It was here, on this civil trial, that "the scales of justice fell," and not, as alleged by the prisoner's counsel, at the trial before the Military Commission.
The District Attorney and His able assistant, Judge Pierrepont, had both expressed their confidence in the ability of the civil courts to compass the ends of justice; but the result of this trial showed that in a crime committed to further political party interests, no jury could be expected to find a verdict; and so the government refused to prosecute the case any further. The prisoner was set at large.
At the conclusion of the trial, on Aug. 10th, 1867, Surratt was remanded to prison, and on May 12th, 1868, he asked to be released on bail, but was refused. On June 22d, 1868, he was released from custody. On the 22d of September, 1868, a nolle prosequi was entered.
Another indictment was found against him for engaging in rebellion. Upon this he was ordered to be admitted to bail in a bond of $20,000. He first pleaded not guilty, and then asked to withdraw this plea, and to file a special plea, which was granted. The government demurred to the plea on Sept. 22d, 1869. The demurrer was overruled, and he was finally discharged.
It now remains for the writer to review the course of the defense in this trial, and to point out its policy, its spirit, its perversion of facts, and disregard of evidence in carrying out its purpose to appeal, first, to the prejudice of the jury, and then to pervert public opinion.
The prisoner was defended by counsel of known and acknowledged ability—men of reputation for their knowledge of law, and ability as advocates at the bar. But despite all this, their defense of Surratt was as unique in its character as was the case itself. Made by men learned in the law, it ignored the requirements of law, and so was managed by them more in the light of its political relations, than that of its legal requirements. In proof of this assertion I shall quote freely from the arguments of counsel, and I think I shall be able to show that I am fully justified in expressing this opinion. I shall first refer to the remarkable number of exceptions taken by the counsel for the defense to the rulings of the Court on questions of evidence, and the use made of them. I will quote first from the argument of Mr. Merrick.
"In a prosecution such as this, conducted against one of its citizens by a government, what should be the course of that government, and what is due to the jury and to the prisoner? Whatever there is that can throw light upon the alleged crime should be let into the jury box. All evidence that could go before the human mind calculated to impress it with conviction, or modify its opinions, should be allowed to come before you. What has been the case with regard to this trial? Wherever any technical rule of law could by any constraint whatever exclude a piece of testimony calculated to enlighten your judgment, it has been invoked to exclude that testimony; has been bent from its uniform application and its generally understood principle for that purpose. I shall find no fault with his honor on the bench in his rulings, for this is not my place to express an opinion about a decision of the Court.
A member of the bar should be loyal to the tribunal before which he practices, to the full extent of gentlemanly and professional courtesy, and in the court-room bow with pleasant acquiescence in whatever the judge may say. With that acquiescence I bow, and yet there is nothing—and I must say this, and say it in justice to myself—there is nothing that has fallen from his honor in the adjudication upon these questions of testimony that has changed my opinion that the testimony should be allowed to go to the jury. One hundred and fifty exceptions taken by the defendant's counsel encumber this record. It is certainly strange that there should have been so wide a difference, and I regret it. Without complaining, as I said, of the decisions of the Court, it can only be accounted for from the fact that the attorneys representing the government in this case have strained every principle of law, and invoked in their behalf every discretionary power of the court, as against the prisoner."
Notwithstanding his semblance of disclaimer, Mr. Merrick here makes an appeal to the jury, on the implied charge of partiality on the part of this Court. In giving his charge to the jury Judge Fisher very properly takes notice of this charge, and effectually rebukes the arrogance of the counsel in the following language: "Much stress has been laid by the counsel for the defense upon the fact, which they assert, that during the progress of this trial more than one hundred and fifty exceptions have been taken to the rulings of the court concerning the admissibility of evidence. If they have found themselves under the necessity of calculating the number of these exceptions, and parading them before you, with a view of having you render a verdict according to irrelevant evidence not before you, rather than according to the legal evidence which you have heard, I have no disposition to criticise their taste, but leave them to present their case in their own way. At the same time I feel it my duty to remark to you that if counsel will be so bold as to present propositions to the Court which every tyro in the profession ought to know are untenable, it does not necessarily follow that the judge must always be so weak as to sustain them. It has heretofore been supposed that exceptions to the rulings of a judge at nisi prius were intended to be passed in review before the appellate tribunal. I have never before known them to be neatly calculated and presented to the jury by way of argument."
A jury is sworn to decide according to the law and evidence in the case. But how are jurors to decide according to the law, not being acquainted with law? It is manifest they cannot take their instructions on the law from the counsel employed in the case, as they will naturally differ widely in their constructions of law. It is made, therefore, the duty of the court, an impartial tribunal, skilled in law, to instruct the jury on all the points of law involved in the case. In this remarkable case the counsel for the defense, feeling that the court could not sustain the interpretations of the law on several important points which they had endeavored to impress on the jury in their arguments, took the remarkable position that the jury was to be its own judge of questions of law. Mr. Merrick, in the course of his argument, took this position, and argued it at some length, as follows: "The jury is specially charged, it is true, with the fact; but they are also charged with the law. You are to instruct them by your learning, your wisdom, and by your authority. You are to advise them; but they must know and they must believe. My learned brother on the other side (Mr. Carrington) seemed to feel that it was necessary to press you, gentlemen, very hard upon your obligation to follow the instructions of the Court. I have never heard him say that before. Other cases have been tried before this, but I have never heard him talk so earnestly to the jury about being obliged to follow the instructions of the Court. Why is he so solicitous in this case? Does he think you won't dare to do right? He told you, gentlemen of the jury, that you were sworn to try this case according to the law and the fact, and that you must take the law from the court; and if you departed from the law so given you, you would be perjured. I tell you it is no such thing. If you find a verdict of guilty, and do not believe the party to be guilty in every particular, in your judgment and in your hearts, then you are perjured men, I care not what the Court's instruction is.
