Friday, May 12, 1865
Court assembled at 11 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 Stone, Ewing, Aiken, and Clampitt.
The conspirators were seated in the same manner as the day before.
The record of the prior day’s session was read and approved.
David Herold presented Frederick Stone to act as his counsel.
Stone now represented both Dr. Mudd and Herold.
The lawyers present applied to the commission to allow them to remove their clients’ earlier pleas of “Not Guilty” so they could plead, instead, against the jurisdiction of the commission. The commission sought the advice of the JAG Joseph Holt who stated he did not object to the request but that the counsel could easily argue against the commission’s jurisdiction even under the “Not Guilty” pleas.
The court was cleared to allow the commissioners to deliberate on the request, though JAG Holt remained. The court was then re-opened and approval was given for the accused to remove their guilty pleas. Through their lawyers, David Herold, Mary Surratt, and Dr. Mudd withdrew their pleas of “Not Guilty”.
Frederick Stone challenged the jurisdiction of the court on behalf of his client, David Herold. “…this court has no jurisdiction in these proceedings against him, because he says he is not & has not been in the military service of the United States, and further because loyal civil courts in which all of the offenses charged are triable exist and are in full and free operation in all the places where the several offenses charged are alleged to have been committed.”
In response, JAG Holt presented a short reply starting essentially that, “…this Commission has jurisdiction” as set forth by the Attorney General in the initial order from the President to create this commission.
The court was then cleared to allow the commission to deliberate. The court was then reopened. JAG Holt announced that the commission had decided to overrule the plea against the jurisdiction of the court. Having failed at this gambit, David Herold then re-entered his “Not Guilty” pleas to the charge and specification against him.
Frederick Aiken and John Clampitt, on behalf of their client, Mary Surratt, presented a plea against the jurisdiction of the commission. The plea duplicated the same claims as had been on David Herold’s plea. JAG Holt replied with the same response as before. The commission overruled the plea. Mary Surratt re-entered her “Not Guilty” pleas. The same exact circumstances then occurred when Frederick Stone and Thomas Ewing, presented a plea against the jurisdiction of the commission on behalf of Dr. Samuel Mudd. It was overruled and Dr. Mudd’s “Not Guilty” plea was re-entered.
After failing in their challenge to the commission’s jurisdiction, Stone and Ewing then presented an application to have Dr. Mudd tried separately from the other conspirators. JAG Holt asked Mudd’s lawyers to state the grounds on which they made this application. Ewing stated that Mudd, “believed that his interests would be prejudiced on the trial by being associated with the other accused.” JAG Holt replied that all of the charged crimes were committed in a conspiracy in which Dr. Mudd was a party so that it was proper to try them all together. The commission agreed with JAG Holt and overruled the application.
Henry Von Steinaecker, an immigrant from Prussia, enlisted in the Union army in 1861 under the name Hans Henry Von Winkelstein. He deserted from the Union after a couple of months and, in 1863, joined the Confederacy. He was captured by the Union in 1864 and was held at the Old Capitol Prison and Fort Delaware. Von Steinaecker testified about having met John Wilkes Booth in 1863 in Virginia. According to von Steinaecker, Booth came among the lines of Confederate General Edward Johnson’s staff among the Stonewall Brigade. There, Booth communicated with the military officials about the proposed assassination of Lincoln. Von Steinaecker’s testimony had nothing to do with the eight conspirators on trial but demonstrated how the prosecution was also making the case that Confederate authorities were behind Lincoln’s death. They did this using several witnesses of questionable histories and veracity. Von Steinaecker’s testimony granted him release from prison and despite the defense’s later desire to recall him, he was not found. Other witnesses were later brought in by the defense to counter his claims. His testimony is believed to have been perjury.
Mary Hudspeth, a resident of Harlem, testified about seeing two suspicious looking gentlemen on a street car in New York in November of 1864. The pair dropped two letters which Mrs. Hudspeth picked up and read before forwarding them onto to General John Dix. One letter, addressed to “Louis” and signed “Charles Selby” describes how the addressee has been assigned the task of killing Lincoln, “Abe must due, and now. You can choose your weapons, the cup, the knife, the bullet.” The second letter is unrelated to the first, is addressed to “Dear Husband” and signed “Leenea”, and implores an absent husband to return home. The letters eventually found their way to Lincoln who kept them in an envelope in his desk marked “assassination”. Mrs. Hudspeth testified her belief that one of the two men was John Wilkes Booth wearing fake whiskers. It is very unlikely that this event involved John Wilkes Booth or his conspiracy in any way.
George Wilberforce Bunker, the desk clerk at the National Hotel (pictured below), provided testimony regarding John Wilkes Booth’s residence at the National Hotel from 1864 until the President’s murder. Bunker identified Michael O’Laughlen as someone who often called on Booth at the hotel. Bunker used the hotel books to create a memorandum of Booth’s arrivals and departures from the hotel.
The memorandum of Booth’s stays at the National Hotel is entered into evidence as Exhibit 4
William E. Wheeler, a resident of Chicopee, Massachusetts, stated he saw John Wilkes Booth in “October or November” of 1864 in Montreal, Canada. Wheeler was former Union soldier who had deserted in 1864. He surrendered himself on May 3, 1865 in response to President Lincoln’s March 11th proclamation granting pardons to deserters who returned to their regiments before the 10th of May. Wheeler was brought to Washington arriving at 6:00 am the day of his appearance at the trial. Wheeler testified that he saw Booth making conversation with George N. Sanders in Montreal.
John Deveney, was in Montreal, Canada from July 1864 – February of 1865. In 1862, Deveney had been commissioned as a Lieutenant in the 4th Maryland Infantry but resigned from the Union army only two months later. He later fled to Canada in order to avoid the draft. Deveney testified about seeing John Wilkes Booth in Montreal during which time he had conversations with George N. Sanders and possibly others. Deveney also testified about seeing Booth in Washington on the day of Lincoln’s assassination and about being at Ford’s Theatre when Lincoln was killed.
“Dr.” James B. Merritt, a native of Canada, testified about meeting with well-known Confederate agents in Toronto and hearing them make plans to assassinate Lincoln and members of his cabinet. Merritt stated that George N. Sanders had a letter from Confederate President Jefferson Davis supporting the acts of assassination. The names Booth, Surratt and Plug Tobacco were used in connection with these assassination conversations. Merritt also testified as to seeing John Wilkes Booth in Montreal in October of 1864 and of seeing David Herold and John Surratt in Toronto in February of 1865. When, in April of 1865, Merritt learned that the assassination plans were going to be carried out, he went to a Justice of the Peace in Canada in an effort to prevent the President’s death but was told his accusations were absurd. It is important to note that when this testimony was finally released to the public in June of 1865, the Canadian authorities began investigating Dr. Merritt’s claims. They found no evidence to back up his story and also determined that he was not really a doctor. James Merritt later admitted that his testimony was perjury and that he had received over $6,000 from the government for his testimony.
At 1:00 pm, the court adjourned for a one hour break as per the rules. According to General Hartranft:
“…All the prisoners were taken back to their cells and rehooded except prisoners in 200 [Surratt], 176 [Mudd], and 170 [Arnold] who remained in the Court-room in consultation with their Counsel during the adjournment, under-guard and in presence of a Field Officer.”
At 2:00 pm, the court reconvened with additional reporters to the commission being sworn in in order to help take down testimony in shorthand and transcribe it into longhand. The new reporters consisted of:
James J. Murphy
Edward V. Murphy
During James Merritt’s testimony he produced a letter from a U.S. Provost Marshal which promised, “protection & security & to pay all expenses” connected with his journey from Canada. The letter also promised, “a suitable reward if reliable and useful information is furnished.” This letter was entered into evidence as Exhibit 5.
General Ulysses S. Grant, the late hero of the Union army, testified about meeting former U.S. Secretary of the Interior turned Confederate agent Jacob Thompson under a flag of truce in 1863. Grant was then asked about the military district around the city of Washington and its extent into Maryland. Frederick Aiken made it a point to ask the General if he was aware that the civil courts were in operation in the city, to which Grant replied he was aware.
Grant’s commission as lieutenant-general of the United States Army, dated March 4, 1864, was entered into evidence as Exhibit 6.
Joseph H. Simonds, a former bank teller in Boston, had been hired by John Wilkes Booth to act as his business agent in connection with his oil property investments in Venango County, Pennsylvania. Simonds testified about Booth’s oil property dealings and how he had lost approximately $6,000 from his failed oil wells. The purpose of this testimony was to show that Booth had failed in his legitimate oil ventures and any talk he had made regarding oil was actually in regards to his plot against the President.
Richard Montgomery, a resident of New York and self-professed federal spy, testified about being in Canada during the summer of 1864 and up to a couple weeks before the assassination. Montgomery testified at length about seeing and having conversations with several important Confederate agents such as George Sanders, Jacob Thompson, William Cleary, and Clement C. Clay regarding underground Confederate operations. While Montgomery claimed he never saw John Wilkes Booth in Canada, he did testify that he had been told by the Confederate agents that Booth was one of the men who would be willing to assassinate President Lincoln. Montgomery also claimed to have seen conspirator Lewis Powell in Canada in the company of Confederate agents. When Montgomery’s testimony finally made it to the press, Canadian authorities began investigating his claims. They found that many of Montgomery’s reports of people and places did not add up. Montgomery’s testimony was later proven to be perjury.
Richard Montgomery was presented with a Vigenère cipher table that had been found in John Wilkes Booth’s hotel room and was asked if it matched the ciphers used by the Confederate agents. This cipher was entered into evidence as Exhibit 7.
Samuel P. Jones, a blind man from Massachusetts, had spent two years living in Richmond during the war. During that time he testified about hearing the idea of assassinating Lincoln and other Union officials openly discussed among the Confederate officers in the camps. He made no connection to John Wilkes Booth but the effect of his testimony was to further support the idea that Confederate officials were conspiring to assassinate Lincoln as had been testified by the prior perjured witnesses, Merritt, Montgomery, and Von Steinaecker.
Samuel Knapp Chester, an actor and associate of John Wilkes Booth, testified that in November of 1864, Booth had approached him about becoming part of some unspecified “speculation”. Later, In December, Booth admitted to Chester that he was part of a large conspiracy to capture the heads of the Union government and take them to Richmond. Chester refused Booth’s invitation to join him but promised not to betray him. According to Chester, Booth never mentioned the Confederate government having any involvement in the plot. Booth wrote to Chester and continued to try and get him to take part in the kidnapping plot, but Chester refused. In February of 1865, Booth apparently told Chester the whole plan had been called off.
After the testimony of Samuel Knapp Chester, the court adjourned for the day at around 5:00 pm.
Some of the testimony that occurred on this day was originally suppressed as per line six in the commission’s rules of proceedings. Eventually, in June, the wife of court reporter Benn Pitman released this day’s missing testimony to the newspapers.
From General Kautz’ diary:
“We worked hard to day and took a great deal of evidence, some of it was very important, and implicates Jeff Davis, Jake Thompson & Sanders, Clay & Cleary etc in Canada…The Commission did not adjourn until near six o’clock.”
From General Kautz’ later memoirs:
“…on the 12th we got fairly started and worked all day accomplishing so much that it took two hours of the morning of the 13th to read the proceedings of the previous day.”
Captain Richard A. Watts was one of two aides-de-camp assigned to General John Hartranft, the officer in charge of the Old Arsenal Penitentiary. In April of 1914, Watts published a series of articles about the conspirators’ imprisonment and execution. Watts’ most detailed memory was in regard to General Grant’s attendance at the trial on this day:
“The most notable witness was Gen. U. S. Grant. His testimony was intended to establish the boundary lines of the military district, which included the city of Washington, and its purpose was to show that the assassination and conspiracy was within the authority of the military and thus born upon the jurisdiction of the military tribunal.
