact, I fail to find it.
True, be had met Booth twice in November —
five months before. Had seen bim that dark,
cloudy morning, at day-break, faint with
fatigue and suffering, muffied in his shawl
and disguised in a heavy beard; bad minis
tered to him in the dim light of a candle,
whose rays struggled with tbe dull beams of
the opening day; bad seen him, perhaps,
sleeping in tbe darkened chamber, his mus
tache then shaved off', bis beard still on, hia
effort at concealment still maintained.
(Wells.) And here let me remind tbe Court,
that there is nothing in the evidence abowing

328

ARGUMENT OF THOMAS EWING, JR.

that Booth spoke a word, but where either of tbe
men are referred to as saying anything, "tbe
smaller man " was tbe spokesman. Let it be
remembered, too, that Booth was an actor, accus
tomed by years of professional practice to dis
guise his person, bis features, and bis tones, ao
that if Mudd bad been an intimate associate,
instead of a mere casual acquaintance, it would
have been easy for Booth to maintain a disguise
even when subjected to close scrutiny under cir
cumstances favorable to recognition. If tbe
(.'ourt will also consider with what delicacy a
physician and a gentleman would naturally re
train from an obtrusive scrutiny of a patient
coming to bis house under tbe circumstances,
they will appreciate bow easy it was for Booth
to avoid recognition, and bow probable that
Mudd had no suspicion who his patient was.
Had be recognized Booth before he went to Bry
antown, and beard there that name connected
with the " terrible calamity," would he have
jogged quietly home, stopping to chat with
Booz, to look after bia rail-timber, to talk of tbe
namea of tbe assassins with his neighbors?
Unleaa tbe Court start out with tbe hypothesis
of guilt, and aubatitute unsupported suspicion
for proof — which I respect tbem too highly to
fear for a moraent they will do — tbey can not
charge bim with a recognition of Booth before
be returned home from Bryantown,
Hardy aays it was about sundown when Mudd
left; Farrell says about 5 o'clock. He bad two
miles to ride home. It must have been sundown
when be got home, and tbe men bad just gone.
Betty Washington aays that three or four min
utes after Herold (tbe last of tbe two) disap
peared toward the swamp, Mudd came through
tbe ball to tbe kitchen, and was then first seen
by ber after bis return fromlBryantown, The
other servants bad not come from the field when
tbe men started, and we are, therefore, left to
that one witness to show that tbe statement of
Simon Gavacan, one of the detectives, who says
"Ae thinks " Mudd said be went with tbem part
of the way, is incorrect. It is inconsistent, too,
with Mudd'a statement to Col, Wells on tbe sub
ject, which is aa foUowa: "Tbe Doctor aaid that
aa be came back to tbe bouse be saw tbe person,
that be afterward supposed to be Herold, pass
ing to the left of tbe bouse, and toward tbe barn
or tbe atable ; that be did not see tbe other per
son at all after be left hira at tbe bouse, which
was about 1 o'clock, I tbink." This statement,
and that of Betty Washington, last above quoted,
coincide with, and strengthen each other.
It is true. Dr. Mudd did say to all, who asked
bim, that be bad shown Herold the way to Par-
sou Wilmer's by tbe short route, but this was in
the morning, soon after tbe parties reached tbe
bouse, and before tbe idea of tbe carriage ap
pears to have been suggested. This is shown
by the statement of Col. Wella, who says that
t be accused, in ihe sa,7ne conversation in which he
said thai Sooth and Herold had just gone from ihe
house as he came up, told bim that " Herold, the
younger of tbem, asked him tbe direct route to
Piney Cbapel, Dr. Wilmer's, aaying that he was
acquainted with Dr. Wilmer." He described the
main traveled road, which leads to tbe right of
bis house, and was then asked if there was not

a shorter or nearer road. He said, " Yes ; there
is a road across tbe swamp that is about a mile
nearer, I think;" be said it was five miles frora
bis house to Piney Cbapel by tbe direct road,
and four miles by tbe marsh, and undertook to
give bim (as be said) a description by which
they could go by tbe nearer route. He said
that tbe directions were these: "Tbey were to
paaa down by his barn, inclining to the left,
and then pass straight forward in a new direc
tion acroaa tbe marsh, and that, on passing
across tbe marsh, they would come to a hill;
keeping over the bill, they would come in sight
of tbe roof of a barn, and, letting down one or
two fences, tbey would reach tbe direct road."
Tbe accused meant, of course, that this in
quiry and explanation occurred before bis re
turn to tbe bouse from Bryantown, and ao Col.
Wells understood bim, for he so in effect aaya.
Tbe atateraent of tbe accuaed to Dr. George
Mudd, the next day after Booth left, ia to the
aarae effect. He said ; " That these parties
stated that they came from Bryantown, and
were inquiring tbe way to the Rev. Dr. Wil
mer's," thus putting their inquiry for tbe route
to Parson Wilmer's in direct connection with
their early explanation as to whence they came.
I have no doubt that Gavacan, tbe detective,
recollects an inference which he, and, perhaps,
also Ms associate detective, Williams, drew
from Dr, Mudd saying that be had ahown
Herold tbe route to Parson Wilmer's; that he
showed it as Booth and Herold were leaving.
But tbe inferences of detectives, under the
strong stimulus of prospective rewards, are in
ferences generally of guilt; and that these gen
tlemen were not free from tbe weaknesses of
their profession, and that tbey grossly misrep
resented Dr, Mudd in other important state
ments, will presently be shown to the satisfac
tion of tbe Court.
Now, if Mudd did not know, when he talked
with Hardy about tbe assassination, and apoke
of Booth in connection with it, that the assas
sin was at Ms house — as I tbink tbe evidence
shows be did not — then when did be first sus
pect it? Col. Wells says bis inference was,
from something tbe accused said, that be sus
pected tbe crippled man to be Booth before be
left the premises. Tbo evidence not only shows
that when Mudd returned Booth had gone out
of sight, but it also shows what fact it was
that, added to the undue excitement of the
strangers, and to tbe fact that tbe crippled
man shaved off his moustache, thoroughly
aroused bis suspicion. It was tbe fact tbatte
wife said to him, after they left, that, as the crip
pled man came down to go, his false whiskers be
came detached from his face, (Lieut. Lovett.)
When she told him this, and what be said or
proposed to do, was not shown by tbe prosecu
tion, and, by the rules of evidence, could noi be
by the defense. But that was a fact which
could not probably have been communicated to
Mudd by his wife until Booth bad gone.
In the evidence adduced as to Mudd's sub
sequent conduct and statements, I need only
call tbe attention of tbe Court to two points,
for in it there is nothing else againat bim;
1st. He did not tell, on Tuesday, that the boot

THB CONSPIRACY TRIAL.

829

was there, far down in tbe leg of which was
found, by tbe officers, "J. Wilkes," written in
pale ink. I anawer, the boot waa not found by
hia wife until aeveral days after tbe aasassin
left, and was then found iu sweeping under the
bed. (Hardy.) We have every reaaon to aup
pose it was not found until after Tuesday, for
the accused, on Friday, before a question vvas
asked, or a word communicated to him, told of
the boot himself, and had ii produced, and said, in
presence of bia wife, it was found by ber after
tbe officers were there before. (Hardy.)
2d. Of tbe three detectives who went to tbe
bouse of accused Tuesday, TTiWiams aaya: Ac
cused denied throughout that two men bad
been there; yet be says, on cross-examination,
that accuaed, in the same conversation, pointed
out tbe route the men bad taken toward Wil
mer's. Gavacan said be at first denied two men
had passed there, and then admitted it. Lloyd
says be denied it from beginning to end, on
Tuesday. But Lieut. Lovett, who went with
aud in command of these detectives, speaking
of this interview on Tuesday, says : " We jirst
asked whether there had been any strangers at his
house, and he said there were," The three detec
tives are manifestly mistaken ; either from in
firmity of memory, or from some leas pardon
able cause, tbey have failed to recollect and
truthfully render what Dr. Mudd did say on
that subject.
Tbe coramentators upon tbe law of evidence
give a caution which it may be well for tbe
Court to observe. Tbey admonish us how easy
it is for a corrupt wuness to falsify a conver
sation of a person accused, and as tbe accused
can not be beard, liovf difficult, if not impossi
ble, contradiction is. How easy for an honest
witness to misunderstand, or in repeating
what was said, to substitute his own language
or inference for tbe language which was really
used, and thua change ita whole meaning and
import. In no case can the caution be more
pertinent than in this. Tbe very phrensy of
madness ruled the hour. Reason was swal
lowed up in patriotic passion, and a feverish
and intense excitement prevailed most unfa
vorable to a calm, correct bearing and faith
ful repetition of what was said, especially by
the sus'pected. Again, and again, and again
tbe accused was cateebised by detectives, each
of whom was vicing with tbe other as to which
should make tbe most important discoveries,
and each making tbe examination with a pre
conceived opinion of guilt, and with an eager
desire, if not determination, to find in what
might be aaid tbe proofa of guilt. Again, tbe
witneasea against the accused have testified
under the atrong stimulus of a promised re
ward for information leading to arrest and
followed by convictions. (See order of Secre
tary of War.) At any time and in any com
munity, an advertisement of rewards to in
formers would be likely to be responded to —
at a time, and on an occasion like this, it
would be a miracle if it failed of effect. In
view of these considerations, tbe Court can
not be too vigilant iu its scrutiny of tbe evi
dence of these detectives, or too circumapeot
in adjusting tbe infiuence to be given to it.

No more effective refutation of this stater
ment, that Mudd denied on Tuesday that two
atrangera bad been at Ma houae, can be given
than to aak bow came Lieut. Lovett and the
detectives at Dr. Mudd's? Tbey did not scent
out tbe track for themselves. They were at
Bryantown on Saturday, and were at fault,
and bad tbey been let alone, would probably
have remained at fault, and not have gone to
Dr. Mudd's, By whom and when was the in
formation given which brought tbem there?
Tbe next morning after the startling newa of
tbe assassination reached him, tbe accused
went to Dr. George Mudd, a man of spotless
integrity and veracity, and of loyalty un
swerving through all tbe perilous and dis
tressing scenes of the border war, and fully
informed bim of all that bad occurred — the
arrival of tbo two atrangera, the time and cir
cumstances under which tbey came, what he
bad done for tbem, tbe suspicions be enter
tained, when tbey departed, and what route
tbey bad taken ; and requested bim, on bis
behalf and in bia name, to communicate this
information to tbe military authorities on his
return that day to Bryantown. Dr. George
Mudd (Zi'tZmake the communication as requested,
on Monday morning, to Lieut, Dana, and fur-.
tber informed bim of Dr. Samuel Mudd's de
sire to be sent for any further information
which it might be in bis power to give. In
consequence of this, and of this alone, Lieut.
Lovett and tbe detectives did, on Tuesday, go
to tbe house of tbe accused, accompanied by
Dr. George Mudd, who prefaced his introduc
tion by informing tbe accused that, in accord
ance with Ms request, he bad brought Lieut.
Lovett and the detectives to confer with him
in refereuce to tbe strangers who had been at
bia house Saturday. Of these facta there ia
no doubt or diapute. Tbey stand too promi-
nenty upon tbe record to be ignored or eva
ded. But for tbia information the detectives
would not have been at the bouse of the ac
cused at all. Tbey came at bis request, and
when tbey came it ia absurd and idle to say
that be denied, almost in tbe presence of Dr.
George Mudd, who had been his messenger
and was then in tbe house, that tbe two stran
gers had been there. On the contrary, the
evidence shows he imparted all be knew, and
pointed out tbe route which the strangers
took when tbey left — ^but which Lieut. Lovett
and the detectivea did not at once pursue, be
cause tbey chose to consider his statement un-
candid, and intended to put them upon a false
scent. Indeed, so accurate w.as the descrip
tion given by tbe aaouaed to Lieut. Lovett,
Tuesday, of the persons who had been at his
bouse, that the lieutenant says he was satiSf
fied, from Mudd's description, they were Booth and
Herold, It waa in great part by reason of Dr. Mudd'a
having delayed from Saturday nigbt until
Sunday noon to send to tbe authorities at Bry
antown information as to tbe suspected per
sona who bad been at his bouae, that he was
arreated and charged aa a conapirator; and
yet I aasert this record shows he moved
more promptly in communicating his inform-

330

ARGUMENT OF THOMAS EWING, JR,

ation than they did in acting on it. His mess
age was communicated to Lieut. Dana Mon
day morning. Tuesday, Lieut. Lovett and the
detectives came, and that officer got such in
formation from Dr. Mudd aa convinced him
the suapeoted persona were Booth and Herold,
and yet it was not until Col. Wells came, ou
Saturday, that an energetic effort was made to
find tbe route of tbe assassin. On that day,
Dr. Mudd bimself went with that officer, and
followed the tracks on the route indicated be
yond tbe marab into a piece of plowed
ground, where the tracks were lost. But Col.
Wella had got tbe general direction, and it waa
in consequence of the information sent by tbe
accused to tbe authorities tbe day after Booth
left his bouae, that be was tracked to tbe Po
tomac. But tbe evidence does not abow that Dr.
Mudd delayed at all in communicating bia in
formation, for it does not abow when Ms wife
told him of tbe false whisker of tbe crippled
man. But, adrait she told bim on Saturday
evening, as soon as tbe men left. It was four
miles to Bryantown, and his wife may have
feared to be left alone that night. Boyle, who
haunted that neighborhood, was understood
by Dr. Mudd to have been one of the asaaa-
ains (Hardy), and may not his or his wife's
fears of tbe vengeance of that desperado have
prevented bim communicating hia auapicions
direct and in person to tbe officer at Bryan^^own?
He told Dr. George Mudd next day, when ask
ing him to go to the authorities with tbe in
formation, to caution tbem not to let it be pub
licly known that he bad volunteered tbe state
ment, lest he might be assassinated in revenge
for having done it.
Having thus presented and discussed some
what in detail the teatimony in this case, I
now ask tbe indulgence of tbe Court wbile I
briefly review some of ita leading features.
Booth and Mudd met firat in November last
at church, near Bryantown, casually, 'and but
for a few minutea. Their conversation was in
presence of many othera, including men of
unqueationed loyalty. Next morning. Booth
left Dr. Queen'a, rode by Mudd's, talked of
buying bis farm, got him to show bira over to
Gardiner's, a quarter of a mile off, where be
bought a borae, Mudd manifeating no interest
in the purcbaae. Tbey rode away together
toward Mudd's bouse, and toward Bryantown,
where Gardiner found Booth next morning at
the village hotel. Booth was again at Dr.
Queen's in tbe middle of December. But tbe
evidence shows that be did not go into Mudd's
neighborhood, or seek or see bim. So far as
we dare speak from the evidence — and we
should dare speak from nothing else — that is
all tbe intercourse between Mudd and Booth
in that neighborhood before tbe aasassination.
What was there in that to attract attention
or excite remark toward Mudd more than to
Dr. Queen or Mr. Gardiner, or any other gen
tleman in Charlea county, to whom Booth had
been introduced, and with whom he had con
versed? All that is shown to have paaaed
between them waa perfectly natural and barm-
less, and nothing is to be presumed which was

not abown. True, they might have talked of
and plotted aasaasination; but did tbey? Is
there, in the intercourse which had thus far
occurred, any incident from which auob a de
duction could be drawn, or which would jus
tify a suapicion that any auch thing waa
thought of or hinted at ? Nor did they ever
meet again anywhere before tbe aasassination,
unless the testimony of Weichmann is to be
accepted as true, which, upon this point, at
least, is quite unworthy of credence. He
swears to having met Dr. Mudd and Booth, in
tbe city of Washington, about tbe middle of
January — certainly after tbe bolidaya. But
it is in proof by many witnesses, who can not
be mistaken, have not been impeached, and
who unquestionably stated the truth, that Dr.
Mudd waa from home but one nigbt from tbe
23d of December to tbe 23d of March, and
that night at a party in bis own neighborhood.
If this be so, and there is no reason to doubt
it, then Weichmann'a statement can not be
true. Tbe mildest thing that can be said of
bim, as of Norton, is, that he was mistaken
in tbe man. That which was attempted to be
abown by this contradicted witness (Weich
mann) was, that Dr. Mudd and Booth, who
were almoat atrangera to each other, met Sur
ratt, to whora Booth was unknown, at the Na
tional Hotel, and within half an hour after
the raeeting, plotted the aasassination of the
President, his Cabinet, the Vice-President, and
General Grant — all this in Washington, and
in the presence of a man whom one of tbe
supposed conspirators knew to be an em
ployee of tbe "War Department, and bad rea
son to believe wac a Government detective !
It is monstrous to believe any such thing oc
curred. It outrages all that we have learned
of the philosophy of human nature, all that
we know of tbe motives aud principles of hu
man actions. And yet, if Mudd was not then
and there inducted into tbe plot, he never was.
He never aaw Booth again until after tbe asaas-
sin ation, and never saw any of tbe other con
spirators at all. Twice, then, and twice only —
unless tbe Court shall accept tbe testimony
of Weichmann against the clear proofs of an
alibi, and then only three times — be and Booth
bad met. None of these meetings occurred
later than tbe 15th of January. They are
shown to have been accidental and brief. The
parties bad butlittle conversation, and portions
of that little have been repeated to the Court.
So far as it has been disclosed, it was as inno
cent as tbe prattle of children, and not a word
was breathed that can be tortured into crimi
nality — not a word or an act that betokens
malign purposes. Against bow many scores
of loyal peraons, even in tbia community, may
stronger evidence be adduced than against
Mudd, if tbe mere fact of meeting and con
versing with Booth ia to be accepted as evi
dence of guilt? Booth was a guest at tbe
National Hotel — intelligent, agreeable, of at
tractive manner, with no known blemish on
bis character as a man or a citizen. He bad
tbe entree of tbe drawing-rooms, and mingled
freely with tbe tbronga that aaaembled there.
Hia society, ao far from being shunned, was

THE CONSPIRACY TRIAL.

331

courted ; aud the fairest ladies of the land,
the daughters of diatinguiabed statesmen and
patriots deemed it no disparagement to them
to accept his escort and attentions. It ia not
extravagant to say, that hundreds of true.
Union-loving, loyal people in this and in
other cities, were on terms of cordial and in
timate association with him. And why should
they not have been ? He was under no sus
picion. They did not shun Mm. Why should
Mudd ? And why ahall what was innocent in
them be held as proof of guilt in Mm ? Let
it be remembered, in this connection, that Dr.
Mudd's bouse was searched and his papers
seized; that Surratt's bouse was seized and
searched; that all tbe effecta of Booth, Atze
rodt, Arnold, Herold, Spangler, and Mra. Sur
ratt, that could be found, were seized and ex
amined ; and among tbem all not a letter, a
note, a memorandum, not the scrape of a pen by
any peraon .or in any form, haa been found
implicating Dr. Mudd. Let it further be re
membered, that all theae peraona have been
aubjected to repeated examinationa, under ap
palling circumstances, by various officiala of
the Government, eager to catch tbe fainteat
intimation of Mudd's complicity, and that not
one of them has mentioned or hinted at his
name. Let it also be reraerabered, that anon
ymous letters have been picked up in railroad
cars, found in pigeon-boles at hotels, rescued
from tbe waves, and that tbe continent has
been traversed and the ocean vexed in search
of proofs of tbe conspiracy, its inatigatora,
leaders, and abettors, and that in all this writ
ten and oral testimony there ia not a word
making the remoteat alluaion to Dr. Mudd.
The probabilitiea are as a thousand to one that
be never knew, or heard, or imagined, of a
purpose, much less plotted in a conspiracy,
either to capture or to assassinate tbe President.
There is not only a failure to show bia connec-
nection affirmatively, but, if the rules of law
be reveraed, and guilt be presumed until in
nocence be abown, then, I say, be has carried
his proofs in negation of complicity to a point
aa near demonatration aa it ia poaaible for cir
cumstantial evidence to reach. I once more
concede, that (if the Court accept Weich
mann'a atatement) it ia possible be may have
talked treason and plotted assassination with
Booth and Surratt, but it is indefinitely re
moved from tbe probable ; and neither liberty
nor life is to be forfeited upon either proba
bilities or possibilities. I can not bring my
self to fear that this Commiaaion will sanction
what, in my judgment, would be so shocking
and indefensible a concluaion.
If he and Booth bad, at tbe alleged meeting
in January, confederated for the perpetration of
one of the most stupendous and startling crimes
in tbe annala of human depravity, who can
doubt that frequent meetings and consulta
tions would thereafter have occurred, and
that they would have increased in frequency
as tbe time for the consummation of the atro
cious plot approached ? Yet, though within
six hours' ride of each other, tbey had no
meetings, no consultationa, no intercourse, no
communication, no concert, but were in total

ignorance of oaoh other's movements and pur
poaes. Mudd waa here the 23d of March, but
he waa not here for the purpose of aeeing
Booth, nor did he aee Mm. He made no in
quiry for him ; did not call at hia hotel ; aaw
none of hia associates; did not apeak of him;
did not, so far as appeara, even tbink of him.
On the llth of April, only three daya before
tbe frightful tragedy waa enacted, Mudd was
at Giesboro, in sight of Washington. Booth
was then at the National Hotel ; and if Mudd
was leagued with him, that was the time of all
othera, from the conception to tbe consumma
tion of tbe deed, when he would have seen
and conferred with bim. If Mudd waa a con
spirator, he knew of Booth's presence here
then ; yet he did not come to tbe city — did not
inquire for Booth, aee him, bold communica
tion with him, learn whether be was in Wash
ington or Beaton, Naaaau or London. Three
days only before tbe frightful tragedy — three
days before tbe world waa astounded by its
enactment I Imagine, if you can — if he was
a conspirator — what a tumult of thought and
emotion muat have agitated bim then — what
doubta and miagivings — what faltering and
rallying of resolution — what invocations to
" stop up tbe access and passage to remorse" —
and then aak your own bearta and judgments
if it ia natural, or poaaible, that, at auch a mo
ment and under auch circumatances, he could
quietly have tranaacted the buainesa that
brought bim to Geisboro, then turn his back
upon Washington, indifferent to the failure or
succesa of tbe events with which bis own life,
the happiness of his family, and all that was
dear to bim on earth, were bound up ? If a
conapirator, he knew what had been, and what
Waa to be, done. He knew that tbe hour for
tbe bloody busineaa waa at hand, and that
everything depended upon the secrecy aud
success of its execution. Yet he was indif
ferent. He sought no interview with his aup
posed oonfederatea — gave tbem no counael or
assistance — took no precautions for security —
gave no signs of agitation or concern — ^but, in
sight of the place and the agents aelected for
the enactment of tbe horrible deeds, turned
bia back upon them all, with an Indifference
that bordered upon idiocy, quietly trafficked
at Geisboro, and returned to tbe seclusion of
bis faraily and farm. You know, gentlemen,
that this is impossible. You know that it
could not have happened without outraging
every law of human nature and human ac
tion. You know that at such an hour hia soul
would have been shaken with tbe maddest
storm and tempeat of paaaion, and that no
mere buaineas affair on earth could have se
duced bia thoughta for a moment from the sav
age slaughter be had in band. It would have
engrossed all his thoughts, and shaped all Ms
actions. No one can, iu tbe strong light of
tbe evidence, believe be was a conspirator.
I then confidently conclude that Dr. Mudd
can not be convicted as a principal in tbe fel
ony. He did not participate in its commis
sion, and waa more than thirty miles distant
from tbe scene when it was committed. He
can not be convicted as an accessory before

332

ARGUMENT OF THOMAS EWING, JR.

the fact, for the evidence faila to show that
he had any knowledge or suspicion of an
intention to commit it. If, then, he ia to be
held responsible at all, it is an accessory after
the fact. Does the evidence implicate bim in
that character? What is. an accessory after
tbe fact ?
An accessory after tbe fact is when a per
son, knowing a felony to have been committed,
receives, relieves, comforts, or assists Mm
whom he knows to be tbe felon. He must
know that the felon is guilty to make him an
accessory. 1 Chitt, Crim, Law, 264.
Any assistance given to him to hinder his
being apprehended, tried, or punished, is suffi
cient to convict tbe offender — aa lending bira
a borse to escape bis pursuers ; but tbe as
sistance or support muat be given in order to
favor an illegal eacape. 1 Chitt, Crim, Law,
265. If a man receives, harbors, or otherwise
asaiata to elude justice, one whom he knows to
be guilty of felony, he becomes thereby an ac
cessory after tbe fact in tbe felony. 1 Bish
op's Crim. Law, 487. Obviously, a man to be
an accessory after tbe fact must be aware of the
guilt of his principal; and, therefore, one can
not become an accesaory by helping to eacape
a priaoner convicted of felony, unless he has
notice of the conviction, or at least of the felony
committed, 1 Bishop's Crim, Law, 488. The
charge againat an accesaory consiata of two
parts : Firat, of tbe felonious situation of th
principal : and, secondly, of the guilty knowl
edge and conduct of tbe accessory. It will
thus be seen that knowledge of the crime com
mitted, and of the guilt of the principal who is
aided, and aid and assistance after acquiring that
knowledge, are all necessary to charge one as
accessory after tbe fact.
Now let us apply the facts to tbe law, and
see whether Dr. Mudd falls within the rule.
On tbe morning after tbe assasaination, about
daybreak. Booth arrived at his bouse. He did
not find the doctor on watch for him, as a
guilty accomplice, expecting bis arrival, would
have been, but be and all hia bouaehoid were
in profound sleep. Booth came with a broken
leg, and bis companion, Herold, reported that
it had happened by tbe fall of his horse, and
that they had come from Bryantown, and were
going to Parson Wilmer's. The doctor rose
from his bed, aasiated Booth into the house,
laid him upon a sofa, took him up staira to
a bed, set the fractured bone, sent him a razor
to shave bimaelf, permitted him to remain
there to aleep and rest, and bad a pair of rude
crutches improvised for hia use. For all this
he received the ordinary compensation for
services rendered to strangers. He then went
to his field to work. After dinner, wbile tbe
day was still dark, and Booth atill reating dia-
guised iu hia chamber, Mudd left the houae
with Herold. Even though he bad known of
the assassination, and that his patient was the

asaaaain, none of theae acts of assistance
would have made him an accessory after the
fact. "If aperson supply a felon with food, or
other necessaries for his sustenance, or profession
ally attend him sick or wounded, though he know
him to be a felon, these acts will not be sufficient to
make a party an accessory after the fact," Whar
ton's American Criminal Law, p. 73. But he did
not know, and bad no reason to suspect, that
his patient was a fugitive murderer. The
most zealous advocate would not venture to
assert that the evidence warrants such con
clusion ; much less will it be assumed by one
acting under the solemn responaibilitiea of
judge. Down, then, to tbe time Mudd left
home with Herold, after dinner, tbe evidence
afforda no pretext for aaserting he was an ac
cesaory after the fact.
But if he waa not then an accesaory, he
never was. It is shown that Herold turned
back on the way to Bryantown, and when
Mudd returned, he and Booth had gone.
And tbe evidence does not show that he sus
pected them of having been guilty of any
wrong, until Ma wife told, him, after tbey bad
gone, that tbe whiakera of tbe crippled man
fell off as he came down stairs to go. True,
Booth was guilty, and Mudd had shown his,
companion tbe route to Wilmer's ; which was
tbe only thing done by Mudd, from first to
last, that could have implicated bim, even had
he from the first known the crime and the criminal.
But when be did that, he did not know either;
for he did not know tbe crime until he went
to Bryantown, nor have even the least auspi-
oion of the criminal, until after Booth had
gone. I have read you the law — the scienter
must be ahown. Things not appearing and
not exiating stand before tbe law in tbe aame
category ; and tbe guilty knowledge not ap
pearing in evidence, in the eye of tbe law it
does not exist. In this case it is not only not
shown, but is negatived by tbe evidence. The
conclusion most unfavorable to Mudd which
the evidence can possibly justify is, that, hav
ing had his suspicions thoroughly aroused Sat
urday night, he delayed until Sunday noon
to communicate tbem to the authorities. " Jf
A knows B hath committed a felony, but doth not
discover it, this doth noi make A an accessory after
the fact," Isi Hale's Pleas of the Crown, 618.
" Merely suffering a felon to escape will not-charge
the party so doing — such amounting to a mere omis
sion," Whar. Am. Crim. Law, 73.
Can, then. Dr. Mudd be convicted as a conapir
ator, or an acceaaory before or after tbe fact, in
tbe assassination? If tbia tribunal ia to be
governed iu ita findings by the just and time-hon
ored rules of law, be can not ; if by aome edict
higher than oonstitutiona and laws, I know not
what to anticipate or how to defend bim. With
confidence in the integrity of purpoae of the
Court and its legal advisers, I now leave the
case to them. SAM'L. A. MUDD.

-A-I^GTJls^nElSrT

DEFENSE OF MICHAEL O'LAUGHLIN AND SAM'L ARNOLD,
BY
WALTER S. COX, ESQ.

Mr. President and Ginilemen of the Commission :
£ have appeared before you as the aole coun
sel of tbe prisoner, Michael O'Laughlin, and,
iu part, represent the accused, Samuel Arnold,
I now rise to their defense, deeply impressed
with tbe gravity of their situation, and tbe im
portance of tbe duty it imposes.
For myself, I would aay, that, born and nur
tured under tbe segis of tbe Federal Govern
ment, and schooled from childhood in that all-
embracing patriotism which knows no section
nor party when tbe interests or glory of my
country is in question, I have been second to
none, in attachment to tbe Federal Union, and
in hostility to tbe rebellion which menaced its
existence. I need hardly add, that no one
could have more deplored and execrated tbe
odious crime wrought upon tbe Chief Magis
trate of tbe nation at a moment when tbe re
wards of peace and sectional reconciliation
were about to crown his arduous and patriotic
labors. Nor was I willing to connect my bum
ble name with this defense until I felt assured
that tbe accused, for whom my service was first
invited, was merely the victim of compromising
appearances, but was wholly innocent of the
great offense. And now that I have beard tbe
evidence produced to you, I am strong in tbe
conviction that, even if it appear that theae
two accuaed were ever beguiled, for a moment,
to liaten to tbe auggestiona of tbia restless
schemer. Booth, yet there ia no blood on their
hands, and they are wholly guiltleas of all
previous knowledge of, or participation in,
that "arch deed of malice" which plunged the
nation into mourning. I feel, therefore, that
I stand here, not as the defender of assassins,
but to rescue tbe innocent from the opprobrium
of this great crime and a death of infamy.
I can not forbear the remark that, upon this
trial, both tbe accused and their counsel have
labored under disadvantages not incident to
the civil courts, and unusual even in military
trials. In both the civil courts and courts-
martial the accused receives not only a copy
of the charge, or indictment, in time to prepare
his defense, but also a list of the witnesses
with whom be is to be confronted. And, in tbe
civil courts, it is usual for tbe prosecutor to
state in advance tbe general nature of the case
he expects to establish, and the general scope

of tbe evidence be expects to adduce. By thia
the accused is enabled not only to apply intel
ligently tbe test of croaa-examination, but
also to know and show how much credit ia due
to tbe witneaaes who accuse him. In this case
tbe accused were aroused from their slumbers
ou tbe nigbt before their arraignment, and, for
tbe first time, presented with a copy of tbe
charge. For tbe most part, tbey were unable
to procure counsel until the trial bad com
menced; and, when counsel were admitted, tbey
carae to tbe discharge of their dutiea in utter
ignorance of tbe whole caae which tbey were
to combat, except as tbey could gather it from
the general language of tbe charge, as well as,
for tbe most part, wholly unacquainted with
tbe prisoners and their antecedents ; and the
consequence is, that tbe earlier witneasea for
tbe Government were allowed to depart with
little or no cross-examination, which, subse
quent events abow, was of vital importance to
elicit tbe truth, and reduce their vagueness of
statement to more of accuracy. And, I may
add, that important parts of this teatimony
have consisted of tbe always suspicious state
ments of informers and accomplices, brought
from remote places, whose antecedents and
characters it is impossible for the prisoners to
trace. I am constrained, further, to notice the man
ner in which tbe trial has been conducted, and
which, I think, can hardly have a parallel.
The accused were arraigned upon a single
charge. It described one offenae of some kind,
but, however apecific in form, it aeems to have
been intended, like a purser's shirt, to fit every
conceivable form of crime which the wicked
ness of man can devise. Tbe crime is laid at
Washington; yet we have wandered far away,
like mariners who have lost their compass and
can not see tbe polar star. We have been car
ried to tbe purlieua of Toronto and Montreal,
and have akirted the bordera of New York and
Vermont, touching at Ogdenaburg and St. Al
bans; have paased down tbe St. Lawrence, and
out to sea; inspected our ocean shipping; have
visited tbe fever hospitals of tbe British islands ;
have returned to the prison-pen of Anderson
ville; have seen tbe camp at Belle Isle and tbe
historical Libby, and penetrated the secret
councils of Eicbmond; have paaaed thence to
tbe hospitals of the West, and ascended the

334

ARGUMENT OF WALTER S. COX.

Mississippi, and, at length, terminated this ec
centric career in the woods of New York, Under
a charge against these prisoners of- conspiring
to kill tbe President, and others, in Washing
ton, Jefferson Davis and bia associates have
been tried, and, in tbe judgment of many, con
victed of starving, poisoning, arson, and other
crimes too numerous to mention.
I have apprehended that the counsel for the
accused would appear in a false position, from
their apparent acquiescence in this wide range
of inquiry, and, thet'efore, feel it due to my
self, at least, to explain. I, for my part, have
felt no interest whatever in resisting the ex
posure of tbe miadeeda of the rebel authorities
and agents. My only concern has been to show
that my clients bad nothing to do with tbe con
spiracy set forth in this charge. To tbe best
of my ability, I have scrutinized and sifted
the evidence of that conspiracy, ao far aa necea
sary to their defense. With regard to other
matters, foreign to tbia iaaue, I have to say, in
tbe firat place, tbe charge waa artfully framed,
with a view to admit tbem in evidence. It im
putes that the accused conspired, with Jefferson
Davis and others, to kill and murder tbe Preai
dent, etc., -unth intent to aid and comfort the in
surgents, etc., and thereby aid in the subversion and
overthrow of the Constitution and laws of ihe
United States. And, on tbe principle that other
acta, constituting distinct offenses, were some
times admitted as proof of intent, theae sub
jects, foreign to tbe main issue, have been put
in evidence. Although this seems to me a total
miaapplioation of tbe rule of practice, yet, tbe
Court having aettled tbe principle in favor of
tbe proaecution in tbe early part of the trial,
it became uaeleas to object to each separate
item coming within it afterward. It would
have been to tilt with windmills, for by no
poasible ingenuity can theae foreign matters be
used to tbe prejudice of tbe accused. I have
supposed that tbe only object of introducing
tbem was to bring to the public, in tbe shape
of sworn testimony, information of the prac
tices of the rebel leaders, to which, however ir
regular the proceeding, I had no objection to
interpose. I can not, for a moment, suppose
that the object was to inflame prejudice against
the accuaed, becauae of their auppoaed remote
connection with tbe autbora of all these evils,
and, for want of higher victims, to make tbem
the scapegoats for all the atrocities imputed to
tbe rebellion; to immolate them, to huab tbe
clamora of the public for a victim, or to ap-
peaae the Nemesis that has recorded the secrets
of tbe Southern prison-bouses, or tbe deadly
deeds wrought through fire and pestilence; for
auch a proceeding would disgrace this Govern
ment in tbe eyea of all Christendom, as much
as assassination would disgrace tbe spurious
Government which has juat vaniabed into thin
air. To come to the iaaue before thia Commission :
I bad intended to confine myself to a simple
review of tbe evidence; but tbe anomalous
character of the charge, the uncertainty in
which we are left with reference to the posi
tions to be taken by the Government, and tbe
general course of the investigation puraued,

admoniab me that I should present some legal
considerations, at least, of a general character.
This Commission aita by authority of the order
of tbe President, offered in evidence, of Sep
tember 24, 1862, which declared martial_ law
against all rebela and inaurgents, their aiders
and abettors, and all guilty of any disloyal prac
tice, affording aid and comfort to rebels against
the authority of tbe United States. Tbe quea
tion of jurisdiction having been discussed at
length already, I shall not enter upon the ques
tion whether this Court has jurisdiction to try
tbe accused upon this charge, but, assuming
that for argument's sake, I shall endeavor to
ascertain the grounds and limits of that juris
diction, and tbe mode in which it is to be ex
ercised; and, with this view, shall first submit
some general reflections upon tbe character of
tbe offenses set forth in tbe charge and specifi
cation, as tbey are known to, and punishable
by, the civil law of tbe land, and then endeavor
to ascertain how far this Commisaion, in deal
ing with tbem, is to be guided and restrained
by that law.
Below the grade of treason, crimes are
ranged under two general heads, viz. ; felonies
and miademeanors. Tbe class of felonies em
braces the more heinous offensea, auch as mur
der, arson, robbery, rape, etc. ; and tbe idea
of felony is generally associated with that of
capital punishment, though, in point of fact,
tbey are not inseparably connected. The class
of misdemeanors embraces tbe offenses of lower
degrees, auch as perjury, battery, libels, public
nuiaancea, and conspiracies, and, in abort, all
Crimea less than felonies. See 1 Russell on
Orimes, pp. 44, 45.
A conspiracy, then, belongs to tbe lower grade
of crime, and this whatever may be its object,
whether to commit a felony or a misdemeanor.
See 2 Bishop on Criminal Law, sec. 202.
A word as to tbe rationale of this rule. Tbe
criminal law takes no notice of a mere mental
intent, unaccompanied by an act. It would be
equally irapossible for human wisdom to scru
tinize the operations of the mind with that
accuracy essential to juatice, and to adapt a
scale of punishments to offenaes which have
no visible proportions, no tangible effects.
Beaides which tbe law makes a charitable al
lowance for that repentance and change of pur
pose which may intervene at any stage between
tbe first conception and the consummation of
crime. Between tbe intent and the consumma
tion lies tbe wide region of attempts from the
first feeble preparation or movement, to the
striking of the deadly blow. A conspiracy is
scarcely more than an intent, at least in its
earliest stage. It is but tbe intent of several,
mutually communicated, perhaps with mutual
excitement, and encouragement, and consulta
tion, and tbe ohanoos of its falling short of an
overt attempt are multiplied just in proportion to
the number of wills between which concert is
necessary to successful action. If it can be
properly aaid to advance beyond a mere,intent,
it ia in tbe nature of an attempt, but it ia so
manifeatly inchoate and elementary, leaving
so wide a scope for tbe working of that linger
ing good which may prompt to change of pur-

THB CONSPIRACY TRIAL.

335

pose, that the law wisely places it in tbe lower
grade of offenses. "AU indictable attempts
(aays Bishop, vol. 1, sec. 528), whether to com
mit felony or misdemeanor, are misdemeanors."
Aa tbe idea of capital puniahment ia ordi
narily associated with that of felony, though
tbe more appropriate idea is that of forfeiture
of property, ao with misdemeanor ia aasociated
the punishment of fine and imprisonment only.
Says Bishop, vol. 1, sec. 626 : " Tho ordinary and
appropriate common law punishment for misde
meanor is fine aud imprisonment, or either of
tbem, at the discretion of tbe Court. It is in
flicted in all cases in which the law has not pro
vided aorae other apeciflc penalty."
So much for the caae of a conapiracy to com
mit a felony. How is it with a conspiracy to
commit treason ?
In looking at thia charge and specification,
one may doubt whether tbe terms " in aid of
the said rebellion" are predicated of the con
spiring, confederating, and combining, or of
tbe acts charged to have been done in pursu
ance of said conspiracy and combination, etc.
Inasmuch .aa giving aid and comfort to the
enemies of tbe United States is one form of
treason, it raay bo suppoaed that a mere unex
ecuted conspiracy may amount to giving aid
and comfort to tbe enemies of the Government,
and thereby become treason, and it may be
supposed that to abow auch a conspiracy alone
would be to make out a substantive case of
treason, and that a party might be convicted
thereof under this charge, although tbe evi
dence might show Mm to be not guilty of the
crimes actually perpetrated in pursuance of
tbe alleged conspiracy. Let us inquire, then,
what is the law of treason.
The murder of tbe President of tbe United
States, considered in itself, is no more, in tbe
eye of tbe law, than tbe murder of any other
citizen. Whether, however, that murder, per
petrated for the very object of overthrowing
tbe Government or aiding its enemies, ia trea
son, is a different question. I do not require
to discuss that question. I pause, however, to
remark that tbe term "enemies," in this part of
the Constitution, has been understood and ad
judged to mean public and not domestic ene
mies. And Congress have legislated in exact
accordance with this view; for in tbe act
to auppreaa insurrection, to punish treason and
rebellion, etc., of July 17, 1862, they provide,
in tbe first section, that any one who shall com
mit the crime of treason, and shall be adjudged
guilty thereof, shall suffer death; and in the
second section, that any one convicted of giving
aid and comfort to tbe existing rebellion, shall
be punished by fine or imprisonment, or both.
But whether murder, comraitted with the intent
charged, ia treaaon, either in the aenae of levy
ing war or of giving aid and comfort to the
enemies of the United States, is immaterial to
my present purpose. All that I need to main
tain is, that a mere conspiracy to do this ia not
treason. The Constitution, in art. 3, see. 3, declares
that treason against the United Statea shall
conaiatonly in, levying war against them, or in
adhering to their enemiea, giving them aid and

comfort, and no peraon ahall bo convicted of
treason unless on tho testimony of two wit
neaaes to the same overt act, or on confeaaion in
open court. To constitute treason, therefore,
there must be an overt act. In tho case of Boll-
man and Swartout, 4 Or,, S, 0, M,, 75, in which
these partiea were charged with levying war
against tbe United States in combination with
Aaron Burr, tho Supreme Oourl, said, "To con
stitute that specific crime for which tbe priso
ners nowbefore the Court have been committed,
war must be actually levied againat tbo United
States. However flagitious may be tbe crime
of conspiring to subvert by force tbe Govern
ment of our country, such conspiracy is not
treason.. To conspire to levy war, and actually
to levy war, are distinct offenses. Tbe first
must be brought into open action by the assem
blage of men for a purpose treasonable in
itself, or tbe fact of levying war can not have
been comraitted." Again, "in tbe case now
before tbe Court, a design to overturn the
Government of the United Statea in New Or
leans by force would have been, unquestion
ably, a design which, if carried into execu
tion, would have been treason, and tbe assem
blage of a body of men for the purpose of car
rying it into execution would amount to levy
ing war against tbe United States ; but no con
spiracy for litis object, no enlisting of men to effect
it, would be an actual levying of war. In con
formity with tbe principles now laid down, have
been tbe decisions heretofore made by the
judges of tbe United States. Judge Chase, iu
tbe case of Fries, stated tbe opinion of tbe
Court to be, " that if a body of people conspire
and meditate an insurrection io resist or oppose the
exeetttion of any statute of the United States by
force, they are only guilty of a high misdemeanor ;
but if they proceed to carry such intention into
execution by force, tbey are guilty of the trea
son of levying war," etc. So ranch for that
species of treason which consiata of levying war.
The .'jame rule prevails as to the other form,
viz. , adhering to the enemy, and giving them
aid and comfort. In the case of the United
States vs, Pryor, 3 Washington Circuit Court Re
ports, p, 234, in which tbe accused was charged
with adhering to the enemy, and giving tbem
aid and comfort, by purchasing provisions for
tbem. Judge Washington said : "That the pris
oner went from the British seventy-four to tbe
shore with an intention to procure provisions
for tbe enemy, is incontestably proved, and,
indeed, is not denied by Ms counsel. If this
constituted tbe crime of treason, tbe motives
which induced bim to attempt the commiasion
of it, and by which there are tbe strongest
reasons to believe be was most sincerely actu
ated, would certainly palliate tbe enormity of
it. But tbe law doea not constitute such an
act treason, even although these motives bad
not existed ; and although intentions and feelings
as guilty as ever stained the character of the most
atrocious traitor were proved against the pris
oner, can it be seriously urged that if a man,
contemplating an adherence to the enemy, by sup
plying them with provisions, should walk toward the
market-house io purchase, or into his own fields io
slaughter, whatever he might find there, but should.

336

ARGUMENT OF WALTER S. COX.

in fact, do neither the one nor ihe other of the in
tended acts, he has committed an overt act of ad
hering to the enemy f Certainly not. All rests in
intention merely, which our law of treason, in
no instance, professes to punish,"
Thus we find it adjudged by the highest au
thorities, thatunder our Conatitution, mere inten
tion, or preparation, or conapiracy, to levy war
or adhere to and aid and comfort tbe enemies
of tbe Government, does not constitute treason,
but misdemeanor only, and Congress seem clearly
to recognize this view in their legislation, for
by the act entitled "An act to define and pun
ish certain conspiracies," approved July 21st,
1861, tbey enact "that if two or raore persons,
within any State or Territory of tbe United
States, shall conspire together to overthrow, or
to put down, or to destroy by force, the Govern
ment of tbe United States, or to levy war
against the United States, or to oppose by
force tbe authority of tbe United States," etc.,
" each several person ao offending shall be guilty
of a high crime, and upon conviction thereof, in
any District or Circuit Court of tbe United States
having jurisdiction thereof, shall be punished
by a fine not leas than $500, and not more than
$5,000; or by irapriaonment with or without
hard labor, aa tbe court shall determine, for a
period not less than six months, nor greater
than six years, or by both fine and imprisonment."
In other words, the offense is declared to be
a high misdemeanor, and bas annexed to it, by
this law, tbe punishment appropriate to that
degree of crime.
It reaulta, then, that a mere conspiracy to com
mit either treason or felony, in this country, is a
mere misderaeanor. Of course, these reraarks
apply only to unexecuted conspiracies. If the
conspiracy to commit treason or felony be exe
cuted by tbe actual commission of tbe intended
crime, it is held that tbe misdemeanor is merged
in the higher crime. And tbe law ia conceded to
be, that if parties join and continue in a con
spiracy, and different parts are assigned to the
different members, and are executed, wholly or
partially, each is responsible for everything
done in pursuance of tbe common design.
But if, after a conspiracy is organized, but
unexecuted, any party involved therein should
withdraw and abandon it, and refuse to have
any further connection with it, be ia not respon
sible for any act done by the others in prosecu
tion of tbe objects of tbe conspiracy afterward.
A conapirator may be said to be a compound
of a principal and an accessory before tbe fact.
Conspirators mutually incite, encourage, advise
and inatruct each other to the commission of a
crime, and are thus accesaoriea before the fact,
and at the same time each expects to act aa
principal in some way or other.
In tbe case of a principal, so long as an act
rests in bare intention, it is not punishable. So,
if a man start out to commit a crime, aa in tbe
case put by Judge Washington in the caae
of the United States va. Pryor, before cited,
of a man going to market to purcbaae provisons,
or going to his field to slaughter cattle for tbe
enemy, but doing neither in fact.
And in tbe case of an accessory before tbe
fact — that ia, one who counsels, persuades or

commanda tbe commission of a crime — it is laid
down in Wharton's American Criminal Law, cit
ing 1 Hale, 618, that "tbe procurement (by an
acceaaory) must continue till the consummation
of tbe offense, for if ihe procurer of a felony re
pent, and before tbe felony is committed actually
countermand his order, and tbe principal, not
withstanding, coramit tbe felony, tbe original
contriver will not be an accessory." The con
spirator, then, who withdraws from a con
spiracy before tbe same is executed, is in the
position of a principal who has repented before
acting, and of a procurer who has incited or
ordered a crirae, and withdrawn his order before
it was acted upon. And his case is evidently
still stronger where be was not the principal
conspirator, who bas incited and procured others,
but waa only one of the subordinates, hiraself in
cited and procured by othera, and where, after
yielding for the tirae to their influence, he with
draws frora and resists their solicitations. Tbe
responsibility of such a person for the results of
the conspiracy, bad he remained in it, would
have been less, morally, than that of tbe princi
pal, and by his withdrawal is so much the more
easily got rid of.
Another proposition to be borne in mind is,
that if parties conspire for one object, however
criminal, and some of them commit a crime dif
ferent from that contemplated by the original
conspiracy, the others are not involved in their
guilt. The proposition is too evident for argu
ment. An illustration of it is found in 1 Bishop
on Criminal Law, section 265. He says : " Ob
viously, if two or more persons are lawfully to
gether, and one of them commits a crime with
out tbe concurrence of tbe others, the rest are
not thereby involved in guilt. So, if they are
unlawfully together, or if several persons are
in tbe actual perpetration, by a concurrent un
derstanding, of some crirae, and one of them, of
hia sole volition, not in pursuance of the main
purpose, doea another thing criminal, but in no
way connected with this, he only is liable. Thus,
if numbers are together, poaching, and join in
an attack on tbe game-keeper and leave him
senseleaa, then if one of tbem returns and steals
tbe game-keeper's money, this one only can be
convicted of the robbery."
So, in the analogous case of an accessory, it
is said (1 Hale, 617), "If the accessory order or
advise one crime, and the principal intention
ally comrait another, as, for instance, io burn a
house, and instead of that he commit a larceny,
or to commit a crime against A, and instead of
that he commit the same crime against B, the
accessory will not be liable."
_ These are tbe geueral principles which I de
sired to premise in reference to the general na
ture of crimes, and which might be applicable,
more or less to this case.
I need scarcely add, that a material variance
between the charge and the proof, as where one
crime is charged and another proved, is fatal to
the prosecution, and entitles tbe accused to an
acquittal. Thus, if a burglary be alleged to
have been committed in tbe house of J. Y., and
it turned out in evidence to be the dwelling-
house of J. S., the defendant must be acquitted
for tbe variance. (Archbold, 95.)

THB CONSPIRACY TRIAL.

337

So, in indictment for larceny of tho goods of
H, when tlicy were proved to be tbe goods of H
and E, the variance waa admitted to be fatal.
[Commonwealth's, Trimmer, 1 Mass, Rep., 470.)
So, a conspiracj' against A ia not auatained
by proof of conapiracy againat B or against tbe
public generally. (See Wharton.) So, if a per
son be indicted for one species of killing, as by
poisoning, he can not be convicted by evidence
of a species of death entirely different, as by
shooting, starving or strangling. (1 Russell on
Crimes, 557.)
Still less can a conviction be bad by proof of
an offense wMob is entirely different in char
acter. Wbile upon an indictment for a murder a man
may be convicted of manslaughter, tbe easential
crime being tbe homicide, it is very plain that
be could not be convicted of an assault, false
imprisonment or abduction ; and upon a charge
of conspiracy to murder, he could not be con
victed of conspiracy to imprison or to abduct.
The same rule prevails in courts-martial. De
Hart says (p. 364): "It is a distinction which
runs through tbe whole criminal law, that it ia
enough to prove ao much of tbe indictment aa
shows that the defendant bas committed a sub
stantive crime therein specified; but the offense,
however, of which be is convicted must be of the
same class with that with which be is charged."
Tbe general principles of tbe common law on
this subject are adopted in tbe military code.
Let ua next consider bow far tribunals sit
ting b.y virtue of martial law can depart from
tbe established law of the land in ita distinc
tions between crimes and in its scale of pun
ishments. MiUtary law, says De Hart (p. 17), is a rule
for the government of military persons only;
but martial law is understood to be that state of
things when, from tbe force of circumstances,
tbe military law is indiscriminately applied to
all persons whatsoever. And Greenleaf says
(vol. 3, p. 469, etc.): "It [martial law] extends
also to a great variety of casea not relating to
tbe discipline of tbe army, such as plots against
tbe sovereign, intelligence to tbe enemy, and
the like. It is founded on paramount necessity,
and is proclaimed by a military j^ief, and when
it is imposed upon a city or other territorial
district, all their inhabitants and .ill their ac
tions are brought within the sweep of its do
minion." Almost everything in tbe shape of
authority on tbe subject of martial law relates
to that law as exerciaed in a foreign and hostile
country. Even in that caae it baa certain lim7
itationa. General Halleck, in hia work on international
law and tbe lawa of war, in treating of the
effecta of military occupation, aays (chap. 32,
sec. 6);
"Although the laws and jurisdiction of tbe
conquering State do not extend over snob for
eign territory, yet the laws of war confer upon
it ample power to govern such territory, and to
punish all offenses and crimes therein, by
whomsoever committed. Tbe trial and puniah
ment of the guilty partiea may be left to tbe
ordinary courta and authorities of the country,
or they may be referred to special tribunals
22

organized for that purpose by the Government
of miUtary occupation, etc. It must bo re
membered that tbo authority of auch tribu
nala haa ita source not in the laws of tbe con
quering, nor in those of tbe conquered State,
but, like any other powera of the Government
of military occupation, in the laws of war;
and in all cases not provided for by the laws ac
tually in force in ihe conquered territory, such, tri
bunals must be governed and guided by tbe
principles of universal public jurisprudence."
This plainly implies that where tbe cases are
provided for by the local law, that should guide
in tbe adminiatration of criminal justice.
Professor Lieber, in bis Instructions for the
Government of the Armies of the United States
in the Field, adopted by tbe War Department,
aays: "Martial law in a hostile country consists in
ihe suspension by ihe occupying military authority
of the criminal and civil law and of the domestic
administration and government in the occupied
place or territory, and in tbe substitution of mili
tary rule and force for ihe same, aa well aa in the
dictation of general laws, as far as miliiary ne
cessity requires this suspension, substitution, or
dictation," And Benet, p. 14, thus lays down the rule;
"Martial law, then, ia that military rule and
authority which exiats in time of war in rela
tion to persons and things under and within ihe
scope of active military operations in carrying on
the war, and which extinguislies or suspends civil
rights and ihe remedies founded on them, for ihe
time being, so far as ii may appear to be necessary in
order to tlie full accomplishment of the purpose of
ihe war, ihe party who exercises it being liable in
an action for any abuse of the authority thus con
ferred. It is the application of military govern-
ment — ibe government of force — to persons and
property -o'lthin tbe scope of it, according to
tbe laws and usa,ges of war, to the exclusion of
tbe municipal Government in all respects
where the latter would impair the efficiency of mili
iary law qr military action."
The exercise of martial law ia capable of
being abuaed. It muat, therefore, have some
limits. It baa no code but one single, vital,
fundamental principle, which is alike ita juati-
fication and its limit; and that is, necessity —
not state nor political necessity, but military
necessity. It is the same principle announced
by Sir Boyle Roche, a meraber of tbe Irish
Parliament and a breeder of Irish bulla, who,
in tbe debate on the auapenaion of the habeas
corpus act, said "be was in favor of surrender
ing a part of tbe Conatitution, and even the
whole of it if necessary, in order to save the
remainder." As this alone justifies tbe sus
pension of tbe civil law of tbe land at all, so
that suspension can not be legitimately carried
further than is necessary to tbe efficiency of
military action or miliiary law — i. e,, of the law
governing tbe military force.
If this is true of a military occupation of an
enemy's country, how infinitely more binding
in the case of martial law prevailing at home !
When an enemy's country is conquered, all po
litical powers therein cease, and a suspenaion
of judicial functions also generally results.

338

ARGUMENT OP WALTER S. COX.

There must be offenaea unprovided for in auch
a state of things which can only be taken cog
nizance of by military courta eatablished in
virtue of tbe martial law, which is established
and proclaimed by tbe very presence -of a hos
tile army. Of course, revolts, insurrections,
and plots against the conquering power would
be wholly unprovided for in the laws of tbe
conquered State, and must be necessarily dealt
with by martial law. But all this is different
when martial law exists at home. Treason,
conspiracy, murder, in short, every crirae, is
already provided for by tbe civil law. When
the law martial undertakes to deal with such
offenses, it finds tbem already accurately de
fined in tbe written or coramon law of tbe
land, and tbe appropriate punishment affixed
by tbe same. It may find, and it certainly
does find in tbe present case, legal courts duly
constituted and in unobstructed operation. It
invades the domain of tbe latter, wrests from
them their juriadiction, and seeks to deal with
criraes which, I may say, it does not under
stand, for which it bas no definitions, no grad
uated scale of penalties.
Clearly, nothing can -justify this but tbe
most urgent miUtary necessity, and tbe
requirements of active miliiary operations must be
the measure of that departure from ihe civil law,
which would be legitimate and which could not
be taken notice of subsequently, by that law,
as an abuse.
In a beleaguered city, under martial law, one
who ia detected in signaling tbe enemy, or do
ing any thing to cripple the defenders, secretly
or openly, may be shot down without trial, or
dealt with by a railitary commission in tbe
moat aummary way. But no one would main
tain that auch a commission could place a pettj'
larceny, by a civilian, on tbe same fogting as
murder, and visit it with tbe death penalty. It
would be a criminal abuse of power, simply
because wholly unnecessary to the efficiency of
military operations. And even acts of mili
tary hostiUty, committed during a period of
invasion and siege, could not, after the enemy
is repulaed, tbe siege raised, tbe danger
pasaed, be puniahed by summary execution
without trial.
The argument on this bead may be summed
up thus : The law of tbe land defines certain
crimes. It establishes a distinction and grada
tion among tbem, and visits tbem with appro
priate punishments. It also establisbea ,the
mode in which tbe accused shall be tried, and
certain guaranteea of fairness and justice.
These distinctions between crimes and punish
ments and these guarantees are the right alike
of tbe innocent and guilty, tbe injured public
and tbe accuaed. If it be abaolutely necessary
to tbe repulse of a foreign or tbo reduction of
a domestic enemy, by tbe miUtary power of tbe
country, persons within the scope of ita opera-
tiona may be both tried and puniahed in a man
ner different from the courae of tbe civil law.
But without auch neceaaity tbey can not be so
tried. And if the situation require such trial,
still, without such necessity, tbe miUtary authority
can noi ignore but must adhere to, observe, and be
guided by the civil law, in its distinctions between

crimes, and in its measure of punishment. To dis
regard it without overruling military neces
sity, is unnecessarily to infringe public and
private rights, and tbia is miUtary oppression,
which Professor Lieber says is not martial law,
but is tbe abuse of tbe power that law confers.
Granting, then, for tbe sake of argument,
that at tbe time of the President's assassina
tion, when the rebellion was not yet subdued,
when it was poaaible for its fiickering and ex
piring hopes to be revived by this startling
event, when tbe mysterious plot seemed to be
aimed directly at the power of the Governraent
to effect tbe purpose of the war, to suppress
the rebellion and perpetuate its own existence,
it was necessary to eraploy tbe machinery of
martial law to pursue and bring to justice the
perpetrators of tbe raurder, and on account of
difficulties, supposed or real, in tbe trial of the
accused in a civil court, to subject them to a
trial by a military comraission, still tbe ques
tion recurs, bow ia this commisaion to deal
with tbe accused? Now that "grim-visaged
war bath smoothed bis wrinkled front," that
" bruised arms are bung up for monuments,"
that tbe only military aciton in progress con
sists in the disbanding and dispersion of the
national forces, that even the rancors of civil
strife are yielding to an universal aspiration
for peace and fraternal union, can any raan,
on bis conscience, aay, that any miliiary exi
gency requires this Coraraission to ignore tbe
law of tbe land in regard to orimes and pun
ishments, to condemn and punish, as treason,
that which is not treason by the Constitution;
to confound felonies with treason on the one
side, or misdemeanors, on the other ; to try for
one offense and convict of another; to inflict
punishments disproportionate to tbe crime, in
view of tbe proportion between tbem estab
lished by tbe common law and universal un
derstanding ? Most clearly not. It will not
do to assume that martial law, once conceded to
be in force, has no limit. It is begging the
whole queation to assume that to concede tbe
necessity of martial law is to concede the ne
cessity of all its rigors and barsh contrasts
with tbe civil law. In tbe able argument of
Judge-Advocate Burnett on the plea of juris
diction, on tbe trial of the Chicago conapir-
ators, he aays :
" Martial law can'never be restricted by any
defined lines, because it is tbe law of necessity,
the law of self-defenae, of aelf-preservation ; it
ia a law to meet the exigencies and necessities of
great, unexpected emergencies in time of war ; and
whatever law or rule of action becomes neces
sary to meet these emergencies is martial law."
He also cites Profeaaor Greenleaf, who, in
apeaking of tbe difference between martial and
military law, says :
" Tbe tribunals of both are alike bound by
tbe common law of ihe land in regard to the rules
of evidence, as well as io other rules of law, so far
as they are applicable to the manner of proceeding;"
and. adds: ^ "As, for iUustration, martial law,
as now being administered, ia, giving theae
prisoners a fair, impartial hearing, according
to the strict rules of tbe civil law, in all ques
tions of evidence, argument, etc.; it gives tbem

THB CONSPIRACY TRIAL.

