May 22, 1865

Monday, May 22, 1865

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The court convened 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, and Frederick Aiken, counsel for Mary Surratt.

Absent: Lawyers John Clampitt, Walter Cox, William Doster, Thomas Ewing, Reverdy Johnson and Frederick Stone.

Today was the first example of an action that would perturb the Judge Advocate General and members of the commission. In order to avoid having to sit through the prolonged reading of the prior day’s testimony, several of the lawyers for the accused would arrive late to the trial. On this day, only Frederick Aiken was present when court opened.

Seating chart:

“The prisoners at ten o’clock were brought into court in the following order; first was Arnold, accompanied by a guard, and seated on the north end of the bench, next to the open window; next came Dr. Mudd, also accompanied by a guard, who was seated next to Arnold; next came Spangler, accompanied by a guard, and seated next to Mudd; next came O’Laughlin, with a guard, and was seated next to Spangler; next came Atzerodt, accompanied by a guard, and was seated next to O’Laughlin; next came Payne, with a guard, and seated next to Atzerodt; next came Herold, with a guard, who was seated on the end of the bench next to the door; next came Mrs. Surratt, who was seated in the southeast corner of the room, and at the end of the prisoners’ dock, Mr. Jno. E. Roberts, one of Colonel Baker’s men, occupied a seat at the gate of the prisoners’ dock…Between each prisoner was seated a guard.”[2]

Judge Advocate General Joseph Holt announced that before reading through Saturday’s testimony, he wished to examine the same witness that had testified in secret session on that day. This was agreed to and the court room was cleared of everyone except the commissioners, conspirators, prosecution, Frederick Aiken, and the official court reporters.[3]

Testimony began

Sandford Conover, the perjurer who appeared before the commission on May 20, testified about Dr. Luke Blackburn and his attempt to instigate germ warfare against the United States by “infecting” clothing with Yellow Fever. Blackburn had just been arrested himself a few days earlier in Canada and the details of his plot to send the infected clothing to New York and other Northern cities were heavily publicized in the press. Conover stated that he saw Dr. Blackburn in conversation with Confederate agents Jacob Thompson, George N. Sanders, William C. Cleary, and others. Conover also rehashed his testimony from yesterday connecting those same Confederate agents with the plot to assassinate Lincoln.[4] Interestingly, Conover did provide one piece of testimony which turned out to be accurate. When asked about his knowledge of John Surratt’s whereabouts after the assassination, Conover stated that he saw Surratt in Montreal in the company of John Porterfield, a Nashville baker turned Canadian merchant. During his escape, John Surratt had been temporarily hidden at John Porterfield’s residence. Like his testimony regarding Dr. Blackburn, however, Conover’s knowledge of Surratt’s movements likely had less to do with firsthand knowledge and more to do with research. Louis Weichmann, who was sent to Canada after the assassination in search of Surratt, had testified on May 13th that he had learned that Surratt had been at John Porterfield’s home. Conover’s testimony on this day shows his skill at including enough true facts gleaned from other sources to make his firsthand lies seem plausible.

At the conclusion of Conover’s testimony, the doors to the court room were reopened. Defense attorneys John Clampitt, Walter Cox, William Doster, Thomas Ewing, and Frederick Stone arrived at that time. Newspaper reporters and visitors also flocked into the courtroom. The court experienced a large influx of visitors on this date. This was due to the fact that the Grand Review of the Armies, a large celebratory military parade, was scheduled to start on the next day. Several military officers, politicians, and civilians visiting D.C. for the parade stopped by the trial on this day and in the days following the Review.

