Thursday, June 8, 1865
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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, Walter Cox, William Doster, Thomas Ewing, and Frederick Stone.
Absent: Reverdy Johnson and John Clampitt.
Seating chart:
The prisoners were seated in the same manner as the day before.
The reading of the prior day’s testimony was completed at 12:40 pm.[2]
Before witnesses began, Thomas Ewing, lawyer for Dr. Mudd, Samuel Arnold, and Edman Spangler, offered into evidence General Orders No. 26 dated February 2, 1863. These orders from the War Department established the borders of the military district known as the Department of Washington.
General Orders No. 26 were accepted into evidence as Exhibit 82.
Judge Advocate General Joseph Holt offered into evidence General Orders No. 141 dated September 25, 1862. These orders from President Lincoln, ordered that “all rebels and insurgents, their aiders and abettors” were, “subjected to martial law, and liable to trial and punishment by courts-martial or military commission.” The orders also suspended the writ of habeus corpus to, “all persons arrested…by any military authority, or by the sentence of any court martial or military commission.” In addition to these orders, JAG Holt included a certificate from Edwin Stanton dated May 30, 1865, verifying that the legitimacy of the orders.
General Orders No. 141 and the corresponding certificate from Edwin Stanton were entered into evidence as Exhibit 83.
Judge Advocate Holt then offered into evidence General Orders No. 100 dated April 24, 1863. These orders from the Adjutant General’s office were “instructions for the government of the armies of the United States in the field.” The 26 page document dealt with all matters of war and conduct including martial law, spies, and military commissions.
General Orders No. 100 were entered into evidence as Exhibit 84.
Frederick Aiken, lawyer for Mrs. Surratt, than applied to have a telegraphic affidavit from actor John McCullough entered into evidence. The affidavit was taken down in Montreal, Canada, before the vice-consul of the United States and, in it, McCullough contradicted the testimony of Louis Weichmann who claimed to have seen McCullough in John Wilkes Booth’s room on April 2nd. During the proceedings on June 5th, Thomas Ewing had successfully managed to get a telegram from McCullough testifying to his absence from D.C. on the date in question entered into evidence. Aiken’s attempt to get McCullough’s full, sworn affidavit to this matter was objected to, however, by Assistant Judge Advocate John Bingham. Bingham argued that the point of McCullough’s presence or absence in D.C. was entirely immaterial and, therefore, Weichmann could not be contradicted on it. Both Bingham and Judge Advocate General Holt quoted legal precedent in support of their objection, something they likely did not have prepared when Ewing entered McCullough’s telegram into evidence. In the end, Aiken was not allowed to enter John McCullough’s swore affidavit into evidence.[3]
Testimony began
John C. Holland, a Provost Marshal for the Fifth District of Maryland, was called as a defense witness for Dr. Mudd. Holland was asked about prosecution witness Daniel J. Thomas – the man who claimed Dr. Mudd told him that Lincoln, his cabinet, and all Union men were to be killed. Holland testified that he had a slight acquaintance with Thomas who he had commissioned as an unofficial detective. Thomas was to act as a spy of sorts, ratting out draft dodgers and deserters in Charles County in exchange for rewards allowed by law, but he was never officially under the employ of the government. Thomas Ewing asked if Thomas had written any letters to Holland concerning Dr. Mudd and the threats he allegedly made regarding Lincoln. Holland stated that he never received any such letter from Thomas. The only letter Holland had from Thomas was dated February 9th, a month prior to Dr. Mudd’s alleged words, and dealt with Dr. George Mudd not Dr. Samuel Mudd.[4] In his testimony, Daniel J. Thomas claimed he had written to Holland about Dr. Mudd’s words. Holland’s testimony proved this to be a lie.
Break
At the conclusion of Holland’s testimony, the court decided to take its normal one hour recess for lunch. During this time all of the conspirators were returned to their cells. At 2 o’clock, the court reassembled and testimony was resumed.[5] At this point John Clampitt appeared in court.
