Wednesday, June 28, 1865
- Newspaper Descriptions
The court convened at 1 o’clock.
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
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:
“All of the prisoners were present save Mrs. Surratt, who was in an adjoining room.”
On this day, Assistant Judge Advocate John Bingham completed his closing arguments on behalf of the prosecution. While his argument yesterday dealt with the jurisdiction of the military commission, today was focused on the evidence tying the eight conspirators on trial to the conspiracy against Lincoln. Bingham’s lengthy argument on the evidence can be read by clicking here or on the image above.
The closing argument was essentially a rehashing of all of the evidence presented by the prosecution over the course of the trial. Given that Jefferson Davis, other Confederate leaders, and Confederate agents known and unknown had been included in the charge against the conspirators, Bingham maintained the government’s belief that the plot against Lincoln had originated with the Confederacy. This insistence came despite the severe lack of evidence that the government had put forth to support this conclusion (aside from perjured testimony and spurious letters). In truth, Bingham appeared to completely ignore or dismiss any contrary evidence that had been presented by the defense, especially when it came to the individual conspirators.
Lincoln assassination expert Michael Kauffman summarizes Bingham’s closing argument far better than I could in his preeminent book, American Brutus: John Wilkes Booth and the Lincoln Conspiracies:
“Bingham summarized the evidence against Confederates, giving equal weight to hard facts, speculation, and outright fraud. He insisted that there had never been an abduction scheme, despite the testimony of his own witness, Sam Chester. And he ridiculed the notion of abducting the president in the theater, “much less to carry him through the city, through the lines of your army, and deliver him into the hands of the rebels. No such purpose was expressed or hinted by the conspirators in Canada, who commissioned Booth to let these assassinations on contract. I shall waste not a moment more in combating such an absurdity.”
Bingham said that the letter from Sam Arnold found in Booth’s trunk proved that Arnold had not abandoned the scheme; on the contrary, it expressed his willingness to return at a “time more propitious,” and offered advice for the successful prosecution of the conspiracy. And because ‘the act or declaration of one conspirator…is the act or declaration of all the conspirators,” the “Sam” letter spoke for O’Laughlen as much as it did for Arnold.
Since the law gave Bingham the final word, he was free to roam, as it were, without fear of contradiction. In the case of Dr. Mudd, he ran through the evidence, then insinuated that there was much more to the story. “What became of the horses which Booth and Herold rode to his house, and which were put into his stable, are facts nowhere disclosed by the evidence. The owners testify that they have never seen the horses since. The accused give no explanation of the matter, and when Herold and Booth were captured they had not these horses in their possession.”
It was hardly a fair point to make, since the question had never come up. And even if it had, Dr. Mudd would not have been legally permitted to answer it. Bingham hit Mudd especially hard on the details of that encounter at the National Hotel. Though he had blocked every effort to show that it took place in December – not in January, as Weichmann claimed – he now argued that the date was immaterial because “the witness was not certain” about it. In fact, Weichmann had been certain, but as Bingham said, his subsequent wavering could help neither side, as “the burden of proof is upon the prisoner to prove that he was not in Washington in January last.”
…John Bingham’s summation justified his seat at the trial. Those who heard it would never forget the power of his presentation. “When referring to the rebellion or any of its leaders…,” said Lt. Col. Richard A. Watts, of the prison staff, “his invective burned and seared like a hot iron. But when he touched upon the great and lovable qualities of the martyred Lincoln his lips would quiver with emotion, and his voice became as tender and reverent as if he were repeating the Lord’s Prayer.””
The commission did not take their normal lunch break on this date, sitting through the entirety of John Bingham’s closing argument.
