Saturday, May 13, 1865
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Proceedings
Court assembled at 10 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 Aiken, Clampitt, Ewing, and Stone.
Seating chart:
The conspirators were seated in the same manner as the day before:
“Along the wall on the west side, on raised seats, were Dr. Mudd, David C. Herold, Lewis Payne, Edward Spangler of Ford’s Theatre, Michael O’Laughlin, Atzerott and Samuel Arnold. Sitting outside the railing was Mrs. Surratt, leaning on a small green baize table beside her… One police officer sat beside each prisoner.”[19]
The reading of the prior day’s testimony occurred taking two hours to complete.
Judge Advocate General Joseph Holt stated to the commission that the rule precluding press from the courtroom was only required due to the sensitive nature of yesterday’s testimony which needed to be kept from the public. Holt believed that testimony from this point onward could be given openly. Holt suggested that the president of the commission, General David Hunter, could begin granting permits for reporters and others to gain entry to the courtroom.[2] The suggestion was agreed to and the first outside press and visitors were to be allowed into the courtroom following the commission’s normal break for lunch.
While Holt made it seem as if he, himself, had made the decision to open up the courtroom to the public, he was likely ordered to do so by President Andrew Johnson. It appears that General Grant, who testified the day before, did not like the secret nature of the trial. Gen. Comstock, one of the men removed from the commission ostensibly because he was a member of Grant’s staff (but more likely because he openly opposed the jurisdiction and secrecy of the court) noted in his diary that he and General Grant made a late night appearance to President Johnson on the evening of May 12th.
“Pm. went with General to see President & get him to open commission doors.”[3]
Given Holt’s complete change of heart on this day of the trial, it appears that the application by Grant and Comstock had been effective.
In the meantime, conspirator Samuel Arnold presented Thomas Ewing, Jr. to act as his counsel.
Ewing was now representing both Arnold and Dr. Mudd.
Acting on behalf of his new client, Thomas Ewing, asked permission to remove his client’s earlier pleas of “Not Guilty” to the charge and specification against him since it was done before Arnold had representation. This was allowed. Ewing then presented a plea against the jurisdiction of the court, echoing the similar motions made by Mary Surratt, David Herold, and Dr. Mudd’s lawyers the day before. JAG Holt replied once again by stating that the military commission had the proper jurisdiction to try this case.
The courtroom was cleared while the commission deliberated on this matter. When it reconvened, JAG Holt announced that the commission had overruled Arnold’s plea. Arnold then re-entered his pleas of “Not Guilty” to the charge and specification against him.
Ewing then attempted the same gambit he had tried in Dr. Mudd’s case and presented an application for Samuel Arnold to receive a separate trial from the other conspirators. This application was similarly overruled.
Michael O’Laughlen presented his counsel:
George Atzerodt presented his counsel:
Lewis Powell presented William Doster to act as his counsel as well. Doster was now representing both Atzerodt and Powell. At this point the only conspirator still without any legal representation was Edman Spangler.
Testimony began
James B. Merritt, a native of Canada, was recalled after having testified the day before about overhearing Confederate agents in Toronto and Montreal making plans to assassinate Union leaders. Merritt was recalled for cross examination by the defense attorneys. Merritt reiterated having seen David Herold in Canada in February of 1865.[4] Merritt’s entire testimony was later discovered to be perjury.[5]
During James Merritt’s testimony he was asked to identify a picture of Herold which had been shown to him. This picture was entered into evidence as Exhibit 8.
Break
At one o’clock, the court adjourned for lunch. During this break outside reporters and visitors gained admittance into the trial room for the first time. After lunch concluded, court reconvened at two o’clock.[6]
Mary Surratt then applied to the commission to introduce Maryland Senator Reverdy Johnson as an additional lawyer on her behalf.