339

the benefit of counsel, of processes to compel the
attendance of witnesses ; it allows them a
clear and public trial, in open day, before their
peers, and before just and honorable men. But
under other circumstances and greater emer
gencies, it might have demanded that tbey be
shot down in tbe streets, and without trial and
without hearing, aa in case tbey bad gone for
ward in tbia conspiracy, attacked our camps,
undertaken to release our prisoners, and burn
the city."
Now, on what ground can martial law adrait
a trial at all ? On what ground can its courts
be bound to observe the common law rule of ev
idence and proceeding? On no other but this;
That, by tbe law of the land, this is one of tbe
rights of tbe accused of which he can not be
deprived, unless there be a military necessity
for it. IBut what reason is there applicable to
form, which does not apply, with ten-fold force,
to matters of substance'? If tbe accused is en
titled to be tried according to the forms of the
common law, as far as applicable, bow much
more is be entitled to be judged and punished
according to that law, where no departure from
it, in that respect, is required by any miUtary
emergency. But the Government officers seem to have
tasked their ingenuity to invent a new species
of crime — traitorous murder, traitorous con
spiracy — murder which is something more than
murder, yet something leaa than treason; a
hybrid between them, partaking of both. On
the same principle, stealing a percussion cap,
with intent to use it against the Government,
would be traitoroua larceny, instead of petty
larceny. And when we inquire by what code
it is to be judged and punished, we are re
ferred to tbe common law of war.
The common law of war I What a convenient
instrument for trampling upon every constitu
tional guarantee, every sacred right of tho citi
zen ! There is no invention too monstrous, no
punishment too cruel, to find authority and
sanction in such a common law. Is it possible
that American citizens can be judged and pun
ished by an unwritten code, that has no defini
tions, no books, no judges or lawyers; which,
if it haa any existence, like tbe laws of tbe
Roman Emperor, is bung up too high to be
read? I deny that,the common law of war haa any-
tMng to do with treaaon, or anything traitor
oua, as such. Treason, in any shape, is an
oft'ense against tbe ci'^il government. I'he acts
constituting tbe offense are dealt with by mar
tial law, not as treason, but only as they inter
fere with military rule and operations. Such
offenses aa those charged are unknown to any
common law of war. In short, tbe only com
mon law of war, which can be admitted in this
country againat civiliana, is the common law
of the land, so far modified, only, as the mili
tary emergency of the hour requires.
I conclude, then, that, supposing thia Com
miaaion to have lawful jurisdiction over tbe
persons of the accused, for the purpose of try
ing them upon this charge, still the Commis
sion are bound, in ascertaining the nature of
the offense made out by the evidence, if any be

proven, and in affixing a puniahment to it, to
follow and be guided by tbe law of tbe land,
aa administered in the civil courta.
Tbe application of theae general principles
I shall reserve until I shall have diacuased the
evidence. Tbe evidence offera a very wide field to one
incUned to collate, weigh, and coraraent on it,
in detail, but I shall notice only so much as
seems material to my case.
First, then, what are some of the facts in re
lation to tbe alleged conspiracy? Tbe assassi
nation of the President and other beads of
Government, may have been discussed in the
South, as a measure of ultimate resort, to re
trieve tbe fortunes of the Confederacy, when
at their lowest ebb; tbe rebel agents in Canada
may have individually signified their approval
of tbe measure, in tbe abstract, long since;
but I undertake to maintain, upon the evidence,
that there never was any final determination
on tbe part of any peraon or peraons, with
whom any of these accused can possibly be
connected, actually to attempt tbe life of tbe
President, or other functionary, until a few
days — about one week — before the murder; that
no conspiracy for that object, such as is charged
against tbe accused, was formed, or, at leaat,
had any active exiatence, at any time during
the month of March, aa imputed in tbe charge
and specification; and that if any conspiracy
had ever been organized, for such object, at an
earlier period, it did not contemplate the event,
otherwise than contingently, and upon a con
tingency which never arrived until tbe period
I have named, and waa, meanwhile, completely
in suspense and abeyance.
Tbe specification imputes that tbe accused
were incited and encouraged to the murder by
Davis, Thompson, Clay„and others, and this is
of the very essence of the charge.
The theory of tbe prosecution is, that Booth,
who ia acknowledged to have been tbe head,
and front, and soul of tbe conapiracy, if there
was one, was only tbe hireling tool of these
rebel emiaaaries. I think be was probably
something more, but it will not vary tbe result.
I tbink be was probably actuated not only by
the sordid hope of reward, but by a misguided,
perverted ambition. Of moderate talents, but
considerable ambition, of strong will and pas
sions, and high nervous organization, accus
tomed to play parts, and those of a tragic
character, he had contracted perverted and
artificial views of life and duty, and aspired
to be tbe Brutua, in real life, that he bad been
or seen on tbe boards. He well knew, bow-
ever, that the act be contemplated would be ex
ecrated all the world over, except, possibly,
among thoae whom he intended to aerve. There
fore, whether pecuniary reward or falae glory
waa bia object, he could hope for neither until
he waa secure of their approbation. Whatever
his principle of action, he was wholly without
motive for so desperate an undertaking until
he bad, or supposed be bad-, tbe approval of tbe
rebel authorities. When does tbe evidence
tend to abow that this was given? On this
subject three principal witnesses have testified
for the Government. None of them carry far-

340

ARGUMENT OP WALTER S. COX.

ther back than January last, tbe date when
even an individual approval of the scheme of
aaaassination was expressed by any of the
rebel agents in Canada. Tbe first witness,
Richard Montgomery, represents Jacob Thomp
son as aaying, in the summer of 1864, that he
had bis agents throughout tbe Northern States,
and could, at any time, have President Lincoln,
or any of his advisers, put out of tbe way. But
it was only in the middle of January last that
Thompson inforraed him that a distinct propo
sition for the Presidents assassination had
been made to bim, and that be was in favor of
it, but was determined to defer bis answer until
he had consulted bis Government, at Richmond,
and he was then only waiting their approval.
Although tbe witness was in constant inter
course with those raen in Canada, going back
and forth, until shortly before his testimony
was given, he was not able to slate when these
rebel agents considered theraselves authorized
to act in this raatter. But in a conversation
with Tucker, a few days after tbe aasassination,
the latter said, "it was too bad that the boys
bad not been allowed to act when tbey wanted
to," which would indicate that the approval
waited for from Richmond was not received in
time for earlier action, and this the witness
distinctly states to be his impression. He in
ferred from Tucker's reraark that tbe approval
bad been received, and that tbe attempt bad
been delayed for its arriv.al.
In all this, Montgomery agrees exactly with
Conover. Tbe latter statea that Thompson
spoke to bim in February on the subject of tbe
removal of the President and others from office,
by killing them, and offered Mm tbe chance of
iramortalizing bimself and saving the country
by embarking in the enterprise; that these
conversations were rejieated all through the
month of February, and in that month he
stated he was awaiting dispatches from Rich
mond. Tbe witness inquired if be thought tbe
plan would receive the approbation of the Gov
ernment at Richmond, and Thompson replied
that he thought it would, but he would know in
a few days. The witnesa knew nothing of the
arrival of auch dispatches, until about tbe 6tb
or 7th of April, when Surratt arrived in Can
ada with dispatches from Mr, Benjamin and
Mr. Davis. The witness was preaent in Thomp
son's room, with Surratt, when Thompson laid
hia hand upon the papers, brought by tbe latter
from Richmond, and said, "'This raakes the
thing all right," referring, aa the witness says,
to tbe assent of ihe Richmond authorities, that ia,
to the assassination project. On cross-exam
ination the witness says distinctly that be un
derstood this to be the first official approval they
had received from Richmond of the plan io assas
sinate the President, and he knew of no other.
And this evidence, as far as it fixes the date
of Surratt's arrival in Canada, and ita probable
object, is corroborated by Weichmann, who bas
testified that Surratt arrived in Washington,
from Richmond, ou tbe 3d of April, with money
in bis pocket, and professing to have .seen Ben
jamin and Davis, and to have been assured by
them that Richmond would not be evacuated,
and that he left, on the same evening, for Mon

treal, where he would probably arrive on tbe
5th or 6tb.
There is an apparent discrepancy between
the testimony of Dr. Merritt and that of Cono
ver, which I here proceed to notice.
He represents that be was preaent at a meet
ing of a number of the rebel emissaries, in
Montreiil, in the middle of February last, at
which George N. Sanders, after diacussing the
projected assassination, read a letter which be
said be had received from "the President of our
Confederacy," raeaning Jefferson Davis, ex
pressing approbation of whatever measures
they might take to accomplish the object. Con
over, on tbe other hand, had had conversations
with Thompson all through the month of Feb
ruary, and no dispatches bad then arrived of
the purport stated by Merritt. But that Mer
ritt ia wholly miataken, and bis testiraony
wholly unreliable, in this particular, is clep.i',
from several considerations:
First. The witness did not read tbe letter,
nor does he pretend to repeat its language, nor
can be distinguish very clearly between the
language of tbe letter and that of Sanders
himself. He says, at first : "WMch letter just
ified bim (Sanders) in making any arrange
ments that he could to accomplish the object."
This was tbe witness' construction of tbe let
ter, not its terms. When asked for ita lan
guage he could not give a word of it, but said
it was in substance, "That if tbe people in
Canada and tbe Southerners in the States wore
willing to submit to be governed by such a ty
rant as Lincoln, he did not wish to recognize
tbem as friends or associates, or something
like that," This was the whole of tbe witness'
unprompted account of tbe substance of tbe
letter. He is asked, however, tbe leading
question, "And you say that in that letter be
expressed bis approbation of whatever meas
ures tbey might take to accoraplish this object?"
To thia be anawers, " Yes," But be had said
nothing of the sort. He bad merely said that
the letter justified such measures. Still later he
says: ""When he (Sanders) read tbe letter be
spoke of Mr. Seward, and / inferred ihat that
was partially the language of the letter ; I think
it was, that if those parties, the President, Vice-
President and Cabinet, or Mr. Seward, could
be disposed of, it would satisfy the people of
the North that they (the SouUierners) bad
friends in the North, and that a peace could
be obtained on better terras than it could other
wise be obtained," etc. It will be found that,
in tbe course of hia testimony, he gives three
different versions of tbe aubatance of the letter.
He does not pretend to say the aasassina
tion was mentioned, in terms, in the letter,
and be is evidently unable to distinguish
clearly between tbe language of Sanders and
that of Davis, and, on the whole, we are left in
complete uncertainty whether we have tbe con
clusions of the witneas or those of Jefferson
Davis. But, secondly, it is perfectly certain that Jef
ferson Davis never would have written such a
letter as this is described to be, to George N.
Sanders. It ia apparent, from the whole teati
mony, that Jacob Thompson and Clement C.

THB CONSPIRACY TRIAL.

341

Clay were the principal emiaaaries of the rebel
Government in Canada. They represented
themaelves to Montgomery to be invested with
full powers to do anything they might deem
expedient for tbe benefit of their cause. Thomp
son seemed to have had the principal financial
agency, though Clay is also said to have bad
the funds used in the frontier raids. Thomp
son certainly was the controlling authority in
regard to tbe assassination ; the propoaition
was made to him, he conaulted his Government
and expected their approval. No others than
these profeaaed to have any authority or con
trol over the frontier operationa; and Sanders
evidently acted a aubordinate part and bad
the entire confidence of no one. Clay deacribing
him aa a very good man to do their dirty work,
but not one to whom everything could be safely
communicated. It was, therefore, of all things,
one of the most unlikely, that a dispatch, so
important as the one described by tbe witness,
would be addressed by Davis to Sanders.
Thirdly. ItWas equally unlikely that Thomp
son and Clay would not even be privy to the
fact, but would be actually excluded from
the confidence of Davis and Sanders. And
yet, if tbe witness is correct, this is the case.
For when be is called on to repeat the namea
of those preaent at tbe meeting at which San
ders read bia confidential missive, he names ten
persona, but omits both Tbompaon and Clay.
In proof that this omission waa intentional and
not accidental, it is to be noted, that tbe wit
neaa afterward apoke to Clay in Toronto about
tbe letter Sanders had read in Montreal, and
Btates, as a noteworthy fact, that Clay seemed
to understand tbe nature and character of the
letter, which remark would never have occurred
to the witnesa, had Clay been present and heard
the letter read, and handled and perused it
bimself when it was passed round at the meet
ing, as he says it was.
But finally, on this bead, tbe teatimony of
thia witness, as to the subsequent proceedings
of tbe rebel agents, clearly corroboratea Con
over. It ia clear, that no ateps were taken on
tbe strength of this letter of Davis, in pursu
ance of the object aupposed to be sanctioned by
it, for nearly two months afterward. But the
witnesa Merritt states, that he was in Toronto,
on tbe 5tb and 6th of April; that on tbe 6tb,
he met Harper and aeveral other rebels, and
Harper told bim tbey were going to the States,
and were going to kick up the damnedest row
that bad ever been beard of yet, and after
ward said, that if he [the witneas] did not
hear of the death of Old Abe, of the Vice-
Preaident, and of General Dix in lesa than ten
daya, be might put him [Harper] down as a
damned fool. He afterward ascertained that
Harper bad in fact left on the 8tb of April for
the States.
Now, it will be remembered that, according
to Weichmann, Surratt passed through Wash
ington on the 3d of April for Canada, where
he probably arrived on the 5th, and that, on
tbe 6th or 7tli, according to Conover, Jacob
Thompson spoke of the dispatches carried by
him as conveying tbe needful authority. Thia
fact could eaaily be communicated, by telegraph,

to the rebela in Toronto, and there is a perfect
correapondence between their declarations and
aotiona, on tho 6th of April and after, and Con-
over's story, that tbe sanction of tbo Richmond
authorities to the asaaasination scheme was
communicated, for tbe firat time, in tho dis
patches carried by Surratt to Canada, about the
5th of April. Thus, in the end, there is seen to
be a substantial accord between all the three
witnesses, on the important question, when tbe
formal sanction of the Richmond authorities
was received in Canada, and when, consequent
ly, for the first time, they were in a condition
to give their formal and official approval to
the proposed assassination.
By whom tbe proposition was originally
made to Thompson is involved in profound mys
tery, or, at most, is left to conjecture. If it
came from Booth, both bis conduct and that
of the rebel band in Canada show that it was
a mere offer, unaccepted, unacted upon, and
that its acceptance, and tbe granting tbe au
thority it invited, was an open queation, from
the month of December to tbe 5th of April.
Booth was reported to have been in Canada in
tbe fall, and as late as December last, but since
that tirae none of tbe teatimony ahows any
immediate intercourse between him and the
rebel emissaries there. And although Harper,
Caldwell, and Randall, and Ford are raentioned
by Merritt, as parties whom be understood to
be implicated in the plot, we hear of no stir or
activity among tbem until the 6tli of April.
It seems, therefore, very clear, upon this tes
tiraony, that this date waa tbe earlieat period
at which any positive design was formed for
the assassination.
Tbe testimony of Mra. Mary Hudspeth may
seem to conflict with this theory, and, therefore,
requires sorae examination. 'i?hat she is sin
cere in her statements, I have no reason to
doubt;, but that she is miataken seems to me
very probable. In the month of November
last, she saw two atrangera, whom ahe bad never
met before, and baa nevet met aince, in a street
car in Now York city, one of tbem disguised
by false whiskers. Some six months afterward,
she is shown a photograph taken of Booth,
without disguise, and undertakes to recognize
it as that of one of tbe persona in queation.
This is one improbability in her story. Again,
she represents that they had an earnest con
versation, one stating that he would leave for
Washington on the second day after, and the
other, being very angry that it bad not fallen to
him to go to Waahington; and all thia in a car
which ahe repreaents as crowded — a aecond
improbability, if the converaation was aerioua.
Next, theae important letters are dropped care-
leaaly on the floor and left there. The conduct
of theae men would aeem to juatify tbe judg
ment Gen. Dix was half inclined to pronounce
on the transaction, viz.; that it waa a hoax got
up for the Sunday Mercury ; particularly, when
we conaider that, though one of the letters looks
in terma to immediate action, yetnothing fol
lowed having tbe remoteat reference to the sub
ject matter, for five months afterward.
But let us compare dates. Mra. Hudapeth
says ^he circumstance ahe relatea occurred on

342

ARGUMENT OF WALTER S. COX.

tbe day when General Butler left New York.
-Major Eckert aays the order to leave New York
waa aent to General Butler on tbe llth of No
vember; that be applied for permission to re
main until tbe next Monday, which was the
14tb. The inference would be that General
Butler left on tbe 14tb, and that Mrs. Hudspeth's
adventure occurred on that day, and, as one
of the parties she speaks of was to leave for
Washington on the second day after, Wednes
day, tbe 16th, would be the day fixed for bis
departure. But a little uncertainty ia thrown
upon this by tbe dispatch of General Dix, of
the 17tb, to C. A. Dana, Esq., in which be says:
" Tbe party who dropped tbe letter was beard
to say be would start for Washington on Friday
night." This would be tbe IStb. If, then,
Mrs. Hudspeth is correct m saying that one of
tbe parties aaid he would leave for Washington
tbe day after to-morrow, and ao reported to
General Dix, and be properly understood her,
it must have been on Wednesday, the 16tb, that
tbe meeting in tbe car occurred, and either her
recollection is at fault, as to date, or General
Butler left on tbe 16tb instead of the 14th, At
all eventa, we are safe in fixing either tbe 14tb
or 16tb as tbe date of the occurrence ; no evi
dence points to any other date. Now, if we turn
to tbe testimony of Mr, Bunker, clerk of the
National Hotel, we will find that Booth arrived
in Washington and regiatered at that hotel on
tbe 14tb of November, and left again on tbe
16tb. If be arrived here on the 14tb, be could not
poasibly have been riding in a street car in
New York, at an hour when tbe brokers' offices
were open, to one of which Mrs, Hudspeth was
then going with some gold, and tbe fact is also
inconsistent with the declaration made by the
party at tbe time, that be was to leave for
WasMngton two days after; and again, if
Booth started from Washington on tbe 16th, as
tbe National Hotel book shows he did, it was
equally irapossible for him to have had the
pleaaure of Mra. Hudspetb'a company, in the
atreet cara of New York, on the sarae day in
buainesa hours ; for even Sir Boyle Roche de
clared that nothing could be in two places at
the same time, except a bird. I conclude, there
fore, that tbia waa a caae of miataken identity,
like others which have been developed in tbe
course of this trial — that Mra. Hudspeth is
wholly raistaken in identifying Booth as tbe
person encountered by ber in the car; and if
this be so, then ber evidence does not point to
anybody now under accusation, and is wholly
iramaterial; and if it further be judged proba
ble, as it seems to me to be, that tbe occurrence
testified to was designed merely to mystify the
public, ita value aa evidence in tbia case, of
course, falls below zero.
But if tbe letter found by Mrs. Hudspeth
bad a serious character, and the individual
who dropped it was really Booth, what then ?
It saya, among other tbinga, " The Engliab gen
tleman, Harcourt, muat not act hastily — re
member, he has ten days." Again, " Do any
thing but fail, and meet us at tbe appointed
place within the fortnight," Whatever the plot
darkly alluded to, its complete consummation

within ten days or a fortnight is clearly contem
plated. Now, this is no such conspiracy aa
tbe present charge is intended to embrace ; for
tbe evidence for the Government shows that
tbe rebel authorities, at a much later period,
had not incited and encouraged or even ap
proved formally any plot of assassination, but
instead, that tbe proposition had been made
to them and was only held under advisement.
No such plot bad been sanctioned by tbem in
November, aud it is such a plot only that this
charge deals with. If there really was an.y
such plot as the letter hints at, it evidently
failed and was abandoned, for it was to be con
summated within ten daya. Nothing was done
in furtherance of tbe design, and in Decem
ber we find Booth, according to Cleary's infor
mation to Montgomery, again in Canada,
Again, it doea not appear from the evidence,
as far as I remember, that as early as Novem
ber, Booth was even acquainted or bad any in
tercourse with Payne, Atzerodt, Herold or Sur
ratt, who are evidently considered by tbe Gov
ernment Ms principal accomplices in tbe crime
which is the subject of this charge. On tbe
contrary, it is shown, as to Surratt, by the Gov
ernment witness, Weichmann, that Booth was
only introduced to Mm on tbe 15tb of January
last. If, therefore, the letter found by Mrs.
Hudspeth tends to show any conapiracy exist
ing aa far back aa November, looking to the
murder of tbe President, it must have been a
conspiracy wholly different from that with
which these accused are charged — one which
wholly failed or was abandoned immediately ;
and, therefore this evidence is not inconsistent
with tbe theory I have anndunced, that there
was no active, living, breathing conspiracy in
February or March, or until April, and no de
termination by any one, connected with any
conspiracy, to assail tbe life of tbe President
or of other heads of Government, This, then,
I take to be incontrovertibly established by tbe
evidence on the part of tbe Government.
But in tbe interval between tbe proposition
s%,id to have been made in or before January,
1865, to the rebel agents in Canada, to aaaaaai
nate tbe Preaident and others, 'and tbe formal
sanction to the acbeme in April, what was
brewing ?
It is evident that in this interval Booth was
revolving and maturing another project, of an
entirely different character; one which, as be
tween two hostile nations, was perfectly legiti
mate, and involved no breach of the law of na
tions, and one wliicli tbe Confederate authori
ties had as much right to atterapt as tbey had
to do anything within tbe scope of belligerent
rights, and one to which tbe special sanction of
tbe Richmond authorities was wholly unneces
sary. That was tbe capture of the President, and,
perhaps, others, and tlieir abduction to Richmond,
¦with a view of forcing an exchange of prisoners,
Tbe scheme, though not innocent, might almost
be called harmless, from its perfect absurdity
and impracticabiUty. But Booth bad become
possessed with tbe idea, and was a monomaniac
on tbe subject. He would admit no difficulties,
and, like a madman, sought to dragoon his
frienda into the acbeme with threats of ruin and

THB CONSPIRACY TRIAL.

343

even death. Al this is proved by the testimony
of tbe Government witneas, by Booth's deolara-
tiona, made in tbe prosecution of his design, in
tbe very act of enlisting adherents for bia
project, or rather, I ahould say, of conscripting
them, for cajolerj' was less a means and instru
ment., than tbreata, of ofl'ecting bia object.
Samuel Knapp Cheater teatifies that about the
24tb or 25tb of Noveraber, Booth took a walk
with bim in New York, and told bim be bad a
big speculation on band, and aome time after
repeated tbe statement; that still later Booth
wrote to bim from Washington tbatbe was specu
lating in farma in Lower Maryland, in which be
waa sure to coin money, saying that tbe witnesa
must join him ; that late in December or early in
January, be walked with the witneaa iu an un
frequented portion of Fourth atreet, in New
York, and there disclosed the nature of tbe great
speculation be was engaged in; that it was a
large conspiracy to capture the beads of tbe
Governraent, including the President, and to
t.ake tbera to Richmond. He assigned to Ches
ter tbe part which be wished him to perform,
threatened to implicate bim in it anyhow, and
that if be attempted to betray tbe plot he would
be bunted down through life. Subsequently,
in January, Booth wrote aeveral times to Ches
ter, and remitted money to bim, urging him to
come to Washington. Still later, be saw Ches
ter in New York in February, and repeated bis
solicitations, and spoke of bis efforts to engage
one John Matthews in tbe enterprise, saying
that he would not have cared if he bad sacrificed
bim, in consequence of bis refusal to join him,
as he was a coward, and not fit to live — all
which indicates tbe insane state of Booth's mind
on this aubject. Subsequently, the witneas
statea. Booth told bim be bad given up tbe par
ticular project of capturing the President and
heads of Governraent, and thai it had fallen
through in consequence of some of the parties back
ing out. Still later, he informed him thai in conse
quence of this, he was selling off the horses he had
bought for the purpose. When waa this project
given up? The witness thought he was so in
formed in February, but we shall see that be
was miataken in tbe month, both by tbe date of
the sale of the horses and tbe date when some
of tbe parties backed out. Who were tbe parties
that backed out? Booth did not give their
names, but this omission is supplied by the
statement of Arnold, made after bis arrest,
which was elicited from tbe Government wit
neaa, Eaton G. Horner. From thia it appears,
that on tbe 1st of April, Arnold went to Fortress
Monroe to accept a situation. Sorae time before
that — tbe witness can not remember whether it
was a week or two or three weeks — be attended
a meeting in Washington, in reference to tbe
projected capture of tbe President, in order to
take him South, and thereby compel the Gov
ernment to make an exchange of prisoners. Ar
nold declared that be would withdraw from tbe
scheme unless it was effected that week, where
upon Booth threatened to shoot him. Arnold
considered tbe scheme impracticable, and did
withdraw, and had nothing more to do with it,
and Booth told bim to sell tbe arms that bad
been furnished him, or do what be chose with

them. It has been proved, by Mrs. Van Tyne,
that Arnold gave up his room at ber bouse about
tbe 18tli of March, and by other witnesses, aa
we shall hereafter aee, more at large, that be
left Washington finally ou or before tbe 20tb of
March. So that, according to Ma confession, ho
was tho party, oi one of the parties, who backed
out from this insane scheme of Capturt, and il
must have fallen through and been abandoned
somewhere about tbe middle of March. This is
corroborated by other evidence. Weiclimann
shows that on a certain day, which at first he
could not fix with certainty, vacillating be
tween the 18tb and 25tb| but which be" finally
fixed to be the 16tb, Booth, Payne and John
Surratt came into Mrs. Surratt'a in a atate of
great anger and excitement, and Surratt ex
claimed, " My proapecta are gone, my hopes are
blighted ; I want something to do. Can you get
me a clerkship ?" Booth and Payne manifested
similar excitement, and all three went off to
gether. On Surratt's return be informed tbe
witness that Payne bad gone to Baltimore and
Booth to New York. By tbe hotel register it
appeara that Booth did leave on the 21at. All
this demonstrates that at this time some mys
terious scheme of theirs bad failed. Tbe sale of
tbe horses is another circumstance. Surratt
bad told Weichraann that be had two horses,
which be kept at Howard's stable, which Booth
afterward told him were his. From tbe teati
mony of Brooke Stabler, who kept Howard's
stable, it appeara that on tbe 29tb of March,
Booth paid the livery of theae boraea for tbe
month, and that Atzerodt, who bad been allowed
before the use of the horses, took tbem away on
tbe 31st, and shortly after brought tbem back,
at different times, separately, for sale. This,
then, was about tbe period when Booth must
have informed Chester he was selling off bis
boraea, and tbe backing out of parties to the
abduction scberae, and its consequent falling
through and abandonment muat have been
shortly before, and about tbe raiddle of March.
We shall see hereafter that Booth still clung to
this project all through the raonth of March,
and made one or two spasmodic efforts to rally
bis forces, but without success. The abandon
ment and failure were complete about the mid
dle of that month. On tbe 1st of April, Booth
went to Now York and was there a week, evi
dently having then finally abandoned the scheme
of capture. According to Conover, this schemeof
capture had been talked of inCanada in tbe month
of February. It is probable, however, that it waa
deemed too impracticable to attract much atten
tion. In fact, its failure might eaaily have been
predicted. It was only necessary for the partiea
concerned to aasemble and arrange to put it
in motion, for tho whole thing to fall to pieces,
and this was exactly tbe result of the first gen
eral meeting of tbe conspirators. But Booth
adhered to it with the infatuation of a half in
sane man, which both Ms original conception of
and bis mode of prosecuting this scheme, prove
to have been.
But suddenly the scenes are all shifted, and
tbe curtain rises upon a new draraa, a bloody
tragedy. On the 3d of April, during Booth'a
absence, John H. Surratt arrives in Washing

344

ARGUMENT OF WALTER S. COX.

ton with these ominoua dispatchea from Rich
mond, freighted with doom to the unconacioua
victim of all these contrivances, and with ruin
and infamy to all the authors of his fate. Booth
waa then in New York. Bunker abowa that he
left tbe National on the 1st, and Chester saw
bim in New York on the 7th. ' Surratt started
for Montreal, and probably saw Booth on the
way, or else he received news from Canada
after Surratt'a arrival there; for he oame to
WasMngton on tbe 8th, and the hellish plot of
murder must have been concocted, and all its
detaila arranged by bim, between that time and
tbe mom'ent of its execution. In ita execution,
not a aingle trace is seen of any of tbe Cana
dian rebels, nor is there the slightest ground
furnished by tbe evidence, for believing that
more than three or four peraona, beaides Booth
himself, were iraraediately concerned in tbe
commission of the crirae.
Now, what part had Arnold or O'Laughlin
in tbe final tragedy ? As to Arnold, the matter
aeems too plain for doubt or argument. Mrs.
Van Tyne shows that be gave up bia room at her
house about the 18th or 20tb of March. His
brother, William S. Arnold, met bim on tbe
way to Ms house, in Hookstown, on tbe 21st,
where he remained till Saturday, tbe 25tb. On
the afternoon of that day, be went to Baltiraore
with the same brother, supped with him, and
slept in tbe aame room with Mm, and returned
with bim to tbe country on tbe following morn
ing. He there remained until Tuesday or
Wednesday, the 28th or 29th, when ho returned
to Baltimore, and on the way stopped at the
bouae of another witness. Miss Minnie Pole.
On tbe 30tb and 31st, Thursday and Friday
nights, be was at his father's house, and his
brother, Frank, slept with bim, William also
sleeping in the room, on Friday nigbt. On
Saturday morning he went to the country with
his brother, returned in tbe middle of tbe day,
and on tbe same afternoon went to Fortress
Monroe. He bad previously made application,
by letter, for a situation there. Tbe testimony
of bia brother, as to bis stay iu the country, is
confirmed by that of Jacob Smith, a neighbor.
Then it appears from the testimony of Mr.
Wharton, who employed bim as clerk, and of
Charles B. Hall, a fellow- clerk, that he was
constantly in tbe store at Fortress Monroe, in
daily attendance, and faithfully discharging
his duty, from the time of hia arrival, the 2d
of April, to the 17tb, tbe date of his arrest. It
was, therefore, physically impossible for him
to participate in the raurder or assaults in
WasMngton. Nor is there the slightest evi
dence, or even pretense, that be bad any part
to perform, in the execution of the deadly plot,
at Fortress Monroe, or was otherwise engaged
there, than in the peaceful duties of bis clerk
ship. Tbe case of O'Laughlin is equally free from
doubt. The apecific charge against hira is, that,
in pursuance of tbe general design of the con
spiracy, he did, on the nights of tbe 13tb and
14th of April, lie in wait for General Grant,
with intent then and there to raurder bim; and
the whole evidence on the subject abowa a mia-
take of identity that would be ridiculous but

for tbe serious consequences it involves to the
accused. On tbe evening of tbe 13th, a large
crowd assembled in front of Secretary Stan
ton's, in compliment to bim and General Grant.
About balf-past ten o'clock, and whUe the crowd
were still there, according to Mr. David Stan
ton and Major Knox, a stranger inquired of tbe
latter where the Secretary was, and afterward
lounged into tbe ball and peered into the par
lor, and, on being queationed by Mr. David
Stanton, repeated bis inquiry, and being told
that tbe Secretary was on the steps, and being
requested to leave, quietly walked out. Neither
of these witnesses bas any recollection that
General Grant was inquired for at all. Why
the Government, with this information, did not
charge tbe lying in wait to have been for Sec
retary Stanton, is a matter of astonishment.
The whole evidence applicable to General Grant
is that of Mr. Stanton's messenger, John G,
Hatter, who simply relates that about nine
o'clock, or a little after, a man approached bim,
on tbe step, and inquired for Grant, and, on
being told that be could not see bim, walked off.
This was, probably, aome half-intoxicated and,
perhaps, half-demented stranger, who was ac
tuated by tbe same curiosity that brought a
large part of tbe crowd aasembled there on that
occasion, and, but for tbe tragedy of tbe next
night, tlie circumstance would never have been
thought of again. But wbon the President was
shot, Mr. Seward was assaulted, and tbe Vice-
President apparently waylaid, it naturally oc
curred to every one that tbe members of the
Cabinet bad, probably, all been exposed to tbe
coraraon danger, and the affair of tbe mysteri
ous stranger's visit was recalled, and when
Booth was discovered to be the aasassin of the
President, and Ms associates were arrested,
these witnesses went to exaraine them with a
natural suspicion of finding among tbera a-
would-be assassin of Secretary Stanton or Gen
eral Grant. Mr. David Stanton recognized
O'Laughlin as the man on tbe monitor, although
be says be bad a very indistinct view of bim,
because it was so dark. Major Knox and Hat
ter visited bim in prison, and both under tbe
same conviction that the person seen at Mr.
Stanton's must have had something to do with
tbe conspiracy, undertook to identify the ac
cused aa tbe man. Two of theae witneasea
describe his coat as a black dress coat, and one
as a frock ; all say be bad black pants. None
of them had ever seen the individual before.
This is only one of several instances of mis
taken identity exhibited in the trial. Dr. Merritt
located Herold in Canada, where he never was
in his Ufe, from tbe 15th to tbe 20th of Febru
ary, when be was clearly proved to have been
here ou both those days, collecting rent, aud
signing Ms own name to the receipts. The
aame thing occurred in regard to Dr. Mudd,
whom Evans swears to having seen in Wash
ington on the Ist, 2d or 3d of March, whereas,
he is proved to have been many miles distant
on each of those days.
But this whole story about the lying in wait
for General Grant is blown to tbe wind by the
teatimony of the defenae. Let us trace tbe ac
cused by tbe light of thia testimony. In the

THE CONSPIRACY TRIAL.

345

first place, he was invited, with two others,
iVlurpby and Early, by Ensign Henderson, to
come to Washington, on Thursday, the 13th of
April, the occasion of the geueral illumina
tion. TMs is sworn to by all three of these
parties. They arrived in Washington between
five and six o'clock, and first stopped at Rull
man's Hotel. While one of the company stopped
to be shaved, the accused went with Early to
the National Hotel, and there inquired for
aome peraon, and, perhapa, went in search of
him, but returned to the door in from three to
five minutea. This is proven by Early. The
accuaed stated to Henderson afterward that he
had been to see Booth, but not whether he had
seen bim; and there is no proof that be had,
but tbe contrary ia sufficiently shown by tbe
short time spent in the hotel. The accused and
Early then returned to Rullman's before Hen
derson bad finished shaving, and there rejoined
him and Murphy. This is sworn to by all
three- — Murphy, Early and Henderson — and
Murphy aays that Early and tbe accused were
not gone more than five or aix minutes. Tbey
then lounged up Pennsylvania avenue, and
went into Weloher'a saloon. Theae detaila are
given by both Early and Murphy, and though
Henderson is more general, he confirms tbem,
as to tbe accused having been in company, all
the time, with these parties. Leaving Welcber's
about eight o'clock, tbey returned to Rullman's,
and were shortly after joined by Daniel Lough
ran, who ia now added aa a fourth witness.
The whole party of five then strolled up Penn
sylvania avenue to look at tbe illumination.
Tbey all agree as to having paaaed Seventh
street. Those not residing here, and not fa
miliar with tbe atreeta, speak only of going a
little beyond Seventh, but Loughran, who re
sides here, fixes the end of the walk at Ninth
street, and all agree that tbey did not go be
yond it. They then turned back. Henderson,
Early and Loughran all fix the hour of this
movement to be nine o'clock, about. Loughran
looked at Ms watch, because he wished to go as
far as tbe Treasury, and aome of the party re
marked that it was too late. They then went
to tbe Canterbury Music Hall, and remained
about an hour or three-quarters, which brought
tbem to about ten o'clock. All four swear that
O'Laughlin went there with tbem, and re
mained with them, and returned with them to
Rullman's, after stopping at tbe Metropolitan,
about ten 'o'clock — a little sooner or later.
There tbey remained from half an hour to an
hour. At balf-past ten, Grillet passed with a
lady, and shortly after eleven o'clock returned,
found tbem in the same place, and joined tbem.
He, Early, Murphy and Loughran mention the
circumstance, and this brings a fifth witness
on the atage. In addition to these, Purdy, tbe
manager, and Giles, the bar-tender of Bull-
man's Hotel, both swear that be was at the
hotel, one fixing the hour at about ten, and the
other at about half-past ten, and remained
with tbe other parties until after eleven. Here,
then, are seven witnesses, of whom four swear
tbey were in company with the accused at the
. hour fixed by Hatter of his waylaying General
Grant at Mr. Stanton's, and all the evening af

terward, and that tbey were not for a moment
nearer to Mr. Stanton's than a point which
muat be a full mile diatant, and their teatimony
is added to by three other witneaaes, making
seven, who locate tho accuaed still farther off
from tbe acene of his supposed murderoua de
signs, between the hours of ten and eleven
o'clock, when tbe other Government witnesses
profeaa to have aeen bim. Six of tbe party
were with the accused until between twelve
and one o'clock that night, and tbe casual ac
cessions to tbe company having left, tbe ac
cused, Henderson, Murphy and Early, accord
ing to their concurrent testimony, retired, at
the Metropolitan Hotel, toward two o'clock in
tbe morning. On Friday morning tbe accuaed
waa rouaed by Early and Henderaon. The
aame party of four breakfasted at Welcber'a,
and atroUed on tbe avenue to the National
Hotel, and entered there about nine o'clock.
There the accused went up stairs in search of
Booth, and, as be did not return for some time,
a half or three-quarters of an hour, the party
left, thinking ho might have gone to Rullman's.
Not finding him there, tbey returned to the
National, and sent up their cards to Booth's
room, but no one was there. Tbe cards being
left at tbe office, tbey returned to Rullman's,
where they were joined by tbe accuaed in about
an hour. Tbia would be in the neighborhood
of eleven o'clock, and tbe accused then stated
to Henderson that he bad not found Booth, that
be was out. All tbe rest of the morning the
accused was in company with all three of his
friends, and, in tbe afternoon, be only parted
with tbe others, to go with Early, between four
and five o'clock, to visit a lady. Early speaks
fully of this, and Henderson says be was with
tbe accused all day, except a part of tbe after
noon, when be went off. with Early. Early and
tbe accused paid tbe visit, and returned about
six o'clock, and rejoined tbe others at tbe hotel
(Rullman's). So Early states, and Henderaon
confirma it, and Murphy statea that be was
with them until eight o'clock, when tbey went
to aupper, and be parted with them until next
day. Meanwhile, Early, Henderson and tbe
accused went to Welcber's to supper, and re
turned to Rullman's, where tbey remained
until after the news of the President's assaa
aination. Early does not reraember bow late
this was, and does not remember the hour of
O'Laughlin's leaving there with Fuller; but
Grillet, Purdy, Henderaon, Fuller and Giles all
swear that O'Laughlin was at RuUman'a, in
their company, when the newa of the Presi
dent's assassination reached there. It was com
municated to O'Laughlin and tbe others by
Purdy, who bad beard it at the door. Shortly
after O'Laughlin left Rullman's, in company
with Fuller, who bad been in his brother's em
ploy, and, on bis invitation, be spent the night
with bim. Early on Saturday morning the
accuaed joined the aame party, and waa with
them until their departure for Baltimore, in the
afternoon train, as testified by Early and
Murphy. Now, to return to Thursday evening. One
Government witness fixed nine, and tbe other
two, half-past ten o'clock, as the hour at which

346

ARGUMENT OF WALTER S. COX.

the accused waa seen lurking about Mr. Stan
ton's. Aa to the first hour, we have four, and
as to the second hour, the same, with three
othera, making aeven respectable witnesses,
of different purauita, casually meeting, and in
no wise implicated or interested themselves ;
two of them called by the Governraent, and ao
accredited as worthy of belief, and one of these
an officer in tbe United States navy, and all of
them wholly unimpeached, all intimately ac
quainted with the accused, who establish an
alibi beyond the possibility of question. It is
physically impossible that tbey can be mista
ken; tbey can not be disbelieved without im
puting deliberate perjury to tbem all. It is
morally impossible that tbey can be perjured.
On tbe other band, nothing is further frora im
poasible, nothing is easier, than for all tbe
Government witnesses to have been mistaken.
A minute'a view at nigbt, of a stranger, whom
tbey bad never beheld before, furnished tbem
all tbe knowledge upon the strength of which,
weeks after, they assumed to identify bim in
tbe obscurity of an iron-clad, and tbe shades
of a dungeon. It were folly to dwell longer on
tbe comparison between the two kinds of evi
dence. But look for a moment at tbe gross im
probability of tbe story. It is evident that tbe
different parts of this plot were to be executed
simultaneously — ^it was essential to success.
It is also evident that Friday nigbt was tbe
first time fixed for ita execution. Nothing tends
to show any earlier attempt, made or contem
plated. On Friday nigbt tbe murder occurred ;
on tbe same nigbt Mr. Seward was assaulted ;
on Friday afternoon Booth called to see tbe
Vice-President, evidently not to assassinate
him then, but to learn of bia wbereabouta ; and
if any such part as the assassination of Gen,
Grant was assigned to O'Laughlin, Friday nigbt
was tbe tirae assigned for ita execution. It ia
evident that if be bad made tbe atterapt on
Tburaday, aucceasfuUy or not, it would have
thwarted tbe whole scheme, for it would have
put every one elae on bis guard. And tbe pros
ecution felt tbe streas of tbia conaideration, for
tbey have added Friday, the 14th, in tbe speci
fication, because tbia waa abaolutely necessary
in order to connect tbe accused with tbe actual
execution of tbe conspiracy, although they had
not a scintilla of proof to justify it. Tbe story
becomea atill more improbable when we are re
quired to believe that this small and feeble
man ventured, single-handed, into a brilliantly
lit bouse to assault Mr. Stanton or General
Grant, or both, where he could hardly fail to
be seized, with a crowd at the front to inter
cept bis retreat, and wholly ignorant of tbe
exit by the rear. It may be said that be was
then simply reconnoitering for a more favor
able opportunity. But the charge ia, that be
lay in wait on that nigbt with intent, then and
there to kill and murder General Grant; and
if that is disproved, tbe whole is disproved, for
it has not been even attempted to show way
laying on Friday night, the 14th of April.
For this reason it ia almost battling wind-mills
to attempt to controvert that part of the charge
relating to Friday night. There is nothing to
answer or refute. It is sufficient, however, to

efer to the evidence already analyzed, which
shows that frora six o'clock until after tbe as
sassination, tbe accused was quietly engaged
with the companions before named, remote from
tbe acenea of blood and danger, until after tbe
whole tragedy was over. General Grant, mean
while, waa far away, although he bad been ex
pected and announced to appear at Ford'a
theater on Friday nigbt, and tbe change of
purpose waa probably only- known to tbe con
apiratora by bis actual absence. Tbe accused
waa not at the theater, nor at Secretary Sew-
ard'a, nor at tbe Kirkwood, nor anywhere else
where it can be conceived that any part of the
maaaacre was to be performed. No conceivable
part in tbe enterprise can be assigned to bim.
Indeed, it is evident that he designed, as the
others did, to return to Baltimore on Friday
morning, and was only detained by tbe per
suasions of Henderson. Did bis conduct indi
cate any complicity in, or knowledge of, tbe
impending crime? Was he silent, or excited,
or nervous, betraying tbe fatal truth in his
cups, bursting with the big and fatal secret
which could not be contained? On tbe con
trary, be is represented as in tbe finest spirits,
cheerful, composed, and ligbt-bearted, mingling
in tbe merry revel with bis boon companions,
evidently all unconscious of the impending
evil. But he went to see Booth on two occasions —
Thursday afternoon and Friday morning. It
does not appear that be saw bira on either; the
contrary is rather shown. But suppose he bad
seen bira. Tbe afternoon and tbe morning visit
were both before Booth even knew that the
President was to be at Ford's theater on Fri
day nigbt, for it appears that he only received
the information at tbe theater at noon on that
day. Before that hour, O'Laughlin bad rejoined
his companions, and was not out of tbe com
pany of some of them tbe whole day after
ward. Now, after Booth learned of the Pres
ident's arrangements for tbe evening, and laid
his plans for the raurder, if tbe accuaed bad
any connection with him whatever in tbia
acheme, why did not Booth go after bim,
aeek him out, and assign bim bis part?
Either he did not know of his presence
here, or be did not regard bim aa an accom
plice. But could tbe accuaed really desire better
proof of his innocence than tbe fact of Ma
visit to Booth afforda? Can anybody conceive
that with the knowledge of tbe intended mur-
dera, still more, expecting to participate in
tbem, be would have gone openly, in a public
hotel, to visit tbe intended leader in the crime,
in company with several persons, one of them
an officer in tbe navy, on tbe very day of the
intended attempt? Could such infatuation be
imputed to any man in bis senses? Would
not a guilty man, or one with guilty knowledge
only, have sought a covert interview, well
knowing that auapicion would attach to every
one seen in intercourse with Booth about the
time of his crime, and that the sleuth-hounds
of justice would soon be upon bis trail?
And when be received tbe news of tbe as
saaaination, what waa Ms conduct? Did he

THB CONSPIRACY TRIAL.

347

betray guilt by agitotion, and excitement and
flight ? Nothing of the sort. He was natu
rally startled, and tbe thought naturally oc
curred, that as he had been intimate with
Booth, and bad only that morning gone openly
to call on bim, be might be suspected. But still
he betrayed none of the terrors of guilt. He
went quietly to sleep at the houae or lodginga
of a friend. Tbe party had no particular
lodginga, and seem -all to have scattered that
nigbt, O'Laughlin stayed with Fuller. He
joined bia friends tbe next morning, and tbey
went quietly homo together. On reaching home
be was informed that the officers of justice were
in search of him. His suspicion, expressed in
Washington, was realized, and he found him
self involved in trouble. No man — tbe moat
innocent — could avoid emotion in aome degree,
under such circumstances. But bis deraeanor
was wholly irreconcilable with guilt. He ab
sented hiraself from home that nigbt for a rea
son that was creditable to bim, viz. : that bis
arrest there might be tbe death of bis mother ;
and no one can believe that a youth governed
by these filial sentiments could be so steeped
in depravity as to have bad any share in tbe
conception or execution of tbe diabolical crime
of Booth. Tbe officers were at Ms lodgings in
search of bim on Saturday and on Sunday.
On Sunday he informed Murphy of tbe fact,
and stated that he meant to surrender bimaelf
on Monday, and on that day be did so, through
his brother-in-law, Mr. Maulaby. Throughout,
Ma declarations were that be was innocent of
any connection with the crime, and could ac
count for every moment of bis time spent in
Washington ; and that he bas done.
It is, therefore, apparent that neither Arnold
nor O'Laughlin had anything to do with the
execution of tbe alleged conspiracy, and that
tbey even could not have had any knowledge of
tbe intended murders.
Furthermore, it appears that for nearly a
month before the assassination tbey bad no per-
sopal intercourse with Booth. Arnold waa in
Baltimore and the neighborhood from the 21at
to the Slat of March, and from that time at Fort-
reaa Monroe. He was not in Washington at
all. -And though bis letter, offered in evidence,
would seem to show that Booth bad been to aee
bim at his home, it also shows that no interview
was had, nor is any correspondence ahown, ex
cept tbe letter in queation. This letter evidently
shows a rupture of former relations with Booth.
¦' When I left you, you stated we would noi meet
in a month or so," "I told my parents I had
ceased with you. Can I, then, under existing cir
cumstances, come as you request f Such are the
terms of tbe letter. And, in effect, we know
that be did not come as requested, but, on the
contrary, accepted a situation, and went to
Portress Monroe on tbe 1st of April, and this
waa tbe last even of his correspondence with
Booth, and this completed and sealed tbe rup
ture. As to O'Laughlin, no intercourse of any
sort ia ,shown with Booth after the 18tb of
March. On that day he went horae, according
to Mr. Maulaby, and remained there with him
ever aince. Mr. Bunker, who speaks of O'Laugh
lin's frequent visita to Booth, admita that he did

not recollect his coming during the laat few
daya of Booth'a atay. Those laat few days were
the week before tbe aaaaaaination. The previ
ous week Booth was in New York, and could not
have been seen here by the accused. Bunker's
testimony is ao vague aa to dates, that it can
not be weighed for a moment against the posi
tive testimony of Mr. Maulsby. The same may
be said of Streett, who thinks he remembers see
ing tbe accused in conversation with Booth in
the streeta, well on to the lat of April, which
might have been before hia departure on the
18tb of March. It ia true that Booth tele
graphed to bim on the 27tb to come to Waahing
ton on the 29th, but it doea not appear that be
ever received the telegram, and it is certain be
did not reapond to or comply with ita requeat.
Some time in March it also appears that a let
ter waa aent from Booth to O'Laughlin, but
whether in tbe beginning or end, or what were
ita contenta, ia a matter of perfect uncertainty,
as it is, also, whether be ever noticed it. On
O'Laughlin's own part, no aingle act of inter
course is abown, between March 18tb and April
13tb, when he carae to Waahington, evidently in
tbe most complete and happy ignorance of the
mischief that was brewing.
If, then, Arnold and 0' Laughlin ever were con
nected with Booth in a conspiracy for any ob
ject, before tbe middle of March, it ia clear that,
about that time, tbey wholly withdrew from and
abandoned it, wbile it was wholly unexecuted,
if not merely in embryo. And this being tbe
case, according to the principles heretofore laid
down, tbey were not partiea, in law or in fact,
to any act aubaequently done.
But let ua aee what evidence there is to con
nect tbem with any conspiracy.
First, as to O'Laughlin. I maintain that there
ia no competent legal evidence to show him im
plicated in any conapiracy whatever. Throw
out of tbe caae tbe confession of Arnold, and
any statements made by bim caaually to third
persona — which, I ahall show, are not evidence
against O'Laughlin — what remains? No one
can pretend that there ia any direct evidence.
If any, it is circumstantial. A conspiracy may
be proved by circumstances, but by what kind
of circumstances ? Russell on Orimes, 2 vol., p.
698, says;
"Tbe evidence in support of an indictment
for a conspiracy is generally circumstantial;
and it ia not necessary to prove any direct con
cert, or even any meeting of tbe conspirators,
aa the actual fact of conspiracy may be collected
from tbe collateral circumstances of the case."
" If, therefore, two persons pursue, by their own
ads, the same objects, often by the same means, one
performing one part of the act, and ihe other an
other part of the same act, so as to complete it,
with a view to tbe attainment of tbe object they
were purauing, the jury are at liberty io draw ihe
conclusion that they had been engaged in a conspiracy
to effect ihat object. In a caae where a husband
and wife and their servants were indicted for a
conspiracy to ruin tbe trade of the prosecutor,
who was tbe king's card-maker, tbe evidence
against them was that tbey bad, at several
times, given money to the prosecutor's appren
tices to put grease into the paste, wMoh had

348

ARGUMENT OF WALTER S. COX.

spoiled the cards ; but there waa no account
given that ever more than one at a time waa
preaent, though it was proved that they had all
given money in their turns; it was objected that
this could not be conspiracy, on the ground
that several persona might do the aame thing
without having any previoua communication
with each other. But it waa ruled that the de
fendants being all of a family, and concerned
in the making of cards, it (i. e, these acts done
in pursuance of a common object) would be evi
dence of a conapiracy." Now, it ia evident in
this case, that tbe mere fact of belonging to this
family, and even being concerned in the same
trade, would not have begun to be evidence to
implicate any one. It was tbe doing of ads in
pursuance of the common end, which waa tbe cir-
cumatantial proof admitted, aided by abowing
a common motive.
Now, in the case under trial, what aingle act
or declaration of O'Laughlin can. be ahown
looking to any common end or object between
him and Booth ? Is his personal intimacy ad
duced ? But not only had that no necessary
connection with any criminal design, but it is
proved that it could not have originated in any
thing of tbe sort. They were oppoaite neigh
bors in Baltimore, bad been schoolmates in
boyhood, in tbe same neighborhood, and be
tween themselves aud their families an unin
terrupted intimacy bad subsisted for many
yeara. If intimacy were any evidence of
complicity with Booth, it would hardly be pos
sible to assign any limits to the scope of this
conspiracy. His profession, no less than bia
personal qualitiea, necessarily made bim many
acquaintances. Others were more intimate
with Mm than tbe accuaed — McCuUocb, Went
worth, and othera, ahared hia room at the Na-
tisnal Hotel. Yet they seem to have attracted
no suspicion.
Can tbe circumstance of O'Laughlin's pres
ence in Washington and his occupying a room at
Mrs. Van Tyne's be relied on? It has been
shown that he formerly resided in Washington,
was in the employment of Ms brother, then in
buaineas here, and that he has constantly bad
to visit Waahington aince, to make collections,
solicit orders, and deliver merchandise, and
that on tbe very day of Ms last visit, a month
before tbe assassination, be carae down for bia
brother, upon buainess, about which be was tel
egraphed the next day. In this state of affairs,
notMng was raore natural than that he should
occupy a room with a fellow-townsman, Arnold;
but that that had no reference to anytMng in
which Booth or Arnold was concerned, an ex
amination of dates will show. Mrs. Van Tyne
does not profess to know anything of the rela
tions between Arnold and O'Laughlin, nor
could ahe know wMch of them was actually
preaent in her lodginga at any particular time.
But she fixes the beginning of this occupancy
on the 10th of February. Now, Mr. Maulsby
shows that O'Laughlin was at home on tbe 14th
of February, and remained there two weeks —
that is, to tbe end of tbe month. So that, aa
far aa appears, he waa in Waahington but four
days during the whole month of February ; and,
by looking at Bunker's testimony, it will be

seen that Booth was absent from Washington at
that time. Indeed, he waa abaent for twelve
daya before the room waa taken at Mra. Van
Tyne's, and so continued, if I underatand
Bunker'a evidence aright, for twelve days after
ward. Tbe book shows that be left on the 28th
of January, and arrived again on the 22d of
February, though there ia some confusion on
this point. It can hardly be understood, then,
bow bis occupancy of this room could have any
reference to schemes Booth was prosecuting
here. It certainly had no necessary connection
with tbem, and can not be called as an act done
in furtherance of them, without much more
proof. Where O'Laughlin was in the begin
ning of March, is not very clear, but it is cer
tain that be waa at home on the 7tb, and ao
continued until tbe 13tb, when be apent five
daya in Washington. Now, this is everything
in the case, in the shape of acta or declarations
of O'Laughlin. No man can deny that Ma in
timacy with Booth, and hia atay in Waahington,
were perfectly consistent with utter ignorance
of anything illicit in progress, and are fully
accounted for on other grounds. He might, for
aught that appears, have been guilelessly keep
ing up a social intimacy with the friends of his
boyhood, and Booth may not have whispered
bis designs to bim, as he did not to others
equally or more intimate with bim. This inti
macy, therefore, can not be called an act done
in pursuance of tbe conspiracy, aud tending
to prove it against O'Laughlin. Conaider,
moreover, what else baa not been proved againat
bim. While the prosecution have sought to
show, and will doubtless maintain, that Mrs.
Surratt's houae waa the headquarters of the
alleged conspiracy, that John Surratt, Payne,
Atzerodt, and perhaps Spangler and Herold,
were the principal accomplices of Booth, they
have not shown that O'Laughlin was ever at
that house, or was ever known to any of those
parties. "When arreated, no arma were found
on bim, nor anything indicating any deadly or
illegal purpoae, of any kind.
Now, if I am right in my poaition that no act
or word of O'Laughlin bimaelf bas been shown,
nor any independent fact, connecting bim with
any conspiracy, then it ia very plain that no
act or declaration of any third person ia com
petent evidence against him. Tbe rule of law,
under this bead, ia too plain to be miaunder-
atood. The fad of conspiracy between A and B can
never be proved against A by the mere declara
tions of B; but if it once be proved by the
declarations or acts, of A bimaelf, then B's
deolarationa, accompanying some act done in
furtherance of the common design, would be
evidence, but tbey would not be evidence if
made casually, or after tbe conspiracy is either
executed or abandoned.
Thus, Profeaaor Greenleaf aaya (vol. I, g III):
"The same principles apply to tbe act's and
declarations of one of a company of conspira
tors, in regard to ihe common design, aa affecting
his fellows. Here a foundation must first be
laid by proof sufficient, in the opinion of the
judge, to establish, prima facie, the fact of con
spiracy between the parties, or proper to be laid

THE CONSPIRACY TRIAL.

349

before the jury, as tending to establiab that
fact. The connection of ihe individual in the un
lawful enterprise being thus shown, every act and
declaration of each member of the oonfeiVeracy,
in pur.s-itance of the original concerted plan, ia, in
contemplation of law, the act and declaration
of them all," etc. "Sometimea, for the aake of
convenience, the acts and declarations of one
are admitted in evidence, before sufficient proof
is given of the conspiracy, the prosecutor un
dertaking to furniah auob proof of conspiracy
in a subsequent stage of the cause. But this
rests in tbe discretion of the judge, and is not
permitted, except under peculiar and urgent
circumatances, lest the jury should be misled to
iifer the fad itself, of ihe conspiracy, from the
declarations of strangers. And here, also, care
must be taken that tbe acta and deolarationa
thus admitted be those only which were made
and done during the pendency of the crirainal
enterprise, and in furtherance of its object."
If they took place at a subsequent period,
and are, therefore, raerely narrative of past oc
currences, tbey are, as we have just seen, to be
refused. And, as Russell says [v. 2, p. 697]; "But
what one of the party raay have been beard to
say at aome other time, as to tbe share which
some of the others had in the execution of the
common design, or as to tbe object of tbe con
spiracy, can not, it ia conceived, be admitted as
evidence to affect them, on their trial for tbe
sarae offense."
It is clear, then, that Arnold's oral confession
is not admissible against O'Laughlin, for two
reasons, viz. ; first, because no conspiracy be
tween them bad first been proved by other evi
dence; and next, because it was not made in
furtherance or prosecution of any conspiracy,
but as to a past transaction. It is pure bear-
say, inadmisaible because of tbe double chance
of miatakea — ^raiatake in the witness as to tbe
third person's declarations, and raistake of the
third person himaelf. The sarae is to be said
of casual reraarks raade by bim to third per
aons; as to tbe nature of his or their business,
not made in tbe prosecution and furtherance of
that busineaa.
On tbe same principle, neither could any act
or declaration of Booth be evidence against
him. We have nothing of this sort but the
Bending of a letter, the contents of which are en
tirely unknown, and tbe sending of the telegrams
of Ma|rcb 13 and March 27, asking him to corae
to Washington. But without proof of conapir
acy, from another source, this would be inad
misaible against O'Laughlin. Otherwise, it
would be in tbe power of any man to ruin an
enemy, by writing to him or telegraphing to
him in terms which assumed the exiatence of
aome guilty plot between them ; and theae acta
are conaistent with tbe theory of a mere at
tempt to persuade Mm into a conspiracy, which
be would not yield to. If, then, theae acts of
Booth, and deolarationa of Arnold be rejected
as evidence, the case is utterly bare of proof
against O'Laughlin of any conapiraoy what
ever. But suppose all these acts and declarations
admitted, let na aee what tbey prove; and in

considering them, I treat tho oasea of Arnold
and O'Laughlin together.
If I have boon correct in my analysia of the
proof, I have shown, that no active design
against the Ufe of the President was on foot,
between January and the early part of April;
and I have further shown, from the evidence of
tbe Government, that during that interval.
Booth was contriving an entirely different pro
ject — the capture of the President and others.
It has further appeared that that project was
abandoned, and tbe date of its abandonment ia
fixed about, by facts referred to by Booth, to-
wit; tbe defection of aome of tbe partiea, the
aale of boraea, etc, and that date is ascertained
to have been about the middle of March.
Now, it ia clear, that if any connection ia
abown between Booth on one hand, and
O'Lo-ughlin and Arnold on tbe other, it exiated
only during tbe period when tbia abaurd pro
ject of capture waa agitated, and terminated
with that. Their fitful atay in Waahington waa
only between February lOtb and March 18tb.
By Arnold'a confeaaion, it would appear that
be, and if be is not mistaken, O'Laughlin, at
tended one meeting about the middle of March,
to consider the plan of capture ; but so imma
ture waa tbe plan, and so slight his connection
with it, that be did not even know tbe names
of the others at the raeeting — two in number —
besides Booth, Surratt and Atzerodt. At that
meeting, as might have been expected, tbe dif
ficulties of tbe scheme became apparent, and a
rupture ensued between bim and Booth ; the
whole scheme fell through, and be and O'Laugh
lin, immediately after, left for Baltimore.
Booth told bim he might sell tbe arms be bad
given bim ; and, in fact, it is proved that be
gave part 'of them away, shortly after, to bia
brother. Aa to O'Laughlin, thia confession
proves nothing but bis preaence at this single
meeting. This was tbe beginning and tbe end
of tbeir connection with Booth in any scheme
whatever of a political character; and, in this,
it is evident tbatbewas-the arch-contriver, and
they tbe dupes. And when they had once es
caped his influence, although he still evidently
clung to hia design, and telegraphed and
wrote, and called to aee tbem, it is evident that
they refused to heed the voice of tbe charmer,
cbarra he never ao wiaely. From O'Laughlin
he received no f espouse at all; from Arnold,
only the letter offered in evidence. There are
expreasions in tbe letter which look to a con
tingent renewal of tbeir relations in tbe fu
ture ; but tbey were employed to parry bis im
portunities for tbe present. Certainly, all con
nection ceased from that time.
If, therefore, any conspiracy at all be proved,
by tbe utmost latitude of evidence, against
these two accused, it was a mere unacted, atill-
sobeme, scarce conceived before abandoned, of
a nature wholly different from tbe offenae de
scribed in this charge, the proof of which doea
not sustain this charge, and of which the ac
cused could not be convicted upon this trial ;
for tbia Court, as we have seen, is bound by the
rules of evidence which prevail in others, and
one of the moat important ia, that the proof
must correspond with the charge or indictment,.

350

ARGUMENT OF WALTER S. COX.

and show the same offense, or tbe aeeuaed is
entitled to acquittal.
And there is no evidence which connects
these two accused with that dreadful conspir
acy which forms the subject of this charge.
There ia nothing to abow that during their
brief intercourae with Booth, in Washington,
that nefarious design was agitated at all, cer
tainly none that it was even disclosed to them;
and if such conspiracy had any existence, it
was in a state of slumber and suspense, await
ing that sanction without which it had no mo
tive, nor end, nor aim, nor Ufe.
I state, then, the following conclusions as es
tablished, viz.:
1. That tbe accused, Samuel Arnold and Mi
chael O'Laughlin, had no part whatever in tbe
execution of the conspiracy set forth in this
charge and its specification,
2. That if tbey were implicated in such con
spiracy, they withdrew frora it and abandoned
it wbile yet wholly unexecuted, and resting
merely in intention, and are not responsible
for any of the acts subsequently done in pur
suance of it.
3. That there is no legal and complete evi
dence implicating O'Laughlin in any conspir
acy whatever, and none implicating either
O'Laughlin or Arnold in tbe conspiracy
charged.

4. That if there is evidence against them of
any conspiracy, it is of one wholly different
from that aet forth in the charge and apeoifica-
tion, and upon these they must be wholly ac
quitted. I, therefore, claim for them an absolute and
unqualified acquittal. That the accuaed -were
wrong in ever joining the rebellion against
their Government, no one will deny ; that they
were wrong in ever listening for a moment, if
they ever did, to any proposition from that
wicked schemer. Booth, inimical to tbeir Gov
ernment, no one will deny. But it would be
to insult tbe intelligence of this Court to waste
time in showing that this Court are not sitting
in judgment on all the errors in tbe lives of
these accused, but to decide the single question
whether they are guilty of conspiracy to kill
and murder tbe President, Vice-President, Sec
retary of State, and General in command of
tbe armies of tbe United States, and of tbe acts
charged against thera severally in pursuance
of said conspiracy.
And now, Mr, President and gentlemen,
with all the aenae of reaponaibility the occa
sion ia fitted to inspire, I commit to you tbe
lives, liberties, and good names of my clients,
to be dealt with by you according to the law
and evidence, without partiality, favor, or af
fection. MICHAEL O'LAUGHLIN,
SAMUEL ARNOLD.

A.I?,G!-TJ]VEElSrT IN REPLY TO THE SEVERAL

ARGUMENTS IN DEFENSE OF MARY E. SURRATT
AND OTHERS, CHARGED WITH CONSPIRACY AND THE MURDER OF ABRAHAM
LINCOLN, LATE PRESIDENT OF THE UNITED STATES, ETC.

