June 29, 1865

Thursday, June 29, 1865

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Proceedings

The court convened at 11 o’clock.[1]

Present: All nine members of the military commission, Judge Advocate General Joseph Holt, and Assistant Judge Advocates Bingham and Burnett.

Absent: The eight conspirators, the recorders of the court, and all of the defense lawyers.

This was the first day of deliberations in order to determine the guilt and sentencing of the eight conspirators on trial. All of the deliberations were done behind closed doors and the only people present were the nine commissioners and the members of the prosecution team who were there, ostensibly, to help the commissioners in matters of law.

It will be remembered that the conspirators were all facing one, overall charge along with more individualized specifications. The overall charge for each of them was that they had “treasonously” engaged in a conspiracy to plot the death of Abraham Lincoln and had then assisted in the carrying out of that plot on April 14, 1865. Defense attorney Thomas Ewing had aptly pointed out that the charge, as written, failed to delineate any real world crime as legally defined. Had the trial occurred in a civilian court rather than a military court-martial, the conspirators may have been charged with treason, criminal conspiracy, assault with intent to kill, aiding and abetting, etc., all of which had legally recognized punishments. The defense had filled their closing arguments with examples of the legally established sentences for these crimes. But courts-martial were different and their charges did not always follow civilian criminal codes. For example, a solider may be charged with drunkenness while on duty, which would not necessarily have a perfect counterpart in any civilian criminal code. Still, it was obvious to everyone, including the defense attorneys, that the charge essentially claimed that the conspirators were accessories before the fact in premeditated murder. The death penalty was prescribed for premeditated murder in D.C. in 1865 and, according to the District of Columbia Code, “accessories before the fact were considered to be the same as principals in the first degree.”[2] Thus all of the conspirators on trial faced the possibility of a death sentence if found guilty.

The commission had to determine both the finding in the case (guilty or innocent) and the sentencing for each conspirator. According to the rules of courts-martial, the first step was to review of the testimony in a specific conspirator’s case. “Every member should fully satisfy himself of the extent and value of the testimony on record…This is of importance where the case is intricate, or the testimony voluminous; and it is also a very useful practice for the judge advocate, in such cases, to prepare an index, or short notes of the evidence, in order that reference to the record may be made more easy.”[3] During this process of review, the commissioners were to, “indulge in a candid conversation upon the true meaning, or import, of the evidence recorded, and thus enable every member to hear and understand the arguments in favor of, or against giving it weight in their decision.”[4]

At the close of all review and deliberation in a specific conspirator’s case, the president of the commission, Gen. David Hunter, would then poll the other commissioners asking if they were ready to vote on the charge and specification. Once he received an affirmative from each commissioner, Gen. Hunter would order Judge Advocate General Holt or his Assistant Judge Advocates John Bingham or Henry Burnett, to take the vote. The Judge Advocate would then start by reading the specification against the conspirator first and then “address each member, beginning with the youngest,”[5] asking them if the prisoner was guilty or innocent of the specification. According to the rules of courts-martial, the commissioners did not state their vote openly, but wrote it upon a piece slip of paper which was given to the Judge Advocate.[6] After the votes on the specification were given and recorded, the Judge Advocate announced the verdict. This process was then repeated, this time asking about the overall charge. While the Judge Advocate was required to keep a record of all of these votes, no copy of specific votes for the Lincoln conspirators has been found to date.

According to the rules of courts-martial, “the majority of voices determines the conviction or acquittal of the prisoner,”[7] which means that, in the case of the conspirators, only 5 out of the 9 commissioners needed to vote guilty for a conviction. These first votes were only to determine findings on the specification and charge and did not have anything to do with the conspirator’s individual sentencing, which was the next step. However, it is important to point out that the ambiguous nature of the charge each conspirator faced very much came into play during these first votes. As mentioned before, the charge was not couched in any official criminal statute. This was likely done on purpose in order to help guarantee that the findings in the conspirators’ cases would be guilty. Had the charge been more directly connected to a civilian criminal code offense punishable by death, then the prosecution would have been stymied by the rule of courts-martial which stated that a two-thirds majority was required to convict “in such cases, as where (upon conviction) the law absolutely, and without discretion in the court, condemns him to suffer death.”[8] This means that if the charge had explicitly included a legally defined crime that was automatically punishable by death, then the threshold for a guilty conviction on the charge would have been higher, requiring 6 out of the 9 commissioners rather than the majority of 5. By lacking a legally delineated crime in the charge, but greatly implying that the ambiguous crime would warrant the death penalty, the prosecution was more easily able to secure guilty verdicts while leaving the door open to harsh sentences in some cases.