"Has my learned friend read the oath? I don't think he has. Mr. Clerk, will you be kind enough to read it." (The clerk then read the oath.)
Mr. Merrick resuming, said: "Where is the law? Why did you tell the jury what you did? The language is, 'And a true verdict give according to the evidence.' My learned brother has had that oath ringing in his ears for six years. Why didn't he tell you what it was? You are, gentlemen, to find a verdict according to the evidence. What sort of verdict are you to find? Guilty, or not guilty. That is all you can say. You cannot say 'Guilty,' under the Court's instruction, or 'Not guilty,' under the Court's instruction. If you say 'Guilty,' you say 'Guilty as indicted,' upon your conscience resting the weight of the guilt. If your verdict should be 'Guilty,' it will be followed by blood, for you see there is no mercy anywhere in those that represent the government. If your verdict is guilty, then, indeed, you look upon a dying man. Upon your consciences will rest the responsibility of that verdict.
"And let me say to you, gentlemen of the jury, that on that awful day when you shall stand before the last tribunal to be judged, and the All-Seeing Eye shall look into your hearts and ask you why you found this verdict of guilty, think you He will harken if you say, 'The judge's instructions made me do it.' He will say to you, 'Were you not free agents, with minds and intellects, sworn as a jury in a free country? Were you not told by the counsel for the prisoner at the bar that it was your duty to find this verdict according to your judgments, your consciences, and didn't you disregard him?'
"If Judge Fisher's instructions made you find it, bring Judge Fisher. Where is the Judge? Think you he will step forward and say, 'I will take the burden.' No, gentlemen. Let me say to you now, that by the laws of the land, and by the laws of God, the responsibility is on the judge to instruct you rightly, to guide you correctly, to give you wise and judicious counsel, not as mandatory and binding on your conscience, but as advisory to your judgment, to enlighten the pathway you are to tread in your investigations. We shall ask no instructions, and desire none. The law of murder is too plain to need any, and you, gentlemen, are too intelligent not to understand it. Indeed, if we desire some explanation, we would prefer to give it to you in the way of argument, rather than trust it to the distinguished judge who presides. We would trust it to argument, because, with regard to these plain questions, all men can comprehend what the law is. We would prefer trusting it to the weight of our own character with the jury as men and lawyers." After this ingenious appeal to the jury, the learned advocate then proceeded to recount and expound the propositions of law on which the District Attorney had invoked the instructions of the Court.
Judge Fisher in charging the jury made the following reference to this remarkable argument by Mr. Merrick: "You have been told, gentlemen, by the counsel for the defense, in a manner not very respectful, certainly by no means complimentary to the Court, that you are the judges of the law as well as the facts in criminal cases, and that you have the right to disregard the instructions of the Court in matters of law; and they tell you that their expositions of the law, and the weight of character they possess, may be more safely relied upon than the instructions which may be given you by the Court. The weight of character of a prisoner's counsel would be a variable, and not unfrequently a very unsafe criterion by which the jury should judge as to the law of his case. Perhaps they would have you regard the court as sitting on the bench merely to discharge the duty of preserving order and decorum in the court room, which probably the crier of the court or baliff might be disposed to regard as an usurpation of his prerogative. If the jury are entirely to disregard the judge's instructions as to the law of a case, I confess I can see but little left than that for him to perform.
"It is true, gentlemen, that you have the power, and in cases where your consciences are satisfied that the instructions of the Court are dictated, not by an honest desire to enlighten the jury as to the true state of the law, but by corrupt and wicked motives, you have the right to disregard the instructions purposely intended to mislead you. But to claim that the jury are better judges of what the law may be than the Court, is about as reasonable as to assert that a plain farmer or merchant may be taken fresh from his plough or his counter, and be more capable of navigating and manœuvering a steam frigate, or to lead your armies to certain victories, than your admiral or commander-in-chief. In my opinion, you have just the same right to disregard the evidence of the witnesses who stood before you unimpeached in any matter respecting the facts involved in the cause, as you have to disregard what the Court may say to you, under an official oath, as to the law that may apply to the facts. A jury have the power, if they choose to exercise it, after having assumed the obligations of an oath, to say that they will neither believe the judge nor the witnesses, but decide upon the law and facts according to their own caprice, or the confidence which they may repose in the character of counsel on either side, but such is not the purpose for which juries were instituted, and they have no right so to act. When the witnesses in the cause have testified before you as to the facts, it is then the office of the judge, under his official oath, to testify to you in the spirit of truth, according to the best of his knowledge and ability, as to what is the law which may be applicable to those facts; and an honest jury will disregard neither the testimony of the witnesses nor the instructions of the judge, unless they are satisfied that corrupt motives have actuated them. They will leave the party where the law leaves him, to his legitimate redress,—a writ of error to the appellate court."
