Wednesday, May 10, 1865
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Court convened at 10:00 am.
Present: All nine members of the military commission, Judge Advocate General Joseph Holt, Assistant Judge Advocates Bingham and Burnett.
On arriving to court, General Comstock and Colonel Porter discovered orders which relieved them from the commission. The reason given was that they were both senior aides to General Grant and since Grant was thought to have been a target for assassination, it would be improper for them to remain as judges. In reality, it appears that Comstock’s vocal opposition to the manner of the trial aided in their removal. General Comstock and Colonel Porter were replaced by:
Brevet Brigadier General James A. Ekin, U.S. Volunteers
Brevet Colonel Charles H. Tompkins, U.S. Army
There would be no more changes to the commission members after this date.
The members of the commission were then duly sworn by Judge Advocate General Holt. General Hunter, president of the commission, then swore in the Judge Advocate General and his two assistants, Bingham and Burnett.
Though, at this point the trial was closed to the press, the commission did employ shorthand court reporters to take down an accurate record of the proceedings. The men engaged in this task consisted of:
Dennis F. Murphy
These men were duly sworn in by the JAG.
At 11:45 am, the conspirators were brought into the courtroom, this time having had the hoods they were forced to wear while in their cells removed before entering. The conspirators were seated in the same places as the previous day. The conspirators placed on the prisoners’ dock were accompanied by Army soldiers who were placed on both sides of them as guards. All of the male conspirators, except Dr. Mudd, wore rigid, Lilly iron handcuffs. Dr. Mudd wore traditional chain handcuffs. All of the conspirators, including Mrs. Surratt, wore chains on their ankles with some being attached to iron balls. The illustration below shows the way the conspirators were seated on this date and the day before. It was created by the talented artist and historian, Jackie Roche. Please click the image for more detail.
The order on the prisoners’ dock for this date consisted of, from left to right, a guard, David Herold, a guard, Lewis Powell, a guard, Edman Spangler, a guard, Michael O’Laughlen, a guard, George Atzerodt, a guard, Samuel Arnold, and a guard by the window. Like yesterday, there was not enough room on the dock for the remaining two conspirators, Mrs. Surratt and Dr. Mudd, and so they were placed in chairs in front of the railing.
The conspirators were made aware of the changes to the commission and then asked, individually, if they objected to any one of the commissioners. Each conspirators replied, “No”.
Still without counsel, the conspirators were then arraigned on the charge and specification against them. The charge and specification can be read, in full, here by clicking here or on the image above. In short, all eight of the conspirators were charged with conspiring with John Wilkes Booth and other named and unnamed individuals to assassinate President Abraham Lincoln, Vice President Andrew Johnson, Secretary of State William Seward, and General Ulysses S. Grant. The specification portion laid out the way in which each individual contributed to John Wilkes Booth’s conspiracy.
The accused were then asked to enter their pleas. All eight conspirators pleaded “Not Guilty” to both the charge and specification against them.
The commission then set the rules for the proceedings. The rules were as follows:
The commission will hold its sessions in the following hours: Convene at 10 A. M., and sit until 1 P.M. and then take a recess of one hour. Resume business at 2 P. M.
The prisoners will be allowed counsel, who shall file evidence of having taken the oath prescribed by act of Congress, or shall take said oath before being admitted to appear in the case.
The examination of witnesses shall be conducted on the part of the government by one Judge Advocate and by counsel on the part of the prisoners.
The testimony shall be taken in short hand by reporters who shall first take an oath to record the evidence faithfully and truly, and not to communicate the same or any part thereof, or any proceedings on the trial, except by authority of the presiding officer.
A copy of the evidence taken each day shall be furnished the Judge Advocate General, and one copy to the counsel of the prisoners.
No reporters but the official reporters shall be admitted to the courtroom. But the Judge Advocate General will furnish daily in his discretion to the agent of the Associated Press, a copy of such testimony and proceedings as may be published pending the trial without injury to the public and the ends of justice. All other publications of the evidence and proceedings is forbidden, and will be dealt with as contempt of Court on the part of all persons or parties concerned in making or procuring such publication.
