Program Submission Form
AMER!~
INNSo/CbuRT·
Program Title
"The Military Trial of the Lincoln Conspirators: Was Justice Served?"
Date Presented
November 19, 2015
Inn Year _2_01_5_ _ _ _ _ _ _ __
Presenting Inn
The New York American Inn of Court
Inn Number _30_3_73_ _ _ _ _ _ __
Inn City
New York
Contact Person
Eugene Kublanovsky
E-mail Address
[email protected]
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Inn State
New York
Phone
(212) 729-4707
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Program Summary:
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In 1865, eight defendants were tried before a Military Commission for conspiring to assassinate President fillraham
Lincoln and other high government officials. The Historical Trial Team presented a reenactment of the trial. They
focused pnmanly on the evidence concemmg two defendants whose gmlt or mnocence is still argued today - Mary
Surratt, who owned the boarding house at which the conspiracy was plotted, and Dr Samuel Mudd, who set Tobu Wilkes
Booth'sbroken leg after the assassination. This program was timely both because 2015 marks the 150th anniversary of
the end of the Civil War, and because disputes concerning the limits ofmilitaty jurisdiction are still being litigated in the
Guantanamo cases. A panel discussion following the trial reenactment discussed whether the Lincoln conspirators were
properly tried before a military rather than a civilian court in 1865, and the implications of their case for today.
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Courtroom set up for trial scenes. Panel for set up at end.
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Program Submission Form
Roles:
List the exact roles used in the demonstration and indicate their membership category; i.e., Pupil, Associate, Barrister or Master of the Bench.
Role
Membership Category
*Hon. Helen Freedman - Chairperson
Master
*Ira Matetsky - Chairperson
Master
Dawn Baker Miller - participant
Master
Brooke Bowen - Participant
Associate
Hon. Betty Weinberg Ellcrin - Participant
Master
Christopher Fraser - Participant
Associate
*Denotes Chairperson
Please see attached for additional participants
Agenda of Program:
List the segments and scenes of the demonstration and the approximate time each step took; i.e., "Introduction by judge (10 minutes)."
Item
Introduction~
The Lincoln Assassination in its times and the creation of the Military Commission
Time
JO Minutes
The Trial of the Conspirators
A. Opening statements and the challenges to jurisdiction
10 Minutes
B. Evidence relating to Mary Surratt
15 Minutes
C. Evidence relating to Samuel Mudd
15 Minutes
D. Closing Arguments, verdicts, and sentences
10 Minutes (Sec Attached for Continuation of Agenda)
Program Awards:
Please complete this section only if the program is being submitted for consideration in the Program Awards.
Describe how your program fits the Program Awards Criteria:
Relevance: How did the program promote or incorporate elements of our mission? (Fostering Excellence in Professionalism, Ethics, Civility, and Legal Skills)
Participants and attendees became familiar with an important piece of American legal history and addressed its relevance to issues that arc still timely today (as in the Guantanamo cases)
Entertaining: How was the program captivating or f u n ? - - - - - - - - - - - - - - - - - - - - - - - - - - - - The historical trial programs always arc enjoyable in bringing the dynamics of courtroom techniques used in a prior era to lawyers of today. The "acting"/roleplaying aspect also attracts participants.
Creative and Innovative: How did the program present legal issues in a new w a y ? - - - - - - - - - - - - - - - - - - - - The modem debate over military commissions has much to learn from the way in which parallel challenges were faced during earlier times of conflict.
Educational: How was the program interesting and challenging to all m e m b e r s ? - - - - - - - - - - - - - - - - - - - - - Translating a two-month trial conducted under 19th-century rules and in I 9th-century English into an hour presentation for a modem audience is a challenge, and the audience has its role to play in the interpretation.
Easily Replicated: Can the program be replicated easily by another Inn?
IZJYes D No
This program is:
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Questions:
Please contact Christina Hartle at (703) 684·3590 ext 105 or by e-mail at [email protected].
Please include ALL program materials. The committee will not evaluate incomplete program submissions.
Program_Submission_Form.indd [Rev. 10/2012}
Attachment for Program Submission Form
NYIOC 11/19/15 Program
Name/Role
Membership Category
Henry Freedman – Participant
Master
David Herman – Participant
Barrister
Vilia Hayes – Participant
Master
Meredith Jones – Participant
Master
Bruce Lederman – Participant
Master
Hon. Karla Moskowitz – Participant
Master
Mark Pincus – Participant
Barrister
Jay Safer – Participant
Master
Hon. Robert Smith – Participant
Master
Edward Sponzilli – Participant
Master
Matthew Tobias – Participant
Barrister
Christopher Tumulty – Participant
Barrister
Chryssa Valletta – Participant
Barrister
Mary Kay Vyskocil – Participant
Master
Timed Agenda
(Continued)
Item
Post-trial events
Panel discussion: the military trial
of Lincoln conspirators and its
implications for today
Time
10 Minutes
20 Minutes
THE MILITARY TRIAL OF THE LINCOLN
CONSPIRATORS: WAS JUSTICE SERVED?
New York American Inn of Court
Historical Trial Team
November 19, 2015
Host: Simpson, Thacher & Bartlett, LLP
Timed Agenda
I.
Introduction: The Lincoln assassination in its times
and the creation of the Military Commission
10 minutes
The trial of the Conspirators
A. Opening statements and the challenge to jurisdiction
B. Evidence relating to Mary Surratt
C. Evidence relating to Samuel Mudd
D. Closing arguments, verdicts, and sentences
10 minutes
15 minutes
15 minutes
10 minutes
III.
Post-trial events
10 minutes
IV.
Panel discussion: the military trial of the Lincoln
conspirators and its implications for today
20 minutes
II.
1
CAST LIST
Narrator
Mary Kay Vyskocil
Major General David Hunter
Ira Brad Matetsky
Mary Surratt
Dawn Baker Miller
Dr. Samuel Mudd
Hon. Robert S. Smith
Judge Advocate General Joseph Holt
Henry Freedman
Frederick Aiken, Esq.
Hon. Helen Freedman
Thomas Ewing, Esq.
Jay Safer
Louis Weichmann
Christopher Fraser
Lt. John Dempsey
Hon. Karla Moskowitz
John Lloyd
Mark Pincus
J. Z. Jenkins
Meredith Jones
Anna Surratt
Brooke Bowen
Lt. Alexander Lovett
Christopher Tumulty
Marcus Norton
Chryssa Valletta
Daniel Thomas
Matthew N. Tobias
John Downing
Bruce Lederman
Dr. George Mudd
David Herman
Justice Andrew Wylie
Vilia Hayes
Attorney General James Speed
Edward Sponzilli
2
SOME HISTORICAL BACKGROUND TO THE LINCOLN ASSASSINATION
President Abraham Lincoln can be seen as another casualty of the Civil War that
followed the Southern states’ secession after his election to the Presidency. What made Lincoln
anathema to John Wilkes Booth was essentially what caused secession and war: the perceived
threat to the institution of slavery. From 1619, when the first African slaves were bought to
North America to provide an agricultural workforce, slavery became an integral part of
American society. The American legal system protected the institution of slavery, as slaves were
deemed property. The ideals of liberty expressed in the Declaration of Independence were not
applied to slave labor, which in America was race-based. Yet the dichotomy between slave and
free labor was not lost on political theorists and humanitarians in an age of enlightenment.
By the time of the late colonial period, anti-slavery sentiment began to cause Northern
states to outlaw slavery outright or to provide for gradual emancipation. The agriculture of the
North was less dependent on large plantation-based crops, which were essential to the Southern
economy. Slave labor was frequently employed for such Southern crops as tobacco, rice, indigo,
and eventually cotton. Yet in both the North and South, slaves were not infrequently hired out
by their owners for factory work or personal services. To some extent, anti-slavery sentiment
was spurred by religious fervor of the first and second Great Awakenings (during the colonial
and Jacksonian periods respectively). Just as slavery was not confined to one section of the
country, anti-slavery feelings were not confined to the North. For example, Virginia considered
emancipating its slaves until the Nat Turner slave revolt of 1831 crystallized white Virginians’
opinions against the movement. England’s abolition of slavery in 1833 underscored the fact that
civilized societies found the institution abhorrent.
The original Constitution of the United States carefully avoided any use of the word
“slavery.” Nonetheless, the series of compromises with Southern states that forged that
document legitimized slavery. The Constitution did allow Congress to prohibit further slave
importations after 1808, in what some had hoped would be the gradual elimination of slavery.
Similarly, the Northwest Ordinance of 1787, enacted the same year as the Constitution, set
boundaries to the spread of slavery, prohibiting slavery in the Northwest Territory, which would
become five Midwestern states. American expansion and the creation of new states raised the
issue of whether new states would enter the Union as free or slave, thus potentially changing the
balance of power between what were increasingly seen as voting blocks, North versus South.
Congressional Compromises of 1820 and 1850 and the Kansas-Nebraska Act of 1854 all were
efforts to force political solutions over the question of slavery and its expansion.
Slavery agitation had become a political force. The House of Representatives, in an
effort to avoid this divisive issue, banned anti-slavery petitions – a ban that anti-slavery
proponents viewed as an affront to their First Amendment right of petition. All segments of
society that confronted the issue of slavery splintered over it. A number of Protestant churches
(which collectively constituted the majority religious denominations throughout the country)
divided into Northern and Southern branches, as did other forms of social unions.
The breakaway Republic of Texas sought to join the United States from President
Jackson’s time, but fears over the enlargement of the slavery block in Congress and the concern
3
that annexing Texas would lead to war with Mexico delayed Texas’s annexation from 1836 until
1845 (the year Jackson died). The war with Mexico and the resulting acquisition of the
Southwest brought the slavery issue to a head. The 1846 Wilmot Proviso was proposed in
Congress to prevent any territories acquired through war with Mexico from entering the Union as
slave states. That measure, though defeated, signaled an assault on slavery. Whigs largely
opposed the war with Mexico, in part because it could lead to the admission of additional slave
states, and Lincoln, then a Congressman from Illinois, spoke against it on the floor of the House
of Representatives. As early as the Compromise of 1820, former President Jefferson recognized
the perilous strain on the Union that the slavery controversy was creating. He famously called
the compromise “a fire bell in the night.” The Compromise of 1850 was intended to derail the
divisions over the spoils of the Mexican War. However, by 1850 the great Congressional
compromisers, such as Henry Clay, were all dying off.
The immorality of slavery and the attacks upon the institution were met with a new
Southern argument, which was that slavery was a positive good. The nation’s most popular
books, such as Fitzhugh’s Cannibals All and Stowe’s Uncle Tom’s Cabin, portrayed
dichotomous perspectives on the institution of slavery. Southern apologists argued that slavery
transformed Africans and provided for their needs, whereas the growing industrial North’s labor
force was left to fend for itself in unhealthy, dangerous conditions in which women, children and
male laborers worked extremely long hours, seven days a week, for wages that were hardly at
subsistence levels. Labor unions in early America were outlawed as illegal conspiracies in
constraint of trade. Third parties arose in the North, from the 1830’s to the 1850’s, to advocate
the cause of free labor, such as the Free Soil and Liberty Parties.
Senator Steven A. Douglas, Lincoln’s Democratic Illinoisian opponent, thought that
popular sovereignty (letting the territories decide themselves whether to be free or slave) would
resolve the growing dilemma. Instead, popular sovereignty in the Kansas and Nebraska
territories led to violence by both sides and gave rise to John Brown and his massacre of proslavery settlers at Osawatomie Creek, and a reign of terror by pro-slavery proponents as well.
The violence led to the territory being known as “Bloody Kansas.”
Out of this context emerged a new political party in 1854, known as the Republican
Party. The party was an amalgam of different groups, but its ideological base was the premise of
free labor. Lincoln, like a number of former northern Whigs, became a Republican. The failure
of the Kansas-Nebraska Act of 1854, and the popular sovereignty doctrine, were moving the
country toward crisis, not resolution. James Buchanan, a Democrat, won the election of 1856
over Republican John C. Fremont. The slavery issue needed to be resolved. The U.S. Supreme
Court had confronted slavery issues in the past (as had state courts) in such cases as Prigg v.
Pennsylvania, 41 U.S. (16 Pet.) 539 (1842), in which the Court struck down Pennsylvania’s
personal liberty laws that allowed persons who opposed slavery to refuse to obey the Fugitive
Slave Law and to assist runaway slaves. Now, emerging out of Missouri was a legal controversy
over whether the transportation of slaves to a free state could liberate them. Dred Scott v.
Sandford, 60 U.S. (19 How.) 393 (1857), though intended by Chief Justice Taney (a Jacksonian
Democrat) to put the slavery issue to rest, only served to fan the flames of discord in the North.
4
By 1859, John Brown led his now famous raid on the Harper’s Ferry Virginia Arsenal to
obtain arms for his intended slave revolt. In reaction to this raid, and recalling earlier slave
insurrections (Denmark Vesey, 1822, and Nat Turner, 1831, being only two of the more famous
slave revolts whose images were ensconced on Southern memories), formed armed militias to
protect against them. From colonial times, the thought of slave insurrection kindled deep-seated
Southern fears that led to night watches and slave patrols. John Wilkes Booth volunteered for
one such patrol in Maryland, which although it did not later secede, was a slave state.