HOI^. JOniT A. BINGHAM,
special Judge Advocate,

May it please the Court:
Tbe conspiracy bore charged and specified,
and the acts alleged to have been committed in
pursuance thereof, and with the intent laid,
constitute a crime tbe atrocity of which bas
sent a shudder through tbe civilized world. AU
that was agreed upon and attempted by the al
leged ineitera and instigators of this crime
constitutes a combination of atrocities with
scarcely a parallel in the annals of tbe human
race. Whether tbe prisoners at your bar are
guilty of the conspiracy and the acts alleged
to have been done in pursuance thereof, as set
forth in tbe charge and specification, ia a ques
tion tbe determination of which rests solely
with this honorable Court, and in passing upon
which this Court are tbe aole judgea of the law
and the fact.
In preaenting my viewa upon the questions
of law raised by tbe several counsel for the
defense, and also on the testimony adduced
for and against tbe accused, I desire to be just
to tbem, just to you, just to ray country, and
just to my own convictions. The issue joined
involves the highest interests of the accused,
and, in my judgment, tbe highest interests of
the whole people of the United States.
It is a matter of great moment to all tbe peo
ple of this country that tbe prisoners at your
bar be lawfully tried and lawfully convicted
or acquitted. A wrongful and illegal convic
tion or a wrongful and illegal acquittal upon
this dread issue would impair somewhat tbe
security of every man's life, and shake the
atability of the repubUc.
The crime charged and specified upon your
record ia not aimply the crime of murdering a
human being, but it is tbe crime of killing and
murdering, on the 14th day of April, A. D.
1865, within the military department of Wash
ington and the intrenched lines thereof, Abra
ham - Lihcoln, then President of tbe United
States, and comraander-in-Chief of tbe army
and navy thereof; and then and there assaults
ing, with intent to kill and murder, WiUiam H,
Seward, then Secretary of State of the United

States; and then and there lying in wait to
kill and raurder Andrew Johnson, then Vice-
President of tbe United States, and Ulysses S.
Grant, then Lieutenant-General and in cora-
raand of tbe armies of tbe United States, in
pursuance of a treasonable conspiracy entered
iiito by the accused with one John Wilkes
Booth, and John H. Surratt, upon the instiga
tion of Jefferson Davis, Jacob Thompson, and
George N. Sanders and others, with intent
thereby to aid the existing rebellion and sub
vert the Constitution and laws of tbe United
States, The rebellion, in aid of which this conspiracy
was formed and this great public crime com
mitted, was prosecuted for tbe vindication of
no right, for the redress of no wrong, but was
itself simply a criminal conspiracy and gigantic
assassination. In resisting and crushing this
rebellion the American people take no step
backward, and cast no reproach upon their past
history. That people now, as ever, proclaim
tbe aelf-evident truth that whenever govern
ment becomes subversive of tbe ends of its
creation, it is tbe right and duty of tbe people
to alter or abolish it; but during these four
years of conflict tbey have as clearly pro
claimed, as was their right and duty, both by
law and by arras, that the Governraent of tbeir
own choice, humanely and wisely administered,
oppressive of none and just to all, shall not be
overthrown by privy conapiracy or armed rebel
lion. What wrong bad this Government or any of
its duly constituted agents done to any of tbe
guilty actors in this atrocious rebellion ? They
themselves being witnesses, tbe Government
which tbey assailed bad done no act, and at
tempted no act, injurious to tbem, or in any
aenae violative of tbeir rights as citizens and
men; and yet for four years, without cauae ot
complaint or colorable excuae, the ineitera and
instigators of tbe conspiracy charged upon
your record have, by armed rebellion, resisted
the lawful authority of tbe Government, and
attempted by force of arms to blot the Republic
frora tbe map of nations. Now that their
361

352

THE CONSPIRACY TRIAL,

battalions of treason are broken and flying
before tbe victorious legions of the RepubUc,
the chief traitors in this great crime against
your Government, secretly conapire with
their hired oonfederatea to achieve by aaaassi
nation, if possible, what they have in vain
attempted by wager of battle, tbe overthrow
of the Government of tbe United States and
the subversion of its Constitution and lawa.
Itia for this secret conspiracy in the interest of
tbe rebellion, formed at the instigation of the
chiefa in that rebellion, and in pursuance of
wMch tbe acts charged and specified are al
leged to have been done, and with tbe intent
laid, that the accused are upon trial.
The Government, in preferring this charge,
does not indict tbe whole people of any State
or section, but only the alleged parties to this
unnatural and atrocious conspiracy and crime.
Tbe President of tbe United States, in the dis
charge of bis duty as Comraander-in-Cbief of
the army, and by virtue of the power vested in
bim by the Constitution and laws of tbe United
Statea, baa constituted you a military court, to
hear and determine tbe issue joined against
the accused, and baa constituted you a court
for no other purpose whatever. To thia charge
and specification the defendants have pleaded,
first, that this court bas no jurisdiction in the
premises; and, second, not guilty. As the
Court has already overruled the plea to the ju
risdiction, it would be passed over in silence
by me but for the fact, that a grave aud elabo
rate argument has been made by counsel for
tbe accused, not only to show the want of juris
diction, but to arraign tbe President of the
United States before the country and tbe world
as a usurper of power over the lives and tbe
liberties of tbe prisonera. Denying tbe author
ity of tbe Preaident to conatitute this Com
mission is an averment that tbia tribunal is not
a court of justice, bas no legal existence, and
therefore no power to bear and determine tbe
issue joined. Tbe learned counael for tbe ac
cuaed, when they make this averment by way
of argument, owe it to themselves and to their
country to show bow the President could oth
erwise lawfully and efficiently discharge the
duty enjoined upon him by hia oath to protect,
preaerve, and defend tbe Conatitution of tbe
United States, and to take care that tbe laws
be faithfully executed.
An existing rebellion ia alleged and not de
nied. It is charged that in aid of this exiating
rebellion a conapiracy waa entered into by tbe
accused, incited and instigated thereto by tbe
chiefs of this rebellion, to kill and murder the
executive officera of the Government, and tbe
commander of tbe armies of the United States,
and that this conapiracy was partly executed
by the murder of Abraham Lincoln, and by a
murderous assault upon the Secretary of State ;
and counsel reply, by elaborate argument, that
although tbe facts be as charged, though tbe
conspirators be numerous and at large, able
and eager to complete the horrid work of as
sassination already begun within your miUtary
encampment, yet the successor of your mur
dered President is a usurper if he attempts by
military force and martial law, aa Commander-

in-Chief, to prevent tbe conaummation of this
traitoroua conspiracy in aid of tbia treasonable
rebellion. Tbe civil courts, aay the counael,
are open in tbe Diatrict. I anawer, tbey are
cloaed throughout half the RepubUc, and were
only open in this District on tbe day of this
confederation and conspiracy, on tbe day of
the traitorous assassination of your President,
and are only open at tbia hour by force of tbe
bayonet. Does any man auppose that if tbe
military forcea which garrison tbe intrench
ments of your capital, fifty thousand strong,
were all withdrawn, the rebel bands who this
day infest tbe mountain passes in your vicinity
would allow this Court, or any court, to remain
open in tbia District for tbe trial of theae their
confederates, or would permit your executive
officera to discbarge the trust committed to
tbem, for twenty-four hours ?
At the time this conspiracy was entered into,
and when tbia Court was convened and entered
upon this trial, the country was in a atate of
civil war. An army of insurrectionists have,
since this trial began, shed tbe blood of Union
soldiers in battle. 'The conspirator, "by whoae
band bia co-conspirators, whether present or
absent, jointly murdered the President on the
14th of last April, could not be and was not
arrested upon civil proceaa, but waa pursued by
tbe military po'wer of the Government, cap
tured and slain. Was this an act of usurpa
tion ? — a violation of the right guaranteed to
that fleeing assassin by tbe very Constitution
against which and for the subveraion of which
be bad conspired and murdered the President?
Who in all tbia land is bold enough or baae
enough to assert it?
I would be glad to know by what law tbe
President, by a military force, acting only upon
bis military orders, is justified in pursuing,
arresting, and killing one of theae conspir
ators, and is condemned for arresting in
like manner aud by his order subjecting to trial,
according to tbe laws of war, any or all of the
other parties to this same damnable conspiracy
and crime, by a military tribunal of justice — a
tribunal I may be pardoned for saying, whose
integrity and impartiality are above suspicion,
and pass unchallenged even by the accuaed
themselves. Tbe argument against tbe jurisdiction of this
Court rests upon tbe assumption that, even in
time of insurrection and civil war, no crimes
are cognizable and punishable by military
commission or court-martial, save crimes com
mitted in tlie military or naval service of the
United States, or in the militia of tbe several
States when called into tbe actual service of the
United States. But that is not all tbe argu
ment; it affirms that, under this plea to the ju
risdiction, tbe accused have the right to demand
that this Court shall decide that it is not a judi
cial tribunal, and has no legal existence.
This is a most extraordinary proposition, that
the President, under tbe Constitution and laws
of tbe United States, waa not only not author
ized, but absolutely forbidden to constitute
this Court, for tbe trial of the accused, and,
therefore, tbe act of tbe President is void, and
the gentlemen who compose tbe tribunal, with-

ARGUMENT OF JOHN A. BINGHAM.

353

out judicial authority or power, and are not,
in fact or in law, a court.
That I do not misstate what is claimed and
attempted to be eatabliabod on behalf of the
accused, I ask the attention of tbe Court to tbe
following as tbe gentleman'a (Mr. Johnson's)
propositions; That Congress bas not authorized, and, under
tho Conatitution, can not authorize the ap
pointment of thia Commission.
That thia Commiaaion baa, "as a court, no
legal existence or authority,"' because the Pres
ident, who alone appointed tbe Commiasion, haa
uo such power.
That bis act "is a mere nullity, tho uaurpa-
tion of a power not vested in tho Executive,
and conferring no authority upon you."
We have had no common exhibition of law-
learning in tbia defenae, prepared by a Senator
of tbe United Statea ; but, with all bis expe
rience, and all Ms learning and acknowledged
abiUty, be bas failed, utterly failed, to show
bow a tribunal, constituted and sworn, as this
has. been, to duly try and determine tbe charge
and specification against tbe accused, and, by
ita commiasion, not authorized to hear or deter
mine any other iaauea whatever, can rightfully
entertain, or can, by any possibility, pass
upon tbe proposition presented by this argu
ment of tbe gentleman for its considera
tion. The members of this Court are officera in tbe
army of tbe United Statea, and, by order of tbe
President, as Comraander-in-Chief, are required
to discharge this duty, and are authorized, in
this capacity, to discharge no other duty, to
exercise no other judicial power. 0£-course,
if the commission of tbe President constitutes
tbia a court for tho trial of this case only, aa
such court it is competent to decide all ques
tions of law and fact arising in the trial of the
case. But tbia Court has no power, as a Court,
to declare tbe authority by which it was con
stituted null and void, and tbe act of the
President a mere nullity, a usurpation. Haa it
been ahown by tbe learned gentleman, who
demands that thia Court shall so decide, that
officera of tbe army may lawfully and consti
tutionally queation, in thia manner, tbe ordera
of tbeir Commander-in-Chief, disobey, aet tbem
aside, and declare tbem a nullity and a usurpa
tion? Even if it be conceded that tbe officera,
thus detailed by order of tbo Commander-in-
Chief, may question and utterly disregard bis
order, and set aside Ms authority, is it possible,
in the nature of things, that any body of men,
constituted and qualified aa a tribunal of jus
tice, can sit in judgment upon tbe proposition
that they are not a court for any purpose, and
finally decide judicially, as a court, that tbe
Government which appointed tbem waa with
out authority ? Why not crown tbe absurdity
of this proposition by asking the several mem
bers of thia Court to determine that they are
not men — living, intelligent, reaponaible men I
This would be no more irrational than tbe
queation upon which they are aakedto pass.
How can any senaible man entertain it I Be
fore he begins to reason upon the proposition
he must take for granted, and, therefore, de-
23

oide in advance, the very question in dispute,
to-wit, bia actual existcnoo. ,
So with tbo question presented in this re
markable argument for tbe defense; before
this Court can enter upon tbo inquiry of the
want of authority in the President to conati
tute thera a court, they muat take for granted
and decide the very point in isauo, that the
Preaident bad the authority, and that tbey are
in law and in fact a judicial tribunal; and,
having aaaumed tbia, tbey are gravely asked,
as such judicial tribunal, to finally and
solemnly decide and declare that tbey are not
in fapt or in law a judicial tribunal, but a
raei'e nullity and nonentity. A most lamo
and impotent conclusion I
As tbe learned counsel seems to have great
reverence for judicial authority, and requires
precedent for every opinion, I may be par
doned for saying that tbe objection which I
urge against the possibility of any judicial
tribunal, after being officially qualified aa
such, entertaining, much less judicially de
ciding, the proposition that it has no legal
exiatence aa a court, and that tbe appointment
waa a usurpation, and without autbority,,of
law, has been solemnly ruled by the Supreme
Court of tbe United States.
That Court say: "Tbe acceptance of tbe ju
dicial office is a recognition of tbe authority
from which it is derived. If a court should
enter upon the inquiry (whether the authority
of tbe Government which eatablished it ex
isted), and should come to the concluaion that
tbe Government under which it acted bad been
put aside, it would cease to be a court, and be
incapable of pronouncing a judicial decision
upon the question it undertook to try. If it
decides at all, aa a court, it neceasarily affirms
tbe exiatence and authority of tbe Government
under which it ia exerciaing judicial power."
Luther vs, Borden, I.Howard, 40.
That is the very queation raiaed by tbe
learned gentleman in bia argument, that
there was no authority in the President, by
whose act alone this tribunal was constituted,
to vest it with judicial power to try this issue ;
and, by the order upon your record, aa baa
ali-eady been shown, if you have no power to
try this issue, for want of authority in the
Commander-in-Chief to constitute you a court,
you are no court, and have no power to try
any issue, because bia order limits you to this
is,3ue, and this alone.
It requires no very profound legal attain
ments to apply the ruling of the highest ju
dicial tribunal of this country, juat cited, to
tbe point raised, not by the pleadings, but by
the argument. This Court exiats aa a judicial
tribunal by authority only of tbe President of
tbe United States; tbe acceptance of the office
is an acknowledgement of tbe validity of tbe
authority conferring it, and, if tbe Preaident
had no authority to order, direct and conatitute
this Court to try tbe accused, and, as ia
claimed, did, in ao conatituting it, perform an
unconatitutional and illegal act, it neceasarily t
results that tbe order of tbe President ia void
and of no effect ; that the order did not, and
could not, constitute this a tribunal of justice,

354

THE CONSPIRACY TRIAL.

and, therefore, ita members are incapable of
pronouncing a judicial decision upon tbe
queation preaented.
There is a marked distinction between the
question here presented, and that raised by a
plea to the jurisdiction of a tribunal whose
existence, as a court, is neither questioned nor
denied. Here, it is argued, through many
pages, by a learned Senator, and a dis
tinguished lawyer, that tbe order of tbe Preai
dent, by whose authority alone this Court is
constituted a tribunal of military justice, is
unlawful; if unlawful it is void and of no
effect, and has created no court; therefore,
this body, not being a court, can have no
more power as a court, to decide any ques
tion whatever, than have its individual mem
bers power to decide that tbey, as men, do not
in fact exist.
It is a maxim of tbe common law — the
perfection of human reason — that what is
impossible tbe law requires of no man.
How can it be poaaible that a judicial tri
bunal can decide the question that it doea
not exiat, any more than that a rational man
can decide that he doea not exiat?
The absurdity of tbe proposition, so elabo
rately urged upon tbe consideration of this
Court, can not be saved from the ridicule and
contempt of senaible men by the pretenae that
the Court ia not aaked judicially to decide that
it ia not a court, but only that it haa no juris
diction ; for it is a fact not to be denied that
the whole argument for tbe defense, on this
point, is, that the Preaident had not the law
ful authority to iaaue the order by which
alone tbia Court ia conatituted, and that the
order for its creation is null and void.
Gentlemen might as well aak tbe Supreme
Court of tbe United Statea, upon a plea to
the jurisdiction, to decide, as a court, that
the President had no lawful authority to
nominate the judges thereof severally to tbe
Senate, and that tbe Senate had no lawful
authority to advise and conaent to their ap
pointment, aa to aak tbia Court to decide, aa a
court, that tbe order of the President of tbe
United States constituting it a tribunal for
the sole purpoae of this trial was not only
without authority of law, but against and in
violation of law. If this Court is not a law
ful tribunal, it bas no existence, and can no
more speak as a court than tbe dead, much
leas pronounce tbe judgment required at ita
hands, that it ia not a court, and that tbe Prea
ident of tbe United States, in conatituting it
such to try the queation upon tbe charge and
specification preferred, has transcended hia
authority, and violated his oath of office.
Before paaaing from tbe consideration of tbe
propoaition of the learned Senator, that thia ia
not a Court, it ia fit that I should notice that
another of tbe counael for tbe accused (Mr.
Ewing) has also advanced the aame opinion,
certainly with more directness and candor, and
without any qualification. Hia statement is,
"You," gentlemen, "are no court under tbe
Constitution." This remark of the gentleman
can not fail to excite surprise, when it is remem
bered that the gentleman, not many months

since, waa a general in the service of the conn-
try, and as such in his department in the West
proclaimed and enforced raartial law by the
constitution of military tribunals for the trial
of citizena not in tbe land or naval forcea, but
who were guilty of military offenaes, for which
be deemed tbem justly punishable before mili
tary courta, and accordingly be puniahed them.
Ia the gentleman quite aure, when that account
coraea to be rendered for theae alleged uncon
atitutional aasumptions of power, that he will
not have to answer for more of these alleged
violations of tbe rights of citizens by illegal
arrests, convictiona, and executiona, than any
of tbe merabera of this Court? In support of
his opinion that this is no court, tbe gentleman
cites the 3d article of tbe Constitution, which
provides " that the judicial power of the United
States shall be vested in one Suprerae Court, and
auch inferior courta as Congreas may estab
lish," the judges whereof "shall hold their offi
ces during good behavior."
It ia a sufficient anawer to aay to tbe gentle
man, that tbe power of this Government to try
and punish military offenaes by military tribu
nala ia no part of tbe "judicial power of tbe
United Statea," under the 3d article of tbe Con
stitution, but a power conferred by the 8th sec
tion of the 1st article, and so it bas been ruled
by the Supreme Court in Dyres vs. Hoover, 20
Howard, 78. If this power is ao conferred by
tbe 8th section, a military court authorized by
Congress, and constituted as this haa been, to
try all persons for military crimes in time of
war, though not exercising "the judicial power"
provided for in the 3d article, is nevertheless a
court aa conatitutional aa the Supreme Court
itaelf. The gentleman admits tbia to the extent
of tbe trial by courta-martial of persons in the
military or naval service, and by admitting it
he gives up tbe point. There is no express grant
for any such tribunal, and tbe power to estab
lish such a court, therefore, ia implied from the
provisions of the 8tb aection, lat article, that
"Congress shall have power to provide and
maintain a navy," and also "to make rules for
the government of the land and naval forces."
From these grants tbe Supreme Court infer tb«
power to establish courts-martial, and from tbe
grants in the same 8tb section, as I shall notice
hereafter, that " Congresa shall have power to
declare war," and " to paaa all lawa necessary
and proper to carry this and all other powers
into effect," it is necessarily implied that in
time of war Congresa may authorize military
commiaaions, to try all crimes comraitted in aid
of the public enemy, aa audi tribunala are ne
cessary to give effect to tbe power to make war
and auppreaa insurrection.
Inasmuch aa tbe gentleman (Gen. Ewing) for
whom, peraonally, I have a high regard aa the
military commander of a weatern department,
made a liberal exercise, under the order of tb«
Commander-in-Chief of the army, of this power
to arrest and try military offenders not in tha
land or naval forcea of the United States, and
inflicted upon them, as I am informed, the ex
treme penalty of the law, by virtue of bia mili
tary juriadiction, I wiah to know whether h«
proposea, by hia proclamation of the personal

ARGUMENT OP JOHN A. BINGHAM.

355

responsibility awaiting all audi uaurpationa of
judicial authority, that be himaelf shall be
subjected to the same stern judgment which he
invokes against others — that, in short, be shall
be drawn and quartered for inflicting tbo ex
treme penaltiea of tbo law upon citizens of tbe
United States in violation of tbo Constitution
and laws of bis country ? 1 trust that bis error
of judgment in pronouncing this military juris
diction a usurpation and violation of the Con
stitution may not rise up in judgment to con
demn bira, and that he may never be subjected
to pains and penalties for having done hia duty
heretofore in exerciaing this rightful authority,
and in bringing to judgment thoae who con
spired against the lives and liberties of tbe
people. Here I raight leave this question, committing
it to the charitable spoeobes of men, but for the
fact that tbe learned counsel bas been raore
careful in bis extraordinary argument to de
nounce tbe President as a usurper than to show
bow tbe Court could possibly decide that it bas
no judicial existence, aud yet that it has judi
cial existence.
A representative of tbe people and of tbe
rights of the people before this Court, by the
. appointment of the Pre.sidont, and which ap
pointment was neither aoughtby rae or desired,
I can not allow all that has here been said by
way of denunciation of tbe raurdered President
and his successor to pass unnoticed. This has
beenrmade the occasion by tbe learned counsel,
Mr. Johnson, to volunteer, not to defend tbe
accused, Mary E. Surratt, not to make a judi
cial argument in ber behalf, but to make a
political harangue, a partisan speech against
his Government and country, and thereby swell
tbe cry of the armed legions of sedition and
rebellion that but yesterday shook the heavens
with their infernal enginery of treason and
filled tbe habitations of the people with death.
As the law forbids a Senator of the United
States to receive compenaation, or fee, for de
fending, in cases before civil or miUtary com
misaiona, the gentleman volunteers to make a
apeecb before tbia Court, in which be denounces
the action of the Executive Department in pro
claiming and executing martial law against
rebela in arma, tbeir aiders and abettors, aa a
uaurpation and a tyranny. I deem it my duty
to reply to this denunciation, not for the pur
pose of presenting thereby any question for tbe
decision of this Court, for I have shown that
the argument of tbe gentleman presents no
question for its decision as a Court, but to repel,
as far as I may be able, the unjust aspersion
attempted to be cast upon tbe memory of our
dead President, and upon the official conduct of
his successor.
I propose now to anawer fully all that the
gentleman (Mr. Johnaon) has aaid of the want
of jurisdiction in tbia Court, and of tbe alleged
uaurpation and tyranny of the Executive, that
tbe enlightened public opinion to which he ap-
peala may decide whether all this denunciation
is just — whether indeed conspiring against the
whole people, and confederation and agreement
in aid of insurrection to murder all the execu
tive officers of the government, can not be checked

or arreated by the Executive power. Lot the
people decide thia queation; and in doing so,
let them pass upon tho action of tbe Senator as
well as upon the action of those whom he ao ar
rogantly arraign a. His plea in behalf of an
expiring and shattered rebellion is a fit subject
for public consideration and for .public con
demnation. Let that people alao note, that while tbe learned
gentleman (Mr. Johnaon), as a volunteer, with
out pay, thus condemns as a usurpation the
means employed so effectually to auppreaa this
gigantic inaurrection, tbe New York News,
whoae proprietor, Benjamin Wood, ia shown by
tho teatimony upon your record to have received
from the agents of the rebellion twenty-five
thousand doUars, rushes into tbe liata to cham
pion tbe cause of the rebellion, ita aidera and
abettors, by following to tbe letter bia colleague
(Mr. Johnson), and with greater plainneaa of
speech, and a fervor intensified, doubtless, by
the twenty-five thousand dollars received, and
tbe hope of more, denounces tbe Court as a
usurpation and threatens tbe members with tbe
conaequencea I
The argument of the gentleman, to which tbe
Court has listened so patiently and so long, ia but
an attempt to show that it is unconatitutional
for tbe Government of tbe United Statea to arreat
upon military order and try before railitary tri
bunala and punish upon conviction, in accord
ance with tbe lawa of war and the usages of
nations, all criminal offenders acting in aid of
tbe existing rebellion. It does aeem to me that
the apeecli in its tone and temper ia tbe same as
that which tbe country bas heard for tbe last
four years uttered by tbe armed rebels them
selves and by tbeir apologists, averring that it
waa unconstitutional for tbe Government of the
United States to defend by arms its own rights
ful authority and the supremacy of its laws.
It is as clearly tbe right of the republic to live
and to defend ita life until it forfeits that right
by crime, as it is tbe right of tbe individual to
live ao long aa God gives Mm life, unless be for
feits that right by crime. I make no argument
to support tbia propoaition. Who is there bore
or elsewhere to cast tbe reproach upon my coun
try that for her crimes she must die ? Young
est born of tbe nations ! ia abe not immortal by
all tbe dread memoriea of tbe past — by that sub
lime and voluntary sacrifice of the present, in
which tbe bravest and noblest of ber aona have
laid down their lives that she might live, giving
their serene brows to the dust of the grave, and
lifting tbeir bands for the last time araidst the
consuming fires of battle I I assuine, for the
purposes of this argument, that self-defense is
aa clearly the right of nations as it is tbe ac
knowledged right of men, and that the Ameri
can people may do in the defense and mainten
ance of their own rightful authority against or
ganized armed rebels, their aiders and abettors,
whatever free and independent nations any
where upon tbia globe, in time of war, may of
right do.
All this is Bubatantially denied by the gentle
man in tbe remarkable argument which he has
here made. There is nothing further from my
purpose than to do injustice to the learned gen-

S56

THE CONSPIRACY TRIAL.

Heman or to Ms elaborate and ingenious argu
ment. To justify what I have already said, I
may be permitted here to remind the Court that
nothing ia said by the counael touching the con
duct of the accuaed, Mary E. Surratt, aa shown
by the testimony ; that be makes confession at
the end of bis arraignment of tbe Government
and country, that be has not made such argu
ment, and that be leaves it to be made by her
other counsel. He does take care, however, to
arraign tbe country and tbe Government for con
ducting a trial with closed doors and before a
secret tribunal, and compares tbe proceedings of
tbia Court to the Spanish Inquisition, using tbe
strongest worda at Ms comraand to intensify tbe
horror which he aupposes Ms announcement will
excite throughout tbe civilized world.
Waa this dealing fairly by this Govern
raent? Was there anything in the conduct of
tbe proceedings here that justified any such
remark ? Has this been a secret trial ? Has
it not been conducted in open day, in the
presence of tbe accused, and in tbe presence
of seven gentlemen learned in the law, who
appeared from day to day aa their counael?
Were they not informed of tbe accusation
against them ? Were they deprived of tbe
right of challenge? Was it not secured to
tbera by law, and were tbey not asked to ex
ercise it? Has any part of tbe evidence been
suppressed? Have not all tbe proceedings
been published to tbe world ? "What, then,
was done, or intended to be done, by the Gov
ernment, which justifies this clamor about a
Spanish Inquiaition ?
That a people aasailed by organized treason
over an extent of territory half as large aa tbe
continent of Europe, and aaaailed in tbeir
very capital by aecret aasassins banded to
gether and hired to do the work of murder by
tbe instigation of these conspirators, may not
be perraitted to raake inquiry, even with
closed doors, touching tbe nature and extent
of the organization, ought not to be asserted
by any gentle&ian who makes tbe leaat pre
tensions to any knowledge of tbe law, either
common, civil or military. Who doea not
know that at the coraraon law all inquiaition
touching Crimea and misdemeanors, prepara
tory to indictment by the grand inquest of tbe
State, ia made with closed doors ?
In this trial, no partiea accused, nor their
counsel, nor tbe reporters of this Court, were
at any time excluded from ita deliberationa
when any teatimony waa being taken; nor
has there been any testimony taken in the
case with closed doora, save that of a few wit
nesses who testified, not in regard to tbe ac
cused or either of tbem, but in respect to the
traitora and conspiratora not on trial, who
were alleged to have incited tbia crime. Who
is there to aay that tbe American people, in
time of armed rebellion and civil war, have
not the right to make such an examination aa
secretly aa they may deem neceaaary, either in
a military or civil court ?
I have said this, not by way of apology for
anything tbe Government has done or at
tempted to do in tbe progress of this trial, but
to expose the animus of the argument, and to

repel tbe accusation against my country aent
out to tbe world by tbe counael. From any
thing that he haa said, I have yet to learn that
tbe American people have not tbe right to
make tbeir inquiries secretly, touching a gen
eral conspiracy in aid of an existing rebellion,
which involves tbeir nationality and the peace
and security of all.
Tbe gentleraan then enters into a learned
argument for tbe purpose of showing that, by the
Constitution, tbe people of tbe United States
can not, in war or in peace, subject any per
aon to trial before a military tribunal, what
ever may be hia crime or offenae, unless such
person be in tbe military or naval aervice of
the United Statea. The conduct of this argu
ment is as remarkable as its asaaulta upon the
Governraent are unwarranted, and its insinu
ations about the revival of tbe inquisition abd
secret trials are inexcusable. The Court will
notice that tbe arguraent, from the beginning
alraost to its conclusion, insists that no per
son is liable to be tried by railitary or martial
law before a military tribunal, save those in
tbe land and naval service of tbe United
States. I repeat, the conduct of this argu
ment of the gentleman is remarkable. As
an instance, I ask tbe attention, not only
of this Court, but of that public whom be bas
ventured to address in this tone and temper,
to tbe authority of the distinguished Chancel
lor Kent, whose great name the counsel baa
endeavored to press into bis service in sup
port of bia general propoaition, that no per
aon aave tboae in the military or naval service
of tbe United Statea ia Uable to be tried for
any crime whatever, either in peace or in war,
before a military tribunal.
Tbe language of tbe gentleman, after citing
the provision of the Constitution, "that no
person shall be held to answer for a capital or
otherwise infamous crime unless on a pre
sentment or indictment of a grand jury, ex
cept in cases arising in tbe land or naval
forces, or in tbe militia, when in actual ser
vice in time of war or public danger," ia, " that
tbia exception is designed to leave in force,
not to enlarge, tbe power vested in Congress
by tbe original Conatitution to make rulea for
the governraent and regulation of tbe land
and naval forces; that the land or naval
forces are tbe terras used in both, have the
same meaning, and until lately have been
supposed by every commentator and judge to
exclude from military jurisdiction offensea
committed by citizena not belonging to auch
forces." The learned gentleman then adda;
"Kent, in a note to bia 1st Commentaries, 341,
states, and with accuracy, that ' military and
naval crimes and offenses, committed while
tbe party is attached to and under the imrae-
diate authority of the army and navy of tbe
United Statea, and in actual aervice, are not
cognizable under tbe common-law jurisdiction
of_ tbe courta of the United States.'" I ask
this Court to bear in mind that tbia is tbe
only pasaage which he quotea from this note
of Kent in hia arguraent, and that no man
poaaesaed of common aenae, however destitute
he may be of tbe exact and varied learning in

ARGUMENT OF JOHN A. BINGHAM.

357

the law to which the gentleman may right
fully lay claim, can for a moment entertain
tbe opinion that tbe distinguished chancellor
of New York, in the passage juat cited, inti-
matea any auob thing aa the counael asserts,
that the Conatitution exoUidea from military
jurisdiction offensea committed by citizens not
belonging to tho land or naval forces.
Who can fail to see that Chancellor Kent,
by the pasaage cited, only decides that mili
tary and naval crimes and offenses committed
by a party attached to and under the immediate
authority of the army and navy of tbe United
States, and in actual service, are not cognizable
under the common-lawjurisdiction ofthecourta
of tbe United States ? He only aaya they aro not
cognizable under ita common-law juriadic
tion; but by that he doea not aay or intimate,
what is attempted to be said by the counael
for him, that " all crim,ea committed by citi
zens are by the Conatitution excluded from
military juriadiction," and that the perpetra
tors of tbem can under no circurastancea be
tried before military tribunala. Yet tbe
counsel ventures to proceed, starting upon
this pasaage quoted from Kent, to aay that,
" according to this great authority, every other
class of persona and every other speciea of
offenses are within tbe juriadiction of tbe
civil courts, and entitled to tbe protection of
the proceeding by preaentment or indictment
and the public trial in such a court."
Whatever that great authority may have
said elsewhere, it is very doubtful whether any
candid man in America will be able to come to
tbe very learned and aatute concluaion that
Chancellor Kent has so stated in tbe note or
any part of the note which tbe gentleman bas
just cited. If be haa said it elsewhere, it is for
the gentleman, if be relies upon Kent for au
thority, to produce tbe paasage. But was it
fair treatment of this " great authority " — was
it not taking an unwarrantable privilege with
the distinguished chancellor and Ms great work,
the enduring monument of bis learning and
genius, to so mutilate the note referred to, as
might leave tbe gentleman at liberty to make
Ms deductions and assertions under cover of
the great name of the New York chancellor, to
suit the emergency of his caae, by omitting the
following paaaage, which ocoura in tbe aame
note, and absolutely excludes the conclusion so
defiantly put forth by the counsel to support
Ma argument 7 In that note Chancellor Kent

" Miliiary law is a system of regulations for
the government of the armies in the service of
the United States, authorized by the act of
Congress of April 10, 1806, known as the Ar
ticles of War, and naval law is a similar sys
tem for tbe government of the navy, under
the act of Congresa of April 23, 1800. But
martial law is quite a distinct thing, and is
founded upon paramount necessity, and pro
claimed by a military chief."
However unsuccessful, after thia expoaure,
the gentleman appears in maintaining bia mon
strous proposition, that the American people
are by their own Constitution forbidden to try
the aiders and abettors of armed traitors and

rebellion before military vribunals, and subject
them, according to the lawa of war and tbe
uaagea of nations, to just punishment for tbeir
great crimes, it haa been made clear from what
I have already stated, that he has been emi
nently successful in mutilating this beautiful
production of that great mind; which act of
mutilation, every one knows, is violative alike
of the lawa of peace and war. Even in war
tbe divine cfeationa of art and the immortal
productions of genius and learning are spared.
In the same spirit, and it aeema to me with
tbe same unfairness aa that juat noted, the
learned gentleraan has very adroitly pressed
into Ms service, by an extract from the auto
biography of the war-worn veteran and hero,
General Scott, tbe names of tbe late Secretary
of War, Mr. Marcy, and tbe learned ex-Attor
ney-General, Mr. Gushing. Thia adroit per
formance ia achieved iu this way : after atat-
ing tbe fact that General Scott in Mexico pro
claimed martial law for the trial and punish
ment by military tribunals of -peraona guilty
of "asaaasination, murder and poiaoning," the
gentleman proceeds to quote from tbe Autijbi-
ograpby, "that this order, when banded to tbe
then Secretary of War (Mr. Marcy) for his
approval, 'a startle at tbe title (martial law
order) was the only comment he then or ever
made on tbe subject,' and that it was 'soon si
lently returned as too explosive for safe hand
ling.' ' A little later (be adds) tbe Attorney-
General (Mr. Cusbing) called and asked for a
copy, and the law officer of the government,
whose business it ia to speak on all such mat
ters, was stricken with legal dumbness.' " There
upon tbe learned gentleman proceeds to say :
" How much more stautled and more paralyzed
would these great men have been bad they been
consulted on such a commiaaion as this ! A
commission, not to sit in another country, and
to try offenaea not provided for in any law of
tbe United Statea, civil or military, then in
force, but in tbeir own country, and in a part
of it where there are laws providing for their
trial and punishment, and civil courta clothed
with ample powers for both, and in the daily
and undisturbed exercise of their jurisdiction."
I think I may safely aay, without atopping to
make any apecial references, that tbe official
career of tbe late Secretary of War (Mr. Mar
cy) gave no indication that he ever doubted or
denied tbe constitutional power of tbe Ameri
can people, acting through their duly consti
tuted agents, to do any act juatified by tbe laws
of war, for the suppression of a rebellion or to
repel invasion. Certainly there ia nothing in
this extract from tbe Autobiography which jus
tifies any such conclusion. He was startled,
we are told. It may have been as much tbe
admiration he had for the boldness and wis
dom of the conqueror of Mexico aa any abhor
rence he bad for tbe trial and punishment of
"assassins, poiaonera and murderers," accord
ing to the lawa and uaagea of war.
But the official utterancea of the ex-Attorney-
General, Cuahing, with which tbe gentleman
doubtleaa was familiar when be prepared this
argument, by no means justify tbe attempt
here made to quote Mm as authority against

358

THE CONSPIRACY TRIAL.

tbe proclamation and enforcement of martial
law iu time of rebellion and civil war. That
distinguished man, not second in legal attain
ments to any who have held that position, bas
left an official opinion of 1-ecord touching this
subject. Referring to what is said by Sir
Mathew Hale, in his History of tbe Coraraon
Law, concerning martial law, wherein he lira-
its it, as tbe gentleraan has seeraed by tbe
whole drift of his argument desirous of doing,
and saya that itia "not in truth and in reality
law, but something indulged rather than al
lowed as a law — tbe necessity of government,
order and discipline in an army," Mr. Cusbing
makes tbia juat criticiam: "Thia proposition
is a raere composite blunder, a total misappre
hension of tbe raatter. It confounds martial
law and law miliiary ; it ascribes to tbe former
the uses of tbe latter; it erroneously aaaumes
that the government of a body of troops is a
neceasity more than of a body of civilians or
citizens. It confounds and confuses all the
relations of tbe subject, and is an apt illustra
tion of tbe incompleteness of the notions of tbe
common-law jurists of England in regard to
matters not comprehended in that liraited
branch of legal science. '* '* '* Military
law, it ia now perfectly understood in England,
ia a branch of the law of the land, applicable
only to certain acts of a particular class of
persons, and administered by special tribunala ;
but neither in that nor in any other respect
essentially differing as to foundation in consti
tutional reason from admiralty, ecclesiastical
or indeed chancery and common law. ''-' •'
It is tbe system of rulea for tbe government of
tbe army and navy established by successive
acts of Parliament. '* '* * *, '-
Martial law, aa exerciaed iu any country by
tbe commander of a foreign army, ia an ele
ment of tbe jus belli,
"It ia incidental to the state of solemn war,
and appertains to the law of nations. * '*
Thus, wbile tbe armiea of the United Statea oc
cupied different provincea of tbe Mexican re
public, tbe respective commanders were not
limited in authority by any local law. They
allowed, or rather required, tbe magistrates of
the country, municipal or judicial, to continue
to administer the laws of the country among
their countrymen; but in subjection, always,
to tbe military power, which acted summarily
and according to discretion, when the bellige
rent interests of the conqueror required it, and
which exercised juriadiction, either aummarily
or by means of military coraraissions for tbe
protection or the puniahment of citizena of tbe
United States in Mexico. Opinions of Attor
neys-General, vol. viii, 366-369.
Mr. Cusbing says, " That, it would seem,
waa one of the forma of martial law ;" but be
adda, that such an example of martial law ad
ministered by a foreign army in tbe enemy's
country " does not enlighten us in regard to
the question of martial law in one's own coun
try, and aa adminiatered by ita military com
manders. That ia a caae which tbe law of na
tions does not reach. Its regulation ia of tbe
domeatic reaort of tbe organic laws of tbo
country itself, and regarding which, aa it bap-

pens, there is no dtfinite or explicit legislation
in tbe United States, as there is none in Eng
land. "Accordingly, in England, as we have seen.
Earl Grey assumes that when martial law ex
ists it baa no legal origin, but is a mere fact of
necessity, to be legalized afterward by a bill
of indemnity, if there be occasion. I am not
prepared to say that, under exiating laws, such
may not also be the caae in tbe United Statea."
Ibid,, 370.
After auch a atatement, wherein ex- Attor
ney-General Gushing very clearly recognizes
the right of this Governraent, aa also of Eng
land, to eraploy raartial law as a means of de
fenae in a time of war, whether domestic or
foreign, he will be as much surprised when he
reads the argument of the learned gentleman
wherein be is described as being gtrucli with
legal dumbness at tbe mere mention of proclaim
ing martial law, and its enforcement by tbe
comraander of our army in Mexico, aa the late
Secretary of War waa startled with even the
mention of its title.
Even some of tbe reasons given, and certain
ly the power exercised by tbe veteran hero him
self, would seem to be in direct conflict with
tbe propositions of tbe learned gentleman.
Tbe Lieutenant-General says, he " excludes
from his order caaea already cognizable by
court-martial, and limits it to caaea not pro
vided for in the act of Congresa establiahing
rules and articles for the government of the
armies of tbe United States." Has not the
gentleman who attempts to press General
Scott into bis service argued and insisted upon
it, that tbe comraander of the army can not aub
ject tbe soldiers under his command to any
control or punishment whatever, save that
which is provided for in tbe articles ?
It will not do, in order to sustain the gen
tleman's hypothesis, to say that these provi
sions of tbe Constitution, by which he attempts
to fetter tbe power of the people to punish
such offenses in time of war within the terri
tory of tbe United States, may be disregarded
by an officer of the" United States in command
of its arraies, in the trial and punishment of
ita soldiera in a foreign war. The law of tbe
United Statea for the government of its own
armiea follows tbe flag upon every aea and in
every land.
Tbe truth is, that tbe right of the people to
proclaim and execute martial law is a necea
sary incident of war, and this was tbe right
exercised, and rightfully exercised, by Lieu
tenant-General Scott in Mexico. It waa what
Earl Grey bas justly said. was a "fact of ne
ceaaity," and I may add, an act aa clearly au
thorized aa was tbe act of fighting the enemy
when they appeared before him.
In making thia exception, tbe Lieutenants
General followed the rule recognize.d by the
American autboritiea on miUtary law, in
which it is declared that "many Crimea com
mitted even by miUtary officera, enUsted men,
or camp retainera, can not be tried under the
rules and articles of war. Military Com
missions must be resorted to for such caaea,
and these commissions should be ordered by

ARGUMENT OF JOHN A. BINGHAM.

359

the same authority, be constituted in a simi
lar manner, and their proceedings be conduc
ted according to the same general rules aa
general courta-martial." Benet, 15.
There remain for me to notice, at preaent,
two other pointa in thia extraordinary apeeoh :
firat, that martial law does not warrant a
military commiaaion for the trial of military
offenses — that ia, offenaea committed in time
of war in tbe intereata of the public enemy,
andby concert and agreement with the enemy ;
and second, that martial law does not prevail
in the United Statea, and bas never been de
clared by any competent authority.
It is not neoesaary, aa tbe gentleman him
self has declined to argue the first point —
whether martial law authorizes the organi
sation of military commisaiona by order of
the Commander-in-Cbief to try such offenses,
that I should aay more than that the authority
just cited by me abowa that auch commissions
are authorized under martial law, and are
created by tbe comraander for tbe trial of all
such offenses, when tbeir punishment by court-
martial is not provided for by the express
Statute law of tbe country.
Tbe second point — that martial law bas not
been declared by any competent authority, is
an arraignment of tbe late murdered Preai
dent of the United States for his proclamation
of September 24, 1862, declaring martial law
throughout the United Statea; and of which,
in Lawrence'a edition of Wheaton on Inter
national Law, p, 522, it ia aaid : " Whatever
may be tbe inference to be deduced, either
from Conatitutional or International Law, or
from the usages of European governments, as
to the legitimate depository of the' power of
suspending tbe writ of habeas corpus, the vir
tual abrogation of the judiciary in caaea
affecting individual liberty, and the establish
ment aa matter of fact iu tbe United Statea,
by the Executive alone, of martial law, not
merely in tbe inaurrectionary diatricta, or in
cases of military occupancy, but throughout
the entire Union, and not temporarily, but as
an institution as permanent as the insurrec
tion on which it professes to be' based, and
capable on the same principle of being revived
in all caaea of foreign as well aa civil war,
are placed beyond queation by tbe President's
proclamation of September 24, 1862." That
proclamation ia aa follows ;
"BY THE PKESIDENT OF THE UNITED STATES OV
AMEEICA — A PaOCLAMATION.
"Whereas, it has become necessary to call
into service not only volunteers, but also por
tions of tbe militia of the Statea, by a draft,
in order to suppress tbe insurrection existing
In the United States, and disloyal persons are
not adequately restrained by tbe ordinary pro-
ceaaea of law from hindering this measure,
and from giving aid and comfort in various
ways to the inaurrection : Now, therefore, be
it ordered, that during the exiating insurrec
tion, and aa a neceaaary meana for suppress
ing the aame, all rebela and inaurgenta, tbeir
aiders and a"bettors, within the United States,
and all peraons discouraging volunteer en

listments, tosisting militia drafts, or guilty
of any dialoyal practice, affording aid and
comfort to rebels, againat the authority of the
United Statea, ahall be aubject to martial law,
and liable to trial and punishment by courta-
martial or miliiary commission.
"Second. That tbe writ of habeas corpus is
suspended in respect to all persons arrested,
or who are now, or hereafter during tbe rebol-
licn shall be, imprisoned in any fort, camp,
arsenal, military prison, or other place of con
finement, by any military authority, or by the
sentence of any court-martial or military
commission. "In witness whereof, I have hereunto set
my hand, and cauaed the seal of the United
States to be affixed.
"Done at tbe city of Washington, this 24th
day of September, A. D. 1862, and of tbe inde
pendence of the United States tbe eigbty-
aeventb. "ABRAHAM LINCOLN
"By the Preaident:
"William H. Sewaeb, Secretary of State."
Thia proclamation is duly certified from tbe
War Department to be in full force and not
revoked, and ia evidence of record in this
caae ; and but a few days since a proclamation
of tbe President, of which tMs Court will take
notice, declares that the aame remaina in fuU
force. It baa been aaid by another of the counsel
for the accuaed (Mr. Stone) in Ma argument,
that admitting its validity, the proclamation
ceasea to have effect with tbe inaurrection, and
is terminated by it. It is true tbe proclama
tion of martial law only continues during the
insurrection ; but inasmuch as the question
of tbe existence of an insurrection ia a polit
ical queation, tbe deoiaion of which belonga
exclusively to tbe political department of tbe
Government, that department alone can declare
ita exiatence, and that department alone can
declare its termination, and by tbe action of
tbe political department of the Government
every judicial tribunal in tbe land is concluded
and bound. That queation has been settled
for fifty years in this country by the Supreme
Court of tbe United States : First, in tbe case
of Brown vs, tbe United States, 8 Crunch ; alao
in tbe prize caaes, 2 Black, 641. Nothing more,
therefore, need be aaid upon tbia queation of
an existing insurrection than tbia : Tbe political
department of tbe Government baa heretofore
proclaimed an insurrection ; that department
has not yet declared the insurrection ended,
and tbe event on the 14tb of April, which
robbed tbe people of tbeir chosen Executive,
and clothed this land in mourning, bore sad
but overwhelming witneaa to tbe fact that tbe
rebellion is not ended. Tbe fact of tbe insur
rection is not an open queation to be tried or
settled by parol, either in a military tribunal
or in a civil court.
The declaration of tbe learned gentleman
who opened tbe defense (Mr. Johnson), that
martial law bas never been declared by any
competent authority, as I have already said,
arraigns Mr. Lincoln for a uaurpation of power.
Doea the gentleman mean to aay that, until
Congresa authorizes it, the Preaident can not

360

THE CONSPIRACY TRIAL.

proclaim and enforce martial law in the sup
pression of armed and organized rebellion?
Or does he only affirm that this act of the late
Preaident iaa usurpation?
Tbe proclamation of martial law iu 1862 a
usurpation! though it armed tbe people in
that dark hour of trial with the means of
defense against traitorous and secret ene
mies in every State and district of tbe coun
try; though by its use some of tbe guilty we^e
brought to swift and just judgment, and others
deterred from crime or driven to flight; though
by this means the innocent and defenseless
were protected ; though by this means the city
of the gentleman's residence was saved from
tbe violence and pillage of the mob and tbe
torch of tbe incendiary. But, says tbe gen
tleman, it was a usurpation, forbidden by the
laws of tbe land 1
Tbe same was said of the proclamations of
blockade, issued April 19 and 27, 1861, which
declared a blockade of the ports of tbe in
surgent States, and that aU vessels violating
tbe same were subjects of capture, and, to
gether with the cargo, to be condemned as
prize. Inasmuch as Congress had not then
recognized tbe fact of civil war, these procla
mations were denounced as void. Tbe Supreme
Court decided otherwise, and affirmed tbe
power of tbe Executive thus to subject prop
erty on tbe seas to seizure and condemnation.
I read from that decision ;
" Tbe Constitution confers upon tbe Presi
dent the whole executive power ; be ia bound
to take care that tbe laws be faithfully exe
cuted ; be is Commander-in-Cbief of tbe army
and navy of tbe United States, and of the
militia of tbe several States when called into
the actual service of tbe United States. * *
Whether the President, in fulfilling his duties
as Commander-in-Chief in suppressing an in
surrection, has met with such armed hostile
reaiatance, and a civil war of such alarming
proportion a aa will compel bim to accord to
them tbe character of belligerenta, is a quea
tion to be decided by him, and this Court muat
be governed by tbe decisions and acts of tbe
poUtical department of tbe Governraent to
which this power was intruated. He muat de
termine what degree of force the crisis de
mands. " Tbe proclamation of blockade is itself of
ficial and conclusive evidence to tbe Court that
a state of war existed which demanded and
authorized a recourse to such a measure under
the circumatances pecuUar to the case." 2
Black, 670.
It haa been aolemnly ruled by the same tribu
nal, in an earlier case, "that tbe power is con
fided to tbe Executive of tbe Union to deter
mine when it ia necessary to call out tbe
militia of the States to repel invasion,'' as
follows; "That he is necessarily constituted
tbe judge of tbe existence of tbe exigency in
tbe flrst instance, and is bound to act according
to bis belief of the facts. If he does so act,
and decides to oall forth the militia, bia orders
for this purpose are in strict conformity with
the provisions of tbe law ; and it would seem
to follow as a necessary conaequenoe, that

every act done by a subordinate officer, in
obedience to such orders, is equally justifiable.
The law contemplates that, under such cir
cumstances, ordera shall be given to carry the
power into effect; and it can not, therefore, bo
a correct inference that any other person has
a just right to disobey tbem. The law
doea not provide for any appeal from tbe judg
ment of tbe Preaident, or for any right in sub
ordinate officers to review Ms decision, and in
effect defeat it. Whenever a statute gives a dis
cretionary power to any person, to be exercised
by him upon Ma own opinion of certain facta,
it is a sound rule of construction, that the
statute constitutes him tie aole and exclusive
judge of tbe exiatence of those facts." 12
Wheaton, 31.
In tbe light of these deoiaiona, it must be
clear to every mind that tbe queation of the
existence of an insurrection, and tbe neceasity
of calling into requiaition for ita auppresaion
both the militia of tbe Statea, and the army
and navy of the United States, and of pro
claiming martial law, which is an easential
condition of war, whether foreign or do
mestic, must rest with the officer of the Gov
ernment who is charged by the express terms
of tbe Constitution with tbe performance of
this great duty for tbe common defense and the
execution of tbe laws of the Union.
But it is further insisted by the gentleman
in this argument, that Congress has not author
ized tbe estabUshment of miUtary commissions,
which are essential to tbe judicial administra
tion of martial law, and the puniahment of
crimes committed during tbe existence of a civil
war, and especially, that such commissions are
not so authorized to try persons other than those
in tbe military or naval service of the United
States, or in tbe militia of tbe several States,
when in tbe actual service of the United States.
Tbe gentleman's argument assuredly destroys
itself, for be insists that the Congress, as the
legislative department of tbe government, can
pass no law which, either in peace or war, can
constitutionally aubject any citizen not in the
land or naval forces, to trial for crime before a
miUtary tribunal, or otherwise than by a jury
in the civil courts.
Why doea the learned gentleman now tell us
that Congress bas not authorized thia to be done,
after declaring juat as stoutly that by the fifth
and sixth amendments to tbe Constitution no
auob miUtary tribunala can be established for
the trial of any person not in the military or
naval service of the United States, or in tbe mi
litia, when in actual aervice, for the commiaaion
of any crime whatever in time of war or inaurrec
tion ? It ought to have occurred to tbe gentleman
when comraenting upon the exception in tbe fifth
article of tbe Conatitution, that there was a reason
for it very different from that which he saw fit
to assign, and that reason, manifestly upon the
face of tbe Constitution itaelf, waa, that by the
eighth section of the firat article, it ia expressly
provided that Congresa shall have power to
make rules for tbe government of tbe land and
naval forcea, and to provide for organizing,
arming and diaciplining tbe miUtia, and for
goiierning auch part of tbem aa may be employed

ARGUMENT OF JOHN A. BINGHAM.

361

in the service of the United States, and that, in
aamuob as miUtary discipline and order are as
essential in an army in time of peace aa in time
of war, if tbe Conatitution would leave this power
to Congreaa in peace, it muat make tbe excep
tion, ao that ruloa and regulations for tbe gov
ernment of tbe army and navy ahould be ope
rative in time of peace as wellaa in time of war;
becauae the provisions of the Constitution give
tbe right of trial by jury in time or peace, in
all criminal prosecutions by indictment, in terma
embracing every human being that may be held
to anawer for crime in tbe United Statea : and
therefore, if the eighth aection of tbe firat article
was to remain in full force in time of PE.iCE,
the exception must be made; and accordingly,
the exception waa made. But by the argument
we have liatened to, thia Court is told, and tbe
country is told, that in time of war — a war
which involves in its dread issue the lives and
interests of us all — the guarantees of tbe Con
stitution are in full force for tbe benefit of those
who conspire with the enemy, creep into your
camps, murder in cold blood, in the interests of
the invader or insurgent, the Commander-in-
Cbief of your army, and aecure to bim the slow
and weak provisions of tbe civil law, wMle tbe
aoldier, who may, when overcome by tbe de
mands of exhauated nature, which can not be
resisted, have slept at Ma post, is aubject to be
tried upon the spot by a military tribunal and shot.
Tbe argument amounts to tMs ; that as military
courts and military trials of civilians in time of
war are a usurpation and tyranny, and as soldiera
are liable to sucb arrests and trial. Sergeant Cor
bett, who abot Booth, ahould be tried and executed
by sentence of a military court ; wbile Booth's co
conspirators and aiders should be saved from
any sucb indignity as a miUtary trial I I con
fess that I ara too dull to comprehend tbe logic,
tbe reason, or tbe aenae of auob a concluaion ! If
there ia any one entitled to this privilege of a
civil trial, at a remote period, and by a jury of
tbe District, in time of civil war, when tbe
foundations of the RepubUc are rocking beneath
the earthquake tread of armed rebellion, that
man ia tbe defender of tbe republic. It will
never do to say, as bas been said in this argu
ment, that tbe soldier ia not liable to be tried in
time of war by a miUtary tribunal for any other
offense than tlioae prescribed in the rules and
articles of war. To my mind, notMng can be
clearer than that citizen and soldier alike, in
time of civil or foreign war, after a proclamation
of martial law, are triable by military tribunals
for all offenses of which they may be guilty, in
the interesta of, or in concert with, the enemy.
These provisions, therefore, of your Constitu
tion for indictment and trial by jury in civil
courts of all crimes are, as I ahall hereafter show,
silent and inoperative in time of war when tbe
public safety requires it.
The argument to wMch I have thus been re
plying, as the Court will not fail to perceive, nor
that public to which the argument is addressed,
ia a labored attempt to establish tbe proposition,
that, by the Constitution of the United States,
the American people can not, even in a civil war
the greateat the world has ever seen, employ
niartial law and military tribunals as a means

of successfully asaerting their authority, preserv
ing their nationality, and securing protection to
the lives and property of all, and especially to
the persons of those to whom they have com
mitted, officially, tbo great truat of maintaining
the national authority. Tbe gentleman aaya,
with an air of perfect confidence, that he denies
the jurisdiction of military tribunala for the
trial of civilians in time of war, becauae nei
ther the Conatitution nor laws justify, but on
the contrary repudiate them, and that all the
experience of the past is againat it. I raight
content myaelf with saying that tbe practice of
all nations is against the gentleman's conclu
sion. The struggle for our national independ
ence was aided and prosecuted by military tri
bunals and martial law, as well as by arms.
The contest for American nationality began
with tbe establishment, very soon after the fir
ing of tbe first gun at Lexington, on tho 19th
day of April, 1775, of military tribunals and
martial law. On tbe 30th of June, 1775, the
Continental Congreaa provided that "whosoever,
belonging to the continental a/rmy, shall be convicted
of holding correspondence with, or giving intel
ligence to tbe enemy, either indirectly or di
rectly, shall suffer such punishment aa by a
court-martial aball be ordered." Thia waa found
not aufficient, inaamucb aa it did not reach those
civilians who, like certain civilians of our day,
claim the protection of tbe civil law in time oi
war againat military arrests and military trials
for military criraes. Therefore, tbe same Con
gress, on the 7tb of November, 1775, amended
tMs provision by striking out the words "be
longing to tbe continental army," and adopting
tbe article as follows :
"All persons convicted of holding a treacher-
oua correspondence with, or giving intelligence
to tbe enemy, shall suffer death, or such other
punishment as a general court-martial shaU
think proper."
And on the 17th of June, 1776, tbe Congress
added an additional rule;
"That all persons, not members of, nor owing
allegiance to, any o'f tbe United Statea of Amer
ica, who should be found lurking as spies in or
about tbe fortifications or encampments of the
armies of the United States, or any of tbem,
shall suffer death, according to the law and
usage of nations, by tbe sentence of a court-
martial, or auch other puniahment as a court-
martial shall direct."
Comprehensive as waa this legislation, embrac
ing, as it did, soldiers, citizens and aliens, sub
jecting all alike to trial for tbeir miUtary
crimes by tbe military tribunals of justice, ac
cording to the law and the usage of nations,
it was found to be insufficient to meet thait
most dangerous of all orimes, committed iu the
interests of the enemy, by citizens, in time of
war, tbe crime of conspiring together to assas
sinate, or seize and carry away, tbe soldiera and
citizens who were loyal to the cause of the
country. Therefore, on tbe 27th of Februany,
1778, tbe Congreas adopted the foUowing reso
lution :
"Resolved, That whatever inhabitants of these
States shall kill, or seize, or take, any loyal qit-
izen or citizens thereof, and co'Avey Mm, hw,

362

THE CONSPIRACY TRIAL.

or them, to any place within the power of the
enemy, or shall enter into ant combination
for such purpoae, or attempt to carry tbe same
into execution, or bath assisted or shall asaiat
therein ; or aball, by giving intelligence, acting
as a guide, or, in any manner whatever, aid
the eneray in the perpetration thereof, he aball
suffer death, by the judgment of a court-mar
tial, as a traitor, asaaaain, or apy, if tbe offense
be committed within seventy miles of tbe head
quarters of the grand or other armies of these
States, where a general officer commanda."
Journals of Congress, vol. II, pp. 459, 460.
So atood tbe law until the adoption of tbe
Constitution of tbe United States. Every well-
informed man knows that, at tbe time of tbe
paaaage of tbeae acta, tbe courts of justice, hav
ing cognizance of all crimes against persons,
were open, in many of tbe States, and that, by
their several constitutions and charters, which
were then tbe supreme law for tbe punishment
of crimes committed within their respective ter
ritorial limits, no raan waa liable to conviction
but by tbe verdict of a jury. Take, ,for example,
the provisions of the Constitution of North Car
olina, adopted on tbe lOtb of November, 1776,
and in full force at tbe time of tbe passage of
the last resolution by Congreas above cited,
wMch provisions are as follows ;
"That no freeman aball be put to answer any
criminal charge but by indictment, presentment
or impeachment."
" That no freeman shall be convicted of any
crime but by the unanimous verdict of a jury
of good and lawful men, in open court, aa here
tofore used."
This was tbe law in 1778 in all tbe States,
a'nd tbe provision for a trial by jury, every one
knows, meant a jury of twelve men, impanneled
and qualified to try tbe isaue in a civil court.
Tbe conclusion is not to be avoided that these
enactments of tbe Congresa, under tbe confed
eration, aet aside tbe trial by jury within the
several States, and expressly provided for the
trial, by court-martial, of " any of the inhab
itants" who, during tbe revolution, might, con
trary to the provisions of said law, and in aid
of the public enemy, give tbem intelligence, or
kill any loyal citizens of tbe United Statea, or
enter into any combination to kill or carry
them away. How comes it, if the argument of
the counsel be true, that this enactment was
paaaed by tbe Congress of 1778, when tbe oon
stitutiona of the several States, at that day, as
fully guaranteed trial by jury to every person
held to answer for a crime, as does tbe Consti
tution of tbe United States at this hour ? Not
withstanding this fact, I have yet to learn that
any loyal man ever challenged, during all tbe
period of our confiict for independence and na
tionality, the validity of that law for the trial,
for military offenses, by military tribunala, of
all offendera, aa the law, not of peace, but of
war, and absolutely eaaential to the proaecution
of war. I may be pardoned for saying that it
is the accepted common law of nationa that
martial law ia, at all times, and everywhere,
essential to the succesaful proaecution of war,
whether it be a civil or a foreign war. Tbe va
lidity of these acts of the Continental and Con

federate Congresa I know waa challenged, b>4
only by men charged with tbe guilt of their
country's blood.
Washington, tbe peerless, the stainlesa, and
the juat, with whom God walked through the
nigbt of that great trial, enforced tbia just and
wise enactment upon all occasions On the
30th of September, 1780, Joshua H. Smith, by
the order of General Washington, was put upon
his trial before a court-martial, convened in the
State of New York, on tbe charge of there aid
ing and assisting Benedict Arnold, in a combi
nation with tbe enemy, to take, kill and sei2e
such loyal citizens or soldiers of the United
States as were in garrison at West Point,
Smith objected to tbe jurisdiction, averring that
he was a private citizen, not in the military or
naval service, and, therefore, was only amena
ble to tbe civil authority of the State, whose
constitution bad guaranteed the right of trial
by jury to all persons held to answer for crime.
Chandler's Criminal Trials, vol. II, p. 187. The
Constitution of New York, then in force, had so
provided; but, notwithstanding that, tbe Court
overruled tbe plea, held bim to answer, and
tried bim. I repeat that, when Smith was thus '
tried by court-martial, the Constitution of New
York as fully guaranteed trial by jury in the
civil courts, to all civilians charged and held
to answer for crimes within tbe limits of that
State, as does the Constitution of the United
States guarantee sucb trial within tbe limits of
tbe Diatrict of Columbia. ,By the second of the
Articles of Confederation each State retained
"its sovereignty," and every power, jurisdic
tion and right not expressly delegated to tbe
United States in Congress assembled. By those
Articles there was no expreas delegation of ju
dicial power; therefore, tbe Statea retained it
fully. If tbe railitary courta, conatituted by tho
commander of tbe army of tbe United Statea
under tbe Confederation, who waa appointed
only by a reaolution of the Congress, without
any express grant of power to authorize it —
bia office not being created by the act of the
people in tbejr fundamental law — had jurisdio-
tion in every State to try and put to death
" any inhabitant" thereof who should kill any
loyal citizen, or enter into "any combination"
for any auch purpoae therein in time of war, not-
witbatanding tbe provisionaof tbe Constitution
and lawa of sucb Statea, bow can any man con
ceive that, under the Conatitution of the
United States, which is the Supreme law over
every State, anything in the Conatitution and
laws of auch State to tbe contrary not-
withatanding, and the supreme law over every
Territory of the Republic aa well, tbe Com
mander-in-Chief of tbe army of tbe United
Statea, who ia made auch by tbe Constitution,
and, by ita supreme authority, clothed with tbe
power and charged with the duty of directing
and controlling the whole military power of
the United Statea, in time of rebellion or in
vasion, haa not that authority ?
I need not remind tbe Court that one of the
marked differenoca between tbe Articles of
Confederation and the Constitution of the
United States was, that, under the Coufedera-

ARGUMENT OP JOHN A. BINGHAM.

