Friday, June 23, 1865
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Proceedings
The court convened at 12 o’clock.[1]
Present: All nine members of the military commission, seven of the eight conspirators, Judge Advocate General Joseph Holt, Assistant Judge Advocate Burnett, the recorders of the court, and lawyer Thomas Ewing.
Absent: Mary Surratt, Assistant Judge Advocate John Bingham, Reverdy Johnson, Frederick Aiken, John Clampitt, Walter Cox, William Doster, and Frederick Stone.
Seating chart:
The male prisoners were seated in the same manner as the day before. Mrs. Surratt did not appear today, remaining unseen in the room adjoining the courtroom:
“Mrs. Surratt was too ill to appear in court.”[2]
Testimony began
George B. Hutchinson, a former private with the 19th Illinois Infantry, testified that he had been living in Canada for the last seven months. Hutchinson stated that he had seen Confederate agent Clement Clay in Toronto around the 12th or 13th of February. He also stated he saw prosecution witness Dr. James Merritt in Toronto just a few days after seeing Clay. Hutchinson was then asked about having seen Merritt in Canada recently. He replied that on June 2nd and 3rd he saw Merritt in conversation with Confederate agent Beverly Tucker and overheard Tucker telling Merritt that he had burned some of his correspondences to prevent some Yankee from stealing them out of his room and using them as testimony against him in relation to the conspiracy trial. Hutchinson said Tucker spoke to Merritt as a person he trusted.[3] The purpose of Hutchinson’s testimony was to shore up the prosecution’s case against members of the Confederate secret service using the perjured testimony of James Merritt. Merritt had claimed he had been present in Canada when plans of assassination Lincoln were discussed and that he saw David Herold and John Surratt in Toronto during this time. When Merritt’s testimony was finally leaked to the press, many questions were raised about the reliability of his claims, especially when it was shown that Clement Clay, one of the Confederate agents, was not in Canada during the month of February. Later, in 1866, James Merritt admitted his testimony had been perjury and that he had manage to get $6,000 from the U.S. government for his investigations and testimony. It seems likely that Hutchinson was committing perjury with his testimony in exchange for some financial inducements. In the end, the War Department paid Hutchinson $100 for his “time and expenses” in attending the trial, much higher than the $3 per day all of the other trial witnesses received.[4]
Arguments began
Thomas Ewing presented his closing arguments on behalf of his client, Samuel Arnold. The argument can be read in full by clicking here or on the image above. Ewing highlighted how all of the testimony that had been borne out by the prosecution was in perfect accord with what Samuel Arnold had confessed to after his arrest. He did not deny that Arnold had been involved in an abduction plot against Lincoln, but reiterated that the prosecution had no evidence to counter Arnold’s claim to have left Booth’s abduction plot at the end of March.
“He left the city; never saw Booth afterwards, and was never here afterwards till brought here a prisoner. There is nothing further in the vast mass of testimony which has been taken that I regard as at all material to his case, except the evidence of Chester, and the confession in open court of Atzerodt, which strongly corroborate Arnold’s statements as to the real purpose of the conspiracy, which on the 20th of March, he had abruptly and wholly abandoned.”
In addition to showing that Arnold had left Booth’s plot in March, Ewing also strove to show that even under the law of conspiracy, Arnold could not be convicted for involvement in the assassination. Ewing quoted legal precedence to show that the nature of the abduction conspiracy Arnold entered into and then left was of a distinctly different character to the assassination conspiracy that eventually occurred.
“For this new crime he is no more responsible than if he had never seen, or known, or heard of the wicked men who did the horrid deed. And he cannot be made responsible, by showing that he had previously combined with the same men for the perpetration of another, but different crime against the same person.”
Ewing denied that Arnold could be found guilty in any way under the law of conspiracy because he had no knowledge of what the conspiracy had turned into after he left it.
“Recurring now to the attitude which Arnold occupies before the Court, and remembering that, if he be guilty at all, he is guilty as an accessory before the fact, and as such only, let us inquire where and what are the proofs to connect him with the crime. Nowhere is one word or syllable to be found. Against him, in connection with the crime which was actually committed, there is nothing, absolutely nothing. So far as the evidence shows, he stands as disconnected from the assassination of the President, and assault upon the Secretary, as any other individual in the community. There is not one word of testimony, either oral or written, neither on the statement of witnesses on the stand, nor in the disclosures of anonymous letters, which have been scattered from New York to Georgia, which even insinuates that Arnold had ever heard or suspected, or had reason to suspect that anyone on earth had ever plotted, intended or imagined the assassination of the President and his Cabinet, or anyone of them.”