The admission of Johnson as a counselor was challenged by a member of the commission, General Thomas Harris. Harris felt that Johnson failed to, “recognize the moral obligation of an oath that is designed as a test of loyalty.”[7] This was a reference to Johnson’s actions in 1864 where he spoke out against Marylanders being required to take an oath of allegiance before being allowed to vote. Harris took exception to Johnson’s views and a back and forth continued between the two men for a time. Johnson told the commission that:
“I have taken the oath in the Senate of the United States, the very oath that you are administering; I have taken it in the Circuit Court of the United States; I have taken it in the Supreme Court of the United States; and I am a practitioner in all the courts of the United States in nearly all the States; and it would be a little singular if one who has a right to appear before the supreme judicial tribunal of the land, and who has a right to appear before one of the legislative departments of the Government, whose law creates armies, and creates judges and courts-martial, should not have a right to appear before a court-martial.”[8]
The court was cleared to allow the commission to deliberate on the matter. When it reassembled, JAG Holt read a statement from General Harris withdrawing his objection to Reverdy Johnson’s admission. Johnson was admitted as a counselor for Mary Surratt. The Washington Weekly Chronicle pointed out how the verbal sparring was replicated outside on the grounds of the Arsenal:
“During the discussion the detonation and screeching of shells fired in practice punctuated the arguments of the learned counsel and his courteous opponent.”[41]
Testimony resumed
John Lee, a detective with the D.C. Provost Marshal, was assigned by Provost Marshal James O’Beirne to search the rented room of George Atzerodt at the Kirkwood House hotel following the assassination. Lee testified about his search of Atzerodt’s room and the many items he found contained within it, including articles connected to John Wilkes Booth and David Herold.[9]
The following items were identified by Lee as being found in Atzerodt’s room and were entered into evidence as exhibits.
Exhibit 9 – a black coat
Exhibit 10 – a loaded and capped pistol
Exhibit 11 – an Ontario bank book for $455 under John Wilkes Booth’s name (pictured above). Inside the bank book was an envelope bearing a frank of Sen. John Conness of California
Exhibit 12 – a map of the Southern States
Exhibit 13 – a white handkerchief with “Mary E. Booth” on it (Marion Edwina Booth was a niece of John Wilkes Booth)
Exhibit 14 – a white handkerchief with “F. M. Nelson” on it (Frederick M. Nelson was a brother-in-law of David Herold)
Exhibit 15 – a white handkerchief with the letter H in the corner (the H was likely for Herold)
Exhibit 16 – a pair of gauntlets
Exhibit 17 – a colored handkerchief
Exhibit 18 – three boxes of Colt cartridges
Exhibit 19 – a piece of licorice
Exhibit 20 – a toothbrush
Exhibit 21 – a spur
Exhibit 22 – a pair of socks and two collars
Exhibit 23 – a bowie knife
Louis J. Weichmann, a lodger at Mary Surratt’s D.C. boardinghouse and former classmate of John Surratt’s, was one of the government’s key witnesses against Mary Surratt. In this, the first of four days that he would take the witness stand, Weichmann testified at length about a variety of subjects including: his early friendship with John Surratt and subsequent boarding with his family; his and John Surratt’s first meeting of John Wilkes Booth by the way of Dr. Mudd; the subsequent frequency of Booth’s visits to the Surratt boardinghouse to meet and talk with John and Mrs. Surratt; the lodging of conspirator Lewis Powell in the Surratt house under the alias of a Baptist preacher; his witnessing of weapons and supplies laid out in John Surratt’s bedroom; his acquaintance with some of the other conspirators due to their visiting of the Surratt house; the movements of John Surratt; and his escorting of Mrs. Surratt down to her tavern on the day of the assassination.[10] When discussing John Wilkes Booth’s introduction to John Surratt by way of Dr. Mudd, Weichmann fixed the date as around the 15th of January of 1865. This was an error on Weichmann’s part as Dr. Mudd had introduced the men when he was in D.C. on December 23, 1864. This error of dates would later be used by Dr. Mudd’s attorneys during the defense portion of the trial. Mary Surratt’s counsel, Reverdy Johnson, asked questions of Louis Weichmann but departed the courtroom before his testimony was complete.
At the conclusion of Weichmann’s testimony a motion was made to adjourn for the day. After some discussion, however, it was decided to postpone adjournment and continue with testimony.[43]
Robert R. Jones, the bookkeeper at the Kirkwood House hotel, testified about George Atzerodt’s renting a room at the hotel the morning of the murder. Jones was also present with Detective Lee when the room was later searched and helped identify the items found in the room.[11]
During his testimony, Jones presented the page from the Kirkwood House register which contained the name of “G. A. Atzerodt, Charles County”. This sheet was entered into evidence as Exhibit 24.