363

tion, the Congress was the sole depository of
all federal power. The Congresa of tbe Con
federation, said Madison, held " the command
of the army." Fed,, No. 88. Haa the Con
stitution, which was ordained by tbe people the
better " to insure domestic tranquillity and to
provide for tbe coraraon defense," so fettered
the great power of self-defense againat armed
insurrection or invasion that raartial law, so
essential in war, ia forbidden by that great in
strument? I will yield to no man in rever
ence for or obedience to the Conatitution of my
country, eateeming it, aa I do, a new evangel
to the nations, embodying the democracy of the
New Testament, tbe abaolute equaUty of all
men before the law, in respect of those rights
of human nature which are the gift of God,
and, therefore, aa univeraal aa the material
structure of man. Can it be that tbia Conati
tution of ours, so divine in its apirit of justice,
SO beneficent in its results, ao full of wiadom,
and goodness, and truth, under which we be
came one people, a great and powerful nation-
aUty, has, in terms or by iraplication, denied
to this people tbe power to crush arraed rebel
lion by war, and to arrest and punish, during
tbe existence of such rebellion, according to
the laws of war and tbe usages of nationa, ae
cret conspiratora who aid and abet tbe public
enemy ?
Here is a conspiracy, organized and prose
cuted by armed traitors and hired aaaaaains,
receiving the moral support of thousanda in
every State and diatrict, who pronounced the
war for the Union a failure, and your now
murdered but immortal Commander-in-Chief a
tyrant; the object of which conapiraoy, as tbe
testimony ahows, waa to aid tbe tottering rebel
lion which struck at tbe nation's life. It is in
evidence that Davis, Thompson, and others,
chiefs in tMs rebellion, in aid of the aame,
agreed and conapired with othera to poiaon the
fountaina of water which aupply your commer
cial metropolis, and thereby murder its inhab
itants; to secretly deposit in the habitations of
tbe people and in tbe ships iu your harbors in
flammable materials, and thereby destroy them
by fire ; to murder by tbe slow and consuming
torture of famine your soldiers, captives in their
hands ; to import pestilence in infected clotbea
to be distributed in your capital and camps,
and thereby murder the surviving heroes and
defenders of the republic, who, standing by the
holy graves of your unreturning brave, proudly
and defiantly challenge to honorable combat and
open battle all public enemiea, that their coun
try may live ; and, finally, to crown this horrid
catalogue of crime, tMs sum of all human
atrocities, conapired, as charged upon your
record, with the accuaed and John Wilkea Booth
and John H. Surratt, to kill and murder in
your capital the executive officers of your Gov
ernment and the commander of your armies.
When this conspiracy, entered into by tbeae
traitors, is revealed by its attempted execution,
and tbe foul and brutal murder of your Presi
dent in the capital, you are told that it ia uncon
stitutional, in order to arrest the further execu
tion of the conspiracy, to interpose tbe military
power of this government for the arrest, without

civil process, of any of tho parties thereto, and
for tbeir trial by a military tribunal of juatice.
If any auob rule had obtained during our strug
gle for independence, we never would have been
a nation. If any such rule had been adopted
and acted upon now, during the fierce struggle
of tbe past four yeara, no man can say that our
nationality would have thua long aurvived.
Tbe whole people of tbe United States, by
their Conatitution, have created the office of
Preaident of the United States and Commander-
in-Chief of the army and navy, and have vested,
by the terms of that Constitution, in the person
of the President and Commander-in-Cbief, tbe
power to enforce the execution of the laws, and
preserve, protect, and defend the Constitution.
Tbe queation may well be asked: If, aa Com
mander-in-Cbief, the President may not, in time
of insurrection or war, proclaim and execute
martial law, according to the usages of nations,
bow he can successfully perform tbe duties of
his office — execute the laws, preaerve the Con
atitution, suppreaa insurrection, and repel inva
sion? Martial law and military tribunala are as es-
aentii!.l to -the successful proaecution of war as
are men, and arraa, and raunitiona. Tbe Consti
tution of tbe United States bas vested the power
to declare war and raise armies and naviea ex
clusively in tbe Congresa, and tbe power to
proaecute tbe war and command the army and
navy excluaively in the Preaident of the United
Statea. As, under the Confederation, tbe com
mander of tbe army, appointed only by the
Congress, was by the resolution of that Congress
empowered to act as he might think proper for
the good and welfare of the service, subject only
to such restraints or orders as tbe Congress
might give; ao, under tbe Conatitution, tbe
Preaident is, by the people who ordained that
Constitution and declared Mm Commander-in-
Chief of tbe army and navy, vested with full
power to direct and control the army and navy
of the United Statea, and employ all tbe forces
neceaaary to preaerve, protect, and defend the
Constitution and execute tbe laws, as enjoined
by his oath and the very letter oi^ tbe Consti
tution, subject to no restriction or direction
save such as Congreas may from time to time
prescribe. That tbeae powers for the common defense,
intrusted by tbe Constitution exclusively to
the Congresa and tbe President, are, in time
of civil war or foreign invasion, to be exer
cised without limitation or restraint, to the
extent of the public necessity, and without
any intervention of the Federal judiciary, or
of State constitutions or State lawa, are facts
in our Matory not open to queation.
The position is not to be answered by
saying you make the American Congreaa
thereby omnipotent, and clothe tbe American
Executive with the aaserted attribute of hered
itary monarchy — tbe king can do no wrong.
Let the position be fairly stated — that tbe Con
gress and President, in war aa in peace, are
but the agents of the whole people, and that
this unlimited power for the common defenae
against armed rebellion or foreign invasion ia
but the power of the people intrusted exclu-

364

IHE CONSPIRACY TRIAL.

eively to the legislative and executive depart
ments as their agents, for any and every abuse
of which these agents are directly responsible
to tbe people — and the demagogue cry of an
omnipotent Congress, and an executive in
vested with royal prerogatives, vanishes like
the baseless fabric of a vision. If the Con
gress corruptly, or oppressively, or wantonly
abuse this great trust, the people, by the irre
sistible power of tbe ballot, burl tbem from
place. If the President so abuse tbe trust, the
people by their Congress withhold supplies, or
by impeachment transfer the trust to better
handa, strip binT' of the franchiaea of citizen
ship and of office, and declare bim forever dia-
qualified to hold any position of honor, trust,
or power under the government of hia
country. I can understand very well why men should
tremble at the exercise of this great power by
a monarch whose peraon, by the Conatitution
of Ms realm, ia inviolable, but I can not con
ceive how an American citizen, who baa faith
in tbe capacity of the whole people to govern
themselves, ahould give himself any concern
on the aubject. Mr. Hallam, the diatinguiabed
author of the Constitutional History of England,
has said :
" Kings love to display tbe divinity with
which their flatterers invest tbem, in nothing
BO much as in the instantaneous execution of
their will, and to stand revealed, as it were, in
the storm and thunderbolt when their power
breaks through the operation of secondary
cauaea and a'wea a proatrate nation without
the intervention of law."
How juat are sucb words when applied to an
irreaponaible monarch I How absurd, when
applied to a whole people, acting through
their duly appointed agents, whoae will, thua
declared, ia the aupreme law, to awe into aub-
miaaion and peace and obedience, not a proa
trate nation, but a proatrate rebellion I The
same great author uttera tbe fact which all
history attests, when he aays :
"It has been usual for all governments du
ring actual rebellion, to proclaim martial law
fortbe auspensionof civil juriadiction; and thia
anomaly, I must admit," he adds, " ia very far
from being leaa indiapenaable at auch unhap
py seaaona where the ordinary mode of trial
is by jury, than where tbe right of deoiaion
resides in the court." Const. Hist., vol. I, ch.
5, p. 326.
That the power to proclaim martial law and
fully or partially suspend tbe civil jurisdic
tion, Federal and State, in time of rebellion or
civil war, and puniah by military tribunala all
offenaea committed in aid of the public enemy,
is conferred upon Congress and the Executive,
necessarily results from the unlimited grants
of power for the common defense to which I
bave already briefly referred. I may be par
doned for saying that tMa poaition is not as
sumed by me for the purposes of thia occaaion,
but that early in the first year of thia great
Struggle for our national Ufe I proclaimed it
as a representative of the people, under the ob
ligation of my oath, and, as I then believed,
and still believe, upon the authority of the

great men who formed and fashioned the wise
and majeatic fabric of American government.
Some of tbe citations which I deemed it my
duty at that time to make, and some of wMch
I now re-produce, have, I am pleased to say,
found a wider circulation in books that have
since been published by others.
When the Conatitution waa on trial for its
deliverance before tbe people of tbe several
Statea, its ratification was opposed on the
ground that it conferred upon Congreas and
the Executive unlimited power for the common
defense. To all such objectors — and they were
numerous in every State — that great man, Al
exander Hamilton, whose words will live as
long as our language lives, speaking to the lis
tening people of all tbe States, and urging
tbem not to reject that matchless instrument
which bore the name of Washington, said :
" Tbe authorities essential to the care of the
common defense are theae : To raise armies; to
build and equip fleets ; to prescribe rules for
the government of both ; to direct their opera
tions ; to provide for tbeir support. These pow
era ought to exist without limitation ; because
it is impoasible to foreaee or deflne the extent
and variety of national exigencies, and the
correspondent extent and variety of tho means
which may be neceaaary to satiafy them.
" Tbe oircumatancea that endanger the safety
of nationa are inflnite ; and for thia reason no
constitutional shackles can wiaely be imposed
on the power to which the care of it ia com
mitted. •*¦' ¦* ¦* . This power ought
to be under the direction of the same councils
which are appointed to preside over the com
mon defenae. * '* "* It muat be
admitted, aa a necessary consequence, that
there can be no limitation of that authority
which is to provide for the defense and pro
tection of the community, in any manneressen-
tial to its efficacy ; that ia, any matter essen
tial to the formation, direction or support of
the national forcea."
He adds the further remark :
" This is one of tboae trutha which, to a cor
rect and unprejudiced mind, carriea its own
evidence along with it; and may be obscured,
but can not be made plainer by argument or
reasoning. It resta upon axioma aa aimple as
they are univeraal — the means ought to be pro
portioned to tbe end; the persons from whose
agency the attainment of any end is expected,
ought to possess tbe means by which it is to
be attained." Federalist, No. 23.
In tbe same great contest for the adoption of
the Constitution, Madison, sometimes called the
Father of tbe Constitution, said ;
"Is the power of declaring war necessary?
No man will answer this question in the nega
tive. * •* '* Is the power of rais
ing armies and equipping fleets necessary?
"* "* * It is involved in the power of
aelf-defenae. * » « -vyith what
color of propriety could the force neceaaary
for defenae be limited by those who can not
limit the force of offenae ? * « » The
meana of security can only be regulated by the
means and the danger of attack. * » »
It ia in vain to oppose constitutional barriers

ARGUMENT OF JOHN A. BLNGHAM.

365

to the impulse of self-preservation. It is worse
than in vain, because it plants in tbe Consti
tution itaelf neoesaary usurpations of power."
Federalist, No. 41.
With thia oonatruotion, proclaimed both by
the advocatea and opponents of its ratifloa-
tion, the Conatitution of tbe United States waa
accepted and adopted, and that construction
has been followed and acted upon, by every
department of tbe Government to tbia day.
It was as well understood then in theory as
it has since been illustrated in practice, that
the judicial power, both Federal and State, bad
no voice and could exercise no authority in tbe
conduct and prosecution of a war, except in
subordination to tbe political department of
the Government. The Conatitution containa
the signiflcant provision, " Tbe privilege of tbe
writ of habeas corpus shall not be suspended,
unless when in casea of rebellion or invaaion
the public safety may require it."
_ What was this but a declaration, that in
time of rebellion, or invasion, the public safety
is the highest law ? — that so far aa necessary
the civil courts (of which the Commander-in-
Chief, under the direction of Congress) must
be silent, and tbe rights of each citizen, as
secured in time of peace, must yield to the
wants, interests and necessities of tbe nation ?
Yet we have been gravely told by tbe gentle
man, in Ms argument, that the maxim, salus
populi suprema est lex, is but ^t for a tyrant's
use. Those grand men, whoin God taught to
build tbe fabric of empire, thought otherwise,
when tbey put that maxim into the Constitu
tion of their country. It ia very clear that the
Conatitution recognizes the great principle'
which underlies the structure of society and
of all civil government ; that no man Uvea for
himaelf alone, but each for all; that if need be
some must die, that the State raay live, because
at beat the individual is but for to-day, wbile.
tbe commonwealth is for all time. I agree
with the gentleman iu the maxim which he bor
rows from Aristotle, "Let tbe public weal be
under the protection of the law ;" but I claim
that in war, as in peace, by the very terms of
the Constitution of tbe country, the public
safety is under the protection of the law ; that
the Constitution itself has provided for the de
claration of war for the common defense, to
suppress rebellion, to repel invasion, and by
express terms, haa declared that whatever is
neoesaary to make tbe prosecution of the war
successful, may be done, and ought to be done,
and is therefore constitutionally lawful.
Who will dare to say that in time of civil
war " no person ahall be deprived of life Ub
erty and property, without due proceaa of law?"
TMs is a provision of your Constitution, than
wMch there is none more just or sacred in it ;
it ia, however, only the law of peace, not of
war. In peace, that wise provision of the Con
stitution must be, and is, enforced by the civil
courts ; in war, it must be, and is, to a great
extent, inoperative and disregarded. Tbe
thousands slain by your armiea in battle were
'deprived of life "without due process of law."
All spies arreated, convicted and executed by
your military tribunals in time of war are de-'i

prived of liberty and life " without due process
of law;" all enemies captured and held aa
priaouers of war are deprived of liberty "with
out due proceaa of law;" all owners whoae
property ia forcibly aeizod and appropriated in
war are deprived of tbeir property " without
due proceaa of law." The Conatitution recog
nizes tbe principle of common law, that every
man'a house ia bia castle; that his home, tbo
shelter of bis wife and children, is bis most
sacred posseasion ; and has therefore specially
provided, " that no soldier shall in time of peace
be quartered in any bouse, without the con
sent of its owner, nor in time of war, but in a
manner to be prescribed by law [III Amend.] ;
thereby declaring that, in tiiie of war. Con
gress may by law authorize, as it bas done,
that without tbe consent and against the con
sent of tbe owner, the soldier may be quar
tered in any man's bouse, and upon any man'a
hearth. What I have aaid illuatratea the pro
poaition, that in tirae of war the civil tribunals
of juatice are wholly or partially silent, as tho
public safety raay require ; that tbe limitations
and provisions of tbe Conatitution in favor of
life, liberty and property are therefore wholly
or partially suspended. In this I am suatained
by an authority second to none with intelli
gent American citizens. Mr. John Quincy
Adams, than whom a purer man or a wiser
statesman never ascended the chair of tbe
Chief Magistracy in America, said in bis place
in tbe House of Repreaentativea, in 1836, that;
" In tbe authority given to Congress by tbe
Conatitution of tbe United States to declare
war, all tbe powers incident to war are by
necessary implication conferred upon tbe Gov
ernment of the United States. Now the pow
ers incidental to war are derived, not from
tbeir internal, municipal source, but from the
laws and usages of nations. There are, then,
in tbe authority of Congreas and of tbe Execu
tive, two classes of powers altogether different
in tbeir nature, and often incompatible with
each other, the war power and tbe peace power.
The peace power is limited by regulations and
restricted by provisions prescribed within the
Constitution itself. Tbe war power ia limited
only by the lawa and uaage of nations. This
power is tremendous ; it is strictly constitu
tional, but it breaks down every barrier so
anxiously erected for tbe protection of liberty,
of property, and of life."
I If this be ao, bow can there be trial by jury
for railitary offenaea in time of civil war ? If
you can not, and do not, try the armed enemy
before you shoot bim, or tbe captured enemy
before you imprison him, why should you be
held to open the civil courts and try tbe apy,
tbe conspirator and the assaaain, in the aecret
service of the public enemy, by jury, before
you convict and punish bim ? Why not clamor ¦
against holding imprisoned tbe captured armed
rebels, deprived of tbeir liberty without due
proceaa of law? Are tbey not citizens ? Why
not clamor against slaying, for tbeir crime of
treason, which is cognizable in tbe civil courts,
by your rifled ordnance and the leaden bail of
your musketry in battle, tbeae public enemies,
without trial by jury ? Are they not citizens 7

366

THE CONSPIRACY TRIAL.

"Why is the clamor confined exclusively to the
trial by military tribunals of justice of trait
oroua apiea, traitoroua conapiratora, and aa-
saasina hired to do secretly what tbe armed
rebel atterapts to do openly — murder your na
tionality by assassinating its defenders and
ita executive officers? Nothing can be clearer
than that tbe rebel captured prisoner, being a
citizen of tbe republic, is as much entitled to
trial by jury before he ia committed to priaon,
aa the spy, or tbe aider and abettor of tbe trea
son by conapiracy and aasassination, being a
citizen, ia entitled to auob trial by jury, before
be ia aubjected to tbe just punishment of tbe
law for bis great crime. I tbink that in time
of war tbe remark of Montesquieu, touching
tbe civil judiciary, is true ; that "it ia next to
nothing." Hamilton well said, "The Execu
tive holds the sword of the community ; the
judiciary has no direction of tbe strength of
society; it has neither force nor will; it has
judgment alone, and is dependent for the ex
ecution of that upon the arm of tbe Executive."
Tbe people of these States ao underatood tbe
Constitution, and adopted it, and intended
thereby, without limitation or restraint, to em
power their Congress and Executive to author
ize by law, and execute by force, whatever tbe
public safety might require, to suppress rebel
lion or repel invasion.
Notwitstanding all that has been said by
the counsel for the accused to the contrary, the
Conatitution has received this construction
from the day of ita adoption to this hour.
The Supreme Court of the United States bas
solemnly decided that tbe Constitution bas
conferred upon tbe Government authority to
employ all the means necessary to the faithful
execution of all tbe powers which that Consti
tution enjoins upon the Government of the
United States, and upon every department and
every officer thereof. Speaking of that pro
vision of the Constitution which provides that
" Congress shall have power to tnake all lawa
that may be necessary and proper to carry
into effect all powera granted to the Govern
ment of tbe United Statea, or to any depart
ment or officer thereof," Chief Juatice Marahall,
in his great decision in tbe caae of McCuUoch
OS. State of Maryland, aaya :
"Tbe powera given to the Government imply
the ordinary meana of execution, and the Gov
ernment, in all sound reason and fair interpre
tation, must have the choice of the means which
it deems tbe most convenient and appropriate
to the execution of tbe power. ¦*' * * The
powera of the Government were given for the
welfare of the nation ; tbey were intended to
endure for ages to come, and to be adapted to
the various crises in human affairs. To pre
scribe the specific means by which Government
should, in all future time, execute its power,
and to confine the choice of means to such nar
row limits as ahould not leave it in the power
of Congreas to adopt any which might be ap
propriate and conducive to the end, would be
most unwise and pernicious." 4 Wheaton, 420.
Words fitly apokenl which illustrated at
the time of their utterance the wisdom of the
Constitution in providing this general grant

of power to meet every poaaible exigency which
tbe fortunea of war might cast upon the coun
try, and tbe wisdom of which words, in turn,
has been illustrated to-day by tbe gigantic and
triumphant struggle of tbe people during the
last four years for tbe supremacy of the Con
stitution, and in exact accordance with its
provisions. In tbe light of these wonderful
eventa, tbe worda of Pinckney, uttered when
the illuatrioua Chief Juatice had concluded Mb
opinion, "The Constitution of my country ie
immortal 1" aeem to have become worda ol
prophesy. Has notthia great tribunal, through
tbe chief of all its judges, by this luminous
and profound reasoning, declared that the
Government may by law authorize the Execu
tive to employ, in tbe prosecution of war, tbe.
ordinary means, and all the means necessary
and adapted to tbe end ? And in the othei
decision, before referred to, in the 8th o<
Cranch, arising during the late war with Great
Britain, Mr. Juatice Story aaid ;
"When the legialative authority, to whom
the right to declare war ia confided, haa de
clared war in ita most unlimited manner, tbe
executive authority, to whom the execution of
the war is confided, is bound to carry it into
effect. He baa a discretion vested in him as
to tbe manner and extent, but he can not law
fully transcend the rulea of warfare eatab-
liahed among civilized nationa. He can not
lawfully exercise powera or authorize proceed
ings which tbe civilized world repudiates and
diaclaima. The aovereignty, aa to declaring
war and limiting its effects, rests with the
Legislature. Tbe sovereignty, as to ita execu
tion, reata with tbe President." Brown vs.
United States, 8 Cranch, 153.
Has tbe Congresa, to whom is comraitted the
aovereignty of tbe whole people to declare war,
by legislation restricted the President, or at
tempted to restrict him, in tbe prosecution of
this war for tbe Union, from exercising all
the "powers" and adopting all the "proceed
inga" uaually approved and employed by the
civilized world ? He would, iu my judgment,
be a bold man who asserted that Congress has
so legislated; and tbe Congress which should
by law fetter tbe executive aSin when raised
for tbe common defenae, would, in my opinion,
be falae to tbeir oath. That Congreaa may pre
scribe rules for tbe government of the army
and navy, and tbe militia when in actual ser
vice, by articles of war, ia an express grant
of power in the Constitution, which Congress
baa rightfully exerciaed, and which tbe Exec
utive muat and doea obey. That Congreas
may aid the Executive by legialation in tbe
proaecution of a war, civil or foreign, is ad
mitted. That Congreas may restrain the Exec
utive, and arraign, try, and condemn him for
wantonly abusing tbe great trust, ia expreasly
declared in tbe Conatitution. That Congress
shall pass all laws necessary to enable the Ex
ecutive to execute tbe laws of the Union, aup
preaa inaurrection, and repel invaaion, is one
of tbe express requiromenta of tbe Conatitu
tion, for tbe performance of which the Con
greas ia bound by an oath.
What was the legislation of Congress when

ARGUMENT OF JOHN A. BINGHAM.

367

t»-^4Son fired its first gun on Sumter? By the
at." of 1795 it is provided that whenever the
liVFa of tbe United States shall be opposed, or
the execution thereof obstruoted, in any State,
by combinations too powerful to be suppreaaed
by tbe ordinary courae of judicial proceeding,
or by the powera veatcd in the marabala, it
shall be lawful by this act for tbe President to
call forth tbe miUtia of sucb State, or of any
other State or States, as may be necessary to
suppress auch combinationa and to cause tbe
laws to be executed. 1st Statutes ai Large, 424.
By the act of 1807 it is provided that in case
of insurrection or obstruction to the laws, either
of the United States or of any individual State
or Territory, where it is lawful for tbe President
of the United States to call forth tbe militia
for the purpose of suppreaaing auch insurrec
tion or of causing tbe lawa to be duly executed,
it shall be lawful for him to eraploy for such
purpoae auch part of tbe laud or naval forcea
of the United States as shall be judged neces
sary. 2d Statutes at Large, 443.
Can any one doubt that, by these acta, the
Preaident is clothed with full power to deter
mine whether armed inaurrection exiats in any
State or Territory of the Union, and, if so, to
make war upon it with all tbe force be may
deem necessary or be able to command ? By
tbe siiaple exercise of this great power it neces-
aarily results that he may, in the prosecution
of tbe war for tbe suppression of such insur
rection, auapend, as far as may be necessary,
the ci>il administration of justice by substi
tuting In its stead martial law, which ia simply
the common law of war. If, in auch a mo
ment, tbe President raay make no arresta with
out civil warrant, and may inflict no violence
or penalties on persons (as is claimed here for
the accused), without first obtaining the ver
dict of juries and the judgment of civil courts,
then is this legislation a mockery, and tbe
Constitution, which not only authorized but en
joined its enactraent, but a glittering general
ity and a splendid bauble. Happily tbe Su
preme Court has settled all controversy on this
question. In speaking of tbe Rhode Island in
surrection tbe Court say ;
"The Constitution of the United States, as
far as it has provided for an emergency of
this kind, and authorized tbe general Govern
ment to interfere in tbe domeatic concerna of a
State, has treated tbe subject as political in its
nature, and placed tbe power in the bands of
that department." '* '* * "® '*
"By tbe. act of 1795 the power of deciding
whether tbe exigency has arisen upon which
the Government of the United Statea is bound
to interfere is given to the President."
The Court add:
" When the President has acted, and called
out tbe militia, is a Circuit Court of tbe United
Statea authorized to inquire whether hia de
cision was right ? If it could, then it would
become the duty of the Court, provided it came
to the conclusion that the President had decided
incorrectly, to discharge those who were ar
rested or detained by the troops in the service
of the United States." * » « "If
the judicial power extends so far, the guaran

tee contained in tbe Constitution Of the United
States is a guarantee of anarchy and not of
order." * * * "Yet, if this right
does not reside in tbe courts when tho conflict
ia raging, if the judicial power is, at that time,
bound to follow tbe decision of the poUtical, it
muat be equally bound wbon the contcat ia over.
It can not, when peace ia restored, punish, as
offenses and crimes, tbe acts which it before
recognized and was bound to recognize as law
ful." Luther vs, Borden, 7 Howard, 42, 43.
If this be law, what becomes of tbe volun
teer advice of the volunteer counsel, by bim
given without money and without price, to this
Court, of tbeir responsibility — their personal
responsibility — for obeying the orders of the
President of the United States, in trying per
aons accuaed of the murder of tbe Chief Mag
iatrate and Comraander-in-Chief of tbe army
and navy of the United Statea in time of rebel
lion, and in pursuance of a conspiracy entered
into with tbe public enemy? I may be par
doned for asking tbe attention of tbe Court to
a further citation from this important decision,
in which tbe Court say the employment of mil
itary power, to put down an armed insurrec
tion, "is essential to the existence of every
Government, and ia as neceaaary to tbe States
of tbia Union as to any other Government; and
if tbe Government of the State deem the armed
opposition so formidable as to require tbo use
of military force and the declaration of mar
tial LAW, we see no ground upon which this
Court can question its authority." Ibid, This
decision, in terms, declared that, under the act
of 1795, the President bad power to decide,
and did decide, tbe question so as to exclude
further inquiry whether tbe State Government,
which thus employed force and proclaimed
martial law, waa tbe Government of the State,
and, therefore, was permitted to act. If a State
may do tbia, to put down arraed inaurrection,
raay not tbe Federal Governraent aa well?
The reason of the man who doubta it raay juatly
be questioned. I but quote tbe language of
that tribunal, in another case before cited,
when I say the Constitution confers upon the
Preaident tbe whole executive power.
We have aeen that tbe proclamation of block
ade, made by tbe President, waa affirmed by
tbe Supreme Court as a lawful and valid act,
although ita direct effect was to dispose of the
property of whoever violate it, whether citizen
or atranger. It ia difficult to perceive what
course of reaaoning can be adopted, in the
light of that decision, which will justify any
man in saying that the President had not tbo
like power to proclaim martial law in time of
insurrection against the United States, and to
establish, according to the customs of war
among civilized nations, miUtary tribunals of
justice for its enforcement, and for tbe puniah
ment of all Crimea committed in the interests
of the public enemy.
Tbeae acta of tbe President have, however,
all been legalized by tbe subsequent legisla
tion of Congresa, although tbe Supreme Court
decided, in relation to tbe proclamation of
blockade, that no such legislation was neces
sary.

368

THE CONSPIRACY TRIAL.

By the act of August 6, 1861, ch. 63, see.
8, it is enacted that :
"All the acta, proclamationa and ordera of tbe
Preaident of tbe United States, after tbe 4tb
of March, 1861, respecting the army and navy
of tbe United States, and calling out, or relating
to, tbe militia or volunteers from the States, are
hereby approved in all respects, legalized and
made valid to the same extent, and with tbe
same effect, as if they bad been issued and
done under tbe previous express authority and
direction of the Congress of the United States."
12 Stat, at Large, 326.
This act legalized, if any sucb legalization
was necessary, all that tbe President bad done
from tbe day of bia inauguration to that hour,
in tbe prosecution of tbe war for tbe Union.
He had suspended tbe privilege of the writ of
habeas corpus, and resisted ita execution when
iasued by tbe Chief Justice of the United States;
he had called out and accepted the services of a
large body of volunteers for a period not pre
viously authorized by law ; be had declared a
blockade of tbe Southern ports; be had de
clared the Southern States in insurrection ; he
had ordered tbe armies to invade tbem and
suppress it; thus exercising, in accordance
with the laws of war, power over the life, tbe
Uberty and the property of tbe citizens. Con
gress ratified it, and affirmed it.
In Uke manner, and by subsequent legiala
tion, did tbe Congreas ratify and affirm tbe
proclaraation of martial law of September 25,
1862. That proclamation, as the Court will
have o'^served, declares that, during tbe exist
ing insurrection, all rebels and insurgents,.
their aiders and abettors within the United
States, and all persons guilty of any disloyal
practice affording aid and comfort to tbe rebels
against tbe authority of the United States,
eball be subject to martial law, and liable to
trial and punishment by courts-martial or mili
tary commission; and, second, that the writ of
habeas corpus is suspended in respect to all per
sons arrested, or who are now, or hereafter
during the rebellion shall be, imprisoned in any
fort, etc., by any military authority, or by tbe
sentence of any court-martial or military com
mission. One would suppose that it needed no argu
ment to satisfy an intelligent and patriotic cit
izen of the United States that, by tbe ruling of
the Supreme Court (Med, so much of this procla
mation as declares that all rebels and insur
gents, their aiders and abettors, shall be sub
ject to martial law, and be liable to trial and
punishment by court-martial or military com
mission, needed no ratification by Congress.
Every step that the President took against tbe
rebels and inaurgents was taken in pursuance
of tbe rules of war, and was an exercise of
martial law. Who says that he should not de
prive tbem, by the authority of this law, of life
and liberty ? Are tbe aidera and abettora of
these insurgents entitled to any higher consid
eration than the armed inaurgents themselves?
It is against tbeae that tbe Preaident proclaimed
martial law, and against all othera who were
guilty of any disloyal practice affording aid
and comfort to rebels against the authority of

the United Statea. Against these he suspended
tbe privilege of tbe writ of habeas corpus; and
tbeae, and only sucb as these, were, by that
proclamation, subjected to trial and puniah
ment by court-martial or miUtary coramission.
That tbe proclamation covers tbe offense
charged here, no man will, or dare, for a mo
raent deny. Waa it not a dialoyal prabtice?
Was it not aiding and abetting the insurgents
and rebels to enter into a conspfracy with them
to kill and murder, within your Capital and
your intrenched camp, tbe Commander-in-
Chief of our army, your Lieutenant-General,
and tbe Vice-President and the Secretary of
State, with intent thereby to aid tbe rebellion,
and subvert tbe Constitution and laws of the
United States? But it is aaid that tbe Preai
dent could not eatablisb a court for their trial,
and, therefore. Congress must ratify and affirm
this proclamation. I have aaid before that
such an argument coraea with ill grace from
tbe lipa of bim who declared, aa aolemnly, that
neither by the Congresa nor by tbe President
could either the rebel himself or his aider or
abettor be lawfully ahd constitutionally aub
jected to trial by any military tribunal, whether
court-martial or railitary coraraiasion. But the
Congreas did ratify, in tbe exercise of the
power vested in tbem, every part of this procla
mation. I have said, upon the authority of tbe
fathers of the Constitution, and of ita judicial
interprej^era, that Congress haa power, by legia
lation, to aid tbe Executive in tbe suppression
of rebellion, in executing tbe laws of the
Union when resisted by armed insurrection
and in repelling invasion.
By tbe act of March 3, 1863, the Congresa of
the United Statea, by tbe first section thereof,
declared that during the preaent rebellion the
President of tbe United States, whenever in
his judgment tbe public safety may require it,
ia authorized to auspend the -n'rit of habeas cor
pus in any case throughout the United States
or any part thereof. By tbe fourth section of
the same act, it is declared that any order of
tbe President, or under Ms authority, made at
any time during tbe existence of the present
rebellion, shall be a defense in all courts to
any action or prosecution, civil or criminal,
pending or to be commenced, for any search,
seizure, arrest, or iflaprisonment, made, done,
or committed, or acts omitted to be done, under
and by virtue of sucb order. By tbe fifth sec
tion it is provided, that, if any suit or prose
cution, civil or criminal, has been or shall be
coraraenced in any State court against any offi
cer, civil or military, or against any other per
son, for any arrest or imprisonment made, or
others trespasses or wrongs done or commit
ted, or any act omitted to be done at any time
during tbe present rebellion, by virtue of or
under color of any authority derived from or
exercised by or under the President of the
United Statea, if the defenda.nt shall, upon
appearance in such court, file a petition stating
the facts upon affidavit, etc., as aforeaaid, for
tbe removal of the cause for trial to the Circuit
Court of tbe United States, it shall be the duty
of the State court, upon his giving aeourity, to
proceed no further in the cause or proaecution.

ARGUMENT OF JOHN A. BINGHAM.

369

Thus declaring Uiat all orders of the Preaident,
made at any time during tbe existence of the
present rebellion, and all acts done in pursu
ance thereof, shall be held valid iu the courts
of justice. Without further inquiry, these
provisions of tbia atatute embrace Order 141,
which is tbe proclamation of martial law, and
necessarily legalize every act done under it,
either before tbe pasaage of tbe act of 1868 or
since. Inasmuch as that proclamation ordered
that all rebels, insurgents, tbeir aiders and
abettors, and peraons guilty of any disloyal
practice affording aid and comfort to rebels
against tbe authority of tbe United States, at
any time during tbe existing insurrection,
should be subject to martial law, and liable to
trial and punishment by 'military commission,
tbe sections of the law juat cited declaring law
ful all acts done in pursuance of such order,
inclu'ding, of courae, the trial and punishment
by military commission of all such offenders,
aa directly legalized tbia order of the Preai
dent as it is possible for Congress to legalize
or authorize any executive act whatever.
12 Stat, ai Large, 755-6.
But after assuming and declaring with great
earnestness in his argument that no peraon
oould be tried and convicted for auch Crimea,
by any military tribunal, whether a court-mar
tial or a military commiaaion, aave thoae in
the land or naval aervice in time of war, tbe
gentleman makes the extraordinary statement
that the creation of a military comraiaaion
must be authorized by the legislative depart
ment, and demands, if there be any such leg
islation, "let tbe statute be produced." The
atatute has been produced. The power ao to
try, aaya tbe gentleman, muat be authorized
by Congreas, when tbe demand is made for
such authority. Does not tbe gentleman there
by give up bia argument, and admit, that if
the Congress has so authorized tbe trial of all
aiders and abettors of rebels or insurgents for
whatever they do in aid of audi rebels and in
surgents during tbe insurrection, tbe statute
and proceedings under it are lawful and valid ?
I bave already shown that the Congress bave
ao legislated by expresaly legalizing Order No.
141, which directed tbe trial of all rebela, their
aiders and abettora, .by military commiaaion.
Did not Congreaa expreasly legalize thia order
by declaring that the order aball be a defense
in all courts to any action or prosecution, civil
or criminal, for acta done in purauance of it?
No amount of argument could make this point
clearer than tbe language of tbe statute itself.
But, aays the gentleman, if there be a statute
authorizing trials by military commiasion,
"Let it be produced."
By tbe act of March 3, 1863, it is provided
in section thirty that in time of war, insur
rection, or rebellion, murder and assault with
intent to kill, etc., when committed by persons
in the military service, shall be punishable by
the sentence of a court-martial or military
commission, and the punishment of auch offenaea
shall nevet be less than those inflicted by tbe
lawa of the State or District in which tbey
may have been committed. By the 38th sec
tion of the same act, it is provided that all
24

persons who, in time of war or rebellion
against the United Statea, shall be found lurk
ing or acting as spies in or about tbe camps,
etc., of the United Statea, or elsewhere, shall
be triable by n, miliiary commission, and shall,
upon oonviotion, suffer death. Here ia a stat
ute which expreasly declares that all persona,
whether citizens or strangers, who in time of
rebellion aball be found acting as spies, shall
suffer death upon conviction by a military
oommission. Why did not the gentleman give
us some argument upon this law? We bave
seen that it waa the exiating law of the United
States under the Confederation. Then, and
since, men not in tbe land or naval forces of
tbe United States bave suffered death for this
offense upon conviction by courts-martial. If
it was competent for Congresa to authorize
their trial by courts-martial, it was equal
ly competent for Congress to authorize their
trial by military commiasion, and accord
ingly tbey bave done so. By the same authority
tbe Congresa may extend tbe jurisdiction of
military commissions over all military offensea
or crimes committed in time of rebellion or war
in aid of tbe public enemy ; and it certainly
stands with right reaaon, that if it were just
to subject to death, by the sentence of a military
comraiaaion, all persons who should be guilty
raerely of lurking as spies in the intereata of tbe
public enemy in time of rebellion, though tbey
obtained no information, though tibey inflicted
no peraonal injury, but were simply overtaken
and detected in the endeavor to obtain intelli
gence for the enemy, those who enter into
conspiracy with the enemy, not only to lurk as
spies in your camp, but to lurk there as murder
ers and assassins, and who, in pursuance of
that conspiracy, commit assassination and mur
der upon the Commander-in-Chief of your army
within your camp and in aid of rebellion,
should be subject in like manner to trial by mil
itary commisaion, Stat, at Large 12, 736-'7, ch. 8.
Accordingly, tbe Preaident having so declared,
the Congress, aa we bave stated, bave affirmed
that his order waa valid, and that all peraona
acting by authority, and conaequently as a
court pronouncing sucb sentence upon the of
fender aa tbe usage of war requires, are justified
by tbe law of tbe land. With all respect, permit
me to say that the learned gentleman bas mani
fested more acumen and abiUty in bia elaborate
argument by what be bas omitted to say than
by anything which he baa aaid. By tbe act of
July 2, 1864, cap. 215, it ia provided that tbe
commanding general in tbe field, or the com
mander of tbe department, aa tbe caae may be,
aball have power to carry into execution all
aentences againat guerrilla marauders for rob
bery, arson, burglary, etc., and from violation
of the lawa and customs of war, as well as
aentences againat spies, mutineers, deserters,
and murderers.
From tbe legislation I bave cited, it is appa
rent that military commissions are expressly
recognized by tbe law-making power ; that they
are authorized to try capital offenses against
citizens not in the service of tbe United States,
and to pronounce tbe sentence of death upon
tbem; and that the commander of a department.

370

THE CONSPIRACY TRIAL.

or the commanding general in tbe field, may
carry such sentence into execution. But, says
the gentleman, grant all this to be so ; Congress
bas not declared in what manner tbe court
shall be constituted. Tbe answer to that ob
jection bas already been anticipated in the
citation from Benet, wherein it appeared to be
the rule of the law martial that in tbe punish
ment of all military offenses not provided for
by the written law of the land, military cora
raissions are constituted for that purpose by the
authority of tbe commanding officer or tbe
Commander-in-Chief, as tbe case raay be, who
selects tbe officers of a court-martial ; that tbey
are similarly constituted, and tbeir proceedinga
conducted according to tbe same general rules.
That is a part of the very law martial which
tbe President proclaimed, and which tbe Con
gress has legalized. Tbe Proclaraation bas de
clared that all sucb offenders shall be tried by
railitary commissions. Tbe Congress bas legal
ized tbe sarae by tbe act which I bave cited ;
and by every intendment it raust be taken that,
as martial law ia by tbe Proclamation declared
to be tbe rule by which they shall be tried, tbe
Congresa, in affirming tbe act of tbe President,
simply declared that they should be tried accord
ing to tbe customs of martial law ; that tbe
comraission should be constituted by tbe Com
mander-in-Cbief according to tbe rule of pro
cedure known as martial law ; and that the
penalties inflicted should be in accordance with
tbe laws of war and the usages of nations.
Legislation no more definite than this has been
upon your statute-book since tbe beginning of
tbe century, aud bas been held by tbe Supreme
Court of tbe United States valid for the punish
ment of offenders.
By tbe 32d article of the act of 28d April,
1800, it ia provided that "all crimes committed
by persons belonging to tbe navy which are not
specified in tbe foregoing articles shall be pun
ished according to tbe laws and customs in such
cases at sea." Of tbia article tbe Supreme
Court of tbe United States aay, that when of
fenaea and crimes are not given in terms or by
definition, tbe want of it may be aupplied by a
comprehenaive enactment sucb as tbe 32d arti
cle of the rules for tbe governraent of the navy ;
which raeans that courts-martial have juris
diction of sucb crimes as are not specified, but
which bave been recognized to be crimes and
offenses by tbe usages in the navies of all na
tions, and that tbey shall be punished according
to the laws and customs of tbe sea. Dynes vs.
Hoover, 20 Howard, 82.
But it is a fact that must not be omitted in the
reply which I make to tbe gentleman's argu-
gument, that an effort was made by bimself and
others in the Senate of the United States, on the
3d of March last, to condemn tbe arrests, irapris-
onments, etc., raade by order of tbe President of
the United States in pursuance of Ms proclama
tion, and to reverse, by the judgment of that
body, the law which had been before passed
affirming his action, which effort most signally
failed. Thus we see that the body which by tbe Con
stitution, if the President bad been guilty of
the misdemeanors alleged against bim in thia

argument of the gentleman, would, upon pre
sentation of sucb charge in legal form against
tbe President, constitute tbe high court of im
peachment for bis trial and condemnation, bas
decided the question in advance, and declared
upon tbe occasion referred to, as they had
before decided by solemn enactment, that tbia
order of tbe Preaident declaring martial law
and thepuuialiment of all rebels and insurgents,
then- aiders and abettors, by military commis
sion, should be enforced during the insurrection,
as the law of tbe land, and that tbe offenders
should be tried, as directed, by military com
mission. It raay be said that this subsequent
legislation of Congress, ratifying and affirraing
what bad been done by the President, can have
no validity. Of course it can not if neither the
Congress nor the Executive can authorize the
proclamation and enforcement of martial law,
in tbe suppression of rebellion, for the punish
ment of all peraona conhnitting military offenaes
in aid of that rebellion. Assuming, however, as
the gentleman seemed to assume, by asking for
tbe legislation of Congress, that there is such
power in Congreas, tbe Supreme Court of tbe
United States has solemnly affirmed that sucb
ratification is valid. 2 Black, 671.
Tbe gentleman's argument is full of citations
of English precedent. There is a late English
precedent bearing upon this point — tbe power
of the legislature, by subsequent enactment, to
legalize executive orders, arrests, and impris
onraent of citizens — ^that I beg leave to commend
to Ms consideration. I refer to the statute of
11 and 12 Victoria, cb, 35, entitled " An act to
empower tbe lord lieutenant or other chief gov
ernor or governors of Ireland, to apprehend and
detain until tbe first day of March, 1849, such
persons as be or tbey shall suspect of conspiring
against her Majesty's person and governraent,"
passed July 25, 1848, which statute in terms
declares that all and every person and persons
who is, are, or shall be, within that period,
within that part of tbe United Kingdom of
England and Ireland called Ireland, at or
on the day tbe act shall receive her Majesty's
royal assent, or after, by warrant for high trea
son or treasonable practices, or suspicion of high
treason or treasonable practices, signed by the
lord lieutenant, or other chief governor or gov
ernors of Ireland for tbe tirae being, or his or
tbeir chief secretary, for sucb causes as afore
said, raay be detained in safe custody, without
bail or raain prize, until tbe first day of March,
1849 ; and that no judge or justice shall bail
or try any sucb person or persons so commit
ted, without order frora her Majesty's privy
counsel, until tbe said first day of March, 1849,
any law or statute to the contrary notwitb-
ing. The 2d section of this act provides that,
in cases where any persona have been, before
tbe passing of tbe act, arrested, committed, or
detained for such cause by warrant or warrants
signed by the officers aforesaid, or either of
them, it may be lawful for the person or per
sons to whora such warra'ats bave been or shall
be diieoted, to detain aucb person or persons in
his or tbeir custody in any place whatever in Ire
land ; and that auch peraon or persona to whom
auch warrants bave been or shall be directed

ARGUMENT OF JOHN A. BINGHAM.

371

shall be deemed and taken, to all intents and
purposes, lawfully authorized to take into aafc
custody and be tbe lawful jailors aud keepers of
such persons so arrested, comraitted, ordetaincd.
Here the power of arrest is given by the act
of Parliament to the governor or his secretary ;
the process of tbe civil courts was wholly sus
pended; bail was denied and tbo parties im
prisoned, and this not by process of the courts,
but by warrant of the chief governor or his
secretary ; not for crimes charged to bave been
committed, but for being suspected of treasonable
practices. Magna charta it seems opposes no
restraint, notwitlistamling tbe parade that is
made about it in this argument, upon tbe power
of tbe Parliament of England to legalize arrests
and imprisonments made before tbe passage of
the act upon an executive order, and without
colorable authority of atatute law, and to au
thorize like arreata and iraprisonments of so
many of six million of people as sucb executive
officers might suspect of treasonable practices.
But, saya the gentleman, whatever may be
the precedents, English or American; whatever
may be the provisions of tbe Constitution ;
whatever may be the legislation of Congress ;
whatever may be the proclamations and orders
of the President as Commander-in-Chief, it is
a usurpation and a tyranny in time of rebel-
lio«, and civil war, to subject any citizen
to trial for any crime before military tri
bunals, save such citizena as are in tbe
land or naval force^ and against this usui-
pation, which be asks this Court to rebuke
by solemn decision, be appeals to public opin
ion. I truat that I aet as high value upon en
lightened public opinion as any man. I recog
nize it as tbe reserved power of tbe people
which creates and dissolves armies, which cre
ates and dissolves legislative assemblies, which
enacts and repeals fundamental laws, the bet
ter to provide for personal security by tbe due
administration of justice. To that public opin
ion upon tbia very queation of tbe usui'pation
of authority, of unlawful arrests, and unlawful
impriaonments, and unlawful trials, condem
nations, and executions by tbe late President
of the United Statea, an appeal bas already
been taken. On this very issue tbe President
was tried before tbe tribunal of the people, that
great nation of freemen who cover this conti
nent, looking out upon Europe from their east
ern and upon Asia, from tbeir wes.tern homes.
That people came to the consideration of this
issue, not unmindful of tbe fact that tbe first
struggle for the establishment of our national
ity could not have been, and was not, succesa-
fuUy proaecuted without tbe proclamation and
ciforcement of martial law, declaring, as we
have seen, that any inhabitant who, during
that war, should kill any loyal citizen, or enter
into any combination for that purpose, should,
upon trial and conviction before a military
' ;'ibunal, be sentenced as an assassin, traitor,
Oi- spy, and should suffer death, and that in
this last struggle for the maintenance of Amer
ican nationality, tbe President but followed tbe
example of tbe illustrious Father of his Coun
try. Upon that iaaue tbe people paased judg
ment on tbe 8th day of last November, and

declared Hint tho charge of usurpation was falsu.
From this decision of the people there lies no
appeal on this earth. Who can rightfully chal-
lonwe the authority of tbe American peoplu to
decide sucb questions for tbemsclvcs? The
voice of tbe people, thus solemnly proclaimeil,
by the omnipotence of the ballot, in favor of
the rigliteoiis order of their murdered Presi
dent, issued by bim for the common defense,
for tbe preservation of tbe Constitution, and
for the enforcement of the laws of the Union,
ought to be accepted, and wUl be accepted, I
trust, by all just men, as tbe voice of God.
May ii please ihe Court: I have aaid thus
much touching tbe right of tbe people, under
tbeir Conatitution, in time of civil war and
rebellion, to proclaim through tbeir Executive,
with tbe sanction and approval of tbeir Con
gress, martial law, and enforce tbe same ac
cording to the usage of nations.
I submit that it has been shown that, by tbe
letter and apirit of tbe Constitution, as well as
by its contemporaneoua construction, followed
and approved by every department of the Gov
ernment, this right ia in tbe people; that it ia
inseparable from tbe condition of war, whether
civil or foreign, and absolutely essential to its
vigorous and successful prosecution; that ac
cording to the higheat authority upon Conati
tutional law, the proclamation and enforce
ment of martial law are "uaual under all Gov-
ernmenta in time of rebellion;" that our own
highest judicial tribunal bas declared this,
and solemnly ruled that tbe question of tbe
neceaaity for ita exercise rests exclusively with
Congreas and tbe President; and that tbe de
cision of tbe political departments of tbe Gov
ernraent, that there is an armed rebellion and
a necessity for tbe employment of military
force and martial law in its suppression, con
cludes tbe judiciary.
In submitting what I bave said in support
of the jurisdiction of this honorable Court,
and of ita Conatitutional power to bear and de
termine this iasue, I have uttered my own con
victions ; and for their utterance in defense of
my country, and its right to eraploy all tbe
means necessary for tbe common defense against
armed rebellion and secret treasonable con
spiracy in aid of such rebellion, I shall neither
ask pardon nor offer apology. I find no words
with which more fitly to conclude all I bave to
say upon tbe queation of tbe jurisdiction and
Constitutional authority of this Court, than
those employed by tbe illustrious Lord Brough
am to tbe House of Peers in support of tbe bill
before referred to, which empowered the Lord
Lieutenant of Ireland, and bis deputies, to ap
prehend and detain, for tbe period of seven
months or more, all aucb persons within that
island as tbey should suspect of conspiracy
against Her Majesty's peraon and Government.
Said that illustrioua man: "A friend of liberty
I have lived, and such will I die; nor care I
bow soon the latter event may happen, if I can
not be a friend of liberty without being a friend
of traitora at the same time — a protector of
criminals of tbe deepest dye — an accoraplice
of foul rebellion and of its concomitant, civil
war, with all its atrocities and all its fearful

372

THE CONSPIRACY TRIAL.

conaequencea." Hansards Debates, Sd series,
vol, 100, p. 635. ,
May it please the Court : It only remaina
for me to sum up tbe evidence, and present my
views of tbe law arising upon tbe facta in tbe
case on trial. Tbe questions of fact involved in
the issue are ;
First, did the accused, or any two of them, con
federate and conspire together, as charged ? and.
Second, did tbe accused, or any of tbera, in
pursuance of aucb conspiracy, and with tbe in
tent alleged, coramit either or all of the several
acts specified ?
If the conspiracy be established, as laid, it
results that whatever was aaid or done by either
of the parties thereto, in tbe furtherance or ex
ecution of tbe common design, ia tbe declaration
or act of all tbe other partiea to tbe conspiracy ;
and this, whether the other partiea, at the time
j'ucb words were uttered or auch acts done by
thtjr confederates, were present or abaent —
here, within the intrenched linea of your capi
tal, or crouching behind tbe intrenched linea
of Richmond, or awaiting the results of their
murderous plot against their country, its Con
atitution and lawa, across tbe border, under the
shelter of the British fiag.
The declared and accepted rule of law in
oases of conapiracy ia that —
"In prosecutiona for conspiracy it ia an es
tablished rule that where several persons are
proved to have combined together for the same
illegal purpoae, any act done by one of tbe
party, in pursuance of the original concerted
plan, and in reference to the coraraon object, is,
in the conteraplation of law as well aa in sound
reason, the act of the whole party ; and, there
fore, the proof of tbe act will be evidence
¦(.gainst any of the others, who were engaged
in tbe same general conspiracy, without regard
to the question whether the prisoner is proved
to have been concerned in the particular trana-
aetion." Phillips on Evidence, p. 210.
Tlie same rule obtaina in caaes of treason:
"If several persona agree to levy war, aorae in
one place and some in another, and one party
do actually appear in arms, this is a levying
of war by all, as well those who were not in
arras as those who were, if it were done in pur
suance of the original concert, for those who
made the attempt were emboldened by tbe con
fidence inspired by tbe general concert, and
therefore these particular acts are in justice
imputable to all tbe rest." 1 East,, Pleas of
ihe Crown, p. 97 ; Roscoe, 84.
In Ex parte Bollman and Swartwout, 4 Cranch,
126, Marshall, Chief Justice, rules : " If war be
actually levied — that is, if a body of men be
actually assembled, for tbe purpose of effect
ing, by force, a treasonable purpose, all tboae
who perform any part, however minute, or how
ever remote from the scene of action, and who are
flictually leagued in the general conspiracy, are
to be considered aa traitors."
In United States vs. Cole et al,, 5 McLean, 601,
Mr. Justice McLean says: "A conspiracy is
rarely, if ever, proved by positive testimony.
When a crime of high magnitude is about to be
perpetrated by a combination of individuals,
they do not act openly, but covertly and se

cretly. The purpoae formed is known only to
thoae who enter into it. Unleaa one of the
original conapiratora betray his companions
and give evidence againat tbem, tbeir guilt can
be proved only by circumstantial evidence. *
* It is said by aome writers on evidence that
aucb circumatances are atronger than poaitive
proof. A witness swearing positively, it is
said, may misapprehend tbe facta or iswear
falaely, but that ciroumatancea can not lie.
" The coramon deaign is tbe essence of the
charge ; and this may be made to appear when
the defendants steadily pursue the same object,
whether acting separately or together, by com
mon or different meana, all leading to tbe aame
unlawful reault. And where prima facie evi
dence has been given of a combination, the
acts or confessions of one are evidence againat
all. * "* It ia reasonable that where a body
of men assume tbe attribute of individuality,
whether for comraercial busineaa or for the
commiasion of a crime, that the aaaociation
abould be bound by the acts of one of its mem
bers, in carrying out tbe deaign."
It ia a rule of tbe law, not to be overlooked
in tbia connexion, that the conapiracy or agree
ment of tbe partiea, or some of them, to act in
concert to accompliah tbe unlawful act charged,
may be eatablisbed either by direct evidence
of a meeting or consultation for the illegal
purpoae charged, or more uaually, from tbe
very nature of tbe case, by circumatantial evi
dence. 2 Starkie, 232.
Lord Manafield ruled that it was not necea
sary to prove tbe actual fact of a conspiracy,
but that it might be collected from collateral
circumstances. Parson's Case, 1 W, Blackstone,
392. " If," says a great authority on the law of
evidence, "on a charge of conspiracy, it ap
pear that two persons by their acts are pursu
ing tbe same object, and often by tbe same
meana, or one performing part, of the act, and
tbe other corapleting it, for tbe attainment of
tbe aarae object, tbe jury may draw the con
cluaion there ia a conapiracy. If a conapiracy
be formed, and a peraon join in it afterward,
he ia equally guilty with the original conapir
atora." Roscoe, 415.
"The rule of the admiasibility of the acts
and declarations of any one of the conspira
tors, aaid or done in furtherance of the com
mon deaign, appliea in caaes as well where
only part of tbe conspirators are indicted, or
upon trial, as where all are indicted and upon
trial. Thus, upon an indictment for murder,
if it appear that others, together with the pris
oner, conspired to commit tbe crime, tbe act o?
one, done in pursuance of that intention, will
be evidence against the rest." 2J Starkie, 237.
They are all alike guilty as principala.
Commonwealth vs. Knapp, 9 Pickering, 496 ; 10
Pickering, 4:11; G Term Reports, 52S; 11 East,, 684,
What is tbe evidence, direct and circumstan
tial, that tbe accuaed, or either of them, to
gether with John H. Surratt, John Wilkea
Booth, Jefferaon Davia, George N. Sanders, Bev
erley Tucker, Jacob Tbompaon, William C.
Cleary, Clement C. Clay, George Harper and
George Young, did combine, confederate, and

ARGUMENT OF JOHN A. BINGHAM.

373

conspire, in aid of the exiating rebellion, aa
charged, to kill and murder, witliin the mili
tary department of Waahington, and within
tbo fortified and intrenched linea thereof,
Abraham Lincoln, late, and, at the time of tbe
said combining, confederating and conspiring,
Preaident of tbe United States of America, and
Commander-in-Chief of the array and navy
thereof; Andrew Johnaon, Vice-Preaident of
the United States ; William H. Seward, Secre-
Uir-y of State of the United States ; and Ulya-
ses S. Grant, Lieutenant-General of the armies
thereof, and then in command, under the direc
tion of the Preaident?
The time, as laid in the charge and specifi
cation, when this conspiracy waa entered into,
is immaterial, so that it appear by tbe evi
dence that the criminal combination and
agreement were formed before the commis
sion of the acts alleged. That Jefferaon Davis,
one of tbe conspirators named, was the ac
knowledged chief and leader of tbe exiating
rebellion againat tbe Government of the United
States, and that Jacob Thompson, George N.
Sanders, Clement C. Clay, Beverley Tucker,
and othera named in the specification, were his
duly accredited and authorized agenta, to act
in the interests of said rebellion, are facta ea
tablished by the testimony in tMs case beyond
all question. That Davis, as tbe leader of said
rebellion, gave to thoae agents, then in Can
ada, commissions in blank, bearing the official
signature of hia war miniater, Jamea A. Seddon,
to be by tbem filled up and delivered to such
agenta as they might employ to act in the
intereata of tbe rebellion within the United
Statea, and intended to be a cover and pro
tection for any crimes they might therein
commit in the service of the rebellion, is also
a fact established here, and which no man can
gainsay. Who doubts that Kennedy, whoae
confeaaion, made in view of immediate death,
as proved here, was commissioned by those ac
credited agents of Davis to burn the city of
New York ? That he waa to bave attempted it
on the night of the Presidential election, and
that he did, in combination with bis confed
erates, set fire to four hotels in the city of New
York on tbe night of the 25th of November
last? Who doubts that, in like manner, in the
interests of the rebellion, and by tbe authority
of Davis, these, his agents, also commissioned
Bennett H. Young to commit arson, robbery
and the murder of unarmed citizens in St. Al
bans, Vermont ? Who doubta, upon the testi
mony ahown, that Davis, by bia agents, delib
erately adopted the ayatem of starvation for
the murder of our captive aoldiers in his
handa, or that, aa shown by the teatimony, he
sanctioned tbe burning of hoapitals and steam
boats, the property of private persons, and
paid therefor, from hia stolen treasure, the
sum of thirty-five thousand dollars in gold ?
By the evidence of Godfrey Joaeph Hyams it
ia proved that Thompson — the agent of Jeffer
son Davia — ^paid him money for. the aervice he
rendered in the infamous and fiendiah project
of importing pestilence into our campa and
cities, to destroy the lives of citizens and
soldiers alike, and into the house of the Presi

dent for tbe purpose of destroying his life. It
may be aaid, and doubtless will be said, by the
penaioned advocates of thia rebellion, that
Hyams, being infamoua, ia not to be believed.
It ia admitted that he is infaraous, as it muat
bo conceded that any man ia infamoua who
either participatea in sucb a crime or at
tempts in anywise to extenuate it. But it will
be observed that Hyams is aupported by the '
teatimony of Mr. Sanford Conover, who beard
Blackburn and tbe other rebel agents in
Canada apeak of tbia infernal project, and by
tbe teatimony of Mr. Wall, the well-known
auctioneer of thia city, whoae character ia un
queationed, that he received this importation
of peatilence (of course without any knowledge
of the purpose), and that Hyams consigned
the goods to bim in the name of J. W. Harris,
a fact in itself an acknowledgment of guilt;
and that he received, afterward, a letter from
Harris, dated Toronto, Canada West, December
I, 1864, wherein Harria atated that he had
not been able to come to tbe Statea since bis
return to Canada, and aaked for an account
of the aale. He idenlifiea tbe Godfrey Joseph
Hyams, who testified in court as the J. W.
Harris who imported the pestilence. The very
transaction shows that Hyama' statement is
truthful. He gives the namea of the parties
connected with tbia infamy (Clement C. Clay.
Dr. Blackburn, Rev. Dr. Stuart Robinaon, J. C.
Holcombe, all refugees from the Confederacy
in Canada), and states that he gave Thompson
a receipt for the fifty dollars paid to him, and
that he waa by occupation a shoemaker; in
none of which facts is there an attempt to dis
credit him. It ia not probable that a man in
hia poaition in life would be able to buy five
trunka of clothing, ahip them all the way from
Halifax to Washington, and then order them to
be sold at auction, without regard to price,
solely upon bia own account. It ia a matter
of notoriety that a part of hia atatement is
verified by the results at Newbern, North Car
olina, to which point, be aays, a portion of tbe
infected gooda were ahipped, through a sutler,
the result of which was that nearly two thou
sand citizens and soldiera died there, about
that time, with the yellow fever.
That the rebel chief, Jefferaon Davia, aanc-
tioned tbeae Crimea, committed and attempted
through the inatrumentality of hia accredited
agenta in Canada — Tbompaon, Clay, Tuoker,
Sanders, Cleary, etc. — upon the peraona and
property of tbe people of the North, there is
poaitive proof on your record. Tbe letter
brought from Richmond, and taken from tbe
arebivea of Ms late pretended Government
there, dated February 11, 1865, aud addressed
to Mm by a late rebel Senator from Texas, W.
S. Oldham, contains the following significant
worda: "When Senator Johnaon, of Miasouri,
and myaelf waited on you, a few daya aince, in
relation to the project of annoying and bar-
rasaing the enemy, by means of burning tbeir
shipping, towns, etc., there were several re
marks made by you upon tbe subject, which I
was not fully prepared to anawer, but which,
upon subaequent conference with parties pro
posing the enterprise, I find can not apply

THE CONSPIRACY TRIAL.

aa objections to the scheme. First, the 'com
bustible materials' consist of several prepara
tions, and not one alone, and can be used
without exposing tbe party using them to the
least danger of detection whatever. ^ '¦'
¦* Second, there is no necessity for sending
persons in the military service into tbe enemy's
country, but the work may be done by agents,
' ¦* '¦¦' "¦ I bave seen enough of tbe ef
fects that can be produced to satisfy me that
in raost cases, without any danger to the par
ties engaged, and, in others, but very slight,
we can, first, burn every vessel that leaves a
foreign port for tbe United States ; second,
we can burn every_ transport that leaves the
harbor of New York, or other Northern port,
with suppliea for tbe armiea of tbe enemy in
the South; third, burn every transport and
gunboat on the Mississippi river, as well as
devastate the country of the enemy, and fill
bis people with terror and consternation,
* ® *' For tbe purpose of satisfying
your mind upon tbe subject, I respectfully,
but earnestly, requeat that you will give an
interview with General Harris, formerly a
meraber of Congress from Missouri, who, I
think, is able, from conclusive proofs, to con
vince you that what I have suggested is per
fectly feasible and practicable."
No one can doubt, from tbe tenor of this
letter, that tbe rebel Davis only wanted to be
satisfied that Ibis system of arson and raur
der could be carried on by Ms agenta in tbe
North successfully and without detection.
With him it was not a crime to do these acts,
but only a crime to be detected in tbem.
But Davis, by his indorsement on this letter,
dated tbe 20tb of February, 1865, bears wit
nesa to bia own complicity and his own in
famy in tbia proposed work of deatruction
and crime for tbe future, aa well aa to his
complicity in what bad before been attempted
without complete auccess, Kennedy, with Ms
confederates, had failed to burn the city of
New York. "Tbe combustibles" which Ken
nedy had employed were, it seems, defective.
This was "a difficulty to be overcome." Neither
had he been able to consummate tbe dreadful
work without aubjecting himself to deiedion.
This was another "difficulty to be overcome."
Davis, on tbe 20th of February, 1865, indorsed
upon tMs letter these words: "Secretary of
State, at Ms convenience, aee General Harria,
and learn wba.t plan he baa for overcoming
ihe difficulties heretofore experienced, J. D,"
This indorsement ia unquestionably proved
to be tbe handwriting of Jefferson Davia, and
it bears witness on ita face that tbe mon&troua
proposition met bis approval, aud that be de
sired bis rebel Secretary of State, Benjamin,
to see General Harris and learn bow to over
come the difficulty heretofore experienced, to wit:
the inefficiency of "tbe combustible materials"
that bad been employed, and tbe liability of
its agenta to detection. After tbia, who will
doubt that be bad endeavored, by the band of
incendiariea, to deatroy by fire tbe property
and Uves of tbe people of the North, and there
by "fill tbem with terror and consternation;"
that he knew his agents had been unsuccess

ful; that he knew Ms agents bad been detected
in their villainy and punished for tbeir crirae;
that he desired, through a more perfect "chem
ical preparation," by tbe science and skill of
Professor McCuUocb, to accomplish successfully
what had before been unsuccessfully atterapted?
Tbe intercepted letter of Ms agent, Cleraeut
C. Clay, dated St, Catharine's, Canada West.
November 1, 1864, is an acknowledgment and
confession of what tbey had attempted, and a
suggestion made through J, P. Benjamin, rebel
Secretary of State, of what remained to be
done, in order to make tbe "chemical prepara
tions" efficient. Speaking of this Bennett H.
Young, be says : "You have doubtless learned
tb rough tbo press of the United Slates, of the
raid on St. Alban's by about twenty-five Con
federate soldiers, led by Lieutenant Bennett
H. Young ; of tbeir attempt and failure to burn
tbe town ; of tbeir robbery of three banks there
of tbe aggregate amount of about two hundred
thousand dollars ; of tbeir arrest in Canada,
by United States forces; of their commitment
and tbe pending preliminary trial." He makes
application, in aid of Young and bia associates,
for additional documents, showing that tbey
acted upon the authority of tbe Confederate
States Government, taking care to say, bow-
ever, that be held such authority at the time,
but that it ought to be more explicit, so far as
regards the particular acta complained of. He
atatea that be met Young at Halifax in May,
1864, who developed bia plans for retaliation
on tbe enemy ; that he. Clay, recommended him
to tbe rebel Secretp,ry of war; that after this,
"Young was sent back by tbe Secretary of War
with a commission aa Second Lieutenant to exe
cute Ms plans and purposes, but to report to
Hon,  and myself," Young afterward
" proposed passing through New England, burn
ing aome towns and robbing tbem of whatever
he could convert to tbe use of the Confederate
Government. This I approved as justifiable
retaliation. He attempted to burn the town of
St. Alban'a, Vermont, and would have aucceed
ed but for the failure of tbe chemical preparation
with which be was armed. He then robbed the
banks of funds amounting to over two hundred
thousand dollars. That he was not prompted
by selfish or mercenary, motives, I am as well
satisfied as I am that be is an honest man. He
assured me before going that Ms effort would be
to destroy towns and farm-bousea, but not to
plunder or rob; but he said if, after firing a
town, he saw be could take funds from a bank
or any bouse, and thereby might inflict injury
upon tbe enemy and benefit Ms own Govern
ment, be would do so. He added raost emphat
ically, that whatever he took should be turned
over to the Government or its representatives in
foreign lands. My instructions to bim were, to
destroy whatever was valuable; not to stop to
rob, but if, after firing a town, he could seize and
carry oft' money or treasury or bank notes, lie
might do so upon condition that they were deliv
ered to tbe proper authorities of the Confederate
States" — tha't is, to Clay himself.
When be wrote tbia letter, it seema that this
accredited agent of Jeft'eraon Davia was as
strongly impressed with tbe usurpation and dee-

ARGUMENT OF JOHN A. BINSHAM.