The reading of the prior session’s testimony occurred (not including Conover’s secret testimony) and was completed at around 12:45 pm.[5]

Testimony resumed

Honora Fitzpatrick, a lodger at Mary Surratt’s boardinghouse, was asked by the prosecution about some of the visitors to Mrs. Surratt’s home during the month of March. Fitzpatrick stated that she saw John Surratt, John Wilkes Booth, Lewis Powell, and George Atzerodt at the boardinghouse at various times. She identified the latter two sitting on the prisoner’s dock. Fitzpatrick also answered questions about how she, accompanied by another boarder named Apollonia Dean, went to Ford’s Theatre with John Surratt and Lewis Powell. During the performance the group was seated in one of the boxes and was visited by John Wilkes Booth.[6]


At the conclusion of Nora Fitzpatrick’s testimony, court took its normal one hour recess for lunch. During this time the conspirators were returned to their cells. At 2 o’clock, the court reassembled and testimony was resumed.[7]

Testimony resumed

Captain Edward P. Doherty, the commander of the 16th New York Cavalry detachment that cornered John Wilkes Booth, was asked about the arrest of David Herold. Doherty narrated the events of finding Booth and Herold in the Garretts’ tobacco barn and Herold’s subsequent surrender. Frederick Stone, Herold’s lawyer, asked Doherty what words Booth spoke from the barn about Herold. Doherty testified that Booth “said that he was the only guilty man” implying Herold’s innocence.[8]

William E. Clever, a D.C. liveryman and veterinarian, testified that in January of 1865 John Wilkes Booth kept a one-eyed horse at his stables. John Surratt was a frequent visitor to Clever’s stables as well and John Wilkes Booth gave Surratt permission to ride his horse whenever he liked. Clever testified that he also saw George Atzerodt around the stables but not in company with Booth or Surratt. John Wilkes Booth told Clever at the end of January that he had sold the one eyed horse to Samuel Arnold. On February 8th, Arnold paid Clever the livery fee for the horse and took it away. Clever was then ordered by the Judge Advocate to visit the government stables and make an examination of the horses there.[9]

James L. McPhail, the provost marshal for Baltimore, was recalled having testified twice before on May 18th. This time McPhail testified that Michael O’Laughlen had been a member of the Confederate army and presented the oath of allegiance O’Laughlen signed upon his return to the North. The oath was dated June 16, 1863 and was signed in Baltimore. Walter Cox, O’Laughlen’s attorney, objected to the oath being entered into evidence because James McPhail was not an expert on O’Laughlen’s handwriting. This led to JAG Holt to state that he did not intend to enter the oath into evidence.[10]

Dr. Tullio S. Verdi, the physician who cared for Secretary of State William Seward, testified about the scene at the Seward home after Lewis Powell’s attack. He described the deep wound of state department messenger Emerick Hansell who was stabbed in the back by Powell as he fled. Dr. Verdi also narrated the conditions that he found Frederick and William Seward to be in after the attack. William Doster, Lewis Powell’s lawyer, got Dr. Verdi to testify that very shortly after examining the Secretary he determined the wounds he suffered were not fatal. Doster also inquired of Dr. Verdi whether the wounds Secretary Seward suffered at the hands of Lewis Powell had actually aided in helping him recover from his former accident. To this claim Dr. Verdi demurred.[11]

Joseph “Peanut John” Burroughs, a Ford’s Theatre errand boy and concessions worker, was recalled after having previously testified on May 16th. Burroughs testified that in January, Edman Spangler had fitted up a small stables for John Wilkes Booth in the alley behind Ford’s Theatre. Inside the stables was room for a horse and a buggy. At first Booth kept a horse and saddle in the stables. Burroughs testified that Booth sold that horse and brought in a new one along with a buggy. On April 10th, John Wilkes Booth told Spangler that he wanted to sell the buggy. Burroughs helped clean the buggy up and accompanied Edman Spangler to a market where he tried to sell the buggy. Spangler could not get the price he wanted and return the buggy to the stables. On April 12th, Spangler told Burroughs he had sold the buggy to a liveryman.[12] Burroughs’ testimony was meant to demonstrate Edman Spangler’s relationship with Booth and, given the other conspirators’ association with Booth’s horses, imply Spangler’s connection in the conspiracy against the President.

James L. Maddox, the propmaster for Ford’s Theatre, testified that he had arranged the rental of the stables behind Ford’s Theatre for John Wilkes Booth. Maddox paid the monthly rent on the stables with money Booth gave him. Thomas Ewing asked Maddox several questions related to prior testimonies against Edman Spangler. Maddox testified that he saw Spangler in his place behind the scenes throughout the play, that he never saw Spangler in front of the building, and that, as far as he could remember, Spangler had never worn a mustache. Maddox also stated he had no knowledge as to the condition of the lock on the box’s door.[13] While called as a prosecution witness, Maddox ended up being far more valuable to Thomas Ewing as a defense witness for his client.