Bingham closed his argument by reiterating the law of conspiracy and justifying why all of the accused should be found guilty for the death of President Lincoln:
“If this conspiracy was thus entered into by the accused; and if John Wilkes Booth did kill and murder Abraham Lincoln in pursuance thereof; if Lewis Payne did, in pursuance of said conspiracy, assault with intent to kill and murder William H. Seward, as stated, and if the several parties accused did commit the several acts alleged against them in the prosecution of said conspiracy, whether present at the time of its execution or not, whether on trial before this court or not, are like guilty of the several acts done by each in the execution of the common design. What these conspirators did in the execution of this conspiracy by the hand of one of their co-conspirators they did themselves; his act, done in the prosecution of the common design, was the act of all the parties to the treasonable combination, because done in execution and furtherance of their guilty and treasonable agreement.
…To the same effect are the words of Chief Justice Marshall, before cited, that whoever leagued in a general conspiracy, performed any part, however minute, or however remote, from the scene of action, are guilty as principals. In this treasonable conspiracy, to aid the existing armed rebellion, by murdering the executive officers of the United States and the commander of its armies, all parties to it must be held as principals, and the act of one in the prosecution of the common design [is] the act of all.”
At the conclusion of Assistant Judge Advocate John Bingham’s closing arguments, Thomas Ewing, the defense lawyer for Dr. Mudd, Samuel Arnold, and Edman Spangler asked the court’s permission to read a paper, “setting forth that, in his opinion, [Mr. Bingham] had had unintentionally misstated the evidence in a number of matters of great importance, in the consideration of the cases of the accused.” Ewing wished to read his paper on the matter so that the court could then test the accuracy of what they just heard. According to the newspapers, the court was then cleared of visitors while the commission decided whether or not to allow Ewing to read his paper. However, in the official transcript of the trial, there is no mention of this exchange, making it likely that Ewing’s request was denied and its application stricken from the record.
The court then adjourned at around 6 o’clock. This closed the trial to the public and to the conspirators. The next two days would be closed sessions where the nine military commissioners and the Judge Advocates would deliberate on the verdicts.
“The Commission met at one and heard the closing argument which lasted until after six o’clock. We then adjourned to meet tomorrow to deliberate on the findings.”
James L. Lucas was a member of Company A of the 12th Veterans Reserve Corps stationed in Washington. When John Wilkes Booth’s body was brought back to D.C., Lucas was assigned guard duty over his body during the assassin’s autopsy and later burial at the Old Arsenal Penitentiary. At the trial of the conspirators, while other members of the Veteran Reserve Corps served as guards and sat between the conspirators at the dock, Lucas was assigned duty as a messenger for the court, ferrying messages in and out of the trial room. In his later years James Lucas spoke of his experiences to his grandson Paul Lucas. In 1960, Paul Lucas submitted a typed manuscript of his grandfather’s story to Michigan State University where he had been on the faculty for 37 years. The amount of detail in the manuscript regarding Lincoln’s assassination and escape of John Wilkes Booth gives the appearance that Paul Lucas conducted a great deal of research in order to round out his grandfather’s story. It is, therefore, hard to tell what parts of James Lucas’ story originated with him and which parts were supplemented by his grandson. Nevertheless, here are the excerpts from the Lucas recollections that appear to give firsthand information regarding the trial of the conspirators.
“While included in the detachment from the Veterans’ Corps, I was not placed on guard duty, but, with six others, was detailed to carry messages about the court room. These were largely to and from the War Department. Colonel Richard Watts, having been appointed acting adjutant general, had in charge ‘all messages sent out of the court room. My duties at the court were not arduous, and I had ample time, therefore, for observation and to follow the details of the trial.”
“Prior to, and during the long trial, I had ample opportunity to observe the prisoners. Of the eight, Mrs. Surratt was the most interesting… At the time of the trial she was about forty-five years of age and more than ordinarily handsome. She always appeared heavily veiled, a circumstance that must have been irritating to General Wallace, a member of the military commission, who spent much time sketching the prisoners. She had the appearance of a cultured, refined woman, and, in spite of the trying ordeal, bore herself in a courageous manner, at times appearing even stolid and resigned to her fate.”