375

potism of Mr. Lincoln's adminiatration aa aome
of the advocates of bia aidera and abettors seem
to be at this day ; and ho indulges in the fol
lowing statement: "All that a large' portion
of tbe Northern people, especially in tbe North
west, want to resist the oppressions of tbe des
potism at Washington, is a leader, 'Tbey are
ripe for resistance, andit may come soon after the
Presidential election. At all events, it must
come, if our armies are not overcome, or de
stroyed, or dispersed. No people of tbo Anglo-
Saxon blood can long endure the usurpations
.and tyrannies of Lincoln," Clay does not sign
tbe dispatch, but indorses the bearer of it as
a person who can identify him and give bis
name. The bearer of that letter was the wit
ness, Richard Montgomery, who saw Clay write
a portion of tbe letter, and received it from his
hands, and subsequently delivered it to tbe
Assistant Secretary of War of the United
States, Mr. Dana. That the letter is in Clay's
handwriting, is clearly proved by those famil
iar with it. Mr. Montgomery testifies that be
was instructed by Clay to deliver this letter to
Benjamin, tbe Rebel Secretary of State, if he
could get through to Richmond, and to tell him
what names to put in tbe blanks,
TMs letter leaves no doubt, if any before
existed in tbe mind of any one who had read
the letter of Oldham, and Davis' indorsement
thereon, that "the chemical preparations" and
"corabustible raateriala" had been tried and
had failed, and it bad become a matter of great
moment and concern that they should be so
prepared as, in tbe words of Davis, "to over
come tbe difficulties heretofore experienced;"
that is to say, complete tbe work of destruc
tion, and secure tbe perpetrators against per
sonal injury or detection in tbe performance
of it.
It only remaina to be seen whether Davie,
the procurer of araon and of the indiscrimi
nate murder of the innocent and unoffending,
neceasarily resultant therefrom, was capable
also of endeavoring to procure, and in fact
did procure, the murder, by direct assassina
tion, of tbe President of tbe United States
and others charged with tbe duty of main
taining tbe Government of the United States,
and of suppressing tbe rebellion in which this
arcb-traitor and conspirator was engaged.
The official papers of Davia, captured under
the guna of our victorioua army in bis rebel
capital, identified beyond question or shadow
of doubt, and placed upon your record, together
with the declarations and acts of bis co-con
spirators and agents, proclaim to all the world
that be was capable of attempting to accom
plish his treasonable procuration of the mur
der of the late President, and other chief of
ficers of tbe United States, by tbe banda of
hired assaaains.
In the faU of 1864, Lieutenant W. Alston
addresses to "His Excellency" a letter, now
before the. Court, which contains tbe following
words :
" I now offer you my services, and if you
will favor me in my designs, I will proceed, as
soon as my health will permit, to rid my coun
try of some of her deadliest enemiea, by strik

ing at tbe very luiart^ blood of those who aeek
to enchain ber in alavery. I conaider nothing
dishonorable having auch a tendency. All I ask
of you is, to favor me by granting me the
necessary papcr.s, etc, to travel on. * '* '*
Pam perfectly familiar with the North, and feel con
fldent that I can execute anything I underlakc.
I was in tho raid last June in Kentucky, under
General John H, Morgan ; '^ '» » waa taken
prisoner; '5 '» « escaped from them by
dressing myself in tbe garb of a citizen,
-:» -:s- iii J ^vont through to tbe Canadas, from
whence, by tbe assistance of CoioraeZ J", P. i/o/eomi,
I succeeded in working my way around aud
through tbe blockade. » . ¦«' » I should like
to have a personal interview with you in order
to perfect the arrangements before starting."
Is there any room to doubt that this was a
proposition to assassinate, by tbe band of this
man and bis associates, aucb persona in tbe
North as be deemed tbe "deadlieat enemies "
of the rebellion? Tbe weakness of the raan
who for a moment can doubt that sucb was the
proposition of tbe writer of tbia letter, is cer
tainly an object of commiseration. What liafl
Jefferson Davis to say to thia proposed assas
sination of tbo "deadliest enemies" intbeNorth
of Ms great treason ? Did tbe atrocious sug
gestion kindle in him indignation against the
villain who offered, with bis own baud, to
strike the blow? Not at all. On tbe contrary,
he ordered bis private secretary, on tbe 29tb of
November, 1864, to indorse upon tbe letter
these words : " Lieutenant W, Alston ; accom
panied raid into Kentucky, and was captured,
but escaped into Canada, from whence be found
bia way back. Now offera his services to rid
tbe country of some of its deadliest enemies;
asks for papers, etc. Respectfully referred, by
direction of tbe President, to tbe honorable
Secretary of War." It is also indorsed for at
tention, "By order. (Signed) J. A. Campbell,
Assistant Secretary f f War."
Note the fact in this connection, that Jeffer
son Davis bimself, as well as bis subordinates,
had, before the date of this indorsement, con
cluded that Abrabara Lincoln was " tbe dead
liest enemy " of the rebellion. You hear it in
tbe rebel camp in Virginia in 1863, declared
by Booth, then and there present, and assented
to by rebel officers, that '(.Abraham Lincdn
must be killed," You hear it in that slaughter-
pen in Georgia, Andersonville, proclaimed
among rebel officers, who, by the slow torture
of starvation, inflicted cruel and untimely
death on ten thousand of your defenders, cap
tives in their hands — whispering, Uke demons,
tbeir horrid purpose, "Abraham Lincoln must
be killed." And in Canada, the accredited
agents of Jefferson Davis, as early as Oetobei-,
1864, and afterward, declared that "Abraham
Lincoln must be killed " if his re-election could
not be prevented. These agents in Canada, on
tbe 13th of October, 1864, delivered, in cipher,
to be transmitted to Richmond by Richard Mont
gomery, the witness, whose reputation is un
challenged, tbe following communication;
" October 13, 1864.
"We again urge tbe immense necessity of
our gaining immediate advantages. Strain

376

THE CONSPIRACY TRIAL.

every nerve for victory. We now look upon
the re-election of Lincoln in November as al
most certain, and we need to whip Ms hirelings
to prevent it. Besides, with Lincoln re-elected,
and hia armiea victorious, we need not hope
even for recognition, much leaa tbe help men
tioned in our laat. Holcomb will explain tbia.
Those flgures of the Yankee armies are correct
to a unit. Our friends shall be immediately set
to work as you direct,"
To which an official reply, in cipher, was de
livered to Montgomery by an agent of tbe state
department in Richmond, dated October 19,
1864, aa foUowa :
" Your letter of the 13th inatant ia at hand.
There is yet time enough to colonize many voters
before November. A blow will shortly be
stricken here. It ia not quite time. General
Longstreet is to attack Sheridan without delay,
and then move north as far as practicable
toward unprotected pointa. Tbia will be made
inatead of movement before mentioned. He
will endeavor to assist the Republicans in col
lecting their ballots, Bewatcbful and aeaiat him."
On the very day of the date of this Richmond
dispatch Sheridan was attacked, with what
succesa history will declare. The Court will
not fail to notice that tbe re-election of Mr, Lin
coln is to be prevented if possible, by any and
every meana. Nor will they fail to notice that
Holcomb ia to " explain this "¦ — tbe aame peraon
who, in Canada, waa the friend and adviaor of
Alston, who proposed to Davis tbe assassination
of the "deadliest enemies" of the rebellion.
In the dispatch of the IStb of October, which
wa-s borne by Montgomery, and transmitted to
Richmond in October laat, you will find tbeae
worda : " Our frienda aball be immediately aet
to work aa you direct." Mr. Lincoln is the sub
ject of that dispatch. Davis ia therein notified
that his agents in Canada look upon the re
election of Mr. Lincoln in Noveraber as almost
certain. In this connection he is aaaured by
tboae agenta, that tbe friends of tbeir cause are
to be aet to work aa Davis had directed. The
conversations, which are proved by witnesses
whose character stands unimpeached, disclose
what "work" the "friends" were to do under
the direction of Davis himself. Who were these
" frienda," and what waa " the work " which
hia agents, Thompson, Clay, Tucker and San
ders bad been directed to set them at? Let
Thompson anawer for himaelf. In a conversa
tion with Richard Montgomery in the summer
of 1864, Thompson said that he had his friends,
confederates, all over the Northern States, who
were ready and willing to go any lengths for
tbe good of the cause of tbe South, and he
could at any time have tbe tyrant Lincoln, or any
other of his advisers that he chose, put out of his
way; that they would not consider it a crime
when done for the cauae of the Confederacy."
TMa conversation was repeated by the witneaa
in the aummer of 1864 to Clement C. Clay, who
immediately atated; "Tbatiaao; we are all
devoted to our cauae and ready to go any
length — to do anything under the sun."
At and about the time that theae declarations
of Clay and Tbompaon were made, Alston, who
made the proposition, as we have seen, to Davia,

to be furnished with papers to go North and rid
the Confederacy of some of its "deadlieat ene
mies," waa in Canada. He waa doubtless one
of the "frienda" referred to. As appeara by
tbe testimony of Montgomery, Payne, tbe pris
oner at your bar, was about that time in Canada,
and was seen standing by Thompson's door,
engaged in a conversation with Clay, between
whom and the witness some worda were inter
changed, when Clay stated he (Payne) was one
of their friends — " we trust him." It is proved
beyond a shadow of doubt that in October laat
John Wilkea Booth, the aasassin of the Presi
dent, was also in Canada, and upon intimate
terms with Thompson, Clay, Sanders, and other
rebel agents. Who can doubt, in the light of
the events wMoh bave transpired, that he was
one of the " friends " to be " set to work," as
Davis had already directed — not, perhaps, as
yet to aasaasinate the Preaident, but to do that
other work which is auggeated in the letter of
Oldham, indoraed by Davis in Ms own hand,
and spread upon your record — the work of the
secret incendiary, which was to " fill the people
of the North with terror and consternation."
The other " work" apoken of by Thompson — put
ting the tyrant Lincoln and any of his advisers out
of the way, waa work doubtleaa to be commenced
only after the re-election of Mr. Lincoln, which
they had already declared in, their dispatch to
tbeir employer, Davis, was with tbem a foregone
conclusion. At all events, it was not until after
the Preaidential election in November that Als
ton proposed to Davia to go North on tbe work
of assassination ; nor was it until after that
election that Booth was found in posseaaion of
tbe letter which is in evidence, and which dis-
cloaea tbe purpoae to aasasainate the Preaident.
Being assured, however, when Booth was with
them in Canada, as they bad already declared
in their dispatch, that the re-election of Mr.
Lincoln waa certain, in which event there would
be no hope for tbe Confederacy, they doubtless
entered into the arrangement with Booth as one
of their " friends," that as soon aa that fact was
determined he ahould go " to work," and aa soon ,
as might be " rid tbe Confederacy of the tyrant
Lincoln and of Ma advisers."
That these persons named upon your record,
Thompson, Sanders, Clay, Cleary and Tucker,
were the agenta of Jefferaon Davia, ia another
fact eatabliahed in tbia case beyond a doubt.
They made affidavit of it themaelvea, of record
here, upon the examination of their "friends,"
charged with tbe raiM upon St. Albana, before
Judge Smith, in Canada. It is in evidence,
also, by tbe letter of Clay, before referred to.
The testimony, to which I have thus briefly
referred, shows, by tbe letter of Ms agenta, of
the 13tb of October, that Davia had before di
rected those agents to set hia friends to work.
By tbe letter of Clay it seems that his direc
tion had been obeyed, and hia frienda had been
aet to work, in the burning and robbery and
murder at St. Albans, in the attempt to burn
the city of New York, and in tbe attempt to in
troduce peatilence into this capital and into
tbe bouae of tbe Preaident. It having ap
peared, by .the letter of Alston, and the in
dorsement thereon, that Davis had in Novem-

ARGUMENT OF JOHN A. BINGHAM,

877

ber entertained the propoaition of sending
agenta, that is to say, "frienda," to the North,
to not only "spread terror and consternation
among the people" by means of Ms " chemical
preparationa," but alao, in the worda of that
letter, " to atrike," by the handa of assassins,
"at the heart's blood" of the deadliest enemies
in the North to the confederacy of traitora ; it
haa alao appeared by the teatimony of many
reapectable witneaaes, among othera tbe attor
neys who represented the people of the United
Statea and the State of Vermont, in tbe prelim
inary trial of tho raiders in Canada, that Clay,
Thompson, Tucker, Sanders and Cleary de
clared themselves the agents of the Confeder
acy. It also clearly appeara by the correa
pondence referred to, and tbe letter of Clay,
that they were holding, and at any time able
to command, blank commiaaions from Jefferson
Davis to authorize their friends to do whatever
work they appointed them to do, in tbe inter-
eats of the rebellion, by the deatruction of life
and property in tbe North.
If a prima fade caae justifies, aa we bave
seen by the law of evidence it doea, the intro
duction of all declarations and acts of any of
the partiea to a conspiracy, uttered or done in
the prosecution of the common design, aa evi
dence againat all the reat, it results, that what
ever waa said or done in furtherance of tbe
common deaign, after this month of October,
1864, by either of these agents in Canada, ia
evidence not only againat themselvea, but
againat Davis as well, of his complicity with
them in the conspiracy.
Mr. Montgomery testifies that he met Jacob
Thompson in January, at Montreal, when be
said that "a proposition bad been made to Mra
to rid the world of the tyrant Lincoln, Stanton,
Grant, and some others ; that he knew tbe men
who had made the proposition were bold, dar
ing men, able to execute what they undertook ;
that he bimaelf waa in favor of tbe propoaition,
but bad determined to defer hia anawer until
he had consulted his government at Richmond ;
that he was then only awaiting their approval.'.'
This was about the middle of January, and
consequently more than a month after Alaton
had made his proposition direct to Davis, in
writing, to go North and rid their Confederacy
of some of its "deadliest enemiea." It was at
the time of thia converaation that Payne, tbe
priaoner, waa aeen by tbe witneaa standing at
Thompson's door in conversation with Clay.
This witness also ahows tbe intimacy between
Thompson, Clay, Cleary, Tuoker, and Sanders,
A few days after the assasaination of tbe
Preaident, Beverley Tucker said to this witness
"that President Lincoln deserved Ms death
long ago; that it waa a pity be didn't bave it
long ago, and it waa too bad that tbe boys bad
not been allowed to act when they wanted to,"
This remark undoubtedly had reference to
tbe propositions made in tbe fall to Thompson,
and alao to Davis, to rid tbe South of ita dead
lieat enemies by their aaaaaaination. Cleary,
who was accredited by Thompson as his confi
dential agent, also atated to thia witness that
Booth was one of the party to whom Thompson
had referred in the converaation in January, in

which he aaid he knew the men who were ready
to rid tbe world of the tyrant Lincoln, and of
Stanton and Grant. Cleary alao said, apeak
ing of tbo aasassination, "that it was a pity
that the whole work bad not been done," and
added, " they bad better look out — we are not
done yet;" manifestly referring, to the state
ment made by bis employer, Thompson, before
in the aummer, that not only tbe tyrant Lin
coln, but Stanton and Grant, and others of bis
advisers, should be put out of tbe way. Cleary
also stated to thia witness that Booth bad vis
ited Thompson twice in the winter, the last
time in December, and had alao been there in
the aummer.
Sanford Conover teatified that be bad been
for aome time a clerk in the war department at
Richmond; that in Canada he knew Tbompaon,
Sanders, Cleary, Tucker, Clay, and other rebel
agents ; that he knew John H. Surratt and
John "Wilkes Booth; that be aaw Booth there
upon one occasion, and John H. Surratt upon
several successive days; that be aaw Surratt
(whom he deaoribea) in April laat, in Thomp-
son's room, and also in company with Sanders ;
that about tbe 6th or 7th of April Surratt de
livered to Jacob Tbompaon a diapatcb brought
by hira from Benjamin, at Richmond, encloa-
ing one in cipher from Davia. Thompson had
before this proposed to Conover to engage in a
plot to assassinate President Lincoln and his
cabinet, and on this occasion he laid bis band
upon these deapatchea and aaid, "TMs makes
tbe thing all right," referring to tbe aasent of
tbe rebel autbo ritiea, and stated that the rebel
authorities had consented to the plot to aaaaa
ainate Lincoln, Johnaon, the Secretary of War,
Secretary of State, Judge Chaae, and General
Grant. Tbompaon remarked further that the
aaaaaaination of theae parties would leave the
Government of tbe United Statea entirely with
out a bead ; that there waa no proviaion in the
Conatitution of the United Statea by which tbey
could elect another President, if tbeae men
were put out of tbe way.
In speaking of this assaaaination of the Pres
ident and others, Thompson said that it was
only removing tbem from office, that tbe kill
ing of a tyrant was no murder. It seems that
he bad learned precisely tbe same lesson that
-listen had learned in November, when be com
municated with Davis, and said, apeaking of
the Preaident's assassination, "he did not
think anything dishonorable that would aerve
their cause." Thompson atated at tbe same
time that be had conferred a commisaion on
Booth, and that everybody engaged in the en-
terpriae would be commiaaioned, and if it sue-".
ceeded, or failed, and they escaped into Cana
da, tbey could not be reclaimed under tbe ex
tradition treaty. The fact that Thompson and
other rebel agents held blank commissions, as
I have said, has been proved, and a copy of one
of them is of record here.
Tbia witneas also testifies to a converaation
with William C. Cleary, ahortly after the sur
render of Lee'a army, and on the day before the
Preaident'a aaaaaaination, at tbe St. Lawrence
Hotel, Montreal, when, speaking of the rejoic
ing in tbe States over the capture of Richmond,

378

THE CONSPIRACY TRIAL,

Cleary aaid, "they would put the laugh on tbe
other aide of their mouth in a day or two,"
These partiea knew that Conover waa in tbe
secret of the assassination, and talked with
him about it as freely aa they would speak of
the weather. Before the assasaination be bad
a conversation, also, with Sanders, who asked
bim if he knew Booth well, and expressed some
apprehension that Booth would "make a failure
of it; that he was desperate and reckless, and
he waa afraid the whole tMng would prove a
failure." Dr. Jamea B. Merritt teatifiea that George
Young, one of tbe partiea named in the record,
declared in Ms preaence, in Canada, last fall,
that Lincoln should never be inaugurated; that
tbey had friends in Washington, who, I sup
pose, were sorae of tbe sarae friends referred
to in tbe dispatch of October 13, and whom
Davia had directed them "to set to work."
George N. Sanders also said to bim "that Lin
coln would keep bimself mighty close if be did
serve another term;" wbile Steele and other
confederates declared that tbe tyrant never
should aerve another term. He heard the aa
saasination discussed at a meeting of these
rebel agents in Montreal in February last.
"Sanders aaid they had plenty of money to ac
compliah tbe assassination, and named over a
number of persona who were ready and willing
to engage in undertaking to remove tbe Presi
dent, Vice-President, tbe Cabinet, and some of
the leading generals. At this meeting be read
a letter, which he had received from Davis,
which justified bim in making any arrange
ments that he could to accomplish the object."
This letter the witness beard read, and it, in
substance, declared that if the people in Can
ada, and tbe Southerners in the States, were
willing to submit to be governed by such a ty
rant aa Lincoln, be didn't wiah to recognize
them aa friends. The letter was read openly ;
it was also handed to Colonel Steele, George
Young, Hill and Scott to be read. TMs was
about the middle of February last. At this
meeting Sanders named over the persons who
were willing to accomplish the assassination,
and among tbe persons thus named was Booth,
whom tbe witneas bad seen in Canada in Oc
tober; also, George Hamper, one of the conspira
tors named on tbe record, Caldwell, Randall,
Harrison and Surratt.
Tbe witness understood, from the reading of
the letter, that if tbe President, Vice-President
and Cabinet could be disposed of, it would sat
isfy the people of tbe North that tbe Southern
ers hadfriends in tbe North ; that a peace could
be obtained on better terms; that tbe rebels bad
endeavored to bring about a war between tbe
United Statea and England, and that Mr.
Seward, through hia energy and sagacity, had
thwarted all their eft'orts; that was given as a
reason for removing bim. On tbe 5th or 6th of
laat April this witness met George Harper,
Caldwell, Randall, and others, who are spoken
of in this meeting, at Montreal, aa engaged to
asaassinate tbe Preaident and Cabinet, when
Harper aaid tbey were going to tbe Statea to
make a row, such as had never been beard of,
and added, that "if I (the witnesa) did not

bear of the death of Old Abe, of the Vice-
Preaident and of General Dix in less than ten
days, I might put Mm down as a fool. That
was on tbe 6th of April. He mentioned that
Booth was in Washington at that time. He
aaid tbey had plenty of friends in Waahington,
and that aome flfteen or twenty were going."
This witneaa aacertained, on the 8tb of April,
that Harper and othera bad left for the Statea.
The proof ia, that these parties could come
through to Washington, from Montreal or To
ronto, in thirty-six hours. Tbey did come, and
within tbe ten days niimedby Harper, the Pres
ident was murdered ! Some attempts bave been
made to discredit this witness (Dr. Merritt),
not by tbe examination of witnesses in court,
not by any apparent want of truth in tbe teati
mony, but by the ex parte statements of theae
"rebel agenta in Canada, and tbeir hired advo
cates in tbe United Statea. There ia a atate
ment upon tbe record, verified by an official
communication from tbe War Departraent,
which shows tbe truthfulness of this witnesa,
and that is, that, before tbe assassination,
learning that Harper and bia aasociates had
started for tbe States, inforraed, as be waa, of
their purpoae to assassinate tbe President, Cab
inet and leading generals, Merritt deemed it
bis duty to call, and did call, on the lOtb of
April, upon a Justice of tbe Peace, in Canada,
naraed Davidson, and gave bim tbe informa
tion, that he might take ateps to stop these
proceedings. The correspondence on this sub
ject with Davidson bas been brought into
Court. Dr. Meri-itt testifiea, further, that after
this meeting in Montreal be had a converaa
tion with Clement C. Clay, in Toronto, about
tbe letter from Jefferaon Davis, which Sanders
bad exhibited, in which conversation Clay-gave
the witneaa to understand that be knew tbe
nature of tbe letter perfectly, and remarked
that he thought "tbe end would ju'Stify tbe
raeans." Tbe witness also testifies to the pres
ence of Booth -svith Sanders in Montreal, last
fall, and of Surratt in Toronto in February
last. Tbe Court must be satisfied, by the manner
of tbia and other witneaaes to the tranaactions
in Canada, as well as by tbe fact that they are
wholly uncontradicted in any material matter
that tbey state, that tbey speak tbe truth, and
that the several parties named on your record
(Davis, Thompson, Cleary, Tucker, Clay, Young,
Harper, Booth and John H. Surratt), did com
bine and conapire together, in Canada, to kill
and murder Abraham Lincoln, Andrew John
son, William H. Seward and Ulyaaea S. Grant.
That this agreement was substantially entered
into by Booth and tbe agents of Davia in Can
ada aa early as October there can not be any
doubt. The language of Thompson at that
tirae, and before, was that he waa in favor of
the assassination. Ilia further language was,
that he knew tbe men who were ready to do it;
and Booth, it is shown, was there at that time,
and, as Thompson's secretary says, waa one of
tbe men referred to by Tbompaon.
The fact that othera, beside tbe parties named
on the record, were, by tbe terms of tbe con
spiracy, to be assassinated, in nowise affects

ARGUMENT OF JOHN A, BINGHAM.

379

the case now on trial. If it is true that theae
parties did conapire to murder other partiea, as
well as those named upon tbe record, the aub-
stanoe of tbe charge is proved.
It is also true that, if, in purauance of that
conapiraoy, Booth confederated with Surratt
and the accused, killed and murdered Abraham
Lincoln, tbe charge and specification is proved
literaUy, as atated on your record, although
tbeir conspiracy embraced other peraona. In
law tbe case stands, though it may appear that
the conspiracy was to kill and murder tbe
parties named in the record and others not
named in tbe record. If tbe proof is that tbe
accused, with Booth, Surratt, Davia, etc., con
spired to kill and murder one or more of tbe
persons named tbe charge of conapiracy is
¦proved. Tbe -declaration of Sanders, as proved, that
there was plenty of money to carry out this as
aasaination, is very strongly corroborated by
tbe testimony of Mr. Campbell, casMer of the
Ontario Bank, who states that Thompson, during
the current year preceding tbe aaaaaaination,
had upon deposit, in the Montreal Branch of
the Ontario Bank, six hundred and forty nine
thousand dollars, beside large auma to Ms credit
in other banks in tbe province.
There is a further corroboration of tbe testi
mony of-Conover as to tbe meeting of'Thompson
and Surratt in Montreal, and the delivery of
the dispatches from Richmond, on the 6tb or
7th of April, first, in tbe fact, which is abown by
tbe teatimony of Chester, that in tbe winter, or
spring. Booth said he himaelf, or some other
party, must go to Richmond; and, second, by
the letter -of Arnold, dated 27tb of March laat,
that be preferred Booth'a first query, that be
would first go to Richmond and see bow they
would take it, manifestly alluding to tbe pro
posed aaaaaaination of the President. It does
not follow, because Davis had written a letter
in February, which, in substance, approved the
general object, that tbe parties were fully satis
fied with it ; because it is clear there was to be
some arrangement made about the funds; and
it is also clear that Davis bad not before as
distinctly approved and sanctioned this act as
bis agents, either in Canada or here, desired.
Booth aaid to Chester, "We must have money;
there is money in thia business, and, if you will
enter into it, I will place three thousand doUara
at the disposal of your family; but I have no
money myself, and must go to Richmond," or
one of tbe parties muat go, " to get money to
carry out tbe enterpriae." This was one of the
arrangements that waa to be "made right in
Canada." The funda at Thompson's disposal,
as the banker testifies, were exclusively raised
by drafts of tbe Secretary of tbe Treasury of
the Confederate States upon London, deposited
in their bank to tbe credit of Thompson.
Accordingly, about tbe 27th of March, Sur
ratt did go to Richmond. On the 3d of April
he returned to Washington, and tbe same day
left for Canada. Before leaving, be stated to
Weichmann that when in Bicbmond_ be had
had a conversation with Davis and with Ben
jamin. Tbe fact in this connection is not to
be overlooked, that on or about the day Surratt

arrived in Montreal, April 6tb, Jacob Thomp
son, aa the oaabier of the Ontario Bank states,
drew of these Confederate funds the sum of
one hundred and eighty thousand dollars in
tho form of certificates, which, as the bank of
ficer testifies, "raight be used anywhere."
What more is wanting? Surely no word
further need be spoken to show that John
Wilkea Booth waa in thia conspiracy; that
John H. Surratt waa in tbia conapiracy ; and
that Jefferaon Davia and hia aeveral agenta
naraed, in Canada, were in tbia conspiracy.
If any additional evidence is wanting to abow
the complicity of Davia in it, let tbe paper
found in tbe possession of bia hired assassin.
Booth, come to bear witnesa against him.
That paper contained tbe secret cipher which
Davis used in his State Department at Rich
mond, which he employed in communicating
with Ms agenta in Canada, and which tbey
employed in tbe letter of October 13tb, noti
fying Mm that "their friends would be set to
work as he had directed," Tbe letter in cipher
found in Booth's posseaaion, ia tranalated here
by the use of tbe cipher machine now in Court,
which, as tbe testimony of Mr. Dana shows,
be brought frora tbe rooms of Davis' State
Department in Richmond. Who gave Booth
this secret cipher? Of what use waa it to
Mm if he was not in confederation with Davia?
But there ia one other item of teatimony
that ought, among honest and intelligent peo
ple at all conversant with this evidence, to
end all further inquiry aa to whether Jeffer
son Davis waa one of the parties, with Booth,
as charged upon this record, in the conspiracy
to assassinate tbe President and others. That
is, that on tbe fifth day after the assassination,
in tbe city of Charlotte, North Carolina, a
telegraphic dispatch was received by Mm, at
tbe house of Mr. Bates, from John C. Breck
inridge, bis rebel Secretary of War, which
dispatch is produced here, identified by tbe
telegraph agent, and placed upon your record
in the words following :
" Greensboro', April 19, 1865.
"His Excellency, President Davis:
"President Lincoln was assassinated in the
theater in Washington on tbe nigbt of tbe 14th
inst. Seward's bouse was entered on the same
nigbt and he waa repeatedly stabbed, and is
probably mortally wounded.
"JOHN C. BRECKINRIDGE."
At tbe time tbia diapatcb was banded to
bim, Davia was addressing a meeting from tbe
steps of Mr. Bates' bouse, and after reading
the diapatcb to tbe people, be aaid; "If it were
to be done, it were better it were well done."
Shortly afterward, in the house of tbe witness,
in tbe same city, Breckinridge, having come to
see Davis, atated bia regret that the occurrence
had happened, because be deemed it unfortu
nate for the people of the South at that time.
Davis replied, referring to tbe aaaaaaination,
" W-ell, General, I don't know; if it were to be
done at all, it were better that it were well
done; and if tbe same had -been don.e to Aindy
Johnaon, tbe beast, and to Secretary Stanton,
the job would then be complete."

380

THE CONSPIRACY TRIAL.

Accomplished as this man was in all the arts
of a conspirator, he was not equal to the task
— as happily, in the good providence of God,
no mortal man ia — of concealing, by any form
of words, any great crime which be may have
meditated or perpetrated either againat his
Government or his fellow-men. It was doubt
leaa furthest from Jefferson Davis' purpose to
make confession. His guilt demanded utter
ance; that demand he could not resist; there
fore hia worda proclaimed hia guilt, in apite of
hia purpose to conceal it. He said, "If it were
to be done, it were better it were well done."
Would a-ny man, ignorant of tbe conapiracy, be
able to deviae and faahion sucb a form of speech
as that ? Had not tbe President been murdered ?
Had he not reason to believe that the Secretary
of State had been mortally wounded ? Yet be
was not satisfied, but was compelled to say, "it
were better it were well done" — that is to say, all
that had been agreed to be done bad not been
done. Two days afterward, in his conversa
tion with Breckinridge, he not only repeats tbe
same form of expression — "if it were to be
done it were better it were well done" — ^but adda
these words; "And if the same had been done
to Andy Johnson, tbe beast, and to Secretary
Stanton, tbe job would then be complete." He
would accept the assassination of the Presi
dent, the Vice-President, of tbe Secretary of
State, and tbe Secretary of War, aa a complete
execution of tbe "job" which he had given out
upon contract, and which he had "made all
right," BO far aa the pay was concerned, by the
dispatches he had sent to Thompson by Sur
ratt, one of hia hired assassins. Whatever may
be the conviction of others, my own conviction
is that Jefferson Davis is as clearly proven
guilty of this conspiracy as is John Wilkea Booth,
by whoae hand Jefferson Davis inflicted the
mortal wound upon Abraham Lincoln. His
words of intense hate, and rage, and disappoint
ment, are not to be overlooked — that tbe assas
sina bad not done tbeir work well ; that tbey
had not succeeded in robbing the people alto
gether of their Constitutional Executive and
his advisers; and hence he exclaims, "If they
had killed Andy Johnaon, the beast 1 " Neither
can be conceal his chagrin and disappointment
that the War Miniater of tbe Republic, whoae
energy, incorruptible integrity, sleepless vigi
lance, aud executive ability had organized day
by day, month by month, and year by year,
victory for our arms, had escaped the knife of
the Mred assassins. The job, says this pro
curer of assassination, was not well done; it
had been better if it had been well done I Be
cause Abraham Lincoln had been clear in his
great office, and had saved the nation'a life by
enforcing the nation's laws, this traitor de
clares he must be murdered ; because Mr. Sew
ard, as the foreign Secretary of the country,
had thwarted the purposes of treason to plunge
Hs country into a war with England, he must
be murdered; because, upon the murder of
Mr. Lincoln, Andrew Johnaon would aucceed
to the Presidency, and because he had been true
to the Constitution and Government, faithful
found among the faithless of Ma own State,
clinging to the falling pillars of the Republic

when others had fled, he must be murdered;
and becauae tbe Secretary of War had taken
care by the faithful discharge of his duties,
that the Republic should live and not die, he
must be murdered. Inasmuch as these two
faithful officers were not also assaaainated, as
suming that tbe Secretary of State was mor
tally wounded, Davis could not conceal his
diaappointment and chagrin that the work was
not "well done," that the 'job wasnotoompletel"
Thus it appears by the teatimony that the
propoaition made to Davia waa to kill and
murder tbe deadliest enemies of the Confed
eracy — not to kidnap them, as is now pretended
here; that by the declaration of Sanders,
Tucker, Thompson, Clay, Cleary, Harper, and
Young, the conspirators in Canada, the agree
ment and combination among them was to
kill and murder Abraham Lincoln, WilUam H.
Seward, Andrew Johnson, Ulyasea S. Grant,
Edwin M. Stanton, and others of Ma advisors,
and not to kidnap them ; it appears from every
utterance of John Wilkea Booth, aa well as
from tbe Charles Selby letter, of which men
tion will presently be made, that, as early as
November, the propoaition with him was to
kill and murder — not to kidnap.
Since the first examination of Conover, who
testifled, as the Court will remember, to many
important facts against theae conspiratora and
agents of Davis in Canada, among others, the
terrible and fiendiah plot, diacloaed by Thomp
son, Pallen, and othera, that they had aacer
tained tbe volume of water in the reservoir
supplying New York city, estimated the quan
tity of poison required to render it deadly, and
intended thus to poison a whole city, Conover
returned to Canada, by direction of this Court,
for tbe purpoae of obtaining certain document
ary evidence. There, about the 9th of June, he
met Beverley Tuoker, Sanders, and other con
apiratora, and conversed with tbem. Tuoker
declared that Secretary Stanton, whom he de
nounced aa "a scoundrel," and Judge Holt,
whom he called "a bloodthirsty villain," could
protect themaelvea, aa long as they remained
in office, by a guard, but that would not always
be the case, and, by the Eternal I be had a
large account to settle with them." After this,
the evidence of Conover here having been pub
lished, these partiea called upon him, and
aaked him whether he bad been to Waahington
and had testified before tbia Court. Conover
denied it; tbey insisted, and took Mm to a room,
where, with drawn pistols, they compelled him
to consent to make an affidavit that he had been
falsely personated here by another, and that he
would make that affidavit before a Mr. Kerr,
who would witness it. They then called in Mr.
Kerr to certify to the public that Conover had
made such a denial. They also compelled this
witneas to furniah, for publication, an adver-
tiaement, offering a reward of five hundred dol
lars for the arrest of the "infamous and per
jured acoundrel" who had recently personated
Jamea W. Wallace under the name of Sanford
Conover, and teatified to a tissue of falsehoods
before the Military Commiaaion at Washington,
which advertisement was published in the pa
pers.

ARGUMENT OF JOHN A. BINGHAM.

381

To these facts Mr. Conover now testifies, and
alao discloses tbe fact that theae aame men pub
Ushed, in the report of the proceedinga before
Judge Smith, an affidavit purporting to be hia,
but which he never made. The affidavit which
he in fact made, and which was publiabed in a
newapaper at that time, produced here, is set
oiit aubatantially upon your record, and agreea
with tho testimony upon the aame point given
by Mm in this Court.
To auppoae that Conover ever made auch an
affidavit, voluntarily, as the one wrung from
him as stated, is impoaaible. Would be adver
tise for his own arreat, and charge himaelf with
falsely personating bimself? But the fact can
not evade observation, that, when these guilty
conspirators aaw Conover's teatimony before
thia Court in the public prints, revealing to tbe
world the atrocious plots of tbeae felon conapir
atora, conacioua of the truthfulness of bis state
ments, tbey oast about at once for aome defense
before the public, and devised the foolish and
stupid invention of compelling him to make an
affidavit that he waa not Sanford Conover, waa
not in tbia Court, never gave thia teatimony,
but waa a practicing lawyer in Montreal I Tbia
infamoua proceeding, coupled with the evi
dence before detailed, atampa these ruffian
plotters with the guilt of this conspiracy.
John Wilkes Booth having entered into tbia
conspiracy in Canada, aa has been shown, as
early aa October, he ia next found in the city
of New York, on the llth day, aa I claim, of
November, in diaguiae, in converaation with
another, the converaation diaolosing to the wit
ness, Mrs. Hudapeth, that they had some mat
ter of peraonal intereat between tbera; that
upon one of tbem tbe lot bad fallen to go to
WasMngton; upon tbe other to go to Newbern.
TMs witneaa, upon being shown tbe photograph
of Booth, swears "that the face is the- same"
aa that of one of thoae men, who, abe aaya, waa
a young man of education and culture, aa ap
peared by Ms conversation, and who bad a
scar, like a bite, near tbe jaw-bone. It is a
fact, proved here by tbe Surgeon-General, that
Booth had auch a acar on the side of bis neck.
Mrs. Hudspeth heard him say he would leave
for Washington the day after to-morrow. His
companion appeared angry because it had not
fallen on him to go to Washington. This took
place after the Presidential election in Novem
ber. She can not fix the precise date, but
jays she was told that General Butler left New
York on that day. The testimony discloses
that General Butler's army was, on tbe lltb
of November, leaving New York. The register
of the National Hotel shows that Booth left
Waahington on tbe early morning train, No
vember 11, and that he returned to tbia city on
the 14tb. Chester testifies positively to Booth'a
preaence in New York early in November.
TMa teatimony shows most conclusively that
Booth was in New York on the llth of Novem
ber. Tbe early morning train on which he
left Washington would reach New York early
in the afternoon of that day. Cheater aaw him
there early in November, and Mra. Hudspeth
not only identifies his picture, but describes
his peraon. The scar upon his neck, near his

jaw, waa peculiar, and ia well described by the
witness as like a bite. On that day Booth bad
a letter in Ma poaaession which he accidentally
dropped in the atreet oar in the presence of
Mrs. Hudspeth, tbe witness, who delivered it
to Major-General Dix tbe same day, aud by
whom, as bia letter on file before thia Court
shows, tbe same waa transmitted to the War
Department, November 17, 1864. That letter
contains these worda ;
"Dear Louis: The time has at last come
that we have all so wished for, and upon you
every thing depends. As it was decided, be
fore you left, we were to cast lots; we accord
ingly did ao, and you are to be the Charlotte
Corday of the 19th century. When you re
member the fearful, solemn vow that was taken
by ua, you will feel there is no drawback.
Abe muat die, and now. You can cbooae your
weapons — ihe cup, ihe knife, the bullet. The
cup failed ua once, and might again. Johnaon,
who will give this, bas been like an enraged
demon aince the meeting, becauae it bas not
fallen upon him to rid the world of tbe mon
ster. * ® * You know where io
find your friends. Your disguises are so perfect
and complete, that, without one knew your /ace,
no police telegraphic dispatch would catch
you. The English gentleman, Harcourt, must
not act hastily. Remember he bas ten days.
Strike for your home, strike for your country;
bide your time, but strike sure. Get introduced ;
congratulate Mra; liaten to Ms stories (not
raany more will tbe brute tell to earthly
friends); do anytMng but fail, and meet us at
the appointed place within the fortnight. You
will probably bear from me in Washington.
Sandera is doing ua no good in Canada.
"CHAS. SELBY."
The learned gentleman (Mr. Cox), in hia
very able and carefully considered argument
in defense of O'Laughlin and Arnold, attached
importance to this letter, and, doubtleaa, very
clearly saw its bearing upon tbe caae, and,
therefore, undertook to show that the witness,
Mrs. Hudspeth, muat be miataken aa to tbe
peraon of Booth. The gentleman aasumes that
the letter of General Dix, of tbe 17th of No
veraber last, transraitting this letter to tbe War
Department, reada that the party who dropped
the letter waa heard to aay that he would atart
to Waahington on Friday nigbt next, although
tbe word "next" is not in the letter; neither is
it in the quotation which the gentleman makes,
for he quotea it fairly; yet be concludes that
thia would be tbe 18th of November.
Now, the fact is, the llth of November last
was Friday, and the register of tbe National Ho
tel bears witness that Mrs. Hudapeth is not
mistaken ; becauae ber language ia, that Booth
said he would leave for Washington day after
to-morrow, which would be Sunday, tbe 13th,
and if in the evening, would bring him to
Washington on Monday, the 14tb of November,
the day on which, the register ahows, he did re
turn to the National Hotel. Aa to the improb
ability which tbe gentleman raises, on tbe con
versation happening in a street car, crowded
with people, there was nothing that transpired.

382

THE CONSPIRACY TRIAL.

although tbe conversation was earnest, which
enabled the witness, or could bave enabled any
one, in tbe abaence of thia letter, or of the sub
aequent conduct of Booth, to form tbe least
idea of the subject-matter of tbeir conversa
tion. The gentleman does not deal altogether
fairly in Ma remarks touching the letter of
General Dix ; because, upon a careful exami
nation of the letter, it will be found that he did
not form any such judgment as that it was a
hoax for tbe Sunday Mercury, but be took care
to forward it to tbe Departraent, and asked at
tention to it; when, as appears by tbe testimony
of tbe Asaistant Secretary of War, Mr. Dana,
the letter was delivered to Mr. Lincoln, who
considered it iraportant enough to indorse it
with the word " Assassination," and file it in
bis office, where it was found after tbe commis
sion of this crirae, and brought into tMs Court
to bear witness against his assassins.
Although this letter would imply that the as
sassination spoken of was to take place speedily,
yet the party was to bide his time. Though be
bad entered into tbe preliminary arrangements
in Canada; although conspirators had doubtless
agreed to co-operate with him in tbe commis
sion of tbe crime, and lots bad been cast for
tbe chief part in the bloody drama, yet it re
mained for bim, as tbe leader and principal of
tbe hired assassina, by whose hand tbeir em
ployers were to atrike tbe murderoua blow, to
collect about him and bring to Washington
such persons as would be willing to lend them
selves for a price to tbe horrid crirae, and likely
to give tbe necessary aid and support in its
consummation. Tbe letter declares that Abra
bara Lincoln must die, and now, meaning as
soon as tbe agents can be employed, and the
work done. To that end you will bide your
time. But says tbe gentleman, it could not
have been the same conspiracy charged here
to which this letter refers. Why not? It is
charged here that Booth with tbe accused and
others conspired to kill and murder Abraham
Lincoln — that is precisely tbe conspiracy dis
closed in tbe letter. Granted that the parties
on trial had not then entered into tbe combi
nation; if tbey at any time afterward entered
into it they became parties to it, and the con
spiracy waa still tbe same. But, aays tbe gen
tleman, the words of the letter imply that the
conspiracy was to be executed within the tort-
nigbt. Booth ia directed, by tbe name of Louis,
to meet the writer within tbe fortnight. It by
no means follows that be was to atrike within
the fortnight, becauae be was to meet his co
conspirator within that time, and any such con
clusion is excluded by the words, "Bide your
time." Even if the conspiracy was to be exe
cuted within tbe fortnight, and was not ao exe
cuted, and the same party. Booth, afterward by
concert and agreement with tbe accuaed and
others, did execute it by "striking sure" and
killing tbe President, that act, whenever done,
would be but tbe execution of the same conspir
acy. The letter is conclusive evidence of so
much of this conspiracy as relatea to the mur
der of President Lincoln. As Booth was to do
anything but fail, he immediately thereafter
sought out tbe agenta to enable bim to strike

aure, and execute all that he had agreed v?ith
Davia and Ms co-confederatea in Canada to do
— to murder the Preaident, tbe Secretary of
State, the Vice-Preaident, General Grant, and
Secretary Stanton.
Even Booth's co-conspirator, Payne, now on
his trial, by his defense adraita all tbia, and
says Booth bad just been to Canada, " waa filled
with a raigbty scherae, and was lying in wait
for agents," Booth asked the co-operation of
the prisoner, Payne, and aaid: "I will givo
you aa rauch raoney as you want; but first you
raust swear to stick by me. It is in tbe oil
business." This, you are told by tbe accused,
was early in March last. Thus guilt bears
witness against itself.
We find Booth in New York in November,
December and January, urging Chester to
enter into thia combination, assuring Mm that
there waa money in it; that tbey had " frienda
on tbe other aide;" that if be would only par
ticipate in it be would never want for money
wbile be lived, and all that was asked of him
waa to atand at and open the back door of Fords
theater. Booth, in bis interviews with Chester,
confesses that he is without money himself, and
allows Chester to reimburse Mra the 550 which
he (Booth) had transmitted to bim in a letter
for tbe purpose of paying his expenses to
Washington as one of the parties to this con
spiracy. Booth told Mm, although he himaelf
was penniless, "there is money in this — we bave
friends on tbe other-aide;" and if you will but
engage, I will have three tbouaand dollars de
posited at once for the uae of your family.
Failing to secure the services of Cheater, be
cauae Ms aoul recoiled with abhorrence from
tlfe foul work of assassination and murder, he
found raore willing instruraents in others whom
be gathered about him. Men to commit tbe
assassinations, horses to secure speedy and cer
tain eacape, were to be provided, and to thia
end Booth, with an energy worthy of a better
cause, applies himself. For this latter purpoae
be told Chester be had already expended $5,000.
In tbe latter part of November, 1864, he visits
Charles county, Maryland, and is in company
with one of tbe prisoners, Dr. Samuel A. Mudd,
with whom he lodged over nigbt, and through
whora he procures of Gardner one of tbe sev
eral horses which were at bis disposal, and used
by bim and bis co-conspiratora in Waahington
on tbe nigbt of tbe asaaasination.
Sorae time in January laat, it ia in testimony,
that the prisoner, Mudd, introduced Booth te
John H. Surratt and tbe witness, Weichmann;
that Booth invited tbem to tbe National Hotel;
that when there, in tbe room to which Booth
took them, Mudd went out into the pasaage,
called Booth out and bad a private conversa
tion with bim, leaving tbe witness and Surratt
in the room. Upon their return to the room.
Booth went out with Surratt, and upon tbeir
coming in, all three, Booth, Surratt, and Sam
uel A. Mudd, went out together and had a con
versation in the passage, leaving tbe witness
alone. Up to tbe time of this interview, it
aeems that neither the witneaa nor Surratt bad
any knowledge of Booth, aa tbey were then
introduced to him by Dr. Mudd. "Whether Sur-

ARGUMENT OF JOHN A, BINGHAM,

383

ratt had in fact previously known Booth, it ia
not important to inquire. Mudd deemed it
neceaaary, perhaps a wise precaution, to intro
duce Surratt to Booth; be alao deemed it necea
aary to have a private conversation with Booth
shortly afterward, and directly upon that to
bave a conversation together '^•ith Booth and
Surratt alone. Had this conversation, no part
of which was heard by tbe witness, been per-
lootly innocent, it is not to be preauraed that
Dr. iludd, who was an entire atranger to
Weichmann, would bave deemed it necessary to
liold the conversation secretly, nor to bave vol
unteered to tell the witness, or rather pretend
to tell bim, what tbe conversation was ; yet be
did say to the witness, upon tbeir return to tho
room, by way of apology, I suppose, for tbe
privacy of the conversation, that Booth bad
some private business with him and wished to
purchase bis farm. This silly device, aa ia of
ten tbe case in attempts at deception, failed in
the execution; for it remains to be shown how
tbo fact that Mudd bad private business with
Booth, and that Booth wished to purchase bis
farm, made it at all necessary or even proper
that tbey should both volunteer to call out Sur
ratt, who up to that moment waa a atranger to
Booth. What bad Surratt to do with Booth's
purchase of Mudd's farm? And if it was nec
essary to withdraw and talk by themselves se
cretly about the sale of tbe farra, why should
tbey disclose tbe fact to tbe very man from
whom they had concealed it ?
Upon the return of these three parties to the
room, tbey seated themselves at a table, and
upon tbe back of an envelope Booth traced lines
with a pencil, indicating, as tbe witness statea,
tbe direction of roads. Why was this done I
As Booth bad been previously in that section of
country, aa tbe prisoner in Ms defense has
taken great paina to show, it was certainly not
neceasary to anytMng connected with tbe pur
chase of Mudd's farra that at that tirae be
should be indicating tbe direction of roads to
or from it ; nor is it made to appear, by any
thing in thia teatimony, how it comes that Sur- 1
ratt, as tbe witnesa testifies, seemed to be as
much interested in tbe raarking out of these
roada aa Mudd or Booth. It doea not appear
that Surratt waa in anywiae connected with or
interested in tbe sale of Mudd'a farm. Frora
all that baa transpired at this meeting at the
hotel, it would aeem that this plotting tbe roads
was intended, not so much to show tbe road to
Mudd'a farm, as to point out tbe shortest and
safest route for flight from tbe capital, by tbe
bouses of all the partiea to thia conapiraoy, to
their " friends on the other aide."
But, says tbe learned gentleman (Mr. Ewing),
iu bis very able arguraent in defenae of this
prisoner, why should Booth determine that bis
flight should be through Charlea county ? Tbe
answer must be obvioua, upon a moment's re
flection, to every man, and oould not possibly
bave escaped tbe notice of the counsel himself,
but for the reason that bis zeal for Ma client
constrained hira to overlook it. It waa abso
lutely essential that this murderer should bave
hia co-conapirators at convenient points along!
hia route, and it does not appear in evidence

that by tbe route to bis friends, who bad then
fled from Richmond, which the gentleman (Mr.
Ewing) indicates as the more direct, but of
which there is not the slightest evidence what
ever, Booth bad co-conspirators at an equal
distance from Washington. The testimony
discloses, further, that on tho route selected by
bira for bis flight there is a large population
that would bo m«st likely to favor and aid bim
in the execution of his wicked purpose, and in
making bis escape. But it is a sufficient answer
to tbe gentleman's question, that Booth's co-con
spirator JIudd lived in Charles county.
To return to the meeting at tbe hotel. In tbe
light of other facts in this case, it must become
clear to tbe Court that thia secret meeting between
Booth, Surratt, and Mudd waa a conference
looking to tbe execution of tbia conspiracy. It
ao irapresaed the priaoner — it ao impressed his
counsel, that they deemed it necessary and ab
solutely essential to their defense to attempt to
deatroy the credibility of tbe witness Weich
raann. I may say here, in passing, that they bave
not attempted to impeach bis general reputation
for truth by tbe testimony of a single witness,
nor have they impeached bis testimony by call
ing a single witnesa to diacredit one material
fact to which he has testified in this issue.
Failing to find a breath of suspicion against
Weichmann's character, or to contradict a single
fact to which he testified, tbe accused had to ily
to tbe laat reaort, an alibi, and very earn-estly
did tbe learned counsel devote bimself to the
task. It is not material whether this meeting in the
hotel took place on the 23d of December or in .laii-
uary. But, says the counsel, it was after the
commencement or close of the Congressional
holiday. That is not ma'terial ; but tbe concur
rent reaolution of Congresa shows that the
holiday commenced on the 22d December, the
day before the accused spent the evening in
Washington. The witness is not certain about
the date of this meeting. Tbe material fact is, did
this raeeting take place — either on the 23d of Dc-
ceraber or in January last ? Were the private
interviews there held, and 'was tho ' apology
raade, as detailed, by Mudd and Booth, after
the secret conference, to tbe •witness? That the
meeting did take place, and that Mudd did ex
plain that these recret interviews, with Booth
first, aud with Bcotb and Surratt directly after
ward, had relation to tbe sale of bis farm, is
confessedly admitted by tbe endeavor of the
prisoner, through bis counsel, to show that ne
gotiations bad been going on between Booth
and Mudd for the sale of Mudd's farm. If no
such meeting was held, if no such explanation
was made by Mudd to Weichmann, can any
man for a moment believe that a witness would
have been called here to give any testimony
about Booth having negotiated for Mudd's farm?
What conceivable connection has it with this
case, except to show that Mudd's explanation to
Weichmann for bis extraordinary conduct was
in exact accordance with tbe fact ? Or was this
testimony about tbe negotiations for Mudd's farm
intended to show so close an intimacy and in-
tercourse -with Booth that Mudd could not fail to

384

THE CONSPIRACY TRIAL.

recognize him when he came flying for aid to Ms
houae frora the work of assaaaination? It would
be injuatice to tbe able counael to auppoae that.
I have said that it waa wholly iraraaterial
whether tbia converaation took place on tbe 23d
of December or in January; it ia in evidence
that in both those months Booth waa at tbe
National Hotel; that he occupied a room there;
that he arrived there on the 22d and was there
on the 23d of December last, and also on the
12th day of January. Tbe teatimony of the
witneas ia, that Booth said be bad just come
in. Suppose tbia converaation took place in
December, on the evening of tbe 23d, the time
when it ia proved by J. T. Mudd, the witness
fbr the accused, that he, in company with Sam
uel A. Mudd, spent the nigbt in Washington
eity. Is there anything in the testimony of
that or any other witness to show that tbe ac
cused did not bave and could not have bad an
interview with Booth on that evening ? J. T.
Mudd testifies that he separated from tbe pris
oner, Samuel A. Mudd, at the National Hotel
early in the evening of that day, and did not
meet bim again until tbe accused came in for
tbe night at tbe Pennsylvania House, where be
stopped. Where was Dr. Samuel A. Mudd
during this interval ? What doea his witness
know about Mm during that time ? How can
he aay that Dr. Mudd did not go up on Seventh
street in company with Booth, then at tbe Na
tional ; that he did not on Seventh atreet meet
Surratt and Weichraann ; that he did not return
to the National Hotel ; that he did hot have this
interview, and afterward raeet hira, the witness,
as he testifles, at the Pennsylvania House ? Who
knows that tbe Congressional holiday had not in
fact commenced on that day ? What witness has
been called to prove that Booth did not on either
of those occasions occupy the room that bad for
merly been occupied by a meraber of Congress,
who bad temporarily vacated it, leaving his
books there ? Weichraann, I repeat, ia not posi
tive aa to tbe date, be ia only positive as to tbe
fact; and he disclosed voluntarily, to this
Court, that tbe date could probably be flxed by
a reference to tbe register of the Pennsylvania
House ; that register can not, of courae, be con-
elusive of whether Mudd waa there in January
or not, for the very good reaaon that the pro
prietor admits that he did not know Samuel A.
Mudd, therefore Mudd might have regiatered
by any other name. Weichmann does not pre
tend to know that Mudd had registered at all.
If Mudd was here in January, as a party to
this conspiracy, it ia not at all unlikely that, if
he did regiater at that time in tbe preaence of a
man to whom be was wholly unknown, hia
kinaman not then being with him, be would reg
iater by a falae name. But if tbe interview took
place in December, the testiraony of Weichraann
bears as strongly againat tbe accuaed aa if it
bad happened in January. Weichmann aaya
he does not know what time was occupied in
this interview at tbe National Hotel ; that it
probably lasted twenty minutea ; that, after the
private interviews between Mudd and Surratt
and Booth, which were not of very long dura
tion, had terminated, tbe parties went to the
Pennsylvania Houae, where Dr. Mudd had

rooms, and after aitting together in the common
aitting-room of tbe hotel, tbey left Dr. Mudd
there about 10 o'clock, P. M., who remained
during tbe night "Weichmann'a teatimony
leaves no doubt that tbia meeting on Seventh
atreet and interview at tbe National took place
after dark, and terminated before 10 o'clock, P.
M. Hia own witneaa, J. T. Mudd, after atating
that be separated from tbe accuaed at the Na
tional Hotel, says after he bad got through a
converaation with a gentleman of bia acquaint
ance, he walked down tbe Avenue, went to sev
eral clothing atorea, and " after a wbile "
walked round to tbe I?ennsylvania House, and
"very soon after" he got there Dr. Mudd came
in, and tbey went to bed shortly afterward.
What time be spent in his " walk alone " on
tbe Avenue, looking at clothing; what period he
embraces in the terma " after a while," when
he returned to tbe Pennsylvania Houae, and
" soon after '' which Dr. Mudd got there, the
'witness doea not diaclose. Neither does he
intimate, much less testify, that be aaw Dr.
Mudd when be first entered tbe Pennsylva
nia House on that nigbt after tbeir separation.
How does be know that Booth and Surratt and
Weichraann did not accompany Samuel A.
Mudd to that bouse that evening? How does
be know that the prisoner and thoae persons
did not converse together aome time in tbe sit
ting-room of the Pennsylvania Hotel ? Jere
miah Mudd has not testified that he met Doctor
Mudd in that roora, or that he was in it him
aelf. He has, however, sworn to the fact, which
is disproved by no one, that the prisoner was
separated from hira long enough that evening
to bave bad" the raeeting with Booth, Surratt,
and Weichmann, and the interviews in tbe
National Hotel, and at tbe Pennsylvania Houae,
to which Weichmann bas teatified ? Who is
there to disprove it ? Of what importance ia
it whether it was on the 23d day of December
or in January ? How does that affect tbe cred
ibility of Weichraann ? He is a man, as I have
before said, againat whose reputation for truth
and good conduct they have not been able to
bring one witness. If this meeting did by
possibility take place that night, is there any
thing to render it improbable that Booth, and
Mudd, and Surratt did have the conversation
at the National Hotel to which Weichmann
testifies? Of what avail, therefore, ia tbe at
tempt to prove that Mudd was not here during
January, if it was clear that he was here on
tbe 23d of December, 1864, and bad this conver
sation with Booth ? That this attempt to prove
an alibi during January baa failed, ia quite aa
clear as is tbe proof of tbe fact that the prisoner
was here on tbe evening of tbe 23d of December,
and present in the National Hotel, where Booth
stopped. The fact that tbe prisoner, Samuel A.
Mudd, went with J. T. Mudd on that evening
to tbe National Hotel, and there separated from
bim, ia proved by bia own witneaa, J. T. Mudd ;
and that he did not rejoin him until tbey had
retired to bed in the Pennaylvania House is
proved by tbe same witnesa, and contradicted
by nobody. Doea any one auppoae there would
have been auch assiduous care to prove that the
prisoner waa with hia kinaman all the time on

ARGUMENT OF. JOHN A. BINGHAM.

