The Judicial Murder of Mary E. Surratt Part 2

Last, there emerges from the dungeon-like darkness of the doorway the single female prisoner, Mary E. Surratt. She, alone, turns to her right and, consequently, when she is seated has the left hand corner of the platform to herself. But she is separated from her companions in misery by more than the narrow pa.s.sage-way that divides the dock; for she is a lady of fair social position, of unblemished character and of exemplary piety, and, besides, she is a mother, a widow, and, in that room amongst all those soldiers, lawyers, guards, judges and prisoners, the sole representative of her s.e.x. Her womanhood is her peculiar weakness, yet still her only shield.

Is she too ironed?

The unanimous testimony of eye-witnesses published at the time of the trial is, that, though not hand-cuffed, she was bound with iron "anklets"

on her feet. And this detail, thus universally proclaimed in the Northern Press and by loyal writers, was mentioned not as conveying the slightest hint of reprobation, but as const.i.tuting, like the case of the male prisoners, a part of the appropriate treatment by the military of a person suffering under such a charge. And, moreover, no contemporaneous denial of this widespread circ.u.mstance was anywhere made, either by Provost-Marshal, Counsel, Judge-Advocate or member of the Court. It pa.s.sed unchallenged into history, like many another deed of shame, over which it is a wonder that any man could glory, but which characterized that period of frenzy.

Eight years after, during the bitter controversy between Andrew Johnson and Joseph Holt over the recommendation of mercy to Mrs. Surratt, General Hartranft, the former Special Provost-Marshal in charge of the prisoners, first broke silence and, coming to the aid of the sorely-tried Ex-Judge-Advocate, sent him a vehement categorical denial that Mrs.

Surratt was ever manacled at any time, or that there was ever a thought of manacling her in any one's mind. Now, what force should be given to such a denial by so distinguished an officer, so long delayed and in the face of such universal contemporaneous affirmation?

No one knows how close and exclusive the charge of the prisoners by the special Provost-Marshal was, nor how liable to interruption, interference and supersession by the omnipotent Bureau of Military Justice, or by the maddened Secretary of War and his obsequious henchmen.

At the time the naked a.s.sertion was made, to heap indignities upon the head of the only woman in the whole country whom the soldiery took for granted was the one female fiend who helped to shed the blood of the martyred President, was so consonant with the angry feeling, in military circles, that an officer, having only a general superintendence over the custody and treatment of what was called "a band of fiends," would be very likely to overlook such a small matter as that the she-a.s.sa.s.sin was not exempted, in one detail, from the contumelies and cruelties it was thought patriotic to pile upon her co-conspirators. The only wonder ought to be that they relieved her from the hand-cuffs. They appear to have discriminated in the case of Dr. Mudd also, subst.i.tuting a chain for an inflexible bar so that he for one could move his hands. There may have been some unmentioned physical reasons for both of these alleviations, but we may rest a.s.sured that neither s.e.x, in the one case, nor profession in the other, was among them.

General Hartranft (or any other General) never denied, or thought it necessary to deny, that the seven male prisoners sat through the seven weeks of the trial, loaded, nay tortured, with irons. And there is no doubt that this unspeakable outrage, if thought of at all at the trial by the soldiery--high or low--so far from being thought of as a matter of reprobation, was a subject of grim merriment or stern congratulation.

Eight years, however, pa.s.sed away--eight years, in which a fund of indignation at such brutality, above all to a woman, had been silently acc.u.mulating, until at length to a soldier, whose beclouding pa.s.sions of the moment had in the meantime cooled down, its weight made every loop-hole of escape an entrance for the very breath of life.

The entire atmosphere had changed, and denials became the order of the day. Memory is a most convenient faculty; and to forget what the lapse of years has at last stamped with infamy is easy, when the event pa.s.sed at the time as a mere matter of course. Leaving these tardy repudiators of an iniquity, the responsibility for which in the day of its first publication they tacitly a.s.sumed with the utmost complacency, to settle the question with posterity;--we insist that the preference is open to writers upon the events of the year 1865 to rely upon the unprejudiced and unchallenged statements of eye-witnesses; and, therefore, we do here reaffirm that Mary E. Surratt walked into the court-room, and sat during her trial, with shackles upon her limbs.