Referring to the course of counsel in this illegitimate appeal to the jury in their argument on this point, and to their appeal, based on the number of their exceptions to the rulings of the Court, the judge made this further remark in vindicating the position and dignity of the Court: "In reference to these matters I may observe that, perhaps, I owed it to the dignity of the bench to have interrupted counsel in the conduct of the case in this particular, but in a cause involving the life of the prisoner upon the one hand and the vindication of the outraged justice of a nation in mourning upon the other, I deemed it my duty to cast not an atom in the one scale or in the other which might by any possibility tend to prejudice either side of the issue."
The conduct of this trial on the part of the defense toward the witnesses for the prosecution was most remarkable. The law prescribes the methods by which testimony is to be discredited, and the eminent lawyers who defended the prisoner were of course well acquainted with the legal methods of impeaching testimony. That they did not confine themselves to these was not only unprofessional, but was calculated to create a suspicion that they had an intuitive perception of the fact that the methods known to the law would not avail them in this case. Hence from the first they attempted to influence the jury by treating the government witnesses with supercillious contempt, and even scorn.
They did not, however, stop here, but whenever they could find or make an occasion they would throw out insinuations against the witnesses en masse by side remarks intended for the ears of the jury.
They spoke of the witnesses who were kept together in a room, to be called as they were needed, as being in the "penitentiary," and added to this that "they would soon be in another penitentiary."
On the examination of Dr. McMillen, the surgeon of the ocean steamer "Peruvian," in whose charge Father La Pierre had placed Surratt under the name of McCarthy, and to whom Surratt had made confessions during his voyage across the Atlantic that were conclusive of his guilt, the counsel for Surratt made themselves so offensive that the witness was provoked to a retort in self-defense.
This witness was intolerable to them because of the directness and force of his testimony. In self-defense the Doctor was provoked into making the following remark: He said he would tell the counsel (Mr. Merrick), and if he was not deaf, he could hear, and repeated his answer, adding that Mr. Merrick had insulted witness the other day, and that it was the act of a coward and a sneak. The Court here cautioned the witness that such language was not becoming, but also remarked "that it was not becoming in counsel to try to worry witness into bad temper."
Witness stated "that Mr. Merrick had remarked the other day that all the witnesses in the adjoining room ought to go to the penitentiary, or something to that effect; that he was just as good as Merrick."
On the following day, at the opening of the court, Mr. Bradley said: "If your honor please, before we proceed with the trial of this case, I beg leave to call the attention of the Court to an incident which occurred just before the adjournment yesterday, and to ask that the notes of the reporter may be read. Your honor was very much occupied at the time, and I desire that the record may be read in order that you may see what passed, and what led to the attack made by the witness upon the stand upon the counsel with whom I am associated, your honor, without having heard what passed at that time, if not in precise words yet in substance, censured the counsel to whom these observations were addressed. I think, in looking at it, your honor will see that there was no provocation given; and that if there was, it is due to the dignity of this court, and to the protection of the members of the bar, to which they are entitled at the hands of the Court, that some notice should be taken of what then passed." After the reading of so much of the report as related to the matter, the Court spoke as follows: "I did not hear what was said by the witness in regard to the gunboats, for the reason that I was at the time occupied in preparing some passes for a friend. When my attention was called to the remark made use of by the witness towards the counsel, I was under the impression that he had been provoked to it by something that had been said by the counsel. I cannot, however, perceive in the record which has been read anything which ought to have called forth, or which justifies, the expression of the witness. I will say now to the witness, that although Mr. Merrick did say a few days ago, in regard to the witnesses who were in the adjoining room (which Mr. Bradley had called a penitentiary) that they (the witnesses) would soon be in another penitentiary, or words to that effect, it is not the privilege of a witness to take exception in the way he did to any remarks made in the court room. He may appeal to the Court to protect him if he is aggrieved." [Turning to witness] "You must not, hereafter, in your examination, make use of any expressions to counsel which are at all insulting in their character, however much you may feel yourself aggrieved by remarks which they may have made in reference to witnesses generally, or in reference to yourself before your examination.
"In this connection it may not be improper to observe that I have never, in all my judicial experience, seen a case in which there has been so much trouble with regard to the examination of witnesses and so much bitterness of feeling displayed.
"It may be all right, but I confess I see no reason why it should be so. I cannot, of course, enter into the feelings of counsel, and it is possible they may feel themselves aggrieved, and therefore regard themselves as justified in exhibiting this spirit. I will say, further, that I have never seen witnesses cross-examined with so much asperity as I have in the case now pending. It does not appear to me, therefore, as at all strange that witnesses should be worried into such remarks as this witness has uttered, especially when intimations are publicly thrown out by counsel as to their fitness for the penitentiary, and that, too, when some of the most respectable persons in the land, such, for instance, as General Grant and Assistant Secretary Seward, are among the number. And not even was the effect of the remark allowed to stop with the intimation, but when attention was called to it by the District Attorney, in the hope, I presume, that it would be recalled, it was repeated, and with the additional observation that the propriety of the remark could be shown. When such things occur it is not at all surprising that witnesses should come here prepared to avenge themselves by making insulting replies to the counsel. I deeply deplore it, and will endeavor, by most carefully observing all that transpires, to prevent a similar recurrence on the part of either counsel or witnesses; but however watchful the Court may be, such things will occasionally break forth at times and under circumstances when, from not expecting it, it is impossible for the Court to check them." [Again addressing himself to the witness.] "Dr. McMillen, you are highly reprehensible for having made such remarks as that to which exception has been taken. It was altogether out of place. If you felt yourself aggrieved by any remark, you should have called on the Court for protection. You will now proceed to give your evidence, and in a manner respectful to the counsel. If the counsel on either side shall treat you with what you conceive to be disrespect, you will appeal to the Court, and the Court will intervene for your protection. I would, however, suggest to gentlemen on both sides that in the examination of witnesses, if they will consult Quintilion and Allison in regard to their duty in this respect (and no doubt they have read the remarks of both these authors on the subject), they will find that those writers say nothing is to by gained by a bitterness of manner toward witnesses either on examination in chief or cross-examination, but that everything may possibly be gained by kindness and conciliatory manners; and I think it would be a decided improvement in this case if their suggestions were accepted. In the course of the five years that I was engaged in prosecuting criminal cases, I do not recollect ever to have had an unkind word with a witness on the one side or the other, and never in a civil case except on one occasion, when a witness of my own turned against me. Then I was led away by a natural quickness of temper. I advise that we should all, to the best of our ability, endeavor to control our tempers in conducting this case; and then there will be no fear of a repetition of the unpleasant occurrences that have happened during its progress."