After the end of Maddox’s testimony, the court took a twenty minutes recess from 3 o’clock to 3:20 pm.[14] The conspirators likely remained on the prisoner’s dock during this time.

Testimony resumed

Lt. Reuben Bartley, a Union lieutenant with the Signal Corps, testified that he was a prisoner of war in Libby prison in Richmond from March 2 through July 16, 1864. Bartley stated that during his time in the prison he was told that the Confederates had buried a mine within the prison. He described an area in the cellar which no man could pass over or near. Bartley stated his understanding from his captors was that, if the Union army made an effort to break the prisoners out of Libby prison, the prison would be blown up rather than allowing the prisoners to escape.[15] Bartley’s testimony had nothing to do with the conspirators on trial but was an example of blackflag warfare on the part of the Confederacy.


After the testimony of Lt. Bartley, Gov. John Andrew of Massachusetts and Col. John Wetherell of his staff arrived to the court room. According to the newspapers, the court was briefly delayed as the commissioners greeted these guests:

“[Gov. Andrew, accompanied by Colonel Wetherell, here entered the court room, and was cordially received by each member of the Court]”[16]

Testimony resumed

Lt. Col. Richard B. Treat, the chief commissary of the Army of the Ohio, testified that he was tasked with delivering several boxes of material and papers from the Confederate War Department. The boxes had been seized from Confederate General Joseph Johnston after his surrender. Treat testified that he turned these materials over to Major Thomas Eckert at the War Department.[17]

Maj. Thomas Eckert, Chief of the War Department Telegraph Staff, was recalled having previously testified on May 12th and May 20th. Eckert supported the testimony of Lt. Col. Treat stating that he had received the boxes of Confederate War Department records from him the day before. Eckert stated that Frederick H. Hall, a clerk of the War Department, had made an examination of the records.[18]

Frederick H. Hall, a clerk in the War Department, testified that he examined some of the papers from the Confederate War Department described by the prior two witnesses. Hall presented a letter he discovered which was written by a Confederate lieutenant named W. Alston to Jefferson Davis in November of 1864. In the letter, Alston offers his services to, “rid my country of some of her deadliest enemies, by striking at the very hearts’ blood of those who seek to enchain her in slavery.”[19] The letter had nothing to do with the conspirators on trial and John Campbell, the Confederacy’s assistant Secretary of War, wrote a statement that “no attention was ever given to the letter” which was just one of many unsolicited and unanswered pieces of mail Jefferson Davis received.[20]

The letter from W. Alston, found in the archives of the Confederate War Department, was entered into evidence as Exhibit 64.

William E. Clever, the D.C. liveryman and veterinarian, was recalled having testified earlier in the day. Clever had visited the government stables as directed. He identified the one-eyed horse in the government’s possession as the same one that had been kept at his stables in January of 1865 and had been sold by John Wilkes Booth to Samuel Arnold.[21]

Judge Advocate General Holt then announced that there were very few witnesses remaining on the part of the government. According to Holt, the witnesses that the prosecution still wished to call would deal more the actions of the Confederacy and very little with the conspirators themselves. Holt suggested that the defense could proceed with their case. After conferring with the other defense counsels, Thomas Ewing stated their preference to have the government completely finish their case before the start of the defense. Holt then acknowledged that the government had no more witnesses in attendance today.[22]

Before closing for the day, some discussion occurred as to what course of action should be taken regarding the Grand Review of the Armies scheduled to occur on the following two days. The Philadelphia Inquirer described the debate:

“The Court adjourned to meet to-morrow as usual, notwithstanding the grand review. It appears to be the determination of the Court to push forward the trial with energy, and allow nothing to interfere with the discharge of its high and solemn duty. There seemed to be a disposition to adjourn over till Thursday, but General Ekin promptly moved that the Court proceed with its duty, which was at once endorsed.”[23]