The Judge Advocate General then called John M. Lloyd to the stand. Before taking the stand, Frederick Aiken applied to have the examination of Lloyd postponed until the next day’s session. Aiken explained to the court that Lloyd’s testimony would be of the gravest importance to the case of Mrs. Surratt and that her senior counsel, Reverdy Johnson, had departed the courtroom for the day. JAG Holt objected to the delay stating that Mrs. Surratt had two counselors still present. The commission overruled the application and Lloyd was sworn in.[12]
John M. Lloyd, the tenant of Mrs. Surratt’s tavern, was the second key witness against Mary Surratt. In his testimony on this date, Lloyd testified about: the conspirators bringing weapons and supplies to the tavern; Mrs. Surratt coming down to her tavern in the week prior to the assassination mentioning the weapons would be needed soon; Mrs. Surratt dropping off a package at the tavern on the day of the assassination and telling Lloyd to have the shooting irons and other things ready that night; the arrival of John Wilkes Booth and David Herold to the tavern after shooting the President; and his interactions with detectives after the assassination.[13] Lloyd was quiet on the stand and was often requested by the court to “speak louder.”[44]
Though John M. Lloyd had not completed his testimony, one of the commissioners made a motion to adjourn for the evening and resume Mr. Lloyd’s testimony during the next session of the court. Since the court did not meet on Sundays it was proposed Lloyd continue his testimony on Monday, May 15th. This was agreed to and the court was adjourned at around 6 o’clock.[14]
Recollections
From General Kautz’ diary:
“We met promptly at ten this morning. Were two hours reading the record. Gen. Harris objected to Reverdy Johnson as counsel that gave rise to a lengthy discussion. We did not therefore take much evidence. We did not adjourn until half past six o’clock.”[15]
From General Kautz’ later memoirs:
“The leading incident of the 13th was the objection of Genl. Harris, one of the members, to the introduction of the Hon. Reverdy Johnson as counsel for Mrs. Surratt. The objections were that he had sympathized with the author of the Rebel element in Maryland. Mr. Johnson, when the opportunity was given him to say a few words, his his Mr. Johnson’s indignation was very manifest by his flushed face but his remarks were quiet and dignified, and full of irony, and showed the ill advised nature of the objection in such a light that Genl. Harris must have regretted that he had made the objection. If he had had any sense of the absurdity of a Court or Commission, such as ours, raising an objection to a member of the U. S. Senate, appearing before it ^as^ a counsel on the ground of disloyalty. Mr. Johnson did not do us the honor to appear before us again after this insult to his dignity. He did the other members great injustice if he supposed they united with Genl. Harris in his ill advised objection.”[16]
John Clampitt, one of Mrs. Surratt’s counsel, wrote about the Commission’s treatment of Reverdy Johnson in a later article:
“The object of all this was to drive him from the defense, which was successful. Although, after his speech and manner, they dared not openly drive him from the court-room, and therefore rejected the motion of General Harris, yet the object was accomplished; for Senator Johnson, deeply wounded, retired from the courtroom and eventually from the case, appearing no more in person, but presenting through the writer his powerful argument on the jurisdiction of the Military Commission.”[38]
Gen. William Doster, many years later, recalled the manner in which he was hired to represent George Atzerodt:
“On May 12, 1865, being at that time engaged in the trial of causes before military courts at Washington, I was retained for the defense of Atzerodt, by his brother, a detective on the force of Marshal McPhail of Baltimore…It is a remarkable instance of the discord of civil war that this same brother… had both given the information which lead to his brother’s arrest ad paid for his defense after he was arrested. Atzerodt’s brother-in-law was one of McPhail’s deputies and was placed in the same double character of helping to denounce and helping to defend his relative…The whole family were Germans, and were much troubled, between the desire to prevent being complicated with the guilt of George, and the desire to help him out of his scrape.”[17]
Doster also recalled the manner in which he became Lewis Powell’s lawyer:
“The prisoner Payne being without counsel, the Assistant Judge Advocate, General Burnett, requested me to take his case, also, as he had about as much of a chance to get off, as the other, that is — none at all. This I, at first, refused to do, on the ground that I had my hands more than full with one, considering the excited state of public feeling, and that, in fact, this was a contest in which a few lawyers were on one side, and the whole United States on the other — a case in which, of course, the verdict was known beforehand. I finally allowed my name to go down for Payne temporarily, but with the understanding that as soon as he could secure counsel for himself, I might and would withdraw.”[18]
Newspaper Descriptions
This was the first day the trial was opened to outside press.
