May 23, 1865

Tuesday, May 23, 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, lawyers Frederick Aiken, John Clampitt, Thomas Ewing, and Frederick Stone.

Absent: Reverdy Johnson, Walter Cox, and William Doster.

Seating chart:

The prisoners were seated in the same manner as the day before.

Frederick Aiken, Mary Surratt’s lawyer, started off by commenting on Judge Advocate General Joseph Holt’s statement from yesterday that the government was almost through with its case. Aiken expressed his opinion that, as long as the prosecution’s only remaining witnesses dealt with the Confederate origins of the conspiracy and not with the specific conspirators themselves, he would be alright with starting his defense case the next session.

Assistant Judge Advocate Henry Burnett responded that some of the outstanding testimony would deal with the conspirators but it would only be about four or five witnesses. The Court then asked if those witnesses were present to provide their testimony. Burnett explained that while some were in Washington, they appeared to have been unable to get across the military lines of the Grand Review of the Armies to get to the courtroom. The Court pointed out that there was an accessible entrance at 4 ½ street for those with business with the court, but Burnett stated his belief that the witnesses were unaware of that and were likely stopped at other points along the parade route.[2]

The reading of yesterday’s testimony then occurred.

Thomas Ewing, lawyer for Arnold, Dr. Mudd, and Spangler, then addressed the court amending his comment from yesterday. Like Aiken, Ewing was willing to start his defense case during their next session as long as all of the prosecution’s witnesses against his clients were completed. Ewing was not opposed to the government bringing forth additional witnesses that dealt with the formation of the conspiracy, however.

Assistant Judge Advocate John Bingham replied that it was the intention of the prosecution to complete its case against the conspirators before the start of the defense.[3]

Judge Advocate General Holt then suggested that, due to the Grand Review of the Armies, it might be prudent to close the court early today and not meet tomorrow. Holt stated, “I very much doubt the practicability of securing the attendance of witnesses during today and tomorrow: the public offices are closed, and locomotion through the city is almost impossible.”[4]

The suggestion to end the session early for the day and not meet again until the completion of the Grand Review of the Armies, was agreed to by the court. The court adjourned at around 11:30 am. David Herold was allowed to stay in the court room after the other conspirators were removed in order to write. He remained until 1:00 pm when he was returned to his cell.[5]


From General Kautz’ diary:

“The Court met this morning but we were not able to do anything except read the proceedings of yesterday. No witnesses were to be had…The Court does not convene tomorrow.”[6]

General Doster, lawyer to Lewis Powell, recalled in his later memoirs the initial difficulty he had getting information out of his client:

“During the first two weeks of the trial I could get nothing out of Payne either as to his previous history, or as to anything he might have to say in his own defense, or as to whether he wished to be defended at all. During all this time I knew very little more of him than the public generally, and not near as much as the prosecution, and was in great doubt whether to explain his conduct by lunacy, unparalleled stupidity or fear of prejudicing his cause by communications with his counsel. He would sit bolt upright with the back of his head against the wall; his two manacled hands spread out on his knees, staring straight forward at the crowd behind the president of the court. The curiosity to see the prisoners was wonderful and the crowd sometimes so great as to prevent counsel from seeing what the court was doing. The heat too began to be excessive and, as the ventilation was poor, the situation was extremely uncomfortable.”[7]

Newspaper Descriptions

As the trial went on less attention was given to the details of the conspirators’ appearance and demeanor on the prisoner’s dock. This is the first day since the trial was open to reporters that the main newspapers fail to give descriptions for each of the conspirators. If no descriptions have been found to describe a particular conspirator on a particular date, their name and image will no longer appear below.

Lewis Powell

“Payne appears to-day in a steel-mixed undershirt, the collar of which rather obscures the massive neck, which goes with his deep chest and ample development of muscle to give such an idea of physical power to the possessor.”[8]

David Herold

“Herold is working a straw across his mouth, cigar-fashion.”[9]

“At the adjournment of the court, Herold was granted permission to write a letter. His handcuffs were taken off, and he sat down to write. The other prisoners were removed from the court-room.”[10]

Dr. Mudd

“As the music from the review comes down 4 ½ street on a puff of wind, Arnold and Mudd, the prisoners nearest the window, rise in their seats to look out.”[11]

Samuel Arnold

“As the music from the review comes down 4 ½ street on a puff of wind, Arnold and Mudd, the prisoners nearest the window, rise in their seats to look out.”[12]

Michael O’Laughlen

“The cooler weather has a sensible effect upon the spirits of the prisoners, with the exception of the ever depressed O’Laughlin.”[13]


“The great military review going on up town, and the interception of travel at the Avenue in consequence thereof, caused a much diminished attendance of spectators.”[14]

“Most of the prisoners, in fact, seem to begin to enjoy the unenviable notoriety of being stared at and exclaimed over by a room full of gaping spectators.”[15]

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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] William C. Edwards, ed., The Lincoln Assassination – The Court Transcripts (Self-published: Google Books, 2012), 475.
[3] Edwards, Court Transcripts, 475 – 476.
[4] Ibid., 476.
[5] Hartranft, Letterbook, 103.
[6] August V. Kautz, May 23, 1865 diary entry (Unpublished diary: Library of Congress, August V. Kautz Papers).
[7] William E. Doster, Lincoln and Episodes of the Civil War (New York: G. P. Putnam’s Sons, 1915), 264 – 265.
[8] Evening Star (Washington, D.C.), May 23, 1865, 2.
[9] Evening Star (Washington, D.C.), May 23, 1865, 2.
[10] Daily National Republican (Washington, D.C.), May 23, 1865, 2.
[11] Evening Star (Washington, D.C.), May 23, 1865, 2.
[12] Evening Star (Washington, D.C.), May 23, 1865, 2.
[13] Evening Star (Washington, D.C.), May 23, 1865, 2.
[14] Evening Star (Washington, D.C.), May 23, 1865, 2.
[15] Evening Star (Washington, D.C.), May 23, 1865, 2.
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 23, 1865

  1. Pingback: The Trial Today: May 23 | BoothieBarn

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