Kitabı oku: «The Judicial Murder of Mary E. Surratt», sayfa 9

In process of this investigation all sorts of accusations and charges were made against the President. His enemies now employed the very same weapons against him which had been employed to convict the alleged assassins of his predecessor and the alleged conspirators against his own life. General Baker and his detectives, Conover and his allies, appear once more upon the scene. They actually invaded the privileged quarters of the White House and stationed spies in the very private apartments of the President. This time, however, they are ready to swear, and in fact do swear, not to having seen letters from Jefferson Davis to his agents in Canada advising assassination, but letters from Andrew Johnson to Davis squinting in that direction. They actually charged the President with being an accomplice in the assassination of Abraham Lincoln. Forgetting that a human being had been hung for lying in wait to kill Andrew Johnson as a part of a general conspiracy to murder the heads of the Government, these desperate men propose to impeach the President for being an accomplice in his own attempted murder. Ashley openly denounced him, in the House of Representatives on the 7th of March, 1867, as “the man who came into the Presidency through the door of assassination,” and alluded to the “dark suspicion which crept over the minds of men as to his complicity in the assassination plot,” and “the mysterious connection between death and treachery which this case presents.” Ashley had private interviews in the jail with Conover and Cleaver, who were confined there for their crimes, and they assured him of the guilt of Andrew Johnson. They furnished him with memoranda and letters purporting to show that Andrew Johnson and Booth were in communication with each other before the murder of Lincoln, and that Booth had said before his death that if Andrew Johnson dared go back on him he would have him hung higher than Haman. To such preposterous stuff, from professional perjurers, did the zealous Ashley seriously incline.

It was during this investigation that the evidence given by Secretaries Seward and Stanton and by Attorney-Generals Speed and Stansbery, demonstrated the utter futility of an attempt to establish complicity in the assassination on the part of Davis, Thompson and the rest, by witnesses who had been shown, in other cases, to be unworthy of a moment’s belief.

While the impeachers were in the very act of pursuing the President as an accomplice in the murder of Abraham Lincoln, while the mighty Bingham, who had so eloquently defended President Johnson before the Military Commission against the charge of usurpation of power, and so bitterly denounced Jefferson Davis for alluding to Johnson as “The Beast,” now, with a complete change of tune, was clamoring for the impeachment of “his beloved Commander-in-Chief;” – Jefferson Davis, himself, is brought, by direction of the Secretary of War, in obedience to a writ of habeas corpus, before the United States Court at Richmond; there, without a word of remonstrance, transferred to the custody of the civil authority; and forthwith discharged on bail, Horace Greeley, who had never seen him before, becoming one of his bondsmen. Since that day in May, 1867, no attempt has ever been made to call the ex-President of the Southern Confederacy to account as one of the conspirators in the murder of Lincoln. Clay had been let go on parole as long before as April 19th, 1866; his property was restored to him in February, 1867; and proceedings under an indictment found against him for treason and conspiracy, indefinitely suspended on the 26th of March of the same year. Thompson and Sanders and Tucker returned to their country and appeared unmolested amongst us. Jefferson Davis died recently full of years and honors. At the death of Thompson, the flags of the Interior Department were lowered half-mast. Tucker was appointed to office not long ago by President Harrison. And all this, notwithstanding the Judge-Advocate had assured the Military Commission that the guilt of these men was as clear as the guilt of Booth or of Surratt, notwithstanding the Military Commission under his guidance so found, and, had these men been present before that tribunal, would doubtless have hung them on the same scaffold with Mrs. Surratt.