Lincoln’s election in 1860, on the platform of a free-labor party that opposed the
expansion of slavery, spelled the end of Southern control over the federal government and
doomed the institution of slavery. South Carolina was no longer politically isolated, as it had
been during its earlier effort to nullify federal law and vote to secede during Jackson’s
presidency. Its secession was followed by ten more states. But for Lincoln’s actions, several
Border States might also have joined the insurrection. The legal arguments over whether states
that elected to join the Union could secede from it, or whether it was a vote of the people that
bound the Union, would not be resolved peacefully. Although Buchanan opposed secession, he
would not take steps to prevent it, especially as a lame-duck president.
Lincoln’s election in 1860 represented a fundamental change in American society (even
though, in a four-way race, he won less than a majority of the popular votes). Efforts to avoid
civil war even included a proposed Thirteenth Amendment to the Constitution, which would
have guaranteed the continued existence of slavery. Ironically, the war that followed gave rise to
a Thirteenth Amendment that eradicated slavery. The North fought to preserve the Union, a
Union that slave interests could no longer accept.
The Civil War lasted longer than either side had predicted, with enormous casualties and
a growing need for recruits. These conditions led Lincoln, in addition to instituting conscription,
to reverse course and permit the enlistment of Black troops (who were paid less than their white
counterparts and led by white officers). After having reversed early efforts by General Hunter
and others to free slaves as Union armies proceeded south, Lincoln’s Emancipation Proclamation
was a war measure (effective July 1, 1863) that freed slaves only in the rebellious states. This
provided further evidence of the war’s ultimate goal. Ironically, in the closing weeks of the war,
the Confederate Congress enacted legislation permitting the Confederacy’s own recruitment of
slaves, who, if they served, would be given their freedom. The Thirteenth Amendment’s
enactment made permanent what the Emancipation Proclamation had only promised.
The proximity of Washington, D.C. and Richmond, Virginia, the warring sides’ capitals,
raised constant concern about the security of the federal capital and made the Chief Executive
vulnerable. Earlier in the war, prisoners were exchanged. However, when the South refused to
return Black soldiers, Lincoln refused to continue the practice. The cessation of exchanges hurt
the South militarily more than the North. The cessation was recognized as leaving unaddressed
the atrocious conditions, including overcrowding, that were more pronounced in Southern
prisons and led to the deaths of many prisoners. This cessation of prisoner exchanges led to
several Confederate plans to kidnap Lincoln, and convinced Booth to plan his own. Only as
opportunities for Lincoln’s abduction were narrowed, and then Lincoln was reelected, did
Booth’s plan change to assassinating Lincoln and other Union leaders.
5
THE LINCOLN ASSASSINATION AND
CONSPIRACY TRIAL: A TIMELINE
1864
Confederate Colonel Bradley Johnson formulates a plan to abduct
Abraham Lincoln in Washington, D.C. to put pressure on the North to
renew prisoner exchanges. The North had stopped prisoner
exchanges when the South refused to include Black soldiers. Colonel
Johnson is reassigned, aborting this abduction plan.
August 1864
John Wilkes Booth plans to abduct Lincoln at the Soldiers’ Home,
where Lincoln visited frequently. Again, the plan was to hold Lincoln
hostage to pressure the administration to exchange prisoners.
Fall 1864
Acting with the support of the Confederate War Department,
Confederate spy Thomas N. Conrad and a group of would-be
abductors take up position on 7th Street in Washington, D.C. to abduct
Lincoln. The plan is aborted because Lincoln’s carriage is escorted by a
detachment of cavalry.
Mid-January 1865
Booth changes the plans from abducting Lincoln at the Soldier’s Home
to doing so from Ford’s Theater, where Booth is well-known and
performs regularly.
January 31, 1865
Congress approves the proposed Thirteenth Amendment and sends it
to the states for ratification.
March 4, 1865
Lincoln is inaugurated for his second term. Assassination conspirators
Booth and Herold attend the inauguration ceremony.
March 15, 1865
Booth and other conspirators meet at Gautier's Restaurant at 252
Pennsylvania Avenue in Washington to plan the kidnapping of
President Lincoln, this time on 7th Street. The plan calls for Lincoln to
be taken to Richmond, where he would be held until exchanged for
Confederate prisoners-of-war.
March 17, 1865
Booth's new plan to kidnap Lincoln as he returns from a visit to
Campbell Hospital on the outskirts of Washington fails when Lincoln
changes his plan for the day.
March 20, 1865
The Confederate Congress authorizes arming slaves in Confederate
service.
April 2, 1865
Richmond, the capital of the Confederacy, is abandoned by General
Robert E. Lee and his army. The city soon falls into Union hands.
6
April 5, 1865
Lincoln and his young son visit Richmond. Secretary of State William
Seward is seriously injured in a carriage accident in Washington, DC.
April 6, 1865
John Surratt and Sarah Slater, a Confederate agent, reach Montreal
with a ciphered dispatch from Richmond--most likely one approving a
plan to kill Lincoln by blowing up the Executive Mansion.
April 8-9, 1865
Booth returns to Washington from New York, where he had met with
his Confederate control, and told a friend "What a splendid chance I
had to kill the President on the fourth of March [at the inauguration]."
April 9, 1865
At Appomattox Courthouse, Virginia, in the house of Wilmer McLean
(who had moved from Manassas where the first major battle
occurred), General Robert E. Lee surrenders the Army of Northern
Virginia to General Ulysses S. Grant (Army of the Potomac), ensuring
the Confederacy’s loss of the war. News of the surrender reaches
Washington, D.C. by telegraph the same day. Two small tables upon
which surrender documents were signed were procured from McClain
by General Phil Sheridan. One table is given to General George
Armstrong Custer, who was in attendance.
April 10, 1865
The Union's capture of Thomas Harney, the Confederate explosives
expert assigned the task of mining the Executive Mansion, dooms that
Confederate plot.
April 11, 1865
Lincoln speaks to a large crowd of ex-slaves and others celebrating the
news of the Union victory. Booth, listening to the speech with Louis
Weichmann, resolves that it will be "the last speech" Lincoln will give.
April 13, 1865
General Grant arrives in Washington. Local newspapers report that
Grant and his wife will be guests of the President and Mrs. Lincoln at
Ford’s Theatre on April 14th. However, the Grants’ plans change and
they cancel their plans to attend the theater. Most houses and public
buildings in Washington are illuminated by candles celebrating Lee’s
surrender. Newspapers describe the city as "all ablaze with glory."
7
April 14, 1865
(Good Friday)
At his last Cabinet meeting, Lincoln counsels conciliation toward the
former rebellious states.
Union troops reoccupy Fort Sumter, South Carolina, the site of the
Civil War's commencement, on the anniversary of its fall. Major
Anderson, who was the Fort’s commander in 1861, and famous
abolitionist William Lloyd Garrison are present for the hoisting of the
U.S. flag. Edmund Ruffin, who ordered the first shot on Fort Sumter,
on April 12, 1861, commits suicide.
While attending a performance of Our American Cousin at the Ford's
Theatre, Lincoln is assassinated in the presidential box by John Wilkes
Booth, at 10:15 p.m. Booth breaks his leg jumping from the
presidential box, allegedly yelling “sic semper tyrannis!”, and escapes
by way of a back door.
Meanwhile, Lewis Powell (alias Lewis Payne), claiming to have
medicine for the bedridden Secretary of State William H. Seward,
enters the Secretary's home. Powell assaults the Secretary's son and
stabs Secretary Seward. Seward’s neck brace saves his life. Three
people fight with and are wounded by Powell as he flees into the
night.
Word of a Confederate conspiracy to assassinate government officials
reaches Secretary of War Edwin Stanton as he waits anxiously near
Lincoln's deathbed.
April 15, 1865
Lincoln dies at the Petersen house, across the street from Ford’s
Theater, at 7:22 in the morning.
Booth and Herold leave the farm of Dr. Samuel Mudd, where Booth
had his broken leg set and shaved off his mustache.
April 17, 1865
As soldiers are questioning inhabitants of the home of Mary Surratt, a
man carrying a pickax knocks on the door. The man turns out to be
Lewis Powell. The man claims to be a hired laborer, but Mary Surratt
denies hiring him. Powell is arrested, as are Surratt and her boarders.
The same day, authorities track down the source of a letter from
"Sam" found in Booth's hotel room and arrest its author, Samuel
Arnold.
Michael O'Laughlen, a boyhood friend of Booth, is also arrested.
8
April 18, 1865
Confederate General Joseph Johnston surrenders to General W.T.
Sherman on terms later repudiated by the Johnson administration.
Later that month, Johnston accepts terms similar to those given to
Lee.
April 19, 1865
Lincoln's funeral is conducted in the East Room of the White House.
April 20, 1865
George Atzerodt, who had taken a room in a hotel occupied by Vice
President Johnson on the April 14 (which was found to contain
weapons and property of Booth), is captured in his bed. He was to
have murdered the Vice President at the same time Booth was
shooting Lincoln and Powell was attacking Seward, but lost his nerve.
Secretary of War Stanton offers a $100,000 reward for the capture of
Booth, $50,000 for Booth’s accomplice David Herold, and $25,000 for
John Surratt.
April 24, 1865
Authorities arrest Dr. Samuel A. Mudd based on his contact with
Booth (setting his broken leg after the assassination and allowing him
to stay the night at his farm) and his unsatisfactory answers when
questioned
April 25, 1865
Secretary of War Edwin Stanton orders that the heads of the alleged
conspirators be kept covered by canvas hoods.
April 26, 1865
John Wilkes Booth is shot and killed at Garrett's farm in Virginia.
Herold, found in Booth's company, is arrested on suspicion of
involvement in the conspiracy.
Alexander Gardner photographs six alleged conspirators as they are
imprisoned on the vessels Montauk and Saugus. (Dr. Samuel Mudd
and Mary Surratt, held at the Old Capitol Prison, are not
photographed.)
April 27, 1865
Lewis Powell attempts to commit suicide by banging his head against a
cell wall. His canvas hood is replaced with a padded hood to thwart
future similar suicide attempts.
May 1, 1865
President Andrew Johnson orders that the Lincoln assassination
conspirators be tried by a military commission, after Attorney General
James Speed and Judge Advocate General Joseph Holt opine that this
is legally permissible.
9
May 4, 1865
Confederate General Taylor surrenders his forces east of the
Mississippi.
May 9, 1865
The Military Commission convenes for the first time.
May 10, 1865
The conspirators are arraigned before the Military Commission. The
Commission also adopts rules that will govern the trial.
Confederate President Jefferson Davis is captured in Georgia.
May 12, 1865
Testimony begins in the Lincoln assassination conspiracy trial at the
Old Arsenal Building in Washington.
May 26, 1865
Confederate General Kirby Smith surrenders the last major
Confederate force at New Orleans.
June 1, 1865
The country observes a national day of mourning for Lincoln.
June 6, 1865
Major General John Hartranft, concluding that the prisoners are
suffering too much from their hoods, orders them removed.
June 29, 1865
In secret session, the Commission begins its review of the trial
evidence.
June 30, 1865
The Military Commission issues its judgment. All eight defendants are
convicted. Four conspirators (Herold, Powell, Atzerodt, and Mary
Surratt) are sentenced to die, three (O'Laughlen, Arnold, and Mudd) to
life terms, and one (Edman Spangler) to six years.
July 5, 1865
President Johnson approves the verdicts and sentences of the Military
Commission. He directs that the death sentences be carried out on
July 7 and that the prison sentences be served at a military prison at a
fort in Dry Tortugas, Florida.
July 6, 1865
Major General Hartranft tells four prisoners they will be hanged the
next day. Mary Surratt’s lawyers prepare a petition for habeas corpus.
10
July 7, 1865
Justice Andrew Wylie of the Supreme Court of the District of Columbia
issues the writ of habeas corpus requested by Surratt's lawyers,
directing that Surratt be brought to court for a hearing on the validity
of her conviction and sentence. Attorney General Speed and
President Johnson are informed of the writ's issuance. The President
signs an order: "I hereby declare that the writ of habeas corpus is
suspended in cases such as this." Justice Wylie reluctantly yields to
the suspension of the writ.
Shortly before 1:30 in the afternoon in the courtyard of the Old
Arsenal Building, with George Atzerodt's last words, "May we meet in
another world," the trap of the gallows is sprung and Atzerodt, Herold,
Powell, and Mary Surratt are hanged.
August 11, 1865
Louis Weichmann signs an affidavit strongly implicating John Surratt,
who fled the country, in the assassination conspiracy.
December 18, 1865
The Thirteenth Amendment, abolishing slavery, is ratified by threefourths of the states. (Ironically, the original Thirteenth Amendment
that was proposed but not adopted in 1860 would have guaranteed
the continued existence of slavery.)
April 2, 1866
President Johnson proclaims that the insurrection has ended.
June 10August 11, 1867
John Surratt, after having been captured in Europe, is tried in a civilian
court in Maryland. The jury is unable to reach a verdict in his case and
in late August, Surratt is released
September 23, 1867
Convicted conspirator Michael O'Laughlen dies in prison.
February 8, 1869
President Andrew Johnson grants a presidential pardon to Dr. Samuel
Mudd.
March 1, 1869
President Johnson pardons the two remaining Lincoln conspiracy
defendants still in prison, Samuel Arnold and Edman Spangler.
December 6, 1870
John Surratt begins a public lecture tour in which he provides his
account of the assassination conspiracy.
February 7, 1875
Four years after his release from prison, Edman Spangler dies.
June 10, 1883
Convicted conspirator Dr. Samuel A. Mudd dies.
September 21, 1906
The last of the convicted conspirators, Samuel Arnold, dies.