“A detective officer sat with the prisoners, for the purpose of keeping them from communicating with each other, and also for the purpose of making it necessary for each witness upon examination to point out individually those whom they were giving evidence for or against.”[20]
“The accused are all heavily ironed, hands and feet…”[21]
Mary Surratt
“This female was dressed in deep mourning, and sat closely veiled during the investigation.”[22]
“Mrs. Surratt is permitted to sit down near the table occupied by the court, at the side of her counsel, Reverdy Johnson, and has manacles only upon her ankles. She is a stout widow of sixty, and is closely veiled all day. During the first day of her appearance she exhibited great stolidity and defiance, but to-day for the first time she shed tears and was quite agitated when the testimony regarding herself was being taken.”[23]
“Mrs. Surratt has already been correctly described: a stout, buxom widow, befitting Fallstaff’s ideal, fair, fat and forty; although it is ascertained she is far beyond that period of life, having nearly reached her grand climactric. She was dressed in black, and looked a little flushed, but we failed to notice the cold, cruel gleam in her grey eyes, which some of the gentlemen of the press have attributed to her.”[24]
“Her feet were linked by irons, but her hands were free.”[40]
It should be noted that years later, there was much debate regarding whether Mrs. Surratt was forced to wear irons while imprisoned. Strangely, her two main defense lawyers, John Clampitt and Frederick Aiken, vehemently denied the idea that Mrs. Surratt was manacled in anyway. However from period newspapers and other visitors to the trial it is clear that Mrs. Surratt wore leg irons just like the rest of the conspirators, though it appears she never had to wear handcuffs of any kind.
Lewis Powell
“Payne, dressed in grey woolen shirt and dark pants, seemed more intent in trying to obtain a full view of the sunny landscape through the barred windows than of confining his attention to the details of the proceedings. As he looked, a strange, listless dreaminess pervaded his face. His dark hair, irregularly parted, hung over his face and often clouded his dark blue eyes. His thick, somewhat protruding lips, were as if glued together. His legs were crossed, and his ironed hands rested on the knee of the upper one.”[25]
“Payne, the individual who attempted the assassination of Secretary Seward was without coat or vest, and sat in his shirt sleeves. When his photograph was taken, on board the monitor, his hair was quite long, but now it is cropped quite close to his head. He has a very forbidding cast of countenance, and looks not unlike to a man who would do any desperate act he had his mind upon. His forehead is low and receding, and the top of his head appears almost flat. He is at least six feet in point of stature, and from his muscular build, is undoubtedly endowed with great strength.”[26]
“Payne, who attempted to murder the Seward family, was in his gray shirt sleeves, without a coat or vest. He is quite tall, hair fighting cut, bad face, forehead villainously low, and head almost flat in the moral regions. He meets one’s gaze with unflinching eye.”[27]
David Herold
When Louis Weichmann was asked to identify Herold in the courtroom:
“[Here Herold leaned forward, and, laughing, inclined toward the witness.]”[42]
George Atzerodt
“Atzerott sat sullen and morose.”[28]
“Atzerott is a German, five feet eight, and sits sullen and indifferent; had not much sensitiveness.”[29]
“Atzerott is a man of some five feet six inches in height, and had it not been for his manacles, he might have been taken for a mere spectator. He possess a style of face most common in the Southern gentry. His hair and beard are of the reddish sandy color. His eyes are light.”[30]
Dr. Mudd
“Dr. Mudd looked calm, collected and attentive, leaning on the railing that surrounded him as if to relieve his wrists from the weight of the handcuffs that encumbered them.”[31]
“Dr. Mudd, the most intelligent, is quite attentive and composed…”[32]
Samuel Arnold
“Arnold is nervous and fidgety, evidently frightened.”[33]
“Arnold was restless, raising his hands to his hair with a nervous twitching, and constantly varying the direction of his looks, now glancing from face to face, then bowing his head upon his hands, which was supported on his knees. His handcuffs were somewhat peculiar, not being connected as usual with a chain, but by a bar about eight inches in length.”[34]
Michael O’Laughlen
“O’Laughlin is alert, and has heavy black hair, with moustache and imperial.”[35]
“Laughlin was keenly observant of every move made in the court. He leaned back with his head against the wall, fully exposing his broad, but not high forehead, crowned with a full, bushy head of black hair. He has dark eyes and a pale, bloodless complexion, and wears a heavy moustache and wide imperial, both very black. On his knees he rested his manacles, which, like those of Arnold, were connected with an eight-inch iron bar.”[36]
Edman Spangler
“Spangler looks as if constantly trying to control himself.”[37]
“Spangler looked paralyzed, with head bent, eyes upon the ground, and body fixed as iron. There seemed to be a complete paralysis of his faculties.[39]
Visitors
In the Special Collections Department of the University of Iowa there is an autograph book assembled by an unknown visitor to the trial of the conspirators. The 44 signatures in the book consist of eight of the nine members of the military commission, some of the court reporters, and a large number of other military officers. Eight of the autographs in the book include the date of May 13, 1865 making it likely that most of the signatures were acquired on this date.