It was during this same investigation, that the diary of Booth, which had been so carefully concealed by the War Department and the Bureau of Military Justice from the Military Commission, was unearthed. Its publication produced a profound sensation, as it made clear the reality of a plan to capture the President; a plan, which had been blasted by the collapse of the Rebellion and, only at the last moment and without consultation, arbitrarily superseded by a hurried resolution to kill. When produced by Judge Holt before the committee, its mutilated condition gave rise to a terrible suspicion. Holt, himself, and Stanton were confident the book was in the same condition as when they first saw it. Colonel Conger, also, though not positive, thought it was unchanged since he took it from the dead body of Booth. But, to the great wonder of everybody, the distinguished detective, General Baker, testified, and stuck to it with emphasis when recalled, that, when he first examined the diary before it was lodged with the Secretary of War, there were no leaves missing and no stubs, although the diary, as exhibited to the committee, showed by means of the stubs remaining that sixteen or twenty leaves had been cut or torn out. The disclosures made by the production of the diary, together with the fact of its suppression, stirred the soul of General Butler; and, in this way, it came about that the ghost of Mrs. Surratt stalked one day into the House of Representatives. Judge Bingham, in his rollicking way, was upbraiding General Butler for having voted for Jefferson Davis fifty times as his candidate for President, and slurring his war record by calling him “the hero of Fort Fisher;” when, suddenly, at the petrific retort of his adversary that “the only victim of the gentleman’s prowess was an innocent woman hung upon the scaffold!” the spectre stood before him, forcing, as from “white lips and chattering teeth,” the exclamation of Macbeth: “Thou canst not say I did it!”

“Look to the true and brave and honorable men who found the facts upon their oaths and pronounced the judgment!” he retorted, clutching at the self-soothing sophistry of the murderer of Banquo, ignoring the fact that he himself was a part of the tribunal and virtually dictated the judgment.

Another discovery was made by the Judiciary Committee in the “Article” which, as recorded in his diary, Booth had left behind him for publication in the National Intelligencer. John Matthews, a fellow actor and an intimate friend of the assassin, testified that on the afternoon of the 14th of April Booth had met him in the street and left with him a letter directed to that newspaper, to be delivered in the morning. The witness was on the stage of the theatre that night at the time the fatal shot was fired, and, in the confusion that followed, he called to mind the communication. Hurrying to his lodgings he opened the envelope, read the letter, and, fearing to be compromised by the possession of such a document, burnt it up. The substance of the letter, as near as Matthews could recollect, was that for a long time he (Booth) had devoted his money, time and energies to the accomplishment of an end, but had been baffled. “The moment has at length arrived when my plans must be changed. The world may censure me for what I do; but I am sure that posterity will justify me.” And the communication was signed (all the names being in the hand-writing of Booth): “Men who love their country better than gold or life. J. W. Booth, – Payne, – Atzerodt, – Herold.”

The significance of this piece of testimony was negative. The name of Surratt was not there.

One suggestive circumstance was called out in the testimony of Secretary Seward and General Eckert. It appeared that Payne before his trial had talked with General Eckert about his motives and movements in the assault upon the disabled Secretary of State, the particulars of which conversation Eckert had related to Seward, after the recovery of the latter from his wound, and had promised to reduce to writing. Among other things, Payne had said that he and Booth were in the grounds in front of the White House on the night of Tuesday, the 11th of April, when Abraham Lincoln made his speech of congratulation on the fall of Richmond and the surrender of Lee; and that on that occasion Booth tried to persuade him to shoot the President as he stood in the window, but that he would take no such risk; and that Booth, turning away, remarked: “That is the last speech he will ever make.”

Such an incident is consistent only with the theory that the assassination plot was concocted at the last moment as a forlorn hope, and that, if there had been any conspiracy, it was a conspiracy to capture. It is easy to see why the Bureau of Military Justice suppressed this testimony also, because, although it bears hard upon Payne himself, and Herold, and possibly John Surratt, it renders it highly improbable that Mrs. Surratt was aware of any design to kill.

Even such a fragmentary review, as the foregoing, of the public history of the two years succeeding the execution – which any reader may complete, as well as test, for himself by referring to the Congressional Globe of that period, to the printed reports of the Committee, and to the leading newspapers of the day – is sufficient to indicate how the general tendency of events, and every event in its place, appear to have conspired to the accomplishment of one result, – the setting aside, in the public mind, of the verdict of the Military Commission in the case of Mrs. Surratt.

This was not done by a direct assault upon that tribunal, or upon its mode of procedure; not even upon the character of the witnesses against the particular culprit, nor upon the weakness of the case made against her. These points of attack were all passed by, and the verdict was taken on the flank.