After determining the findings in a conspirator’s case, the commission then moved on to sentencing. From the rules of courts-martial it appears that the determination of sentences was less formally structured than the voting on findings. It is likely that the commission relied on the knowledge of the Judge Advocate General and his assistants for suggestions for possible punishments based on the accepted evidence in each case. Then, possible sentences are proposed and voted on by the commissioners. In order for a sentence of death to be approved, the vote had to be at least two-thirds of the commission. “If a member should vote for death, which is not carried by two-thirds of the court, he must vote some other punishment. All members must vote some legal sentence, and if that which any member votes for is not carried, some punishment must be voted till a majority agree as to one punishment.”[9]

Once a sentence received either a majority or, in the case of a death sentence, a two-thirds majority vote, the sentence was required to be written down in clear and unambiguous language. “The kind and degree of punishment shall be set forth definitely and precisely; and the mode of inflicting capital punishment should be designated.”[10] After this was done, the commissioners would then move on to the next conspirator’s case and repeat the entire process of review, deliberation, voting on the specification and charge, and sentencing.

If the record of the court’s findings represents the order in which the commissioners determined the conspirators’ individual cases, then they started with the case of David Herold. In addition to the overall charge of conspiracy in Lincoln’s murder, Herold’s specification stated that he had aided and abetted Booth in the killing of Lincoln and in his escape. To the specification and the charge, Herold was found guilty. However, the commissioners made an exception to part of the specification and charge. The rules of courts-martial allowed commissioners to include, “exceptions and modifications as may be thought just,”[11] when determining convictions. The commission found that Herold was not guilty of, “combining, confederating, and conspiring with Edward Spangler.” This exception is found on the findings of each of the other conspirators, demonstrating the commission’s belief that the prosecution had failed to prove that Spangler was involved in Booth’s conspiracy. Having found David E. Herold guilty of the charge and specification against him (minus for the part about Spangler) the commission sentenced him, “to be hung by the neck until he be dead, at such time and place as the President of the United States shall direct, two thirds of the members of the Commission concurring therein.”[12]

The note about, “two thirds of the Commission concurring therein,” should not be interpreted to mean that exactly two-thirds, or 6 of the 9 commissioners, voted for death. The rules for courts-martial required that specific language to be used regardless if the vote was two-thirds, unanimous, or something in between. All we can rightfully assume in the cases of the conspirators who were given death sentences was that they received a vote of at least six of the nine commissioners.

After David Herold, the court deliberated on the case of George Atzerodt. The specification against Atzerodt stated that he had lied in wait for Vice President Andrew Johnson with the intent to kill him. Like Herold, Atzerodt was found guilty of the specification and charge against him except for the portions involving Edman Spangler. George A. Atzerodt received the same sentence as Herold:

“The Commission does therefore sentence him, the said George A. Atzerodt, to be hung by the neck until he be dead at such time and place as the President of the United States shall direct, two thirds of the members of the Commission concurring therein.”[13]

The commission then moved on the case of Lewis Powell, alias Payne. Powell had the longest specification of all the conspirators as it noted his attempt to kill Secretary of State William Seward, Frederick Seward, Augustus Seward, George Robinson, and Emerick Hansell. Like the two men before him, Lewis T. Powell was found guilty of the charge and specification and sentenced, “to be hung by the neck until he be dead.”[14]