In summing up, Ewing merely reiterated the facts of Samuel Arnold’s involvement with John Wilkes Booth’s failed the materialize abduction plot and how Arnold had no awareness of what the conspiracy morphed into after he was gone.
“If he did not know of the intended crime, how could he be an accomplice before the fact in its commission? If he did know of it, I ask to be pointed to the precise testimony which proves it. He was a party to a conspiracy, but the entire scope of that conspiracy was the abduction of the President. It contemplated no other act. But for this conspiracy, such as it was, he is not on trial, and it can have, or certainly ought to have, no influence whatever upon the minds of the Court. It was abandoned by him before the assassination, and with that abandonment, his connection and intercourse with the conspiracy ceased…How then will it be possible to justify a judgement of condemnation against him as accessory before the fact, to a crime of the intention to commit what he was utterly and profoundly ignorant, and from which, we are warranted in believing, from what the evidence has disclosed of his character, he would have shrunk with loathing and dismay.”[5]
Break
At the conclusion of Ewing’s closing argument in the defense of Samuel Arnold the commission broke for its normal lunch break. The male conspirators were returned to their cells and fed during this time. The court reconvened at 2 o’clock.[6]
Arguments continued
Thomas Ewing presented his argument against the jurisdiction of the court. Similar to the jurisdictional argument that had been made days earlier by Reverdy Johnson, Ewing attempted to show that the commission did not have any legal authority in the case of the conspirators. According to Ewing, the Constitution held that courts were established by Congress and not through executive power and, therefore, President Johnson did not have the authority to create this commission to try the conspirators. While exceptions existed when those being tried were in active service of land or naval forces, thus the use of military tribunals, Ewing argued that such an exception did not hold when it came to the conspirators. In this argument, Ewing denied that the commissioners had any legal right to stand in judgement over the conspirators and that any verdict they came to or sentence they approved would not be valid. Though he knew the commissioners were just soldiers following orders and not lawyers, Ewing still appealed to the commissioners that they needed to trust the justice that would be brought out in the civilian courts:
“The crimes are, as far as hinted at and written about in the charge and specification, all cognizable in our civil courts. Those courts are open, unobstructed, without a single impediment to the full and perfect administration of justice – ready and prompt, as they always are, to perform the high duties which the well-known principles of law under the Constitution devolve on them.”[7]
Ewing tried to show that it did not matter how faithfully or impartially the commissioners acted in this case, nor did it really matter what they, or posterity, believed the evidence supported in terms of sentencing. Under the eyes of the law, nothing they decided would be legal. He also decried that any true justice could be meted out under such a system where the Judge Advocate, the prosecutor of the accused, is also the one who effectively decides whether evidence can and cannot be admissible:
“Conviction may be easier and more certain in this Military Commission than in our constitutional court. Inexperienced as most of you are in judicial investigations, you can admit evidence which courts would reject, and reject what they would admit, and you may convict and sentence on evidence which those courts would hold to be wholly insufficient…The Judge Advocate, with whom chiefly rests the fate of these citizens, is learned in the law, but from his position he cannot be an impartial judge, unless he be more than a man. He is the PROSECUTOR in the most extended sense of the word…the union of prosecutor and judge works practical injustice to the accused. The Judge Advocate controls the admission and rejection of evidence – knows what will aid and what will injure the case of the prosecution, and inclines favorably to the one and unfavorably to the other. The defence is met with a bias of feeling and opinion on the part of the Judge who controls the proceedings of the court…”[8]
Ewing closed by lambasting the nature in which completely irrelevant evidence was allowed to be produced at this “trial” so as to sully the name of the accused, while proving nothing.