The condemnation of the woman was subverted by the wind, so to speak, of passing events.

The irrepressible conflict between the President and the Congress; the consequent schism in the very ranks of the triumphant conquerors; the insane charge against Andrew Johnson of complicity in a conspiracy against his own life, supported by the incredible statements of the very witnesses who were responsible for the charge of complicity against Jefferson Davis and others; the final and complete exposure of the fiction of a conspiracy to assassinate, either by the Confederate authorities, or anybody else; and the true, historical character of the Assassination of Abraham Lincoln; – all combined to shake the edifice of guilt, which the Bureau of Military Justice had so carefully built up around their helpless victim, upon such an aerial foundation. Whilst the gradual abatement of that furious uncharitableness, which in the hey-day of the war could find nothing not damnable in the Southern people, and no secessionist who was not morally capable either of murder or of perjury in its defense or concealment, was, surely but imperceptibly, clearing up the general atmosphere of public opinion, and thus preparing for the cordial reception of such a measure of retributive justice, as Time, with his sure revenges, was daily disclosing to be more and more inevitable.

The Milligan decision dissipated the technical jurisdiction of the Commission. But lawyers could still distinguish, and the hyperloyal could still maintain the essential rightfulness of the verdict.

But the explosion of the great assassination conspiracy; the nol-pros. of the awful charge against Jefferson Davis, Clement C. Clay, Jacob Thompson, and their followers – a crime, which, if capable of proof, no government on earth would have dared to condone – discredited forever the judgment of the Military Commission, reopened wide all questions of testimony, of character, of guilt or innocence, and summoned the silent and dishonored dead to a new and benignant trial.

CHAPTER II.
Reversal upon the Merits

The new trial was in fact at hand. In the summer of the year 1867, the interest excited by the investigation of the Judiciary Committee of the House of Representatives, referred to in the last chapter, suddenly became merged into the intenser and more widespread interest excited by the trial of John H. Surratt in the Criminal Court of the District of Columbia.

Surratt, after escaping from his captors in Italy by leaping down a precipice, fled to Malta and thence to Alexandria, where, on the 21st of December, 1866, he was recaptured and taken on board the United States vessel “Swatara.” In this vessel, bound hand and foot, the prisoner arrived at Washington on the 21st of February following. Thus the radicals in Congress, impelled by their growing enmity to the President over the reconstruction contest, by scattering abroad sinister intimations that the cause of his remissness in bringing to punishment the accomplices of the convicted assassins was fear for himself of a full investigation of the assassination, succeeded at last in forcing the Executive Department, apprehensive, as it had good reason to be, of the shadows which any future trial in the civil courts was likely to reflect back upon the Military Commission, and aware of the breaking down of the case against the Canadian confederates and Jefferson Davis, face to face with the necessity of ratifying the conviction of the mother by securing the conviction of the son. On the one hand, the radicals, in blind ignorance of the true inwardness of affairs, clamored for the trial, in the hope that the guilt of the prisoner’s supposed accomplices, Davis and Company, and possibly of the President himself, might be detected. On the other hand, the administration, now that the man had been forced upon its hands, knowing the futility of the hope of its enemies, pushed on the trial in the hope that, with its powerful appliances, a result could be obtained which would vindicate the verdict of the Military Commission. No one on either side, however, so much as dreamed of renewing the iniquity of a trial by court-martial. Amid the silence of the Holts and the Binghams and the Stantons, Surratt was duly indicted by a grand jury for the murder of “one Abraham Lincoln,” and for conspiring with Booth, Payne, Atzerodt, Herold and Mary E. Surratt to murder “one Abraham Lincoln,” which conspiracy was executed by Booth. There was no averment about the traitorous conspiracy to murder the heads of Government, in aid of the rebellion; nor were the names of Dr. Mudd, O’Laughlin, Arnold or Spangler, then undergoing punishment on the Dry Tortugas, inserted as parties to the conspiracy; nor was any mention made of Seward or Johnson or Grant, as among the contemplated victims. All was precise and perspicacious, as is required in pleadings in the civil courts. The loose, vague, indefinite and impalpable charges permissible, seemingly, on military trials, gave place to plain and simple allegations, such as an accused person might reasonably be expected to be able to meet. On Monday, June 10, 1867, while the investigation before the Judiciary Committee of the House was still going on, while the sensation produced by the sight of Booth’s diary and by Matthews’ disclosures was still fresh, while the echoes of the encounter of Bingham and Butler still lingered in the air, the momentous trial came on. Great and unprecedented preparations had been made by the prosecution. Again the country was ransacked for witnesses, as in the palmy days of Baker and his men. Again the Montgomeries and other Canada spies haunted the precincts of the District Attorney’s office, willing as ever to swear to anything necessary to make out the case for the prosecution. Even the voice of Conover was heard, de profundis clamavi, from his dungeon cell. The Bureau of Military Justice started into active life, and Holt and his satellites bestirred themselves as though fully conscious of the impending crisis. Indeed, every one of these officials, from the President and the Secretary of War down to the meanest informer and hired hangman, who had had anything to do with the trial and execution of Mary E. Surratt, felt as if he, too, was to be put on trial in the trial of her son. A Court recognized in, and drawing its life and jurisdiction from, the Constitution was to act as a court of appeal to review the process and judgment of that extra-constitutional tribunal, which had, summarily and without legal warrant, put a free American woman to a felon’s death. A Daniel in the shape of a jury – a common law jury – a jury of civilians – unadorned by sword, epaulette or plume – a jury guaranteed by the Bill of Rights – a Daniel had come to judgment! The Shylocks of the days of arbitrary power dropped their sharpened knives and ejaculated, “Is that the law?”

