The Judicial Murder of Mary E. Surratt Part 12

Whatever may have been the true inwardness of these significant omissions, their inevitable effect was to convince the ma.s.s of the people of the non-existence of a recommendation to mercy; and the pet.i.tion of the five officers might have reposed in silence in the secret archives of the War Department, had it not been for the alienation of the President from the party which had elected him, his gradual gravitation towards his own section, and finally his revolt from the sway of Stanton. During this period, the rumors that the Court had recommended Mrs. Surratt to the clemency of the Executive and that the paper had never reached the Executive, coupled with stories that from the close of the trial to the hour of the execution the President had been kept under confinement and in a state of semi-stupefaction by a band of reckless partisans who were bound there should be no clemency, grew louder and louder. But they were never traceable to any reliable source. In fact, the coolness which had been for a long time growing between Andrew Johnson and Edwin M. Stanton did not break out into an open rupture until as late as the month of March, 1867. The other members of the Cabinet, which Johnson had inherited from Lincoln, who disagreed with Johnson on the question of Reconstruction, Harlan, Dennison and Speed, resigned, on account of that disagreement, in the summer of 1866; but Stanton stayed on. When the Tenure of Office bill was pa.s.sed by the Congress in February, 1867, the Secretary of War was still so much in accord with the President as to unite with the other members of the reconstructed Cabinet in an emphatic condemnation of the bill as unconst.i.tutional, and to be asked by the President to draft his veto message.

But, on the pa.s.sage of that Act over the veto, Stanton, thinking his tenure of office secure, at last threw off the double-faced mask he seems to have worn in every Cabinet to which he ever had the honor to belong.

From that time he stood alone in the Cabinet, irreconcilable in his hostility to every move of his Chief, in open league with his Chief's active enemies, and determined to remain where he was not wanted and could only act as a hindrance and a spy. In this perilous state of affairs, a secret like that of the pet.i.tion of the five officers burned towards disclosure. Yet, so far as is at present ascertainable, no authoritative affirmation of the existence of such a paper, on the one hand, and no authoritative denial that it had been presented to the President, on the other, had yet been made.

Upon such an arrangement of combustible material, the trial of John H.

Surratt acted like a spark of fire.

On the second day (June 11th, 1867), during the impanelling of the jury, Mr. Pierrepont, the leading counsel for the United States, alluding to the rumors then flying about, took occasion to predict that the Government on that trial would set all these false stories at rest.

Among other things he said:

"It has likewise been circulated through all the public journals that after the former convictions, when an effort was made to go to the President for pardon, men active here at the seat of government prevented any attempt being made or the President being even reached for the purpose of seeing whether he would not exercise clemency; whereas the truth, and the truth of the record which will be presented in this court, is that all this matter was brought before the President and presented to a full Cabinet meeting, where it was thoroughly discussed; and after such discussion, condemnation and execution received not only the sanction of the President but that of every member of his Cabinet."

The testimony in the case closed, however, and the summing up began, and there had been no attempt at a fulfillment of this prediction.

On Thursday afternoon, August 1st, Mr. Merrick, the junior counsel for the prisoner, then nearing the close of his address, twitted the prosecution with this breach of its promise in these words:

"Where is your record? Why didn't you bring it in? Did you find at the end of the record a recommendation to mercy in the case of Mrs.

Surratt that the President never saw? You had the record here in Court.

"Mr. Bradley: And offered it once and withdrew it?

"Mr. Merrick: Yes, sir; offered it and then withdrew it.

"Did you find anything at the close of it that you did not like? Why didn't you put that record in evidence, and let us have it here?"

Stung by the necessity of making some answer to this defiant challenge, Mr. Pierrepont on the moment sent for the record. And in response to the summons, Judge-Advocate Holt, who naturally must have followed the prosecution and trial with the most absorbing anxiety, on that very afternoon brought the record "with his own hand," "with his own voice"

told its history, in the presence of "three gentlemen," to Mr. Pierrepont, and then left the papers with him.

On the succeeding day, August 2nd, Mr. Bradley, the senior counsel of the prisoner, renewed the attack:

"It was boastfully said in the opening of this case that they would vindicate the conduct of the law officers of the Government engaged in the conspiracy trials. They would produce Booth's diary; they would show that the judgment of the court was submitted to the Cabinet and fully approved; that no recommendation for mercy for Mrs.

Surratt--that no pet.i.tion for pardon to the Government--had been withheld from the President. Is it so?"