After deciding to meet tomorrow as normal, the court adjourned at around 4 o’clock.[24]


From General Kautz’ diary:

“There was considerable more rain last night and the roads were very muddy this morning. The Commission met as usual, but the room was crowded with spectators all morning. We did not accomplish so much today and adjourned early.”[25]

Newspaper Descriptions

“A neat railing has been erected around the table, at which are seated the members of the Commission. This was rendered necessary by the large crowd of visitors at the court, who last week occupied every standing place in the court room and encroached upon the court. At the end of the reporters’ table are arranged a number of benches which are occupied by a large number of ladies. A row of benches extending along the south wall of the room are also occupied by ladies.”[26]

“Weary indifference and listless, dreamy drowsiness continue to characterize the male prisoners from Herold to Arnold”[27]

Mrs. Surratt

“Mrs. Surratt had her veil drawn over her face and sat with her head leaning against the wall, a large palm leaf fan in her left hand.”[28]

“Mrs. Surratt is still very much bowed with her troubles, and it is said she suffers nightly from frightful apparitions in her dreams.”[29]

“A great change has come over Mrs. Surratt. For the first time we read in unmistakable letters upon her still features the record of some ineffable woe. It is not fear, not the excitement of a mighty doubt, but withering, blasting woe. She occupied her old corner, her right cheek resting as usual upon her right hand, her eyes closed; but every now and again as she would raise her head to smooth back the parting hair on her forehead, her full face would meet the eye. One that face whatever apocalyptic sign may have evoked it, certain it is that thirty odd hours have sufficed to paint upon that face a haunting revelation of some horrifying sorrow similar to that which Guido’s art has stamped upon the beautiful features of Beatrice Cenci. Either from within or without, during the murky hours of the past Sabbath there has flashed upon that woman some awful vision, either of future woes or some new-lighted memory of a past tragedy.”[30]

Lewis Powell

“Payne, who sat next to Herold, was clad in dark pants and the dark blue flannel shirt, his tall form towering above the other prisoners.”[31]

David Herold

“Herold sat with his back against the end of the bench, and his eyes fixed on the reader.”[32]

George Atzerodt

“Atzerodt sat with his back against the wall and his head inclined to the front, with his arms resting on his knees.”[33]

Dr. Mudd

“Dr. Mudd was clad in a new brown linen coat, with a white handkerchief about his neck, and, like Spangler, presented a forlorn appearance. Last week he was in court without his coat – in his shirt-sleeves.”[34]

“Mudd, who during the hot weather, has come in his shirt sleeves, appears this afternoon in a brown linen coat, in compliment, perhaps, to the lady spectators.”[35]

Samuel Arnold

“Arnold, who sat next to the window, occupied most of his time gazing through the open window, with one hand rubbing his beard and through his hair.”[36]

Michael O’Laughlen

“O’Laughlin sat with his head against the wall and his eyes fixed on the reader most of the time.”[37]

Edman Spangler

“Spangler, who was next, sat with his eyes fixed on the floor most of the time, and presenting a most miserable appearance, seeming to be utterly hopeless.”[38]


“In five minutes after the doors were thrown open the room was densely crowded, a very large portion of the visitors being ladies.”[39]

“Upon the entrance of the prisoners, the spectators rose on tiptoe, and the usual ejaculations followed in regard to the different prisoners. The great curiosity amongst the lady visitors seems to be in regard to Payne. Mrs. Surratt and Herold come next in popular interest. The crush of spectators this evening was so great in the direction of the prisoners’ dock as to interfere with bringing in the prisoners, and the guards were forced to push the crowd back.”[40]

“Among the visitors at the court this morning were Brig. Gen. [John P] Slough, of Alexandria; Mr. [Horatio] Bridge, of the Navy, Chief of Bureau of Provisions and Clothing.”[41]

“During the time the prisoners were being taken out, the visitors, especially the ladies, rushed to the rail to have a good view of the prisoners.”[42]