“Second in interest only to Mrs. Surratt was Lewis Powell, who, at the time of the trial, went under the name of Lewis Payne… His close fitting garb showed beneath in his every movement the wonderful play of his powerful muscles. He appeared to have no knowledge of the word fear, gazing fully with his dark eyes into the faces of the commission without the least wavering… To the guards Powell was invariably courteous, affable, and uncomplaining, and of the prisoners, easily the most agreeable… I was told by some of the guards attending the prisoners that Powell was especially likable and good natured, although apparently, he was intimate with none of the other suspects.”
“Perhaps the most miserable of the assassins was George Atzerodt, a German who spoke English with great difficulty, and who was scarcely able to sign his own name… His figure was shambling, the body short though strongly built, the general appearance very slouchy, his mind slow, his intelligence below par…During the trial he sat with lowered shifting eyes like a cornered wild animal, appearing at times as if he knew very little of what was happening. He was a picture of shiftlessness, a man who invariably followed the easier path.”
“Herold was not prepossessing in appearance with his slender form and weak face, crowned with a shock of black hair. His conversation was jerky and flighty, his look furtive and his entire manner irresolute and cowardly.”
“With Powell, Dr. Mudd was one of the stronger minded of the prisoners. The doctor was nearing his fifties and had been for years a practicing physician near Bryantown, Md., where he owned and lived on a farm. Dr. Mudd was tall, rather spare in frame, slightly bald, had whiskers and mustache, and was well and neatly dressed, and possessed a keen and intelligent face… Dr. Mudd was sullen and continually complaining of the food served him, the treatment he was given, and the injustice of the charge lodged against him. Almost constantly, he protested his innocence.”
“[Spangler] was a man who, to judge from appearances, had seen the harder side of life…During his incarceration and during the trial, Spangler was conspicuous for no other reason than his huge appetite.”
“Michael O’Laughlin had been a confederate soldier and former schoolmate of Booth’s. He was about thirty years of age, very slight in his physical make up, dark complexioned, and very quiet in manner.”
“On June 28, 1865, I was discharged from the army and thus saved the spectacle of the execution of the conspirators”
“The prisoners are in good health, though they are noticeably paler and thinner in the face than when the trial began.”
“Judge Bingham proceeded with his argument on the case, which was listened to in profound silence, and the prisoners giving close attention.”
“The court meet to-morrow in secret session to render their verdict and pass sentence upon those whom they convict…Public opinion generally concurs in the belief that Payne, Abzerott and Harold only will be hung.”
“There was a large number of persons present, including many ladies, some of whom have been present nearly every day the trial has been in progress.”
 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), 133.
 It is remotely possible, but highly unlikely, that Reverdy Johnson returned to the courtroom on this day in order to hear Assistant Judge Advocate Bingham’s closing argument. In previous sessions of the trial, Reverdy Johnson’s absence was usually noted. On this specific day, the entry reads “Present: All the members, also the Judge Advocate, the Assistant Judge Advocates Bingham and Burnett, the accused and their counsel.” This can either imply Johnson’s presence on this date or a merely failure to note his absence. Since his name was also lacking from the record yesterday but his absence was noted in the newspaper, I choose to assume that he was likewise absent today. William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 1227.
 The World (New York, NY), June 29, 1865, 1.
 Michael W. Kauffman, American Brutus: John Wilkes Booth and the Lincoln Conspiracies (New York: Random House, 2004), 367 – 368.
 Hartranft, Letterbook, 133.
 John A. Bingham, Argument of John A. Bingham, Special Judge Advocate (Washington, D.C.: Government Printing Office, 1865), 121 – 122.
 Evening Star (Washington, D.C.), June 29, 1865, 2.
 Hartranft, Letterbook, 133.
 August V. Kautz, June 28, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
 Paul S. Lucas, The Burial of John Wilkes Booth and Trial of the Lincoln Conspirators as Told by James L. Lucas to Paul S. Lucas (Unpublished manuscript: Michigan State University, James L. Lucas manuscript).
 Boston Daily Advertiser (Boston, MA), June 29, 1865, 1.
 Evening Star (Washington, D.C.), June 28, 1865, 2.
 The World (New York, NY), June 29, 1865, 1.
 Evening Star (Washington, D.C.), June 28, 1865, 2.