Great, assuredly, must have been the flurry of the once omnipotent Bureau, when it was ascertained that the tribunal before which it must come could not be “organized to convict;” that there could be no soldiery around the Court, no shackles on the prisoners or the witnesses for the defense, no prosecuting officers in the jury room. Everything must be done decently and in order, with the same calm dignity, unruffled composure, the same presumption of the innocence of the accused, as though the murdered man had been the humblest citizen of the land. One great advantage, however, the prosecution managed to secure. A Judge was selected to preside whom they could rely on, as “organized to convict.” But this was the sole reminiscence of the unbridled reign of the military only two years before. A jury of twelve intelligent men, some of them the best citizens of the District, was speedily obtained to the evident satisfaction of both the people and the prisoner, – and the succeeding Monday, the 17th, the struggle began.

As we have given the names of the members of the Court which tried the mother, we may be pardoned for giving the names of the jurors who tried the son. Although there were no major-generals among them, they are entitled to the honor of being within, and not without, the ægis of the Constitution.

The jurors were W. B. Todd, Robert Ball, J. Russell Barr, Thomas Berry, George A. Bohrer, C. G. Schneider, James Y. Davis, Columbus Alexander, William McLean, Benjamin Morsell, B. E. Gittings, W. W. Birth.

They were thus spoken of by the District Attorney:

“It is a matter of mutual congratulation that a jury has been selected agreeable to both parties; the representatives of the wealth, the intelligence, and the commercial and business character of this community; gentlemen against whose character there cannot be a whisper of suspicion. I would trust you with my life and my honor; and I will trust you with the honor of my country.”

The scene which the court-room presented, when the Assistant District Attorney arose to open the case for the United States, afforded a speaking contrast to the scene presented at the opening of the Military Commission. The Court was not held in a prison, and there was an entire absence of the insignia of war. The doors of the court-room were wide open to the entrance of the public, not locked up in sullen suspicion, and the keys in the hands of the prosecuting officer. The counsel for the prisoner confronted the jury and the witness-stand upon an equal line with the counsel for the United States; and there was neither heard, seen, nor surmised, in the words or bearing of Edwards Pierrepont, the leading counsel for the prosecution, any of the insolence and supercilious condescension shown in the words and bearing of John A. Bingham.