Testimony resumed
J. Alexander Brawner, a hotel keeper in Port Tobacco, Maryland was called as a defense witness for George Atzerodt. Brawner testified that he had known Atzerodt for about six or eight years. William Doster, Atzerodt’s attorney, asked Brawner if he had seen Atzerodt in Port Tobacco near the beginning of March. Brawner stated that at either the end of February or the beginning of March Atzerodt was in Port Tobacco and the two men rode out into the country together. When asked about Atzerodt’s reputation for courage, Brawner agreed that Atzerodt was a notorious coward. He recalled that when little barroom scrapes occurred and guns were drawn, Atzerodt “made pretty good time” getting out of the way.[6] The question regarding Atzerodt’s whereabouts near the beginning of March was to counter the testimony of Marcus Norton who claimed to have seen George Atzerodt in conversation with John Wilkes Booth at the National Hotel on March 2nd or 3rd.
John H. Baden, a farmer in Prince George’s County, Maryland, testified as a defense witness about the poor reputation of prosecution witness Daniel J. Thomas. Baden stated that Thomas was a very untruthful man and that he would not believe Thomas even under oath. During cross examination, the prosecution got Baden to agree that he had never heard of Thomas swearing falsely under oath, only in his casual remarks.[7]
Break
General David Hunter, president of the commission, asked the defense if they had any more testimony to offer. Thomas Ewing, lawyer for Dr. Mudd, Samuel Arnold, and Edman Spangler, replied that there were 8 witnesses he had summoned, all of whom lived within 25 miles of Washington, but that none of them had made their appearance today.
William Doster, lawyer for Lewis Powell and George Atzerodt, inquired with the prosecution if any progress had been made in forcing the attendance of some of the witnesses he had summoned. Doster specially named three witnesses, Judge Olin, Marcus Norton, and Henry Burden, that he had summoned for Atzerodt. He had been informed by two of these men that they had received the summons, but they had still not appeared. Doster also stated that he had been informed by Dr. Nichols, the physician he had tasked with determining Lewis Powell’s sanity, that a prognosis could not be reached until the doctor knew more about Powell’s personal history which is why he asked for a greater effort to be made to retrieve his out of state witnesses. Judge Advocate General Holt asked the court to issue an order to compel the attendance of the three witnesses mentioned by Doster in Atzerodt’s case.[8] Two of them would be brought in later today to testify.
Testimony resumed
Francis “Frank” Farrall, a farmer living in Charles County, Maryland, was called as a rebutting witness for the prosecution. Farrall testified that his home was about halfway between Dr. Mudd’s farm and Bryantown. On Saturday, April 15th, Dr. Mudd came to his house between 4 and 5 o’clock in the evening, riding alone. Farrall was being visited by another neighbor named John Hardey, and Dr. Mudd wanted to speak with him about acquiring some timber. After these two men had some conversation for a bit, Hardey called into the house for Farrall to come out. It was then that Farrall was informed by Dr. Mudd that President Lincoln had been assassinated. At this point in Farrall’s testimony, Thomas Ewing, Dr. Mudd’s attorney, objected. He stated that this was not proper rebuttal testimony since no testimony of this kind had been brought out by the defense in their case. Judge Advocate General Joseph Holt replied that while the prosecution had only learned about this event after they had closed their case against Dr. Mudd, the confession of a defendant was always considered competent evidence. In addition to that, Holt stated his opinion that what Farrall had to say would serve as proper rebuttal evidence. The court sided with Holt and Ewing’s objection was overruled. Farrall continued with his narrative regarding how Dr. Mudd informed him that Lincoln, Seward, and his son had been assassinated. When Farrall asked who had killed the President, Dr. Mudd said, “a man by the name of Booth.” According to Farrall, John Hardy then asked Dr. Mudd if it was the same Booth who had been in the area last fall. Dr. Mudd replied that, “he did not know whether it was or not… [but] if it was that one, he knew him.” Dr. Mudd was only at Farrall’s house for about 15 minutes before departing. Even before being cross examined by the defense, Farrall recalled that Dr. Mudd seemed very sadden by the news. Farrall told Ewing that Dr. Mudd expressed that Lincoln’s death was a very bad thing for the country and that he showed great sorrow over it.[9] Farrall’s testimony was very damaging to Dr. Mudd’s defense as it poked big holes in Ewing’s case that the identity of Lincoln’s assassin was not known when the doctor visited Bryantown. Dr. Mudd sharing the news of Lincoln’s death and confirming that Booth was the man who did it, unraveled a lot of work.
