Monday, June 12, 1865
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Proceedings
The court convened at 11 o’clock.[1]
Present: All nine members of the military commission, the eight conspirators, Judge Advocate General Joseph Holt, Assistant Judge Advocates Bingham and Burnett, the recorders of the court, lawyers Frederick Aiken, John Clampitt, Walter Cox, William Doster, and Thomas Ewing.
Absent: Reverdy Johnson and Frederick Stone.
Seating chart:
The prisoners were seated in the same manner as the day before.
The reading of the prior day’s testimony was completed.
William Doster, lawyer for Lewis Powell, announced that he was going to call two witnesses on behalf of his client but that he wanted to explain his purpose for calling them first in order to prevent any undue objections on the part of the prosecution. Doster explained that he intended to show that three months before his attack on William Seward, Lewis Powell saved the lives of two Union soldiers. His reason for doing this was in order to help support his client’s plea of insanity. Doster stated that insanity can be proven if one violates the “even tenor” that previously described one’s life. In this way, Doster wanted to show that Powell’s life prior to the assassination was one of honor and benevolence and that his actions on April 14th could only be explained by him being under the control of madness.[2]
Testimony began
Lucy A. Grant, a resident of Warrenton, Virginia, testified that around Christmastime of 1864, she had seen Lewis Powell protecting some Union prisoners. Mrs. Grant had been in her home when a Confederate soldier rapped at her door, seeking a place to put a wounded Union soldier. The captured Union prisoners were being escorted by some Confederate troops when they had been attacked by some angry residents of Warrenton who blamed the Union soldiers for the loss of their property. One of the Union soldiers was killed before Lewis Powell, a Confederate soldier himself, intervened on behalf of the prisoners. Mrs. Grant stated she heard Powell tell the angry men seeking revenge that while he could not defend all of the Union men, if the group killed or captured the one soldier that was under his escort, they would do so at the peril of their own lives. This threat of retribution caused the attacking band to disperse, saving the lives of remaining two Union soldiers.[3]
John N. Grant, a resident of Warrenton, Virginia and the husband of the previous witness, testified that he was away from his home when the attack his wife described occurred but that he returned home shortly thereafter. He learned from her and other present how the Confederate soldier, known as Powell, had saved the lives of two Union soldiers. Grant was able to narrow the day that the event occurred to January 1, 1864.[4] As William Doster noted in his comments before calling the Grants to the stand, he was using their testimony to show the distinct change in Lewis Powell’s temperament from saving Union soldiers to attacking the Secretary of State as evidence of his insanity.
James B. Henderson, a U.S. naval ensign, was recalled as a defense witness for Michael O’Laughlen after previously testifying for the prosecution on May 15th. Henderson testified about his having visited D.C. with O’Laughlen and others on April 13 – 15th in order to view the Grand Illumination celebration in the city. According to Henderson he was with O’Laughlen almost constantly on April 13th and the group never got close to the home of Secretary of War Edwin Stanton. Henderson also stated that O’Laughlen was either with him, or another member of his party for almost the entirety of April 14th including when the news of Lincoln having been shot reached them. During cross-examination, Henderson stated that the only time O’Laughlen was away from him on the 13th was right when the group got into town and Henderson went and got a shave. When he caught back up with the group, O’Laughlen told Henderson that he “had been to see Booth,” but that Henderson was unsure if that meeting actually happened and would not to commit to it either way during questioning. O’Laughlen attempted to see Booth on the morning of the 14th but told Henderson later that day that he was unsuccessful because Booth was not at home. Henderson repeated that the trip to D.C. was his idea as was the change of plans to stay in the city through the 15th. While the prosecution got Henderson to admit that some members of their party were drunk, he was adamant that they were not inebriated enough to have lost track of O’Laughlen at any time.[5] Walter Cox, Michael O’Laughlen’s lawyer tried to get Henderson to testify that the reason O’Laughlen wanted to see Booth was to recover some money Booth had owed him, but Henderson said he knew nothing about that. The testimony, in general, was to show that O’Laughlen’s presence in D.C. on the 13th and 14th was coincidental, to cast doubt on whether he ever met with Booth, and to show that O’Laughlen never got near Edwin Stanton.