At this late day it is a most natural supposition that these nine stalwart military heroes, sitting comfortably around their table, arrayed in their bright uniforms, with their own arms and their own legs unfettered, must have felt at least a faint flush of mingled pity, shame and indignation, as they looked across that room at that ironed row of human beings.

Culprits arraigned before them, guarded by armed soldiery, without arms themselves--why, in the name of justice, drag them into Court and force them to sit through a long trial, bound with iron, hand and foot? Was it to forestall a last possible effort of reckless and suicidal despair?

These brave warriors could not have feared the naked arm of Payne, nor have indulged the childish apprehension that seven unarmed men and one unarmed woman might overpower six armed soldiers and nine gallant officers, and effect their escape from the third story of a prison guarded on all sides with bayonets and watched by detective police! And yet, so far as appears, no single member of the Court, to whom such a desecration of our common humanity was a daily sight for weeks, thought it deserving of notice, much less of protest.

There is but one explanation of this moral insensibility, and that applies with the same force to the case of the woman as to those of the men. It is, that the accused were _already doomed_. For them no humiliation could be thought too deep, no indignity too vile, no hardship too severe, because their guilt was predetermined to be clear. And the members of the Military Commission, as they looked across the room at that sorry sight, saw nothing incongruous with justice, or even with the most chivalrous decorum, that the traitorous murderers of their beloved Commander-in-Chief should wear the shackles which were the proper precursors of the death of ignominy, they were resolved the outlaws should not escape.

We, civilians, must ever humbly bear in mind that the rule of the common law, that every person accused of crime is presumed to be innocent until his guilt is established beyond a reasonable doubt--a rule the benignity of which is often sneered at by soldiers as giving occasion for lawyers'

tricks and quibbles, and as an impediment to swift justice, is reversed in military courts, where every person accused of crime is presumed to be _guilty_ until he himself prove his innocence.

After the prisoners had been seated, and the members of the Commission, the Judge-Advocates and the official reporters sworn in, the accused were severally arraigned. There was but one Charge against the whole eight.

Carefully formulated by the three Judge-Advocates upon the lines of the theory adopted by the Secretary of War, and which Gen. Baker and the Bureau of Military Justice had been moving heaven and earth to establish, it was so contrived as to allege a crime of such unprecedented, far-reaching and profound heinousness as to be an adequate cause of such an unprecedented and profound calamity.

The eight prisoners were jointly and severally charged with nothing less than having, in aid of the Rebellion, "_traitorously_" conspired, "together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, George N. Sanders, Beverley Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young and others unknown, to kill and murder" "Abraham Lincoln, late President of the United States and Commander-in-Chief of the Army and Navy thereof, Andrew Johnson, then Vice-President, Wm. H. Seward, Secretary of State, and Ulysses S. Grant, Lieutenant-General;" and of having, in pursuance of such "traitorous conspiracy," "together with John Wilkes Booth and John H. Surratt"

"traitorously" murdered Abraham Lincoln, "traitorously" a.s.saulted with intent to kill, William H. Seward, and lain in wait "traitorously" to murder Andrew Johnson and Ulysses S. Grant.

On this elastic comprehensive Charge, in which treason and murder are vaguely commingled, every one of the men, and Mary E. Surratt, were arraigned, plead not guilty, and were put upon trial. There is no doubt, by the way, that the Secretary of War would have been included as one of the contemplated victims, had not Edwin M. Stanton borne so prominent a part in the prosecution; and it was for this reason, and not because of any change in the evidence, that General Grant stood alone, as the mark of O'Laughlin.

To this single Charge there was, also, but a single Specification. This doc.u.ment alleged that the design of all these traitorous conspirators was, to deprive the Army and Navy of their Commander-in-Chief and the armies of their Commander; to prevent a lawful election of President and Vice-President; and by such means to aid and comfort the Rebellion and overthrow the Const.i.tution and laws.