Break
Faced with a lack of witnesses for both the defense and the prosecution, the court decided to take a recess until 4 o’clock.[10] It appears the conspirators were kept seated in the courtroom during this time.[11]
Testimony resumed
Louis B. Harkins, a tailor in Port Tobacco, Maryland, was called as a defense witness for George Atzerodt. Harkins recounted that he had known Atzerodt for about ten years. Doster asked Harkins if Atzerodt had been in Port Tobacco at the end of February or beginning of March. Harkins stated he did see Atzerodt for a day or two around that time, but that he could not fix the date. When asked about Atzerodt’s reputation in the community, Harkins stated that Atzerodt was a good natured fellow but that no one gave him much credit for courage.[12]
Edward Frazer, a steamboat worker residing in St. Louis, Missouri, was called as a prosecution witness. Frazer testified about his role as a boat burner for the Confederacy. In 1863, Frazer had been recruited by Confederate agents into a larger plot to burn steamboats carrying Union freight and men along the Mississippi River. Frazer could name at least four Union steamboats that had been burned as a result of the group he worked with. The boats were usually owned by private individuals that had been commissioned by the U.S. Army. Frazer noted that the burning of one ship, the Robert J. Campbell, Jr., in the middle of the river resulted in a “considerable” loss of life including children. The burning of a Union hospital in St. Louis was also attributed to the Confederate group. In August of 1864, Frazer visited the Confederate capital of Richmond, met with Confederate cabinet members including President Jefferson Davis, and secured payment of $50,000 for the services that had been rendered.[13] Edward Frazer’s testimony had nothing to do with the conspirators on trial and he was not cross examined by the defense. As William Edwards and Edward Steers, Jr. state in their edited volume The Lincoln Assassination: The Evidence, the purpose of Frazer’s testimony was to demonstrate that, “if Davis could approve the burning of boats with civilians and wounded soldiers aboard, he could approve the assassination of President Lincoln.”[14]
John F. Hardey, a farmer living in Charles County, Maryland, was called as a rebuttal witness for the prosecution after previously testifying on May 29th. Hardey largely reiterated the prior testimony of Frank Farrall. Hardey recalled that he was visiting his neighbor Farrall on April 15th, when Dr. Mudd rode up and talked with him. The two men were first discussing some timber that had been promised to Dr. Mudd for use as fence rails but had been given to another neighbor because Dr. Mudd had not come and picked them up. It was then that Dr. Mudd shared the news that he had heard in Bryantown. Dr. Mudd told Hardey and Farrall that Lincoln and Seward had been assassinated. Hardey recounted that Dr. Mudd seemed very saddened by this news but reaffirmed that the name Booth was mentioned by Dr. Mudd as one of those responsible for the crime. Hardey asked if it was the same Booth who had been in the area, and Dr. Mudd replied he did not know if it were him or one of his brothers. Dr. Mudd then departed. Hardey was asked other questions pertaining to Booth’s visits to Charles County in November and December. Hardey had seen Booth outside of church around this time and at a different date saw Booth riding a horse around the neighborhood of Horsehead.[15] During cross-examination, Hardey repeated that Dr. Mudd seemed sincerely sorry regarding the news of Lincoln’s death, which was the best thing Thomas Ewing could salvage from this testimony for his defense of Dr. Mudd.
