June 21, 1865

Wednesday, June 21, 1865

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• Proceedings
  • Defense of Lewis Powell
  • Defense of George Atzerodt
  • Defense of Mary Surratt
• Recollections
  • General Kautz’ diary
  • William Doster’s memoirs
• Newspaper Descriptions
  • Mary Surratt
  • Lewis Powell
  • David Herold
  • Samuel Arnold
• References

Proceedings

The court convened at 12 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, and William Doster.

Absent: Reverdy Johnson, Walter Cox, Thomas Ewing, and Frederick Stone.

Seating chart:

The male conspirators were seated in the same manner as the day before. It is unclear if Mary Surratt resumed her position next to the male prisoners on the dock today or if she stayed sitting in the passageway between the courtroom and her new cell. Regardless, “Mrs. Surratt was better to-day and looked more cheerful.”[2]

Arguments began

William Doster presented his closing arguments on behalf of his client, Lewis Powell. The argument can be read in full by clicking here or on the image above. Doster opened his arguments for Powell (known to the commission and press as Payne) by admitting three undeniable facts of the Powell’s case.

“1. That he is the person who attempted to take the life of the Secretary of State.
2. That he is not within the medical definition of insanity.
3. That he believed what he did was right and justifiable.”

In the beginning, Doster asked the question, “How far, then, should the conviction of the prisoner that he was doing right go in extenuation of his offense?” Since Doster’s attempt at having Powell declared medically insane had failed, he put his entire case into proving that Powell had been morally corrupted. Doster made no attempt to disprove the prosecution’s case against Powell, but sought to mitigate its punishment as much as possible. Doster believed punishment was necessary for the attack of Seward but put his whole effort behind trying to save Powell from the gallows. In his closing arguments, Doster spent the bulk of his time telling the court of Lewis Payne’s life, under his real name of Powell. He recounted Powell’s childhood living in Alabama, Georgia, and Florida.

He explained the nature of his upbringing in a Southern society based around slavery and the impact slavery had on young Powell’s mind. Doster went into Powell’s life in the Confederate army, showing how he was schooled, “in the instincts and morals of war… He is the moral product of the war.” He blamed this moral decay on the Southern leaders like Jefferson Davis and General Lee who sold common soldiers like Powell on a fantasy. Yet Doster also shared the blame of the war with Northerners who had been content living in a country that condoned slavery and its corruption. Doster painted Powell as having completely given himself over to the corruption that was the Confederacy, his indoctrination having been started as a young boy.

“The education of our farmer’s boy is now complete. He has been in four schools. Slavery has taught him to wink at murder, the Southern army has taught him to practice and justify murder, cavalry warfare has taught him to love murder, necessity has taught him resolution to commit murder. He needs no further education; his four terms are complete, and he graduates an assassin! And of this college we, the re-united people of the United States, have been the stern tutors, guides and professors. It needs now only that some one should employ him.”

Doster proceeded to relate John Wilkes Booth’s effect on Lewis Powell, a man educated in death and without direction. Booth, through his eloquence and charisma, easily folded Powell into his plans. Booth provided Powell with the same delusions he had gained from his time in the Confederate army and once again made him a soldier who had a duty to perform. Powell’s own words and demeanor during the entirety of this trial had demonstrated that he thought what he did was right and that he had no fear of death. Doster ended his closing arguments explaining why imprisonment, rather than death, was the more logical punishment for his client:

“We know, further, that this man desires to die, in order to gain the full crown of martyrdom; and that, therefore, if we gratify him, he will triumph over us; but if we spare him, we will triumph over him. We know, also, that the public can gain nothing by his death from the example; for if he die as he lived, there will be more anxious to emulate his bravery… But if he is suffered to live, he will receive the worst punishment – obscurity – and the public will have nothing to admire. We also know, and we can not consider it too much, that he has killed no man, and that if he be put to death we shall have the anomaly of the victim surviving the murderer; and that, under the laws, this man can be punished only for assault and battery with intent to kill, and therefore, imprisoned.”[3]

Break

At the conclusion of William Doster’s closing arguments for Lewis Powell, the court took its one hour recess for lunch. During the break all of the conspirators were returned to their cells with Mary Surratt likely being taken to the adjoining room that had become her new cell. At 2 o’clock, the court reassembled with lawyer Walter Cox having appeared during the break.[4]

Arguments continued

William Doster presented his closing arguments on behalf of his client George Atzerodt. The argument can be read in full by clicking here or on the image above. Doster opened his argument with a statement from Atzerodt himself. Doster had tried over the course of the trial to get Atzerodt’s confession on the record, but had been unsuccessful. In his statement, Atzerodt stated the following:

“I am one of a party who agreed to capture the President of the United States, but I am not one of a party to kill the President of the United States or the Cabinet, or General Grant, or Vice-President Johnson. The first plot to capture failed; the second – to kill – I broke away from the moment I heard of it.