To this Mr. Merrick replied: "I feel it incumbent upon me to say, after what has fallen from the Court, especially as your honor seems to have the impression that I intended my remarks to apply to all the witnesses, including Secretary Seward and General Grant, that while your honor misunderstood me in this regard, I do not believe I was misunderstood by some others outside, in supposing I intended to embrace all the witnesses in that remark. I will here say that I have the greatest respect for General Grant and Mr. Seward, and I apprehend that among the witnesses in the case it is perfectly well understood to whom I referred and to whom I did not refer. I apprehend that no sane man can suppose that I meant any such reference to General Grant, Mr. Seward, or Mrs. Seward, and that class of witnesses. I will only say, in conclusion, that I think, without any further explanation, or more direct pointing of the remark at present, it is perfectly well understood among the witnesses to whom the remark referred."
To this the Court replied: "I do not know whether it is understood or not. I cannot understand it, because I am bound not to know the witnesses, either as regards their own private character, or the character of their testimony, and I enter into the trial of this case knowing nothing, as it were, about either, scarcely ever having glanced at the testimony, and of course, therefore, I cannot enter into the feelings of counsel on the subject. I do not know to what witnesses these remarks may be directed, but this I do know, that there are certain legal methods pointed out in the text books of the law by which we are to be guided in undertaking to discredit the testimony of witnesses. One method is the discrediting of the witness by himself; by his own contradictions, and by his mode and manner of testifying. Another is by proving the witness to be utterly devoid of reputation for truth and veracity, and not to be believed on his oath. Another is by contradicting him by the conflicting testimony of other witnesses. These are the legal modes that are pointed out in the law books, and any side remarks that are made by way of prejudicing a jury, any acting in the case, the casting of sinister looks at the jury, are departures from the rules laid down.
"The examination of a witness ought to be conducted by the witness standing up and the counsel standing up, and looking each other in the face, without the counsel directing his remarks to the jury by turning towards them instead of turning towards the witness. That is the proper way to conduct either an examination in chief or a cross-examination."
The fact that the Court deemed it necessary to deliver such a lecture as this to counsel, who were men of age and experience in their profession, and who from their reading ought to have been as well informed as the Court on the proper treatment of a witness and the legal methods of discrediting testimony, indicates that he had found in their conduct such flagrant departures from the requirements of law and professional conduct a necessity for such criticism and such admonitions. The opinion of the Court as thus expressed fully justifies me in the charges I have made against the conduct of the defense and their unprofessional efforts to discredit testimony. I am still further justified in it by the remark of Mr. Merrick that they (the counsel for the defense) "had laid at the feet of the attorneys a mass of the most corrupt battalion that was ever summoned to support a cause in a criminal court."
Here Mr. Merrick attempts to set aside all of the testimony that had been offered by the government proving the guilt of the prisoner, by denouncing it as corrupt throughout, and unworthy of the slightest consideration. This would certainly be as easy a method as it would be novel to throw out testimony en masse upon the mere ipse dixit of counsel, and in consequence of the legal standing and weight of character claimed by them with such manifest self complacency, but when we consider the fact that upon a candid and careful scrutiny of all the testimony in the case, it could be set aside in no other way, we could not perhaps reasonably expect them to refrain from trying to get the benefit of all the method that was left them.
The most important witnesses introduced by the government and those who most unequivocally proved the existence of a conspiracy and the connection of the prisoner with it, as also his participancy in its accomplishment, and also the fact that his mother belonged to it and performed a part in preparing for its accomplishment, had stood every test that ingenuity could devise to discredit their testimony. Some of them had been kept on the stand under cross examination for nearly two days, and could not be made to discredit their own testimony, either by contradictions or mode of answering. Neither had they been discredited by proving that they were utterly devoid of character for truth and veracity, and not to be believed on oath. The attempts at their contradiction by the conflicting testimony of other witnessess had all proven miserable failures, and so the counsel for the defense attempted to have their client declared innocent by scouting all of the evidence in the case and offering their own convictions of his entire innocence, and referring the jury to their weight of character and legal standing to enforce their opinions on the jury as grounds for a favorable verdict for their client. Never did able lawyers deal more unfairly with witnesses nor with evidence, nor more wantonly set at naught the established rules of evidence, not only in the respects referred to, but also in the efforts that they made to introduce testimony which they must have known to be inadmissible under the rules of evidence, as already shown in the number of exceptions which they not only took to the rulings of the court, but kept count of and paraded before the jury. Their animus toward the government was also shown in this matter of testimony, as also in other ways to be hereafter noticed. They charged the government with presenting testimony on this trial that it knew to be false, and withholding testimony from the military commission that would have proven the innocence of Mrs. Surratt. To sustain the first charge, they asserted in regard to the handkerchief found by Blinn at the Burlington depot, that it had been dropped by a government detective, and not lost by Surratt. Blinn, however, was positive in his testimony that he found the handkerchief on the morning of the 18th, but the handkerchief which Hallohan, the detective, claimed to have lost, was lost at Burlington on the morning of the 20th of April. He did not discover its loss, however, until he got to Essex Junction, and did not know where he had lost it. The handkerchief found by Blinn on the morning of the 18th, and put in evidence by the government, could not therefore have been the handkerchief that Hallohan claimed to have lost. There was also too heavy a cloud of uncertainty hanging over his (Hallohan's) testimony after his cross-examination, to have warranted the counsel in making so serious a charge against the government as that it knew that Hallohan, and not Surratt, lost the handkerchief.
In further proof of the charge that they disregarded and set at naught the rules of evidence, they tried to get in a statement by John Matthews of the contents of an article put into his hands by Booth on the afternoon of the 14th of April, with a request that if he (Booth) did not see him before 10 o'clock on the following morning he should hand it to the National Intelligencer for publication, and which Matthews, after the assassination, had burned, thinking it would put him in danger to have such a thing found in his possession. They proposed to prove by this witness that neither the prisoner nor his mother were in the conspiracy. Of course they knew that they could not prove the contents of a paper that would have been inadmissible even if it had been presented. But if they had had the paper in their possession they could not have proven anything by it, as it was represented to be a paper prepared by Booth to justify himself in the crime he had in contemplation, and would have been no more admissible as evidence than the diary which Booth kept during his flight, every entry in it having been made in view of his probable failure to make his escape, and with the intention of palliating his crime. It was of no more value as evidence than was his assertion of the entire innocence of his companion, Herold, just a few minutes before he was shot. Yet they censured the government for not putting this diary in evidence before the Commission, asserting that its reason for withholding it was that it would have proven the innocence of Mrs. Surratt, thus by implication asserting that the government was thirsting for her blood, and was determined that she must be convicted right or wrong.
This position was boldly taken by them in their arguments, as we shall hereafter see, in the face not only of the evidence on which she was declared guilty by the Commission, but also in the face of that presented on this trial, which much more clearly and fully established her guilt. I have thus been careful to show from the record that I am justified in the strictures I am making on the course of the defense. I would be sorry to do any injustice to these men if they were here to answer for themselves, much more so now that the two senior members, Mr. Bradley and Mr. Merrick, are numbered with the dead. My charitable conclusion in their behalf is that their political opposition to the government so prejudiced their minds that they could not bring themselves into a judicial frame for the trial of this case. Their religious sympathies with Mrs. Surratt, and their ready acceptance of the assertion of Father Walter that she was "as innocent as the newborn babe," so influenced their minds that they would reject as false any testimony whatever that went to establish her guilt. Their sympathies then would naturally lead them to conduct the defense of her son in the same spirit of determination to hold him innocent in spite of all adverse testimony. The prisoner found his counsel in a state of mind to readily accept the ingenuous fabrication which he had had two years to get into form, as also no doubt the able assistance of the Reverend Fathers who so sedulously watched for his return to Canada after the murder of the President, and who at once took him under their protection on his return to Montreal, and kept him secreted for five months, until they could get him landed in the Pope's dominions; and then when he was brought back and put upon his trial, stood by him from day to day with unfaltering fidelity, until he was set at liberty.
The story which Surratt gives in his Rockville, Md., lecture, which bears throughout the marks of the "fine Italian hand" of the Jesuit, and which is contradicted in all of its most important points by the whole run of the testimony in the two trials, had no doubt been accepted by his counsel as true, and hence they would hear no testimony that conflicted with it; but were ready to accept any evidence whatever, without regard to the character of the witnesses, that corroborated it. This, in the opinion of the author, is the most charitable construction that can be put upon their conduct in the management of their case. Their eyes were blinded by their all controlling prejudices, and bitter opposition to the course of the government in sending Surratt's co-conspirators before a military commission for trial. We shall now proceed to give the evidence of their feelings toward the government in this matter. They could apparently find no words bitter enough to express their abhorrence of the trial by a commission.
As John H. Surratt and his mother were bound up in the same bundle by all the testimony in the case, and his mother had been found guilty upon this testimony by the court before which she was tried, his counsel seemed to feel the necessity of getting rid of the effect of this fact, in its bearing on their case. That I may not be accused of doing them injustice in presenting their mode of doing this, I will let them speak for themselves.
In the examination of jurors on their voire dire, Mr. Pierrepont asked the question: "Have you formed any opinion in regard to the guilt or innocence of the other conspirators?" The question was objected to by the counsel for the defense, and Mr. Merrick, to sustain his objection, said, among other things: "I presume there is scarcely a gentleman in the United States who has not formed and expressed the opinion that Booth shot Lincoln. I apprehend there are very few who have not formed and expressed an opinion that the mother of the prisoner at the bar suffered death without competent testimony to convict her, and so we might go through in an inquiry in relation to all the others." In replying, Mr. Pierrepont said: "The reason urged by my learned friend against it is, that he believes, I do not know but that he asserts, that there are very few in the United States who do not believe that Mrs. Surratt was illegally executed. Therefore we could not get a jury competent to try the prisoner at the bar if this question is allowed to be put."
Mr. Merrick [interrupting]. "My brother will allow me to say that he did not state my entire proposition. I said there were few intelligent persons in the United States who had not formed an opinion upon the question of Booth's participation in the killing of Lincoln; and there were also, I presumed, but few persons who had not formed an opinion that Mrs. Surratt had been executed upon insufficient evidence."
Mr. Pierrepont. "Precisely; that is the very statement, except that my friend has made it a little stronger than I did.
"I did not intend to overstate it, as there is nothing gained by overstatement, but it seems I did not come up to the mark."...
In his opening for the defense, Mr. Joseph H. Bradley, Jr., said: "We have at last arrived at that stage of this case when an opportunity is afforded the prisoner for saying something by way of defense, not only of his own character, his own reputation, his life and his honor, but also as it shall rise incidentally in this discussion of this evidence before you, something in the way of vindicating the pure fame of his departed mother." Again. "As to Mrs. Surratt we hope to satisfy you that a grave error has been made in her case." Again Mr. Merrick, in his argument on the motion to strike out certain testimony, said: "The counsel had said, if it was anything favorable, the defense would insist on it; if anything unfavorable, they would not desire it. All he had to say in reply was, that he would insist on the free confession of all who had testified in the case, if he could get it. He would like to have had the privilege of putting in whatever this poor boy's butchered mother said, but had not. When he offered what she said, counsel on the other side said, 'No, you cannot prove that. We can prove what she said that will benefit the state, but you shall not throw the mantle of a mother's declarations over the child standing in the prisoner's dock.' Had we been allowed, we would have proved her declarations—proved them when tottering from the dungeon to the scaffold, with the world behind her, and nothing in the front but that God before whom she was shortly to appear, and before whom she solemnly asseverated that she was innocent of the crime for which she was being killed."
To all these charges and assumptions the District Attorney, in his argument upon the evidence, replied as follows: "Well, I do most kindly but most respectfully and emphatically repudiate the unjust imputation that Mary E. Surratt has been murdered, as was alleged by one of the counsel, and butchered as alleged by another. Where is the evidence to justify it? If they have a right to make this accusation, have we not a right to reply to it? For what purpose was it introduced before this jury? Is it to appeal to your prejudices? I make no such accusation against the gentlemen; they charge it home upon us when they say a murdered and a butchered woman. I deny it, and I undertake to prove to the contrary."
Mr. Bradley, interrupting, said "he supposed this threw the whole subject open for discussion." The District Attorney rejoined: "It had been introduced by the learned gentlemen on the other side." Mr. Bradley replied "that he was not aware what evidence there was on which this question could be discussed. But if it was understood that the whole subject was open, and that the counsel for the prisoner could not be interrupted in their discussion of it, he was satisfied."
The District Attorney. "Then why make allusion to it in the first instance? Who cast the first stone in the presence of this jury?
"I regret that it should have been necessary for an American woman to be executed by the judgment of an American tribunal. That verdict has been rendered by an American tribunal, and the consequence of it was the execution of an American woman. I know the character of the American people. I know that imagination revolts at the execution of one of the tender sex. But when the daughter of Herodias murdered John the Baptist, she deserved death. When Lucretia Borgia darkened the history of her country by her horrid crimes, she deserved death. And when Mary E. Surratt murdered Abraham Lincoln, the great moral hero of the age in which he lived, the patriot and philanthropist of the nineteenth century, she deserved death. There is no man who has a heart more capable of love for woman than myself. But when she unsexes herself, when she conceives, when she encourages, when she urges on, and is instrumental in committing the crime of murder, she places herself beyond the pale of protection. The best wife who ever lived, according to Milton, our great mother Eve, is thus represented as speaking to her husband:—
"I believe in submission on the part of women; submission to her God, to the laws of her country and to her husband. But when a woman opens her house to murderers and conspirators, infuses the poison of her own malice into their hearts, and urges them to the crime of murder and treason, I say boldly, as an American officer, public safety, public duty, requires that an example be made of her conduct. Murder! gentlemen of the jury. Who composed that military commission? They are no better men than you are, but you will not be offended with me if I say they are as good men as you are, or I, or any of us." Naming over the officers who constituted the tribunal by which Mrs. Surratt was tried, he continued: "I say, gentlemen of the jury, that they are good men, holding commissions under the government of the United States, and they are presumed to be honorable men. The law declares that every private citizen, and every public officer who is a servant of the American people, is presumed to be honorable until the contrary is proved.
"Your officers, your men, your representatives in the American army, in an accusation which will travel upon the telegraph wires perhaps to the four quarters of the world have been denounced, if not expressly, by implication, as murderers and butchers who took the life of an innocent woman. If so, when you come to try them, and you believe it, say it, but it is not the question submitted to you now. She may be innocent and the prisoner at the bar be guilty; the subject was introduced collaterally by the learned counsel, for what purpose I know not, except for effect. Before you brand these gentlemen with the character of murderers, see that you have relevant grounds to act upon. Take care, or you may be placed in the same situation; I have not charged it, and I do not think my friends would, upon reflection, charge men who are placed in such a solemn obligation with such a dereliction of duty. It has been said that this has been pronounced by the Supreme Court of the United States an illegal tribunal. What has that to do with the action of these officers? What has that to do with your action? What pertinency can it have to the issue now submitted to you for your decision? But, gentlemen of the jury, let us first consider the character of this crime, and then I will consider briefly the connection of Mrs. Surratt with it. I do not desire to say much about her; she has gone to her grave, and her spirit has passed before her Eternal Judge."
After recounting the character of the crime, the District Attorney thus refers to Mrs. Surratt's connection with it: "Now, gentlemen of the jury, let us view the connection of Mrs. Mary E. Surratt with this assassination. I feel the delicacy of the ground upon which I stand. I know the situation. I know that you dislike to consider this question, which has been forced upon you. I do not want to do it. My duty is to prosecute the prisoner, but one of the counsel has said she was murdered, and another that she was butchered, and it therefore becomes my duty to trace her connection with this crime, and then leave it to you to say whether she was guilty (though not relevant to this case), of the crime for which she suffered. First, I call your attention to a fact to which we have already adverted; that her house, 541, was the rendezvous for these conspirators. Now, gentlemen, will you pause for a moment, and let me ask you how you can reconcile it with innocence? You remember the law, that it is not how much a party did, but whether she had anything to do with it. Can you, I say, reconcile it with innocence that this woman's house should have been the rendezvous of John Wilkes Booth, Lewis Payne, Atzerodt, Herold, and John H. Surratt? Would you not know by intuition? Would you not know by their conversation? Would not your judgment and your hearts tell you who they were and what they contemplated?
That is the great central truth, which I defy the learned counsel for the defense successfully to assail. Secondly, who furnished the arms with which the bloody deed was done?... The woman who puts an arm into the hand of her lover, her son, her brother, or her husband, who urges him on to the deed, by the law of God and of man is equally guilty with the one who with his own hand perpetrates the crime. According to the testimony of John M. Lloyd this is shown. Do you believe him or disbelieve him? My friend, Mr. Bradley, who opened this case said he was a common drunkard; but mark you, he was an attendant and friend of Mrs. Surratt."
Mr. Bradley. "Who says so?"
The District Attorney. "I will prove it. When I was examining that witness, and proposed to ask him certain questions in reference to Mrs. Mary E. Surratt, he said, 'Mr. Carrington,' for he knew me personally, 'I don't wish to speak about Mrs. Surratt, for she is not on trial.' I said 'Go on, Mr. Lloyd.' He declined. I applied to the Court, and the Court said that it was his duty to answer. He saw her continually. He lived in her house; he drank her liquor. Why, this evidence shows that John H. Surratt, Herold, and John M. Lloyd played cards and drank together.... But says the friend and companion of the prisoner at the bar,—the confiding and confidential agent of his mother, unwilling to testify against her when put on the solemn sanction of an oath, but when required to do so he speaks out,—he says certain arms were furnished him by the prisoner at the bar; that he concealed them, the prisoner showing him where they could be safely concealed, he protesting at the time against it, protesting that it might get him into some personal difficulty. The mother knew of the transaction, for on the 11th of April we have Lloyd's own testimony; she asked him where those shooting-irons were, and said they might soon be needed, or words to that effect. But I am going too fast, for I do not desire to speak to confuse you. I say, first, that her house is the rendezvous; and that, secondly, she furnishes arms, or knows of their being furnished. On the night of the 14th of April, Booth and Herold returned, and are leaving the city of Washington in flight for their lives. At Surrattsville they called for whiskey from the agent and friend of the prisoner and his mother. She gives them a home, gives them arms, gives them whiskey, not to nerve them but to refresh them after the commission of their horrid crime.
"But Booth, in making his escape, needs something more than whiskey and arms.
"It is necessary that he should secrete himself as he traveled through the country, and that he should see persons approaching him from an immense distance, he needs a field-glass, and has it delivered to him by his friend and agent, Mrs. Surratt." With the defense no witness told the truth whose testimony went to convict their client, whilst the stories of the most infamous men, self-confessed scoundrels and accomplices after the fact, if not before, such as Father Boucher, and Reverend Cameron, must be taken as gospel truth.30 In the face of all this testimony the counsel for the defense again bring their false accusations against the government. Mr. Merrick in the course of his argument, said: "Does the Attorney General feel that public justice demands that he should employ assistant counsel in this case, or is there somebody else behind?"... "Are there any other officers of the federal government that have purposes to accomplish in this case? Says the learned attorney on the other side (Mr. Pierrepont) in a speech delivered I think before you were impaneled:—
"'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 even being reached for the purpose of seeing whether he would not exercise clemency; whereas the truth, and the truth of 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. This and a thousand others of these false stories will be all set at rest forever in the progress of this trail; and the gentlemen may feel assured that not only are we ready, but that we are desirous of proceeding at once with the case.' Now if this declaration of my learned brother on the other side is correct, this trial was not entered upon for the purpose alone of inquiring into the guilt or innocence of the prisoner at the bar. It was not entered upon because public justice demanded his arraignment, before you, gentlemen, but in order that a thousand false stories about men high in office might be settled at his expense.