Richard H. Sweeney, a teacher in Prince George’s County, Maryland, was called as a defense witness for Mary Surratt. Sweeney testified that he had been with prosecution witness John M. Lloyd on April 14th and rode part of the way with Lloyd back to the tavern. According to Sweeney, Mr. Lloyd was considerably in liquor during their ride and Lloyd put a bottle to his lips during the journey. During cross-examination, Sweeney stated that he had been drinking with Lloyd and that Lloyd was not so drunk that he could not properly manage his horse and buggy. John Clampitt, one of Mrs. Surratt’s lawyers, then asked Sweeney about his acquaintance with John Zadoc Jenkins, Mary Surratt’s brother, whose loyalty had been a subject of discussion by the prosecution. Sweeney stated that Jenkins had been a zealously Union man and that he erected a Union flag and guarded it when neighbors threatened to tear it down. When asked about his own loyalty, Sweeney stated that he was neutral during the war.[6]
Frederick Aiken, lawyer for Mrs. Surratt, then addressed the court stating that while, on Friday, he had expressed that he had no desire to further delay the proceedings and could close his case, he had recently come across new information that he wanted to bring to the court’s attention. Aiken related that after court was through on Friday he traveled to Surrattsville and Marlboro in Prince George’s County. He stayed overnight down there and gained information about witnesses he wanted to call. On Saturday when he arrived back from his fact finding mission, he discovered that the court had already ended for the day. Aiken requested subpoenas be granted for some witnesses in Prince George’s County with the promise that they would be here by tomorrow if allowed. According to Aiken, the witnesses would contradict the statement made by Det. George Cottingham that John M. Lloyd made the remark that Mrs. Surratt was a “vile woman” who had got him into difficulty. Judge Advocate General Joseph Holt remarked that Cottingham had been Aiken’s witness and, therefore, it would not be proper rebuttal testimony. Aiken conceded that Cottingham had been his witness but reminded the court that Cottingham had admitted on the stand that he had lied to Aiken. He also had some witnesses to counter the testimonies of the Andrew Robey, Townley Robey, Edward Smoot, and Rev. Evans, all of whom had been used by the prosecution to discredit the loyalty of John Zadoc Jenkins. Assistant Judge Advocate John Bingham made the note that those witnesses had been rebuttal witnesses and that if Aiken’s witnesses “can impeach impeaching witnesses, it may go on ad infinitum; there is no end to it.” Aiken agreed but that should have been considered by the prosecution when they decided to attack Mr. Jenkins’ loyalty. “If we are to try the loyalty of the people of Prince George’s and Charles Counties, we shall not get through before this time next year,” Aiken stated. However, he promised that the interview of his witnesses would not take more than an hour and a half of the court’s time. Judge Advocate Holt informed the court that the government still had some witnesses they had requested but they were not present today and were expected tomorrow. Therefore, Holt saw no harm in allowing Aiken to subpoena his witnesses for tomorrow as well. With this, Aiken’s request for subpoenas was granted.[7]
General Edward Townsend, the acting Adjutant General of The Army, was called as a prosecution witness. Gen. Townsend stated he had been very familiar with Gabriel J. Rains, a former Army officer who had resigned and joined the Confederacy in 1861. Judge Advocate General Holt presented Gen. Townsend with a document signed “G. J. Rains” and asked Townsend if the handwriting matched that of Rains’. Gen. Townsend replied that to the best of his knowledge it was the same. The document was a December 1864 Confederate report regarding the bombing of City Point, Virginia. On August 9, 1864, a huge explosion occurred at the Union headquarters in City Point killing dozens of soldiers and civilians. The report made it clear that the explosion was the result of a Confederate plot which utilized a time bomb wrapped in twelve pounds of gunpowder that was smuggled aboard a Union barge filled with supplies and ammunition. The report on the matter had been forwarded from Gen. Gabriel Rains to the Confederate Secretary of State.[8] While not having anything to do with the conspirators, this testimony was to once again show the Confederacy’s embrace of black-flag warfare to support the government’s case that the Confederacy was behind Lincoln’s assassination.