This is the way it came about: On the evening of the 14^th of April I met Booth and Payne at the Herndon House, in this city, at eight o’clock. He (Booth) said he himself should murder Mr. Lincoln and General Grant, Payne should take Mr. Seward, and I should take Mr. Johnson. I told him I would not do it; that I had gone into the thing to capture, but I was not going to kill. He told me I was a fool; that I would be hung any how, and that it was death for every man that backed out; and so we parted. I wandered about the streets until about two o’clock in the morning…”

The remainder of Atzerodt’s statement dealt with his movements on the 14^th and his arrest. It appears that Doster’s purpose in reading this confession of sorts, was an attempt to separate Atzerodt’s case into two parts. The first part dealt with the charge regarding conspiracy. Neither Atzerodt nor Doster denied that he had been part of a conspiracy, but insisted that it was in regards to kidnapping the President. This was the same strategy used by Walter Cox in his argument regarding O’Laughlen and Arnold. However, given Atzerodt’s known involvement with Booth on the day of the assassination and his acknowledgment that he had been ordered by Booth to assassinate Andrew Johnson, Doster had to address this second part of the case. This was the specification against his Atzerodt which claimed he had lied, “in wait for Andrew Johnson, then Vice-President of the United States, with the intent, unlawfully and maliciously, to kill and murder him.”

In order to save his client from the gallows, Doster chose to acknowledge Atzerodt’s involvement in the conspiracy upfront and focus solely on disputing the specification. In this way, Doster engaged in his argument summarizing all of the testimony that had been given regarding Atzerodt by both the prosecution and defense. Doster connected all the testimony to the specification being leveled at Atzerodt stating that the prosecution failed to actually place Atzerodt at the Kirkwood at the exact time the attacks were supposed to take place.

“All the evidence to prove that the prisoner was lying in wait to assassinate Mr. Johnson may be summed up thus: On the same evening that the President was assassinated he had a room at the same hotel as the Vice-President, in which were found arms and the name of the President’s murderer. He was before seen with the murderer, and used expressions indicating expectation of gold and the use of his arms, and afterward he fled the city, and said he had trouble on his mind. These circumstances are nothing by themselves…These circumstances are only important if it is proved that the person who is involved in them either tried to murder Mr. Johnson or was prevented…But if it is not shown that an attempt was made to murder, or that it was impossible to attempt murder; and if, on the contrary, it is shown that there was every opportunity for murder, and nothing in the world to prevent it, then these circumstances lose all their force, and we are bound to believe that where there was every opportunity and no attempt, there was no intention and no lying in wait.”

To support the idea that Andrew Johnson was never in danger from George Atzerodt, Doster reviewed the testimonies of his defense witnesses who remarked on Atzerodt’s known cowardice. Such a person would never have been truly trusted by Booth to carry out such a ridiculous command as murdering the Vice President. Booth had employed Atzerodt as a boatman for his failed to materialize abduction plot a role which, “required no resolution and no courage.” Even though Booth did tell Atzerodt to kill the Vice President, a point freely confessed to by Atzerodt, Booth, “must have known that the prisoner had not the courage, and therefore did not care particularly whether he accomplished it or not, only so he himself could attain the desired immortal infamy,” by killing Lincoln.

Doster summed up his arguments for Atzerodt thusly:

“This man is principal in an attempt to abduct the President of the United States. He assaulted no one; he has sheltered no one that did assault. He has killed no one, nor has he sheltered any one that did kill…If it be argued that although neither guilty, as accessory in felony or in principal in treason, he is yet guilty of the conspiring, which is the essence of the offense, the answer is, the conspiracy in which he was engaged is not the conspiracy for which he is on trial; and that as soon as he knew of the latter he hastened to dissolve all connection with the conspirators…Instead of conspiring to kill, he refused to kill; and instead of lying in wait to murder, he intoxicated himself at the appointed hour, and next morning ran away. He is guilty solely of what he confesses – of conspiring to abduct the President – and of that can be found guilty under a new indictment.

I claim, therefore, at your hands, an unqualified acquittal. That he did wrong in conspiring to capture is admitted. That he should be punished for it whenever tried for it, is also admitted. But that he is innocent of both charge and specification as now laid down is so transparent that his acquittal will, I trust, be urged by the Judge Advocate as a matter of form, if it were not also a matter of justice.”[5]

At the conclusion of William Doster’s closing arguments for George Atzerodt, Frederick Aiken addressed the court on behalf of his client, Mary Surratt. Aiken’s closing arguments can be read in full by clicking here or on the image above. He began his statements with, “For the lawyer as well as the soldier, there is an equally pleasant duty – an equally imperative command. That duty is to shelter from injustice and wrong the innocent, to protect the weak from oppression, and to rally at all times and on all occasions, when necessity demands it, to the special defense of those whom nature, custom, or circumstance may have placed in dependence upon our strength, honor and cherishing regard.” A truncated version of this opening statement was carved into Aiken’s headstone when his previously unmarked grave was marked in 2012.

