June 27, 1865

Tuesday, June 27, 1865

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• Proceedings
  • Sandford Conover
  • Nathan Auser
  • John Cantley
  • Watkins Graves
  • James Merritt
  • Argument in Favor of the Jurisdiction of the Court
• Recollections
  • General Kautz’ diary
• General Kautz’ Descriptions
  • Lewis Powell
  • David Herold
  • George Atzerodt
  • Dr. Mudd
  • Samuel Arnold
• Visitors
• References

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, Thomas Ewing, and Frederick Stone.

Absent: Reverdy Johnson[2]

Seating chart:

The male prisoners were seated in the same manner as the day before. Mary Surratt remained unseen in her new cell which adjoined the courtroom:

“They were all present except Mrs. Surratt, who has been confined to her bed for a week.”[3]

Testimony began

Sandford Conover, a key one of the government’s main perjurers, was recalled to the stand after previously testifying for the prosecution on May 20 and 22^nd. During his earlier times on the stand, Conover, whose real name was Charles A. Dunham, claimed that he saw John Wilkes Booth and John Surratt in Canada plotting the assassination of Lincoln with known Confederate agents. His testimony along with that of James Merritt and Richard Montgomery, were the prosecution’s main evidence that the plot to kill Lincoln had originated with Confederate officials. In 1866, James Merritt would testify before a congressional committee and admit that his testimony had been false. Conover had paid both Merritt and Richard Montgomery to commit perjury. In November of 1866, Conover would be indicted for perjury, found guilty, and sentenced to ten years in prison.

After giving his perjured testimony in May, Conover had returned to Canada where he was known as James Watson Wallace. He was sent there, ostensibly, to uncover more vital information regarding the origins of the plot. While in Canada, Conover’s previously secret and withheld testimony was prematurely published in the press. Though he had been outed as a spy of sorts, Conover/Wallace/Dunham decided to double down on his lies. When confronted in Canada, “Wallace” swore under oath that he had never used the name of Conover and that he had never testified in Washington. He accused “Conover” of impersonating him and denied that he knew Jacob Thompson, one of the Confederate agents that Conover had claimed to have had discussions of Lincoln’s assassinations with, intimately. He also swore then that he never saw John Wilkes Booth in Canada. Wallace went so far in his denials of “Conover’s” testimony that he offered to come to Washington to prove to the commission that he was not Conover and offered a reward of $500 for the capture of the man who had impersonated him. His lies in Canada did not seem to get him as far as his lies in the U.S. however, as by June 16, Wallace was in jail in Montreal where the newspapers reported, “he now confesses he is Sanford Conover, and wishes to disclose how and by what means he was induced to go to Washington at the instance of Federal pimps for perjury, but that Southerners here scorn to go near him to receive his disclosures.” Not wanting Conover’s arrest and possible confession to perjury to sully his vital testimony at the conspiracy trial, the U.S. War Department arranged for Conover’s release from prison in Montreal and brought him back to D.C. to re-take the stand and explain himself.[4]

Back on the witness stand in Washington and away from Canada, Conover testified today that the affidavits he swore to in Canada and his offers of reward for the arrest of himself were false. He claimed that Confederate agents confronted him with a pistol to his head when his May testimony at for the conspiracy trial was released and that the only reason swore under oath that he was not Conover was to save his life. Conover also spent a large part of his testimony today claiming that the official transcript of the trial of the St. Albans raiders did not provide an accurate copy of his testimony and that what he had testified to at this trial was the truth.[5] In reality, very little of what Conover/Wallace/Dunham testified to was truthful. Conover was continuing to lie and perjure himself so that he could keep “investigating” his accusations for the U.S. government in order to milk it of funds. He told the authorities exactly what they wanted to hear in order to stay in their good graces as long as possible. As was the case with the discredited Lon letter, the prosecution’s insistence to stick by Sandford Conover even after the evidence of his perjury was made known, demonstrates how the Judge Advocate General was willing to, “use tainted evidence to gain his ends.”[6]

In the course of Sandford Conover’s testimony three different newspaper clippings were entered into evidence. Exhibit 95 was a clipping containing Conover’s, alias J. Watson Wallace, testimony in the trial of the St. Albans raiders. Exhibit 96 was a clipping regarding Wallace’s sworn affidavit that he was not Conover. Exhibit 97 was a clipping regarding Wallace’s sworn affidavit offering $500 in reward for the capture of Conover.