383

tho 23d of December in Washington, if they
had not kno'^vn that Booth was then at the Na
tional Hotel, and that a mooting of the pria
oner with Booth, Surratt, and Weichmann on
that day would corroborate Weichmann's testi
mony in every material statement he made con
cerning that meeting?
The accused having signally failed to ac
count for Ms absence after he separated from
his witness, J. T. Mudd, early in the evening
of the 23d of December, at the National Hotel,
until they had again met at the Pennaylvania
Houae, when they retired to reat, be now at
tempts to prove an alibi as to the month of
.lanuary. In this he has failed, as be failed in
the attempt to show that he could not have met
Booth, Surratt and Weichmann on tbe 23d of
December. For tbia purpose the accused caUa Betty
Washington. She had been at Mudd's bouse
every night since the Monday after Christmas
laat, except when here at court, and saya that
the prisoner, Mudd, has only been away from
home three nights during that time. This wit
ness forgets that Mudd has not been at horae
any night or day since this Court assembled.
Neither does she account for tbe three nights in
which she awears to his abaence from home.
First, she aays be went to Gardner's party ;
second, he went to Giesboro, then to Washino--
ton. She does not know in what month be was
away, tbe second time, all nigbt. She only
knows where he went, from what he and his
wife said, which is not evidence; but she does
testify that when be left horae and was absent
over night, the second time, it was about two
or three weeks after ahe came to hia bouse
which would, if it were three weeks, make it
juat about tbe 15th of January, 1865 ; beoauae
she swears she carae to Ms house on the first
Monday after Christmas last, which was the
26tb day of December ; so that the 15th of Jan
uary would be three weeks, less one day, from
that time; and it might have been a week ear
lier according to her testimony, as, also, it
might have been =i week earlier, or more, by
Weichmann's testimony, for be is not positive
as to the time. What I have said of the regia
ter of tbe Pennsylvania Houae, the headquar
ters of Mudd and Atzerodt, I need not here re
peat. That record proves nothing, aave that
Dr. Mudd was there on the 23d of Deceraber,
which, as we have seen, is a fact, along with
others, to show that tbe meeting at the Nation
al then took place. I have also called the at
tention of tbe Court to the fact that if Mudd
was at that house again in January, and did
not register bis name, that fact proves nothing;
or, if he did, the regiater only provea that he
registered falsely ; either of which facta might
have happened withcat the knowledge of the
witneaa called by tbe accuaed from that houae,
who does not know Samuel A. Mudd person
ally. The teatimony of Henry L. Mudd, his brother,
in support of this alibi, is, that tbe prisoner
was in WasMngton on the 23d of March, and
on the loth of April, four days before the mur-
derl But he does not account for tbe absent
night in January, about which Betty Washing-
25

ton testifies. Thomas Davis was called for the
same purpose, but stated that he was himself
absent one night in January, after the 9th of
that month, and he could not aay whether Mudd
lyas there on that night or not. He does tes
tify to Mudd's absence over night three times.
and fixes one occasion on the night of the 26th
of January. In conaequenoe of his own ab
aence one night in January, thia witness can
not account for tbe absence of Mudd on the
night referred to by Betty Washington.
This matter is entitled to no further atten
tion. It can satisfy no one, and the burden of
proof is upon the prisoner to prove that he was
not in Washington in January last. How can
such testimony convince any rational man that
Mudd waa not here in January, againat the evi
dence of an unimpeached witneas, who aweara
that Samuel A. Mudd was in Washington in
the month of January? Who that has been
examined here as a witneas knows that he waa
not? The Rev. Mr. Evans aweara that he aaw him
in Washington last winter, and that at tbe
aame time he aaw Jarboe, the one coming out
of, and the other going into, a bouae on H
atreet, which he waa informed on inquiry, was
the house of Mrs. Surratt. Jarboe is tbe only
witness called to contradict Mr. Evans, and he
leaves it in extreme doubt whether be doea not
corroborate him, as be awears that be was here
himself last winter or fall, but can not state ex
actly the time. Jarboe's silence on questions
touching hia own credibility leavea no room for
any one to aay that Ma teatimony could im
peach Mr. Evana, whatever be might swear.
Miaa Anna H. Surratt is also called for the
purpoae of impeaching Mr. Evana. It ia auffi
cient to say of her teatimony on that point that
she swears negatively only — that she did not
see either of the persons named at her mother's
bouse. This teatimony neither disproves, nor
does it even tend to disprove, the fact put in
issue by Mr. Evans. No one will pretend,
whatever tbe form of her expression in giving
her testimony, that ahe could say more than
that she did not know tbe fact, as it was im
possible that abe could know who waa, or who
was not, at her mother's house, ca'sually, at a
period so remote. It ia not my purpose, nei
ther is it needful here, to question in any way
the integrity of this young woman.
It is further in testimony that Samuel A,
Mudd was here on the 3d day of March last,
tbe day preceding the inauguration, when
Booth was to strike the traitorous blow , and it
waa, doubtless, only by tbe interposition of
that God who atanda within the shadow and
keeps watch above hia own, that the victim of
this conapiracy waa spared that day from the
assassin's hand that he might complete hiw
work and see the salvation of bis country in
the fall of Richmond and the surrender of it.>i
great army. Dr. Mudd was here on that day
(tbe 3d of March) to abet, to encourage, to
nerve his co-conspirator for the commission of
this great crime. He was carried away by the
awful purpoae which possessed him, and rushed
into the room of Mr. Norton at the National
Hotel in search of Booth, exclaiming excitedly:

386

THE CONSPIRACY TRIAL,

" Pm mistaken ; I thought this was Mr. Booth's
room." He ia told Mr. Booth ia above, on the
next floor. He ia followed by Mr. Norton, be
cause of his rude and excited behavior, and be
ing followed, conacious of his guilty errand, he
turns away, afraid of bimself and afraid to be
found in concert with his fellow-confederate.
Mr, Norton identifies the prisoner, and haa no
doubt that Sarauel A, Mudd is the man.
The Rev, Mr, Evans also swears that, after
the 1st and before tbe 4tb day of March last,
he ia certain that within that tirae, and on the
2d or 3d of March, he saw Dr. Mudd drive into
Washington city. The endeavor is made by
the accused, in order to break down this wit
ness, by proving another alibi. The sister of
the accused. Miss Fanny Mudd, is called. She
testifies that she saw the prisoner at breakfast
in her father's house, on the 2d of March, about
5 o'clock in tbe morning, and not again until
tbe 3d of March at noon. Mrs. Emily Mudd
swears substantially to the same atatement.
Betty WasMngton, called for the accused, aweara
that he was at home all day at work with ber
on the 2d of March, and took breakfast at
home. Frank Washington aweara that Mudd
was at home all day; that he saw bim when
he first came out in the morning about sunrise
from bis own bouse, and knows that he waa
there all day with thera. Which ia correct, the
testimony of his siatera, or tbe teatimony of Ms
servants ? The siatera aay that he was at their
father's house for breakfast on tbe morning of
the 2d of March; tbe servants say be was at
horae for breakfast with thera on that day. If
this testimony is followed, it provea one alibi
too much. It ia impossible, in the nature of
things, that the testimony of all tbeae four wit
nesses can be true.
Seeing this weakness in tbe testimony brought
to prove this aecond alibi, the endeavor is next
made to discredit Mr. Norton for truth; and
two witnesses, not more, are called, who testify
that bis reputation for truth bas suffered by
contested litigation between one of the im
peaching witness''-i and others. Four witnesaea
are called, wl- . ..t-btify that Mr. Norton's
reputation for truth is very good ; that he is a
raan of high character for truth, and entitled to
be believed whether he speaks under the obli
gation of an oath or not. The late Postmaster-
General, Hon. Horatio King, not only sustains
Mr. Norton as a man of good reputation for
truth, but expressly corroborates bis testimony
by atating that in March last, about the 4th of
March, Mr. Norton told him the aame fact to
which he aweara here; that a man carae into
hia roora under exciteraent, alarmed bis sister,
was followed out by himself, and went down
stairs inatead of going up; and that Mr. Nor
ton told him this before the assassination, and
about tbe time of the inauguration. What mo
tive had Mr. Norton at that time to fabricate
ihis statement? It detracts notMng from bis
testimony that he did not at that time mention
the name of thia man to his friend, Mr. King;
becauae it appears from his testimony — and
there is none to question the truthfulness of
bis statement — that at that time he did not
know his name. Neither does it take from

tbe force of this testimony, that Mr. Norton
did not, in coraraunicating this matter to Mr.
King, make mention of Booth's narae; be
cause there was nothing in tho transaction,
at the time, he being ignorant of the name
of Mudd, and equally ignorant of the con
spiracy between Mudd and Booth, to give tbe
leaat occasion for any mention of Booth or of
the transaction further than as he detailed it.
With such corroboration, who can doubt the
fact that Mudd did enter the room of Mr.
Norton, and was followed by him, ou the 3d
of March last? Can he be mistaken in the
man ? Whoever looks at the prisoner carefully
once will be sure to recognize him again.
For the present, I pass from the considera
tion of the testimony showing Dr. Mudd's con
nection with Booth in this conspiracy, with
the remark that it ia in evidence, and, I think,
established, both by the testimony adduced by
tbe prosecution and that by the prisoner, that,
since tbe commencement of this rebellion, John
H. Surratt visited tbe prisoner's house; that he
concealed Surratt, and other rebela and traitors,
in tbe woods near bis bouae, where, for several
days, he furnished tbem with food and bedding;
that the shelter of tbe woods, by nigbt and by
day, was tbe only shelter that the prisoner dare
furnish these friends of hia; that, in November,
Booth viaited him, and remained over night;
that he accompanied Booth, at that time, to
Gardner's, from whom be purchased one of the
horses used on tbe night of tbe assassination
to aid tbe escape of one of his confederates-
that tbe prisoner bad aecret interviewa with
Booth and Surratt, as sworn to by tbe witneas
Weichmann, in the National Hotel, whether on
the 23d of December or iu January is a matter
of entire indifference; that he rushed into Mr,
Norton's room, on the 3d of March, in search
of Booth; and that he was here again on the
lOtb of April, four days before the murder of
the President. Of his conduct after the assas
sination of tbe President, which is confirma
tory of all this — his conspiring with Booth, and
his sheltering, concealing and aiding the flight
of his co-conspirator, this felon assassin — I
shall speak hereafter, leaving hira, for the
present, with the remark that tbe attempt to
prove his character has resulted in showing
bira iu sympathy with tbe rebellion, so cruel
that be shot one of his slaves, and declared his
purpoae to send several of tbem to work on the
rebel batteriea in Richmond.
What othera, beaide Samuel A. Mudd, and
John H. Surratt, and Lewis Payne, did Booth,
after his return from Canada, induce to join
him in this conspiracy to murder tho Preaident,
the Vice-President, the Secretary of State, and
the Lieutenant-General, with the intent there
by to aid the rebellion, and overthrow tbe Gov
ernment aud laws of the United States?
On the 10th of February tbe prisoners,
Arnold and O'Laughlin, came to Washington
and took rooms iu the house of Mrs. Vantyne;
were armed; were there visited frequently by
John AVilkes Booth, and alone; were occasion-
ally_ absent v^hen Booth called, who seemed
anxioua for their return; would sometimes
leave notes for them, and sometimes a request

ARGUMENT OF JOHN A. BINGHAM.

387

that when tbey carae in tbey ahould be told to
corae to the atable. On tbe 18th of March last,
when Booth played in "The Apostate," the wit
ness, Mrs. Vantyne, received from O'Laughlin
complimentary tickets. These persons reraained
there until the 20th of March. Tbey were vis
ited, so far as the witnesa knowa, during their
stay at her bouse, only by Booth, save that on
a single occasion an unknown man came to see
tbem, and remained with them over night.
They told tbe witneas tbey were in the "oil
business." With Mudd, tbe guilty purpose was
sought to be concealed by declaring that he
waa in tbe "land business;" with O'Laughlin
and Arnold it waa attempted to be concealed
by the pretence that they were in tbe " oil busi
ness." Booth, it is proved, had closed up all
connexion with the oil business last September.
There is not a word of testimony to show that
the accused, O'Laughlin and Arnold, ever in
vested, or sought to invest, in any way, or to
any amount, in tbe oil business ; their silly
worda betray them ; tbey forgot, when they
uttered that false statement, that truth is strong,
next to tbe Almighty, and that tlieir crirae
must find them out was the irrevocable and ir
resistible law of nature and of nature's God.
One of their co-conspirators, known as yet
only to the guilty parties to this damnable plot
and to the Infinite, who will unmask and
avenge all blood-guiltiness, comea to bear wit
neaa, unwittingly, againat them. Thia unknown
conapirator, who dates bis letter at South
Branch Bridge, April 6, 1865, mailed and post
marked Cumbejdand, Maryland, and addressed
to John Wilkea Booth, by his initials, "J. W.
B., National Hotel, Washington, D. C, was also
in tbe "oil apeculation." In that letter he says;
"Friend Wilkes ; I received yours of March
12th, and reply as soon as practicable. I aaw
French, Brady, and others, about tbe oil spec
ulation. The subscription to the stock araounts
to eight thousand dollars, and I add one thou
sand myaelf, which ia about all I can stand.
Now, when you sink your well, go deep enough ;
don't fail; everything depends upon you and
your helpers. If you can not get through on
your trip after you strike oil, strike through
Thornton Gap and acroaa by Capon, Eomney,
and down the Branch. I can keep you safe
from all hardships for a year. I am clear of
all surveUlance, now that infernal -Purdy is
beat. * * * "* ¦*"
"I send this by Tom, and, if be don't get
drunk, you wiU get it tbe 9th. At all events,
it can not he understood if lost, * ''^ '''¦
"No more, only Jake will be at Green's with
the funds, [Signed] LON."
That this letter ia not a fabrication is raade
apparent by the testimony of Purdy, whose
name occurs in the letter. He testified that he
had been a detective in the Government service,
and that be bad been falsely accused, as the
letter recitea, and put under arreat; that there
was a noted rebel by the name of Green living
at Thornton Gap; that there waa a servant,
who drank, known aa "Tom ' in the neighbor
hood of South Branch Bridge; that there la
an obscure route through tbe Gap, and as de

scribed in tho letter; and that a man commonly
called " Lon " lives at South Branch Bridge.
If the Court are satisfied — and it is for them
to judge — that tbia letter was written before
the assassination, as it purports to have been,
and on the day of its date, there can be no
question, with any one who reada it, that the
writer waa in the conspiracy, and knew that
the time of its execution drew nigh. If a con
spirator, every word of its contents is evidence
against every other party to this conspiracy.
Who can fail to understand this letter? liis
words, " go deep enough," "don't fail," "every
thing depends on you and your helpers," "if
you can't get through on your trip after you
strike oil, strike through Thornton Gap, etc,
and "I can keep you safe from all hardships
for a year," necessarily imply that when he
"strikes oil" there will be an occasion for a
flight; that a trip, or route, has already been
determined upon ; that he may not be able to
go through by that route, in which event be is
to strike for Thornton Gap, and across by
Capon and Eomney, and down tbe branch, for
the shelter which his co-conspirator offers him.
" I am clear of all surveillance now ;" does any
one doubt that tbe man who wrote those words
wished to assure Booth that he was no longer
watched, and that Booth could safely hide with
him frora Ma pursuers ? Does any one doubt,
from the further expression in this letter, "Jake
will be at Green's with the funds," that this
was a part of the price of blood, or that the
eight thousand dollars subscribed by othera,
and the one thousand additional, subscribed by
tbe writer, were also a part of tbe price to be
paid? "The oil business," which waa the declared
buainess of O'Laughlin and Arnold, was tbe
declared business of the infaraous writer of
thia letter; waa tbe declared business of John
H. Surratt; waa the declared business of Booth
hiraself, as explained to Chester and Payne;
was "the business" referred to in bis telegrams
to O'Laughlin, and meant tbe murder of the
President, of hia Cabinet, and of General
Grant. The first of these telegrams is dated
Washington, 13tb March, and ia addressed to
M. O'Laughlin, No. 57 North Exeter street, Bal
timore, Maryland, and ia as follows: ',' Don't
you fear to neglect your business; you had
better come on at once. J. Booth." The tele
graphic operator, Hoffman, who sent this dis
patch from WasMngton, awears that John
Wilkes Booth delivered it to him in person on
the day of its date; and tbe handwriting of the
original telegram is eatablished beyond ques
tion to be that of Booth. Tbe other telegram
ia dated Washington, March 27, addros.sed "M.
O'Laughlin, Esq., 57 North Exeter street, Balti
more, Maryland, and ia as follows: "Get word
to Sam. Come on, with or without hira, on
Wednesday morning. We aeU that day, sure;
don't faU. J. Wilkea Booth." Tbe original of
this telegram is also proved to be in the hand
writing of Booth. The sale referred to, in this
last telegram, was doubtless tbe murder of the
Preaident, and others — tbe "oil speculation,"
in which the writer of the letter from South
Branch Bridge, dated April 6, had taken a

388

THE CONSPIRACY TRIAL.

thousand doUara, and in which Booth said
there was money, and Sandera said there was
money, and Atzerodt Said there was money.
Tbe words of this telegram, " get word to Sam,"
mean Sarauel Arnold, his co-conspirator, who
bad been with Mra during all bis stay in Wash
ington, at Mra. Vantyne'a. Tbeae partiea to
thia conspiracy, after they had gone to Balti
raore, had additional correspondence with
Booth, which tbe Court muat infer had relation
to carrying out tbe purposes of their confede
ration and agreement. The colored witness,
Williams, testifies that John Wilkes Booth
banded hira a letter for Michael O'Laughlin,
and another for Samuel Arnold, in Baltimore,
some time in March last; one of which he de
livered to O'Laughlin at the theater in Balti
raore, and the other to a lady at tbe door where
Arnold boarded in Baltiraore.
Their agreement and co-operation in tbe
common object having been thus eatablished,
tbe letter written to Booth by the prisoner
-Vrnold, dated March 27, 1865, the handwriting
of which is proved before the Court, and which
was found iu Booth's possession after tbe assas
sination, becomes testimony againat O'Laugh
lin, aa well aa againat the writer, Arnold,
becauae it is an act done in furtherance of their
•uirabination. That letter is as follows:
"De.\r John: Was business ao important
that you could not remain in Baltimore till I
.".aw you? I came iu as soon as I could, but
found you bad gone to Washington. I called
also to see Mike, but learned from bia mother
lie had gone out with you and bad not returned.
I concluded, therefore, be had gone with you.
How inconsiderate you bave been! When I
left you, you atated that we would not meet in a
month or so, and, therefore, I made application
for employraent, an answer to which 1 ahall re
ceive during the week. I told my parents I bad
ceased with you. Can I, then, under existing
circumstances, act as you request? You know
full well that tbe Government suspicions aome
thing ia going on there; therefore, the under
taking ia becoming more complicated. Why not,
for the present, deaist, for varioua reaaona,
which, if you look into, you can readily aee
without my making any mention thereof. You,
nor any one, can cenaure me for my preaent
course. You bave been its cause, for bow can
1 now come after telling them I had left you?
Suspicion reata upon me now from my whole
family, and even partiea in tbe country. I will
be compelled to leave home anyhow, and how
soon I care not. None, no, not one, were more
in favor of tbe enterprise than myself, and to
day would be there bad you not done aa you
have. By this I mean raanner of proceeding.
I am, as you well know, in need, I am, as you
may say, in rags; whereas, to-day, I ought to
be well clothed, I do not feel right stalking
about with means, and more from appearances
a beggar. I feel my dependence. But even all
thia would have been, and waa, forgotten, for I
was one with you. Time more propitious will
arrive yet. Do not act rashly or in baate. I
would prefer your first query, 'Go and aee how
it will be taken in Richmond,' and, ere long, I

ahall be better prepared to again be with you, 1
dislike writing. Would sooner verbally make
known my views. Yet your now waiting causes
me thus to proceed. Do not in. anger peruse
tbia. Weigh all I have aaid, and, as a rational
man and a friend, you can not cenaure or up
braid my conduct. I sincerely trust this, nor
aught else that shall or may occur, will ever be
an obstacle to obliterate onr former friendship
and attachment. Write me to Baltimore, as I
expect to be in about Wednesday or Thursday;
or, if you can possibly come on, I will, Tuesday,
meet you at Baltimore at B.
" Ever, I subscribe myself, your friend, "SAM.
Here is the confession of tbe priaoner Arnold,
that he waa one with Booth in thia conspiracy;
the further confession that they are auapected
by tbe Government of tbeir country, and the
acknowledgment that since they parted Booth
had communicated among other tbinga, a aug-
gestion which leads to the remark in tbia letter,
" I would prefer your firat query, 'Go and see
how it will be taken at Richmond,' and ere long
I ahall be better prepared to again be with you,"
This ia a declaration that affects Arnold, Booth,
and O'Laughlin alike, if tbe Court are satis
fied, and it is difficult to see bow they can bave
doubt on the subject, that the matter to be re
ferred to Richmond is tbe matter of the aaaaa
aination of the President and others, to effect
which these parties had previously agreed and
conspired together. It is a matter in testimo
ny, by the declaration of John H. Surratt, who
ia as clearly proved to bave been in this con
spiracy and murder as Booth himself, .that
about the very date of this letter, the 27tb of
March, upon tbe suggestion of Booth, 'and with
his knowledge and consent, he went to Rich
raond, not only to see "how it would be taken
there," but to get funds with which to carry
out the enterprise, as Booth had already de
clared to Chester in one of his laat interviewa.
when he aaid that he or " some one of the par
ty" would be oonatrained to go to Richmond
for funds to carry out the conspiracy. Surratt
returned from Richmond, bringing with him
aome part of the money for which he went, and
waa then going to Canada, and, as tbe teati
mony discloaes, bringing with bim the diapatchea
from Jefferaon Davis to bis chief agents in
Canada, which, as Tbompaon declared to Con
over, made tbe proposed aasaasination "all
right." Surratt, after seeing the partiea here,
left immediately for Canada, and delivered his
diapatchea to Jacob Tbompaon, the agent of
Jefferaon Davis. This was done by Surratt
upon the suggestion, or in exact accordance
with the suggestion of Arnold, made on the
27tb of March in Ma letter to Booth juat read,
and yet you are gravely told that four weeks
before tbe 27th of March, Arnold had aban
doned the conapiracy.
Surratt reached Canada with tbeae diapatchea
as we have aeen, about the 6th or 7th of
April last, when the witness Conover saw tbem
delivered to Jacob Thompson and heard tbeir
contenta stated by Tbompaon, and the decla
ration from bim that these dispatches made it

ARGUMENT OP JOHN A. BINGHAM.

389

"all right." That Surratt was at that time in
Canada, is not only eatabliahed by the testi
mony of Conover, but it ia also iu evidence
that be told Weichmann on the 3d of April that
he was going to Canada, and on that day left
for Canada, aud afterward, two letters ad-
dreaaed by Surratt, over tbe fictitious signature
of John Harrison to his mother and to Miss
Ward, dated at Montreal, were received by
tbem on the 14th of April, as testified by
Weichmann and by Miss "Ward, a witneas
called for the defense. Thus it appears that
the condition named by Arnold in hia letter had
been complied with. Booth had " gone to Rich
mond," in the person of Surratt, "to aee bow
it would be taken." Tbe rebel autboritiea at
Richmond had approved it, the agent bad re
turned, and Arnold waa, in his own words,
thereby better prepared to rejoin Booth in the
prosecution of this conspiracy.
To this end Arnold went to Fortress Mon
roe. As his letter expressly declares. Booth
said when they parted, " we would not meet in
a month or ao, and therefore I made application
for employment — an answer to which I shall
receive during the week." He did receive the
answer that week from FortreBa Monroe, and
went there to await the "more propitious time,"
bearing with him tbe weapon of death which
Booth had provided, and ready to obey his call,
as tbe act had been approved at Richmond and
been made " all right." Acting upon the same
fact that the conapiracy bad been approved in
Richmond, and the funds provided, O'Laughlin
came to Washington to identify General Grant,
the person who was to become tbe victim of
hia violence in tbe final conaummation of tbia
crime — General Grant, whom, as is averred in
the specification, it had become the part of
O'Laughlin, by his agreement in this conspira
cy, to kill and murder. On the evening pre
ceding the assassination — the 13tb of April —
by the testimony of three reputable witnesses,
against whose truthfulnesa not one word ia
uttered here or elaewbere, O'Laughlin went
into tbe house of the Secretary of War, where
General Grant then was, and placed himaelf
iu poaition in the hall where he could see bim,
having declared before be reached that point,
to one of theae witnesses, that he wished to
see General Grant. Tbe house was brilliantly
illuminated at the time; two, at leaat, of tbe
witneaaes conversed with tbe accuaed, and the
other atood very near to him, took special no
tice of his conduct, called attention to it, and
auggeated that be be put out of tbe houae, and
he was accordingly put out by one of the wit
nesaea. These witnesses are confident, and
have no doubt, and ao swear upon tbeir oaths,
that Michael O'Laughlin ia tbe man who was
present on that occaaion. There is no denial
ou the part of the accused that he waa in Waab-
ington during the day and during the night of
April 13th, and also during tbe day and during
the nigbt of tbe 14tb; and yet, to get rid of
this testimony, recourse ia had to that common
device — an alibi; a device never, I may aay,
more frequently resorted to than in this trial.
But what an alibi I Nobody is called to prove
it, save some men who, by their own testimony.

were engaged in a drunken debauch through
tbe evening. A reasonable man who reada
their evidence can hardly be expected to allow
it to outweigh tho united testimony of three
unimpeached and unimpeachable witnesses
who were clear in tbeir statements — who en
tertain no doubt of tbe truth of what they aay
— whoae opportunitiea to know were full and
complete, aud who were oonatrained to take
apecial notice of the prisoner by reason of bis
extraordinary conduct.
These witnesses describe accurately the ap
pearance, stature, and complexion of the ac
cused, but becauae they deaoribe bia clothing
as dark or black, it is urged that as part of
bia clothing, although dark, was not black,
tbe witneaaea are mistaken. O'Laughlin and
bis drunken companions (one of whom awears
that he drank ten timea that evening) were
atroUing in tbe streets and in tbe direction of
tbe houae of tbe Secretary of War, up tbe Av
enue; but you are aaked to believe that tbeae
witnesses could not be mistaken in saying they
were not off tbe Avenue above 7tb street, or
on K street. I venture to aay that no man
who reads tbeir testimony can determine sat
isfactorily all the places that were viaited by
O'Laughlin and hia drunken aasociates that
evening tfrom seven to eleven o'clock, P. M.
All this time, from aeven to eleven o'clock, P.
M., muat be accounted for satisfactorily before
tbe alibi can be established. Loughran does
not account for all tbe time, for he left O'Laugh
lin after seven o'clock, and rejoined him aa he
says, "I suppose about eight o'clock." Grillet
did not meet him until half-past ten, and then
only casually saw bim in paaaing the hotel.
May not Grillet have been mistaken aa to tbe
fact, although be did meet O'Laughlin after
eleven o'clock the same evening, aabe swears?
Purdy swears to aeeing him in the bar with
Grillet about balf-past ten, but, as we bave
seen by Grillet's testimony, it must have been
after eleven o'clock. Murphy contradicts, as
to time, both Grillet and Purdy, for be aays it
was half-past eleven or twelve o'clock M'hen be
and O'Laughlin returned to Rullman's, from
Platz's, and Early swears the accused went
from RuUman'a to 2d street, to a dance about
a quarter past eleven o'clock, when O'Laughlin
took the lead in the dance and stayed about
one hour. I follow these witneasea no further.
Tbey contradict each other, and do not account
for O'Laughlin all the time from aeven to
eleven o'clock. I repeat, that naman can read
tbeir testimony without finding contradictions
raost material as to time, and coming to the con
viction that tbey utterly fail to account for
O'Laughlin's whereabouts on that evening.
To establish an alibi the witnesses must know
the fad and testify to it. Loughran, Grillet,
Purdy, Murphy, and Early utterly fail to prove
it, and only succeed in showing that they did
not know where O'Laughlin was all this time,
and that some of them were grossly mistaken
in what tbey testified, both as to time and place.
The testimony of James B, Henderson is equal
ly unsatisfactory. He is contradicted by other
testimony of the accused as to place. He says
O'Laughlin went up the Avenue, above 7th

390

THE CONSPIRACY TRIAL,

atreet, but that he did not go to 9th street.
The other witnesses swear he went to 9th
street. He swears he went to Canterbury
about nine o'clock, after going back from 7th
street to RuUraan's. Loughran swears that
O'Laughlin was with Mra at tbe corner of the
Avenue and 9th street at nine o'clock, and
ivent frora there to Canterbury, while Early
swears that O'Laughlin went up as fares llth
street, and returned with hira and took supper
at V/elcker's, about eight o'clock. If tbeae
witnesses prove an alibi, it ia really against
each other. It ia folly to pretend that they
prove facta which make it impoasible that
O'Laughlin could have been at the house of
Secretary Stanton, as three witnesses swear
be was, ou tbe evening of the 13th of April,
looking for General Grant.
Has it not, by the testimony thus reviewed,
been established prima facie that iu tbe months
of February, March and April, O'Laughlin
had combined, confederated, and agreed with
John Wilkea Booth and Samuel Arnold to
kill and murder Abraham Lincoln, William
H. Seward, Andrew Johnson, and Ulysses S,
' Grant? Is it not established, beyond a shadow
of douTDt, that Booth bad so conspired
with the rebel agents in Canada as early as
October last: that he waa in search of agents
to do the work on pay, in tbe interests of the
rebellion, and that in this apeculation Arnold
and O'Laughlin bad joined as early as Feb
ruary ; that then, and after, with Booth and
Surratt, they ivere in tbe "oil business," which
waa the buaineas of assassination by contract
as a speculation ? If this conspiracy on the
part of O'Laughlin with Arnold is established,
even prima facie, the declarations and acts of
Arnold and Booth, tbe other conapirators, in
furtherance of the common deaign, is evidence
against O'Laughlin as well as against Arnold
himself, or the other partiea. The rule of law
is, that tbe act or declaration of one conapir
ator, done in pursuance or furtherance of tbe
coraraon design, is the act or declaration of
all the conspirators. 1 Wharton, 706.
The letter, therefore, of bis co-conspirator,
Arnold, is evidence against O'Laugbliubecauae
it is an act in tbe prosecution of tbe common
conspiracy, suggesting what should be done in
order to make it effective, and which sugges
tion, as baa been stated, was foUowed out.
The defenae haa attempted to avoid the force
of tbia letter by reciting tbe atateraent of
Arnold, made, to Horner at the time be waa
arrested, in which be declared, among other
things, that the purpose was to abduct Presi
dent Lincoln and take bim South ; that it was
to be done at tbe theater by throwing tbe
President out of the box upon the floor of the
stage, when the accused was to catch bim.
Tbe very announcement of this testimony ex
cited derision that sucb a tragedy meant only
to take the President and carry him gently
away I This pigmy to catch tbe giant as the
asaaasins burled Mm to the floor from an ele
vation of twelve feet 1 The Court haa viewed
tbe theater, and must be satiafled that Booth,
in leaping from tbe Preaident's box, broke bis
limb. The Court can not fail to conclude that

this statement of Arnold was but another silly
device, 'like that of "the oil busineaa," which,
for the time being, he employed to hide from
the knowledge of his captor tbe fact that tbe
purpose waa to murder the President. No
man can, for a moment, believe that any one
of these conspiratora hoped or desired, by such
a proceeding as that stated by tbe prisoner, to
take the Preaident alive in the presence of
thousands assembled in the theater after he had
been thus thrown upon the floor of tbe atage,
much less to carry bim through tbe city, through
the lines of your army, and deliver bim into
tbe bands of tbe rebels. No such purpoae waa
expressed or hinted by tbe conspirators in Can
ada, who comraissioned Booth to let these as
sassinations on contract. I shall waste not a
moment more in combatting such an absurdity.
Arnold does confess that he was a conspira
tor -with Booth in this proposed murder : that
Booth had a letter of introduction to Dr. Mudd;
that Booth, O'Laughlin, Atzerodt, Surratt, a
man with an alias, " Mosby," and another
whora be does not know, and himself, were
parties to this conspiracy, and that Booth bad
furnished them all with arms. He concludes
this remarkable atatement to Horner with the
declaration that at that time, to wit, tbe firat
week of March, or four weeks before be went
to Fortress Monroe, he left the conspiracy, and
that Booth told him to sell bis, arms if be chose.
This is sufficiently anawered by the fact that,
four weeks afterward, he wrote his letter to
Booth, which was found in Booth's posseaaion
after tbe assassination, suggesting to Mm what
to do in order to make the conspiracy a suc
cess, and by tbe further fact that at tbe very
moment he uttered these declarations, part of
bis arms were found upon Ms person, and tbe
rest not disposed of, but at hia father's bouse.
A party to a treasonable and murderous
conspiracy against tbe government of hia coun
try can not be held to have abandoned it be
cause he makes such a declaration as this, when
be is in tbe bands of tbe officer of tbe law, ar--
reated for Ma crime, and especially when his
declaration is in conflict with and expressly
contradicted by his written acts, and unsupport
ed by any conduct of his which becomes a citi
zen and a man.
If be abandoned the conspiracy, why did be
not make known tbe fact to Abraham Lincoln
and bis constitutional advisers that these men,
armed with the weapons of asaasaination, were
daily lying in wait for tbeir Uvea ? To pre
tend that a man who thua conducts himself for
¦n'eeks after the, pretended abandonment, vol
unteering advice for the successful prosecution
of the conspiracy, the evidence of which is in
writing, and about which there can be no mis
take, has, in fact, abandoned it, is to insult tlio
coraraon understanding of raen. O'Laughlin
having conspired with Arnold to do this mur
der, is, therefore, as much concluded by the
letter of Arnold of the 27tb of March as is Ar
nold hiraself. Tho further testimony touching
O'Laughlin, that of Streett, eatabliabea the fact.
that about tbe 1st of April he saw him in confl-
dential conversation with J. Wilkes Booth, in
tbia city, on tbe Avenue. Another man, whom

-ARGUMENT OF JOHN A. BINGHAM.

391

the witness does not know, was in conversation.
O'Laughlin called Streett to one aide, and told
him Booth was busily engaged with bis friend —
was talldng privately to his friend. This re
mark of O'Laughlin is attempted to be account
ed for, but the attempt failed; Ms counsel tak
ing tbe pains to ask what induced O'Laughlin
to make tbe remark, received tbe fit reply : " I
did not see tbe interior of Mr. O'Laughlin's
raind ; I can not tell." It is tbe province of this
Court to infer why that remark was made, and
what it signified.
That John H. Surratt, George A. Atzerodt,
Mary E. Surratt, David E. Hei;old, aud Louis
Payne, entered into this conspiracy with
Booth, is so very clear upon tbe testimony, that
little time need be occupied iu bringing again
before tbe Court tbe evidence which establishes
it. By tbe testimony of Weichmann we find
Atzerodt in February at the house of the pria
oner, Mrs. Surratt. He inquired for ber or for
John when he came and remained over nigbt.
After this and before the assassination he visit
ed there frequently, and at that bouse bore the
name of " Port Tobacco," the narae by which he
was known in Canada among the conspiratora
there. The same witness testifies that he met
bim on. the street, when be said he was going
to visit Payne at the Herndon House, and also
accompanied bim, along with Herold and John
H. Surratt, to the theater, in March, to hear
Booth play in "Tbe Apostate." At tbe Pennsylva
nia House, one or two weeks previous to tbe
assassination, Atzerodt raade tbe stateraent to
Lieutenant Keira, when asking for his knife
which he had left in Ma room, a knife corres
ponding in size with the one exhibited in Court,
"I want that; if one fails I want the other,"
wearing at the sarae time his revolver at his
belt. He also stated to Greenawalt, of the
Pennsylvania House, in March, that be was
nearly broke, but had friends enough to give
Mm aa much money as would see him through,
adding, " I am going away some of these days,
but will return with as rauch gold aa will keep
me all my lifetime." Mr. Greenawalt also says
that Booth had frequent interviews with Atze
rodt, aometimes in the room, and at other times
Booth would walk in and immediately go out,
Atzerodt following,
John M. Lloyd testifiea that aome six weeks
before the assassination, Herold, Atzerodt, and
John H. Surratt came to Ms house at Surratts
ville, bringing with them two Spencer carbines
with ammunition, also a, rope and wrench.
Surratt asked the witnesa to take care of them
and to conceal the carbinea. Surratt took him
into a room in tbe house, it being hia mother's
house, and showed tbe witness where to put the
carbines, between the joists on tbe second floor.
The carbines were put there according to bis
liirections, and concealed, Marcua P. Norton
aaw Atzerodt in conversation with Booth at tbe
National Hotel about tbe 2d or 3d of March ;
the converaation was confldential, aud the
witness accidentally beard tbem talking in re
gard to President Johnson, and say that " the
class of witnesses would be of that character
that there could be little proven by tbera."
This conversation may throw some light on tbe

fact that Atzerodt was found in posseaaion of
Booth's bank book I
Colonel Nevina testifies that on the 12th of
AprU last ha aaw Atzerodt at tbe Kirkwood
House; that Atzerodt there asked Mra, a
stranger, if ho know where Vice-President
Johnson was, and where Mr. Johnson's room
was. Colonel Nevina ahowed Mra where the
room of the Vice-President was, and told bim
that the Vice-President was then at dinner.
Atzerodt then looked into the dining-room,
where Vice-Preaident Johnaon was dining
alone. Robert R. Jones, the clerk at the Kirk
wood House, states that on the 14tb' the day of
the murder, two days after this, Atzerodt reg
istered his narae at the hotel, G. A. Atzerodt,
and took No. 126, retaining tbe roora that day,
and carrying away the key. In this room, af
ter tbe aaaaaaination, were found the knife and
revolver with which be intended to murder tbe
Vice-President. The testimony of all theae witneasea leavea
no doubt that the prisoner, George A. Atzerodt,
entered into this conspiracy with Booth; that
be expected to receive a large compensation
for the service that be would render in ita exe
cution ; that be had undertaken tbe assassina
tion of tbe Vice-President for a price; tbatbe,
with Surratt and Herold, rendered the import
ant service of depoaiting the arma and ararau-
nition to be used by Booth and his confederates
as a protection in their flight after tbe conapir
acy bad been executed ; and that he was care
ful to have bia intended victim pointed out to
hira, and tbe roora he occupied in the hotel, ao
that when he carae to perform bis horrid work
be would know precisely where to go and whom
to strike. '
I take no further notice now of tbe prepara
tion which this prisoner made for tbe successful
execution of this part of the traitorous and
murderoua deaign. The question ia, did be en
ter into thia conspiracy ? His language, over
heard by Mr. Norton, excludes every other
concluaion. Vice-President Johnson's name
was mentioned in that secret conversation with
Booth, and tbe very suggestive expression was
made between tbem that " little could be proved
by tbe witnesses." His confession in his de
fenae is conclusive of his guilt.
ThatPayne wasin this conspiracy ia confessed
in the defense made by his counsel, aud is also
evident from the facts proved, that when tbe con
apiracy waa being organized in Canada by
Tbompaon, Sandera, Tucker, Cleary, and Clay,
tbia man Payne atood at the door of Thompson ;
was recommended and indoraed by Clay with
the words, " We trust bim ; " that after coming
hither he first reported himself at tbe bouse of
Mrs. Mary E. Surratt, inquired for ber and for
John H, Surratt J remained there for four days,
having conversation with both of thera ; hav
ing provided hiraself with means of disguise,
waa also supplied with pistols and a knife,
aucb aa be afterward used, and spurs, prepara
tory to his flight ; was seen with John H, Sur
ratt, practicing with knives auch as those
employed in this deed of assassination, and
now before the Court ; was afterward provided
with lodging at tbe Herndon House at the in-

392

THE CONSPIRACY TRIAL.

stance of Surratt ; was visited there by Alzerodt,
and attended Booth and Surratt to Ford's thea
ter, occupying with those parties the box, as I
believe aud which we may readily infer, in
which tbe President was afterward murdered.
If further testimony be wanting that be bad
entered into the conspiracy, it may be found in
the fact sworn to by Weichmann, whose testi
mony no candid man will diacredit, that about
the 20th of March, Mrs. Surratt, in great ex
citement, and weeping, said that ber son John
had gone away not to return, when about three
hours subsequently, in tbe afternoon of tbe
sarae day, John H. Surratt re-appeared, carae
rushing iu a state of frenzy into the room, in
his mother's bouae, armed, declaring be would
shoot whoever came into the room, and pro
claiming that his proapecta were blaated and
bia hopea gone ; that aoon Payne came into tbe
aame room, also armed and under great excite
ment, and was immediately followed by Booth,
with his riding-whip in his band, who walked
rapidly across the floor from aide to side, ao
much excited that for some time he did not no
tice the presence of the witness. Observing
Weichmann, the parties then withdrew, upon a
suggestion frora Booth, to an upper room, and
there had a private interview. From all that
transpired on that occasion, it is apparent that
when these parties left tbe house that day,
it waa with the full purpose of completing some
act essential to the final execution of tbe work
of assassination, in conformity with their pre
vious confederation and agreement. They re
turned foiled- — from what cause is unknown —
dejected, angry, and covered with confusion.
It ia almost imposing upon the patience of
the Court to consurae time in demonstrating the
fact, which none conversant with tbe testimony
of this case can for a moraent doubt, that John
H. Surratt and Mary E. Surratt were as aurely
in tbe conapiracy to raurder the President as
was John Wilkes Booth himself. You bave tbe
frequent interviews between John H. Surratt
and Booth, bis intimate relations with Payne,
bis visits from Atzerodt and Herold, bis deposit
of tbe arms to cover tbeir flight after the con
spiracy ahould have been executed ; bia own
declared viait to Richmond to do what Booth
himself said to Chester muat be done, to-wit,
that he or some of the party must go to Rich
mond in order to get funds to carry out the
conapiracy ; that he brought back with him
gold, the price of blood, confessing himself that
he was there ; that he immediately went to
Canada, delivered diapatchea in cipher to Jacob
Tbompaon from Jefferaon Davia, which were in
terpreted and read by Tbompaon in the prea
ence of the witness Conover, in which tbe con
spiracy was approved, and, in tbe ISjnguage of
Thompson, the proposed aaaaaaination waa
"made all right."
One other fact, if any other fact be needed,
and I have done with tbe evidence which provea
that John H. Surratt entered into this combina
tion ; that is, that it appears by the testimony
of the witness, tbe cashier of tbe Ontario, Bank,
Montreal, that Jacob Thompson, about the day
that these dispatches were delivered, and while
Surratt was then present in Canada, drew from

I that bank of the rebel funda there on deposit
tbe sum of one hundred and eighty thousand
dollars. This being done, Surratt finding it
safer, doubtless, to go to Canada for tbe great
bulk of funda which were to be diatributed
among theae hired assaeaina than to attempt
to carry it through our lines direct from Rich
mond, immediately returned to Waahington.
and was present in this city, as is proven by
the testimony of Mr. Eeid, on the afternoon of
the 14<A of April, tbe day of tbe assassination,
booted and spurred, ready for flight when
ever the fatal blow should bave been struck.
If he was not a conspirator and a party to this
great crime, bow comes it that from that hour
to this no man baa seen him in tbe capital, nor
haa he been reported anywhere outaide of Can
ada, having arrived in Montreal, aa tbe teati
mony shows, on the 18tb of April, four days after
tbe murder? Nothing but his conscious coward
guilt could possibly induce him to abaent him
self from hia mother, aa he does, upon her
trial. Being one of these conspirators, as
charged, every act of his in tbe prosecution of
this crime is evidence against the other parties
tp tbe conapiracy.
•¦ That Mary E. Surratt is aa guilty aa her son
of having thua conapired, combined and confed- '
ated to do thia murder, in aid of this rebellion,
ia clear. First, ber bouse was the headquarters-.
of Booth, John H. Surratt, Atzerodt, Payne aud
Herold. She is inquired for by Atzerodt; she
ia inquired for by Payne, and she ia visited by ¦
Booth, and holds private conversations with
bim. Hia picture, together with that of the chief ' ¦
conspirator, Jefferaon Davis, ia found in her
bouae. She aends to Booth for a carriage to
take her, on the llth of April, to Surrattaville,
for tbe purpose of perfecting the arrangement
deemed necessary to the succesaful execution of
tbe conspiracy, and especially to facilitate and
protect the conapiratora in tbeir escape from
justice. On that occaaion Booth, having dis
posed of Ms carriage, gives to the agent she
employed ten dollars, with which to hire a con
veyance for that purpose. And yet tbe pre
tence is made that Mrs. Surratt went on tbe
lltb to Surrattsville excluaively upon her own
private and la"wfnl buainess. Can any one tell,
if that be so, how it comea that abe sbo'uld apply
to Booth for a conveyance, and how it comes
that be, of hia own accord, having no convey
ance to furniah her, should send her ten dollars
with which to procure it? There is not the
slightest indication that Booth was under any
obligation to ber, or that she had any claim
upon him, either for a conveyance or for the
means with which to procure one, except that
he was bound to contribute, being tbe agent of
the conspiratora in Canada and Richmond,
whatever money might be neceasary to tbe con
aummation of this infernal, plot. On that day,
tbe lltb of April, John H. Surratt had not re
turned from Canada with the funds furnished
by Thompson 1
Upon that journey of the lltb, the accused,
Mary E. Surratt, met tbe witnesa, John M.
Lloyd, at Uniontown. She called him ; he got
out of his carriage and came to her, and she
whispered to him in so low a tone that her at-

ARGUMENT OP JOHN A. BINGHAM.

893

tendant oould not bear her worda, though Lloyd,
to whom they were spoken, did distinctly hear
them, and testifiea that she told him be should
have those "shooting-irons" ready, meaning
the carbines which her son and Herold and At
zerodt had deposited with bim, and added tho
reason, "for tbey would aoon be caUed for."
On the day of the aasasainatiou she again sent
for Booth, had an interview with him in
her own houae, and immediately went again to
Surrattaville, and then, at about six o'clock in
tho afternoon, she delivered to Lloyd a field-
glass and told Mm " to have two bottles of
whisky and the carbinea ready, as they would
be called for that nigbt." Having thus per
fected the arrangement, she returned to Waah
ington to her own bouae, at about half-past
eight o'clock in the evening, to await the final
result. How oould this woman anticipate, on
Friday afternoon, at six o'clock, that these arms
would be called for and would be needed that
night, unless she was in the conspiracy and
knew the blow was to be struck, and the fiight
of the assassins attempted by that route ? Was
not tbe private conversation which Booth held
with her in her parlor ou the afternoon of the
14tb of Aprilj just before she left ou this busi
neaa, in relation to the orders she should give
to have the arms ready?
An endeavor is made to impeach Lloyd. But
the Court will observe that no witness has been
called who contradicts Lloyd's statement iu any
material matter; neither baa hia general char
acter for truth been aaaailed. How, then, ia he
impeached? Ia it claimed that bis testimony
shows that he was a party to tbe conspiracy ?
Then it ia conceded by thoae who aet up any
such pretence that there waa a conspiracy. A
conspiracy between whom ? There can be no
conspiracy without the co-operation or agree
ment of two or more persons. Who were tbe
other partiea to it? "Waa it Mary E. Surratt?
Waa it John H. Surratt, George A, Atzerodt,
David E. Herold? Those are the only peraona,
so far aa his own testimony or tbe testiraony of
any other witness discloses, with whom he had
any communication whatever on any subject
immediately or remotely touching this con
spiracy before the assassination. Hia receipt
and concealment of the arms are unexplained
evidence that he was in tbe conspiracy.
The explanation is that he was dependent
upon Mary E. Surratt; was ber tenant; and
bis declaration, given in evidence by the ac
cused herself, is that " she had ruined him, and
brought this trouble upon him." But because
he was weak enough, or wicked enough, to be
come tbe guilty depositary of these arras, and to
deliver them on tbe order of Mary E. Surratt to
the assassins, it does not follow that be ia not to
be believed on oath. It is said tbatbe concealed
tbe facts that the arma had been left and called
for. He so testifies bimself, but he gives the
reason that he did it only from apprehension of
danger to bis life. If be were in the conapiracy,
¦bis general credit being unchallenged. Ma tes
timony being uncontradicted in any material
matter, be is to be believed, and can not be dis
believed if bia testimony is substantially cor-
roberated bv other reliable witnesses. Is he

not corroborated touching tbo deposit of arms
by the fact that the arms are produced in court,
one of which was found upon the person of
Booth at the time he was overtaken and slain,
and which is identified as tbe same which had
been left with Lloyd by Herold, Surratt and At
zerodt ? Is ho not corroborated iu the fact of
the first interview with Mrs. Surratt by the
joint testimony of Mrs. Offut and Louia J.
Weichmann, each of whom testified (and "they
are contradicted by no one), that on Tuesday,
the llth day of April, at Uniontown, Mrs. Sur
ratt called Mr. Lloyd to come to ber, wMch he
did, and she held a secret conversation with
hira? Ia he not corroborated as to the laat con
veraation on the Hth of' April by tbe testimony
of Mra. Offut, who aweara that upon the 14tb
of April ahe saw tho priaoner, Mary E. Surratt,
at Lloyd'a houae, approach and bold conversa
tion with him ? Is be not corroborated in the
fact, to which he swears, that Mra. Surratt de
livered to bim at that time tbe field-glaas wrap-';
ped in paper, by tbe sworn statement of Weicb- ;
maun, that Mrs. Surratt took with her on that
occasion two packages, both of which were
wrapped in paper, and one of which be de
scribes as a small package about six inches in
diameter? Tbe attempt was made by calling
Mrs. Offut to prove that no sucb package was
delivered, but it failed; abe merely atates that
Mrs. Surratt delivered a package wrapped in
paper to her after her arrival there, and before
Lloyd came in, which was laid down in tbe
room. But whether it was the package about
which Lloyd testifies, or the other package of
the two about which Weichmann testifies, as hav
ing been carried there that day by Mrai Surratt,
doea not appear. Neither doea thia witneas
pretend to say that Mrs. Surratt, after she bad
deUvered it to her, and the witness had laid it
down in the room, did not again take it up, if
it were tbe same, and put it in the hands of
Lloyd. She only knows that she did not see
that done ; but she did see Lloyd with a pack
age like the one she received iu the room before
Mrs. Surratt left. How it came into bis posses
sion she is not able to state; nor what the pack
age was that Mrs. Surratt first handed ber; nor
which of the packages it was she afterward aaw
in tbe handa of Lloyd.
But there is one other fact in thia caae that
puts forever at reat the queation of the guilty '
participation of tbe prisoner, Mrs. Surratt, in
this conspiracy and murder; and that is, that
Payne, who bad lodged four days in ber houae,
who, during all that time, had aat at her table,
and who had often converaed with her, when
the guilt of his great crime was upon him, aud
he knew not where else he could ao aafely go to
find a co-conspirator, and he could trust none
that was not, like bimself, guilty, with even the
knowledge of his presence, under cover of
darkness, after wandering for three daya and
nigbta, skulking before the purauing officers of
justice, at the hour of midnight, found his way
to the door of Mra. Surratt, rang the bell, was
admitted, and upon being asked, "Whom do
you want to see?" replied, "Mrs. Surratt." He
waa then aaked by the officer, Morgan, what he
came at that time of night for, to which he re-

Y M

394

THE CONSPIRACY TRIAL.

plied, " to dig a gutter iu tbe morning ; Mra,
Surratt had sent for bim." Afterward be aaid
" Mrs. Surratt knew be was a poor man and
came to him," Being aaked where he laat worked,
he replied, "sometimea on 'I' street," and
where he boarded, he replied, " be had no board
ing-house, and was a poor man who got his
living with the pick " which he bore upon his
shoulder, having stolen it from the intrench
ments of the Capital. Upon being pressed
again why he came there at that time of nigbt
to go to work, he answered that he simply
called to see what time he should go to work in
the morning. Upon being told by the officer,
who, fortunately, had preceded him to this
house, that he would bave to go to tbe Provost
Marshal's office, he moved and did not answer,
whereupon Mrs. Surratt was asked to step into
the hall and atate whether ahe knew this man.
Raising her right hand, she exclaimed, "Before
God, sir, I have not seen that man before ; I
have not hired him; I do not know anything
about him." The hall was brilliantly lighted.
If not one word had been said, the mere act
of Payne, in flying to ber bouse for shelter,
would have borne witness against her atrong
as proofs from Holy Writ. But when she de
nies, after hearing his declarations that she
had sent for him, or that abe bad gone to bim
and hired him, and calla her God to witneas
that she bad never seen hira, and knew nothing
of bim, when in point of fact, she had seen
bim fbr four successive days in her own bouse,
in the aame clothing which he then wore, who
can reaist for a moraent the concluaion that
theae partiea were alike guilty ?
The testimony of Spangler's complicity is
conclusive and brief. It was impossible to
hope for escape after assassinating the Presi
dent, and such othera as might attend him in
Ford's theater, without arrangements being
first raade to aid the flight of the assassin, aud,
to some extent, prevent immediate pursuit.
A stable was to be provided close to Ford's
theater, in which the horses could be concealed,
aud kept ready for tbe assassin's use whenever
the murderous blow was struck. Accordingly,
Booth secretly, through Maddox, hired a stable
in the rear of the theater, and connecting with
it by an alley, as early as the 1st of January
last, showing that at that time be had concluded,
notwithstanding all that has been said to the
contrary, to murder the President in Ford's
theater, and provide the means for immediate
and successful flight. Conscious of bia guilt,
he paid the rent for tbia stable through Maddox,
month by month, giving him the money. He
employed Spangler, doubtleaa for the reaaon
that be could trust him with the secret, as a
carpenter to fit up this shed, ao that it would
furnish room for two horses, and provided tbe
door with lock and key. Spangler did this
work for him. Then it was necessary that a
carpenter, having access to the theater, should
be employed by tbe assaaain to provide a bar
for tbe outer door of the passage leading tp tbe
Preaident'a box, ao that when he entered upoA
hia work of assaaaination he would be secure
from interruption from the rear. By tbe evi
dence it is shown that Spangler was in the box

in which tbe President was murdered on the
afternoon of tbe 14tb of April, and when there
damned the President and General Grant, and
said the President ought to be cursed, be bad
got so many good men killed, showing not only
hia hostility to the President, but the cause of
it, that he bad been faithful to hia oath, and
had resisted that great rebellion, in tbe intereat
of which his life was about to be sacrificed by
this man and his co-conspirators. In perform
ing the work, which had doubtless been in
trusted to bim by Booth, a mortise was cut in
the wall. A wooden bar was prepared, one
end of which could be readily inserted in the
mortise and tbe other pressed against the edge
of the door, on tbe inaide, ao aa to prevent its
being opened. Spangler had the skill and the
opportunity to do that work and all tbe addi
tional work which was done.
It is in evidence that the screws in "the
keepers" to the locks on each of the inner
doors of the box occupied by the Preaident were
drawn. Tbe attempt haa been raade, on behalf
of tbe prisoner, to show that thia was done some
time before, accidentally, and with no bad de
sign, and had not been repaired by reason of
inadvertence; but that atterapt baa utterly
failed, becauae tbe testimony adduced for that
purpose relates exclusively to but one of tbe two
inner doors, while the fact is that tbe screws
were drawn in both, and tbe additional precau
tion taken to cut a small bole through one of
these doors, through which the party approach
ing, and while in the private passage would be
enabled to look into tbe box and exaraine the
exact posture of tbe President before entering.
It was also deemed essential, in the execution
of this plot, that aorae one should watch at tbe
outer door, in the rear of the theater, by which
alone tbe aaaaaain could hope for escape. It
waa for this work Booth sought to employ
Chester in January, offering $3,000 down of the
raoney of his employers, aud tbe aaaurance that
be should never want. What Chester refuaed
to do, Spangler undertook and promiaed to do.
When Booth brought his horse to tbe rear door
of the theater, on the evening of the murder, be
called for Spangler, who went to him, when
Booth was heard to say to him, "Ned, you'll
help me all you can, won't you?" To which
Spangler replied, "Oh, yes."
When Booth made bis escape, it is testified by
Colonel Stewart, who pursued bim across the
stage and out through tbe same door, that, as he
approached it, some one slammed it shut. Rit
terspaugh, who waa standing behind the acenea
when Booth fired tbe pistol and fled, saw Booth
run down the paaaage toward tbe back door,
and pursued bim; but Booth drew his knife
upon him and passed out, slamming the door
after bim. Eitterspaugh opened it and went
through, leaving it open behind him, leaving
Spangler inside, and in a position from which
be readily could bave reached tbe door. Eit-
terspaugii also states that very quickly after
be bad passed through this door he was followed
by a large man, the first who followed him, and
who waa, doubtless. Colonel Stewart. Stewart
is very positive that he saw this door slammed ;
that he himself was constrained to open it, and

ARGUMENT OP JOHN A. BINGHAM.

895

had some difficulty iu opening it. He also testi
fies that aa he approached tbe door a man atood
near enough to have thrown it to with his
hand, and this man, tho witnesa believea, waa
the priaoner Spangler. Eitterspaugh has aworn
that he left tbe door open behind him when he
went out, and that he waa first followed by
the large man. Colonel Stewart. Who slammed
that door behind Ritterspaugh? It was not
Ritterspaugh ; it could not have been Booth, for
Eitterspaugh swears that Booth was mounting
bia horse at the time; and Stewart awears that
Booth was upon bis borse when he came out.
That it was Spangler who slammed the door
after Ritterspaugh may not only be inferred
from Stewart's teatimony, but it ia made very
clear by his own conduct afterward, upon tbe
return of Eitterspaugh to tbe stage. The door
being then open, and Ritterspaugh being aaked
which way Booth went, bad anawered. Rit-
lerapaugb aays: "Then I carae back on the
atage, where I bad left Edward Spangler; he
hit me on the face with his hand, and said,
' Don't say which way he went.' I asked bim
what he meant by slapping me in tbe mouth.
He said, 'For God's sake, shut up.'"
The testimony of Withers is adroitly handled,
to throw doubt upon tbeae faota. It can not
avail, for Withera saya be was knocked in the
scene by Booth, and when be "come to" he got
a aide view of him. A man knocked down
and aenaeless, on "coraing to" raight miatake
anybody, by a side view, for Booth.
An attempt has been made by tbe defense to
discredit this testimony of Eitterspaugh, by
showing bis contradictory statements to Gifford,
Carlan and Lamb, neither of whom do, in fact,
contradict Mm, but substantially sustain him.
None but a guilty raan would have met the wit
ness with a blow for stating which way tbe as
sassin bad gone. A like confession of guilt
was made by Spangler when the witness Miles,
the same evening, and directly after the assas
aination, came to the back door, where Spang
ler was standing, with others, and asked Spang
ler who it waa that held the horse, to which
Spangler replied; "Hush; don't say anything
about it." He confessed his guilt again when
he denied to Mary Anderaon tbe fact, proved
here beyond all queation, that Booth had called
bim when he came to that door with hia horae,
uaing the emphatic worda, "No; he did not; he
did not call me." Tbe rope comes to bear wit
neaa againat bim, as did the rope which Atze
rodt, and Herold, and John H. Surratt, had
carried to Surrattsville, and deposited there
with the carbines.
It ia only surprising that the ingenious coun
sel did not attempt to explain the deposit of the
rope at Surrattsville by the same method that
he adopted in explanation of tbe deposit of
this rope, aorae aixty feet long, found in the
carpet-aack of Spangler, unaccounted for, save
by some evidence which tends to show that he
may have carried it away from tbe theater.
It is not needful to take time in the recapit
ulation of the evidence, which shows conclu
sively that David E. Herold was one. of these
conapirators. His continued association with
Ifeootb with Atzerodt, bis visits to Mrs. Sur

ratt's, his attendance at tbe theater with Payne,
Surratt and Atzerodt, bia connexion with Atze
rodt on the evening of tbe murder, riding with
him on tbe street in the direction of, and near
to, the theater at the hour appointed for the
work of assassination, and his final flight and
arrest, abow that he, in common with all tbe
other partiea on trial, and all tbe parties named
upon your record not upon trial, bad combined
and confederated to kill and murder in the in
tereata oftthe rebellion, aa charged and apecified
against tbem.
That this conspiracy was entered into by all
these parties,^ both present and absent, is thua
proved by the acta, meetinga, deolarationa and
correapondence of all tbe parties, beyond any
doubt whatever. True, it ia circumstantial evi
dence, but the Court will remeraber the rule
before recited, that circumatances can not Ue;
that they are held aufficient in every court
where justice is judicially administered to es
tablish the fact of a conspiracy. I shall take
no further notice of the remark made by the
learned counsel who opened for the defense,
and which bas been followed by several of his
asaociatea, that, under the Conatitution, it re-
quirea two witneaaea to prove the overt act of
high treason, than to aay, this is not a charge
of high treaaon, but of a treasonable conspir
acy, in aid of a rebellion, with intent to kill
and murder tbe Executive officer of the United
States, and commander of its armies, and of
the murder of the President, in pursuance of
that conspiracy, and with the intent laid, etc.
Neither by tbe Constitution, nor by tbe rules of
the common law, ia any fact connected with
this allegation required to be established by
the testimony of more than one witness. I
might say, however, that every substantive
averment against each of the partiea named
upon this record has been established by tbe
testimony of more than one witness.
That the several accused did enter into thia
conapiracy with John Wilkea Booth and John
H. Surratt, to murder tbe officera of tbia Gov
ernment named upon tbe record, in purauance
of tbe wiahes of tbeir employers and inatiga-
tors in Eicbmond and Canada, and with intent
thereby to aid tbe exiating rebellion and sub
vert tbe Conatitution and lawa of the United
Statea, as alleged, ia no longer an open quea
tion. The intent as laid waa expressly declared
by Sanders in tbe meeting of the conspiratora
at Montreal in February last, by Booth in Vir
ginia and New York, and by Thompaon to Con
over and Montgomery ; but if there were no
teatimony directly upon this point, tbe law
would presume the in tent, for the reason that
aucb waa the natural and neceSaary tendency
and manifest design of the act itaelf.
The learned gentleman (Mr. Johnaon) saya
the Government bas aurvived the aaaaaaination
of the President, and thereby would have you
infer that thia conapiracy was not entered into
and attempted to be executed with the intent
laid. With as much show of reason, it might
be said that because the Government of tbe
United States haa survived this unmatched
rebellion, it therefore results that the rebel con-

396

THE CONSPIRACY TRIAL.

spirators waged war upon the Government with
no purpose or intent thereby to subvert it. By
tbe law, we have seen that without any direct
evidence of previous combination and agree
ment between theae partiea, the conspiracy
might be established by evidence of tbe acts
of the prisoners, or of any others with whom
they co-operated, concurring in tbe execution
of tbe common design. Roscoe, 416.
Was there co-operation between tbe aeveral
accuaed in tbe execution of this conapiracy ?
That there was, is as clearly established by
the testimony as is the fact that Abraham Lin
coln was killed and murdered by John Wilkes
Booth. Tbe evidence shows that all of the
accused, save Mudd and Arnold, were in
Washington on the 14tb of April, the day of
the assassination, together with John Wilkes
Booth and John H. Surratt; that on that day
.Booth bad a secret interview with the prisoner,
Mary E. Surratt; that immediately thereafter
she went to Surrattsville to perform her part
of tbe preparation necessary to tbe succesaful
execution of the conspiracy, and did make that
preparation ; that John H. Surratt had arrived
here from Canada, notifying tbe parties that
the price to be paid for this great crime had
been provided for, at least in part, by the de
posit receipts of AprU 6th for $180,000, pro
cured by Thompson, of the Ontario Bank, Mon
treal, Canada; that he was also prepared to
keep watch, or strike a blow, and ready for
the contemplated flight; that Atzerodt, on the
afternoon of that day, waa seeking to obtain
a borae, tbe better to secure hia own aafety by
flight, after he ahould have performed the task
wMch he had voluntarily undertaken hy con
tract in tbe conspiracy — tbe murder of An
drew Johnson, then Vice-President of tbe
United States ; that be did procure a horse for
that purpose at Naylor's and was aeen about
nine o'clock in the evening to ride to the Kirk
wood Houae, where the Vice-President then
waa, dismount, and enter. At a previoua hour
Booth was in the Kirkwood House, and left
hia card, now in evidence, doubtless intended
to be sent to the room of tbe Vice-Preaident,
and which waa in tbeae worda ; " Don't wish
to disturb you. Are you at home ? J. Wilkes
Booth." Atzerodt, when he made appUoation
at Brooks' in the afternoon for tbe horae, said
to Weichmann, who waa there, he was going to
ride in tbe country, and that " be was going to
get a horse and send for Payne." He did get
a horae for Payne, as well as for himaelf; for it
is proven that on the 12th he was seen in Wash
ington, riding the borse which had been pro
cured by Booth, in company with Mudd, last
November, from Gardner. A similar horse
waa tied before tbe door of Mr. Seward on tbe
night of tbe murder, was captured after the
flight of Payne, who waa seen to ride away,
and which horse is now identified as the Gard
ner horae. Booth alao procured a horse on the
same day, took it to Ms stable iu the rear of
the theater, where he had an inlerview with
Spangler, and where he concealed it. Herold
too, obtained a horse in the afternoon, and waa
seen between nine and ten o'clock riding with
Atzerodt down the Avenue from the Treasury,

then up Fourteenth and down F street, passing
close by Ford's theater.
O'Laughlin had come to Waahington the day
before, had sought out his victim, General
Grant, at the house of tbe Secretary of War,
that he might be able with certainty to identify
Mm, and at the very hour when these prepa
rations were going on, waa lying in wait at
Rullman's, on the Avenue, keeping watch, and
declaring, as be did, at about ten o'clock P. M.,
when told that the fatal blow had been struck
by Booth, "I don't believe Booth did it." Dur
ing tbe day, and the nigbt before, he had been
visiting Booth, and doubtless encouraging him,
and at that very hour was in position, at a con
venient distance, to aid and protect him in Ms
flight, as well as to execute his own part of the
conapiracy by inflicting death upon General
Grant, who happily was not at the theater nor
in the city, having left the city that day.
Who doubta that. Booth having ascertained in
the course of the day, that General Grant
would not be present at the theater, O'Laugh
lin, who waa to murder General Grant, inatead
of entering the box with Beoth, was detailed
to lie in wait, and watch and support bim.
His declarations of Ms reasons for changing
Ms lodgings here and in Baltimore, after the
murder, so ably and so ingeniously presented
in the argument of his learned counsel (Mr.
Cox), avail nothing before the blasting fact that
be did change his lodgings, and declared " he
knew nothing of tbe affair whatever." O'Laugh
lin, who lurked here, conspiring daily with
Booth and Arnold for six weeks to do this
murder, declares "be knew nothing of the
affair." O'Laughlin, who said he waa " in tbe
oil buaineaa," which Booth and Surratt, and
Payne and Arnold, have all declared meant
tbia conspiracy, says he "knew nothing of the
affair." O'Laughlin, to whom Booth sent the
dispatches of tbe 13th and 27th of March —
O'Laughlin, who is named in Arnold's letter as
one of tbe conspirators, and who searched for
General Grant on Thursday night, laid in wait
for him on Friday, was defeated by that Provi
dence " which shapes our ends," and laid in
wait to aid Booth and Payne, declares "he
knows nothing of the matter." Sucb a denial
is aa falae and inexcusable aa Peter's denial "
of our Lord.
Mrs. Surratt had arrived at home, from the
completion of ber part of tbe plot, about half-
past eight o'clock in the evening. A few mo
ments afterward she was called to tbe parlor,
and there had a private interview with some
one unseen, but whose retreating footsteps were
beard by tbe witness Weichmann. TMs was
doubtless tbe secret and last visit of John H.
Surratt to his mother, who had instigated and
encouraged him to atrike this traitorous and
murderous blow against bis country.
Wbile all these preparations were going on,
Mudd was awaiting the execution of the plot,
ready to faithfully perform his part in secur
ing the safe eacape of the murderers. Arnold
waa at hia post at Fortress Monroe, awaiting
the meeting referred to in his letter of March
27th, wherein he aaya they were not "to meet
I for a month or so," which month had more than

ARGUMENT OF JOHN A, BINGHAM.