The beginning part of Aiken’s statement slightly touched on the jurisdiction of the court (and lack thereof) but focused more on the ideas of justice and the reputation of the commission outside of its dubious constitutionality. Aiken reminded the commission that even though they were a military court martial and not a civilian jury of peers, they were still expected to uphold the same standards of justice and presumption of innocence until proven guilty. He also reminded them of the more personal nature this form of trial had compared to a regular jury trial and the reputation this court would have when the pages of history were written. Aiken went even so far as to hint that if the commission would find one of the conspirators not guilty on account of reasonable doubt, it would strengthen the reputation and findings they made in the other conspirators’ cases. It was a shrewd way to remind the commissioners of what the repercussions might be if they convicted Mrs. Surratt.

After this thinly veiled, yet ultimately very astute, prognostication of consequences to come, Aiken then took time to address the government’s case against Mrs. Surratt which he summarized as:

• Surratt’s acquaintance with John Wilkes Booth and the visits he made to her home
• Her alleged message to John M. Lloyd, the renter of her tavern, to have the “shooting irons ready” in the hours before Booth and Herold arrived after shooting Lincoln
• Her failure to recognize Lewis Powell, a man who had boarded at her home, when he arrived at her door on the night of April 17^th

“The acts she has done, in and of themselves, are perfectly innocent. Of themselves they constitute no crime. They are what you or I, or any of us might have done. She received and entertained Booth, the assassin, and so did a hundred others. She may have delivered a message to Lloyd – so have a hundred others. She might have said she did not know Payne – and who within the sound of my voice can say that they know him now? They are ordinary and commonplace transactions, such as occur everyday and to almost everybody.”

According to Frederick Aiken the prosecution failed to prove any guilty intent behind Mrs. Surratt’s alleged actions. Rather, the testimonies of both Louis Weichmann and John M. Lloyd seemed to imply that they were far more cognizant of the crime that was to be committed than Mrs. Surratt. Aiken proceeded to harvest the seeds of distrust and suspicion regarding Weichmann that he had planted during his defense and cross-examination.

“One thing is apparent to our minds, and it is forced upon us, as it must be upon every reasonable mind, that in order to have gained all this knowledge Weichmann must have been within the inner circle of the conspiracy. He knows too much for an innocent man, and the conclusion is perfectly irresistible that if Mrs. Surratt had knowledge of what was going on, and had been, with others, a [partner in crime] in the great conspiracy, she would have certainly done more than she did or has been shown against her, and Weichmann would have known it. How does her non-recognition of Payne, her acquaintance with Booth, and the delivery of the message to Lloyd, compare with the long and startling array of facts proved against Weichmann out of his own mouth? All the facts point strongly to him as a co-conspirator.”

Regarding the other key witness against Mrs. Surratt, John M. Lloyd, Aiken reminded the court of Lloyd’s drunkenness and own involvement with the conspirators.

“The gentlemen of the Commission will please recollect that these statements were rendered by a man addicted to excessive use of intoxicating liquors; that he was even inordinately drunk at the time referred to; that he had voluntarily complicated himself in the concealment of the arms by J. H. Surratt and his friends; that he was in a state of maudlin terror when arrested, and when forced to confess, that for two days he maintained denial of all knowledge that Booth and Herold had been at his house, and that at last,…he was coerced by threats to confess, and in a weak and common effort to exculpate himself by the accusations of another, he proceeded to place blame upon Mrs. Surratt…”

In closing, Aiken attempted to use the commissioner’s sense of honor and chivalry to his advantage, highly emphasizing Mrs. Surratt’s womanhood and perilous condition.

“Remember your wives, mothers, sisters, and gentle friends, whose graces, purity and careful affection ornament and cherish and strengthen your lives. Not widely different from their natures and spheres have been the nature and sphere of the woman who sits in the prisoner’s dock to-day…Let no stain of injustice, eager for a sacrifice to revenge, rest upon the reputation of the men of our country and time. This woman, who, widowed of her natural protectors; who, in helplessness and painfully severe imprisonment, in sickness and in grief ineffable, sues for justice and mercy from your hands…Let not this first State tribunal in our country’s history, which involves a woman’s name, be blazoned before the world with the harsh tints of intolerance, which permits injustice… Let the ship of State launch with dignity of unstained sails into the unruffled sea of Union and Prosperity.”[6]