Nathan Auser, Sandford Conover’s brother-in-law, testified that he had been present with “Wallace” in Canada when they were approached by Confederate agents regarding the Conover testimony. Auser stated that the agents threatened to shoot Conover like a dog if he did not swear to a paper denouncing the testimony as false. However, Auser stated he did not see any weapons, contradicting Conover’s claim that a pistol was put to his head.[7]

John Cantley, a printer from Selma, Alabama, testified that he was the foreman for the Selma Dispatch newspaper. During December of 1864, an advertisement was printed four or five times into his paper titled “One Million Dollars Wanted to have Peace by the 1^st of March”. The advertisement stated that, “if the citizens will furnish me with the cash, or good securities for the sum of one million dollars, I will cause the lives of Abraham Lincoln, William H. Seward, and Andrew Johnson to be taken by the first of March next.” Cantley testified that the advertisement had been paid for by an ardent Confederate supporter and attorney named George W. Gayle.[8] Judge Advocate Holt’s purpose of including this testimony was likely to lay the ground work for George Gayle’s own military trial. The Cahaba, Alabama lawyer had been arrested in his home on May 25 and was being confined at the Old Capitol Prison in D.C. on this date. His advertisement threatening the lives of the three officials who had been targeted in Booth’s plot had convinced the authorities that he was somehow connected to the conspiracy. The plan was to put Gayle on trial by military commission after the Lincoln conspiracy trial ended. Gayle preemptively hired Mary Surratt’s lawyers of Frederick Aiken and John Clampitt to act as his defense in such a military trial but it proved unnecessary. It was determined that Gayle was to be tried by a civil court in his home state and so he was eventually sent back to Alabama and paroled until his trial. Reconstruction politics and difficulties in re-establishing functional civilian courts in the South caused Gayle’s case to be delayed by two years. In the end, influential citizens from Alabama convinced President Andrew Johnson to preemptively pardon Gayle which he did on April 29, 1867.[9]

George W. Gayle’s advertisement from December 1864 promising the deaths of Lincoln, Seward, and Johnson in exchange for $1,000,000 was entered into evidence as Exhibit 98.

Watkins D. Graves, a printer from Selma, Alabama, testified that he worked for the Selma Dispatch newspaper in December of 1864. Graves supported the previous testimony of John Cantley in stating that he saw the original manuscript from which the million dollar offer to kill Lincoln, Seward, and Johnson was printed. Graves confirmed that the advertisement had been written and commissioned by George W. Gayle.[10] During his imprisonment and period of parole, Gayle would claim that the advertisement was intended as a joke between him and his Confederate neighbors.

James B. Merritt, another of the government’s key witnesses connecting Lincoln’s assassination to the Confederacy, was recalled after previously testifying on May 12 and 13^th, the first two days of the trial. Merritt told a similar story as Sandford Conover regarding how he had returned to Canada after his testimony was given in secret in order to gather more information from Confederate agents there. While in Montreal on June 2^nd, Merritt conversed with Confederate agent Beverley Tucker who told him that he was well aware of the events occurring at the trial. Tucker also stated that he had burned all of the papers he had received from Richmond so that they couldn’t be stolen and used against him.[11] This exchange had been previously testified to by George Hutchinson, but how much truth there was in the details is unknown. In 1866, Merritt would admit before a congressional committee that he had perjured himself before the commission.

James Merritt marked the very last witness to be called at the trial of the conspirators and Judge Advocate Holt announced that the testimony on the part of the government was closed.

Argument began

Assistant Judge Advocate John A. Bingham then proceeded with his closing argument in support of the military commission’s right to try the conspirators. This argument was in answer to the challenges made by the defense lawyers that claimed the military court was not the proper jurisdiction for the conspirators and that they should be tired in a civilian court. Bingham’s counter argument, which can be read by clicking here or on the image above, was a 50 page long legal treatise on the use of military commissions and the justification of its use in the case of the Lincoln conspirators. The Boston Daily Advertiser, one of the newspapers who maintained a field reporter in the courtroom, summarized the argument:

“As the court had already overruled the plea as to its jurisdiction, he would pass it over in silence, but for the fact that it had been gravely argued by the counsel for the accused. Denying the authority of the President to constitute this commission is an argument that this tribunal is not a court of justice, had no legal existence, and no power to hear and determine the issue joined. In making this averment counsel should show how the President could otherwise discharge the duty enjoined upon him by his oath to protect, preserve and defend the Constitution, and take care that the laws be faithfully executed. As to the assertion that the civil courts are open in this district, he answered that they are closed throughout half of the republic, and were open in this district only by the force of the bayonet. Withdraw the military forces, and would the rebel bands infesting the vicinity allow their confederates here to be tried in this or any other court? The conspirator who assassinated the President was not arrested by civil process, but was pursued by the military power, captured and slain. Was this an act of usurpation? Who in all this land is bold enough or base enough to assert it? If the President is justified in this act, what law condemns him for arresting in like manner and subjecting to trial according to military laws all other parties to this conspiracy?

…The judge-advocate proceeded at length in reply to the argument of counsel, citing precedents sustaining the actions of the government. He showed that all the proclamations the President issued during the rebellion for the suppression of the same, and among them the one providing for the trial of all rebels and insurgents, their aiders and abettors, by court martial, or military commission, were sustained by Congress; also that the Supreme Court had decided that so much of these proclamations as provided or these courts martial, or military commissions, needed no ratification.”[12]

Break

At 1 o’clock, in the midst of John Bingham’s remarks supporting the jurisdiction of the military commission, the court took a one hour break for lunch. The court reconvened at 2 o’clock and Bingham continued.[13]

Argument continued

The New York World newspaper had been a vocal critic of the Lincoln administration’s actions during the Civil War, especially when it came to the suspension of the writ of habeas corpus. In their coverage of Bingham’s closing argument, The World made it clear that they found nothing of value, or of law, in it:

“Judge Bingham read, yesterday, before the Military Commission a long argument (as by courtesy we suppose we must call it) in reply to Reverdy Johnson on the jurisdiction of the commission…On receiving a copy through the agent of the Associated Press, it was our intention, despite its unwieldy bulk, to publish it; but after reading it carefully, from end to end, we concluded it would be a sad waste of space. Our readers will certainly be of the same opinion when they read the specimens which we will insert.

Mr. Bingham is reputed an able man and dexterous lawyer; and it is a signal of proof of the weakness of any cause, when a lawyer of his conceded ability can find nothing more solid to say in its defense, than the empty and sophisticated clap-trap with which he attempts to becloud the mind of the country. ‘Becloud the mind of the country,’ we say, for it was evidently prepared less for the court than for the public…

Who is so great a simpleton as not to know that these accomplices in assassination could just as easily be tried by a civil court in the District of Columbia as by a military commission?…If Washington is in such imminent danger as Mr. Bingham’s fervid imagination depicts, the military authority has committed a great imprudence in ordering the forts to be dismantled, which it did some days ago.”[14]

At the conclusion of Assistant Judge Advocate John Bingham’s argument on the jurisdiction of the court, the court adjourned for the day at around 4 o’clock.[15]

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Recollections

From General Kautz’ diary:

“The Court met this morning and after receiving some general testimony relating to the Conspiracy, Judge Bingham presented his argument on the jurisdiction of the Commission, which had for its principle default the volume of words in which it is enveloped although otherwise well prepared and very conclusive…There is a prospect that the Commission is nearly through with its labors.”[16]

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General Kautz’ Descriptions

Most newspapers of the day carried verbatim transcripts of Bingham’s lengthy argument in support of the military commission. As such, most did not have the space to include any descriptions of the conspirators. The following descriptions come from commission member August Kautz’ later memoir.

Lewis Powell

“Payne was a sullen character whose expression rarely changed. He seemed to be fully aware that he had taken a desperate chance and lost, and had the nerve to abide the result manfully. He was manly and strong in every respect, but how much moral character there was in his makeup was not apparent on the surface.”[17]

David Herold

“Harold was a simpering, foolish young man, so short of stature that he appeared like a boy and never seemed impressed with the gravity of his position. He must of have been simply a plastic tool in Booth’s hands.”[18]

George Atzerodt

“Atzeroth looked the hired assassin and the testimony went to show that he failed to perform his part of the compact, which was to kill Genl. Grant [sic], either from want of courage or want of sufficient intelligence. He excited no sympathy from anyone.”[19]

Dr. Mudd

“Dr. Mudd was the most intelligent looking and attracted most attention of all the prisoners. There was more work done in his defense. His subsequent career showed him to be a man of more character and intelligence than anyone of the prisoners.”[20]

Samuel Arnold

“[Arnold] was good looking, amiable, young man who seemed to have gotten into bad company.”[21]

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Visitors

“Assistant Judge-Advocate Bingham had a large and apparently much interested auditory this afternoon during the delivery of his argument in reply to the Hon. Reverdy Johnson on the subject of the jurisdiction of the Military Commission now engaged in the trial of the alleged conspirators.”[22]

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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), 132.
[2] Evening Star (Washington, D.C.), June 27, 1865, 2.
[3] Boston Daily Advertiser (Boston, MA), June 29, 1865, 1.
[4] Seymour J. Frank, “The Conspiracy to Implicate the Confederate Leaders in Lincoln’s Assassination,” Mississippi Valley Historical Review 40, no. 4 (1954): 634-653.
[5] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 1202 – 1206.
[6] Joseph George, Jr., “Subornation of Perjury at the Lincoln Conspiracy Trial? Joseph Holt, Robert Purdy, and the Lon Letter,” Civil War History 38, no. 3 (1992): 232 – 241.
[7] Edwards, Court Transcripts, 1206 – 1207.
[8] Ibid., 1207 – 1208.
[9] Christopher L. McIlwain, Sr., The Million Dollar Man Who Helped Kill a President: George Washington Gayle and the Assassination of Abraham Lincoln (El Dorado Hills (CA): Savas Beatie, 2018), 112 – 136.
[10] Edwards, Court Transcripts, 1208 – 1209.
[11] Ibid., 1209 – 1210.
[12] Boston Daily Advertiser (Boston, MA), June 28, 1865, 1.
[13] Hartranft, Letterbook, 133.
[14] New-York World (New York, NY), June 28, 1865, 4.
[15] Hartranft, Letterbook, 133.
[16] August V. Kautz, June 27, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[17] August V. Kautz, Reminiscences of the Civil War (Unpublished manuscript: Library of Congress, August V. Kautz Papers), 24.
[18] August V. Kautz, Reminiscences of the Civil War (Unpublished manuscript: Library of Congress, August V. Kautz Papers), 24.
[19] August V. Kautz, Reminiscences of the Civil War (Unpublished manuscript: Library of Congress, August V. Kautz Papers), 24.
[20] August V. Kautz, Reminiscences of the Civil War (Unpublished manuscript: Library of Congress, August V. Kautz Papers), 25.
[21] August V. Kautz, Reminiscences of the Civil War (Unpublished manuscript: Library of Congress, August V. Kautz Papers), 25.
[22] New-York Tribune (New York, NY), June 28, 1865, 1.