As the prisoner entered the court and advanced to the bar, no clank of fetters jarred upon the ear; and, as he sat at his ease by the side of his counsel, like a man presumed to be innocent, the recollection of that wan group of culprits, loaded down with iron, as they crouched before their imperious doomsmen, must have aroused a righteous wrath over the barbarous procedure of the military, in comparison with the benign rules of the civil, tribunals. The atmosphere surrounding the court and the trial seemed, also, to be free from passion and prejudice, when contrasted with the tremendous excitement and the thirst for blood, which permeated the surroundings of the Military Commission. Although the Bureau of Military Justice had busied itself in the prosecution, and thrust its aid on the office of the District Attorney; although the whole weight of the federal administration was thrown in the same direction to vindicate, if possible, the signature of the President to the death warrant of the victims of his military court; and notwithstanding the presence upon the bench of a judge “organized to convict:” still, so repellant to partial passion were the precincts of what might fitly be styled a temple of justice, a neutral spectator might feel reliance that in that chamber innocence was safe.

But there was one sentiment hovering over the trial and dwelling in all bosoms, which clothed the proceedings with a peculiar awfulness. All felt that the dead mother was on trial with the living son. She had been executed two years before for the same crime with which he was now charged. And, as he stood in the flesh, with upraised hand, looking at the jury which held his life in its hands, it required no great effort of fancy to body forth the image of his mother, standing beside him, murmuring from shadowy lips the plea of not guilty, amid the feeble repetitions of which, to her priest, she had died upon the scaffold. To convict her son, now, by the unanimous verdict of twelve men, and punish him according to law, would go far to condone the unconstitutional trial and illegal execution of the mother. Whereas, on the other hand, the acquittal of her son of the same crime, by the constitutional tribunals of the country, would forever brand the acts of the Military Commission as murder under the forms of military rule. This dread alternative met the prosecution at the threshold of the trial, oppressed them with its increasing weight during its progress, and tarried with them even at its close. It appeared in the indictment, where the name of the mother, as one of the conspirators, was associated with the name of her son. It appeared in the examination of the jurors, when Judge Pierrepont endeavored to extract from them whether they had formed or expressed an opinion as to the guilt or the innocence of the prisoner, not only, but also as to the guilt or the innocence of his mother. It appeared during the taking of testimony, where evidence bearing upon the guilt of Mrs. Surratt alone was admitted at all times as evidence against her son. It appeared in the argument of the District Attorney, when he compares the mother of the prisoner to Herodias and Lucrezia Borgia, and “traces her connection with the crime” and “leaves it to the jury to say whether she was guilty;” where he pleads, like Antony, in behalf of the members of the Military Commission that they were “all honorable men,” and were not to be blamed for obeying the orders of the President. It appeared in the arguments of the counsel for the prisoner, when Mr. Merrick taunted the Government that they were pressing for a verdict to “vindicate the fearful action they had committed;” when he appealed to the jury to “deal fairly by this young man,” “even if the reputation of Joseph Holt should not have the vindication of innocent blood;” when he invoked the spirit of Mrs. Surratt as a witness for her son, and rebuked the prosecution for objecting to the admission of her dying declaration when they were putting her again on trial though dead; when Mr. Bradley charged that for four weeks and more they had been trying Mrs. Surratt and not her son, and denounced Weichman and Lloyd, avowing that “the proof against her was not sufficient to have hung a dog” and was “rotten to the core.” It appeared in the speech of Judge Pierrepont, when he flourished the record of the Military Commission before the jury, and asserted that the recommendation of Mrs. Surratt to mercy was attached to it; in his avowal of his belief in her guilt; in his extolling the jury as a tribunal far more fit for the trial of such crimes than any military court; and in his covert threat that the people would punish the City of Washington by the removal of the Capitol, if the jury, by their verdict, did not come up to the high standard erected for them. And, lastly, it appeared in the charge of the Judge, which is a model of what a one-sided charge ought to be. It opens with the words of the Old Testament: “Whoso sheddeth man’s blood, by man shall his blood be shed.” Then follows a sneer at the “sentimental philosophers,” who were opposed to capital punishment. Then the Court inveighs against some imaginary advocates, who argued that to kill a king was a greater crime than to kill a president; and then casts an imputation upon the integrity of the decision in the Milligan Case, as “predicated upon a misapprehension of historic truth,” and that therefore “we could not perhaps have looked for a more rightful deduction,” “all loyal hearts” being “unprepared for such an announcement.” The Judge, then, holds that the Court will take judicial cognizance that the crime charged was the murder of the President of the United States, and a more heinous offense than the murder of a simple individual. He, then, complacently sets aside the rule of Sir Matthew Hale, implicitly followed since, as he himself admits, by “writers and judges seeming contented with his reasons or indisposed to depart from his principles,” as “not very satisfactory to my (the Judge’s) mind;” and accordingly he declares that, in felonies of such high grade, as in cases of treason, there can be no accessories before the fact, but all are principals; and, to support this conclusion, he then cites and details at length two cases, apparently overruling Sir Matthew beforehand; (as he says) “reported in that book of highest authority known among Christian nations, decided by a judge from whose decision there can be no appeal and before whose solemn tribunal all judges and jurors will in the great day have their verdict and judgments passed in review.” One, the case “of Naboth and Ahab, contained in the 21st chapter of the First Book of Kings,” the other, “that of David and Uriah, recorded in the 11th chapter of Second Samuel;” at the end of the statement of which case the Judge remarks, “this judgment of the Lord was not that David was accessory before the fact of this murder, but was guilty as the principal, because he procured the murder to be done. It was a judgment to the effect that he who does an act by another does it himself, whether it be a civil or a criminal act.” This extraordinary deliverance closes with an echo of Judge Pierrepont’s warning to the jury, to uphold by their verdict the District of Columbia, as a place for “the public servants, commissioned by the people of the nation, to do their work safe and sacred from the presence of unpunished assassins within its borders.”