“There may be a lurking feeling among men which tends to this harshness of retribution, regardless of the innocence of those on whom vengeance may fall. Tending to this feeling, exciting or ministering to it, was the two days’ testimony which, without other apparent point or purpose, detailed the horrors of Libby Prison; and the evidence, that, in 1861, one of my clients took part in the rebellion…As if to say: ‘What matters it how we try, or whether we legally try at all, provided we convict and execute men who have been associated with, or in sympathy with, monsters such as those?’”[9]
At the conclusion of his argument against the jurisdiction of the court, Thomas Ewing then went straight into his closing argument on behalf of Dr. Samuel Mudd. Ewing began by attacking the charge and specification against Dr. Mudd in the same way he had done on June 14th. Ewing denied the charge, as written, had any basis in law while still proceeding to explain why his client was innocent even under the different incorrect interpretations of the charge. The murder of the President could be interpreted as treason. According to Ewing, however, to be convicted of treason there needs to be evidence that the defendant engaged in an overt act of treason. To this Ewing stated that Dr. Mudd was residing at his home, thirty miles from Ford’s Theatre when the crime of treason occurred. In addition, he denied the prosecution had brought forth any evidence of an overt act on the part of Dr. Mudd in the assassination of Lincoln. Ewing used a similar argument against the crime of murder, noting that Dr. Mudd, “was not actually or constructively present when the horrid deed was done, either as a traitor, chargeable with it as an overt act, or a conspirator, connected as a principal felon therewith.”[10]
Following his counters to the legality of the charges against Dr. Mudd, Ewing then went into the evidence that the prosecution had put forth linking Mudd with “treasonable conspiracy or of being an accomplice, before or after the fact in the felonies committed.”[11] He first discussed Dr. Mudd’s character from the perspective of his defense witnesses who described Dr. Mudd as a peaceable gentleman who disliked the anti-slavery measures of the government yet still remained loyal to the Union. Ewing used the testimonies of the free black laborers who worked for Dr. Mudd after emancipation to discount the testimonies of those he enslaved (and shot) who had testified about his Confederate activities.
Ewing then launched into a line by line refutation of each aspect of the government’s case against Dr. Mudd, rehashing the testimonies of his defense witnesses to counter the testimony provided by prosecution witnesses. As the closing arguments of the prosecution would do in the coming days, Ewing highlighted the importance of his witnesses, while discrediting or ignoring facts contrary to them. Ewing addressed Dr. Mudd’s introduction to John Wilkes Booth in November of 1864, stating that it was by luck and emerged from Booth’s claim to be looking to buy land. He discussed Dr. Mudd’s acquaintance with John Surratt and attacked the timeline and credibility of those enslaved by Dr. Mudd who had reported Surratt and other Confederate sympathizers had hidden out at the Mudd farm.
Thomas Ewing spent a considerable time attacking the credibility and testimonies of Louis Weichmann, Rev. William Evans, Marcus Norton, and Daniel J. Thomas. Discrediting these four men provided the best ammunition for Ewing in defending Dr. Mudd as each of these prosecution witnesses had significant problems with their testimony. Ewing had spent a lot of time procuring witnesses to counter these men in the hopes that discrediting them would cast doubt on the whole of the prosecution’s case. Thus, in his closing arguments, Ewing attacked these men one by one, utilizing the many witnesses who had testified to Dr. Mudd’s whereabouts from December, 1864 to April, 1865.
- Weichmann had been present when Dr. Mudd introduced John Wilkes Booth to John Surratt for the first time. In his testimony, however, Weichmann claimed this introduction occurred in January of 1865 which was either an accidental or deliberate error. The actual date of this introduction was December 23, 1864. Ewing thus launched into a refresher of the many witnesses he had called who placed Dr. Mudd at his farm during the month of January.
- Evans claimed to have seen Dr. Mudd riding to D.C. and then entering Mrs. Surratt’s boardinghouse sometime in March. Ewing used witnesses from the Surratt boarding house to prove that Dr. Mudd had never visited. Ewing charged that the preacher forgot, “the ninth commandment, and bore false witness against his neighbor.”[12]
- Marcus Norton said that Dr. Mudd had accidentally burst into his room at the National Hotel looking for John Wilkes Booth on March 2, 1865. Again, many witnesses had placed Dr. Mudd at his farm, caring for his sick sister during the first week of March. Ewing also had a few of Norton’s associates who described him as unreliable.
- Daniel J. Thomas claimed that, in March, Dr. Mudd told him that Lincoln, his cabinet, and all Union men in Maryland were to be killed soon. Thomas stated he wrote a letter about this disloyal comment and sent it to the local provost marshal. However, the provost marshal had testified he never received such a letter from Thomas and countless of Thomas neighbors, including his own brother, had testified that Thomas was unstable and not to be trusted. In addition, Ewing brought up how Thomas was actively soliciting for reward money for his testimony even before the case of Dr. Mudd had been decided.