397

expired on the day of the murder, for his letter
nnd the testimony diacloae that this month of
suspension began to ruh from about tbo firat
week in March. He stood ready with the
arma which Booth bad furniahed him to aid
the escape of the murderers by that route, and
secure their communication with their eraploy-
ers. He bad given tbe assurance in that letter
to Booth, that although the Government "sua-
picioned tbem," and the undertaking waa " be
coming complicated," yet " a tirae more propi
tious would arrive " for the consummation of
this conspiracy in which he "waa one" with
Booth, and when he would " be better prepared
to again be with bim."
Such were the preparations. Tbe horses
were in readiness for tbe flight ; tbe ropes were
procured, doubtless, for the purpose of tying
the horses at whatever point they might be
constrained to delay, and to secure their boats
to their moorings in making tbeir way across
the Potomac. The flve murderous camp knives,
the two carbines, the eight revolvers, the Der
ringer, in Court and identified, all were ready
for the work of death. The part that each had
played has already been in part stated in thia
argument, and needs no repetition.
Booth proceeded to the theater about nine
o'clock in the evening, at the same time that At
zerodt, Payne and Herold were riding the streeta,
while Surratt, having parted with his mother
at the brief interview in her parlor, from which
his retreating steps were heard, was walking
tbe avenue, booted and spurred, and doubtless
consulting with O'Laughlin. When Booth
reached the rear of the theater, be called Span
gler to him (whoae denial of that fact, when
charged with it, aa proven by three witneaaea,
ia very significant), and received frora Span
gler his pledge to help him all he could, when
with Booth he entered the theater by the atage
door, doubtleas to see that the way was clear
from tbe box to the rear door of the theater,
and look upon tbeir victim, whose exact posi
tion tbey could study from tbe stage. After
this view. Booth passes to tbe street, in front
of the theater, where, on tbe pavement with
other conspirators yet unknown, among them
one described as a low-browed villain, he
awaits the appointed moment. Booth bimself,
impatient, enters the vestibule of the theater
from the front, and asks the time. He is re
ferred to tbe clock, and returns. Presently,
as the hour of ten approached, one of bis guilty
associates called the time; they wait; again,
as the moments elapsed, this conspirator
upon watch called the time; again, as the ap
pointed Jiour 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 I
The hour has corae when the red right hand of
these murderous conspirators should strike,
and the dreadful deed of asaasaination be done.
Booth, at tbe appointed moment, entered the
theater, aacended to tbe dress-circle, passed to
the right, paused a moment, looking down,
doubtless to see if Spangler was at hia poat,
and approached the outer door of the close pas- 1
sage leading to the box occupied by tbe Presi- 1

dent, pressed it open, pasaed in, and cloaed the
passage door behind him. Spangler'a bar was
in ita 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 in
terruption from without. Ho passes on to tho
next door, immediately behind tbe Preaident,
and there stopping, looks through the aperture
in the door into the President's box, and delib
erately observes the precise position of his vic
tim, seated in tbe chair which had been pre
pared by the conspirators aa the altar for tho
sacrifice, looking calmly and quietly down up
on the glad and grateful people whom by bis
fidelity he bad saved frora the peril which had
threatened tbe 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 linger
ing upon bis lips which he bad uttered with
uncovered bead and uplifted band before God
and his country, when on the 4th of last March
he took again tbe oath to preserve, protect and
defend tbe Conatitution, declaring that be en
tered upon the dutiea of hia great office " with
malice toward none — with charity for all." In
a moment more, atrengtbened by the knowledge
that hia co-conapiratora were all at their posts,
aeven at leaat of them present in the city, two
of tbem, Mudd and Arnold, at their appointed
places, watching for his coming, this hired aa
sassin moves stealthily through the door, tbe
fastenings of which had been removed to facil
itate his entrance, fires upon his victim, and
the martyr apirit of Abraham Lincoln aaoends
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 'B'ound which deprived the republic
of its defender, and flUed this land from ocean
to ocean with a strange, great sorrow, Payne,
a very deraon in human form, with tbe words
of falsehood upon his lips, that he was tbe bearer
of a message from the physician of the venerable
Secretary of State, sweeps by his servant, en
counters his son, who protests that tbe assaaain
aball not diaturb his father, prostrate on a bed
of aickneaa, and receivea for answer the assas
sin's blow from tbe revolver in hia band, re
peated again and again, ruahes into the roora,
ia encountered by Major Seward, inflicta wound
after wound upon him with hia murderoua knife,
ia encountered by Hanaell and Robinson, each
of whom be also wounds, aprings upon tbe de-
fenseleaa and feeble Secretary of State, atabs
first on one side of his throat, then on tbe other,
again in tbe face, and is only prevented from
literally backing out his life by the persistence
and courage of the attendant Eobinson. He
turns to flee, and, his giant arm and murderous
band for a moraent paralyzed by the conacioua-
ness of guilt, be drops his weapons of death,
one in the houae, the other at the door, where
they were taken up, and are here now to bear
witness againat him. He attempts escape on
the horae which Booth and Mudd had procured

398

THE CONSPIRACY TRIAL.

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
iu tbe execution of the part assigned him at the
Kirkwood House, by the timely coming of citi
zens to the defense of the Vice-President, and
creeps into tbe Pennsylvania House at two
o'clock in the morning with another of tbe con
spirators, yet unknown. There he remained
until about flve o'clock, when he left, found his
way to Georgetown, pawned one of bis revolv
ers, now iu court, and fled northward into
Maryland. He is traced to Montgomery county, to the
house of Mr. Metz, on tbe Sunday succeeding
the murder, where, as is proved by the testi
mony of three witnesses, he said that if tbe man
that was to -follow Gen. Grant had followed him,
it was likely that Grant was s'hot. To one of
these witnesaea (Mr. Leaman) he said be did
not tbink Grant had been killed; or if he bad
been killed, he was killed by a man who got on
the cars at the same time that Grant did; thus
disclosing moat clearly, that one of hia co-con
spirators waa assigned the task of killing and
murdering Gen. Grant, and that Atzerodt knew
that Gen. Grant had left the city of Washing
ton, a fact which is not disputed, on the Friday
evening of the murder, by the evening train.
Thus this intended victim of the conspiracy es
caped, for that nigbt, tbe knives and revolvers
of Atzerodt, and O'Laughlin, and Payne, and
Herold, and Booth, and John H. Surratt, aud,
perchance. Harper and Caldwell, and twenty
others, who were then here lying iu wait for his
life. In the meantime Booth and Herold, taking
tbe route before agreed upon, make directly
after tbe assassination, for the Anacostia bridge.
Booth crosses first, gives bis 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
tbinga," showing that there had been comrauni
cation between them and Mrs. Surratt after her
return. Both the carbines being in readiness,
according to Mary E. Surratt'a directiona, both
were brought out. The;f took but one. Booth de
clined to ca.rry tbe other, saying that bis limb was
broken. They then declared that they bad mur
dered the President and the Secretary of State.
They then make their way directly to tbe house
of the prisoner Mudd, asaured of aafety and ae
ourity. They arrived early in tbe morning be
fore day, and no man knows at what hour they
left. Herold rode toward 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 afterward
seen returning the same afternoon in tbe direc
tion of Mudd's house ; about which time, a little
before sundown, Mudd returned from Bryan
town toward bis home. Thia village, at the
tirae Mudd waa in it, was thronged with soldiers
in pursuit of tbe raurderera of the Preaident,
and although great care bas been taken by tbe
defense to deny that any one said in the pres
ence of Dr. Mudd, either there or elsewhere on

that day, who bad committed thia crime, yet it
is in evidence by two witneaaes, whose truth
fulness no raan questions, that upon Mudd's re
turn to his own house, that afternoon, he stated
that Booth waa tbe murderer of the President,
and Boyle the murderer of Secretary Seward,
but took care to make the further remark that
Booth bad brothers, and he did not know which
of them had done the act. When did Dr. Mudd
learn that Booth bad brothers ? And what ia
atill more pertinent to thia inquiry, from whom
did he learn that either John Wilkes Booth or
any of his brothers bad murdered tbe President ?
It is clear that Booth remained in his bouse
until some time in the afternoon of Saturday;
that Herold left tbe bouse alone, as one of the
witnesses states, being seen to pass tbe window;
that he alone of those two assassins was in the
company of Dr. Mudd on his way to Bryantown.
It does not appear when Herold returned to
Mudd's bouse. It is a confession of Dr. Mudd
bimself, proven by one of the witnesses, that
Booth left his house on crutches, and went in
the direction of tbe swamp. How long he re
mained there, and what became of the horses
which Booth and Herold rode to bis houae, and
which were put into his stable, are facts no
where disclosed by tbe evidence. Tbe owners
testify that they have never seen the borsea
since. Tbe accused give no explanation of the
matter, and when Herold and Booth were cap
tured tbey had not these horses in their posses
sion. How comes it that, on Mudd'a return
from Bryantown, on the evening of Saturday,
in bis conversation with Mr. Hardy aud Mr.
Farrell, the witnesses 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 bis son, and carefully avoided inti
mating to either that Booth bad come to his
house early that day, and had remained there
until the afternoon ; that he left bim in his
house and had furnished him a razor with which
Booth atterapted to disguise himself by shaving
off hia mustache? How comes it, also, that,
upon being asked by those two witnesses
whether the Booth who killed tbe President was
the one who had been there last fall, he an
swered that he did not know whether it was
that man or one of his brothers, but he under
stood be bad some brothera, and added, that if
it was the Booth who was there last fall, he knevi
ihat one, but concealed the fact that this man
had been at bis house on that day, and was then
at his bouse, and bad attempted, in*is presence,
to disguise hia person? He was sorry, very
sorry, that tbe thing had occurred, but not ao
aorry aa to be willing to give any evidence to
these two neighbors, who were manifestly hon
est and upright men, that the murderer had
been harbored in his bouse all day, and waa
probably at that moment, as bis own subse
quent confession shows, lying concealed in his
bouse or near by, subject to his call. This is
the man who undertakes to show by bia own
declaration, offered in evidence againat my pro
test, of what he aaid afterward, on Sunday
afternoon, tbe 16th, to his kinaman, Dr. George
D. Mudd, to whom he then stated that the aasas
sination of tbe President waa a moat damnable

ARGUMENT OF JOHN A, BINGHAM.

399

act— a conclusion in which most men will agree
with bim, and to establish which his testimony
was not needed. But it ia to be remarked that
thia accused did not intimate that the man whom
he knew tbe evening before was the murderer
had found refuge in hia house, had disguised
his peraon, and aougbt concealment in the
swamp upon tbe crutches which he had pro
vided for bim. Why did be conceal this fact
from his kinsman? After tbe church services
wore over, however, in another conversation on
I lioir way home, be did tell Dr. George Mudd
tiuit two auspioioua persons had been at his
house, who had come there a Uttle before day
break on Saturd.ay morning; that one of tbem
bad a broken leg, which be bandaged ; that
they got something to eat at his bouse; that
tbey seemed to be laboring under more excite
ment than probably would reault from the in
jury ; that they said they came frora Bryantown,
and inquired the way to Parson Wilmer's ; that
while at bis house ono of them called for a razor
and shaved himself. The witness saya, "I do
not remember whether be aaid that this party
shaved off Ms whiskers or bis mustache, but
he altered somewhat, or probably materially,
bis features." Finally, the prisoner. Dr. Mudd,
told this witness that be, in company with the
younger of tbe two men, went down the roa^
toward Bryantown in search of a vehicle to take
tbe wounded man away from his bouse. How
comea it that he concealed in this conversation
the fact proved, that he went with Herold to
ward Bryantown and left Herold outside of tbe
town ? How comes it that in this second con
versation, on Sunday, insiated upon here with
auch pertinacity as evidence for the defense, but
which had never been called for by tbe proaecu
tion, he concealed from Ms kinsman the fact
which be had disclosed the day before to Hardy
and Farrell, that it waa Booth who assassinated
the President, and the fact which is now dis
closed by hia other confeaaions given in evi
dence for tbe prosecution, that it was Booth
whom he had sheltered, concealed in bis house,
and aided to his hiding place in tbe swamps ?
He volunteers as evidence hia further statement,
however, to this witneas, that on Sunday even
ing he requested the witness to atate to the mili
tary autboritiea that two suspicious persona bad
been at his house, and see if anything could be
raade of it. He did not tell the witnesa what
became of Herold, and where he parted with
him on tbe way to Bryantown. How comea it
that when he was at Bryantown on tbe Satur
day evening before, when be knew that Booth
was then at bis bouse, and that Booth was the
murderer of tbe 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 bis suspicions on Sunday, if none
were in his mind on Saturday, when he waa in
posseaaion of tbe fact that Booth had murdered
the President, and was then secreting and dis
guising himself in the prisoner's own house.
His conversation with Gardner on tbe same
Sunday at tbe church is also introduced here
to relieve bim from tbe overwhelming evidences
of bis guilt. He communicates nothing to
Gardner of the fact that Booth had been in Ms

house ; nothmg of the fact that he knew the
day before that Booth bad murdered the Preai
dent; nothing of tbe fact that Booth had dis
guised or attempted to disguise himself; nothing
of the fact that ho bad gone with Booth's asso
ciate, Herold, in search of a vehicle, the more
speedily to expedite tbeir flight ; nothing of the
fact that Booth had found concealment in the
woods and swamp near hi,9 bouse, upon tlii'
crutches which he had furnished him. He con
tents hi,mself with merely stating " that we
ought to raise immediately a borae guard, to
hunt up all suspicious persons passing through
our section of country and arrest them, lor
there were two suspicious persons at ray house
yesterday morning."
It would have looked more Uke aiding justice
and arresting felons if he had put in execution
bis project of a home guard on Saturday, aud
made it effective by the arrest of the raan then
iij his house who had lodged with bira last fall,
with whom be bad gone to purchase one of the
very horses employed in his flight after the as
sassination, whom he, visited last winter in
Washington, and to whom he had pointed out
'the very route by which he bad escaped by way
of his house, whom he had again visited on the
3d of last March, preparatory to tJie corarais
sion of this great crirae, and who be knew,
when be sheltered and concealed Mm in the
woods on Saturday, was not merely a suspicious
person, but was, in fact, the murderer and as
sassin of Abraham Lincoln, Wbile I deera it
ray duty to say here, as I said before, when
these declarations, uttered by the accused on
Sunday, the 16th, to Gardner aud George D.
Mudd, were attempted to be offered on tbe part
of the accused, that they are in no sense evi
dence, and by tbe law were wholly inadmissi
ble, yet I state it as ray conviction that, being
upon the record upon raotion of the accused
biraaelf, so far as these declarations to Gardner
and George D. Mudd go, they are additional
indications of tbe guilt of th^ accused, in this,
that they are manifestly suppressions of tbe
truth and suggestions of falsehood and decep
tion ; they are but tbe utterances and confes
sions of guilt.
To Lieutenant Lovett, Joshua Lloyd, and
Simon Gavacan, who, in pursuit of the mur
derer, visited bia house on tbe 18tb of April,
the Tuesday after the murder, be denied posi
tively, upon inquiry, that two men had passed
his house, or bad corae to bis bouae on the
morning after the assassination. 'Two of these
witnesses swear poaitively to bis having made
the denial, and the other says he hesitated to
answer the question he put to bim ; all of them
agree that he afterward adraitted that two men
had been there, one of whom bad a broken
limb, which he had set ; and when aaked by
¦this witness who that man was, be said he did
not know — that tbe man was a stranger to him,
and that tbe two bad been there but a short
tirae. Lloyd asked bim if be bad ever seen any
of the parties. Booth, Herold and Surratt, and
he aaid be bad never aeen them; while it ia pos
itively proved that be was acquainted with
John H. Surratt, who bad been in hia bouae ;
that he knew Booth and bad introduced Booth

400

THE CONSPIRACY TRIAL.

to Surratt laat winter. Afterward, on Friday,
the 2l8t, be admitted to Lloyd that be had been
introduced to Booth last fall, and that this man,
who came to hia houae on Saturday, the 15th,
remained there from about four o'clock in tbe
morning untU about four in the afternoon ; that
one of tbem left bia houae on horaebaok, and
tbe other walking. In the first conversation he
denied ever having seen these men.
Colonel Wella alao testifies that, in his con
versation with Dr. Mudd on Friday, the 21st,
the prisoner aaid that he had gone to Bryan
town, or near Bryantown, to aee aome friends
on Saturday, and that as he carae back to his
own bouae be aaw the peraon be afterward sup
posed to be Herold passing to tbe left of his
house toward the barn, but that he did not see
the other person at all after be left him in his
own houae, about one o'clock. If thia statement
be true, bow did Dr. Mudd see tbe same person
leave bis house on crutches ? He further stated
to tbia witnesa that be returned to Ma own
houae about four o'clock in the afternoon; tbatbe
did not know this wounded man; said be could
not recognize bim from the photograph which
is of record here, but admitted that he had met
Booth some time in November, when be bad
aome conversation with him about lands and
boraes ; that Booth had reraained with him that
night in November, and on tbe next day had
purchased a horse. He said he had not again
seen Booth from the time of the introduction
in November up to hia arrival at his bouse on
the Saturday morning after the assaaaination.
Is not this a confession that be did see John
Wilkes Booth on that morning at his house,
and knew it was Booth? If he did not know
bim, how came he to make this statement to tbe
witneaa : that " be had not seen Booth after
Noveraber prior to hia arrival there on the Sat
urday morning ?"
He had said before to the same witneaa, be
did not know the wounded raan. He said
further to Colonel Wella, that when he went up
staira after their arrival, he noticed that the
peraon be supposed to be Booth bad shaved off
his mustache. Ia it not inferable from thia
declaration that he then auppoaed him to be
Booth? Yet be declared the same afternoon,
and wbile feooth was in bis own bouse, that
Booth was the murderer of the President. One
of tbe most remarkable statements made to this
witness by the priaoner waa that be heard for
the firat time on Sunday morning, or late in the
evening of Saturday, that the Preaident had
been murdered I From whom did he hear it ?
Tbe witneas (Colonel Wells) volunteers bis
"impression " that Dr. Mudd had said he heard
it after tbe persons bad left his houses If the
" impression " of the witnesa thus volunteered is
to be taken as evidence — and tbe counsel for the
accused, judging from their manner, seem to
think it ought to be — let this queation be an
swered : bow could Dr. Mudd bave made that im
pression upon anybody truthfully, when it ia
proved by Farrell and Hardy that on hia return
from Bryantown, on Saturday afternoon, be not
only atated that tbe 'Preaident, Mr. Seward and
bia aon had been aasassinatcd, but that Boyle
had assassir-'ed Mr. Seward, and Booth had

assassinated tbe President? Add to thia the
fact that he aaid to this witnesa that he left his
own houae at one o'clock, and when be returned
the men were gone, yet it is in evidence, by
bia own deolarationa, that Booth left hia bouse
at four o'clock on crutches, and he must have
been there to bave seen it, or be could not have
known the fact.
Mr. Williaras testifiea that he waa at Mudd's
house on Tuesday, tbe 18th of April, when he said'
that strangers bad not been that way, and alao
declared that he heard, for ihe first time, of the
aasassination of the President on Sunday morn
ing, at church. Afterward, on Friday, the
21st, Mr. Williaras aaked bira concerning the
men who had been at his house, one of whom
had a broken limb, and be confessed they bad
been there. Upon being asked if tbey 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 Weichmann, of Norton, of Evans,
and all the testimony just referred to, wherein
he declares, hiraself, that be not only knew
him, but that be had lodged with him, and that
he had himaelf gone with bim when be pur-
chaaed his borse from Gardner last fall, for tbe
very purpose of aiding the flight of himself, or
gome of bis confederates.
All theae circumatances taken together, which,
as we have seen upon high authority, are
stronger as evidences of guilt than even direct
testimony, leave no further roora for argument,
and no rational doubt that Dr. Sarauel A. Mudd
waa aa certainly iu this conspiracy aa were
Booth and Herold, whora he sheltered and en
tertained; receiving tbera under cover of dark-
neaa on the raorning after the asaasaination,
concealing thera throughout that day frora the
band of offended juatice, and aiding tbem, by
every endeavor, to puraue tbeir way success
fully to tbeir oo-conspirator, Arnold, at For
tress Monroe, and in which direction tbey fled
until overtaken and Booth was slain.
We next find Herold and hia confederate
Booth, after their departure from the bouae of
Mudd, across the Potomac, in tbe neighborhood
of Port Conway, on Monday, tbe 24t-b of April,
convej^fcd in a wagon. There Herold, in order
to obtain tbe aid of Captain Jett, Eugglea and
Bainbridge, of the Confederate army, aaid to
Jett, " We are tbe aasassinators of the Presi
dent;" that this was his brother with Mm, who,
with himself, belonged to A. P. Hill's corps ;
that his brother had been wounded at Peters
burg; that their namea were Boyd. He re-
queated Jett and hia rebel companiona to take
tbem out of the linea. After this. Booth joined
theae partiea, was placed on Euggles' horse, and
crossed tbe Eappabannock river. They then
proceeded to the houae of Garrett, in the neigh
borhood of Port Royal, and nearly midway be
tween Waahington city and Fortreas Monroe,
where tbey were to have joined Arnold. Be
fore tbeae rebel guides and guards parted with
them, Herold confessed that they were travel
ing under assumed names — that bis 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 Gar-

ARGUMENT OF JOHN A. BINGHAM.

401

rett's, where Herold re-visited him from time to
time, until they were captured. At two o'clock
on Wednesday raorning, tbe 26tb, a party of
United States officers and soldiers surrounded
Garrett's harn, where Booth and Herold lay
¦ concealed, and deraandod tbeir aurrender.
Booth cursed lli-rold, calling him a coward,
and bade bim go, when Herold camo out and
surrendeied himself, was taken into custody,
and is now brought into Court. The barn was
then set on fire, when Booth sprang to his feet,
araid the flaraes that were kindling about bim,
oirbinu iu band, and approached the door,
seeking, by the'flasliing light of the fire, to find
sorae new victim for bis murderous band, when
ho was shot, as be deserved to be, by Sergeant
Ciirbett, in order to save his corarades from
wounds or death by the bands of this desperate
assassin. Upon his peraon waa found the fol-
lowin;!; bill of exchange :
"No, 1492, The Ontario Bank, Montreal
Branch. Exchange for £61 12*. lOrf. Mon
treal; 27tb October, 1864, Sixty days after
sight of this first of exchange, second aud third
of Ihe same tenor and date, pay to tbe order of
J. Wilkes Booth £61 12s. lOd, sterling, value
received, and charge to the account of this
office. H. Stanus, manager. To Messrs. Glynn,
-Mills & Co., London."
Thus fell, by the bands of one of the defend
ers of the republic, this hired assaaain, who, for
a price, murdei-ed Abrah.am Lincoln, bearing
upon his person, as this bill of exchange testi
fies, additional evidence of the fact that he had
imdertakan, in aid of the rebellion, this work
of assassination by the bands of himself and
hia confederatea, for sucb sura as the accred
ited agenta of Jefferson Davis might pay him
or them, out of the funds of the Confederacy,
which, as is in evidence, they bad in "any
amount" in Canada for the purpose of reward
ing conspirators, spies, poisoners and assas
sina, who might take service under their false
commissions, and to do tbe work of the incen
diary and the murderer upon tbe lawful repre
sentatives of the American people, to whom bad
been intrusted the care of the republic, tbe
maintenance of the Conatitution, and the execu
tion of tbe lawa.
The Court will remember that it ia in the tes
timony of Merritt, and Montgomery, and Con
over, 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
officersof the Ontario Bank, at Montreal, testify
that during tbe current year of this conspiracy
and assassination, Jacob Thompson had on de
posit in that bank tbe sura of six hundred and
forty-nine thousand dollars, and that these de
posits to the credit of Jacob Thorapsou accrued
from tbe negotiation of bills of exchange
drawn by the Secretary of tbe Treasury of the
so-called Confederate States on Frazier, Tren
holm & Co., of Liverpool, who were known to
be the financial agents of tbe Confederate
Statea. With an undrawn depoait in this bank
of four hundred and fifty-five dollars, which
has remained to hia credit since October last,
and with an unpaid bill of exchange drawn by
26

the same bank upon Loudon, in hia possession,
and found upon hia person. Booth ends his
guilty career in tbia work of conspiracy and
blood in April, 1865, aa be began it in October,
1864, in corabination with Jefferaon Davis,
Jacob Thompson, George N. Sandera, Clement
C. Clay, WilUam C. Cleary, Beverley Tucker,
and other co-conspiratora, making uae of tbo
raoney of the rebel confederation to aid in the
execution and in the flight, bearing, at tbe mo
ment of his death, upon Ms person, their
money, part of the price which they paid for
his great crime, to aid Mm in its consummation,
and secure him afterward from arrest, and the
just penalty which, by the law of God and tbe
law of man, ia denounced againat treaaonable
conspiracy and murder.
By all the teatimony in the caae, 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 sev
eral accused, David E. Herold, George A. Atze
rodt, Lewis Payne, Michael O'Laughlin, Edward
Spangler, Sarauel Arnold, Mary E. Surratt and
Samuel A. Mudd, did, with intent to aid the ex
iating rebellion, and to aubvert the Constitution
and laws of tbe United States, in the month of
October last, and thereafter, combine, confed
erate and conspire with Jefferaon Davis, George
N. Sandera, Beverley Tucker, Jacob Thompson,
WilUam C. Cleary, Clement C. Clay, George
Harper, George Young, and others unknown,
to kill and murder, within the military depart
ment of Washington, and within tbe intrenched
fortifications and military lines thereof, Abra-_^
hara Lincoln, then Preaident of the United
Statea, and Commander-in-Chief of the army
and navy thereof; Andrew Johnaon, Vice-Pres
ident of the United Stiites; William H. Seward,
Secretary of State, and Ulysses S. Grant, Lieu
tenant-General, in coraraand of tbe armiea of
the United States; aud that Jefferaon Davis,
the chief of this rebellion, waa the instigator
and procurer, through his accredited agents in
Canada, of this treasonable conspiracy.
It ia also submitted to tbe Court, that it ia
clearly established by the testimony that John
Wilkes Booth, in pursuance of tliis conspiracy,
so entered into by Mm and the accuaed, did, on
tbe nigbt of the 14tb of April, 1865, within the
military department of Washington, and the
intrenched fortifications and military linea
thereof, and with tbe intent laid, inflict a mor
tal wound upon Abraham Lincoln, then Preai
dent and Commander-in-chief of the army and
navy of the United Statea, whereof he died;
that, in pursuance of the aame conspiracy, and
within the said depai-tment and intrenched
lines, Lewis Payne assaulted, with intent to
kill and raurder, WilUam H. Seward, then Sec
retary of State of the United States; that
George A, Atzerodt, in pursuance of the aame
conspiracy, and within the said department,
laid in wait, with intent to kill and murder
Andrew .Tobnson, then Vice-President of the
United States ; that Michael O'Laughlin, within
said department, and in pursuance of aaid con
apiraoy, laid in wait to kill^and murder Ulysses
S. Grant, then in command of the armies of
tbe United Statea; and that Mary E. Surratt.

402

THE CONSPIRACY TRIAL.

David E. Herold, Samuel Arnold, Samuel A.
Mudd and Edward Spangler did encourage, aid
and abet tbe commission of said several acts in
the prosecution of said conspiracy.
If thia treaaonable conspiracy has not been
wholly executed; if tbe several executive of
ficers of tbe United States and the commander
of ita armiea, to kill and murder whom tbe
aaid several accuaed thus confederated and con
spired, have not each and all fallen by the
hands of these conspirators, thereby leaving
the people of the United States without a Pres
ident or Vice-President, without a Secretary
ef State, who alone is clothed with authority
by the law to call an election to fill tbe va
cancy, should any arise, in the offices of Presi
dent and Vice-Preaident; and, without a law
ful commander of tbe armiea of the repubUc,
it is only beoauae the conapiratora were de
terred by the vigilance and fidelity of tbe ex
ecutive officera, whoae Uvea were mercifully
protected, on that nigbt of murder, by tbe care
of the Infinite Being, who has, thua far, saved
the RepubUc, and crowned its arms with vic
tory. If thia conspiracy was thus entered into by
tbe accuaed; if John Wilkea Booth did kill and
murder Abraham Lincoln in purauance thereof ;
if Lewis Payne did, in purauance of aaid con
spiracy, aaaault, with intent to kill and murder,
William H. Seward, aa atated, and if tbe several
partiea accused did commit the several acts al
leged againat tbem, in tbe proaecution of said
conapiracy, then it is tbe law that all the par
ties to that conapiracy, whether present at tbe
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 deaign. What these conspirators
did in tbe 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 tbe act of all the par
ties 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 conspiratora are indicted or not; whether
tbey are all on trial or not. "It is not mate
rial what the nature of the indictment is, pro
vided the offense involve a conspiracy. Upon
indictment for murder, for instance, if it appear
that others, together with the prisoner, con
spired to perpetrate tbe crime, the act of one,
done in purauance of that intention, would be
evidence against the rest." 1 Whar., 706. To
tbe same effect are tbe words of Chief Justice
Marshall, before cited, that whoever leagued in
a general conspiracy, performed any part, how
ever MINUTE, or however remote, from the
scene of action, are guilty aa principals. In
tbia treasonable conspiracy, to aid the existing
armed rebellion, by murdering the executive
officers of the United States and tbe commander
of its armies, all tbe parties to it must be held
as principals, and tbe act of one, in the proae
cution of tbe 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 aay, upon your oaths, whether the ac
cused are guilty.
I am not conscious that in tMs argument I
have made any erroneous statement of the evi
dence, or drawn any erroneous conclusions;
yet I pray tbe Court, out of tender regard and
jealous care for the rights of tbe accused, to
aee that no error of mine, if any there be, shall
work them harm. The paat aervicea of the mem
bers of this honorable Court give aaaurance
that, without fear, favor or affection, they will
discbarge with fidelity the duty enjoined upon
them by their oaths. 'Whatever else raay befall,
I trust in God that in thia, as in every other
American court, the rights of the whole people
will be respected, and that the Republic in this,
its aupreme hour of trial, will be true to itaelf
and. juat to all, ready to protect tbe rights of
tbe bumbleat, 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.

APFEN^DIX.

OFi3srio3sr
ON THB
CONSTITUTIONAL POWER OF THE MILITARY
, 10 TRY AND EXECUTE THB
ASSASSINS OF THE PRESIDENT.

BY ATTOEKEY GEISTBEAL JAMES SPEED.

Attoenet General's Office,
Washington, July — , 1865.
Sib; You ask me whether the peraons charged
with the offense of having aasaasinated tbe
President can be tried before a military tribu
nal, or must they be tried before a civil court.
Tbe President was assassinated at a theater
in the city of Washington. At tbe time of tbe
assassination a civil war was flagrant, the city
of Waahington was defended by fortifications
regularly and conatantly manned, tbe principal
police of the city waa by Federal aoldiers, the
pubUc offices and property in the city were all
guarded by soldiera, and the President's House
and person were, or abould have been, under the
guard of soldiers. Martial law bad been de
clared in the Diatrict of Columbia, but the civil
courts were open and held their regular aeaa-
iona, and tranaacted business as in times of
peace. Such being the facts, the question is one of
great importance — important, because it in
volves tbe constitutional guarantees thrown
about tbe rights of tbe citizen, and becauae tbe
security of the army and tbe government in
time of war is involved ; important, as it in
volves a seeming conflict between tbe laws of
peace and of war.
Having given tbe question propounded the
patient and earnest conaideration ita magni
tude and importance require, I will proceed to
give tbe reasons why I ara of the opinion that
the conspiratora not only may but ought to be
tried by a military tribunal.
A civil court of tbe United States is created
by a law of congreas, under and according to
tbe Conatitution. To the Conatitution and the
law we muat look to ascertain how the court is
constituted, tbe limits of its jurisdiction, and
what its mode of procedure.
A railitary tribunal exists under and accord
ing to the Conatitution in time of war. Con
greaa may preacribe how all such tribunals are
to be constituted, what shall be their jurisdic
tion and mode of procedure. Should Congress
fail to create such tribunals, then, under the

Constitution, they must be constituted accord
ing to tbe laws and usages of civilized war-
fal-e. They may take cognizance of such of
fenses as tbe laws of war permit; they muat
proceed according to tbe ouatomary usages of
sucb tribunals in time of war, and inflict such
punishments as are sanctioned by tbe practice
of civilized nationa in time of war. In time
of peace, neither Congreaa nor the military can
create any military tribunala, except auch as
are made in pursuance of that clause of the
Constitution which gives to Congress tbe power
" to raake rules for the government of the land
and naval forcea." I do not think that Con
gress can, in time of war or peace, under this
clause of the Conatitution, create military tri
bunals for tbe adjudication of offenses com
mitted by persons not engaged in, or belonging
to, such forces. This is a proposition too plain
for argument. But it does not follow tbat be
cause such military tribunals can not be cre
ated by Congreaa under this clause, that tbey
can not be created at all. Is there no other
power conferred by tbe Constitution upon Con
gress or the military, under which such tribu
nals may be created in tirae of war?
That the law of nations conatitutea a part of
the lawa of the land, raust be admitted. The
lawa of nationa are expreaaly made lawa of the
land by the Constitution, when it aays that
" Congress shall bave power to define and pun
ish piracies and felonies committed on tbe high
aeaa and offenaea againat the lawa of nationa."
To define ia to give theliraita or precise meaning
of a word or thing in being ; to make, is to call
into being. Congresa has power to define, not
to make, the lawa of nationa ; but Congreaa baa
tbe power to make rules for the government of
the army and navy. From the very face of the
Constitution, then, it ia evident that the laws
of nations do constitute a part of tbe lawa of
tbe land. But very soon after the organization
of the Federal Government, Mr. Randolph, then
Attorney General, aaid; "The law of nationa,
although not specifically %dopted by the Con
stitution, ia essentially a part of tbe law of the
land. Its obligation commencea and runa with
403

404

APPENDIX.

the existence of a nation, subject to modification 1
on some points of indifference." (See opinion j
Attorney General, vol. 1, page 27.) Tbe framers
of the Constitution knew that a nation could
not maintain an honorable place among the
nationa of tbe world that doea not regard the
great and eaaential principlea of the law of na
tions aa a part of the law of the land. Hence
Congress raay define those laws, but can not
abrogate tbera, or as Mr. Randolph says, may
"modify on some points of indifference."
That the laws of nations constitute a part of
the laws of the land is estabUshed frora the face
of the Constitution, upon principle and by au
thority. But the laws of war constitute ranch the
greater part of tbe law of nationa. Like tbe other
lawa of nationa, tbey exist and are of binding
force upon the departmenta and citizena of tbe
Government, though not defined by any law of
Congress. No one that has ever glanced at the
raany treatises that have been publiabed in dif
ferent agea of tbe world by great, good and
learned men, can fail to know that the lawa of
war constitute a part of the law of nations,
and that those laws have been prescribed with
tolerable accuracy.
Congress can declare war. When war is de
clared, it must be, under the Constitution, car
ried on according to the known laws and uaagea
of war among civilized nationa. Under the
power to define those laws, Congress can not
abrogate thera or authorize their infraction.
The Constitution does not permit thia Govern
ment to prosecute a war as an uncivilized and
barbarous people.
Aa war ia required by the frame-work of our
Government to be prosecuted according to the
known uaagea of war among the civilized na
tiona of the earth, it ia important to underatand
what are the obligations, dutiea and reaponai-
bilities imposed by war upon the military. Con
gress, not having defined, as under the Consti
tution it might have done, the lawa of war, we
must look to the usage of nations to ascertain
the powers conferred in war, on whom tbe ex
ercise of such powers devolve, over whom, and
to what extent do those powers reach, and in
how far the citizen and the soldier are bound
by tbe legitimate use thereof.
Tbe power conferred by war is, of course,
adequate to the end to be accomplished, aud not
greater than what is neceasai'y to be accom
pliabed. The law of war, like every other code
of laws, declarea what shall not be done, and
does not aay what may be done. The legitimate
«se of tbe great power of war, or rather tbe pro
hibitions upon the use of that power, increase
or diminish as tbe necessity of the case demands
When a city is besieged and hard pressed, the
eommander may exert an authority over the
non-combatants which he may not when no
enemy is near.
All wars against a domeatic enemy or to re
pel invaaiona, are prosecuted to preserve the
Qoverument. If the invading force can be over-
oome by tbe ordinary civil police of a country, it
should be done without bringing upon the coun
try the terrible scourge of war ; if a commotion
or insurrection can be put down by the ordi

nary proceaa of law, tbe military shoula not be
called out. A defenaive foreign war ia declared
and carried on becauae tbe civil police ia inade
quate to repel it ; a civil war is waged becauae
the lawa can not be peacefully enforced by the
ordinary tribunals of the country through civil
process and by civil officera. Because of the
utter inability to keep the peace and maintain
order by the customary officers and agencies in
tirae of peace, armiea are organized and put into
tbe field. They are called out and inveated witli
tbe powera of war to prevent total anarchy and
to preaerve the Government. Peace is the nor
mal condition of a country, and war abnormal,
neither being without law, but each having laws
appropriate to tbe condition of society. The
maxira enter arma silent leges is never wholly true.
Tbe object of war is to bring society out of its
abnormal condition ; and the lawa of war aim
to have that done with the least poasible injury
to peraons or property.
Anciently, when two nations were at war, the
conqueror had, or asserted, the right to take
from his enemy his life, liberty and property ;
if cither was spared, it waa as a favor or act of
mercy. By tbe laws of nationa, and of war aa
a part thereof, the conqueror was deprived of
this right.
When two governments, foreign to each other,
are at war, or when a civil war becomes terri
torial, all of the people of the respective bel
ligerents become by the law of nations the ene
mies of each other. As enemies they can not
hold intercourse, but neither can kill or injure
the other except under a coraraission from their
respective governments. So humanizing have
been, and are the laws of war, that it ia a high
offenae against them to kill an enemy without
such coramission. The laws of war demand
that 11 raan shall not take huraan life except
under a license from his government ; and under
tbe Constitution of tbe United States no license
can be given by any department of tbe Govern
ment to take human life in war, except accord
ing to the law and usages of war. Soldiera
regularly in the aervice have the license of tho
governraent to deprive men, the active enemies
of their government, of their liberty and Uvea;
their coramission ao to act is as perfect and
legal as that of a judge to adjudicate, but' the
soldier must act in obedience to the laws of war,
as the judge must in obedience to the civil law.
A civil judge must try criminals in tbe mode
prescribed in tbe Conatitution and the law ; ao,
soldiera must kill or capture according to the
lawa of war. Non-combatants are not to be dis
turbed or interfered with by tbe armies of either
party except in extreme cases. Armies are
called out and organized to meet and overcome
tbe active, acting public enemies.
But enemies witl;i which an army baa to deal
are of two claaaes :
1. Open, active participanta in hostilities, aa
soldiers who wear tbe uniform, move under the
flag, and hold the appropriate commisaion from
their government. Openly assuming to dis
charge the duties and meet tbe reaponaibilities
and dangera of soldiera, they are entitled to all
belligerent rights, and should receive all the
courtesies due to soldiera. The true soldier is

APPENDIX.

405

proud to acknowledge and respect those rights,
and ever cheerfully extends tboae courtesies.
2. Secret, but active participanta, aa apies,
brigands, buahwhackers, jayhawkers, war rebels
and asaaasins. In all wars, and especially in
civil wars, such aecret, active enemiea riae up
to annoy and attack an army, and muat be mot
and put down by the army. When lawless
wretches become so impudent and powerful as
not tobecontroUed andgovernedby theordinary
tribunals of a country, armies are called out, and
the laws of war invoked. Wars never have been
and never can be conducted upon the principle
that an army is but a posse comitaius of a civil
magiatrate. An army, like all other organized bodies, has
a right, and it ia its firat duty, to protect its own
existence and tbe exiatence of all ita parts, by
the meana and in tbe mode usual among civil
ized nationa when at war. Then tbe question
arises, do tbe lawa of war authorize a different
mode of proceeding, and the uae of different
means against secret active enemiea from those
used against open active enemies ?
As has been said, the open enemy or soldier in
time of war may be met in battle and killed,
wounded or taken priaoner, or ao placed by the
lawful strategy of war aa that he ia powerleas.
Unless the law of self-preservation absolutely de
mands it, tbe life of a wounded enemy or a pris
oner must be spared. Unless pressed thereto by
tbe extrenfieat necessity, the laws of war condemn
and punish with great severity harsh or cruel
treatment to a wounded enemy or a prisoner.
Certain stipulations and agreements, tacit or
express, betwixt tbe open belligerent parties,
are permitted by the laws of war, and are held
to be of very high and sacred character. Sucb
is tbe tacit understanding, or it may be usage,
of war, in regard to flags of truce. Flags of
truce are resorted to as a means of saving hu
man life, or alleviating human suffering. When
not used with perfidy, tbe laws of war require
that tbey should be respected. The Romans
regarded ambassadors betwixt belligerents as
persona to be treated with consideration and
reapect. Plutarch, in hia Life of Ccesar, tella ua
that tbe barbariana in Gaul having aent aome
arabasaadors to Caeaar, he detained them, charg
ing fraudulent practicea, and led his army to
battle, obtaining a great victory.
When tbe Senate decreed festivals and sacri-
ficea for the victory, Cato declared it to be bia
opinion that Cffisar ought to be given into the
hands of the barbariana, that ao the guilt which
thia breach of faith might otherwise bring upon
the State might be expiated by transferring tbe
curse on Mm who was tbe occasion of it.
Under tbe Conatitution and lawa of tbe United
Statea, abould a commander be guilty of aucb a
(laafant breach of law as Cato charged upon
(r',isar, he would not be delivered to tbe enemy,
but would be punished after a miUtary trial.
The many honorable gentlemen who hold com
misaiona in the army of the United States, and
have been deputed to conduct war according to
the lawa of war, would keenly feel it as an in
sult to tbeir profeaaion of arma for any one to
say that they could not or would not punish a
feUow-soldier who waa guUty of wanton cruelty

to a prisoner, or perfidy toward the bearers of a
flag of truce.
The laws of war permit capitulations of sur
render and paroles. 'Ihey are agreements be
twixt belligerenta, and should be scrupulously
observed and performed. Tbey are contracts
wholly unknown to civil tribunals. Parties
to such contracts must answer any breaches
thereof to the customary military tribu
nals in time of war. If an officer of rank,
possessing tbe pride that becomes a aoldier and
a gentleman, who should capitulate to surren
der the forcea and property under bis command
and control, be charged with a fraudulent
broach of the terms of surrender, the laws of
war do not permit that be should be punished
without a trial, or, if innocent, that he ahall
have no meana of wiping out tbe foul imputa
tion. If a paroled prisoner ia charged with a
breach of bia parole, be may be puniahed if
guilty, but not without a trial. He abould be
tried by a military tribunal, conatituted and
proceeding aa tbe lawa and usages of war pre
scribe. The law and usage of war contemplate that
soldiers have a high aenae of peraonal honor.
Tbe true aoldier ia proud to feel and know that
Ma eneray poasessea personal honor, and will
conform and be obedient to tbe laws of war.
In a spirit of justice, and with a wise appreci
ation of such feelings, the laws of war protect
the character and honor of an open enemy.
When by the fortunea of war one open enemy
ia fhrown into the handa and power of another,
and ia charged with dishonorable conduct and a
breach of the laws of war, he muat be tried ac
cording to the uaagea of war. Juatice and
fairness say that an open enemy to whora dis
honorable conduct is imputed, has a right to
demand a trial. If sucb a demand can be right
fully made, surely it can not be rightfully re
fused. It is to be hoped that tbe military au
tboritiea of this country will never refuse aucb
a demand, because there is no act of Congress
that authorizes it. In tirae of war tbe law and
usage of war authorize it, and tbey are a part
of the law of tbe land.
One belligerent raay request the other to pun
ish for breaches of the laws of war, and, regu
larly, sucb a requeat should be made before
retaliatory measures are taken. Whether the
laws of war have been infringed or not, is of
necessity a question to be decided by tbe laws
and uaagea of war, and is cognizable before a
military tribunal. When prisoners of war con
apire to escape, or are guilty of a breach of
appropriate and neceasary rules of prison dis
cipline, they may be punished, but not without
trial. The commander who should order every
prisoner charged with improper conduct to be
ahot or hung, would be guilty of a high oft'enso
againat the lawa of war, and ahould be puniahed
therefor, after a regular military trial. If the
culprit should be condemned and executed, the
commander would be as free from guilt aa if the
man had been killed in battle.
It ia manifest, from what has been said, that
railitary tribunala exist under and according to
tbe laws and uaagea of war, in the interest of jus
tice and mercy. Tbey are established to aave hu-

406

APPENDIX,

man life,and to prevent cruelty as far aa poaaible.
Tbe commander of an army in time of war haa
the aame power to organize military tribunala
and execute their judgments that be has to aet
his squadrons in the field and fight battles.
His authority in each caae is from the law and
usage of war.
Having seen that there must be military tri
bunala to decide queations ariaing in time of
war betwixt belligerents who are open and
active enemies, let ua next see whether tbe laws
of war do not authorize auch tribunala to deter
mine the fate of those who are active, but aecret,
participanta in the hostilities.
In Mr. Wbeaton's Elements of International
Law, he says : "Tbe effect of a state of war, law
fully declared to exist, is to place all tbe sub
jects of each belligerent power in a atate of mu
tual hostility. The uaage of nations bas modified
thia maxim by legalizing aucb acts of hostility
only as are committed by thoae who are author
ized by the express or implied command of tbe
State; sucb are the regularly commissioned
naval and military forces of tbe nation and all
others called out in its defenae, or spontane
ously defending themselves, in case of necessity,
without any express authority for that purpose.
Cicero tella us in his offices, that by the Roman
feudal law no person could lawfully engage in
battle with the public enemy without being
regularly enrolled, and taking the military oath.
This was a regulation sanctioned both by policy
and religion. Tbe horrors of war would indeed
be greatly aggravated, if every individual of
tbe belligerent States were allowed to plunder
and slay indiacriminately theenemy'a subjects,
without being in any manner accountable for
hia conduct. Hence it is that, in land wars, ir
regular bands of marauders are liable to be treated
as lawless banditti, noi entitled to the protection of
the mitigated usages of war as practiced by civilized
nations," ( Wheaion's Elements of International
Law, page 406, 3d edition.)
In apeaking upon the aubject of banditti,
Patrick Henry said, in the Virginia Convention,
"The honorable gentleman has given you an
elaborate account of what he judges tyrannical
legislation, and an ex post facto law (in the caae
of Joaiah Pbillipa); be haa miarepreaented tbe
facta. That man was not executed by a tyran
nical atroke of power; nor waa he a Socrates;
he waa a fugitive murderer and an outlaw ; a
man who commanded an infamous banditti, and
at a time when ihe war was at the mostperilous stage
he committed the moat cruel and shocking bar-
baritiea ; he waa an enemy to the human name.
Thoae who declare war againat tbe huraan race
may be struck out of existence as soon aa ap
prehended. He was not executed according to
those beautiful legal ceremonies which are
pointed out by the lawa in criminal casea. The
enormity of his crime did not entitle him to it.
I am truly a friend to legal forma and methoda,
but, sir, the occaaion warranted the measure.
A pirate, an outlaw, or a common enemy to all
mankind, may be put to death at any time. It
is justified by the law of nature and nations." (3d
volume Elliott's Debates on Federal Constitution,
page 140.)
No reader, not to say student, of the law of

nations, can doubt but that Mr.Wheaton and Mr.
Henry have fairly stated tbe lawa of war. Let
it be constantly borne in mind that they are
talking of tbe law in a state of war. Theae ban
ditti that apring up in time of war are reapect-
era of no law, human or divine, of peace or of
war, are hostes humani generis, and may be hunted
down like wolvea. 'Thoroughly desperate and
perfectly lawleas, no man can be required to
peril his life in venturing to take tbem prison-
era — aa prisoners, no trust can be reposed in
them. But they are occasionally made priaon-
era. Being prisoners, what is to be done with
tbem? If tbey are public enemiea, asauming
and exercising the right to kill, and arc not
regularly authorized to do so, they muat be ap
prehended and dealt with by the military. No
man can doubt the right and duty of the mili
tary to make prisonera of them, and being
public enemies, it ia the duty of the military to
punish them for any infraction of the lawa of
war. But the military can not ascertain
whether they are guilty or not without the aid
of a military tribunal.
In all wars, and especially in civil wars,
aecret but active enemies are almoat aa numer
ous as open ones. That fact has contributed to
make civil wara aucb acourges to tbe countries
in which tbey rage. In nearly all foreign wars
tbe contending parties speak difl'erent languages
and have different habits and manners; but in
most civil wara that ia not tbe caae; hence
there ia a aeourity in participating aecretly in
boatilitiea that induces many to thua engage.
War proaecuted according to the moat civilized
uaage ia horrible, but ita horrors are greatly
aggravated by tbe immemorial habita of plun
der, rape and murder practiced by secret, but
active participants. Certain laws and usages
have been adopted by the civilized world in wars
between nationa that are not of kin to one an
other, for the purpose and to the effect of arrest
ing or softening many of the neceaaary cruel
consequences of war. How atrongly bound ara
we, then, in the midst of a great war, where
brother and personal friend are fighting against
brother and friend, to adopt and be governed by
tboae laws and uaagea.
A public enemy must or should be dealt with
in all wara by the aame lawa. The fact that
they are public enemiea, being the aame, they
ahould deal with each other according to thoae
laws of war that are contemplated by the Con
stitution. Whatever rulea have been adopted
and practiced by the civilized nations of the
world in war, to soften ita harshneaa and
aeverity, should be adopted and practiced by us
in this war. That tbe laws of war authorized
commanders to create and establish military
commissions, courts or tribunala, for tbe trial
of offendera againat the lawa of war, whef^er
they be active or secret participants "i!)
tbe hostilities, can not be denied. That tbe
judgments of such tribunala may have been
aome timea harab, and aometimes even tyranni
cal, doea not prove that they ought not to exist,
nor does it prove that they are not constituted
in the interest of justice and mercy. Consider
ing tbe power that tbe laws of war give over
secret participants in hostilities, such as ban-

APPENDIX.

407

ditti, guerrillas, spies, etc., the position of a
commander would be miserable indeed if he
oould not call to his aid the judgments of auch
tribunals ; he would become a mere butcher of
men, without the power to ascertain justice, and
there can be no mercy where there is no justice.
War in its mildest form ia horrible ; but take
away from the contending armies the abiUty
and right to organize what is now known aa a
Bureau of Military Juatice, tbey would soon
become monster savagea, unreatrained by any
and all ideas of law and juatice. Surely no
lover of mankind, no one that reapeota law and
order, no one that haa the inatinct of justice, or
that can be aoftened by mercy, would, in time
of war, take away from tbe commanders tbe
right to organize military tribunala of justice,
and eapecially such tribunala for the protection
of persona charged or suapeoted with being
secret foes and participants in tbe hostilities.
It would be a miracle if tbe records and Mstory
of this war do not show occasional cases in
which those tribunals have erred ; but they will
show many, very many cases in which human
Ufe would have been taken but for the interpo
sition aud judgments of those tribunals. Every
student of tbe laws of war must acknowledge
that such tribunala exert a kindly and benign
influence in time of war. Impartial hiatory
will record the fact that the Bureau of Military
Juatice, regularly organized during thia war, baa
saved human life and prevented human suffer
ing. The greatest suffering, patiently endured
by soldiers, and tbe hardest battles gallantly
fought during this protracted struggle, are not
more creditable to tbe American character than
the eatabliabment of thia bureau. Tbia people
have such an educated and profound reapect for
law ^nd juatice — such a love of mercy — ^that
they bave, in tbe midst of this greatest of civil
wara, ayatematized and brought into regular
order, tribunals that before this war existed
under tbe law of war, but without general rule.
To condemn the tribunals that have been estab
Ushed under thia bureau, ia to condemn and
denounce the war itself, or juatifying the war,
to insist that it shall be prosecuted according to
the harshest rules, and without the aid of tbe
lawa, uaages and customary agenciea for miti
gating thoae rulea. If such tribunala bad not
existed before, under the laws and uaagea of
war, tbe American citizen might as proudly
point to their establishment as to our inimitable
and inestimable constitutions. It must be con
stantly borne in mind that such tribunala and
such a bureau can not exiat except in tirae of
war, and can not then take cognizance of offen
dera or offenaes where the civil courts are open,
except offenders and offenses againat the lawa
of war.
But it ia insisted by some, and doubtless with
honeaty, and with a zeal commensurate with
their boneaty, that such military tribunala can
have no conatitutional existence. The argu
ment againat their constitutionality may be
ahortly, and I think fairly, stated thus:
Congress alone can eatablish military or civil
judicial tribunala. As Congreas haa not estab
Ushed miUtary tribunals, except such as' have
teen created under the articles of war, and

which artioloa are made in pursuance of that
clause iu tbe Conatitution which gives to Con
gresa tbo power to make rules for tbo govern
ment of the army and navy, any other tribunal
is and must be plainly unconstitutional, and all
its acta void.
This objection thus atated, or stated in any
other way, begs tbe question. It aaaumes that
Congress alone can establish military judicial
tribunals. Is that assumption true ?
Wo bave seen that wbon war comes, the laws
and uaagea of war come alao, and that during
the war tbey are a part of the lawa of the land.
Under the Conatitution, Congreas may define
and puniah offenaea againat thoae laws, but in
default of Congress defining those laws and pre
scribing a puniahment for their infraction, and
the mode of proceeding to aacertain whether an
offenae has been committed, and what punish
ment ia to be infiicted, the army muat be gov
erned by the lawa and uaagea of war as under-
derstood and practiced by the civilized nations
of the world. It has been abundantly ahown
that these tribunala are conatituted by tbe army
in the intereat of justice and mercy, and for the
purpose and to the effect of mitigating the hor
rors of war.
But it may be insisted that though the lawa
of war, being a part of the law of nations, con
atitute a part of the lawa of the land, that thoae
lawa muat be regarded aa modified ao far, and
whenever they come in direct conflict with plain
constitutional proviaions. ThefoUowing clauses
of tbe Conatitution are principally relied upon
to show the conflict betwixt the laws of war and
the Constitution ;
"The trial of all Crimea, except in cases of
impeachment, shall be by tbe jury; and auch
trial shall be held iu the State where tbe said
crime shall have been committed ; but when not
committed within any State, the trial shall bo
at such place or places as tbe Congreaa may by
law have directed." (Art. Ill of the original
Constitution, sec, 2.)
" No peraon shall be held to answer for a
capital or otherwise infamous crime unless on
a presentment or indictment of a grand jury,
except in cases arising in tbe land or naval
forcea, or in the miUtia when in actual aervice,
in time of war or public danger; nor shall any
peraon be aubject for tbe aame offenae to be twice
put in jeopardy of life or limb, nor aball be com
pelled, in any criminal case, to be witness
against himself, nor be deprived of life, liberty
or property, without due proceaa of law; nor
ahall private property be taken for public use
without just compensation." (Ametidmenti to
the Constitution, Art, V.)
" In all criminal prosecutiona, the accused
ahall enjoy the right of a apeedy and public
trial by an impartialjury of the State and dia
trict wherein the crime ahall have been com
mitted, which diatrict shall have been previously
ascertained by law, and be informed of the na
ture and cause of tbe accusation ; to be con
fronted with the witneaaea againat him, to have
compulsory process for obtaining witneaaes iu
bis favor ; and to have the assistance of counsel
for bis defense." (Art. VI of the amendments to
the Constitution,)

408

APPENDIX

These provisions of the Constitution are in
tended to fling around the life, liberty and prop
erty of a citizen all tho guaranteea of a jury
trial. These conatitutional guaranteea can not
beeatimated toobighly, or protected too sacredly.
The reader of history knows that for many
weary ages the people suffered for the want of
them ; it would not only be stupidity, but mad
ness in us not to preserve them. No man has
a deeper conviction of their value, or a more
sincere desire to preserve and perpetuate thera
than I bave.
Neverthelesa, these exalted and sacred pro
visions of tbe Constitution must not be read
alone and by themaelvea, but muat be read and
taken in connexion with other provisions. The
Conatitution waa framed by great men — men of
learning ahd large experience, and it is a won
derful monument of tbeir wisdom. W^ell versed
in the history of tbe world, tbey knew that the
nation for which they were forming a govern
ment would, unless all history was false, have
wars, foreign and domestic. Hence the govern
ment framed by them ia clothed with tbe power
to make and carry on war. As has been shown,
when war comes, tbe laws of war corae with it.
Infractions of the laws of nations are not de
nominated crimes, but offenses. Hence the ex
pression in the Constitution that " Congress
ahall have power to define and punish '* «
offenses againat the law of nations," Many of
the offenses against the law of nations for which
a man may, by tbe laws of war, lose his life, bis
liberty or bis property, are not crimes. It is an
offense against the law of nations to break a
lawful blockade, and for which a forfeiture of
the property ia the penalty, and yet the running
a blockade baa never been regarded a crime ;
to bold communication or intercourae with the
enemy is a high offense againat tbe lawa of war,
and for which those laws preacribe punishment,
and yet it is not a crime; to act as a apy is an
offense against tbe lawa of war, and the puniah
ment for which in all agea haa been death, and
yet it is not a crime; to violate a flag of truce
is an offense against the lawa of war, and yet
not a crime of which a civil court can take cog
nizance; to unite with banditti, jayhawkers,
guerrillas or any other unauthorized marauders
is a high offense against tbe laws of war ; the
offenae ia complete when tbe band is organized
or joined. Tbe atrocities committed by aucb a
band do not conatitute the offenae, but make tbe
reasons, and sufficient reaaona tbey are, why
auch banditti are denounced by tbe laws of war.
Some of tbe offensea againat tbe laws of war are
Crimea, and aome not. Becauae they are crimes
they do not cease to be offenaes against those
laws; nor becauae tbey are not Crimea or mia-
demeanora do they fail to be offenses against
tbe laws of war. Murder ia a crime, and the
murderer, as aucb, muat be proceeded against in
tbe form and manner preacribed in the Consti
tution ; in committing the murder an offense
may also have been committed against the laws
of war; for that offense be muat anawer to the
laws of war, and the tribunals legaUzed by that
law. There is, then, an apparent but no real con
flict in the conatitutional proviaions. Offenses

againat the laws of war muat be dealt with and
punished under the Conatitution, as the laws of
war, they being part of tbe law of nationa di
rect ; crimes muat be dealt with and puniahed as
the Constitution, and laws made in pursuance
thereof, may direct.
Congresa has not undertaken to define the
code of war nor to puniah offensea against it.
In the case of a spy, Congreas haa undertaken
to say who shall be deemed a spy, and how he
shall be punished. But every lawyer knows
that a spy was a well-known offender under the
laws of war, and that under and according to
those laws he could bave been tried and pun
ished without an act of Congreaa. This is ad
mitted by the act of Congress, when it aays that
he shall suffer death "according to tbe law aud
usages of war." Tbe act is simply declaratory
of the law.
That portion of the Constitution which de
clares that "no person ahall be deprived of his
life, liberty or property without due process of
law," bas sucb direct reference to, and connec
tion with, triala for crime or criminal proaecn-
tions, that coraraent upon it would seem to be
unnecessary. Trials for offenses against the
laws of war are not embraced or intended to be
erabraced in those provisions. If this ia not so,
then every raan that killa another in battle is a
murderer, for be deprived a "person of Ufe
without that due prooeas of law" contemplated
by tbia provision ; every man that holds an
other as a prisoner of war ia liable for false
imprisonment, as he doea so without that
due process of law contemplated by thia pro
vision ; every soldier that marches across
a field in battle array is liable to an action
of trespass, because he doea it without that
same due process. The argument that ftings
around offenders against the laws of war these
guarantees of the Constitution would convict aU
the soldiera of our army of murder; no priaon-
ers could be taken and held ; the army could
not move. Tbe absurd conaequencea that would
of necessity flow from auob an argument show
that it can not be the true conatruction — it can
not be what waa intended by the framers of the
instrument. One of the prime motives for tbe
Union and a Federal Government was to confer
the powers of war. If any provisions of the
Conatitution are so in conflict with tbe power to
carry on war aa to destroy and make it value
less, then the instrument, instead of being a
great and wise one, is a, miserable failure, a
felo de se.
If a man should aue out his writ of habeas
corpus, and the return shows that he belonged to
tbe army or. navy, and was held to be tried for
sorae ofl'enae againat the rulea and articlea of
war, the writ should be diamiased, and the party
remanded to anawer to tbe chargea. So, in
time of war, if a man abould aue out a writ of
habeas corpus, and it ia raade appear that he ia
in the hands of the military as a priaoner of
war, the writ should be dismissed and the pris
oner remanded to be disposed of as the laws and
uaagea of war require. If the prisoner be »
regular unoffending soldier of the oppoaing
party to tbe war, he ahould be treated with all
tbe courteay and kindness consistent with his

APPENDIX,

409

safe custody ; if he has offended againat tbe
laws of war, he ahould have such trial and be
punished aa the laws of war require. A spy,
though a prisoner of war, may be tried, con
demned and executed by a miUtary tribunal
without a breach of tbe Conatitution. A buah-
whaoker, a jaybawker, a bandit, a war rebel,
an asaaasin, being public enemies, may be tried,
condemned and executed as offenders against
the laws of war. The soldier that would fail to
try a spy or bandit after bis capture, would be
as derelict in duty aa if he were to fail to cap
ture ; be ia as much bound to try and to execute,
if guilty, aa be ia to arreat; the same law that
makes it bis duty to pursue and kill or capture,
makes it his duty to try according to the usages
of war. The judge of a oivil court is not more
strongly bound under the Constitution and tbe
law to try a criminal than is tbe military to try
an offender against tbe laws of war.
Tbe fact that the civil courts are open does not
affect the right of the military tribunal to hold
as a priaoner and to try. The civil courta have no
more right to prevent tbe military, in time of
war, from trying an offender againat the laws
of war than tbey have a right to interfere with
and prevent a battle. A battle may be lawfully
fought in tbe very view and presence of a court ;
so a apy^ a bandit or other offender against tbe
law of .W*r, may be tried, and tried lawfully,
when and where the civil courts are open and
transacting tbe uaual business.
The laws of war authorize human Ufe to be
taken without legal process, or that legal pro
cess contemplated by those proviaions in tbe
Constitution that are relied upon to show that
military judicial tribunals are unconstitutional.
Wara ahould be prosecuted justly as well as
bravely. One enemy in the power of another,
whether he be an open or a secret one, should
not be punished or executed without trial. If
the question be one concerning the laws of war,
he abould be tried by thoae engaged in the war ;
they and they only are bia peera. Tbe military
muat decide whether he ia or not an active
participant in the boatilitiea. If he ia an active
participant in the boatilitiea, it ia tbe duty of
the military to takebim a priaoner without war
rant or other judicial proceaa, and diapoae of
Mm aa the lawa of war direct.
It is curious to aee one and the aame mind
justify the killing of thouaanda in battle be
cause it is done according to the lawa of war,
and yet condemning that same law when, out of
regard for juatice and with tbe hope of saving
Ufe, it orders a military trial before the enemy
are killed. The love of law, of justice and the
wish to aave life and suffering, should impel aU
good men in time of war to uphold and sustain
the existence and action of sucb tribunals. The
object of such tribunals ia obviously intended
to aave life, and when tbeir juriadiction is con
fined to offensea against tbe laws of war, that is
their effect. They prevent indiacriminate
slaughter ; they prevent men from being pun
ished or killed upon mere suspicion.