The following is the list of military officers outside of the commission whose signatures appear in the autograph book, suggesting their attendance to the trial on this day: George Meade, Joshua Chamberlain, Henry Halleck, Montgomery Meigs, C. C. Augur, Adam Badeau, Ely S. Parker, Frederick T. Dent, Francis C. Barlow, George H. Sharpe, Horatio Wright, Amos B. Eaton, John B. McIntosh, William P. Carlin, Francis Fessenden, Samuel S. Carroll, Alexander S. Webb, George Sullivan Dodge, Alexander B. Dyer, John Franklin Miller, Alfred L. Pearson, George D. Ruggles, Gershom Mott, George Nelson Macy, Daniel Henry Rucker, Frederick T. Locke, and former commission member Horace Porter.[45]
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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), 95.
[2] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 59.
[3] Merlin Sumner, ed, The Diary of Cyrus B. Comstock (Madison: Morningside, 1987), 318.
[4] Edwards, Court Transcripts, 61 – 63.
[5] Andrew J. Rogers, “Assassination of Lincoln Minority Report” (39th Congress, 1st Session, House of Representatives, Report No. 104, Washington, D.C., 1866), 36.
[6] Hartranft, Letterbook, 95.
[7] Edwards, Court Transcripts, 63.
[8] Ibid., 70.
[9] Ibid., 71 – 76.
[10] Ibid., 76 – 104.
[11] Ibid., 104 – 107.
[12] Ibid., 107.
[13] Ibid., 107 – 121.
[14] Hartranft, Letterbook, 95.
[15] August V. Kautz, May 13, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[16] August V. Kautz, Reminiscences of the Civil War (Unpublished manuscript: Library of Congress, August V. Kautz Papers).
[17] William E. Doster, Lincoln and Episodes of the Civil War (New York: G. P. Putnam’s Sons, 1915), 257, 273.
[18] Doster, Lincoln and Episodes, 257.
[19] Boston Daily Advertiser (Boston, MA), May 15, 1865, 1.
[20] Daily Constitutional Union (Washington, D.C.), May 13, 1865, 2.
[21] New-York Tribune (New York, NY), May 15, 1865, 1.
[22] Union, May 13, 1865, 2.
[23] Tribune, May 15, 1865, 1.
[24] The Philadelphia Inquirer (Philadelphia, PA), May 15, 1865, 1.
[25] Inquirer, May 15, 1865, 1.
[26] Union, May 13, 1865, 2.
[27] Tribune, May 15, 1865, 1.
[28] Union, May 13, 1865, 2.
[29] Tribune, May 15, 1865, 1.
[30] Advertiser, May 15, 1865, 1.
[31] Inquirer, May 15, 1865, 1.
[32] Tribune, May 15, 1865, 1.
[33] Tribune, May 15, 1865, 1.
[34] Inquirer, May 15, 1865, 1.
[35] Tribune, May 15, 1865, 1.
[36] The World (New York, NY), May 15, 1865, 1.
[37] Tribune, May 15, 1865, 1.
[38] John W. Clampitt, “The Trial of Mrs. Surratt,” North American Review 131(September 1880): 231.
[39] Washington Weekly Chronicle (Washington, D.C.), May 20, 1865, 1.
[40] Washington Weekly Chronicle (Washington, D.C.), May 20, 1865, 1.
[41] Washington Weekly Chronicle (Washington, D.C.), May 20, 1865, 1.
[42] Washington Weekly Chronicle (Washington, D.C.), May 20, 1865, 2.
[43] Washington Weekly Chronicle (Washington, D.C.), May 20, 1865, 3.
[44] Washington Weekly Chronicle (Washington, D.C.), May 20, 1865, 3.
[45] Trial of the Lincoln conspirators autograph album, May 1865 (Special Collections Department, University of Iowa Libraries).
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The prisoner Payne “as he had about as much of a chance to get off, as the other, that is — none at all.” (Assistant Judge Advocate, General Burnett.) This passage pretty much sums up the trial and this is on day 4 of the trial. No surprise Payne was just gazing out the window.
General Cyrus Comstock has been an intriguing player in your fascinating posts. I am compelled to wonder how the deliberation would have gone differently had he remained on the commission. His removal is revealing itself to be a detriment to the shred of due process in this proceeding.