In the case of Michael O’Laughlen, the commissioners made an additional exception to the specification in addition to the universal exception of having confederated with Edman Spangler. While they found O’Laughlen guilty of the main part of the specification (which was identical for all of the conspirators and involved conspiring against the President) they determined he was not guilty of lying in wait to kill Gen. Ulysses S. Grant. O’Laughlen was still found guilty of the overall charge. However, unlike the prior three men, O’Laughlen was not given a death sentence. Instead, the court determined that Michael O’Laughlen should, “be imprisoned at hard labor for life at such Penitentiary as the President of the United States shall designate.”[15] Whether the court ever conducted a vote for death in O’Laughlen’s case is unknown. If they did vote on such a punishment, then the motion must have failed to receive a two-thirds majority. In order to receive life imprisonment, the commission only needed a majority vote.

The record implies that the commissioners deliberated on the case of Edman Spangler next. However, given the Spangler exception present in all of the previous findings, it seems clear that some discussion had already occurred regarding the Ford’s Theatre carpenter. Edman Spangler was the only one of the conspirators to be found not guilty of the charge of conspiracy. However, the commission did find Spangler guilty of the part of his specification which stated that he, “did aid and abet him (meaning John Wilkes Booth) in making his escape after the said Abraham Lincoln had been murdered.” It was relatively common in courts-martial, for a person to be found innocent of the charge but still guilty of one or more specifications. The sentencing portion of Spangler’s case only took into account his aiding and abetting of Booth’s escape after the fact. For this the commissioned determined that Spangler was, “to be confined at hard labor for the period of six years at such a Penitentiary as the President of the United States shall designate.”[16]

The commission then deliberated on the case of Samuel Arnold. The specification against Arnold merely added that Arnold did, “combine, conspire with, and aid, counsel, abet, comfort, and support” Booth and the other accused in the conspiracy against Lincoln. The commissioned found Arnold guilty of both the specification and the overall charge, minus the Spangler exception. The findings in Arnold’s case were nearly identical to the findings in O’Laughlen’s case and Samuel B. Arnold was likewise sentenced to be, “imprisoned at hard labor for life at such Penitentiary as the President of the United States shall designate.”[17]

The next case the commissioners adjudged would prove to be the most controversial in later years and may explain why no such record of voting exists today. The commission reviewed the evidence for Mary Surratt. The specification against Mrs. Surratt stated that, between March and April 20, 1865, she did, “receive, entertain, harbor, and conceal, aid and assist the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O’Laughlin, George A. Atzerodt, Samuel Arnold, and their confederates, with knowledge of the murderous and traitorous conspiracy aforesaid, and with intent to aid, abet, and assist them in the execution thereof, and in escaping from justice after the murder of the said Abraham Lincoln.”[18] To this specification, the commission found Mrs. Surratt guilty except for the parts regarding her having entertained, harboring, etc. Samuel Arnold, Michael O’Laughlen and Edman Spangler. The prosecution had not put forth any evidence to show that these men ever entered Mary Surratt’s home. On the overall charge of conspiracy, Mary E. Surratt was found guilty, minus the Spangler exception. With the findings having been adjudged, the commission then voted on punishment. “The commission does therefore sentence her the said Mary E. Surratt to be hung by the neck until she be dead at such a time and place as the President of the United States shall direct, two thirds of the members of the commission concurring therein.”[19] Thus, Mrs. Surratt was sentenced to death alongside that of David Herold, George Atzerodt and Lewis Powell.

In 1895, 30 years after the trial of the conspirators, John W. Clampitt was interviewed by a reporter with the Chicago Times-Herald for a story that was reprinted across the nation. Clampitt’s home in Illinois had burned down and the article lamented the loss of his papers, many of which dealt with Clampitt’s former client, Mary Surratt. As the only surviving lawyer to Mrs. Surratt, Clampitt was very defensive of her and his belief in her innocence. Clampitt was not present when the commissioners deliberated on her sentencing, but in the article he claimed the following:

“David Hunter was the president of the court-martial, and told me with his own mouth that the first vote of the commission in the case of Mrs. Surratt was not for capital punishment, whereupon both Holt and Bingham demanded that in the absence of the counsel for defense the testimony should all be read over again and such interpretation placed upon it as they thought best, none being there to object to such procedure. That was done in violation of all principles of law or equity in the trial of such cases, and Judge Advocate General Holt moved that the same judgement of the court-martial administered upon the others be visited upon Mrs. Surratt…”[20]

It is important to note that Clampitt blamed Judge Advocate General Holt for Mary Surratt’s execution and often lambasted him in the press. Clampitt’s claims regarding the deliberation of Mrs. Surratt’s case need to be taken with a deal of skepticism.