The law of nationa, which is tbe result of the
experience and wisdom of ages, haa decided that
jayhawkers, banditti, etc., aro off'endera a'gainst
the lawa of nature and of war, and aa auch
amenable to tbe military. Our Conatitution has
made those laws a part of the law of the land.
Obedience to the Constitution and the law,
then, requires that the military should do their
whole duty ; tbey must not only meet and fight
tbe enemies of tbe country in open battle, but
tbey must kill or take tbe aecret enemies of the
country, and try and execute tbem according
to tbe laws of war. The civil tribunals of tbe
country can not rightfully interfere with the
military in the performance of their high, ardu
ous and perilous, but lawful duties. That Booth
and his associates were secret active public ene
miea, no mind that contemplatea the facta can
doubt. Tbe exclamation uaed by him when he
eacaped from tbe box on to tbe atage, after be bad
fired the fatal abot, sic semper tyrannis, and bis
dying message, " Say to my mother that I died
for my country," show that he was not an asr
sasain from private malice,, but that he acted as
a public foe. Such a deed ia expresaly laid
down by Vattel, in hia work on the law of na
tiona, aa an offense againat the laws of war,
and a great crime. "I give, then, the name of
aasassination to a treacherous murder, whether
the perpetrators of the deed be the subjects of
the party whom we cause to be assassinated or
of our own sovereign, or that it be executed by
any other emissary introducing himself as a
suppliant, a refugee or a deserter, or, in fine, as
a atranger." ( Vattel, 339.)
Neither tbe civil nor the military department
of the Government should regard itself aa wiaer
and better than the Conatitution and the laws
that exiat under or are made in purauance thereof.
Each department should, iu peace and in war, •
confining itself to its own proper sphere of ac
tion, diligently and fearlessly perform its legiti
mate functions, and, in tbe mode prescribed by
the Conatitution and the law. Sucb obedience
to and obaervance of law will maintain peace
when it exiata, and will aoo;tieat relieve the
country from tbe abnormal atate of war.
My conclusion, therefore, is, that if the per
sons who are charged with the assassination of
tbe President committed tbe deed as public ene
mies, aa I believe they did, and whether they did
or not is a question to be decided by tbe tribu
nal before which they are tried, they not only
can, but ought to be tried before a military tri
bunal. If the persons charged have offended
against tbe laws of war, it would be as palpa
bly wrong for tbe military to hand them over
to tbe civil courts, as it would be wrong in a
civil court to convict a man of murder who had,
in time of war, killed another in battle.
I am, sir, most respectfully, your obedient
servant, JAMES SPEED,
Attorney GeneraL
To the Preaident

INSTRUCTIONS

GOVERNMENT OF ARMIES OF THE UNITED STATES
IN THE FIELD.

GENERAL ORDERS, NO. 100.

ITMENT, "I
,'s Office, v
24, 1863. J

War Department,
Adjutant General's
Washington, April
The following " Instructions for the Govern
ment of Armiea of the United Statea in the
Field," prepared by Francis Leiber, L. L D., and
revised by a Board of Officera, of which Major-
General E. A. Hitchcock ia President, having
been approved by the President of tbe United
States, he commands that they be publiabed for
the information of all concerned.
Bt Order of the Secretary of War ;
E. D. TOWNSEND,
Assistant Adjutant General.

SECTION I.
Martial Law — Military Jurisdiction — Miliiary Ne
cessity — Retaliation.
1. A place, district or country occupied by
An enemy, stands, in consequence of the occupa
tion, under tbe martial law of the invading or
occupying army, whether any proclamation de
claring martial law, or any public warning to
the inhabitants baa been iaaued or not. Martial
law ia the immediate and direct effect and con
sequence of occupation or conquest.
The presence of a hostile army proclaims ita
martial law.
2. Martial law does not cease during the hoa
tile occupation, except by special proclamation,
• ordered by the Commander-in-Chief, or by
special mention in tbe treaty of peace conclud
ing the war, when tbe occupation of a place or
territory continuea beyond the concluaion of
peace as one of the conditions of the aame.
3. Martial law in a hoatile country consists
in the suspension, by tbe occupying military
authority, of the criminal and civil law, and of
the domestic administration and government in
the occupied place or territory, and in tbe sub
stitution of military rule and force for tbe same,
as well aa in the dictation of general laws, aa
far as military necessity requires this suspen
sion, substitution or dictation.
The commander of the forces may proclaim
that the adminiatration of all civil and penal
law shall continue, either wholly or in part, aa
In times of peace, unless otherwise ordered, by
the miUtary authority.
410

4. Mortial law ia aimply miUtary authority
exercised in accordance with the laws and
uaagea of war. Military oppreaaion ia not mar
tial law ; it is the abuse of the power which that
law confers. As martial law is executed by
military force, it is incumbent upon those
who administer it to be atrictly guided by the
principles of justice, honor and humanity — vir
tues adorning a aoldier even more than other
men, for tbe very reason that be possesses the
power of bia arms againat the unarmed.
5. Martial law ahould be leaa stringent in
places and countries fully occupied a,ad fairly
conquered. Much greater severity m'ip^\be ex
ercised in places or regions where actual hos-
tilitiea exiat, or are expected and muat be pre
pared for. Ita moat complete sway ia allowed —
even in tbe commander'a own country — when
face to face with the enemy, beoauae of the ab
solute neceasitiea of tbe caae, and of tbe para
mount duty to defend the country againat in
vasion. To save the country is paramount tb all other
considerations. 6. All civil and penal law shall continue to
take its usual course in the enemy's places and
territoriesunder martial law, unless interrupted
or stopped by order of the occupying military
power ; but all the functions of the hostile gov
ernment—legislative, executive or administra
tive — whether of a general, provincial or local
character, cease under martial law, or continue
only with the sanction, or if deemed neceasary,
the participation of the occupier or invader.
7. Martial law extenda to property, and to
persons, whether they are subjects of the enemy
or aliens to that government.
8. Conaula, among American and European
nations, are not diplomatic agenta. Neverthe
less, their offices and persona will be aubjected
to martial law in caaes of urgent neceaaity only:
their property and buaineas are not exempted.
Any delinquency they commit againat the ea
tabliahed military rule may be punished as in the
case of any other inhabitant, and such punish
ment furniabea no reasonable ground for inter
national complaint.
9. Tbe functiona of Ambaaaadors, Miniaters
or other diplomatic agents, accredited by neu
tral powers to the hoatile government, ceaae, ao
far aa regards the displaced government ; but
the conquering or occupying power uaually
recognizes them as temporarily accredited to
itself.

APPENDIX.

411

10. Martial law affects jhiefly the police and
flollection of public revenue and taxea, whether
imposed by the expelled government or by the
invader, and refera mainly to the support and
efficiency of the army, its aafety, and the safety
of ita operationa.
11. The law of war doea not only disclaim all
cruelty and bad faith concerning engagementa
concluded with the enemy during the war, but
alao the breaking of atipulations aolemnly con
tracted by tbe belligerenta in time of peace, and
avowedly intended to remain in force in caae
of war between the contracting powera.
It disclaims all extortions and other tranaac-
tiona for individual gain ; all acts of private
revenge, or connivance at such acta. Offenaes
to the contrary shall be severely puniahed,
and especially so if committed by officers.
12. Whenever feasible, martial law is carried
out in oaaea of individual offendera by military
oourta ; but aentencea of death shall be executed
only with the approval of the Chief Executive,
provided the urgency of tbe case does not .re
quire a speedier execution, and then only with
Uie approval of the chief commander.
13. Military juriadiction ia of two kinda :
first, that which is conferred and deflned by
statute ; second, that which is derived from the
common law of war. MiUtary offenses under
the statute law must be tried in the manner
therein directed; but miUtary offenaes which
do not come within tbe statute must be tried
and punished under the common law of war.
The character of the courts which exerciae tbeae
jurisdictions depends upon tbe local laws of
each particular country.
In the armies of the United States the first is
exercised by courts-martial, wbile cases which
do not come within the "Rules and Articlea of
War," or tbe juriadiction conferred by statute
on courts-martial, are tried by military com
missions. 14. Military necessity, as understood by
modern civilized nations, consists in the necea
sity of thoae meaaurea which are indiS'penaable
for aecuring the enda of tbe war, and which are
lawful according to tbe modern law and usages
of war.
15. Military neceasity admits of all direct
deatruction of life or limb of armed enemiea, and
of other persons whose destruction ia incident
ally unavoidable in the armed oonteata of tbe
war; it allowa of tbe capturing of every armed
enemy, and every enemy of importance to tbe
hostile government, or of peculiar danger to
the captor; it allowa of all destruction of prop
erty, and obstruction of the ways and obannela
of traffic, travel or comraunication, and of all
withholding of sustenance or raeans of life from
the enemy; of the appropriation of whatever an
eneray's country affords necessary for the sub
sistence and safety of the army, and of such
deception as does not involve tbe breaking of
good faith either poaitively pledged, regarding
agreements entered into during the war, or
supposed by tbe modern law of war to exist.
Men who take up arms against one another in
nublic war, do not cease, on tbia account, to be
moral beings, reaponaible to one another and to
God.

16. Military necessity doea not admit of orn-
elty, that ia, tbe infliction of suffering for the
sake of suffering or for revenge, nor of maim
ing or wounding except in fight, nor of tortures
to extort oonfesaions. It does not admit of the
uae of poiaon in any way, nor of the wanton
devastation of a district. It admita of decep
tion, but disclaims acta of perfidy; and, in gen
eral, military neceasity doea not include any act
of hoatility which makea the return of peace un-
neceaaarily difficult,
17. War ia not carried on by arma alone. It
ia lawful to starve tbe hostile belligerent, armed
or unarmed, so that it leads to the apeedier sub
jection of the enemy.
18. When the commander of a besieged place
expels the non-combatants, iu order to lessen
tbe number of those who consume his stock of
provisions, it is lawful, though an extreme
measure, to drive them back, ao as to hasten on
the surrender.
19. Commanders, whenever admissible, inform
the enemy of their intention to bombard a place,
so that tbe non-combatants, and especially the
women and children, may be removed before
tbe bombardment commences. But it is no in
fraction of tbe common law of war to omit thua
to inform the enemy. Surprise may be a ne
cessity. 20. Public war is a state of armed hoatility
between sovereign nationa or governmenta. Itia
alaw and requiaite of civilized exiatence that men
live in poUtical, continuoua aooietiea, forming
organized unita, called atatea or nations, whose
conatituenta bear, enjoy and suffer, advance
and retrograde together, in peace and in war.
21. The citizen or native of a hostile country
is thus an enemy, aa one of tbe constituents of
the hostUe atate or nation, and aa auch is sub
jected to the hardships of the war.
22. Nevertheless, as civilization has advanced
during the last centuries, ao haa likewise steadily
advanced, eapecially in war on land, tbe dis
tinction between the private individual belong
ing to a hoatile country and tbe hostile country
itself, with its men in arms. The principle has
been more and more acknowledged that tbe un
armed citizen is to be apared in peraon, property
and honor aa much aa the exigenciea of war wiU
adrait. 23. Private citizena are no longer murdered,
enalaved or carried off to diatant parta, and the
inoffenaive individual ia aa little diaturbed in
hia private relations as the commander of the
hostile troops can afford to grant in tbe overrul
ing demands of a vigoroua war.
24. The almost universal rule in remote tunes
waa, and continuea to be with barbaroua armiea,
that the private individual of the hoatile coun
try is destined to suffer every privation of lib
erty and protection, and every diaruption of
family ties. Protection waa, and still is with
uncivilized people, the exception.
25. In modern regular wara of the Europeans,
and their descendants in other portiona of the
globe, protection of the inoffensive citizen of
tbe hostile country is the rule; privation and
disturbance of private relations are the excep
tions. 26. Commanding generals may cause ths

412

APPENDIX.

magistrates and oivil officers of the hostile coun
try to take the oath of temporary allegiance, or
an oath of fidelity to their own victorious gov
ernment or rulers, and they may expel every
one who declines to do so. But whether they do
so or not, the people and their civil officera owe
strict obedience to tbem as long as they hold
sway over the district or country, at the peril
of their lives.
27. The law of war can no more wboUy dia-
penae with retaliation than can the law of na
tiona, of which it is a branch. Yet civilized
nations acknowledge retaliation aa the sternest
feature of war. A reckleaa enemy often leavea
to his opponentino other meana of aecuring bim
self against tbe repetition of barbarous outrage.
28. Eetaliation will, therefore, never be re
sorted to as a measure of mere revenge, but only
as a means of protective retribution, and, more
over, cautiously and unavoidably; that is to
say, retaliation shall only be resorted to after
careful inquiry into the real occurrence, and
the character of the misdeeds that may demand
retribution. Unjust or inconsiderate retaliation removes
the belligerents farther and farther from the
mitigating rules of a regular war, and by rapid
steps leads them nearer to the internecine wars
of savages.
29. Modern times are diatinguiabed from
earlier ages by the existence, at one and the
same time, of many nations and great govern
menta related to one another in close intercourse.
Peace is their normal condition ; war ia the
exception. The ultimate object of all modern
war is a renewed atate of peace.
The more vigorously wara are puraued, the
better it ia for humanity. Sharp wars are brief.
30. Ever since the formation and co-exist
ence of modern nationa, and ever aince wara
have become great national wara, war haa come
to be acknowledged not to be ita own end, but
the means to obtain great ends of atate, or to
conaist in defenae againat wrong; and no con
ventional reatriction of tbe modes adopted to in
jure the enemy ia any longer admitted; but tbe
law of war imposea many limitations and re-
strictiona on principlea of juatice, faith and
honor. SECTION n.
Public and private property of the enemy — Protec
tion of persons, and especially women ; of religion,
the arts and sciences — Punishment of crimes
against ihe inhabitants of hostile countries,
31. A victorious army appropriatea all public
money, seizea all public movable property until
further direction by ita government, and seques-
tera for ita own benefit or that of ita govern
ment all the revenuea of real property belong
ing to tbe hoatile government or nation. Tbe
title to such real property remains in the abey
ance during military occupation, and until the
conquest is made complete.
82. A victorious army, by the martial power
inherent in the same, may suspend, change, or
abolish, aa far aa the martial power extenda,
the relations which ariae from fha service due.

according to the existing laws of the invaded
country, from one citizen, subject, or native of
the aame to another.
The commander of the army must leave it to
the ultimate treaty of peace to settle the per
manency of this change.
33. It is no longer considered lawful — on the
contrary, it is held to be a serious breach of tbe
law of war — to force the subjects of tbe enemy
into the service of the victorioua government,
except the latter should proclaim, after a fair
and complete conquest of tbe hostile country or
district, that it is resolved to keep the country,
district, or place permanently as its own, and
make it a portion of its own country.
34. As a general rule, the property belong
ing to churches, to hoapitala, or other estab
lishments of an excluaively charitable charac
ter, to establishments of education, or founda
tions for the promotion of knowledge, whether
public schools, universities, academies of learn
ing or observatories, museums of the fine arts,
or of a scientific character — such property is
not to be considered public property in the
sense of paragraph 31 ; but it may be taxed or
uaed when tbe public aervice may require it.
35. Claasical works of art, libraries, scien
tific collections, or precious instruments, such
as astronomical teleacopea, aa well aa hoapitals,
muat be secured against all avoidable injury,
even when they are contained in fortified
places wbile besieged or bombarded.
86. If auch worka of art, librariea, collec
tions, or instruments belonging to a hostile na
tion or government, can be removed without
injury, tbe ruler of the conquering state or na
tion may order them to be seized and removed
for the benefit of tbe said nation. The ultimate
ownership is to be settled by the ensuing treaty
of peace.
In no case shall they be sold or given away,
if captured by tbe armiea of tbe United States,
nor shall they ever be privately appropriated,
or wantonly destroyed or injured.
37. The United States acknowledge and pro
tect, in hostile countries occupied by them, re
ligion and morality; strictly private property;
the persons of tbe inhabitants, eapecially those
of women ; and tbe sacrednesa of domeatic re
lations. Offenses to tbe contrary shall be rig-
oroualy punished.
This rule doea not interfere with the right of
the victorioua invader to tax tbe people or
their property, to levy forced loans, to billet
soldiers, or to appropriate property, eapecially
bousea, land, boats or ships, and churches, for
temporary and military uses.
38. Private property, unices forfeited by
orimes or by offenses of the owner, can be seized
only by way of military necessity, for the sup
port or other benefit of tbe army or of the
United Statea.
If tbe owner has not fled, the commanding
officer will cauae receipta to be given, which
may aerve the apoliated owner to obtain in
demnity. 39. The aalariea of civil officers of the hos
tile government who remain in tbe invaded
territory, and continue the work of their office,
and can continue it according to the circum.-

APPENDIX.

413

Sttnoes ariaing out of the war — aucb as judges,
administrative or police officera, officera of city
or communal govornmenta — are paid from the
public revenue of tbe invaded territory, until
the military government has reason wholly or
partially to discontinue it. Salaries or in
comes connected with purely honorary titles
are always stopped.
40. There exists no law or body of authori
tative rules of action between hostile armies,
except that branch of the law of nature and
nations which is called the law and uaagea of
war on land,
41. .\U municipal law of theground on which
the armies stand, or of the countries to which
tbey belong, is silent and of no effect between
armies in tbe field.
42. Slavery, complicating and confounding
the ideas of property (that is of a thing), and
of personalty (that is of humanity), exists ac
cording to municipal or local law only. The
law of nature and nations haa never acknowl
edged it. The digest of the Eoman law enacts
the early dictum of the pagan jurist, that " ao
far aa the law of nature ia concerned, all raen
are equal," Fugitives escaping frora a country
in which tbey were' slaves, villains or serfs,
into another country, bave, for centuries past,
been held free and acknowledged free by judi
cial decisions of European countries, even
though the raunicip.al law of the country in
which tbe slave bad taken refuge acknowledged
slavery within its own dominions.
43. Therefore, in a war between tbe United
States and a belligerent which admits of
slavery, if a person held in bondage by that
belligerent be captured by, or come as a fugi
tive under, the protection of the military forces
of tbe United States, sucb person is iraraedi
ately entitled to tbe rights and privileges of a
freeman. To return such person into slavery
would amount to enslaving a free person, and
neither the United States nor any officer under
tbeir authority can enslave any human being.
Moreover, a person so made free by tbe law of
war is under the shield of the law of nations,
and the former owner or State can bave, by the
law of post-liminy, no beUigerent lien or claira
of aervice.
44. All wanton violence committed againat
persons in tbe invaded country, all destruction
of property not commanded by the authorized
officer, all robbery, aU pillage or sacking, even
after taking a place by main force, all rape, all
wounding, maiming or kiUing of aucb inbab-
itanta, are prohibited under the penalty of
death, or such other severe .punishment as niay
seem adequate for the gravity of the offense.
A soldier, officer or private, in tbe act of
committing sucb violence, and disobeying a
superior ordering bim to abstain from it, raay
be lawfuUy kiUed on tbe spot by sucb superior.
45 All captures and booty belong, according
to tbe modern law of war, primarUy, to the gov
ernment of the captor.
Prize money, whether on aea or land, can
now only be claimed under local law.
46 Neither officera nor aoldiers are aUowed
to make use of their poaition or power in the
hostile country for private gain, not even for

commercial transactions otherwise legitimate.
Offensea to the contrary committed by commia
aioned officera will be punished with caahier-
ing, or auch other punishment aa the nature of
the offenae may require ; if by aoldiera, they ahall
be punished according to the nature of the offenae.
47. Crimea punishable by all penal codoR,
sucb as arson, murder, maiming, aaaaults,
highway robbery, theft, burglary, fraud, for
gery and rape, if committed by an American
aoldier in a hostile country against its inhabit
ants, are not only punishable as at home, but
in ail cases in which death ia not inflicted, the
aeverer punishment shall be preferred.

SECTION III.

-Booty

Deserters — Prisoners of War — Hostages-
on the Battle-field,
48. Deserters from the American army, hav
ing entered the service of the enemy, suffer
death if tbey fall again into tbe banda of the
United Statea, whether by capture, or being de
livered up to tbe American army ; and if a de
serter from the eneray, having taken service in
the army of the United States, is captured by
the enemy, and punished by tbem with death or
otherwise, it is not a breach against the law and
usages of war, requiring redress or retaliation.
49. A prisoner of war is ' a public enemy
arraed or attached to the hostile army for active
aid, who has fallen into the bands of the cap
tor, either fighting or wounded, on tbe field or
in tbe hospital, by individual surrender or by
capitulation. All soldiers, of whatever species of arms ; all
men who belong to tbe rising en masse of tbe
hostile country ; aU those who are attached to
tbe army for ita efficiency and promote directly
the object of tbe war, except sucb as are here
inafter provided for ; all disabled men or offi
cers on tbe field or elsewhere, if captured ; all
enemiea who have thrown away their arms and
ask for quarter, are prisoners of war, and as
sucb exposed to the inconveniences as well as
entitled to the privileges of a prisoner of war.
50. Moreover, citizens who accompany an
army for whatever purpose, such as sutlers, ed
itors, or reportera of journala, or oontractora,
if captured, raay be raade prisoners of war, and
be detained as such.
The monarch and raembers of tbe hostUe
reigning family, male or female, tbe chief, and
chief officera of tbe hostile government, its di
plomatic agents, and all persons who are of
particular and singular use and benefit to the
hostile army or its government, are, if captured
on belligerent ground, and if unprovided with
a safe-conduct granted by tbe captor's govern
ment, prisoners of war.
51. If tbe people of that portion of an in
vaded country which is not yet occupied by tbe
enemy, or of tbe whole country, at tbe approach
of a hostile army, rise, under a duly author
ized levy, en masse to resist the invader, tbey
are now treated as public enemies, and if cap
tured, are prisoners of war.
52. No beUigerent has the right to declare
that he will treat every captured man in arms
of a levy en masse aa a brigand or bandit.

414

APPENDIX.

If, however, the people of a country, or any
portion of tbe aame, already occupied by an ar
my, rise against it, they are violators of tbe laws
of war, and are not entitled to their protection.
53. The enemy's chaplains, officers of the
medical staff, apothecaries, hospital nuraea and
servanta, if they fall into the handa of the
American army, are not prisoners of war, un
less the commander has reasons to retain them.
In thia latter caae, or if, at their own deaire,
they are allowed to remain with their captured
companions, they are treated as prisoners of war,
and may be exchanged if the commander sees fit.
54. A hostage ia a peraon accepted as a pledge
for tbe fulfillment of an agreement concluded
between belligerents during the war, or in con
sequence of a war. Hostages are rare in tbe
preaent age.
55. If a hostage is accepted, he ia treated
like a prisoner of war, according to rank and
condition, as circumstances may admit.
66. A prisoner of war is subject to no pun
ishment for being a public enemy, nor ia any
revenge wreaked upon him by the intentional
infliction of any Buffering, or disgrace, by cruel
imprisonment, want of food, by mutilation,
death, or any other barbarity.
57. So aoon aa a man ia armed by a sove
reign government, and takes the soldier's oath
of fldelity, he ia a belligerent ; his killing,
wounding, or other warlike acta, are no indi
vidual Crimea or offenses. No belligerent has
a right to declare that enemies of a certain
class, color or condition, when properly organ
ized aa soldiera, will not be treated by bim as
public enemies.
58. The law of nations knowa of no diatinc-
tion of color, and if an enemy of tbe United
States should enslave and sell captured per
aons of tbeir array, it would be a case for
the severest retaliation, if not redressed upon
complaint. The United Statea can not retaliate by en
slavement ; therefore, death muat be tbe retal
iation for tbia crime againat tbe law of nations.
59. A prisoner of war remains answerable
for Ms crimes committed against the captor's
army or people, committed before he was cap-
^ tured, and for which he has not been punished
by hia own autboritiea.
All prisoners of war are liable to tbe inflic
tion of retaliatory measures.
60. It is against tbe usage of modern war to
resolve, in hatred and revenge, to give no quar
ter. No body of troops bas the right to declare
that it will not give, and therefore will not ex
pect, quarter ; but a commander ia permitted to
direct bis troops to give no quarter, in great
straits, when bia own aalvation makes it im
possible to cumber bimaelf with prisoners.
61. Troops that give no quarter have no right
to kill eneraiea already diaabled on the ground,
or prisoners captured by other troops.
62. All troopa of the enemy known or dis
covered to give no quarter in general, or to any
portion of the army, receive none,
63. Troopa who fight in the uniform of their
enemiea, without any plain, atriklng, and uni
form mark of distinction of their own, can ex
pect no quarter.

64. If .(Lmerican troops capture a train con
taining uniforma of the enemy, and the com
mander conaidera it adviaable to distribute
tbem for uae among bia nfen, aome striking
mark or aign muat be adopted to distinguish
the American soldier from tbe enemy.
65. Tbe use of the enemy's national stand
ard, flag, or other emblem of nationality, for
the purpoae of deceiving the enemy in battle,
ia an act of perfidy by which tbey lose all claim
to tbe protection of the laws of war.
66. Quarter having been given to an enemy by
American troopa, under a miaapprehension of
his true character, be may, nevertheless, be or
dered to suffer death, if, within three days af
ter tbe battle, it be discovered that he belongs
to a corpa which gives no quarter.
67. The law of nations allows every sove
reign government to make war upon another
sovereign state, and, therefore, admita of no
rules or lawa different from tboae of regular
warfare, regarding tbe treatment of priaonere
of war, although they may belong to the army
of a, government which the captor may con
sider as a wanton and unjuat aaaailant.
68. Modern wars are not internecine wars,
in which the killing of the enemy is the object.
The destruction of the enemy in modern war,
and, indeed, modern war itself, are meana tp
obtain that object of tbe belligerent which UeS
beyond the war.
Unneeeaaary or revengeful destruction of
life ia not lawful.
69. Outposta, sentinels, or pickets are not to
be fired upon, except to drive tbem in, or when
a poaitive order, special or general, has been
issued to that effect.
70. The uae of poison in any manner, be it
to poison wells, or food, or arms, is wholly ex
cluded from modern warfare. He that uses it
puts bimself out of tbe pale of the law and
usages of war.
71. Whoever intentionally inflicts additional
wounds on an enemy already wholly disabled,
or killa auch an enemy, or who orders or en-
couragea aoldiera to do so, shall suffer death, if
duly convicted, whether he belongs to the army
of the United Statea, or ia an enemy captured
after having comraitted his misdeed.
72. Money and other valuables on the person
of a priaoner, auch aa watches or jewelry, as
well aa extra clothing, are regarded by the
American army aa tbe private property of the
prisoner, and the appropriation Of such valua
bles or money is considered dishonorable, and
ia prohibited.
Nevertbeleaa, if large auma are found upon the
peraona of prisoners, or in their possession,
tiiey shall be taken from tbem, and the surplus,
after providing for tbeir own aupport, appro
priated for the uae of tbe army, under the di
rection of the commander, unleas otherwise or
dered by tbe Government. Nor can priaoners
claim, aa private property, large auma found
and captured in their train, although they had
been placed in the private luggage of the pris
oners. 73. All officera, when captured, must surren
der their aide-arms to the captor. They may
be restored to the priaoner in marked cases, by

APPENDIX.

415

the commander, to signalize admiration of hia
distinguished bravery, or approbation of hia
humane treatment of priaoners before bia cap
ture. The captured officer to whom they may
be restored can not wear them during cap
tivity. 74. A prisoner of war, being u. public ene
my, is a prisoner of tbe government, and not
of the captor. No ransom can be paid by a
prisoner of war to his individual captor, or to
any officer in command. The government
alone releases captives, according to rules pre
scribed by itaelf.
75. Priaonera of war are subject to confine
ment or irapriaonment auob as raay be deemed
necessary on account of safety, but they are
to be subjected to no other intentional suffering
or indignity. Tbe confinement and mode of
treating a priaoner may be varied during
Ma captivity, according to tbe demands of
safety. 76. Prisoners of war shall be fed upon plain
and wholesome food, whenever practicable, and
treated with humanity.
They may be required to work for tbe benefit
of tbe captor's government, according to tbeir
rank and condition.
77. A prisoner of war who escapes may be
shot, or otherwise killed in bis flight ; but
neither death nor any other punishment shall be
inflicted upon hira siraply for his attempt to
escape, which the law of war does not con
sider a crime. Stricter means of security
shall be used after an unsuccessful attempt at
escape. If, however, a conspiracy is discovered, the
purpose of which is a united or general escape,
the conspirators may be rigorously punished,
even with death; and capital punishment may
also be inflicted upon prisoners of w<ar discov
ered to bave plotted rebellion against the au
thorities of the captors, whether in union with
fellow-prisoners or other peraons.
78. If priaoners of war, having given no
pledge nor made any promiae on tbeir honor,
forcibly or otherwiae escape, and are captured
again in battle, after having rejoined their own
army, they shall not be punished for their ea
cape, but ahall be treated aa simple prisoners
of war, although they will be aubjected to
stricter confinement.
79. Every captured wounded enemy aball be
medically treated, according to tbe ability of
the medical staff.
80. Honorable men, when captured, will ab
stain from giving to tbe enemy information
concerning their own army, and the modern
law of war permits no longer the use of any
violence againat priaonera, in order to extort
the desired information, or to punish them for
having given false information.
SECTION IV.
Partisans — Armed enemies not belonging to the
hostile army — Scouts — Armed prowlers — War
rebels. 81. Partisans are soldiers armed and wear
ing the uniform of tbeir army, but belonging
to a corps which acta detached from the main

body for the purpoae of making inroads into
tbe territory occupied by tho enemy. If cap
tured, they aro entitled to all the privileges of
the prisoner of war.
^ 82. Men, or squads of men, who commit hos
tilities, whether by fighting, or inroads for de
struction or plunder, or by raids of any kind,
without commiasion, without being part and
portion of the organized hostile army, and
without sharing continuoualy in the war, but
¦who do so with intermitting returns to their
liomea and avocations, or with the occasional
assumption of tbe semblance of peaceful pur
auita, divesting themselvea of the character or
appearance of soldiers — sucb men, or squada
of men, are not public enemiea, and, therefore,
if captured, are not entitled to the privilegea of
priaoners of war, but shaU|be treated aumma
rily as highway robbers or pirates.
83. Scouts, or single soldiers, if disguised in
the dreas of tbe country, or in the uniform of
tbe army hostile to their own, employed in ob
taining information, if found within or lurk
ing about the lines of the captor, are treated as
spies, and suffer death.
84. Armed prowlers, by whatever names
tbey may be called, or persons of the enemy's
territory, who ateal within the linea of tbe hoa
tile army, for the purpose of robbing, killing,
or of destroying bridges, roads, or canals, or of
robbing or destroying the mail, or of cutting
tbe telegraph wires, are not entitled to tbe priv
ileges of the prisoner of war.
85. War rebels are persona within an occu
pied territory who rise in arms againat tbe oc
cupying or conquering army, or against tbe
authorities established by the same. If cap
tured, they may suffer death, whether they rise
singly, in sraall or large bands, and whether
called upon to do so by their own, but expelled,
government or not. Tbey are not priaonera of
war ; nor are they, if diacovered and aecured
before their conspiracy has matured to an actu
al rising, or to armed violence.
SECTION V.
Safe-conduct — Spi^ — War traitors — (kip tured
messengers — Abuse of ihe fiag of truce.
86. All intercourse between tbe territories
occupied by belligerent arraies, whether by
traffic, by letter, by travel, or in any other way,
ceases. TMs is the general rule, tqbe observed
without special proclamation.
Exceptiona to this rule, whether by safe-con
duct, by permission to trade on a small or large
scale, or by exchanging mails, or by travel from
one territory into tbe other, can take place on
ly according to agreement approved by the gov
ernment, or by the higheat military authority.
Contraventiona of thia rule are highly pun-
iahable. 87. Ambaaaadora, and all other diplomatic
agenta of neutral powera, accredited to the en
emy, may receive safe-conducta through tbe
territoriea occupied by tbe belligerents, unless
there are military reasons to the contrary, and
unless they may reach the place of their des
tination conveniently by another route. It
implies no international affront if the safe-

416

APPENDIX.

conduct is declined. Such paaaes are usually
given by tbe aupreme authority of the State,
and not by aubordinate officera.
88. A apy ia a peraon who aecretly, in dis
guise or under falae pretenae, aeeka informa
tion with the intention of communicating it to
the enemy.
Tbe apy is punishable with death by hanging
by the neck, whether or not he succeed in ob
taining the information or in conveying it to
the enemy.
89. If a citizen of tbe United States obtains
information in a legitimate manner, and be
trays it to the enemy, be he a military or civil
officer, or a private citizen, be shall suffer death.
90. A traitor under the law of war, or a war-
traitor, is a person in a place or district under
martial law who, unauthorized by the railitary
coramander, gives information of any kind to
tie enemy, or holds intercourse with him.
91. The war traitor is always severely pun
ished. If his offense consists in betraying to
the enemy anything concerning the condition,
aafety, operations or plans of the troops hold
ing or occupying the place or district, bis pun
ishment ia death.
92. If the citizen or subject of a country or
place invaded or conquered gives information
to bis own government, from which be is sep
arated by tbe hostile army, or to tbe army of
Ms governraent, he is a war traitor, and death
is the penalty of his offense.
93. All arraies in the field stand in need of
guides, and impress tbem if they can not ob
tain them otherwise.
94. No person having been forced by the en
emy to serve as a guide, is punishable for hav
ing done so.
95, If a citizen of a hostile and invaded dis
trict voluntarily serves as a guide to the ene
my, or offers to do so, he is deemed a war
traitor, and shall suffer death.
96. A citizen serving voluntarily as a guide
against his own country commits treason, and
will be dealt with according to the law of bis
country. 97. Guides, when it is clearly proved that
they have misled intentio«illy, may be put to
death. 98. All unauthorized or secret communica
tion with the enemy is considered treasonable
by the law of war.
Foreign residents in an invaded or occupied
territory, df foreign visitors in the sarae, can
claim no immunity from this law. They may
communicate with foreign parts, or with the
inhabitants of the hostile country, ao far aa
the military authority permits, but no further.
Instant expulsion from the occupied territory
would be the very lea.st punishment for the in
fraction of thia rule.
99, A messenger carrying written dispatches
or verbal messages from one .portion of tbe
army, or from a besieged place, to another por
tion of the same army, or its government, if
armed, and in tbe uniform of his army, and if
captured, while doing so, in tbe territory oc
cupied by tbe enemy, is treated by the cap
tor as a prisoner of war. If not in uniform,
nor a soldier, the circumatances connected with

hia capture must determine the diapoaition that
aball be made of hira.
100. A messenger or agent who attempts to
steal through the territory occupied by the ene
my, to further in any raanner tbe interests of
the enemy, if captured, ia not entitled to the
privileges of the prisoner of war, and may be dealt
with according to the circumstances of the case.
101. Wbile deception in war Is admitted aa
a just aud neceasary meana of hostility, and is
consiatent with honorable warfare, the coramon
law of war allows even capital punishment for
clandestine or treacherous attempts to injure
an eneray, because tbey are so dangerous, and
it is so difficult to guard against tbera.
102. The law of war, Uke the criminal war
regarding other offensea, makea no difference
on account of tbe difference of sexea, concern
ing the spy, the war traitor, or tbe war rebel.
103, Spiea, war traitora and war rebels are
not exchanged according to the comraon law of
war. The exchange of such persons would re
quire a special cartel, authorized by the gov
ernraent, or, at a great distance from it, by the
chief commander of the army in tbe field.
104. A aucceasful spy or war traitor, safely
returned to his own army, and afterward cap
tured as an eneray, is not subject to punish
ment for hia acta aa a spy or war traitor, but
be may be held in closer custody as a person
individually dangerous. SECTION VI.
Exchange of prisoners — Flags of truce — Flags of
protection,
105. Exchanges of prisoners take place — ¦
number for number — rank for rank — wounded
for wounded — with added condition for added
condition — such, for instance as not to serve
for a certain period.
106. In exchanging prisonera of war, auch
numbers of persons of inferior rank may be
substituted as an equivalent for one of superi
or rank as may be agreed upon by cartel,
which requires tbe sanction of tbe government,
or of the coramander of the army in the field.
107. A prisoner of war is in honor bound
truly to state to tbe captor his rank ; aud be is
not to assume a lower rank than belongs to him,
in order to cause a mo re advantageous exchange;
nor a higher rank, for the purpose of obtaining
better treatment.
Offenses to the contrary have been juatly
punished by tbe commanders of released pris
oners, and may be good cause for refusing to
release such prisoners.
108. The surplus number of prisoners of war
remaining after an exchange has taken place
is aometimea released either for the payment of
a stipulated sura of money, or, in urgent caaea,
of provision, clothing, or other necessaries.
Such arrangement, however, requires the
aanction of the highest authority.
109. Tbe exchange of prisoners of war ia an
act of convenience to both belligerents. If no
geueral cartel bas been concluded, it can not be
demanded by either of them. No belligerent ia
obliged to exchange priaoners of war.

APPENDIX.

417

A cartel is voidable so soon as either party
has violated it.
110. No exchange of prisoners shall be made
except after complete capture, and after an ac
curate account of tbem, and a list of tbe cap
tured officers has been taken.
111. The bearer of a flag of truce can not in
sist on being admitted. He must always be
admitted with great caution. Unnecessary fre
quency ia carefully to be avoided.
112. If the bearer of a flag of truce offer him
aelf during an engagement, he can be admitted
aa a very rare exception only. It ia no breach
of good faith to retain audi a flag of truce, if
admitted during the engagement. Firing ia not
required to cease on the appearance of a flag of
truce in battle.
113. If the bearer of a fiag of truce, present
ing himself during an engagement, is killed or
wounded, it furnishes no ground of complaint
whatever. 114. If it be discovered, and fairly proved,
that a flag of truce haa been abused for aurrep-
titiously obtaining military knowledge, the
bearer of tbe flag thus abusing his sacred char
acter is deemed a apy.
So aacred is the character of a flag of truce,
and so necessary is its sacredness, that wbile
its abuse is an especially heinous offense, great
caution is requisite, on tbe other hand, in con
victing the bearer of a flag of truce as a spy.
115. It is customary to designate by certain
flags (uaually yellow), tbe hospitals in places
which are ahelled, so that the besieging enemy
may avoid flring on tbem. The same baa been
done in battles, when hoapitala are situated
within the field of the engagement.
116. Honorable belligerenta often requesttbat
tbe hoapitals within tbe territory of the enemy
may be designated, so that they may be apared.
An honorable belligerent allows bimaelf to
be guided by flags or signals of protection as
much as tbe contingencies and the necesaitiea
of the fight will permit.
117. It ia justly considered an act of bad faith,
of infamy or flendishness, to deceive the enemy
by flags of protection. Such act of bad faith may
be good cause for refusing to reapect auch flags.
118. The besieging belligerent has aometimes
requested the besieged to designate the build
ings containing collections of worka of art, sci-
entiflc museums, astronomical obaervatories or
precious libraries, so that their destruction may
be avoided as much aa poaaible.
SECTION vn.
The Parole.
119. Prisoners of war may be released from
captivity by exchange, and under certain cir
oumatancea, also by parole.
120. The term parole designates the pledge
of individual good faith and honor to do, or to
omit doing, certain acts after be who gives his
parole shaU bave been dismissed, whoUy or par
tially, from tbe power of the captor,
121, Tbe pledge of tbe parole is always an
individual, but not a private, act.
122 The parole applies chiefly to prisoners of
war vvhom the captor allows to return to tbeir
27

country, or to live iu greater freedom witMn the
captor's country or territory, on conditions
stated in tbo parole.
123. Release of prisonera of war by exchange
ia the general rule ; roleaae by parole is the
exception. 124. Breaking the parole ia puniahed with
death when the peraon breaking the parole is
captured again.
Accurate liata, therefore, of tbe paroled per
sona must be kept by the belligerenta.
125. When paroles aro given and received,
there must be an exchange of two written docu
ments, in which the name and rank of the pa
roled individuals are accurately and truthfuUy
stated. 126. Commiasioned officera only are allowed
to give their parole, and tbey can give it only
with tbe permission of tbeir superior, as long as
a superior in rank ia within reach.
127. No non-commiaaioned officer or private
can give bis parole except through an officer.
Individual paroles not given through an officer
are not only void, but subject tbe individuals
giving them to tbe punishment of death as desert-
era. The only admiaaible exception ia where indi-
viduala properly separated from their commands,
have suffered long confinement without the poa-
aibility of being paroled through an officer.
128. No paroling on tbe battle-field ; no parol
ing of entire bodies of troops after a battle, and
no dismissal of large numbers of prisoners, with
a general declaration that tbey are paroled, ia
permitted or^of any value.
129. In capitulationa for the aurrender of
atrong places or fortified camps, the command
ing officer, in cases of urgent necessity, may
agree that tbe troops under bis command shall
not fight again during tbe war, unleas ex
changed. 130. The usual pledge given in tbe parole is
not to aerve during tbe exiating war, unlesa
exchanged. Thia pledge refers only to tbe active service in
tbe field, againat tbe paroling belligerent or his
allies actively engaged in the same war. These
cases of breaking tbe parole are patent acts, and
can be viaited with tbe punishment of death ; but
tbe pledge does not refer to internal aervice,
sucb as recruiting or drilling tbe recruits, for
tifying places not besieged, quelling civil com
motions, fighting against belligerents uncon
nected with the paroling belligerents, or to civil
or diplomatic service for which the paroled
officer may be employed.
131. If the Government doea not approve of
tbe parole, the paroled officer muat return into
captivity, and ahould the enemy refnae to re
ceive bim, be ia free of hia parole.
132. A belligerent government may declare,
by a general order, whether it will allow parol
ing, and on what conditiona it will allow it.
Such order is communicated to tbe enemy.
133. No priaoner of war can be forced by the
hoatile government to parole himaelf, and no
government is obliged to parole prisoners of war,
or to parole all captured officers, if it paroles
any. Aa tbe pledging of tbe parole is an indi
vidual act, so is paroling, on the other hand, an
act of choice on the part of the belUgerent

418

APPENDIX,

134. Tbe commander of an occupying army
may require of the civil officers of tbe eneray,
and of its citizena, any pledge he may conaider
necesaary for the safety or security of his army,
and upon their failure to give it, he may arreat,
confine or detain them.
SECTION vm.
Armistice — Capitulation.
135. An armistice ia the cessation of active
hostilities for a period agreed upon between bel-
Ugerenta. It must be agreed upon m writing,
and duly ratified by the Mghest autboritiea of
the contending parties.
136. If an armistice be declared, without con
ditions, it extends no further than to require a
total cessation of hostilities, along the front of
both belligerents.
If conditions be agreed upon, tbey should "be
clearly expressed, and must be rigidly adhered
to by both parties. If either party violates any
express condition, tbe armistice may be declared
null and void by tbe other.
137. An armistice may be general, and valid
for all points and lines of tbe belligerents ; or
special, that ia, referring to certain troopa or
certain localities only.
An armistice may be concluded for a definite
time, or for an indefinite time, during which
either belligerent may resume hostilities on giv
ing the notice agreed upon to tbe other.
138. Tbe motives M'Mob induce tbe one or the
other belligerent to conclude an armistice,
whether it be expected to be preliminary to a
treaty of peace, or to prepare during tbe armis
tice for a more vigorous proaecution of the war,
does in no way affect the character of the armis
tice itaelf.
139. An arraistioe is binding upon tbe bel
ligerents from the day of the agreed commence
ment; but the officers of tbe armies are respon
sible from tbe day only when they receive official
information of ita existence.
140. Coraraanding officers have the right to
conclude armistices binding on the district over
which their comraand extends, but such armis
tice is subject to the ratification of the superior
authority, and ceases so soon aa it ia made
known to the enemy that tbe armistice is not
ratified, even if a certain time for the elapsing
between giving notice of cessation and the re
sumption of hostilities should bave been stipu
lated for.
141. It is incumbent upon tbe contracting
parties of an armistice to stipulate what inter
course of persons or traffic between the inhabit
ants of the territoriea occupied by tbe hoatile
armiea ahall be allowed, if any.
If nothing is stipulated, the intercourse re
mains auspended, aa during actual boatilitiea.
142. An armiatice is not a partial or a tem
porary peace; it is only the suspenaion of mili
tary operations to the extent agreed upon by
the parties.
143. When an armiatice ia concluded between
a fortified place and tbe army beaieging it, it ia
agreed by all the authorities on tbia aubject that
the besieger must cease all extension, perfection

or advance of hia attacking works as much so
as from attacks by main force.
But as there is a difference of opinion among
martial jurists, whether tbe besieged have tbe
right to repair breaches or to erect new works
of defense within the place during an armistice,
this point should be determined by express
agreement between the parties.
144. So soon as a capitulation is signed, the
capitulator has no right to demolish, destroyer
injure the works, arms, stores or ammunition in
bis possession, during tbe tirae which elapses
between the signing and tbe execution of the
capitulation, unless otherwise stipulated in tbe
sarae. 145. When an armistice is clearly broken by
one of the partiea, the other party ia releaaea
from all obligation to obaerve it.
146. Priaoners, taken in the act of breaking
an armistice, muat be treated as priaoners of
war, tbe officer alone being reaponaible who givea
the order for such a violation of an armistice.
The Mghest authority of tbe belUgerent ag
grieved may demand redress for the infraction
of an armistice.
147. Belligerents sometimes conclude an ar
mistice while tbeir plenipotentiaries are met to .. \
discuss the conditions of a treaty of peace ; but
plenipotentiaries may meet without a prelimi
nary armistice ; in the latter case the war is
carried ou without any abatement.
SECTION IX,
Assassination.
148. Tbe law of war does not allow proclaim
ing either an individual belonging to the hoatile
army, or a citizen, or a subject of the hoatile
government, an outlaw, who may be slain with
out trial by any captor, any more than tbe mod
ern law of peace allows such international out
lawry ; on tbe contrary, it abhora aucb outrage.
The sternest retaliation should follow the mur
der committed in consequence of such procla
mation, made by whatever authority. Civilized
nationa look with horror upon offers of rewards
for the aasassination of enemies, as relapses
into barbarism. SECTION X,
Insurrection — (Xvil War — Rebellion.
149. Insurrection is the rising of people in
arms againat their government, or a portion of
it, or against one or more of its laws, or against
an officer or officers of the government. It may
be confined to mere armed resistance, or it may
have greater ends iu view.
150. Civil war is war between two or more
portions of a country or State, each contending
for the mastery of tbe whole, and'each claiming
to be tbe legitimate government. Tbe term ia
also sometimea applied to war of rebellion, when
the rebellious provinces or portions of tbe State
are contiguous to those containing the seat of
government. 151. The term rebellion ia appUed to an insur
rection of large extent, and is usually a war

APPENDIX,

419

between the legitimate government of a country
and portions or provinces of the same who seek
to throw off their allegiance to it, and set up a
government of their own.
152. When humanity induces tbe adoption of
the rules of regular war toward rebels, whether
tho adoption is partial or entire, it does in no
way whatever imply a partial or complete ac
knowledgment of tbeir government, if they have
set up one, or of them, as an independent or
sovereign power. Neutrals have no right to
make the adoption of the rulea of war by the
aasailed government toward rebela the ground
of their own acknowledgment of tbe revolted
people aa an independent power.
153. Treating captured rebela as prisonera of
war, exchanging them, concluding of cartela,
capitulationa or other warlike agreementa with
tbem ; addreaaing officers of a rebel army by
tbe rank they may have in the same; accepting
flags of truce, or, on the other band, proclaim
ing martial law in their territory, or levying
war taxes or forced loans, or doing any other
act sanctioned or demanded by the law and
usages of public war between sovereign bellig
erents, neither proves nor establishes an ac
knowledgment of the rebellious people, or of tbe
government which tbey may have erected, as a
pubUc or sovereign power. Nor doea the adop
tion of tbe rulea of war toward rebela imply an
engagement with them extending beyond tbe
limita of these rules. It is victory in tbe field
that ends tbe strife and settles the future rela
tions between the contending parties.
154. Treating, in the field, the rebellious ene
my according to the laws and usages of war bas
never prevented the legitimate government from
trying tbe leaders of tbe rebellion or chief rebels
for high treaaon, and from treating them accord
ingly, unless tbey are included in a general
amnesty. 155. All enemies in regular war are divided
into two general classes; that is to aay, into
combatanta and non-combatants, or unarmed
citizens of tbe hostile government.
Tbe military comraander of the legitimate
government, in a war of rebellion, distinguishes
between tbe loyal citizen in tbe revolted portion
of the country and the disloyal citizen. Tbe
dialoyal citizens may further be classified into
those citizena known to sympathize with the
rebelUon, without positively aiding it, and those
who, without taking up arms, give poaitive aid
and comfort to tbe rebellioua enemy, without
being bodily forced thereto.
156. Common justice and 'plain expediency
require that tbe military commander protect
the manifeatly loyal citizena, in revolted terri
tories, against the hardships of the war as rauch
as the common misfortune of all war admits.
The commander will throw the burden of tbe
war, as much as lies within hia power, on tbe
disloyal citizens of tbe revolted portion or prov
ince subjecting tbem to a stricter police than
the 'non-combatant enemies bave to suffer in
re<rular war; and if be deems it appropriate, or
if "hia government deraanda of him that every
ciUzen abaU, by an oath of allegiance, or by
some other manifeat act, declare bia fidelity to
the legitimate government, he may expel, trans

fer, iraprison or fine the revolted citizens who
refuse to pledge themselvea anew as citizens
obedient to the law, and loyal to the government.
Whether it ia expedient to do so, and whether
reliance can be placed upon sucb oaths, the
comraander or his governraent have tho right
to decide.
157. Arraed or unarraed resistance by citizens
of the United Statea against the lawful move
ments of their troops is levying war against tbe
United Statea, and ia therefore treaaon.

2. J

GENERAL ORDERS, NO. 141.
War Department,
Adjutant GENERAL'a OrncE,
Washington, September 25, 1862.
The following Proclamation by the President
ia published for the information and govern
ment of the Army and aU concerned :
"BY THE president OP THE UNITED STATES OF
AMERICA.
"A PROCLAMATION.
"Whereas, It bas become necessary to call
into aervice not only volunteers, but also por
tiona of tbe miUtia of the States by draft, in
order to suppress the inaurrection exiating in
tbe United Statea, and disloyal persons are not
adequately restrained by tbe ordinary processes
of law from hindering this measure and from
giving aid and comfort in various ways to the
inaurrection. Now, therefore, be it ordered ;
"First. That during tbe existing inaurrection,
and aa a neceasary measure for suppressing the
same, all rebela and insurgents, tbeir aiders
and abettora, within the United Statea, and all
persons discouraging volunteer enUstments, re
sisting militia drafts, or guilty of any disloyal
practice, affording aid and comfort to rebela
against the authority of the United States, shall
be subject to martial law, and liable to trial
and punishment by courta-martial or military
commiaaion. "Second. That tbe writ of habeas corpus is
suspended in respect to all persons arrested, or
who are now, or hereafter during the rebellion
shall be, imprisoned in any fort, camp, arsenal,
military prison or other place of confinement by
any military authority, or by the sentence of
any court-martial or military commission.
" In witness whereof, I bave hereunto set my
band, and cauaed tbe aeal of the United States
to be affixed.
"Done at the city of WasMngton, this twenty-
fourth day of September, in tbe year of
[l. s.] our Lord one thousand eight hundred and
sixty-two, and of tbe Independence of the
United States the eighty-seventh.
"ABRAHAM LINCOLN.
"By the President:
"William H. Seward, Secretary of State,
" By order of the Secretary of War.
"L. THOMAS, Adjutant GeneraL
" Officiai."

J^F:rXlDJ^^s7-XTS

LOUIS J. WEICHMANN AND CAPT. G. W. DUTTON.

CoL. H. L, Burnett, Judge Advocate, Cincinnati,
Ohio:Colonel — I stated before tbe Coraraission, at
Washington, that I coramenced to board with
Mra. Surratt in November, 1864. Aa a general
thing, 1 remained at home during the evenings,
and, consequently, I beard many tbinga which
were then intended to blind me, but which now
are aa clear as daylight. Tbe following facts,
which have come to my recollection aince the
rendition of my teatimony, maybe of intereat;
Affidavit of Louis J. Weichmann.
I once aaked Mrs. Surratt what her son John
had to do with Dr. Mudd's farm ; why be made
himself an agent for Booth (ahe herself bad
told me that Booth desired to purchase Mudd's
farm). Her reply was, that "Dr. Mudd and
tbe people of Charles county bad got tired of
Booth, and that they had pushed him on John."
Before the fourth of March, she waa in tbe
habit of remarking that "something was going
to happen to old Abe which would prevent bim
from taking bis seat ; that Gen. Lee was going
to execute a movement which would startle tbe
whole world," What that movement was she
never said.
A few days after, I asked her why John
brought such men as Herold and Atzerodt to
the bouse, and associated with them? "0,
John wishes to make uae of them for bis dirty
work," waa her reply. On my deairing to know
what the dirty work was, she answered that
"John wanted them to clean his horses." He
had two at that time. And once, when she sent
me to Brooks, the stabler, to inquire about her
son, abe laughed, and remarked that "Brooks
conaidered John Surratt, and Booth, and Her
old, and Atzerodt a party of young gamblera
and aporta, and that abe wanted Mm to think
so." Brooks has told me aince the trial that
such was actually the case, and that at one time
he aaw John H. Surratt with three one-hundred
ioUar notes in hia poaaession.
When Richmond fell and Lee's army surren
dered, when Washington was illuminated, Mrs.
Surratt cloaed ber home and wept. Her houae
was gloomy and cheerleas. To use her own ex
preaaion, it was "indicative of ber feelings."
On Good Friday I drove her into the country,
ignorant of her purpoae and intentiona. We
started at about half-paat two o'clock in the af
ternoon, Bei'ore leaving, she had an interview
420

with John Wilkea Booth in the parlor. On tbe
way down she was very lively and cheerful,
taking the reins into her own hands several
times, and urging on the steed. We halted
once, and that was about three miles from
Washington, when, observing that there were
pickets along the road, she bailed an old farmer,
and wanted to know if they would remain there
all nigbt. On being told that they were with
drawn at about eight o'clock in the evening, she
said she " was glad to know it." On tbe re
turn, I chanced to make some remark about
Booth, stating that be appeared to be without
employment, and asking her when be was go
ing to act again. "Booth is done acting," ahe
said, "and is going to New York very soon,
never to return." Then turning round, ahe re
marked; "Yes, and Booth ia crazy on one sub
ject, and I am going to give him a good scold
ing tbe next time I aee him." What that "one
aubject" was, Mrs. Surratt never mentioned
to me. She was very anxioua to be at home at
nine o'clock, saying that she had made an en
gagement with some gentleman who was to
meet her at that hour. I asked ber if it was
Booth. She answered neither yes nor no.
When about a mile from the city, and having
frora the top of a hiU caught a view of Wash
ington swimming in a flood of light, raiaing
her handa, she aaid, "I am afraid svll thia re
joicing will be turned into mourning, and all
this glory into sadness." I asked her what she
meant. She replied that after sunshine there
was always a storm, and that the people were
too proud and licentious, and that God would
puniah tbem.
The gentleman whom abe expected at nine
o'clock on her return, called. It waa, aa I af
terward aacertained, Booth'a laat visit to Mra.
Surratt, and tbe third one ou that day. She
waa alone with bim for a few minutes in the
parlor. I was in tbe dining room at tbe time,
and as soon as I had taken tea, I repaired
thither. Mra. Surratt's former cheerfulness had
left ber. She was now very nervous, agitated
and restless. On my asking her what was the
matter, ahe replied that ahe waa very nervoua,
and did not feel well. Then looking at me, she
wanted to know which way the torchlight pro-
ceaaion waa going that we bad aeen on tbe
Avenue. I remarked that it was a procession
of tbe arsenal employees, who were going to
serenade tbe President. She said thatshe would
like to know, as abe was very much interested

APPENDIX.

421

in it. Her nervousness finally increased so
much that she chased myself and the young
ladies who were making a great deal of noise
and laughter, to our respective rooraa.
When the detectivea came, at three o'clock
the next morning, I rapped at her door for per
mission to let them in.
"For God'a aake, let them come in I I expected
tbe bouae to be searched," said she.
When the detectivea bad gone, and when her
daughter, almoat frantic, cried out :
"Oh, Mai just think of that man's (JobnW.
Booth) having been here an hour before the as
sassination I I am afraid it will bring suspi
cion upon us."
" Anna, come what will," she repUed, "I ara
resigned. I think that J. Wilkes Booth was
only an instruraent in the hands of the Al
mighty to punish thia proud and licentioua
people." LOUIS J. WEICHMANN.
Sworn and aubscribed before me this lltb day
of Auguat, 1865. CHAS. E. PAN COAST, Alderman.

AFFIDAVIT CONCERNING CERTAIN STATE
MENTS MADE BY DR. SAM'L A. MUDD,
SINCE HIS TRIAL.
Camp Fry, Washington, D. C,
August 22, 1865.
Bbio.-Gen. Joseph Holt,
Judge Advocate General, U. S. A. :
Siu  ^I am in receipt of your communication
of thia date, in which you request information
as regards tbe truthfulness of certain state
ments and confessions reported to have been
made by Dr. Mudd whUe under my charge, en
route to tbe Dry Tortugas.

In reply, I have the honor to atate that my
dutiea required mo to be constantly with the
prisoner!?, and during a converaation with
Dr. Mudd, on the 22d of July, be confessed
that he knew Booth when he came to his
house with Herold, on the morning after the
assassination of the Preaident; that he had
known Booth for aome time, but waa afraid to
tell of bia having been at hia bouae on tbe 15th
of April, fearing that his own and the Uvea of
hia family would be endangered thereby. He
alao confessed that ho was with Booth at the
National Hotel on the evening referred to by
Weichmann iu bis testimony; that he oame to
Washington on that occasion to meet Booth, by
appointment, who wiahed to be introduced to
John Surratt; that when be and Booth were
going to Mra. Surratt's bouse to aee John Sur
ratt, tbey met, on Seventh atreet, John Surratt,
who was introduced to Booth, and they bad a
conversation of a private nature. I will here
add that Dr. Mudd had with bim a printed
copy of the teatimony pertaining to his trial,
and I bad, upon a number of occasions, re
ferred to the same. I will alao state that this
confession was voluntary, and made without
solicitation, threat or promise, and was made
after the destination of tbe prisoners was com
municated to them, which communication af
fected Dr. Mudd more than tbe reat; and he
frequently exclaimed, "Ob, there ia now no
no hope for me." " Oh, I can not live in auch
a place." Please acknowledge tbe receipt of this letter.
I am, General, very reapectfuUy,
¦your obedient servant,
GEORGE W. DUTTON,
Capt. Co. 0, 10th Reg't V. R, C,,com'dg Guard.
Sworn and acknowledged at Washington,
D. C, this 23d August, 1865, before me.
' G. C. THOMAS,
Notary Public.

DIAGRAM OP THE STAGE.
The above is a diagram of the stage, -with properties, as it stood at the time of the assas
sination. The number of persons required upon the stage during the performance is as follows: 19
actors and actresses, 4 scene-shifters, 1 stage carpenter, 1 assistant stage carpenter, 1 property
man, 1 gas man, 1 (back) door-keeper, 1 prompter, making a total of 29 persons passing and
repassing upon the stage and through the passages and green-room which connects with the
stage by the passage through which the assassin passed.

A— "Asa Trenchard," (Mr. Harry Hawk.)
B— Mias Laura Keene.
C~Mr. Ferguson.
D— Grb Man.
E— Stage Manager, (Mr. Wright.)
F— Mr. Wm. Withers, Jr., (Leader of OrchoBtrn.)
1— First scene.
2 — Second *'
3— Box of President.
4— Door to box.
5— " " "
6— Entrance to passage,
7— Firat entrance to right.
6 — Second *' "
9-Third " *»
10— Fourth " *•
U— Bact door to alley.

12— Scenery in pile.
13— Door to dressing-rooms.
14- Scenery in pile.
15— Governor to gas-lights.
16— Prompter's desk.
17— Scenery in pile.
18— Center door in scene.
19 — Fence, ¦with gate.
20— Martin-honse.
21— Set dairy, (12 ft. by 12 ft., 3 feet deep.>
22— Bench.
23— Small table and two chairs.
24— Covered stairway to basement.
25— Set piece, to mask center door.
26— Hole in the wall, to fasten door, (3 ft. 6 in. from
corner.)
27— Torn place in carpet, (two feet from lower box.)

J PAT ENT
OFFICE

STB EET.

Co

X

i^'

vj

B
K ALLEY
1
1 1 1
THEATt'H. I"!
C
X 1 
1
^ 1
k
Co
STREET.
REFERENCES.
]j_B[erndon House. C— Vacant lot communicating with the alley of tbe Theater. D— Alley
communicating with F Street. K-Alley by which Booth escaped. X— Restaurants.
YALE
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