For the security of the prisoners and witnesses, and to preserve order and decorum in the trial and proceedings, the Presiding Officer will furnish a pass to counsel, witnesses, officers, and such persons as may be allowed to pass the guard and be present at the trial. No person will be allowed to pass the guard without such pass, which, for greater precaution, will be counter signed by the Special Provost Marshal in attendance upon the Court.
The Argument of any motion will unless otherwise ordered by the Court, be limited to five minutes by one Judge Advocate, and counsel on behalf of the prisoners. Objections to testimony will be noted on the record, and decided upon argument limited as above, on motions. When the testimony is closed, the case will be immediately summed up by the Judge Advocate at the discretion of the Judge Advocate General, and be followed or opened if the Judge Advocate General elects by Counsel for the prisoners, and the argument shall be closed by one Judge Advocate.
The argument being closed, the Court will immediately proceed duly to deliberate and make its determination
The Provost Marshal will have the prisoners in attendance during the trial and be responsible for their security. Counsel may have access to them in the presence, but not in the hearing, of a guard.
The Counsel for the prisoners will immediately furnish the Judge Advocate General with a list of witnesses required for the Defense, whose attendance will be procured in the usual manner.
After establishing the rules for the commission, the court adjourned for the day at around 1:00 pm to allow the conspirators additional time to find counsel.
General Comstock’s described his removal from the commission in his diary:
“[Horace] Porter & I went down to court & found an order releasing us from the Court. We were both very much delighted. During the day Mr. Stanton sent us word through Gen. Grant that it was no reflection on us, but that we were members of Gen. G’s staff. He was one of the objects of assassination.”
General Kautz made the following diary entry on this day:
“The Court met again this morning and we proceeded so far as to be enabled to swear the Court and have the charges read…We are likely to have a long siege of duty on the commission. The weather continues raining.”
In his later memoirs, General Kautz recalled the events of this day in more depth:
“On the 10th the Commission got so far as to swear the members, and have the charges read, and the pleadings of the prisoners entered. Gen. Hunter was the presiding officer. I was the third member in rank and sat on the left of the President. Gen Lew Wallace sat on his right and Gen. Foster of Indiana sat on my left. There were three Judge Advocates, Genl. Holt, Genl. Burnett & Genl. Maj. Bingham. There were some changes; Genl. Comstock met on the first day with the commission and did not appear again. We ^had^ Mr. Pittman and the Murphy brothers as short hand reporters, and I was surprised at the facility, rapidity & correctness with which the work was done. They were able to read the record as rapidly quickly as any other writing and we were able to make rapid progress.”
Colonel Porter commented on his dismissal from the commission in his later memoirs:
“I was appointed a member of the court which was to try the prisoners. The defense, however, raised the objection that as I was a member of General Grant’s military family, and as it was claimed that he was one of the high officials who was an intended victim of the assassins, I was disqualified from sitting in judgment upon them. The court very properly sustained the objection, and I was relieved, and another officer was substituted.”
Conspirator Samuel Arnold also recalled this day of the trial in his later memoir:
“The court of military inquisition was convened, the charge read to each by Assistant Judge Advocate Bingham, who asked if we had any objection to any member of the court. As it was useless to object, each replied in the negative. I pleaded ‘not guilty’ to the charge. After the pleading of each of those arraigned was over, the hoods were placed upon our heads as formerly before removal from court, and I was removed amidst the clanking of irons again to my cell to wait there until the next morning.”
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 Benn Pitman, comp., The Assassination of Abraham Lincoln and the Trial of the Conspirators (New York: Moore, Wilstach & Baldwin, 1865), 21.
 Merlin Sumner, ed, The Diary of Cyrus B. Comstock (Madison: Morningside, 1987), 317 – 318.
 August V. Kautz, May 10, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers, 1846 – 1939).
 August V. Kautz, Reminiscences of the Civil War (Unpublished manuscript: Library of Congress, August V. Kautz Papers, 1846 – 1939).
 Samuel Bland Arnold, Memoirs of a Lincoln Conspirator, ed. Michael W. Kauffman (Bowie, MD: Heritage Books, 1995), 58 – 59.
 Horace Porter, Campaigning with Grant (New York: The Century Co., 1906), 501.
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