The report on the City Point explosion, endorsed by Gabriel Rains and addressed to the Confederate Secretary of War was entered into evidence as Exhibit 86.
Assistant Judge Advocate John Bingham then offered into evidence certified copies of the journals from the Senate and House of Representatives showing the lawful election of Abraham Lincoln to the office of the Presidency. The first extract was dated February 13, 1861 and certified the election of President Abraham Lincoln and his Vice President Hannibal Hamlin and that their term would commence on March 4, 1861. The second extract was dated February 8, 1865 and certified the election of President Abraham Lincoln and his Vice President Andrew Johnson and that their term would commence on March 4, 1865. [9]
These two extracts from the journals of the Senate and House of Representatives regarding the 1861 and 1865 election of Abraham Lincoln were entered into evidence as Exhibit 87 and 88.
General Edward Townsend, the acting Adjutant General of The Army, was recalled having apparently stepped down after identifying Gabriel Rains’ handwriting. Gen. Townsend verified that Abraham Lincoln had acted as President from March 4, 1861 until his death on April 15, 1865. He also testified that Hannibal Hamlin had acted as Vice President until March 4, 1865 when the position was taken over by Andrew Johnson and that Johnson took over the presidency on April 15th upon Abraham Lincoln’s death.[10]
William Doster informed the court that he had just been informed by note that the wife of Dr. Charles Nichols had died this morning. Doster had secured Dr. Nichols, the superintendent of the Government Hospital for the Insane, to evaluate the sanity of Lewis Powell. During its session on Saturday, the court had given Dr. Nichols until this day to make his examination of Lewis Powell but it appears the illness and now death of his wife prevented him from doing so. Doster appealed to the court that permission be given to Dr. James Hall of D.C. to visit with and examine Lewis Powell in lieu of Dr. Nichols. Judge Advocate General Holt asked that Dr. Robert Stone also be allowed to examine Powell for this purpose with the understanding that both doctors report on their findings tomorrow. This was agreed to by the court.[11]
Richard Montgomery, a resident of New York and self-professed federal spy, was recalled by the prosecution after previously testifying on May 12th. Montgomery’s prior testimony had originally been withheld from the press but had leaked through an error of court reporter Benn Pitman on June 2nd. His testimony was later proven to be perjury. On this date, Montgomery presented a letter purportedly written by Confederate Senator and agent, Clement C. Clay. It was dated Nov. 1, 1864 and was written to Judah P. Benjamin the Confederate Secretary of State. The letter discussed the recent raid on St. Albans, Vermont by a group of Confederate agents. According to Montgomery, Clay wrote out the letter and gave it to Montgomery to deliver as Montgomery was acting as a Confederate agent at the time. The letter was not signed by Clay, however, but Montgomery insisted that the handwriting matched Clay’s.[12] The legitimacy of this letter is not known for certain, but the handwriting does appear to somewhat match known letters by Clay. The purpose of this testimony was likely to shore up Montgomery’s reputation regarding his prior testimony and to, once again show the Confederacy’s involvement in guerrilla warfare type tactics like the raid on St. Albans. The defense did not cross-examine Montgomery as his testimony did not directly involve any of the conspirators.
The letter, purportedly written by Clement C. Clay to Judah P. Benjamin on Nov. 1, 1864 regarding the St. Albans raid, was entered into evidence as Exhibit 89.
Jacob Shavor, a stove-manufacturer from Troy, NY, was called a prosecution witness. Shavor testified that he had known prosecution witness Marcus Norton since 1858 and that Norton’s reputation for truth and integrity in Troy was good. According to Shavor, he would have no doubt believing Norton under oath. He recounted how Norton had been hired by respectable establishments as a patent lawyer for them including his own stove making business. Shavor recounted that there was an attempt to impeach Norton in 1863, but that the attempt failed. During cross-examination, William Doster asked Shavor if he had used Norton in one of his own cases. Shavor stated that he used Norton as a witness in his own matter and not something related to his stove making firm. Doster asked if this was the case in which it was attempted to impeach Norton’s credibility with Shavor explaining that it was. Doster then asked that, if Norton’s impeachment had been successful, would not Shavor have lost his case. This question was objected to by Assistant Judge Advocate Bingham and Doster waived it.[13] As hinted by Doster, Jacob Shavor was not a disinterested third party when it came to Marcus Norton’s credibility. In 1863, Norton had sold off his patent regarding the duplex handstamp to Shavor and another man. A suit against the government for the use of these handstamps by the Post Office was still being debated by the courts with Shavor poised to make a considerable sum of money if Norton’s patent was upheld.