It then alleged the killing of Abraham Lincoln by Booth in the prosecution of the conspiracy, and charged the murder to be the act of the prisoners, as well as of Booth and John H. Surratt. It then alleged that Spangler, in furtherance of the conspiracy, aided Booth in obtaining entrance to the box of the theatre, in barring the door of the theatre box, and in effecting his escape. Then, that Herold, in furtherance of the conspiracy, aided and abetted Booth in the murder, and in effecting his escape. Then, that Payne, in like furtherance, made the murderous a.s.sault on Seward and also on his two sons and two attendants. Then, that Atzerodt, in like furtherance, at the same hour of the night, lay in wait for Andrew Johnson with intent to kill him. Then, that Michael O'Laughlin, in like furtherance, on the nights of the 13th and 14th of April, lay in wait for General Grant with like intent. Then, that Samuel Arnold, in prosecution of the conspiracy, "did, on or before the 6th day of March, 1865, and on divers other days and times between that day and the 15th day of April, 1865, combine, conspire with and counsel, abet, comfort and support"

Booth, Payne, Atzerodt, O'Laughlin and their confederates. Then, "that, in prosecution of the conspiracy, Mary E. Surratt, on or before the 6th of March, 1865, and on divers other days and times between that day and the 20th of April, 1865, received, entertained, harbored and concealed, aided and a.s.sisted" Booth, Herold, Payne, John H. Surratt, O'Laughlin, Atzerodt, Arnold and their confederates, "with the knowledge of the murderous and traitorous conspiracy aforesaid, and with intent to aid, abet and a.s.sist them in the execution thereof, and in escaping from justice." And, lastly, that in prosecution of the conspiracy Samuel A. Mudd did from on or before the 6th day of March, to the 20th of April "advise, encourage, receive, entertain, harbor and conceal, aid and a.s.sist" Booth, Herold, Payne, John H. Surratt, O'Laughlin, Atzerodt, Mary E. Surratt, Arnold and their confederates, in its execution and their escape.

After the prisoners, who as yet had no counsel, had pleaded not guilty to the Charge and Specification, the Court adopted rules of proceeding--one of which was that the sessions of the Court should be secret, and no one but the sworn officers and the counsel for the prisoners, also sworn to secrecy, should be admitted, except by permit of the President of the Commission; and that only such portions of the testimony as the Judge-Advocate should designate should be made public.

On the next day (Thursday, May 11th), Mr. Thomas Ewing, Jr. and Mr.

Frederick Stone appeared as counsel for Dr. Mudd, and Mr. Frederick A.

Aiken and Mr. John W. Clampitt for Mrs. Surratt; and on the succeeding day (12th), Mr. Frederick Stone appeared for Herold "at the earnest request of his widowed mother and estimable sisters;" General Ewing for Arnold (and on Monday, the 15th, for Spangler); Mr. Walter S. c.o.x for O'Laughlin, and Mr. William E. Doster for Payne and Atzerodt.

By the rules of the Commission no counsel could appear for the prisoners unless he took the "iron-clad oath" or filed evidence of having taken it.

So supersensitive was the loyalty of the Court that it could not brook the presence of a "sympathizer with the South," even in such a confidential relation as counsel for accused conspirators in aid of the Rebellion.

The demeanor of the Court towards the counsel for the defense, reflecting as in a mirror the humor of the Judge-Advocates, was highly characteristic. Sometimes they were treated with haughty indifference, sometimes with ironical condescension, often with contumely, generally with contempt. Their objections were invariably overruled, unless acceded to by the Judge-Advocate. The Commission could not conceal its secret opinion that they were engaged in a disreputable and disloyal employment.