The next morning, Sat.u.r.day, August 3d, Mr. Pierrepont began his address to the jury. Having kept possession of the record since Thursday afternoon, and having been made acquainted with its history by Judge-Advocate Holt in such an impressive manner, he, thus, in his exordium, at last, redeemed the promise of the prosecution:

"The counsel certainly knew when they were talking about that tribunal" (_i. e._ the Military Commission), "and when they were thus denouncing it, that President Johnson * * * ordered it with his own hand, that President Johnson * * * signed the warrant that directed the execution, that President Johnson * * * when that record was presented to him, laid it before his Cabinet, and that every single member voted to confirm the sentence, and that the President with his own hand wrote his confirmation of it, and with his own hand signed the warrant. I hold in my hand the original record, and no other man as it appears from that paper ordered it. No other one touched this paper, and when it was suggested by some of the members of the Commission that in consequence of the age and the s.e.x of Mrs. Surratt, it might possibly be well to change her sentence to imprisonment for life, he signed the warrant for her death with the paper right before his eyes--and there it is (handing the paper to Mr. Merrick). My friend can read it for himself."

This is the first appearance in public of the precious record. On Wednesday, July 5th, 1865, Andrew Johnson put his name to the death-warrant written on its back by Judge Holt. And, now, two years after, emerging from its hiding-place, it is flung upon a table in a court-room by the counsel for the United States.

Even now it seems to be destined to a most unsatisfactory publication. For the counsel of the prisoner decline to look at it, because (as Mr. Merrick subsequently explained), "he mistrusted whatever came from the Judge-Advocate-General's office;" because it "had been carefully withheld until all opportunity had pa.s.sed for taking evidence in relation to it;"

and because the official report of the trial contained no recommendation of mercy. The mysterious roll of paper, consequently, lies there unopened, until Judge Holt comes to reclaim it that same afternoon; and that officer is careful, when receiving it back, to repeat over again, before other witnesses, the same history of the doc.u.ment, he had told before to the counsel for the prosecution, and which that counsel had just retold to the jury.

But that had been said and done which must blow away the atmosphere of unwholesome secrecy which had so long enveloped this addendum to the record. The explicit declaration of the counsel for the United States, made in a crowded court-room on so celebrated a trial, with the "identical paper" in his hand, that the President had laid the record before his Cabinet and "every single member voted to confirm the sentence," and that the President had signed the death-warrant with the "suggestion" of commutation "right before his eyes," was immediately published far and wide, and must have been read on Sunday, the 4th, or at latest on Monday, the 5th, by the President himself. And the President was certainly astounded. By a most singular providence, Judge Holt himself, in a letter written to himself, at his request, by his chief clerk, and published by him in 1873 for another purpose, has furnished independent proof that the President was now for the first time startled into sending for the record.

Here is what Chief Clerk Wright says:

"On the 5th day of August, 1867, Mr. Stanton, the Secretary of War, sent for me, and in the presence of General Grant asked me who was in charge of the Bureau in your absence. I informed him Colonel Winthrop.

He requested I should send him over to him, which I did. The Colonel returned and asked me for the findings and sentence of the conspiracy trial, telling me he had to take it to the President. On taking the portion of the record referred to from the bundle, I found, from the frequent handling of it, several of the last leaves had torn loose from the ribbon fastening, and to secure them I put the eyelet in one corner of it."

The Judge-Advocate-General, though in court on Sat.u.r.day getting back the record and retelling its history, was absent, it would appear, from his office on Monday, or was considered absent by Stanton, who it also appears was still Secretary of War and in communication with Johnson. It was thought best to employ a deputy to carry the papers to the President.

Holt, probably, had no stomach for another "confidential interview," with the identical record in his hand.

Let Andrew Johnson himself tell what followed. The statement is from his published reply to Holt in 1873, and was made with no reference to, and apparently with no recollection of, the foregoing incidents of the John H.

Surratt trial:

"Having heard that the pet.i.tion had been attached to the record, I sent for the papers on the 5th day of August, 1867, with a view of examining, for the first time, the recommendation in the case of Mrs.

Surratt.

"A careful scrutiny convinced me that it was not with the record when submitted for my approval, and that I had neither before seen nor read it."

It may have been only a coincidence, but on this very day, Monday, August 5th, 1867, and necessarily after the sending for the record, because that was done through the Secretary of War, the following interesting missive was dispatched by the President to that member of his Cabinet:

"Sir: Public considerations of a high character constrain me to say that your resignation as Secretary of War will be accepted."

Stanton immediately replied:

"Public considerations of a high character constrain me not to resign before the next meeting of Congress."

And, on the 12th, he was suspended from office.

But Andrew Johnson was not the only interested personage who read the explicit declaration of Mr. Pierrepont. The statement that every member of the Cabinet voted to confirm the sentence of Mrs. Surratt, with the record, including, of course, the recommendation, before them, must have been read also by William H. Seward, Edwin M. Stanton, Hugh McCulloch, and Gideon Welles, the members of that "full Cabinet" who still remained in office. They surely knew the truth of the statement, if it was true, or its falsity, if it was false. If it was true, is it not perfectly inconceivable that the President, conscious that these four of his confidential advisers had seen the record and voted to deny the pet.i.tion, would have dared to enact the comedy of sending for the record, and then brazenly a.s.sert that the pet.i.tion had not been attached to it when before him, and that he had neither seen nor read it?