“The court-room this afternoon was crowded; standing room was not to be found anywhere within the walls. Those in the background stood upon the backs of benches and chairs and in the windows. Every available place in the court-room was occupied. The reporters, and those having legitimate business at the court; were severely inconvenienced, not having room to perform their duties. Many of the reporters were unable to obtain seats and had to go away. A table as large again as the one occupied by the newspaper would not more than accommodate the reporters at the court. We hope this evil will be remedied by those having charge of the court.”[43]

“Shortly after the court came together, and before the proceedings had been resumed, the gallant Gen. [George A] Custer and his beautiful bride [Elizabeth Custer] entered the room, and they were made much of by the fellow officers of Gen. C. George Bancroft, the historian, was present this evening; also Senator [Zachariah T] Chandler and Hon. Mr. [Galusha A] Grow of Pennsylvania.”[44]

“Among the spectators were General [Winfield Scott] Hancock…”[45]

“Senator Chandler and Judge [Noah] Davis, of New-York, were visible.”[46]

“Among the visitors today were [Massachusetts] Governor [John A] Andrew and Colonel [John W] Wetherell of his staff, George Bancroft the historian, Senators [James H] Lane and Chandler, Hon. G. A. Grow, and Gen. Custer and his beautiful bride.”[47]

“The Court Room was intensely crowded and the weather being very warm, hundreds left after taking a look at the prisoners.”[48]

“The court room was crowded with spectators this afternoon to an extent greater than at any time before, and at some times the voices of the witnesses testifying was entirely drowned by the rustle of fans and the excited comments of the ladies on the physiognomy of the prisoners.”[49]

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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), 103.
[2] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[3] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 448.
[4] Edwards, Court Transcripts, 448 – 455.
[5] Evening Star (Washington, D.C.), May 22, 1865, 2.
[6] Edwards, Court Transcripts, 455 – 457.
[7] Evening Star (Washington, D.C.), May 22, 1865, 2.
[8] Edwards, Court Transcripts, 457 – 458.
[9] Ibid., 458 – 459.
[10] Ibid., 460 – 463
[11] Ibid., 463 – 465.
[12] Ibid., 465 – 466.
[13] Ibid., 466 – 470.
[14] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[15] Edwards, Court Transcripts, 470 – 471.
[16] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[17] Edwards, Court Transcripts, 471 – 472
[18] Ibid., 472.
[19] Ibid., 472 – 474.
[20] William C. Edwards and Edward Steers, Jr., ed, The Lincoln Assassination: The Evidence (Chicago: University of Illinois Press, 2009), 323.
[21] Edwards, Court Transcripts, 460.
[22] Ibid., 474 – 475.
[23] The Philadelphia Inquirer (Philadelphia, PA), May 23, 1865, 1.
[24] Hartranft, Letterbook, 103.
[25] August V. Kautz, May 22, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[26] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[27] Washington Weekly Chronicle (Washington, D.C.) June 3, 1865, 2.
[28] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[29] The World (New York, NY), May 23, 1865, 1.
[30] Daily Morning Chronicle (Washington, D.C.), May 23, 1865, 1.
[31] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[32] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[33] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[34] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[35] Evening Star (Washington, D.C.), May 22, 1865, 2.
[36] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[37] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[38] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[39] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[40] Evening Star (Washington, D.C.), May 22, 1865, 2.
[41] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[42] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[43] Daily National Republican (Washington, D.C.), May 22, 1865, 2.
[44] Evening Star (Washington, D.C.), May 22, 1865, 2.
[45] The Philadelphia Inquirer (Philadelphia, PA), May 23, 1865, 1.
[46] The World (New York, NY), May 23, 1865, 1.
[47] Boston Daily Advertiser (Boston, MA), May 23, 1865, 1.
[48] The Philadelphia Inquirer (Philadelphia, PA), May 23, 1865, 1.
[49] Boston Daily Advertiser (Boston, MA), May 23, 1865, 1.
The drawing of the conspirators as they were seated on the prisoners’ dock on this day was created by artist and historian Jackie Roche.

1 Comment

One thought on “May 22, 1865

  1. Pingback: The Trial Today: May 22 | BoothieBarn

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