"Then, although my learned brother is here under appointment by the Attorney General of the United States, yet it is an appointment which probably had its origin in the stimulus of some private feeling lying behind. He comes here, not to try this case alone, but he comes here to set at rest certain false stories. Has he done it?"... "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? We were not going to quarrel about it; we would like to know all we can about the dark secrets of those chambers whose doors are closed, but from which light enough creeps to make us anxious to look within. We only know enough to make us curious; but that is enough to make us feel. You were going to show, too, that nobody prevented access to the President on the part of those who waited to get a pardon. Why didn't you do it? Gentlemen of the jury, I should have been glad to have heard that proof. They have brought these charges into the case and I must meet them as part of the case. I should have been glad to have heard that proof. Who of you who was in the city of Washington, will ever forget that fatal day when the tolling of the bells reminded you of the sad fact that the hour had come when those people were to be hung? Your honor (referring to Justice Wylie, who was at the time sitting beside Judge Fisher on the bench), in your praise be it said, raised your judicial hand to prevent that murder, but it was too weak. The storm beat against your arm, and it fell powerless in the tempest. You remember that day, gentlemen. Twenty-four hours for preparation. The echoes of the announcement of impending death, scarcely dying away before the tramp of the approaching guard was heard leading to the gallows. Priest, friend, philanthropist, and clergyman went to the Executive Mansion to get access to the President, to implore for that poor woman three days respite to prepare her soul to meet her God, but got no access. The heart-broken child—the poor daughter—went there crazed, and, stretched upon the steps that lead to the Executive chamber, she raised her hands in agony and prayed to every one that came, 'O God! let me have access, that I may ask for but one day for my poor mother—just one day.' Did she get there? No. And yet, says the counsel, there was no one to prevent access being had. Why don't you prove it? O, God! if such a thing could have been proved, how would I not have rejoiced in that fact; for when reflecting upon that sad, unfortunate, wretched hour in the history of my country—an hour when I feel she was so much degraded, I could weep until the paper be worn away with the continual dropping of my tears. Who stood between her and the seat of mercy? Has conscience lashed the chief of the Bureau of Military Justice? [Gen. Joseph Holt.] Does memory haunt the Secretary of War? Or is it true that one who stood between her and Executive clemency now sleeps in the dark waters of the Hudson, while another died by his own violent hand in Kansas?
"The learned gentleman is right. He did come here to put these things at rest, or to endeavor to put them at rest; but he could not do it. What else is there in this case to show a feeling behind, besides public justice impelling to conviction? Gentlemen of the jury, as the counsel has stated in his speech, public rumors had gone abroad, and certain grave charges had been made. You know that political accusations had been brought against Judge Holt, Mr. Bingham, and the Secretary of War, in the House of Representatives, and that it had become a political matter." (Mr. Merrick here referred to an effort that had been made by rebel sympathizers in Congress to make political capital out of this transaction.) "There were parts of those accusations that the learned counsel was going to put at rest. Where is the proof? The proof is in this; follow me for a moment.
"I said I would show there was a conspiracy on conspiracy. What has the chief of the Bureau of Military Justice got to do with this case? Does not your honor hold an independent court? Is not the judicial tribunal of the land separate from the executive? Is it not a fundamental principle of American constitutional law that the executive and judicial departments shall be distinct and separate? The Bureau of Military Justice is a part of the executive department. What has he to do with this case? Nothing, says the counsel. Is he counsel? we ask. No, say they. Why, then, is he manipulating their witnesses in this case? Smoot, one of their witnesses, tells you that he is called up before Judge Holt, with ten others, examined, and his examination was taken down in writing. The day after giving his testimony he comes back and says that it was not Judge Holt that examined him, but was somebody else.
"I pressed him, pressed him hard, as to the place and time. He then recollected it was in the Winder Building, opposite the War Department; and when I pressed him still further, he had to say that the office he was in had written over the door 'Judge Advocate General's office.' Again I ask what had the Judge Advocate General to do with this case? Not only was Smoot there, but Norton was there, and God only knows how many more. It is apparent, then, that he has taken a deep interest in this case. Why is he taking such an interest? It is certainly indiscreet. He has lost his prudence and he has lost his discretion; he has lost his judgment thus to expose himself and his office in a criminal prosecution.
"Mr. District Attorney, gird on your loins and answer me. Whose discretion is broken down? Whose prudence is betrayed? Is there anybody else's heart at which the vulture gnaws? Is there any high and great man who is forgetting the dignity of his office and the duties of a moral creature so far as to descend to the preparation of witnesses with which he has nothing to do to satiate his hunger with the blood of an innocent being?... But I am now speaking of the Bureau of Military Justice. He you know has furnished the evidence in this case."
Mr. Merrick then went on to charge the government with preparing and presenting evidence against Surratt that it knew to be false, and then proceeded as follows: "No matter whether they knew the truth in this case or not, prudence has been betrayed; discretion has been broken down; courage has been conquered. Following on Judge Pierrepont's declaration, which I have read to you, and these circumstances, comes Mr. Carrington, breaking the cerements of the tomb, and demanding your verdict against Mrs. Surratt. In God's name isn't it enough to try the living? Will you play the gnome, and bring her from the cold, cold earth and hang her corpse? Bring her in; but there is no occasion for doing so; she is here already. We have felt our blood run cold as the rustling of the garments from the grave swept by us. Her spirit moves about, and the Judge Advocate General and all these men may understand that it is the eternal law of God, though, so far as men are concerned, fresh and innocent blood may apparently vindicate innocent blood previously shed, yet the spirit will still walk beside them.
"He may shudder before her, because she is with him by day and by night; and he may say—