And if he had been guilty of so foolhardy a course of action, now was the time for the Judge-Advocate to fortify the declaration which he had inspired Mr. Pierrepont to make, by appealing to these members of the Cabinet to confront their shameless chief with their united testimony, and forever silence the "atrocious accusation."

From his course of proceeding at a later day, it is not probable that he made any such attempt. At all events, he got no help from Seward, from McCulloch or from Welles. Nay, he got no help to sustain his history of the record, even from Stanton. If help came from that quarter at all, it was to shield him from the awakened wrath of the hood-winked Executive, by drawing the fire upon the head of his department.

But what the Judge-Advocate-General did do, in view of the crisis, is sufficiently apparent. He took immediate measures to retract all that portion of Mr. Pierrepont's declaration of Sat.u.r.day, which expressed or implied any knowledge on the part of the Cabinet of the disputed paper.

The counsel for the United States had continued his speech to the jury all day Monday, apparently unconscious of the tempestuous effect of his statement of Sat.u.r.day, and of the predicament in which it had involved his informant. In the evening, he must have had a "confidential interview"

with Judge Holt. For, on rising to resume his speech on Tuesday morning, the 6th of August, from no apparent logical cause arising from the course of his argument, he saw fit to recur to the now absent record, and to interpolate the following perfectly insulated and seemingly superfluous piece of information:

"You will recollect, gentlemen, when a call was made several days ago by Mr. Merrick * * asking that we should produce the record of the Conspiracy Trial, that I brought the original record here and handed it to counsel. I then stated that as a part of that record was a suggestion made by a part of the Court that tried the conspirators, that, if the President thought it consistent with his public duty, they would suggest, in consideration of the s.e.x and age of one of those condemned, that a change might be made in her sentence to imprisonment for life. I stated that I had been informed that when that record was before the President, and when he signed the warrant of execution, that recommendation was then before him. I want no misunderstanding about that, and I do not intend there shall be any.

That is a part of the original record which I here produced in Court.

It is in the hand-writing of one of the members of that Court, to wit, General Ekin. The original of that is now in his possession and in the hand-writing of Hon. John A. Bingham. When the counsel called for that record, I sent the afternoon of that day to the Judge-Advocate-General, in whose possession these records are. He brought it to me with his own hand, and told me with his own voice, in the presence of three other gentlemen, that that identical paper, then a part of the record, was before the President when he signed the warrant of execution, and that he had a conversation with the President at that time on the subject. That is my authority.

Subsequently to this, having presented it here, the Judge-Advocate-General called to receive it back, and reiterated in the presence of other gentlemen the same thing. That is my knowledge and that is my authority."

Here we have, then, the final statement of his side of the case, made by Judge Holt, through the mouth of counsel, revised and corrected under the stress of the occurrences at the White House and the negatory att.i.tude of the members of the Cabinet present on the spot. Stripped of the allegation that the record was laid before the Cabinet and voted upon by every member of the Cabinet, its affirmations, carefully confined to "the confidential interview" between the President and the Judge-Advocate, go no farther than that "the identical paper" was "before the President,"

when he signed the death warrant, and they had a conversation "on the subject."

"He wants no misunderstanding" and does "not intend there shall be any."

The counsel in great detail relates how he came by his facts. "That is my knowledge and that is my authority." Of course it is open to everybody to believe, if he choose, that the talk of the Cabinet meeting and of the unanimous vote of its members against the pet.i.tion, was a mere rhetorical exaggeration of a simple narrative of Holt relating the incidents of an interview between the President and himself, struck off by Judge Pierrepont in the full fervor of his eloquence; but, nevertheless, it remains true that the Judge-Advocate, until the catastrophe befell, was satisfied it should stand, rhetoric and all; because he "reiterated the same thing" on Sat.u.r.day, _after_ the counsel had concluded his statement, and on Monday the counsel continued his address all day without being advised of the necessity for any retraction.

Be this as it may, there is now, at the last, no appeal by the Judge-Advocate to the members of the Cabinet, all of whom were living, as witnesses to the President's knowledge of the pet.i.tion of mercy. He abandons hope of corroboration from members of the Cabinet, and he takes his stand upon the single categorical affirmation, that the "identical paper" formed part of the record when the record was before the President in 1865.

And, singular as it may appear, this is the very thing that the President does not categorically deny; he only infers the contrary from the appearance of the record in 1867.

The single categorical negation of the President is that he neither saw nor read the recommendation. And, singular as it may appear, this the Judge-Advocate does not categorically affirm; he leaves it to be inferred from his averment of the presence of the paper and a conversation on the subject.