Willis Humiston, a candle machine manufacturer from Troy, NY, was called as a prosecution witness. Humiston testified that he had known prosecution witness Marcus Norton for about ten years and that his reputation for truth was good. Humiston stated that he would believe Norton both under oath and in casual conversation. During cross-examination, Humiston stated that he had employed Norton as his lawyer in two patent cases, one of which had yet to be decided.[14]
Horatio King, a former Postmaster General of the United States, was called as a prosecution witness. King testified that he had known prosecution witness Marcus Norton for several years and that he would believe Norton under oath without question. King admitted that his impression of Norton was based on his own interactions with Norton which had increased in the years since the end of his term as Postmaster General. King had no idea of what Norton’s reputation was in his home of Troy. The prosecution asked King if he had been informed by Norton about an incident involving a man bursting into his hotel room at the National Hotel. Norton had previously testified that Dr. Mudd entered his room looking for Booth. King replied that he did remember that Norton had told him, sometime in early March, that a man had accidentally entered his room. King said that Norton did not describe the man or relate anything particulars about what the man said in relation to his mistake. It was not until May 15th, after the trial had started, that Norton had made any allusions to King that he may have information regarding the assassination of Lincoln. King was presented the letter he received from Norton dated May 15th which stated, “I believe Johnson was poisoned on the evening of March 3rd, or the morning of March 4th last. I know of some things which took place at the National Hotel last winter, between Booth and strangers to me, which, since the death of our good President, have thrown me into alarm and suspicion, and about which I will talk with you when I see you.”[15] This May 15th letter and the testimonies of the last few witnesses helped to somewhat revive the reputation of Marcus Norton in the eyes of the prosecution. However, the work done by Thomas Ewing in demonstrating Norton’s lack of truthfulness, the complete absence of Dr. Mudd from D.C. on the date in question, and the sheer unbelievably of what Norton claimed to recall three months later still made the defense confident they had thoroughly discredited Norton.
The May 15, 1865 letter from Marcus Norton to Horatio King was entered into evidence as Exhibit 90.
Judge Advocate General Joseph Holt then stated to the court that there were still some important prosecution witnesses that he had expected to be present today, but they had not yet shown. Holt requested the court take its normal, one hour break for lunch in hopes that the witnesses would arrived when the court reassembled.
Break
Holt’s request was accepted the court took its one hour recess for lunch. During this time all of the conspirators were returned to their cells. At 2 o’clock, the court reassembled and testimony was resumed.[16]
Testimony resumed
William H. Rohrer, a Senate clerk, was called as a prosecution witness and testified that he was very familiar with the handwriting of former Alabama Senator, Clement C. Clay. Rohrer was shown Exhibit 89, the letter from Clay to Judah P. Benjamin concerning the St. Albans Raid. Rohrer stated his belief that the handwriting of the letter matched that of Sen. Clay’s.[17]
After Rohrer’s testimony, there were still no other witnesses in attendance so the court adjourned early between 2 and 3 o’clock.[18]
Recollections
From General Kautz’ diary:
“The commission met this morning as usual. I felt much better than yesterday. We got through the testimony early and adjourned about two o’clock…The weather was warm. The testimony was interesting as a report was introduced showing the explosion at City Point last August to have been done by the rebels. An extraordinary number of explosions and fires are recurring throughout the country to public property, that induces us to believe they are caused by rebel agents.”[19]
Isaac M. Marshall, a member of Company I of the 3rd Veteran Reserve Corps, claimed to have been one of the guards at the imprisonment and trial of the conspirators. In 1902, he was interviewed by the Philadelphia Inquirer regarding his remembrances of guarding the conspirators:
“I remember all of the conspirators well. Lewis Payne, one of those who were hanged, always wore a knit shirt. He was stalwart and of athletic build and had an eagle eye. The stern look on his face never appeared to change. David E. Herold was handsome, and he knew it. He had long black hair and he frequently pushed it above his forehead. There were many young women present – admitted by card – and to some of these he frequently bowed. One of his peculiar actions was to raise his hands so that they could see his manacled wrists.