With that, Frederick Aiken completed his closing arguments for Mary Surratt. Judge Advocate General Joseph Holt then announced to the court that Thomas Ewing would be prepared to present his arguments at 2 o’clock on Friday. Before the additional delay could be objected to, Holt also announced that he had a witness for the prosecution who would be present on Friday. It was therefore decided to adjourn the court until Friday, June 23^rd at which time Holt’s witness and Ewing’s closing arguments would be heard.[7] The court adjourned at around 4:30 pm.[8]

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Recollections

From General Kautz’ diary:

“The Commission met at twelve and heard Mr. Doster’s defense of Payne & Atzerodt. It was rather a remarkable defense. The deeds charged were not denied except in the case of the letter of the conspiracy to capture was admitted but not to murder or assassinate. Mrs. Surratt’s council Mr Aikin, made his argument which was flowery enough but neither legal or logical in the argument. The court adjourned over until Friday to give Mr. Ewing time to make his defense of Dr. Mud.”[9]

In a later memoir, General Doster recalled, in futile tones, his closing defense of his clients:

“After the argument in behalf of Payne was submitted the court adjourned for lunch. During lunch one of the members of the commission remarked, ‘Well, Payne seems to want to be hung, so I guess we might as well hang him.’”[10]

“This was practically the end of my case, as far as any show of legal defense was concerned. The rest was firing pistol shots against siege guns — two men in irons against a dozen major-generals, with a swarm of detectives within the penitentiary and a division of infantry outside.”[11]

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Newspaper Descriptions

“The arguments of the counsel for each of the accused are generally conceded to possess much legal and literary ability. That of Mr. Aiken today was listened to by a dense auditory, and the appeal in behalf of his client (Mrs. Surratt) was more than ordinarily eloquent and touching.”[12]

Mrs. Surratt

“By permission of the Secretary of War, Miss Annie Surratt has been permitted constantly to keep her mother company. Mrs. Surratt, owing to her feeble physical condition, has been removed from her cell to a comfortable room in the penitentiary.”[13]

Lewis Powell

“Upon the commencement of Mr Doster’s argument the prisoner Payne (or Powell) moved uneasily once or twice in his seat, and after casting his eyes slowly about the room, fixed them with a steady look on his counsel, but with an air of unconcern strikingly in comparison with the interest manifested by the other prisoners.”[14]

“The allusions to Payne’s early life, the teachings of his mother, and the social influences of his sisters, seemed to move the prisoners. His eyes grew misty, and assumed a vacant look, and his fingers toyed with each other nervously. Finally Payne dropped his head and maintained that posture until the conclusion of the argument, with the exception of an occasional sidelong glance. Once he raised his eyes and his face flushed during the narration of his experience in the rebel army and his destitution in Baltimore. At the conclusion of the argument in his defense he crossed his legs and rested his manacled hands on his knees, slowly sweeping the room with his eyes, and finally settling down into an easy posture, as if relieved by the termination of his case.”[15]

David Herold

“Herold, seated immediately on Payne’s right, turned half round and watched the face of the latter with a sort of half amazed stare.”[16]

Samuel Arnold

“Arnold ceased to look through the grated window by which he was sitting, and leaned forward, as if to catch every word of Payne’s history…”[17]

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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), 129.
[2] The Philadelphia Inquirer (Philadelphia, PA), June 22, 1865, 1.
[3] Benn Pitman, comp, The Assassination of Abraham Lincoln and the Trial of the Conspirators (New York: Moore, Wilstach & Baldwin, 1865), 308 – 317.
[4] Evening Star (Washington, D.C.), June 21, 1865, 2.
[5] Pitman, Trial of the Conspirators, 300 – 307.
[6] Pitman, Trial of the Conspirators, 289 – 299.
[7] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 1201.
[8] Hartranft, Letterbook, 129.
[9] August V. Kautz, June 21, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[10] William E. Doster, Lincoln and Episodes of the Civil War (New York: G. P. Putnam’s Sons, 1915), 259 – 260.
[11] William E. Doster, Lincoln and Episodes of the Civil War (New York: G. P. Putnam’s Sons, 1915), 263.
[12] Boston Daily Advertiser (Boston, MA), June 22, 1865, 1.
[13] Boston Daily Advertiser (Boston, MA), June 22, 1865, 1.
[14] Evening Star (Washington, D.C.), June 21, 1865, 2.
[15] Evening Star (Washington, D.C.), June 21, 1865, 2.
[16] Evening Star (Washington, D.C.), June 21, 1865, 2.
[17] Evening Star (Washington, D.C.), June 21, 1865, 2.
The drawing of the conspirators as they were seated on the prisoners’ dock on this day was created by artist and historian Jackie Roche.