Our office, being upon the ground floor of the building, was first entered by the general. He came in alone, his escort remaining outside. This was the first time I had ever met General Grant face to face, and naturally I observed him very closely. I had formed the impression that the general was slow and cautious in both his physical and mental movements and was much surprised to find just the opposite characteristics. When notified that the court was ready for him, he darted out into the corridor and swiftly went up the stairs.
His swift motions nearly caused him a serious, if not fatal, accident at that time. The corridors to each of the three stories of the building were alike, with a door at the end of each, but the outside balcony at the third and second floors had been removed. When the general came downstairs into the second story corridor, seeing the door at the end, he started swiftly for it and barely saved himself from rushing out and falling fifteen to eighteen feet upon the stone steps at the entrance.”
Alfred C. Gibson was a 16 year old with the 215th Pennsylvania Volunteers who was assigned to General John Hartranft as a clerk during the imprisonment of the conspirators. In his later years, Gibson gave interviews to newspapers noting how he played quoits with the conspirators in the prison yard and how Michael O’Laughlen gave him gold cuff links before being sent to Fort Jefferson. While providing general comments about the trial, the only specific trial story Gibson related also dealt with General Grant, who testified on this date.
“General Grant was one of the witnesses at the trial, and I have been called ‘the only man who ever made General Grant stop smoking.’ It being an arsenal, there were signs posted prohibiting smoking. And as the general walked up and down the corridor with his pipe in his mouth, I considered it my duty to point out these signs to him.
‘I beg your pardon,’ I had the audacity to say to the commander of all the union armies, ‘did you read those?’
General Grant was a military man. He realized the disciplinary value of obeying orders, and he emptied his pipe, pocketed it and never again smoked during the trial.”
 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), 94.
 William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 12.
 Edwards, Court Transcripts, 13.
 Ibid., 14.
 Ibid., 14 – 17.
 Joseph George, Jr., “Henry Von Steinaecker and the Lincoln Conspiracy Trial,” Lincoln Herald 94, no. 4 (1992): 148-156.
 Edwards, Court Transcripts, 19.
 Ibid., 17 – 20.
 Ibid., 20 – 23.
 William C. Edwards and Edward Steers, Jr., ed, The Lincoln Assassination: The Evidence (Chicago: University of Illinois Press, 2009), 970.
 Edwards, Court Transcripts, 23 – 24.
 Ibid., 24 -27.
 Ibid., 27 – 34.
 Andrew J. Rogers, “Assassination of Lincoln Minority Report” (39th Congress, 1st Session, House of Representatives, Report No. 104, Washington, D.C., 1866), 36.
 Hartranft, Letterbook, 94.
 Edwards, Court Transcripts, 34 – 41.
 Ibid., 39.
 Ibid., 41 – 42.
 Ibid., 42 – 43.
 Ibid., 43 – 44.
 Ibid., 44 – 53.
 Thomas J. Reed, Avenging Lincoln’s Death: The Trial of John Wilkes Booth’s Accomplices (Madison (NJ): Fairleigh Dickinson University Press, 2016), 76 – 87.
 Edwards, Court Transcripts, 53 – 54.
 Ibid., 54 – 59.
 Hartranft, Letterbook, 94.
 August V. Kautz, May 12, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
 August V. Kautz, Reminiscences of the Civil War (Unpublished manuscript: Library of Congress, August V. Kautz Papers).
 Richard A. Watts, “The Trial and Execution of the Lincoln Conspirators,” Michigan History Magazine 6, no. 1 (1922): 94 – 95.
 Edna Gorman, “This Man, As a Boy Helped Convict the Assassin of Abraham Lincoln,” Tulsa World (Tulsa, OK), Sep. 3, 1922, 10.
The drawing of the conspirators as they were seated on the prisoners’ dock on this day was created by artist and historian Jackie Roche.