Of Samuel B. Arnold, whose story of alleged cruel treatment I have read with deep interest, as it appears from day to day in The Inquirer, I want to say this: Whatever may have happened to him at the Dry Tortugas, he did not look as if he had suffered any before his trial occurred. On the contrary, he appeared to have been well fed and otherwise well cared for. You could scarcely tell what kind of a man he was. At times his countenance wore a look of defiance; then of sternness and again of unconcern. He was neatly attired, as were all the others, save Payne, who managed to change his clothes after the crime, assuming the garb of a laborer.
Michael O’Laughlin, who also went to the Dry Tortugas, was the only one who seemed to be affected and sorry. George Atzerodt I didn’t pay much attention to. Dr. Mudd did not have the appearance at all of a physician or professional man. Mrs. Surratt was always veiled; sat immovable and looked like a statue.”[20]
Newspaper Descriptions
Mrs. Surratt
“Mrs. Surratt came into court as usual, leaning upon the arm of an attendant, apparently almost prostrated, and as soon as she reached her seat immediately assumed the same position she has occupied throughout the trial – leaning back in her chair with her head supported on her arm and holding a large palm leaf fan over her face.”[21]
Lewis Powell
“Payne, alias Wood, Hall, Powell, since Saturday has had his hair ‘filed,’ making quite a change in his personal appearance.”[22]
“Payne appeared to-day with his hair cropped close to the scalp, altering his looks considerably.”[23]
David Herold
“Herold is acting more like a mischievous child this morning than otherwise, and as if he was soon to be released. His mustaches have been shaved off clean since Saturday.”[24]
“Harold, also had his moustache shaved off and his hair cut short. He appeared in buoyant spirits, looking more like a mischievous school-boy than a man on trial for his life.”[25]
George Atzerodt
Note: Today was George Atzerodt’s 30th birthday. Within a month, he would be dead.
Samuel Arnold
“Harold and Arnold appeared cleanly shaved”[26]
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[1] John F. Hartranft, The Lincoln Assassination Conspirators: Their Confinement and Execution, as Recorded in the Letterbook of John Frederick Hartranft, ed. Edward Steers, Jr. and Harold Holzer (Baton Rouge, LA: Louisiana State University Press, 2009), 122.
[2] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 1115.
[3] Edwards, Court Transcripts, 1115 – 1117.
[4] Ibid., 1117 – 1118.
[5] Ibid., 1118 – 1122.
[6] Ibid., 1122 – 1125.
[7] Ibid., 1125 – 1126.
[8] Ibid., 1126 – 1128.
[9] Ibid., 1128 – 1129.
[10] Ibid., 1129.
[11] Ibid., 1129.
[12] Ibid., 1129 – 1133.
[13] Ibid., 1133 – 1135.
[14] Ibid., 1135 – 1137.
[15] Ibid., 1137 – 1141.
[16] Evening Star (Washington, D.C.), June 12, 1865, 2.
[17] Edwards, Court Transcripts, 1141.
[18] Hartranft, Letterbook, 122.
[19] August V. Kautz, June 12, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[20] “Helped to Guard the Conspirators,” The Philadelphia Inquirer (Philadelphia, PA), December 15, 1902, 5.
[21] Evening Star (Washington, D.C.), June 12, 1865, 2.
[22] Evening Star (Washington, D.C.), June 12, 1865, 2.
[23] The Philadelphia Inquirer (Philadelphia, PA), June 13, 1865, 1.
[24] Evening Star (Washington, D.C.), June 12, 1865, 2.
[25] The Philadelphia Inquirer (Philadelphia, PA), June 13, 1865, 1.
[26] The World (New York, NY), June 13, 1865, 4.
The drawing of the conspirators as they were seated on the prisoners’ dock on this day was created by artist and historian Jackie Roche.
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