Eli J. Watson, a resident of Prince George’s County, Maryland, was called as a defense witness for Dr. Mudd. Watson testified that he had known prosecution witness Daniel J. Thomas since childhood and that Thomas’ reputation for honesty was very poor. He also recounted how, on June 1st, he was in his field when Daniel Thomas approached him. Thomas stated that he was going around and informing people who might be summoned to the court in order to support his testimony or character. Thomas believed Watson would be one of those people called to support him. Thomas also stated that another neighbor had sworn an oath regarding his testimony and that he expected to get a portion of the government’s reward.[16] Rather than coming to support Daniel Thomas, Eli Watson joined the many other neighbors who testified against him to the benefit of Dr. Mudd.
Marcus P. Norton, a patent lawyer from Troy, New York, was recalled for further cross-examination after previously testifying for the prosecution on June 3rd. Norton was one of the men that William Doster, George Atzerodt’s attorney, had requested be forced to appear in court earlier in the day. Norton had testified that he had stayed at the National Hotel and that he had seen John Wilkes Booth (who also stayed there) in conversations with George Atzerodt. Norton claimed that he could recall parts of a conversation the two men had on March 2nd or 3rd, as they sat somewhat near him. Doster’s line of attack was to discredit Norton’s seemingly amazing memory and powers of recall. Doster asked how Norton knew John Wilkes Booth with Norton replying he had seen him on the stage several times. However, when Doster pushed Norton to give him specific times, periods of the year, and even the plays he saw Booth in, Norton was unable to do so. Doster criticized Norton for allegedly being able to remember parts of a random conversation between two other people and yet not remember any specifics regarding his own familiarity with the famous actor Booth. Doster asked Norton if he had seen Booth in the company of anyone else other than the prisoners during his time at the National Hotel. Norton replied that he had and specifically mentioned, “the daughter of the Hon. John P. Hale,” as being one of the people in the company of Booth. This was a surprisingly accurate statement from Norton as John Wilkes Booth and Lucy Hale were secretly engaged and both residents at the hotel. However, Doster was not bothered by this one piece of fact and asked Norton to recall any other conversations he had heard between Booth and someone else during Norton’s residence at the National. To this question, Assistant Judge Advocate John Bingham objected stating that it was wholly immaterial. Doster countered that he was asking, “questions showing the degree of confidence we are to place in this man’s veracity. He has told us…that he remembered detached conversations between people he did not know for three months, a thing so remarkable, that I inquired into the character of the witness.” The court sustained Bingham’s objection and so Doster waived the question. Doster continued asking Norton questions but it became clear that Norton had had enough of this treatment as his answers became shorter and more curt. Eventually Doster finished his questions, believing his point had been made.[17]
Henry Burden, a noted inventor and engineer from Troy, New York, was called as defense witness for George Atzerodt. Like Marcus Norton, Burden had been forced to appear today due to William Doster’s earlier request. Burden testified that he knew the previous witness, Marcus Norton, and that Norton’s reputation in Troy was considered bad. Burden stated that he would not believe Norton under oath. During their cross-examination, the prosecution asked Burden about his association with Norton. Burden admitted that he first met Norton in a legal dispute regarding one of Burden’s patents. Norton was the lawyer representing the party against Burden. However, Burden stated this his negative opinion of Norton did not stem from the legal case but from the general opinion of the people of Troy. Burden alluded to some other legal case where Norton was impeached and that his reputation in Troy had soured considerably due to that.[18]
After the completion of Henry Burden’s testimony, the court adjourned at around 5 o’clock.[19]
Recollections
From General Kautz’ diary:
“The Commission met at the same as heretofore but we could not do much for want of witnesses. The weather was intensely warm.”[20]
General William Doster, lawyer to Powell and Atzerodt, recalled in his later memoirs the difficulty he had with the format of the military commission:
“There were minor circumstances against the defense. The prosecution had had a month assisted by the whole war power of the Government, its railroads, telegraphs, detectives, and military bureau to get its evidence into shape. The prisoners did not receive their charges until the day the trial opened and then they could only communicate sitting in chains, with a soldier on each side, a great crowd surrounding them, and whisper through the bars of the dock to their counsel. Had counsel been closeted with the prisoners for weeks, with the charges in their hands and the war power of the Government at their disposal, the odds might have been more even.