After concluding Mary Surratt’s case, the commission then proceeded to the case of Dr. Samuel Mudd. The specification against Dr. Mudd stated that he did, “advise, encourage, receive, entertain, harbor, and conceal, aid and assist the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O’Laughlin, George A. Atzerodt, Mary E. Surratt, and Samuel Arnold, and their confederates, with knowledge of the murderous and traitorous conspiracy aforesaid, and with the intent to aid, abet, and assist them in the execution thereof, and in escaping from justice after the murder of the said Abraham Lincoln.”[21] Of the specification, the commission found Dr. Mudd guilty except for the part stating that he had received, entertained, harbored, and concealed Powell, John Surratt, O’Laughlen, Atzerodt, Mrs. Surratt, and Samuel Arnold. In truth, the prosecution had never brought forth any evidence that Dr. Mudd had harbored any of the other conspirators besides John Wilkes Booth and David Herold during their escape and John Surratt at some point previous to the period of conspiracy. Of the overall charge, Dr. Samuel A. Mudd was found guilty, minus the Spangler exception.

The rules of courts-martial state that commissions, “may adjourn from day to day, to consider their finding or sentence.”[22] This is unlike civil juries which are required to come to a verdict before they can adjourn. Taking advantage of this aspect of courts-martial, the commission decided to end for the day before they had decided upon Dr. Mudd’s sentence. This adjournment gave the commissioners time to consider the proper punishment for Dr. Mudd and also allowed them to reflect on the findings and sentences already adjudged for the other conspirators. These findings were not final until they were submitted for approval and could, therefore, be changed during the next session.

The court then adjourned for the day with orders to meet the next day, June 30th, at 11 o’clock to finish their deliberations.[23]

Recollections

From General Kautz’ diary:

“The Commission met at eleven and we got along very amicably but did not finish. We meet tomorrow morning at eleven.”[24]

Newspaper Descriptions

“This case, which must rank in all coming times among the cases celebre of the world may now be considered closed, so far as the public is concerned, until the announcement of the findings, which it is understood will be made at the earliest practicable moment.”[25]

Visitors

Though the courtroom was closed off due to the ongoing deliberations of the commissioners, John Atzerodt presented a pass to visit his brother George in his cell. The Atzerodt brothers conversed from 3:15 to 4:30 pm.[26]

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[1] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 1211.
[2] Thomas J. Reed, Avenging Lincoln’s Death: The Trial of John Wilkes Booth’s Accomplices (Madison (NJ): Fairleigh Dickinson University Press, 2016), 160.
[3] William C. DeHart, Observations on Military Law and the Constitution and Practice of Courts Martial (New York: D. Appleton & Co., 1864), 173.
[4] DeHart, Observations, 174.
[5] Ibid., 177.
[6] Ibid., 186.
[7] Ibid., 178.
[8] Ibid.
[9] Ibid., 191.
[10] Ibid., 196.
[11] Ibid., 186.
[12] Edwards, Court Transcripts, 1211.
[13] Ibid.
[14] Ibid., 1212.
[15] Ibid.
[16] Ibid.
[17] Ibid., 1213.
[18] Ibid., 8.
[19] Ibid., 1213.
[20] “Mrs. Surratt’s Story” Oregonian (Portland, OR), April 8, 1895, 3.
[21] Edwards, Court Transcripts, 8 – 9.
[22] DeHart, Observations, 193.
[23] Edwards, Court Transcripts, 1213.
[24] August V. Kautz, June 29, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[25] Evening Star (Washington, D.C.), June 29, 1865, 2.
[26] 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), 134.

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