According to Thomas Ewing the testimony of these four men and the five men and women who had been enslaved by Dr. Mudd were without any credibility. Since these testimonies consisted of the only evidence the government had provided to connect Dr. Mudd as an accomplice in Booth’s conspiracy before the fact, Ewing confidently drove his point home, saying, “I venture to say, that rarely in the annuals of criminal trials has the life of an accused been assailed by such an array of false testimony as is exhibited in the evidence of these nine witnesses – and rarely has it been the good fortune of an innocent man, arraigned and on trial for his life, to so confute and overwhelm his accusers.”[13]
The remainder of Thomas Ewing’s closing arguments dealt with the contention that Dr. Mudd knowingly aided the escape of the assassin. Ewing did not debate that Dr. Mudd set Booth’s leg, but used part of Mudd’s confession to Col. Wells to rehash Mudd’s claims that Booth was wearing heavy whiskers, wore a shawl around his face, and slept most of the day, thus explaining Mudd’s failure to recognize a man he had previously met. Ewing carefully referenced only his own defense witnesses to show that the name of Lincoln’s assassin was not known when Mudd went to Bryantown, completely ignoring the prosecution witnesses who had stated otherwise. According to Ewing, when Dr. Mudd arrived back at home on April 15, the two men, Booth and Herold, were already departing. “Now I ask the court,” Ewing questioned, “what is there up to this point to indicate that Mudd knew or had any suspicion that the broken legged man was implicated in the crime? If there is anything in proof showing that fact, I fail to find it.”[14]
In his conclusion, Thomas Ewing asserted that Dr. Mudd could not legally be found an accessory after the fact because he had no knowledge and no suspicion that the wounded man had anything to do with a crime. According to Ewing, Dr. Mudd did not suspect anything about the men until they left and Mrs. Mudd told him about the wounded man’s whiskers being fake. Based on all the evidence claimed by the prosecution, Ewing asserted that the only justifiable conclusion, “unfavorable to Mudd…is that, having his suspicions thoroughly aroused Saturday night, he delayed until Sunday noon to communicate them to the authorities,” but that this was by no means a crime.
“Can, then, Dr. Mudd be convicted as a conspirator, or an accessory before or after the fact, in the assassination? If this tribunal is to be governed in its findings by the just and time-honored rules of law, he cannot; if by some edict higher than constitutions and laws, I know not what to anticipate or how to defend him. With confidence in the integrity of purpose of the Court and its legal advisers, I now leave the case to them.”[15]
With this, Thomas Ewing concluded his defense of Dr. Mudd, and the court adjourned at around 4:30 pm.[16] To give the prosecution time to complete their closing arguments for all of the conspirators, the court would not meet again until June 27.
Recollections
From General Kautz’ diary:
“The commission met this noon heard a witness and the argument of Mr. Ewing in favor of Dr. Mudd and Arnold and then adjourned to meet again on Tuesday…The weather was very warm.”[17]
William Doster, lawyer to Powell and Atzerodt, recalled in his later memoirs the illness Mary Surratt suffered in the closing days of the trial:
“Mrs. Surratt was sick during a great part of this trial. Her dress and manner were certainly eminently respectable. There was an air of undeniable patronly, or rather motherly, innocence in her face that went a great way. I judged that in her youth she was the belle they claimed she had been. Her sickness was change of life, which weakened her greatly. Her cell by reason of her sickness, was scarcely habitable.”[18]
Newspaper Descriptions
Mrs. Surratt
“Mrs. Surratt was too ill to appear in court.”[19]
Lewis Powell
“Payne is no longer the object of so much interest, since his brief history has been made public by his counsel.”[20]
Visitors
“Notwithstanding the protracted duration of the conspiracy trial, and the extremely sultry weather, the attendance to-day was larger than on any previous occasion.”[21]
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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), 130.
[2] The World (New York, NY), June 24, 1865, 5.
[3] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 1201 – 1202.
[4] William C. Edwards and Edward Steers, Jr., ed, The Lincoln Assassination: The Evidence (Chicago: University of Illinois Press, 2009), 296.
[5] Edwards, Court Transcripts, 1238 – 1242.
[6] Hartranft, Letterbook, 130.
[7] Thomas Ewing, Jr., Argument of Thomas Ewing, Jr., on the Jurisdiction and on the Law and the Evidence in the Case of Dr. Samuel A. Mudd, (Washington, D.C.: H. Polkinhorn & Son, 1865), 11.
[8] Ewing, Argument of Thomas Ewing, 12.
[9] Ibid., 13.
[10] Ibid., 8.
[11] Ibid., 9.
[12] Ibid., 17.
[13] Ibid., 23.
[14] Ibid., 26.
[15] Ibid., 36.
[16] Hartranft, Letterbook, 130.
[17] August V. Kautz, June 23, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[18] William E. Doster, Lincoln and Episodes of the Civil War (New York: G. P. Putnam’s Sons, 1915), 276.
[19] The World (New York, NY), June 24, 1865, 5.
[20] The World (New York, NY), June 24, 1865, 5.
[21] The Philadelphia Inquirer (Philadelphia, PA), June 24, 1865, 1.
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If I ever need an attorney, I hope he can argue as persuasively as Thomas Ewing, Jr.!
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