11
April 21, 1916
Suspected conspirator John Surratt dies.
A significant portion of the timeline was taken from the University of Missouri–Kansas City
published timeline available at http://law2.umkc.edu/faculty/projects/ftrials/
lincolnconspiracy/lincolnchronology.html.
12
SELECT BIBLIOGRAPHY
This bibliography is not intended by any means to be comprehensive. Lincoln may be
the most written-about President in American history, not to mention the ever-enduring
fascination of authors and readers on the subject of the American Civil War and Reconstruction.
What we offer here is a list of books and cases that explore the issues presented by the Lincoln
assassination, the military trial of the conspirators, and related issues. Most of the books listed
are popular treatments of their subjects available in bookstores.
For the more adventurous, each of the books on this list has its own bibliography, which
collectively will capture most significant scholarly treatments as well as primary resources on
these subjects for further exploration. The cases tackle such issues as Lincoln’s suspension of
the writ of habeas corpus, military jurisdiction and curtailment of civil liberties during times of
national crisis. Copies of these cases are available on the Inn of Court CLE website.
BOOKS
Anastaplo, George. Abraham Lincoln: A Constitutional Biography. Rowan and Littlefield
Publishers, Inc., 2001.
Blair, William A. With Malice Towards Some: Treason and Loyalty in the Civil War Era.
University of North Carolina Press, 2014.
Canavan, Kathryn. Lincoln's Final Hours: Conspiracy, Terror, and the Assassination of
America's Greatest President. University of Kentucky Press, 2015.
Dirck, Brian R. Lincoln and the Constitution. Southern Illinois University Press, 2012.
Emerson, Jason. Giant in the Shadows: The Life of Robert T. Lincoln.
University Press, 2012.
Southern Illinois
Fletcher, George P. Our Secret Constitution: How Lincoln Redefined American Democracy.
Oxford University Press, 2001.
Hatch, Frederick. The Lincoln Assassination Conspiracy Trial and Its Legacy. McFarland &
Co., Inc., 2015.
Kauffman, Michael W. American Brutus: John Wilkes Booth and the Lincoln Conspiracies.
Random House, 2004.
Kelley, Darwin. Milligan’s Fight Against Lincoln. Exposition Press, 1973.
Klemont L. Frank. The Limits of Dissent: Clemont L. Vallandisham & the Civil War. University
of Kentucky Press, 1970.
13
Larson, Katen Clifford. The Assassin's Accomplice: Mary Surratt and the Plot to Kill Abraham
Lincoln. Basic Books, 2008.
Leonard, Elizabeth D. Lincoln’s Forgotten Ally: Judge Advocate General Joseph Holt of
Kentucky. University of North Carolina Press, 2011.
McGinty, Brian. Lincoln and the Court. Harvard University Press, 2008.
Neeley, Jr., Mark E. The Fate of Liberty: Abraham Lincoln and Civil Liberties. Oxford
University Press, 1991.
Neeley, Jr., Mark E. The Union Divided. Harvard University Press, 2002.
O’Reilly Bill and Dugrad, Martin. Killing Lincoln: The Shocking Assassination that Changed
America Forever. St. Martin’s Griffin, 2011.
Randall, James G. Constitutional Problems Under Lincoln. University of Illinois Press (revised
ed), 1964.
Schein, Michael John Surratt: The Lincoln Assassin Who Got Away. History Publishing Co.,
2015
Simon, James F. Lincoln & Chief Justice Taney: Slavery, Secession and the President’s War
Powers. Simon and Shuster, 2006.
Stone, Geoffrey R. Perilous Times: Free Speech in Wartime. W.W. Norton & Co., 2004,
Chapter II.
Swanson, James L. Manhunt: The 12-Day Chase for Lincoln's Killer. HaperCollins Publishers,
2007.
Swanson, James L. and Weinberg, Daniel R. Lincoln’s Assassins: Their Trial and Execution.
William Morrow, 2001.
CASES
Al Bahlul v. United States, 792 F.3d 1 (D.C. Cir. 2015) (opinion withdrawn, rehearing en banc
granted)
Duncan v. Kahanamoku, 327 U.S. 304 (1946)
Ex parte Field, 9 F. Cas. 1 (C.C.D. Vt. 1862)
Ex parte McCardle, 74 U.S. 506 (1868)
Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861)
14
Ex parte Milligan, 71 U.S. 2 (1866)
Ex parte Quirin, 317 U.S. 1 (1942)
Ex parte Vallandigham, 68 U.S. 243 (1863)
Farnsworth v. Minn. & Pacific R.R. Co., 92 U.S. 49 (1875)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Mudd v. White, 309 F.3d 819 (D.C. Cir. 2002)
State of Georgia v. Stanton, 73 U.S. 50 (1867)
State of Mississippi. v. Johnson, 71 U.S. 475 (1866)
Texas v. White, 74 U.S. 700 (1868)
U.S. v. Harris, 106 U.S. 629 (1883)
U.S. v. Reese, 92 U.S. 214 (1875)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
15
CAST/PARTICIPANT BIOGRAPHIES
P. Dawn Baker Miller is a judicial hearing officer at the New York City Office of
Administrative Trials and Hearings. She is also of counsel at the law firm of Clark Gagliardi &
Miller. Prior to joining the firm, she was a Senior Counsel at the New York City Office of the
Corporation Counsel, where she served in the General Litigation Division, the Labor and
Employment Division, and the Special Litigation Unit. Her background includes general pretrial
litigation experience as well as trial and appellate experience in both federal and state courts.
She is a member of the Federal Bar Council, the New York State Bar Association Committee on
Lawyers in Transition, and the New York City Bar Association, where she served on the
Litigation Committee from 2000 through 2009. She is admitted to practice in the Southern and
Eastern Districts, the Second Circuit, and the Supreme Court of the United States. Ms. Baker
Miller is a graduate of the University of South Carolina School of Law, where she was Associate
Editor-in-Chief of the Law Review.
Brooke Bowen is an associate at Biedermann Hoenig Semprevivo, A Professional
Corporation, where she focuses her practice on education law, employment law, and complex
insurance and reinsurance matters. Ms. Bowen is actively involved in the National Association
of College and University Attorneys and she is a member of the Education & the Law
Committee of the New York City Bar Association. Ms. Bowen received her undergraduate
degree from the University of Georgia in 2007 and her law degree from the University of
Georgia School of Law in 2010. While in law school, Ms. Bowen studied Comparative
Employment Law and Human Rights at the University of Oxford.
Christopher Fraser is a litigation associate at The Dweck Law Firm, LLP, where his
practice ranges from commercial litigation and arbitration to employment and medical
malpractice actions. Mr. Fraser graduated from Middlebury College in 2005 with a B.A. in
American Literature and received his law degree in 2010 from St. John’s University School of
Law. This is his third year as a member of the New York American Inn of Court.
Honorable Helen E. Freedman (Ret.) is currently a neutral with JAMS. She was an
Associate Justice of the Appellate Division of the New York State Supreme Court, First
Department, from 2008 to 2014 and served as a Justice of the Supreme Court from 1984 to 2008.
She served on the Appellate Term of the Supreme Court from 1995-99 and in the Commercial
Division of the New York County Supreme Court, for eight years. Justice Freedman was the
Presiding Judge of the Litigation Coordinating Panel for multi-district litigation in New York
State from 2002 until 2014. She has been a member of the Pattern Jury Instructions Committee
of the Association of Justices of the Supreme Court of the State of New York since 1994 and is a
member of the Advisory Council of the New York State and Federal Judicial Council. She is also
a member of the Board of Directors of the New York County Lawyers’ Association and a
Trustee of the Historical Society of New York Courts. She is the author of New York Objections,
a book on trial practice and the making of objections, and of a chapter in the treatise Commercial
Litigation in New York State Courts. She is a graduate of Smith College and of the New York
University School of Law.
16
Henry A. Freedman retired last year after serving as Executive Director of the National
Center for Law and Economic Justice since 1971. Before becoming Executive Director, he had
been in private practice in New York City and taught at Catholic University Law School in
Washington, DC. He has also taught at Columbia and New York University Law Schools, and
Columbia and Fordham Schools of Social Work. He has chaired the Committee on Legal
Assistance of the Association of the Bar of the City of New York, and was the only "welfare
recipient advocate" on HEW Secretary Califano's 32-member group formed to study welfare
reform alternatives in 1977. He successfully argued Califano v. Westcott before the United
States Supreme Court in 1979. Mr. Freedman has received the National Legal Aid and Defender
Association's Reginald Heber Smith Award for Dedicated Service (1981), the New York State
Bar Association's Public Interest Law Award (1998), the William Nelson Cromwell Medal of the
New York County Lawyers' Association (2001), and an honorary Doctor of Laws degree from
Amherst College in 2008. He is a graduate of Amherst College and Yale Law School.
Vilia B. Hayes is a litigation partner at Hughes Hubbard & Reed LLP, where her practice
concentrates on employment law, product liability, insurance and commercial litigation. She is
also Co-Chair of the Pro Bono Committee. Ms. Hayes graduated from Marymount College with
a B.A. degree (Psychology, with Honors) in 1972. She received her law degree in 1980 from
Fordham University School of Law (cum laude), where she served as Associate Editor on the
Fordham Law Review. Prior to joining Hughes Hubbard, Ms. Hayes served as Law Clerk to the
Honorable Charles L. Brieant, United States District Judge for the Southern District of New
York (1980-1981). She has been active in various professional associations, and is presently the
President-Elect of the Federal Bar Council, President of the New York American Inn of Court, a
member of the Board of New York County Lawyers Association, VOLS, and Legal Services NYC and a Trustee of the Lawyers Committee for Civil Rights Under Law.
David A. Herman is an associate at Cravath, Swaine & Moore LLP. His practice
includes complex commercial litigation, internal investigations, and criminal and regulatory
matters. Mr. Herman received his B.A. in history from the University of Pennsylvania and his
law degree from New York University School of Law, where he was a member of the Law
Review. He is a member of the International Law Committee of the New York City Bar
Association and was a co-author of the Association's 2014 report on the legality of targeted
killings by drones.
Meredith J. Jones is the General Counsel of the New York City Economic Development
Corporation. NYCEDC promotes economic growth across New York City's five boroughs
through annual contracts with the City. It is the City’s official economic development
corporation, charged with using the City's assets to drive growth, create jobs, and improve
quality of life. Before joining NYCEDC, Ms. Jones was a transactional lawyer in Palo Alto,
California. She previously served as Chief of the Cable Services Bureau of the Federal
Communication Commission in Washington, D.C., involved in multichannel video and telecom
competition issues. Before joining the FCC, she was General Counsel to the National Oceanic
and Atmospheric Administration in Washington, D.C., which includes the National Weather
Service and is the nation’s trustee for marine mammals and anadromous fish and the lead agency
for oceanic and atmospheric issues. She was a member of the legal team of the Bechtel group of
companies in San Francisco, California and was a partner in a San Francisco law firm. Ms.
17
Jones began her legal career in New York City. She is a graduate of the Yale Law School and
Swarthmore College.
Bruce N. Lederman has more than 35 years of complex commercial, real estate, and
intellectual property litigation experience. He presently practices as a solo practitioner, and is
also Counsel to London House Chambers, a Guyana-based law firm. An AV preeminent rated
attorney, Bruce was a founding partner of Fischbein Badillo Wagner Harding. For more than 15
years, Bruce headed that firm’s litigation department. Bruce has tried numerous civil matters in
both bench and jury trials, and has handled appeals in the State and Federal Courts. He has
appeared as trial counsel to other attorneys, and has often worked with local counsel throughout
the United States. Bruce earned his B.A. from Colgate University in 1975 and his J.D. from the
Benjamin N. Cardozo School of Law in 1979.
Ira Brad Matetsky is a partner at Ganfer & Shore, LLP, where he concentrates his
practice in litigation matters, including corporate, commercial, securities, and trust-and-estates
litigation and appeals. Mr. Matetsky is a 1984 graduate of Princeton University and a 1987
graduate of the Fordham University School of Law, where he received awards in Contracts and
Constitutional Law and served on the Fordham Law Review. Prior to joining Ganfer & Shore,
Mr. Matetsky served as a litigation attorney at Skadden, Arps, Slate, Meagher & Flom LLP as
well as five years as in-house counsel at Goya Foods, Inc. He has authored several published
articles in legal periodicals, is a member of the Board of Advisors of The Green Bag Almanac
and Reader (an annual collection of the year’s best legal writing), and co-edits the annual
supplements to In Chambers Opinions by the Justices of the Supreme Court of the United States.
He is a New York Super Lawyer and a past recipient of the President’s Pro Bono Service Award
from the New York State Bar Association.
Honorable Karla Moskowitz is a Justice of the Appellate Division, First Department,
where she has served since January 2008. She received a Bachelor of Arts degree, cum laude,
from Alfred University in 1963 and graduated from Columbia Law School in 1966. Justice
Moskowitz has served as a judge since 1982. During that time, she served as a trial judge in
Supreme Court Civil Branch sitting in a Medical Malpractice Part from 1992 until 2001 and in
the Commercial Division from 2001 until her elevation to the Appellate Division. She is a Past
President of the New York Women’s Bar Association, the New York State Association of
Women Judges and National Association of Women Judges. She is also a Founder and Past
President of the Judges and Lawyers Breast Cancer Alert. She is a Charter Member of the
American College of Business Court Judges and sits on the Executive Committee of the
Commercial and Federal Litigation Section of the New York State Bar Association. Among
Justice Moskowitz’s honors are an Honorary Degree of Doctor of Laws, from Alfred University
in 2008; induction into Phi Beta Kappa in 2006; the Abigail Allen award from Alfred University
in 2004; the Edith I. Spivack Award of the Women’s Rights Committee of the New York County
Lawyers Association in 2003; the Founder's Award of the Women's Bar Association of the State
of New York in 1999, and the Women of Valor Award of the Women's Medical Association of
New York City in 1995.