Counsel were not independent. In all military courts they are only tolerated. Here they were surrounded by bayonets and seated in a penitentiary. Every paper they read abused them. The judges could not be challenged. They were not peers, but high military officers. The names of witnesses were not given the prisoners. Tendencies, not facts, were admitted. The court, not knowing anything about the rules of evidence, ruled out practically everything the judge advocates objected to and admitted everything the counsel objected to.”[21]
Newspaper Descriptions
“Several reluctant witnesses for the defence of the assassins on trial at Washington, who had disregarded the summons of the court, were arrested by the Provost-Marshal. Among those arrested was Judge Olin.”[22]
Mrs. Surratt
“Mrs. Surratt still hides her face with her veil and fan.”[23]
Visitors
“The number of visitors at the Court daily grows smaller and smaller, which fact is gratifying to the reporters and others transacting business as the Court.”[24]
“The conspiracy Court was very uninteresting to-day. Considerable time was lost in waiting for witnesses, and no new facts were developed, or any rebutting testimony for the defense that amounted to anything. Some little growling was had because the witnesses for the defense would not come promptly.”[25]
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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), 119.
[2] Evening Star (Washington, D.C.), June 8, 1865, 2.
[3] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 1046 – 1049.
[4] Edwards, Court Transcripts, 1049 – 1051.
[5] Evening Star (Washington, D.C.), June 8, 1865, 2.
[6] Edwards, Court Transcripts, 1051 – 1052.
[7] Ibid., 1052 – 1053.
[8] Evening Star (Washington, D.C.), June 8, 1865, 2.
[9] Edwards, Court Transcripts, 1053 – 1056.
[10] Evening Star (Washington, D.C.), June 8, 1865, 2.
[11] Hartranft, Letterbook, 119.
[12] Edwards, Court Transcripts, 1056 – 1057.
[13] Ibid., 1057 – 1062.
[14] William C. Edwards and Edward Steers, Jr., ed, The Lincoln Assassination: The Evidence (Chicago: University of Illinois Press, 2009), 566.
[15] Edwards, Court Transcripts, 1062 – 1066.
[16] Ibid., 1066 – 1067.
[17] Ibid., 1067 – 1071.
[18] Ibid., 1071 – 1074.
[19] Hartranft, Letterbook, 119.
[20] August V. Kautz, June 8, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[21] William E. Doster, Lincoln and Episodes of the Civil War (New York: G. P. Putnam’s Sons, 1915), 260.
[22] Boston Daily Advertiser (Boston, MA), June 9, 1865, 1.
[23] Daily National Republican (Washington, D.C.), June 8, 1865, 2.
[24] Daily National Republican (Washington, D.C.), June 8, 1865, 2.
[25] The Philadelphia Inquirer (Philadelphia, PA), June 9, 1865, 4.
The drawing of the conspirators as they were seated on the prisoners’ dock on this day was created by artist and historian Jackie Roche.
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The Aiken-Bingham exchange on this date over the admissibility of the McCullough affidavit reveals a clever bit of legerdemain on the part of the JAG prosecutor. Aiken wanted the document admitted into evidence to further discredit Wiechman’s testimony that Mary Surratt and Booth had had a private conference on 4-2-65. Bingham responded that not only was the document inadmissible on legal grounds but that Anna Surratt had already confirmed under oath that that meeting had taken place. That’s incorrect, as all Anna had attested to was that Booth had briefly encountered her mother just before she made her last trip to Surrattsville on 4-14-65.