It would be foreign to our purpose, as well as tedious to the reader, to examine in detail the testimony given on this trial. One conclusion – and that is the important thing – is certain. It is true, beyond the shadow of a doubt, that the prosecution made an incomparably stronger case against Surratt than was made against his mother. They had but one culprit at whom to direct their aim, and they made a far more desperate and thorough-going effort to convict, because of the known unreliability of a jury to do what the prosecution might tell them to do without the aid of proof. Before a Military Commission, tossed about by the passions of its members and steered by Judge-Advocates, the accusers could afford to be careless of gaps in their scheme of proof, missing links in the chain of circumstantial evidence. Not so now and here. Vehement affirmation without evidence availed nothing. Curses against treason, traitors, disloyalty, apostrophes to the imperiled Union, tears over the beloved Commander-in-Chief, could fill no void in the testimony. Of course, there was no such outrage against not only the elementary rules of evidence, but against ordinary decent fairness, as an attempt to introduce testimony of the horrors of Libby Prison and Andersonville; but the door looking in that direction was opened as wide as possible by the eager Judge. All the material testimony given upon the “Conspiracy Trial” against Mrs. Surratt, not only, but also against Payne, Herold, Atzerodt, Arnold and O’Laughlin, was reproduced here. The direct testimony on the part of the United States occupied from June 17th to July 5th, and in that period eighty-five witnesses were examined. On the Conspiracy Trial, the direct case consumed the time from May 12th to May 25th, and about one hundred and thirty witnesses were examined against the eight accused persons, not only, but also against the eight accessories, headed by Jefferson Davis, included in the charge, the testimony ranging over the whole rebellion and including Libby, Andersonville, Canada, St. Albans, and projected raids on New York, Washington and other cities. Every witness, whose testimony on the former trial had the remotest bearing upon the question of the guilt or innocence of Mrs. Surratt, once more showed his face and retold his story.

Lloyd was there, compelled, despite his superstitious reluctance to speak against a woman now she was dead, to rehearse the tale which his terrors had evolved out of his drunken imagination. This time, however, his sottish memory or failure of memory, his fright at the time of his arrest, his repeated denials of the visit of Booth and Herold, his temptations and bribes to accuse his landlady, were, under the keen cross-examination of the counsel for the prisoner, fully exposed.