Mark S. Pincus is the founder and Managing Member of Pincus Law LLC, a litigation
boutique focused on commercial and employment litigation. Active in the legal community, Mr.
18
Pincus currently serves as Vice President of the New York American Inn of Court and the chair
of the Federal Bar Council Public Service Committee’s small firm subcommittee. A graduate of
Cornell University and the Fordham University School of Law, where he served as Notes &
Articles Editor of the Fordham Law Review, Mr. Pincus previously practiced at Cahill Gordon &
Reindel LLP and Edward V. Sapone, LLC. Mr. Pincus has been selected as a Rising Star in the
New York Metro Edition of Super Lawyers in both 2014 and 2015 for Business Litigation and
Employment Litigation. This is his seventh year on the historical trial team.
Jay G. Safer is a partner in Locke Lord's New York office and has experience handling
complex litigation and arbitration in the United States and abroad. Jay represents clients in
matters concerning contracts, antitrust, securities, RICO, qui tam, international litigation and
arbitration, including application of the New York Convention and enforcement of foreign
judgments and arbitration awards, insurance, construction, real estate, employment, media,
product liability, health care, professional ethics, financial, constitutional and regulatory issues.
He also counsels clients on commercial matters, including protection and preventive measures,
creation of risk litigation plans, e-signature, e-discovery and e-readiness, and pre-litigation
analysis, and has handled numerous cases involving these subjects.
Honorable Robert S. Smith (Ret.) is a partner in the New York office of Friedman
Kaplan Seiler & Adelman LLP, and is head of the firm’s appellate practice. His practice focuses
on trials and appeals. Judge Smith joined Friedman Kaplan following his retirement as
Associate Judge of the New York State Court of Appeals, New York’s highest court, where he
served for more than a decade. During his time on the bench, he wrote scores of opinions and
became well known for his judicial scholarship, insight, and intellectual rigor even in the most
complex of cases. Prior to his time on the Court of Appeals, Judge Smith practiced law in New
York City, and was a partner with Paul, Weiss, Rifkind, Wharton & Garrison for over 25 years.
He has argued dozens of appeals before the federal and New York appellate courts, and two
appeals before the United States Supreme Court. His trial experience in complex commercial
cases is also extensive. Judge Smith graduated with great distinction in 1965 from Stanford
University and received his law degree, magna cum laude, in 1968 from Columbia Law School,
where he was editor-in-chief of the Columbia Law Review and later taught from 1980 to 1990.
He has also taught at the Benjamin N. Cardozo School of Law since 2006.
Edward G. Sponzilli, a member of Norris McLauglin & Marcus, P.A., is a New Jersey
Supreme Court Certified Civil Trial Attorney with 38 years’ experience in complex corporate
and commercial litigation and education matters, as well as employment litigation relating to
restrictive covenant, wrongful termination, CEPA, employment discrimination and sexual
harassment. He is a Fellow of the American Bar Association and is a 2008 recipient of the
Professionalism Award. In 1999 he was awarded the New Jersey Supreme Court’s Fund for
Client Protection’s “Client Protection” Award for his outstanding service on behalf of the public
and the Bar of New Jersey in his role as Chancery Court-appointed Receiver in the case of
Montano v. Cohen & Cohen. Mr. Sponzilli is a past president of the C. Willard Heckel Inn of
Court and the Rutgers—Newark Law School Alumni Association. He is Trustee of the Trial
Attorneys of New Jersey. He has been on the faculty of the National Institute for Trial Advocacy
for over fifteen years and, for the past seven years, has been one of only two non-government
faculty members in the New Jersey Attorney General’s Trial Advocacy Institute. He is currently
19
also a master of the Lifland (federal practice) American Inn of Court in New Jersey. He has
served as a federal arbitrator and state court certified mediator. Mr. Sponzilli was a Judicial Law
Clerk for the Honorable James A. Coolahan, U.S. District Judge for the District of New Jersey,
from 1975 to 1977.. During his two-year clerkship, Judge Coolahan held a temporary assignment
to the Court of Appeals for the Third Circuit. Mr. Sponzilli was a 1971 Phi Beta Kappa, magna
cum laude graduate of Rutgers College. He received a masters degree in American History in
1972 from Columbia and his law degree from Rutgers, Newark in 1975. He has been selected
for inclusion in The Best Lawyers In America and New Jersey Super Lawyers, as well as
Marquis’ Who’s Who In American Law and Who’s Who in America. He is a member of the New
Jersey Supreme Court Committee, Bench, Bar and Media.
Matthew N. Tobias is a litigation associate at Ganfer & Shore, LLP, where he
concentrates his practice on commercial litigation. Mr. Tobias received his B.S. from Cornell
University in 1996, with a major in communication. While an undergraduate, he also studied
geography and economics at University College London in London, England. Mr. Tobias
received his J.D. from Fordham University School of Law in 2000, where he served as a member
of the Fordham Law Review and was on the Dean's List. Prior to joining his current firm, Mr.
Tobias was in private practice in trusts and estates and commercial litigation, including contract,
real estate, securities, trademark and general commercial disputes.
Christopher Tumulty is an associate at Tarter Krinsky & Drogin LLP, practicing
complex commercial litigation. He handles litigation and arbitration involving businesses of all
types, with a focus on the real estate and construction industries. He is a 2007 graduate, cum
laude, of Pace University School of Law where he served as Articles Editor for the Pace
International Law Review, and a 2004 graduate of Fordham University, Fordham College at
Rose Hill.
Chryssa Valletta is a counsel at Phillips Nizer LLP and practices in the areas of
commercial litigation, real estate litigation, employment litigation, and international arbitration.
She is a graduate of the University of Scranton and Columbia Law School, where she served as
the director of the Jerome Michael Jury Trials moot court program. Prior to joining Phillips
Nizer, she was a partner in the New York office of a multi-national law firm. She is the co-chair
of the International Arbitration and ADR Committee of the New York State Bar Association’s
International Section and has been selected as a New York Super Lawyer since 2013.
Mary Kay Vyskocil is a Senior Litigation Partner at Simpson Thacher & Bartlett LLP,
where she handles complex commercial litigation. Her practice is concentrated in insurance and
reinsurance coverage litigation, securities cases, and cases involving the financial services
industry. Ms. Vyskocil has handled numerous jury trials and appellate arguments throughout
the United States as well as and arbitrations both domestically and in London. She has received
numerous professional citations, including first tier rankings in Chambers, Legal 500, America’s
Leading Business Lawyers and Benchmark Litigation. She was selected by Law360 as a top 15
female litigator and was recognized at Law360’s 2012 MVP Awards. She was also recognized
in Euromoney’s “Top 250 Women in Litigation in America” in 2012 and 2013, and in 2013,
Euromoney also named her among the Top Ten women litigators in the United States,. In
addition, she has consistently been listed as one of the “Top 100 attorneys and the Top 50
20
Woman Lawyers in the New York metropolitan area Ms. Vyskocil is also co-author of the
leading treatise, Modern Reinsurance Law & Practice, Third Edition (Thompson Reuters 2014)
and is frequent lecturer on insurance and reinsurance issues and on litigation and trial skills and
ethics at continuing legal education seminars. She is also active in professional organizations and
community affairs. She has numerous judicial appointments including service as an Appellate
Division Disciplinary Committee hearing referee, on the Southern District of New York Judicial
Merit Selection Panel, and as a member of the Chief Judge’s Advisory Council on the New York
State Commercial Division. She is also a member of the Board of the Historical Society of the
New York Courts.
21
HISTORICAL TRIAL TEAM – LINCOLN ASSASSINATION CONSPIRACY TRIAL
FINAL SCRIPT – NOVEMBER 19, 2015
NARRATOR:
John Wilkes Booth shot President Lincoln at Ford’s Theater in Washington on the
evening of April 14, 1865. Booth, a 27-year-old actor, escaped from the theater, breaking his leg
in the process, and fled. Lincoln died the next morning. Also on the night of April 14, the
Secretary of State, William Seward, was repeatedly stabbed by Lewis Payne, who also assaulted
Seward’s son and a bodyguard at Seward’s home. Yet another attacker lay in wait with plans to
assassinate the Vice President, Andrew Johnson.
[OPENING NARRATION AND AV]
Today, we know that the Civil War was virtually over when Lincoln was shot. But that
was not known on April 14, 1865, which was just five days after Robert E. Lee surrendered to
Ulysses S. Grant at Appomattox. More than 100,000 Confederate troops in the Western Theater
still had not surrendered. It was not until May 9 – almost a month after the assassination – that
now-President Johnson declared that armed resistance to Union authority was “virtually” at an
end. The Confederate President, Jefferson Davis, was not captured until May 10. The last battle
of the War took place in Texas on May 12 and 13, and the last significant active Confederate
force did not surrender until June 23. President Johnson’s formal proclamation “that Peace,
Order, Tranquility and Civil Authority new exist through the whole of the United States” was not
issued until August of the following year.
On the evening of April 14, 1865, the capital was in turmoil. As Elizabeth Keckly, a
former slave and dressmaker and a friend of Mrs. Lincoln, wrote in her memoir, that night “the
1
streets of Washington were alive with wondering, awe-stricken people. Rumors flew thick and
fast, and the wildest reports came with every new arrival.” The entire North was filled with
mourning and with demands for vengeance.
After fleeing the theater, Booth escaped to the Maryland countryside, accompanied by
another conspirator, David Herold. The two men rode for 30 miles, arriving at the house of Dr.
Samuel Mudd, who set Booth’s broken leg. Booth was killed by a Union soldier in a shootout in
a barn in Virginia on April 26. Herold came out of the barn and surrendered. Lewis Payne, after
escaping from the Seward residence, hid for three days before appearing at the boardinghouse of
Mrs. Mary Surratt, John Surratt’s mother, where Payne was arrested. A few days later, Atzerodt
was arrested and identified as the man who had prepared to assassinate Vice President Johnson.
At the last minute, Atzerodt was overcome by fear and did not go through with the attack, but
instead got drunk.
In the ensuing weeks, dozens of other people were arrested during the investigation of the
conspiracy, including Mary Surratt and Dr. Mudd. John Surratt left the country and was not
arrested until the following year. Most of the suspects were eventually released, but eight were
held for trial. At the urging of Secretary of War Edwin Stanton and others, President Johnson
asked Attorney General James Speed to opine on the legality of trying the suspects before a
military tribunal instead of a civilian court. Speed concluded that a military trial would be
proper, reasoning that an attack on the commander-in-chief before the full cessation of the
Rebellion constituted an act of war.
President Johnson then directed that the eight alleged conspirators be tried before a
Military Commission, composed of nine Army officers, with Major General David Hunter
presiding. The Judge Advocate General’s Office, led by Brigadier General Joseph Holt, would
2
act as the prosecution. The eight defendants were allowed to hire civilian lawyers and to call
witnesses in their defense. However, under the rules of evidence in effect at the time – but quite
unlike in a criminal trial of today, civilian or military – the defendants were not allowed to testify
in their own defense, because of their interest in the outcome of the proceedings. Under military
law, a simple majority of the Commission was required to convict, with a two-thirds vote
required to impose a death sentence.
(Commissioners, led by Major General Hunter, take bench; Judge Advocate General Holt,
defense attorneys Aikin and Ewing, and defendants Surratt and Mudd take their seats)
NARRATOR:
The trial began on May 9, 1865, just three weeks after the assassination, at the Arsenal in
Washington, D.C. Although the trial considered charges against all eight defendants, tonight, we
will focus on the proceedings regarding two of the defendants – Mary Surratt and Dr. Samuel
Mudd.
GENERAL HUNTER (presiding):
The prisoners are charged with the crime of conspiracy, in that they did combine with
each other, and with John Wilkes Booth, John Surratt, Jr., and others, to kill and murder the
President of the United States and Commander-in-Chief of their armed forces, Abraham Lincoln;
the Vice President, Andrew Johnson; the Secretary of State, William Seward; the Secretary of
War, Edwin Stanton, and to commit other offenses, the details of which are set forth in the
charge and specification in writing.
3
The accused Mary Surratt will rise.
(Mary Surratt rises)
GENERAL HUNTER:
Mrs. Mary Surratt, to the charge and specifications, how do you plead?
MARY SURRATT:
(Emphatically) Not guilty.
(She is seated)
GENERAL HUNTER:
Not guilty. The accused Samuel A. Mudd will rise.
(Samuel Mudd rises)
GENERAL HUNTER:
Dr. Samuel Mudd, how do you plead?
SAMUEL MUDD:
Not guilty.
(He is seated)
GENERAL HUNTER:
Each of the eight accused has pleaded not guilty, and has secured counsel, whose loyalty
to the United States has been established to the satisfaction of the Tribunal. The trial will
proceed.
NARRATOR:
Throughout the proceedings, counsel for all the defendants objected to the trial being
conducted before a military commission.
4
GENERAL HUNTER:
On the motion to dissolve the Tribunal for want of jurisdiction, we will hear Mr. Aiken
for the defendants.
AIKEN:
May it please the Court, we submit that the Commission has no jurisdiction over these
charges against these defendants.
Any jurisdiction this Commission may have must be consistent with the Constitution of
the United States. Article Three vests the judicial power of the United States in the Supreme
Court and such inferior courts as Congress may establish, presided over by judges holding office
during good behavior. Congress has not ordained your court, and you are not judges holding
office during good behavior. Therefore, you are not a court under the Constitution, and cannot
exercise the judicial power.
The Fifth Amendment provides that “[n]o person 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 the land or naval forces, or in the militia when in actual service in time of war or
public danger.” No grand jury has met in this case, and these defendants are not soldiers, not
militia men, but ordinary civilian citizens.
Article Three of the Constitution states that “the trial of all crimes except in the case of
impeachment, shall be by jury.” The Sixth Amendment similarly provides for “a speedy and
public trial by an impartial jury….” This Tribunal is not a jury within the meaning of the
Constitution.
5
It is said that necessities of war justify the finding of jurisdiction. But these citizens
belong to none of the classes over whom military jurisdiction or martial law extends. They are
not charged as spies, or pirates, or armed and organized marauders, nor enemies captured in war,
or persons in the land or naval services. They were arrested here in the City of Washington for
offenses allegedly committed here, not in enemy territory. The crimes charged against the
defendants are all cognizable in civilian courts, and the civilian courts of this District are open to
try them.
The defendants therefore move that this Commission declare itself without jurisdiction
over the prisoners or the charges against them.
GENERAL HUNTER:
Mr. Judge Advocate General.
JUDGE ADVOCATE GENERAL HOLT:
The conspiracy here charged and specified constitutes an atrocious crime that has sent a
shudder through the civilized world. The President has constituted you a military court, to hear
and determine the issue joined against each of the accused. It is charged that in aid of the
existing Rebellion, a conspiracy was entered into by the accused to kill and murder the
commander of the armies of the United States.
Counsel assert that the successor of your murdered president cannot attempt by military
force and martial law to prevent the consummation of this traitorous conspiracy. The civilian
courts, he says, are open in this district. I answer, they are still closed throughout half the
Republic, and are open in this district only by force of the bayonet.
6
Counsel has said that you are no court under the Constitution. It is sufficient answer to
say that the power to try and punish military offenses by military tribunals is a power conferred
by Article One, Section Eight, which gives Congress the power to provide for the common
defense, to declare war, and to make all laws necessary for the execution of these powers. A
military court authorized by Congress, constituted to try all persons for military crimes in time of
war, is a court as constitutional as the Supreme Court itself.
Counsel then argues that the United States cannot subject any person to trial before a
military tribunal for any offense unless such person is in the military or naval service of the
United States. He ignores the distinction between military law, which regulates the Army and
Navy themselves, and martial law, which is of wider applicability during time of war. And
while it is true that the proclamation of martial law continues only so long as the insurrection
exists, whether an insurrection still continues is a political question, to be decided by the political
departments of the government. The events of April 14 are sad but overwhelming witness to the
fact that the Rebellion is not yet ended.
The conspiracy entered into by these traitors was revealed by the foul and brutal murder
of your President. It is constitutional to attempt to prevent further harm by bringing the assassins
and those who conspired with them before a military tribunal of justice. The executive power to
make war amply extends to the convening of this Military Commission to try those who
conspired to assassinate the Commander in Chief and other high-ranking officials, in a time of
rebellion and war.
(The Commissioners speak briefly among themselves)
7
GENERAL HUNTER:
The pleas of the defendants challenging the jurisdiction of this Commission are
unanimously overruled. The trial will go forward
NARRATOR:
The testimony began on May 11, 1865. The Commission heard from more than three
hundred and fifty witnesses, who gave testimony relating to all eight defendants. Needless to
say, due to time considerations we can present only a small portion of the prosecution and
defense evidence relating to Mary Surratt and Samuel Mudd.
GENERAL HUNTER:
The Tribunal will be in order. At this time we will hear witnesses regarding the accused
Mary Surratt. Mr. Judge Advocate General.
HOLT:
We will call Mr. Louis Weichmann. And may I advise the Tribunal, the testimony of this
witness will relate both to the accused Mary Surratt and the accused Samuel Mudd and others.
GENERAL HUNTER:
Very well.
(Weichmann takes stand)
Q:
Please state your name and profession.
A:
My name is Louis J. Weichmann. I am a clerk in the United States Army.
8
Q:
Are you acquainted with a John Surratt, Junior?
A:
Yes, sir. I met him in the fall of 1859, and we remained friends while we were studying
together at a Roman Catholic seminary. Both of us left the seminary during the summer
of 1862, because of the War of the Rebellion
Q:
Did you encounter Mr. Surratt in Washington, D.C.?
A:
Yes. I took lodging in the boardinghouse of John’s mother, Mrs. Mary Surratt, starting in
November 1864 and I was there until the assassination in April.
Q:
While you were boarding there, did you come to know John Wilkes Booth?
A:
Yes, sir.
Q:
Could you please tell us how you met Mr. Booth?
A:
On January 15th, I was walking down Seventh Street with John when I heard someone
call John’s name. We turned and saw Dr. Mudd (pointing to him) and Booth. John
introduced me to Dr. Mudd who then introduced us both to Mr. Booth. Mr. Booth then
invited us to his room at the National Hotel for cigars and wine.
Q:
While you were at the National Hotel, did those three gentlemen have any conversations
outside your earshot?
A:
Yes. First, Dr. Mudd asked to speak privately with Mr. Booth. Then, when they
returned, Mr. Booth asked John to join them and all three had a private conversation for a
9
few minutes before returning. Booth then took out an envelope and on the back of it
made marks with a pencil with John and Dr. Mudd looking on. All the while he was
doing it, they were engaged in private conversation that I could not hear.
Q:
Did you ever again encounter Mr. Booth?
A:
Yes. After the meeting at the National Hotel, Mr. Booth frequently called at Mrs.
Surratt’s boardinghouse. He would generally ask for John, but in John’s absence would
speak with Mrs. Surratt.
Q:
How long would the meetings between John Surratt and John Wilkes Booth last?
A:
Sometimes up to two or three hours.
Q:
Did you ever see Mr. Booth meet privately with Mrs. Surratt?
A:
Yes, several times.
Q:
While boarding at Mrs. Surratt’s house, did you come to know the accused Lewis Payne?
A:
Yes. Sometime in March, Payne came to Mrs. Surratt’s house and asked for John. When
I told him that John was not there, he asked to speak with Mrs. Surratt. He stayed in the
house all night, leaving for Baltimore the next morning. About three weeks later, he
again came to the boardinghouse and asked for Mrs. Surratt.
Q:
Did you ever witness Payne disguising himself?
10
A:
One day I found a false mustache on the table in my room. After I put the moustache
away in my toilet box, I saw Payne searching around the table and inquiring about his
false moustache. I thought no honest person had any reason to wear one.
Q:
Did you have any further encounters with Payne?
A:
Yes. I once found John Surratt and Payne seated on a bed, playing with bowie-knives,
two revolvers, and four sets of new spurs.
Q:
In addition to Mr. Payne, did you ever encounter any of the other prisoners in this action?
A:
Yes, the accused Atzerodt visited the boardinghouse about 10 or 15 times. And I also
met the accused Herold on several occasions through the Surratts, including once when
we saw Booth act in a play.
Q:
Did you see any of the other prisoners at the performance?
A:
I saw both Mr. Atzerodt and Mr. Herold there. After the show, I saw Atzerodt, Herold,
and Booth in the restaurant adjoining the theater, talking very confidentially. On my
approach, they separated and then asked me to join them for a drink.
Q:
Mr. Weichman, do you recall any specific interactions between Mrs. Surratt and Mr.
Booth in the month leading up to the assassination?
A:
I do. On the 2nd of April, Mrs. Surratt asked me to fetch Mr. Booth and say that she
wished to see him on “private business.” I fetched him and he met with her at the
boardinghouse that night. Then, on the 11th of April, Mrs. Surratt sent me to the
11
National Hotel to see Mr. Booth for the purpose of getting his buggy so that I could drive
her to Surrattsville, which is the Surratt family property in Maryland. Mr. Booth told me
that he had sold his buggy, but he gave me ten dollars so that I could hire another to drive
Mrs. Surratt.
Q:
Where were you on the day the President was assassinated?
A:
That day, at the request of Mrs. Surratt, I hired a buggy, and drove Mrs. Surratt the two
hours to Surrattsville.
Q:
What happened when you arrived?
A:
At about half-past 4 in the afternoon, we stopped at the house of Mr. Lloyd, who keeps a
tavern in Surrattsville.
Q:
Did you encounter anyone at the tavern?
A:
As I was leaving, I saw Mr. Booth in the parlor speaking to Mrs. Surratt for about three
or four minutes. After Mr. Booth left, we started back to the city.
Q:
I will turn to a different topic. I am handing you a telegraphic dispatch (handing). Could
you please read it out to the Tribunal.
A:
Yes, sir. (reading) “New York. March 23, 1865. To Weichmann, 541 H Street,
Washington: Tell John to telegraph number and street at once. Signed, J. Booth.”
Q:
Mr. Weichmann, have you seen this dispatch before today?
12
A:
Yes, I received the dispatch in late March of 1865. I delivered it to John Surratt on the
same day that I received it.
Q:
And did you speak with Mr. Surratt about the dispatch?
A:
Yes, I asked him what particular number and street was meant and he said, “Don’t be so
damned inquisitive.” I thought his response to be quite odd.
Q:
Did you have any other odd encounters with John Surratt during March?
A:
Yes, sir. On a visit by Mr. Payne to the boardinghouse, I again noticed John acting out of
sorts. When I came home around half-past 4:00 p.m., Mrs. Surratt was weeping bitterly
and advised that her son John had gone away. Around half-past 6:00 p.m., John came
back to the boarding house, very much excited, with a revolver in one hand. Over the
next thirty minutes, Payne and Booth entered the room, both very excited with guns in
their hands. When Mr. Booth recognized me in the room, the three of them left the room
and went upstairs to the back room. They remained there about 30 minutes before
leaving the house together.
Q:
Did you have any other unusual encounters with Mr. Surratt up until the time of the
President’s assassination?
A:
Yes, about two weeks later, John went to the post office and inquired for a letter that was
sent to him under the name of James Sturdey. I asked John why a letter was sent to him
under a false name and he said he “had particular reasons for it,” but did not elaborate
13
further. The letter was signed “Wood” which I later learned was a false name that was
sometimes used by Mr. Payne.
Q:
Thank you, Mr. Weichmann.
GENERAL HUNTER:
Mr. Aiken, you may cross-examine on behalf of Mrs. Surratt.
Q:
Mr. Weichmann, you testified that Mr. Booth paid for a buggy to take you and Mrs.
Surratt to Surrattsville on the 11th of April, just four days prior to the assassination. Do
you know the purpose of their trip?
A:
Mrs. Surratt told me that she needed to go to Lloyd’s tavern to see a man who owed her a
large sum of money.
Q:
And that was entirely true, was it not?
A:
I believe it was, yes, sir.
Q:
You would say that you are very familiar with Mrs. Surratt’s character, would you
not?
A:
Yes, I believe I am.
Q:
And, do you believe Mrs. Surratt to be of good character?
A:
Yes, during the whole time I have known her, her character, as far as I could judge, was
exemplary and lady-like in every particular, religiously and morally.
14
Q:
Now, Mr. Weichmann, you were one of the first individuals to report the purported
conspiracy regarding the President’s assassination, were you not?
A:
Yes, I believe that is so. I was reading the paper the morning after the assassination, and
read the description of the man who attacked Secretary Steward. I immediately thought
that description to be of Mr. Atzerodt, and so I told a police officer what I knew about
Payne, Atzerodt, Herold, and John Surratt.
Q:
Now in fact the man who attacked Secretary Seward was not Mr. Atzerodt, but Mr.
Payne. You were wrong about that, were you not?
A:
That is true.
(Aiken is seated)
GENERAL HUNTER:
Mr. Ewing, you may cross examine on behalf of Mudd.
Q:
Mr. Weichmann, you testified earlier as to conversations had between yourself, John
Surratt, John Wilkes Booth, and Dr. Samuel Mudd at the National Hotel, correct?
A:
I did.
Q:
Was anything said during these conversations that would lead you to believe that there
was any conspiracy going on between those three men?
A:
No, sir.
15
Q:
Did any of Mr. Booth’s actions lead you to believe that there was any criminal conspiracy
going on?
A:
No, sir.
Q:
Thank you, Mr. Weichmann. I have no further questions.
GENERAL HUNTER:
The witness is excused.
(Weichman leaves stand)
GENERAL HUNTER:
Who is the next witness, General Holt?
HOLT:
We call Lieutenant John W. Dempsey.
(Dempsey takes stand)
Q:
Sir, please state your profession.
A:
I am a lieutenant in the United States Army, sir.
Q:
Please tell us where you were on the night of April 17.
A:
Around eleven o’clock that night I travelled to the boardinghouse of Mrs. Mary Surratt
on H Street, accompanied by several other Army officers and two metropolitan police
detectives.
16
Q:
Why did you go there?
A:
We were under orders to arrest Mrs. Surratt and all in her house, and to search the house.
Q:
What did you locate during the search?
A:
We found photographs of Confederate leaders, including Jefferson Davis, throughout the
house. And I also discovered a photograph of a man who I later learned to be John
Wilkes Booth. That photograph was concealed inside the back of a painting, but when
we opened the painting, there was the likeness of John Wilkes Booth, with the word
“Booth” written in pencil on the back of it.
Q:
Did you find any other papers or documents?
A:
I also found the visiting cards of several of the Rebel leaders, including Jefferson Davis,
Alexander Stephens, and General Beauregard. And also a card bearing the words “sic
semper tyrannis,” which were the words that Booth shouted at the theater right after he
shot the President.
Q:
And did the search party find anything else of relevance in the house?
A:
Yes, sir. We also located a bullet-mold and a set of percussion-caps. These were found
in the back room of the lower floor, which I believe was Mrs. Surratt’s room.
Q:
Lieutenant, apart from those already present when you arrived, did anyone else come to
Mrs. Surratt’s boardinghouse that night?
17
A:
Yes, sir. At around midnight, while the ladies were gathering their belongings, a man
who identified himself as Payne arrived at the door. He was so suspicious a character
that I demanded to know his name, his occupation, and the business that he had in the
house that late hour of the night.
Q:
What did Mr. Payne answer you?
A:
He said he was a laborer who had come to the house at Mrs. Surratt’s request to dig a
gutter.
Q:
What did you think of that?
A:
I did not believe him, sir. I don’t know of any laborer who would dig a gutter at that late
hour in the evening. Also, Payne was wearing rather fine boots and clothes, but in place
of a hat, he had on his head a gray shirtsleeve, hanging over at the side. I also noted that
his hands were well-manicured and uncalloused, and I doubted that the man had
performed manual labor a day in his life.
Q:
Did you question Mrs. Surratt as to Mr. Payne’s identity?
A:
Yes, I asked Mrs. Surratt, “Do you know this man, and did you hire him to come and dig
a gutter for you?” Mrs. Surratt appeared rather alarmed. She raised her right hand, and
swore, “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.” We then arrested Payne and brought him to headquarters
with the others.
18
Q:
Thank you, Lieutenant.
HUNTER:
Mr. Aiken?
(Aiken rises)
Q:
Lieutenant Dempsey, you mentioned locating various photographs or pictures at the
house. Weren’t there also several pictures of actors found at the Surratt house that night?
A:
Yes, there were some of eminent actors.
Q:
Including actors who were without question loyal to the Union?
A:
Yes, sir.
Q:
Thank you.
GENERAL HUNTER:
The witness is excused.
(Witness excused)
HOLT:
We will call next John M. Lloyd.
(Lloyd takes stand)
Q:
Mr. Lloyd, where do you reside?
A:
I reside at Mrs. Surratt’s tavern in Maryland. Most know of it as Surrattsville.
19
Q:
What is your occupation?
A:
I look after the tavern and farm the land nearby.
Q:
Were you in Surrattsville on the day the President was assassinated?
A:
I was.
Q:
Did Mrs. Surratt say anything to you that day?
A:
Yes. She told me that some gentlemen would be calling at the tavern that night.
Q:
And did any men come to the tavern that night?
A:
Yes, two men arrived close to midnight.
Q:
Who were those men?
A:
David Herold and John Wilkes Booth.
Q:
Had you previously met Herold?
A:
Yes, a few weeks earlier, he came to the tavern with John Surratt and George Atzerodt.
Q:
Did you speak with any of those men during this first encounter?
A:
Mostly to John Surratt.
Q:
What did you discuss?
20
A:
The men were drinking in the tavern when John called me into the front parlor. He asked
me to look after a few items and pointed to two carbines, a cartridge-box of ammunition,
a rope about sixteen to twenty feet in length, and a monkey-wrench. I told him that I had
no place to conceal the items and did not wish to keep such things.
Q:
Did Mr. Surratt say anything in response?
A:
He told me to follow him, into a room that I had never seen before in the back of the
tavern, and showed me where I could hide the items underneath the joists.
Q:
Did you heed his bidding?
A:
I did. I put the items there according to John’s directions.
Q:
Did you ever speak to Mary Surratt about this incident?
A:
Yes, but only when she brought the subject up with me. It was the Tuesday before the
President’s assassination.
Q:
What did she say?
A:
She told me to get the shooting irons out, because they would be needed soon.
Q:
When was the next time you spoke to Mrs. Surratt?
A:
It was on the afternoon of the day the President was assassinated. She told me that I
should have the shooting irons ready, because some parties would be calling for them that
21
night. And she also told me to have two bottles of whiskey ready for the men when they
arrived.
Q:
Did any men call on you that evening as Mrs. Surratt indicated?
A:
Yes, around midnight, two men arrived at the tavern. Herold and Booth.
Q:
Did they say anything to you?
A:
Herold did. He yelled “Lloyd, for God’s sake, make haste and get those things.” I ran up
to the place where I had hid the carbines and brought them straight down to Herold.
Q:
Did you exchange any words with Booth that night?
A:
I did not say anything to him, but Booth said to me, “I will tell you some news, if you
want to hear it. I am pretty certain that we have assassinated the President and Secretary
Seward.”
Q:
When was the next time you heard any news of the President’s assassination?
A:
The next morning I heard of the assassination, and that Booth was the assassin.
Q:
Thank you, Mr. Lloyd.
(Holt is seated; Aiken rises)
Q:
When did you first become acquainted with Mrs. Surratt?
A:
When I rented her house at Surrattsville, Maryland, in December of last year.
22
Q:
You testified that you met Mrs. Surratt on the road on your way to Washington. Mrs.
Surratt never mentioned anything specifically about the carbines on that occasion, did
she?
A:
I believe she spoke about two shooting-irons. The conversation we had that day was very
quick.
Q:
And during the first conversation, she didn’t say anything specifically about carbines, did
she?
A:
I am confident that she named the shooting-irons on both occasions.
Q:
You are “confident” of that?
A:
I am not so positive about the first occasion as I am about the second. I know she did on
the second occasion.
Q:
And the second occasion that you refer to, how long did that conversation last?
A:
Perhaps ten minutes.
Q:
And Mrs. Surratt specifically mentioned shooting irons?
A:
She said, “Mr. Lloyd, I want you to have those shooting-irons ready. There will be
parties here tonight who will call for them.”
23
Q:
Mr. Lloyd, did you reach out to the authorities at any time after you learned of the
President’s assassination?
A:
Yes.
Q:
When was the first time that you contacted the authorities?
A:
Sometime in the middle of the following week, four or five days later.
Q:
You waited four to five days after learning of the President’s assassination before
speaking to anyone?
A:
Yes. I told the officers that it was through the Surratts that I got myself into all of this
difficulty.
Q:
John Wilkes Booth told you that he and Herold assassinated the President and Secretary
Seward and yet you still gave these men rifles?
A:
I gave just one carbine to Herold, and it was before they told me what they had done.
Q:
And after they told you that, you didn’t make any attempt to stop them from riding off?
A:
I was right smart in liquor that afternoon, and that night I got more so. There was nothing
I could do.
Q:
And when all of the soldiers arrived at Surrattsville on Saturday morning, and others
came on Sunday to search the tavern, did you tell them about your encounter with Herold
and Booth on the night of the assassination?
24
A:
When they asked if I had seen two men pass that way in the morning, I told them I had
not. That is the only thing I blame myself about. If I had given the information they
asked of me, I should have been perfectly easy regarding it. This is the only thing I am
sorry I did not do.
Q:
I have no further questions.
GENERAL HUNTER:
The witness is excused.
(Lloyd leaves stand)
GENERAL HUNTER:
Are there witnesses for the defense of the accused Mary Surratt?
AIKIN:
Yes, sir. We first call Mr. J. Z. Jenkins.
(Jenkins takes stand)
Q
Mr. Jenkins, do you know the defendant, Mrs. Mary Surratt?
A:
Yes. She is my sister.
Q:
And, could you please describe Mrs. Surratt’s character, as you know it to be?
A:
She is of very fine character. She always seeks to help those in need and would never
harm her country.
Q:
Has Mrs. Surratt ever spoken ill of the Union?
25
A:
No, sir. She has never, to my knowledge, breathed a word that was disloyal toward the
Government.
Q:
Did you ever hear Mrs. Surratt speak of the conspiracy to assassinate President Lincoln?
A:
No, sir, nor would any such remark fit within what I know of her.
Q:
Mr. Jenkins, did you encounter your sister on the day the President was shot?
A:
Yes, I saw my sister at Mr. Lloyd’s tavern in Surrattsville. I was at the tavern when she
and Louis Weichmann came up by horse and buggy.
Q:
Do you know why your sister and Mr. Weichmann came to Mr. Lloyd’s tavern?
A:
My sister came to see a man named Captain Gwynn.
Q:
Did she plan to also meet with Mr. Lloyd?
A:
She expressed no wish to see Mr. Lloyd. In fact, she was ready to start home some time
before he came, and was on the point of going when he drove up.
Q:
Had you encountered Mr. Lloyd that night?
A:
Yes.
Q:
And could you please describe Mr. Lloyd’s state for us?
A:
He was very much intoxicated.
26
Q.
Thank you.
(Aikin is seated; Holt rises)
Q:
Mr. Jenkins, you were arrested approximately ten days ago?
A:
Yes.
Q:
And you were arrested because you threatened a Mr. Kallenbach that you would harm
him if he testified against your sister in this matter, correct?
A:
I never told Mr. Kallenbach that.
Q:
Is it not true that you told Mr. Kallenbach that if he or anyone else testified against your
sister that you would send him to hell or see that he was put out of the way?
A:
No, I never spoke those words to anyone.
(Jenkins leaves stand)
AIKEN:
We will now call Miss Anna Surratt.
(Anna Surratt takes stand)
Q:
Miss Surratt, are you the daughter of Mrs. Mary Surratt, the accused?
A:
I am.
Q:
Where do you live?
27
A:
I live at my mother’s boardinghouse on H Street.
Q:
While residing at the boardinghouse, did you encounter any of the prisoners seated before
you today?
A:
I have met both Mr. Atzerodt and Mr. Payne.
Q:
How was it that you came to know Mr. Atzerodt?
A:
I met him twice when he stayed overnight at my mother’s boardinghouse. He would also
often call at the house for that man Weichmann.
Q:
Did your mother invite Mr. Atzerodt to stay at the house?
A:
No, sir. Quite the contrary. Mr. Atzerodt was made to understand that Ma did not want
him there. In fact, the last time he was there, it was Weichmann who engaged the room
and begged of my mother to let him stay there. She eventually conceded to Mr.
Weichmann, but was not pleased about Mr. Atzerodt’s presence.
Q:
Miss Surratt, was your brother John Surratt associated with John Wilkes Booth?
A:
I know they were acquainted. John spoke of him on numerous occasions. But I believe
my brother may not have thought that highly of Mr. Booth.
Q:
Why?
28
A:
One day, while I was sitting in the parlor with my brother, Mr. 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 be.
Q:
Miss Surratt, there has been discussion here of a photograph of Booth that was located at
your mother’s boardinghouse. Are you familiar with that photograph?
A:
Yes, sir.
Q:
Did that photograph belong to your mother?
A:
No, sir. That was my photograph.
Q:
How did you come to own a photograph of such a man?
A:
One day last year, many months before the President was shot, I went with a friend to a
gallery to have her photograph taken. We saw some photographs of Mr. Booth on
display and we bought two and took them home. I did not know of Mr. Booth’s evil
plans at that time; I knew him simply as an actor.
Q:
Also recovered were photographs of some leaders of the Rebellion. Did those belong to
your mother?
A:
No, sir, those are mine as well. My father gave them to me before his death and I prize
them on his account alone. I also had in the house photographs of Union Generals –
General McClellan, General Grant, and General Hooker.
29
Q:
Also found at the boardinghouse was a card with the motto “Sic semper tyrannis.” Have
you ever seen this card, Miss Surratt?
A:
Yes. A friend gave that card to me more than two years ago.
Q:
Do you know the significance of the words “Sic semper tyrannis”?
A:
Yes, it is the motto of our native state of Virginia. You will see that the state coat of arms
also appears on the card. That card has absolutely nothing to do with the assassination of
the President.
Q:
Thank you, Miss Surratt.
(Aiken is seated; Ewing rises)
Q:
Good morning, Miss Surratt. I represent Dr. Samuel Mudd and I have just one question
for you. Did you ever encounter Dr. Mudd at your mother’s boardinghouse?
A:
No, I never saw Dr. Mudd there, nor heard of his being there.
Q:
Thank you, Miss Surratt.
(Ewing seated)
HOLT:
No questions, sir.
(Witness excused.)
30
GENERAL HUNTER:
The Judge Advocate General may now call witnesses relating principally to the case
against the accused Samuel Mudd.
HOLT:
We call Lieutenant Alexander Lovett.
(Lovett takes stand)
Q:
What is your profession?
A:
I am a Lieutenant in the United States Army, sir.
Q:
Where were you on the day that President Lincoln was shot?
A:
I was in Washington, D.C., sir.
Q:
And after the assassination, what were you assigned to do?
A:
I was part of a group of men ordered to chase down John Wilkes Booth and to find out
anything else we could about the assassination. We learned that a doctor in Maryland
named Samuel Mudd had set Booth’s broken leg, so we traveled to Mudd’s house.
Q:
Did you have any conversation with Dr. Mudd?
A:
Yes, sir, several. At first, he didn’t want to give any information, but later he started to
talk with us.
31
Q:
What did he tell you?
A:
Sir, he said that at 4:00 a.m. on Saturday, April 15, two men who were strangers to him
showed up at his door for help setting a broken leg. A little while later, the two requested
a razor and soap and water, and the injured man shaved off his mustache. I said that
seemed like suspicious behavior, and Dr. Mudd said he agreed.
Q:
Did you discuss anything else with Dr. Mudd?
A:
Dr. Mudd said the men left later the same morning that they arrived and that he had
ridden with them to show them the way across the swamp.
Q:
Anything else?
A:
Yes, sir. Dr. Mudd told me that at church on Sunday, April 16, he heard for the first time
that the President had been assassinated. But I did not believe him.
Q:
Why not?
A:
Well, sir, we had already spoken to several Negroes in the area and they all knew that
Booth had killed the President, and that Booth had a broken leg and had been to Dr.
Mudd’s house.
Q:
Was there anything else about Dr. Mudd that made you suspicious?
A:
Yes, sir, several things. First of all, he was very scared and skittish from the minute we
met. Then, he told me that he had never met Booth and he denied recognizing Booth
32
when I showed him a photograph – but later on he offered up that he had actually met
Booth last November.
Also, he never told us that he still had Booth’s boot that he had cut off his leg, with
Booth’s name written inside it, until we told him we were going to search the house.
Q:
Did Mudd tell you anything else about Booth’s visit?
A:
Yes, sir. He told me that when Booth and his companion left, he led them out and
showed them the way to leave through the swamp. I thought that was an odd route to be
suggesting to a man with a broken leg who didn’t know his way around. It seemed like
they were trying to avoid all the soldiers and commotion along the roads.
Q.
Nothing further, Lieutenant.
(Holt is seated, Ewing rises)
Q.
How many interviews did you have with Dr. Mudd?
A:
Several, sir. Over the course of five days, probably about 12 or 15.
Q:
Did you ever tell Dr. Mudd that he was suspected of being a conspirator with Booth to
assassinate the President?
A:
We did when we arrested him.
Q:
Did Dr. Mudd ever in any of those interviews refuse to answer a question put to him?
A:
No, sir.
33
Q:
Now, you testified that Dr. Mudd did not recognize Mr. Booth from a photograph you
showed him. Didn’t the doctor tell you that when the strangers arrived on April 15, it
was at daybreak?
A:
Yes, sir.
Q:
So it was dark, correct?
A:
Yes, sir.
Q:
And didn’t Dr. Mudd tell you that the man with the broken leg was exhausted, pale and
decimated?
A:
Yes, sir.
Q:
And didn’t Dr. Mudd tell you that the man with the broken leg kept part of his face
covered with a blanket most of the time that he was there?
A:
Yes, sir.
Q:
And when a doctor is setting a broken leg, wouldn’t his eyes be focused on the man’s leg,
and not his face?
A:
I would think so, yes, sir.
Q:
Do you know what facial hair, if any, Mr. Booth had when Dr. Mudd was introduced to
him in the fall of 1864?
34
A:
No, sir.
Q:
So, Lieutenant, do you really believe that under the circumstances you just recited, that
anyone would recognize a picture of the face of someone he had only met once several
months before, under very different circumstances?
A:
It’s hard to say, sir. Perhaps not.
(Ewing is seated; Holt rises)
Q:
Lieutenant, other than answering your direct questions, did Dr. Mudd ever offer or
volunteer to you any information about the visit he received from Booth and Herold?
A:
No, sir.
Q:
Lieutenant, how great is distance is it from Ford’s Theater in Washington to Dr. Mudd’s
home?
A:
I would say a bit more than 30 miles, sir. Perhaps eight hours’ ride.
Q.
Did Dr. Mudd ever offer any explanation as to why he believed Herold and an injured
Booth rode hard through the night, 30 miles in eight hours, to get to his home?
A:
No, sir.
Q:
Did Dr. Mudd ever explain why he believed Herold and Booth rode to his home that
night, instead of anywhere else they could have found a doctor?
A:
No, sir.
35
Q:
Did Dr. Mudd ever explain how Booth would have known that a particular house in the
Maryland countryside belonged to a doctor?
A:
No, sir.
Q:
Did Dr. Mudd ever express or show any remorse that he set the leg of the man who had
just assassinated the President of the United States?
A:
No, sir.
Q:
Did Dr. Mudd ever express or show any remorse that he led the man who assassinated
President Lincoln through the swamp to make his getaway?
A:
No, sir.
Q:
Nothing further.
GENERAL HUNTER:
You are dismissed, Lieutenant.
A:
Thank you, sir.
HOLT:
The next witness will be Marcus Norton.
(Norton takes stand)
Q:
Mr. Norton, what is your occupation?
36
A:
I am an attorney.
Q:
Did there come a time last spring when you were in Washington, D.C.?
A:
Yes, I was in the city from the 10th of January to the 10th of March.
Q:
Where did you stay?
A:
At the National Hotel.
Q:
Were you familiar with a man named John Wilkes Booth at the time?
A:
Yes, I knew him by sight, having seen him act several times in the theater.
Q:
Did you see Mr. Booth while you were in Washington?
A:
Yes, I saw him at the hotel.
Q:
Did there come a time when you saw Dr. Samuel Mudd in Washington?
A:
Yes.
Q:
What were the circumstances of your seeing Dr. Mudd?
A:
I saw him on the morning of the 3rd of March, when he hastily entered my room at the
hotel. He appeared somewhat excited, and then he realized he had come into the wrong
room. He made an apology, and said that he had made a mistake; that he wanted to see
Mr. Booth.
37
Q:
Did you say anything?
A:
I told him that Booth’s room was probably on the floor above.
Q:
Thank you.
EWING:
No questions for this witness.
GENERAL HUNTER:
The witness is excused.
HOLT:
We call Daniel Thomas.
(Thomas takes stand)
Q:
Mr. Thomas, are you familiar with a man named Dr. Samuel Mudd?
A:
Yes, I am.
Q:
Have you ever discussed politics with Dr. Mudd?
A:
Yes, several times.
Q:
When was the last time?
A:
It was in the latter part of March of this year. Dr. Mudd and I were at the house of our
neighbor, John Downing.
38
Q:
What did you discuss with Dr. Mudd?
A:
I remarked that the war would soon be over and soon we would have peace.
Q:
How did Dr. Mudd respond?
A:
He said that President Lincoln and his entire Cabinet were abolitionists, and that he
thought the South would never be subjugated to abolitionism.
Q:
Did he say anything else about President Lincoln or his Cabinet?
A:
Yes, he did. He then said that President Lincoln, the Cabinet, and other Union men in
Maryland would be killed in six or seven weeks.
Q;
How did you react?
A:
I told him that, having taken a loyalty oath, he should not be saying such things.
Q:
How did he respond?
A:
Dr. Mudd said that he did not consider the oath worth a chew of tobacco.
Q.
Nothing further.
(Holt is seated; Ewing, counsel for Dr. Mudd, rises)
Q:
Mr. Thomas, you went to school with Dr. Mudd, didn’t you?
A:
That’s correct. I’ve known him since we were boys.
39
Q:
And he was known as a jokester, wasn’t he?
A:
Yes he was. When he was a boy, he always was full of fun and jokes.
Q:
At the time, you didn’t think Dr. Mudd’s comment about the President or Cabinet being
killed was serious, did you?
A:
Well, he didn’t seem to be joking. It is impossible for me to say whether another man
was earnest in what he said. But I should think a man was in earnest to talk of the
President being assassinated.
Q;
Was John Downing in the room when this discussion occurred?
A:
No. I believe he had gone to the kitchen or the wood-pile or something like that.
Q:
Did your conversation with Dr. Mudd continue after Mr. Downing returned?
A:
No.
Q:
Thank you.
GENERAL HUNTER:
The witness is excused.
(Thomas leaves stand)
GENERAL HUNTER:
Mr. Ewing, you may call witnesses for the defense of Samuel Mudd.
40
EWING:
We call John Downing.
(Downing takes stand)
Q:
Mr. Downing, where do you currently reside?
A:
I live near Mount Pleasant in Maryland.
Q:
Are you personally acquainted with the accused Samuel A. Mudd?
A:
I am very well acquainted with Dr. Mudd.
Q:
Are also you familiar with an individual named Daniel Thomas?
A:
Yes, sir.
Q:
When was the last time you saw him?
A:
It was sometime in the first part of this March. Mr. Thomas visited me at my home.
Q:
Was anyone else present at your home that day?
A:
Yes, Dr. Mudd stopped by at some point after Mr. Thomas arrived.
Q:
How long were the three of you together at your home?
A:
Dr. Mudd spent about half an hour with Mr. Thomas and me.
41
Q:
And during the half-hour you spent together, did Dr. Mudd express any disloyal
sentiment?
A:
No, he did not.
Q:
Did Dr. Mudd ever say that Abraham Lincoln was an abolitionist?
A:
No, sir.
Q:
Did he say that the South would never be subjugated under abolition doctrines?
A:
No.
Q:
Did Dr. Mudd mention that the President or the members of the President’s Cabinet
would be killed in six or seven weeks?
A:
No, certainly not.
Q:
Is it possible that Dr. Mudd made those statements at some point when he was alone in
your home with Mr. Thomas?
A:
I was with them the entire time and no such words were spoken in my home.
Q:
Was anything said that day about the President or his Cabinet?
A:
No, nor was any reference made to killing anybody.
Q:
Did Dr. Mudd ever say that the oath of allegiance wasn’t worth a chew of tobacco?
A:
No, he did not.
42
Q:
We have discussed a number of things that were not said at your house. Do you recall
anything that Dr. Mudd or Mr. Thomas did say on that occasion?
A:
Thomas mentioned that he had been made a detective in the Provost Marshal’s Office of
the Army.
Q:
Thank you, sir.
(Ewing is seated; Holt rises)
Q:
What did Thomas say specifically about his detective work?
A:
He described himself as a detective who couldn’t catch anybody.
Q:
What was Dr. Mudd’s reaction to the conversation?
A:
I believe Dr. Mudd compared Thomas to a jack.
Dr. Mudd told Thomas that he
considered himself the better educated but didn’t think that even he was qualified to hold
the position of detective.
Q:
Did Thomas appear angered by Dr. Mudd’s comments?
A:
I don’t know, but I was irritated when he called Thomas a jack in my home. I let him
know how I felt by getting up and walking away.
Q:
Do you know what if anything was discussed by Dr. Mudd and Thomas after you walked
away?
43
A:
Dr. Mudd was not a half second behind me as I walked to the door. I don’t believe
anything was said between the men as I walked away.
Q:
Nothing further.
(Downing leaves stand)
GENERAL HUNTER:
Mr. Ewing, I understand you have one more witness?
EWING:
Yes, sir; we will call Dr. George Mudd.
(George Mudd takes stand)
Q.
Please tell the Tribunal, what is your profession?
A.
I am a practitioner of medicine in Bryantown, Maryland
Q.
Do you know Dr. Samuel A. Mudd?
A.
Yes, he was a student of mine for many years.
Q.
Do you have any family relationship with him?
A.
Yes, his father and mine were first cousins.
Q.
Do you know his reputation?
44
A.
Yes, his reputation in his neighborhood was one for peace, order and good citizenship. I
know no one whose reputation is better.
Q.
When did you hear of the assassination of the President?
A.
It was on Saturday, April 15th when I was at Bryantown.
Q.
What did you learn?
A.
An Army officer told me that the assassin’s name was Booth.
Q.
Now, Dr. Mudd, did you see Dr. Samuel Mudd after you learned of the President’s
assassination?
A.
Yes, I saw him on Sunday, April 16th at church.
Q.
And what conversation did you have with Samuel Mudd at church on Sunday?
A.
At church on Sunday, Dr. Samuel Mudd remarked on the assassination of the President
that it was a most damnable act.
in
Q.
What else did he tell you?
A.
He told me about the two suspicious men who came to his house on Saturday. How he
set and bandaged the one whose leg was broken. How they appeared unduly excited and
how one used a razor to shave his face.
I told Dr. Samuel Mudd that I would report all this to the authorities, and he said he
would be glad that I did, and he would be glad to speak with them.
45
Q.
And did you do so?
A.
Yes, I reported that two suspicious persons had appeared at Dr. Samuel Mudd’s home on
Saturday, one with a broken leg, which he said was from a fall from his horse. Dr.
Samuel Mudd set his leg and bandaged it. The other individual was searching for a razor
with which Booth could shave his face. When they were getting ready to leave, Dr.
Samuel Mudd attempted to find a carriage for them, but he was not able to, and they rode
off on horseback.
Q.
Doctor, are you acquainted with Daniel Thomas and with his reputation as to veracity?
A.
Yes. His reputation for veracity has been bad ever since I knew him as a child. I would
not believe him under oath. He is an insane man.
GENERAL HUNTER:
Is his insanity such that would lead him to imagine a conversation he never heard?
A.
Yes, I have been with him when he was in such a mood. I have seen him under the most
decided delusions and hallucinations. The common expression was that Dan Thomas
was crazy.
GENERAL HUNTER:
The witness is excused.
(George Mudd leaves stand)
46
GENERAL HUNTER:
We will hear the closing argument for the accused, Mary Surratt. Mr. Aikin.
AIKEN:
Mr. President and Gentlemen of the Commission:
Profoundly impressed with the innocence of my client, Mary Surratt, I address you with
the heartfelt prayer that you have no doubt in your minds that the only just verdict for her is one
of acquittal.
The law is that an accused must be acquitted where there is a reasonable doubt of her
guilt. Surely no man, or woman, should be made to suffer conviction and punishment because
certain facts are proved that are alleged to show guilt, when it can be shown that they are also,
and more reasonably, consistent with innocence.
My client has committed no crime at all. The facts proved against her, in themselves, are
entirely and perfectly innocent. No malice or intent has been proven, nor do Mrs. Surratt’s
actions suggest them.
What are the acts Mrs. Surratt has done? Her mere acquaintance with Booth, a message
to Lloyd, and her non-recognition of Payne when he appeared in the middle of the night,
constitute the sum total of the evidence. These acts, in and of themselves, are perfectly innocent.
They constitute no crime. They are ordinary things that a hundred others might also have done.
It has been shown that John Wilkes Booth was an occasional visitor at the boarding
house. But the witness Weichmann says that Booth generally called at the house for John
Surratt, and, only in his absence would he ask for Mrs. Surratt. And Anna Surratt testified that it
was actually Weichmann for whom Booth would often call. Booth’s relationship was not with
47
Mrs. Surratt.
If Weichmann’s testimony establishes anything, it is his omnipresence and co-action with
those declared to be conspirators, and his professed and declared knowledge of all their plans and
purposes. Weichman had far greater dealings with the conspirators in the weeks before the 14th
of April than anyone has suggested Mrs. Surratt ever did.
And the testimony of Lloyd was no better. By his own admission, he was intoxicated
during the key times to which his testimony relates, who in a weak attempt to exculpate his own
wrongdoing, seeks to shift the blame to Mrs. Surratt.
Members of the Tribunal: Mary Surratt has committed no crime. Pray remember your
wives, mothers, sisters and gentle friends, whose graces, purity and careful affection ornament
and cherish and strengthen your lives. Now think of this woman, who, widowed of her natural
protectors, sues for justice and mercy from your hands. May she leave a legacy of blessings for
those you love and care for, in return for the happiness of her name and home restored through
your true verdict of not guilty.
HUNTER:
We will hear now from counsel for Dr. Mudd. Mr. Ewing.
EWING:
May it please the Tribunal:
Here is what the evidence has shown: Dr. Mudd has been a practicing physician for
many years. He resides in Charles County, Maryland, on a farm of about five hundred acres,
about thirty miles from Washington. He is a man of most exemplary character – peaceable, kind,
48
upright, and obedient to the laws. His family being slaveholders, he did not like the anti-slavery
measures of the Government, but he was always respectful and temperate in discussing them,
freely took the oath of allegiance prescribed for voters, supported a Union candidate for
Congress, and regarded the Rebellion a failure. He was never known or reported to have done an
act or said a word in aid of the Rebellion.
What testimony is claimed to show Dr. Mudd had a connection with the conspiracy?
There is evidence that Dr. Mudd had seen or met with a few of the conspirators before the
assassination – casual, passing encounters. But there is no evidence that Dr. Mudd had any
contact with any of those men that was related to any conspiracy.
Nor should regard be given to the evidence of Daniel Thomas. Thomas says that several
weeks before the assassination he met Mudd at the house of his neighbor, Downing, and there, in
the course of conversation, Mudd said, laughingly, that “Lincoln and his whole Cabinet, and
every Union man in the State of Maryland, would be killed within six weeks." But Downing
says that no such words were uttered in his house at any time. Downing further told us that
Mudd insulted Thomas that night, which was doubtless an incentive to the invention of the
calumny, together with Thomas’s desire to claim the reward that was advertised for the arrest
and the conviction of the conspirators. And recall that Thomas was regarded as insane or
deranged and unworthy to be regarded on oath by all who knew him.
Not only was Dr. Mudd unconnected to any conspiracy, he did not knowingly aid the
assassin’s escape: Why did Booth go to Dr. Mudd's on his flight? I answer, because he had a
broken leg, and needed a physician to set it. And as to the length of Booth’s stay at Dr. Mudd’s
home, the wonder is that with his broken and swollen limb, Booth was able to ride off at all.
49
Now, I ask: what is there to indicate that Mudd knew or had any suspicion that the
broken-legged man was implicated in the crime? If there is anything, I fail to find it. True, he
had met Booth five months before. Seeing him that dark, cloudy morning, faint with fatigue and
suffering, muffled in his shawl and disguised in a heavy beard, Dr. Mudd had ministered to him
with the dim light of a candle. Let it be remembered, too, that Booth was an actor, accustomed
by years of professional practice to disguise his person, his features, and his tones.
With confidence in the integrity of purpose of the Court and its legal advisers, I now
leave the case to the Court. HUNTER:
We will now hear the argument of the Judge Advocate General.
HOLT:
Members of the Tribunal:
For the past two months you have heard the damning evidence of the evil conspiracy.
There can be no doubt that these prisoners, with others, conceived a premeditated, treasonous
plot to kill the President, and carried it into effect.
Mrs. Surratt cruelly conspired to kill the President of the United States, without mercy or
remorse. Her association with the assassin, John Wilkes Booth, cannot be doubted. She
provided Booth with ammunition! Her son had hidden carbines, ammunition, rope and a wrench
in her tavern and Mrs. Surratt caused them to be given to Booth on the day of the assassination.
On that day, Mrs. Surratt also met in private with Booth, as she had done before.
50
She had a photograph of the assassin Booth in her house, along with photographs of
Jefferson Davis and other Rebel leaders. Booth paid ten dollars to secure for her a buggy ride,
which he would not have done for a more acquaintance. Mary Surratt knew Booth well – and
she helped to get him arms.
Mrs. Surratt also met in private with conspirator Payne, the man who attacked Secretary
Seward, yet she falsely denied that she knew him when he came to her boarding house.
Conspirator Atzerodt, who was assigned to attack the Vice President, was also found ten or more
times at her house. It is plain that Mrs. Surratt was a full member of the conspiracy to commit
the most heinous of crimes.
Dr. Mudd’s guilt is also clear. On the night of the assassination, Booth fled from the
capital. He could have fled in any direction, or gone to any doctor in or near Washington, but
rode 30 miles to Dr. Mudd’s house, on a broken leg, arriving there at 4:00 in the morning. No
one would ride a horse for 30 miles with a broken leg unless he had a specific destination in
mind. Booth knew that Mudd would offer him medical care and that he would not summon the
police. Why? Because Mudd was also part of the conspiracy to murder the high officials of the
Government and help those who carried out the bloody acts to escape the hands of justice.
By his own admission to the investigators, Mudd set Booth’s leg, helped Booth shave off
his mustache and then rode off with Booth later that morning to show him the way across the
swamp, a path that would allow Booth to elude capture. Dr. Mudd then told the lieutenant who
searched for Booth that he had never met Booth before.
You have also heard testimony that Mudd conspired with Booth before the assassination,
meeting with him in January, along with John Surratt. You have heard testimony that one month
before the assassination, Dr. Mudd burst into the room of a stranger in the night, thinking it was
51
Booth’s room. Mudd told many lies to the investigating officers, before admitting the true facts
when he had no alternative. That is the conduct of a guilty man.
Most damning of all, throughout a dozen or more interviews with the police, Dr. Mudd
never showed any remorse for having set the broken leg of the man who assassinated the
President. Nor did he show any remorse for leading Booth through the swamp to make a
getaway. Indeed, approximately six weeks before the assassination, he said that President
Lincoln, the Cabinet, and other Union men in Maryland would be killed in six or seven weeks.
And Dr. Mudd said that his own loyalty oath was not worth a chew of tobacco. About that last
point, at least, for once he told the truth.
Justice must be done. All of the prisoners are guilty, and all should pay with their lives
for their crimes.
HUNTER:
The members of the Commission will retire to deliberate upon their verdicts.
NARRATOR:
The Commissioners deliberated for two days before announcing the verdicts and
sentences on June 30th, 1865.
HUNTER:
After mature consideration of the evidence adduced in the case of each of the accused,
the Commission finds as follows:
52
As to the accused Edman Spengler, the Commission finds him guilty, and sentences him
to be imprisoned at hard labor for a term of six years, at such place as the President of the United
States shall direct.
As to the accused Michael O’Laughlin, Samuel Arnold, and Samuel A. Mudd, the
Commission finds each of the said accused guilty, and sentences each of them to be imprisoned
at hard labor for life, at such place as the President of the United States shall direct.
As to the accused David E. Herold, George A. Atzerodt, Lewis Payne, and Mrs. Mary E.
Surrat, the Commission finds each of the said accused guilty, and, two thirds of those present
concurring therein, sentences each of them to be hanged by the neck until they are dead, at such
time and place as the President of the United States shall direct.
There being no further business before us, the Commission is adjourned, sine die.
(Commission members leave bench)
NARRATOR:
On July 5, 1865, President Johnson approved all of the sentences, and directed that the
four condemned defendants, including Mary Surratt, be executed two days later.
Public reaction in the North generally supported the verdicts, but there was some unease
at the sentence of death against Mrs. Surratt. In fact, five members of the nine-member Military
Commission wrote to President Johnson, requesting that he consider commuting her sentence to
life imprisonment “in consideration of the sex and age of the said Mary E. Surratt.” This request
was not acted upon. President Johnson later claimed that he had never seen it. Whether this was
true is unclear.
53
Early on the morning of the scheduled executions, Mrs. Surratt’s lawyers petitioned the
District of Columbia Supreme Court for a writ of habeas corpus, again arguing that because Mrs.
Surratt was a private citizen, the military commission had no authority to try her.
At 3:00 a.m. on July 7, Justice Andrew Wylie received Mrs. Surratt’s counsel at his
home, and signed a writ commanding that Mrs. Surratt be brought before him in court at 10:00
that morning.
(Wylie takes place on bench; Aiken at counsel table)
JUSTICE WYLIE:
In the matter of the application of Mrs. Mary E. Surratt for a writ of habeas corpus.
Has the prisoner been produced in court as directed by the writ I issued earlier this day?
AIKEN:
The writ was served this morning, Your Honor, but the prisoner has not been brought
here. No one from the Government is here.
We move that the Court issue the appropriate order of arrest and attachment against the
custodian of the prisoner, to enforce the process of the writ.
JUSTICE WYLIE:
The Court believes that would be a futile act.
If the military power be disposed to respect the authority of the civilian courts, they will
respect the writ that has already been served pursuant to my order.
54
If, on the other hand, it is their determination to treat the authority of this Court with
contempt, they have the power to treat with equal contempt any other process which the Court
might direct.
The Court therefore must submit to the supreme physical power which now holds the
custody of petitioner.
(Attorney General Speed and Major General Hancock enter)
ATTORNEY GENERAL SPEED:
Your Honor.
JUSTICE WYLIE:
The Court recognizes the Attorney General of the United States.
ATTORNEY GENERAL SPEED:
Thank you, Your Honor. I am sorry that we were delayed this morning.
Major General Hancock, who accompanies me (indicating him), acknowledges service of
the writ, and respectfully says that the petitioner, Mary E. Surratt, is in his custody under and by
virtue of an order of the President of the United States issued to him, which order is as follows:
(reading) “I, Andrew Johnson, President of the United States, do hereby declare that the
writ of habeas corpus has been heretofore suspended in such cases 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 that you will give this order in return to the
writ.”
55
AIKEN:
May it please the Court –
JUSTICE WYLIE:
Thank you, Mr. Aiken, but in the circumstances, it would be of no avail for the Court to
hear further argument.
It can scarcely be denied, that the writ of habeas corpus is dear and sacred to every lover
of liberty, and is indispensable to the protection of citizens.
However, the Court’s jurisdiction must necessarily yield to the suspension of the writ by
the President of the United States.
Accordingly, this Court stands adjourned.
(All leave courtroom)
NARRATOR:
The four condemned defendants, including Mrs. Surratt, were hanged in the courtyard of
the Washington Arsenal that afternoon. Mary Surratt was the first woman ever executed by the
federal government. Debate rages to this day about how much she knew about the assassination
plot and whether she deserved her death sentence.
Two years later, in 1867, Mary Surratt’s son, John Jr., was extradited to the United States
and placed on trial for his alleged role in the conspiracy. By that time, the U.S. Supreme Court
had held in Ex parte Milligan in 1866 that a military tribunal had no jurisdiction to try civilians
while the civilian courts were sitting. Therefore, John Surratt was tried for murder in an ordinary
56
Maryland state court. The jury, split 8-to-4 for conviction, was unable to reach a unanimous
verdict on the charge of murder, and the statute of limitations had expired on any lesser offenses,
so John Surratt was freed. He lived until 1916.
Meanwhile, the other four defendants were taken to a military prison at a fort in the
Florida Keys. These included Samuel Mudd who, it was later revealed, had escaped the death
sentence by a single vote.
In 1867, a terrible epidemic of yellow fever swept the prison and the fort. More than 30
prisoners and soldiers died, including one of the Lincoln conspirators, Michael O’Laughlin.
Ironically, one of the first people to die was the prison doctor. Dr. Mudd agreed to provide
medical care to the sick prisoners and soldiers. He was credited with saving many lives. Dozens
of the soldiers signed a petition urging clemency for Mudd.
Shortly before leaving office in 1869, President Johnson pardoned Dr. Mudd and the two
other surviving defendants. Mudd was released, and returned home to Maryland. He resumed
his medical practice and became active in politics. He died of pneumonia in 1883, and is buried
in the cemetery of St. Mary’s Catholic Church in Bryantown, Maryland, a location where he had
once met with John Wilkes Booth.
[Thank program participants and introduce CLE panel]
57