This statement must be somewhat qualified, however, so far as it relates to General Ewing. He was, or had been recently, of equal rank in the army of the Union with the members of the Court. He was a brother-in-law of General Sherman, and he had acquired a high reputation for gallantry and skill, as well as loyalty, during the war. That such a distinguished fellow-soldier should appear to defend the fiendish murderers of their beloved Commander-in-Chief--outlaws they were detailed as a Court to hang--evidently perplexed and disconcerted these military Judges and tended in some degree to curb the over-bearing insolence of the Special Judge-Advocate. Thus, this able lawyer and gallant officer and n.o.ble man was enabled to be "the leading spirit of the defense;" and, as we shall see, he wrought the miracle of plucking from the deadly clutches of the Judge-Advocates the lives of every one of the men he defended. But this instance was a most notable exception. As a rule, even the silent presence of the counsel for the accused jarred upon the feelings of the Court, and their vocal interference provoked, at intervals, its outspoken animadversion. A trifling incident will serve to ill.u.s.trate.

The witnesses, while giving their testimony, were required to face the Court, so that they necessarily turned their backs on the counsel for the prisoners who were placed some distance behind the witness-stand. These counsel were also forced to cross-examine the witnesses for the prosecution, and interrogate their own, without seeing their faces; and as often as a witness in instinctive obedience to the dictates of good manners would turn round to answer a question, the President of the Court would check him by a "sharp reprimand" and the stern admonition: "Face the Court!" The confusion of a witness, especially for the defense, when thundered at in this way by General Hunter, and the reiterated humiliation of counsel implied in the order, seem to have only called forth the wonder that witnesses "would persist in turning towards the prisoners' counsel!"

Clearly these lawyers were an unmeaning, an impeding, an offensive, though unavoidable, superfluity.

CHAPTER II.

ANIMUS OF THE JUDGES.

On Sat.u.r.day, the 13th of May, an incident occurred which throws much light upon the judicial temper of the Court at the very beginning of the trial.

On that day Reverdy Johnson appeared as counsel for Mrs. Surratt. Admitted to the bar in 1815, Senator of the United States as far back as 1845, Attorney-General of the United States as long ago as 1849, and holding the position of Senator of the United States again at that very moment; having taken the const.i.tutional oath in all the Courts including the Supreme Court of the United States at whose bar he was one of the most eminent advocates; three years after this time to be Minister Plenipotentiary to England; as he stood there, venerable both in years and in honors, appearing at great personal and professional sacrifice, gratuitously, for a woman in peril of her life, one would have thought him secure at least from insult. Yet no sooner did he announce his intention, if the Court would permit him at any time to attend to his imperative duties elsewhere, to act as counsel, than the President of the Commission read aloud a note he had received from one of his colleagues objecting "to the admission of Reverdy Johnson as a counsel before this Court on the ground that he does not recognize the moral obligation of an oath that is designed as a test of loyalty;" and, in support of the objection, referring to Mr. Johnson's letter to the people of Maryland pending the adoption of the new const.i.tution of 1864.

The following colloquy then took place:

"Mr. Johnson.--May I ask who the member of the Court is that makes that objection?

"The President.--Yes, sir, it is General Harris, and, if he had not made it, I should have made it myself.

"Mr. Johnson.--I do not object to it at all. The Court will decide if I am to be tried.

"The President.--The Court will be cleared.

"Mr. Johnson.--I hope I shall be heard.

"General Ekin.--I think it can be decided without clearing the Court.

"General Wallace.--I move that Mr. Johnson be heard.

"The President and others.--Certainly.

"Mr. Johnson.--Is the opinion here to which the objection refers?

"The President.--I think it is not."

It was discovered, farther on, that General Harris by his own admissions had not even seen the opinion since he had read it a year ago, and that his objection, involving so grave an attack upon the moral character of so distinguished a man, was based upon a mere recollection of its contents after that lapse of time.

Naturally, the gray-haired statesman and lawyer was indignant at this premeditated insult. In his address to the Court he repudiated with scorn the interpretation put upon his letter by his accuser. He explained the circ.u.mstances under which the opinion was delivered; that the Maryland Convention had prescribed an oath to the voter which they had no right to exact; "and all that the opinion said, or was intended to say, was, that to take the oath voluntarily was not a craven submission to usurped authority, but was necessary in order to enable the citizen to protect his rights under the then const.i.tution; and that there was no moral harm in taking an oath which the Convention had no authority to impose."

Among other things he said: