Moore. WTlstajrtr& Baldwin THE ASSASSINATION 
or 
PRESIDENT LINCOLN 
AND THE 
TRIAL OF THE CONSPIRATORS 
DAYID E. HEROLD, 
MARY E. SURRATT, 
LEWIS PAYNE, 
EDWARD SPANGLER, 
SAMUEL A. MUDD, 
SAMUEL ARNOLD, 
MICHAEL O’LAUGHLIN. 
GEORGE A. ATZERODT, 
Containing the Orders convening the Commission; 
Rules for its guidance; Pleas of the accused to the Juris- 
diction of the Commission, and for Severance of Trial; 
Testimony in full concerning the Assassination, and 
attending circumstances; Flight, pursuit and capture of 
John Wilkes Booth; Attempted Assassination of Hon. 
W. H. Seward, Secretary of State. Official Documents 
and Testimony relating to the following plots: The 
Abduction of the President and Cabinet, and carrying 
them to Richmond; The Assassination of the President 
and Cabinet; The Murder of President Lincoln by pres- 
ents of infected clothing; The introduction of pestilence 
into northern cities by clothing infected with Yellow 
Fever and Small Pox; Starvation and murder of Union 
prisoners in Southern prisons ; Attempted burning of 
New York and other Northern cities; Poisoning the 
water of the Croton Reservoir, New York; Raid on St. 
Albans; Contemplated raids on Buffalo, Ogdensburg, 
etc.; Burning of Steamboats on Western rivers, Govern- 
ment Warehouses, Hospitals, etc.; Complicity of Jeffer- 
son Davis, Judah P. Benjamin, Jacob Thompson, George 
N. Sanders, Beverley Tucker, C. C. Clay, etc.; Jacob 
Thompson’s banking account in Canada; The mining of 
Libby Prison, and preparations to blow it up ; The “ dis- 
organization of the North” by a system of terrorism 
and infernal plots; Arguments of Counsel for the 
Accused; Reply of Hon. J. A. Bingham, Special Judge 
Advocate; Findings and Sentences of the Accused, etc. 
COMPILE!) AND 
ARRANGED BY BENN PITMAN, 
RECORDER TO THE COMMISSION. 
MOORE, WILSTACH & BALDWIN, 
PUBLISHERS; 
25 West Fourth Street, Cincinnati. 
New York, 60 Walker Street. 
1865. Mon* MeJ. 
zoo 
M A~ 3 So, 
)2 6 S 
By MOORE, WILSTACH & BALDWIN, 
In the Clerk’s Office of the District Court of the United States for the Southern District of Ohio. 
Entered according to Act of Congress, in the year 1865, APPROVAL OP THE SECRETARY OP WAR, ETC. 
Military Commission, Penitentiary, Washington, D, 0., \ 
Tuesday, June 20, 1865. J 
'.mo. Gen. Joseph Holt, Judge Advocate General: 
General—To satisfy the present public desire, and for future use and reference, it 
s certainly desirable that an authentic record of the trial of the assassins of the 
;ate President, as developed in the proceedings before the Military Commission, should 
be published: such record to include the testimony, documents introduced in evidence, 
discussion of points of law raised during the trial, the addresses of the counsel for the 
accused, the reply of the Special Judge Advocate, and the findings and sentences. 
Messrs. Moore, Wilstach & Baldwin, publishers, of Cincinnati and New York, are 
willing to publish the proceedings in respectable book shape, and I will arrange and 
compile, on receiving your approval. 
I respectfully refer to the printed work, “The Indianapolis Treason Trials,” as an 
indication that my part of the work will be performed with faithfulness and care. 
Very respectfully, your obedient servant, BENN PITMAN. 
Recorder to Commission. 
Indorsed and approved by— 
DAVID HUNTER, Maj. Gen. U. S. Vols. 
LEWIS WALLACE, Maj. Gen. U. S. Vols. 
ROBERT S. FOSTER, Brey. Maj. Gen. U. S. Vols. 
T. M. HARRIS, Brig. Gen. U. S. Vols. 
AUGUST V. KAUTZ, Brev. Maj. Gen. U. S. Vols. 
ALBION P. HOWE, Brig. Gen. U. S. Vols. 
JAMES A. EKIN, Brev. Brig. Gen. U. S. Vols. 0. H. TOMKINS, Brey. Col. U. S. Army. 
DAVID R. CLENDENIN, Lieut. Col. Bth Ills. Cav. JOHN A. BINGHAM, Special Judge Advocate. 
H. L. BURNETT, Brev. Col. and Special Judge Advocate. 
Bureau of Military Justice, June 30, 1865. 
By authority of the Secretary of War, the publication of the work referred to in the 
foregoing letter, will be permitted, on the condition that it be made without cost to the 
Government, and that it be prepared and issued under the superintendence of Col. 
Burnett, who will be responsible to this Bureau for its strict accuracy. 
J. HOLT, Judge Advocate General. 
Judge Advocate’s Office, Department of the Ohio, ) 
Cincinnati, October 2, 1865. j 
In obedience to the directions of the Secretary of War, through the Judge Advocate 
General, I have superintended the compilation and publication, in book form, of the 
record of the trial of the conspirators at Washington, for the assassination of the 
late President, Abraham Lincoln, and the attempted assassination of the Secretary of % 
State, Mr, Seward, other members of the Cabinet, and Lieut. Gen. Grant, and hereby 
certify to its faithfulness and accuracy. j, BURNETT, 
Judge Advocate Disi. of Ohio, and Special Judge Advocate of the Commission. 
The entire testimony adduced at the trial of the assassins of President Lincoln is 
contained in the following pages. It has been arranged in narrative form, to avoid 
unnecessary repetitions, and to present the facts testified to by each witness in a concise 
and consecutive form. The phraseology is that of the witness; the only license taken 
with the testimony has been its arrangement in historical sequence, both as to generals 
and particulars. 
Whenever the meaning of a witness was doubtful, or an evasive answer was given, or 
whenever the language of the witness admitted of a double interpretation, or of no 
interpretation at all, the questions of counsel, and the answers of the witness, have 
been retained. TABLE OF CONTENTS. 
May 1. Executive Order Ordering a Military Commission .. 17 
May 6. Special Order No. 211 Convening Commission to meet on the Bth of May 17 
May 9. Eirst Session Accused without counsel 18 
May 10 Second Session Special Order No. 216; Charge and Specification; pleadings 
’ * ' of the accused; rules of proceeding 18 
May 11. Third Session Counsel introduced........ 21 
May 12 Fourth Session Pleas to Jurisdiction: Pleas for Severance 22 
GENERAL CONSPIRACY. , 
May 12 Richard Montgomery Acquainted with Thompson, Sanders, Clay, Cleary, Tucker, 
’ ' Holcombe, etc., in Canada; their complicity with the rebel 
chiefs in the assassination: firing of New York; raids on 
St. Albans, Rochester, Buffalo, Ogdensburg, etc 24 
June 12. Becalled Letter from 0. C. Clay to J. P. Benjamin, at Richmond 26 
June 13. Reca11ed........ Time required to reach Washington from Montreal 28 
June 13. William H. Rohrer Identified the handwriting of Clement 0. Olay 28 
May 20. Sanford Conover Intimate with the rebel agents in Canada; Booth and Sur- 
ratt in Canada; Surratt just from Richmond; participa- 
tion in the assassination plot; rebel commissions for raid- 
' ers; descent on Chicago; release of rebel prisoners 28 
May 22. Recalled Introduction of pestilence into the States by infected cloth- 
ing; poisoning of the Croton reservoir, New York; assas- 
sination approved at Richmond . 30 
June 27. Recalled Testimony in the St. Albans case; seized in Canada and 
June 27. Nathan Auser Accompanied Conover to Montreal; corroborated his state- 
made to disavow his testimony before the Commission 31 
May 13. James B. Merritt Intimate with rebels in Canada; assassination and other 
ment 34 
plots discussed and approved; approval of rebel chiefs in 
Richmond •••••• 35 
June 27. Recalled In Montreal after the assassination; rebels burning their 
June 23. George B. Hutchinson In Montreal with Dr. Merritt; corroborated his statement... 37 
papers * 37 
May 12. Lieutenant-General U. S. Grant Jacob Thompson in the rebel military service; extent of the 
May 12. Samuel P. Jones Assassination discussed by rebel soldiers and citizens 37 
Military Department of Washington; civil courts open 37 
May 12. Henry Yon Steinacker Met Booth in Virginia after the battle of Gettysburg; assas- 
Tr sination discussed at a meeting of rebel officers 38 
May 29. Hosea B. Carter Saw Booth with the rebel clique in Canada 38 
May 12. John Deveny Saw Booth in Montreal with Sanders; also in Washington on 
May 12. William E. \V heeler Saw Booth in Montreal, in conversation with Sanders 39 
May 26. Henry 1 inegas Sanders speaking of Booth as “ bossing the job” 39 
the 14th of April, and at the theater 38 
May 12. Mrs. Mary Hudspeth Letters of conspirators found by her in New York 39 
June 9. Hon. Charles A. Dana Identified the above letters as received from General Dix 40 
Letters signed “ Charles Selby ” and “ Leenea ” 40 
Letter from General Dix accompanying the letters 41 
June 13. Major T. T. Eckert Date of General Butler leaving New York, November 14th.... 41 
SECRET CIPHER AND KEY. 
May 18. Lieutenant William H. Terry Secret cipher found among J. W. Booth’s effects 41 
May 18. William Eaton Found secret cipher in Booth’s trunk at National Hotel 41 
May 19. Colonel Joseph H. Taylor Received the same from Lieutenent W. H. Terry 41 
May 20. Hon. C. A. Dana Pound secret cipher-key in Benjamin’s office at Richmond.... 41 
May 20. Major T. T. Eckert Secret cipher dispatches from rebels in Canada to Richmond. 41 
ASSASSINATION CIPHER LETTER. 
Junes. Charles Duell Letter signed “Number Five;” assassination plot 42 
Junes. James Ferguson Identified the letter found at Morehead City, N. C 42 
June 2. Charles Dawson Letter signed “Lon,” addressed to “Friend Wilkes” 42 
June 16. Robert Purdy Testified to facts referred to in the “ Lon ” letter 43 
THE “LON” LETTER. 
May 12. Samuel Knapp Chester Booth’s confessions to Chester; plot to capture abandoned... 44 
PLOT TO CAPTURE. 
May 13. Joseph H. Simonds Investments in, but no profits from, oil speculations 45 
BOOTH’S OIL SPECULATIONS. 
May 20. Robert Anson Campbell Thompson’s account with the Ontario Bank, Montreal; 
Booth’s account 45 
JACOB THOMPSON’S BANK ACCOUNT. 
May 12. G. W. Bunker Dates of Booth’s arrival and departure at National H0te1.... 46 
BOOTH AT THE NATIONAL HOTEL. 
May 30. Lewis F. Bates Receipt of telegram by Davis announcing the assassination. 46 
JEFFERSON DAVIS AND THE ASSASSINATION. 
May 30. J. C. Courtney Identified the telegram received by Davis at Bates s House.... 47 
June 9. James E. Russell Testified to character of Lewis F. Bates 47 
(V) VI 
TABLE OF CONTENTS. 
June 9. William L. Crane Testified to character of Lewis F. Bates 47 
June 9. Daniel H. Wilcox “ “ “ 47 
June 9. Jules Soule “ “ “ 47 
June 9. Major T. T. Eckert L. F. Bates brought to Washington by order of Sec’y of War 47 
May 18. Rev. W..H. Ryder Letter from W. S. Oldham to Jeff. Davis; proposition for 
PLOT TO DESTROY VESSELS, BUILDINGS, Etc. 
general destruction of public and private United States 
property; indorsed by Davis 47 
May 18. John Potts Identified handwriting of Jefferson Davis 48 
May 18. Nathan Rice “ “ “ 48 
May 18. Joshua T. Owen As to Professor McCullough, referred to in the above letter... 48 
May 20. General Alexander J. Hamilton As to W. S. Oldham, writer of the above letter 43 
BURNING OF STEAMBOATS, Etc. 
JuneB. Edward Frazier Burning of U. S. transports, bridges, etc., and payment for 
CITY POINT EXPLOSION. 
the same, by J. P. Benjamin, in Confederate gold 49 
June 12. General T. D. Townsend Paper signed “John Maxwell,” detailing particulars of 
torpedo explosion 5C 
June 27. John Cantlin G. W. Gayle wants one million dollars for assassination pur- 
MILLION DOLLARS FOR ASSASSINATION. 
Juno 27. W. D. Graves Identified the handwriting of G. W. Gayle 51 
PAPERS FROM THE REBEL ARCHIVES. 
poses 51 
(Proposal “to rid the country of some of her deadliest ene- 
mies;” referred, by direction of the “President,” to the 
Secretary of War; from the archives of the rebel War 
Department; surrendered by General Joseph B. Johnston 
to Major-Generai Schofield 
May 26. Lewis W. Chamberlayne Identified the handwriting of B. W. Harrison, Private Secre- 
tary to Davis, and J. A. Campbell, rebel Assistant Secre- 
tary of War 52 
Department; surrendered by General Joseph E. Johnston 
to Major-General Schofield 52 
COMMISSIONS FOR RAIDERS. 
May 27. George F. Edmunds Confederate commissions granted to raiders 53 
June 10. Henrv G. Edson Threatened raids from Canada on Buffalo, Detroit, New 
York, etc 53 
May 29. COLONEL Martin Burke Confession of Robert C. Kennedy 53 
PLOT TO BURN NEW YORK CITY. 
May 29 Godfrey Joseph Htams Employed by Dr. Blackburn; details of operations 54 
May 29' W. L. Wall Received and sold five trunks of infected clothing in Wash- 
INTRODUCTION OP PESTILENCE. 
INTRODUCTION OF PESTILENCE. 
May 29. A. Brenner Clerk to Wall & Go.; forwarded statement of account 57 
ington 57 
May 25. Salome Marsh At Libby Prison 57 
May 25. Frederick Memmeet At Libby Prison 58 
STARVATION OF UNION PRISONERS. 
May 25. Benjamin Sweeeer At Belle Island 59 
May 25. William Ball At Andersonville. 60 
May 26. Charles Sweenay At Libby, Belle Island, and Andersonville 60 
May 26. James Young At Andersonville, Charleston, and Florence 61 
June 10. Lieutenant J. L. Ripple At Andersonville 62 
MINING OF LIBBY PRISON. 
May 22. Lieutenant Reuben Bartley Torpedo buried under the center of the prison 62 
May 25. Erastus W. Ross Placed there by order of the rebel Secretary of War 62 
May 25. John Latouche.... Major Turner to fire it if U. S. troops came to Richmond 62 
June 16. Daniel S. Eastwood Draft for $25,000 from Jacob Thompson’s rebel funds 63 
THE BEN. WOOD DRAFT. 
June 16. George Wilkes Identified the indorsement of BAijamin Wood, of New York. 64 
June 16. Abram D, Russel Identified the handwriting of Benjamin Wood 64 
May 30. Euward Johnson Discussion on the admission of the testimony of Johnson; 
DEFENSE. 
May 30. Oscar Heinrichs Impeaching the testimony of H. Von Steinacker 66 
May 30. H. K. Douglas “ “ “ “ “ 66 
impeaching the testimony of H. Von Steinacker 64 
Discussion . on rejecting cipher letter “ Number Five” 66 
CIPHER LETTER “ NUMBER EIVE.” 
ASSASSINATION AND ATTENDING CIKCUMSTANCES. 
May 13. Robert R. Jones Clerk at the Kirkwood House; Booth’s card left 70 
May 16. William A. Browning Identified the card left by J. Wilkes Booth 70 
May 26. Charles Dawson Identified the handwriting of Booth 71 
May 26. Thomas L. Gardiner gale of one-eyed horse to Booth 71 
May 15. Brook Stabler Of Howard’s stable; kept Surratt’s horses 71 
May 22. William E. Cleaver Kept stable; one-eyed horse sold to Arnold 71 
May 15. James W. Pumphrey Kept stable; hired horse to Booth on the llth 72 
May 15. Peter Taltayul Kept restaurant; Booth and Herold there on the 14th 72 
May 15. Sergeant Dye In front of theater on night of the 14th ; 72 
May 15. John B. Buckingham Door-keeper at Ford’s on night of the 14th 73 
May 15. John F. Sleichmann..... Assistant property man; at theater on night of the 14th 73 
May 16. Joseph Burroughs— ‘ Peanuts ” Held Booth’s horse in the alley on night of 14th 74 
May 22. Recalled Booth’s stable in rear of theater 75 
May 16. Mary Ann Turner Lived in roar of theater; saw Booth and Spangler on 14th 75 
May 16. Mary Jane Anderson “ “ “ “ “ 75 
May 22. James L. Maddox Property man at Ford’s; rented stable for Booth 75 
May 15. James P. Ferguson At theater on night of assassination 76 
May 19. James J. Gifford Stage carpenter; present on night of the llth 77 TABLE OF CONTENTS. 
May is. Captain Theo. McGowan Present at theater on night of the 14th 78 
JJay is. Major H. K. Bathbone In President’s box on the 14th; stabbed by Booth 78 
May is. William Withers, Jr Leader of orchestra; on stage; struck at by Booth 79 
May 20. Joseph B. Stewart At theater on the 14th; pursued Booth 79 
May 15. Joe Simms On the stage on night of the assassination 80 
May 18. Recalled Pitted up President’s box on afternoon of the 14th 81 
May 15. John Miles On the stage on night of the assassination 81 
May 16. Br. Robert K. Stone Attended the President after the assassination SI 
May 16. William T. Kent Pound the pistol in the President’s box... 82 
May 18. Isaac Jaquette Found the wooden bar in the President’s box 82 
May is. Judge A. B. Clin Yisited theater on the 16th; examined President’s box, etc.... 82 
May 15. David C. Reed Saw John H. Surratt in Washington on the 14th 83 
May 17. J. p. Coyle Statement by Booth, said to have been left for publication in 
the National Intelligencer 83 
PURSUIT AND CAPTURE OF BOOTH AND HEROLD. 
May 17. John Fletcher Hired a horse to Herold; went in pursuit 83 
May 16. Sergeant Silas T. Cobb On duty at Navy Yard bridge; stopped Booth and Herold 8-4 
May 16. Polk Gardiner Met Booth and Herold on the night of the 14th 85 
May 13. John M. Lloyd Mrs. Surratt’s visits to Surrattsville; Booth and Herold 
May 15. Recalled g7 
there on the night of the assassination 85 
May 16. Lieutenant Alexander Lovett At Dr. Mudd son 18th and 21st of April 07 
May 20. Lieutenant D. D. Dana “ “ “ .'. • gg 
May 17. William Williams “ “ “ “ nS 
May 17. Simon Gavacan “ “ “ “ 2x 
May 16. Joshua Lloyd. “ “ “ “ ... Sr 
May 17. Willie S. Jett Met Booth and Herold at the Rappahannock bn"the"24tii on 
May 17. Eyerton J. Conger At Garrett’s barn; Booth’s death: capture of Herold "* m 
May 17. Sergeant Boston Corbett “ “ “ x x x " 
May 22. Captain Edward P. Doherty “ “ “ <« x x 
May 20. Surgeon-General J. K. Barnes Identification of Booth’s body 
May 31. C. D. Hess Manager of Grover’s Theater; Booth’s inquiries 99 
May lo! Francis SLWatrh>M°NI,S Herold in Washington on the 20th and 21st of February 96 
DEFENSE OF DAYID E. HEROLD. 
May 30 Jamfs ALSH Character of Herold; employed him as clerk 96 
Mav 30 Wmu V Character of Herold. §6 
May 30' Herold at,home in February 96 
MavV Mrs TVT a i/v-0*! r 'Jy Ibo Herold in Washington on the 15th and 19th February 95 
Mav 30 Mrs' Herold in Washington on the 18th February I. 
MaySl’ Dr Ch a rfrVs' w Herold in Washington on the 19th and 20th February 96 
May 31 D«■ Character of Herold light and trifling §6 
May Jl. Dr. Samuel A. H. McKim Character of Herold...?. f. 97 
EDAFARD SPANGLER. 
Mav .30' Afi>wn7/«ITEKSPAT,eH Lodged at the same hoarding-honse as Spangler 97 
Mav 19’ wtt.t.t/J 4-t theater on the 14th; first to pursue Booth 97 
May 19’. Charles H R?sch.V Arrested Spangler at his boarding-house 98 
May 15. John E. Buckingham" . lope ln. ipa4fle^s carPet-bag 98 
May 15. John F. Sleichmann.... DOOl-keeper at Ford s Theater..... 73 
May 16. Joseph Burroughs—'l Peanuts"’' fc*ant property man; at theater on the 14th.................... 73 
May 22. Recalled ' S Received Booth s horse from Spangler on the night of 14th... 74 
May 16. Mary Ann Turner.'.’.’"".’ w ri°°Hl anl |Pans}er on the night of 14th 75 
May 16. Mary Jane Anderson Saw I 1 ana §pan®ler 011 the night of 14th 75 
May 22. James L. Maddox .] IW?h-v™and SpansJel• on the night of 14th 75 
May 20. Joseph B. Stewart .V” "i"" p£e3™£a?^LpVrnJed stable fT'1(Bo(4h -J ; 75 
May 15. Joe Simms “escnt srt the theater; pursued Booth; saw Spangler 79 
May 18. Recalled FUted u« fgh»°P th?anlgx * the assassination 80 
May 15. John Miles On the in de“tLS<.bsx*^lth fep^ngl<;r 81 
UIIIIIO Mage on the night ol the assassination 81 
DEFENSE OF EDAFARD SPANGLER. 
May 31. H fiwFriM £®*ser of Grover’s Theater; Booth’s inquiries 99 
May SO- James B Erniri ipeasurer at lord’s Theater; decorated President’s box 99 
May 31 John t T>4A„-1(lent s messenger engaged the box 100 
7 ' James K. Ford Busm?ss manager of Ford’s Theater; present when the 
oaD ■, Theater; Spangler’sr duties on the 
June 9 Ttpmllori th; Booth’s characteristics 102 
<KZ== ft 
flstf ft 
June 13 Vecallpfi AY “is post at the time of assassination 105 
June 2 w7ii?fM P''NN™ Pe®cSbe?J?°ot4 s exit from the stage 105 
Mav 31 I 8 ex 4; pursued by Mr. Stewart 106 
JunoV Tam T ?£»SoN t£,w B,exit \ pursued by Mr. Stewart 106 
June?’ Tirofn b™"" Lse of rope founci in Spangler’s bag 106 
Jimp 9 Umtc Bitterspaugh Spangler s remarks at the time of assassination 107 
Tune ?9 i ?BlrfcaiW) Kitterspaugh’s version of Spangler’s remarks.. 107 
Mav 30 ' i , f'ARLAJiD Respecting Hitterspaugh and Spangler after the assassination 103 
S3 ’tJ- tGIAi'OKU Kitterspaugh’s statement; use of Spangler’s rope 109 
In no o » Ti j theater; arrangement of box on the 14th 109 
Ihho9 Beca/1ed.... Condition ot the Yieepers on boxes 7 and 8 11l 
June 2. Henry L. Merrick Engaging box No 7 . ... 11l 
oJ. J.HOMAB J. Kaihold iho locks on the boxes; Booth’s occupying box at the 
Junes. James O’Brien ITsher at Ford’s lll 
Thh6o PLANT Examination of keepers on boxes 7 and 8 11l 
ThD o' G. W. Bunker Gimlet in Booth’s trunk 112 
Th« 6 o' Charles A. Boigi Boarded at the same house as Spangler 112 
June 2. John Goenthbb Boarded with Spangler 112 TABLE OF CONTENTS. 
MRS. MARY E. SURRATT. 
May 13. John M. Lloyd Mrs. Surratt at Surrattsville on 11th and 14th March S5 
May 15. Recalled “ “ “ “ " gX 
May 13. Lohis J. Weichmann (General conspiracy; complicity of Mrs. Surratt, Booth', 113 
May 18. Recalled J John H. Surratt, Atzerodt, Mudd, Herold, Payne; visit to ns 
May 19. Recalled ( Canada after the assassination 120 
May 18. A. It. Reeves... Identified telegram from Booth to Weichmann 120 
May 22. Miss Honora Fitzpatrick Booth, Payne, and Atzerodt at Mrs. Surratt’s 19} 
May 17. Mrs. Emma Opputt Mrs. Surratt at Surrattsville; J. M. Lloyd 121 
May 19. Major H. W. Smith Arrest of Mrs. Surratt and family; Payne’s arrest 121 
May 19. It. C. Morgan Arrest of Payne; search of Mrs. Surratt’s house 122 
May 19. W. M. Wermkrskirch “ “ “ “ “ “ 123 
May 19. Lieutenant John W. Dempsey Photographs of rebel chiefs; Booth’s portrait concealed 124 
June 3. Recalled Identified the photograph of Booth 124 
DEFENSE OF MRS. MARY E. SURRATT. 
May 25, George Uottingham Lloyd’s statement after his arrest 10* 
May 25. Recalled Conversation with Mr. Aiken (counsel) as to Lloyd’s confes- 
June 13. Mrs. Emma Offutt Correction of testimony given for the prosecution 105 
May 25. George H. Calvert Identified his business letter to Mrs. Surratt i2k 
sion 225 
May 26. Recalled “ “ “ “ “ j2g 
May 25. Bennett F. Gwynn Received from Mrs. Surratt a letter for Mr. Nothey 1^ 
Stay 26. Recalled Identified the letter l2g 
May 26. John Nothey Owed Mrs. Surratt money on purchase of land 12« 
May 30. Joseph T. Nott Lloyd’s bar-keeper; Lloyd in liquor on the 14th 12g 
June 2. Recalled Conversation with Smoot respecting John H. Surratt 127 
June 13. Andrew Kallenbach At Lloyd’s house when Lloyd was arrested 127 
May 30. J. Z. Jenkins Mrs. Surratt’s loyalty and kindness to Union soldiers 127 
June 7. Recalled Respecting his own loyalty 128 
June 12. Richard Sweeney Lloyd drinking with him on the 14th 120 
June 2. James Ltjsby.... Lloyd very drunk on the 14th 129 
June 13. J- V. Piles Respecting the loyalty of J. Z. Jenkins 129 
June 7. J- C Thompson ‘ “ “ “ }3q 
June 7 Dr. J. H. Blanpord “ “ “ “ 
Junes. William P. Wood “ “ “ “ }'s 
May 30, Miss Anna E. Surratt Booth, Atzerodt, Payne, at Mrs. Surratt’s'; ’owns’'photo- 
graphs ~0 
June?. Recalled Owns card with the motto “Sic semper tyrannicphoto- 
graphs of rebel chiefs a gift from her father too 
May 25. Miss Honora Fitzpatrick Purchased photograph of Booth with Miss Surratt 100 
June o' Recalled Mrs. Surratt’s eye-sight defective ’ “ ™ 
May 25. Mrs. Eliza Holahan Wood (Payne), Port Tobacco (Atzerodt), and Booth at Mrs’.' * 
Surratt’s house; Mrs. Surratt’s eyesight defective 130 
May 25 George B. Woods Photographs of rebel leaders for sale ;So 
May 2?! Augustus S. Howell Interviews with Weichmann; journeys to Richmond.[Jo 
Junes Miss Anna Ward Received letters from John H. Surratt; eyesight 
May 25’ Rev. B. F. Wiget Mrs. Surratt’s general character and loyalty TSi 
May 25! Rev. Francis E. Boyle “ “ “ “ 135 
May 25. Rev. Charles H. Stonestheet “ “ “ “ 136 
May 26. Rev. Peter Lanihan “ “ “ “ ,oft 
May 26. Rev. N. D. Young “ ££ 
May 26. William L. Hoyle “ “ “ “ 133 
June 13. John T. Hoxton Character of Mrs. Surratt; J. Z. Jenkins; W. A. Evans 137 
June 13. William W. Hoxton Character of Mrs. Surratt; loyalty of J. Z. Jenkins 137 
June 13. Rachel Semus Character of Mrs. Surratt; defective eyesight 137 
June 13. Henry Hawkins Mrs. Surratt’s kindness: feeding Government horses 
June 3. David C. Reed John H. Surratt in Washington on the 14th of April.. 138 
TESTIMONY IN REBUTTAL. 
June 7. John Ryan Character of Louis J. Weichmann 138 
June?. Frank Stith “ “ “ 138 
June 7. James P. Young “ “ “ 139 
June 7. P. T. Ranspord “ “ “ 139 
June 7. John T. Holahan Booth, Payne. Atzerodt at Mrs. Surratt’s; went to Canada 
with L. J. Weichmann to identify John H. Surratt 139 
June 7. James McDbvitt Accompanied L. J. Weichmann to Canada 140 
June?. Andrew Kallenbach Jenkins threatened if he testified against him m 
June 2. E. L. Smoot Disloyalty of Jenkins; Joseph T. Nott said John H. Surratt 
June 2. A. Y. Roby, Disloyalty of J. Z. Jenkins 142 
June 5. Doeley B. Roby “ “ “ 142 
June 5. William A. Evans “ “ “ 143 
knew all about the murder...., 141 
June 5. John L. Thompson Disloyalty of Mrs. Surratt 143 
GEORGE A. ATZERODT. 
May 13. Robert R. Jones Atzerodt at Kirkwood House on the 14th April 144 
May 13. John Lee Contents of Atzerodt’s room at the Kirkwood House 144 
May 15. Lyman S. Sprague Went to Atzerodt’s room with John Lee 144 
May 27. Colonel W. R. Kevins Atzerodt inquired respecting Vice-President Johnson 144 
May 17. John Fletcher Hired horse to Atzerodt on the 14th April 145 
May 18. Washington Briscoe Desired to sleep with him on night ot the 14th 145 
May 17. John Grbenawalt. Atzerodt at Penn. House on night ot 14th 146 
May 18. James Walker Atzerodt at Penn. House on night of 14th 147 
May 18. Lieutenant W. R. Keim Roomed with Atzerodt at the Penn. House 147 
May 25. John Caldwell Loaned Atzerodt $lO on his pistol 148 
May 18. William Olendenin Saw Atzerodt’s knife picked up 148 
May 18 Marshal James L. McPhail Atzerodt told where he threw away his knite 148 
May 17. Hezekiah Metz Atzerodt and the assassination ot General Grant 149 
May 17. Sergeant L. W. Gemmill Arrested Atzerodt at the house of Richter..... 149 
June 3’ Marcus P. Norton Atzerodt and O’Laughlin with Booth at National Hotel 149 
June 8* Recalled Conversation between Booth and Atzerodt lap TABLE OF CONTENTS. 
IX 
30. Captain Frank Monroe Atzerodt in his charge on board the monitor 150 
DEFENSE OF GEORGE A. ATZERODT. 
Jnno o Discussion On admitting Atzerodt’s confession in his defense 150 
Miv->n John H.Barr Met Atzerodt at Pope’s restaurant 151 
Matthew J. Pope Atzerodt went to his stable to sell a horse 131 
Mav an' Kelleher Atzerodt hired a small bay mare on 14th April 151 
Junes ?amuel bMiTH Bay mare returned to stable about 11 o’clock 151 
Mavv>’ Leonard J. Far well At Mr. Johnson’s room on night of 14th 151 
Main' Miss Jane Herold Does not recognize articles found at Kirkwood House 152 
Mai tv J• H. Dooley Articles found at Kirkwood House 152 
Marti "01ie8sei Leaman Atzerodt at house ol Metz on Sunday, 16th April 152 
Mat Si' JAMI'S E. Beaman Talk about assassination of Lincoln, Seward, and Grant 152 
Mat •>/,' Hartman Richter Atzerodt at his house from Sunday till Thursday 153 
Juno a Samuel McAllister Identified Atzerodt’s pistol; Atzerodt’s cowardice 153 
Jnno I' Alexander Brawner Atzerodt’s notorious cowardice 153 
Mu?an wUIS B' Harkins Atzerodt’s good nature; lacking in courage 153 
J ou. Washington Briscoe Atzerodt remarkable for his cowardice 153 
LEWIS PAYNE. 
May 19. Mrs. Martha Murray Payne at Herndon House un to Anril I4tb I*l 
May 19. William H. Bell At Mr. Seward’s house on night of 14th; identified'Payneat 
~ General Augur’s head-quarters ' 
May !9. ldentified the clothes worn by Pavne.... iH 
May 19. Sergeant George F. Bobinson Attacked in Secretary Seward’s room; struggle''with'Pavne: 
nr ■%r\ t> 77 j identified hat and revolver picked up in the bed-room J 
May 19. „Recalled Identified Payne in the clothes worn on theuth 
May 26. Major Augustus H. Seward Struggle with Payne in Mr. Seward’s bed-room';’Frederick 16 
May 19. Surgeon-General J. K. Barnes 156 
May 32. Dr. T. S. Verdi..... 157 
May 20. Robert Nelson and r* alter Payne’s attack... 157 
May 20. Dr. John Wilson Ikn.lJe *°und near Mr. beward’s house 158 
May 19. Thomas Price IJejHßjed the kniie found by Eobert Nelson 158 
May 19. Colonel H. K Wells Identified blood-stained coat found near Washington 158 
May 19. Charles H. Rosch Ideiititied the clothing and boots taken from Payne 158 
May 19. Spencer M. Clark Identified articles taken from Payne when arrested 158 
ii!e lnk-mark on the boots worn by Payne to be 
May 19! Stephen Marsh,'.'.'.'.';::: nd the'ink-ma'rk'tobe'j:'w Ijy 
May 17. Lieutenant John E Toffpy "i1!,1116 was ' Hooth 159 
May 18. Hecalkd IOFiEY | one-eyed horse on morning of the 15th 159 
ldentified the horse at the Government stables 16(1 
June 2. Miss Margaret Branson Payne attentive to the sick after the battle of Gettysburg; 
DEFENSE OF LEWIS PAYNE. 
boarded at her mother’s house; discussion on introduction 
June 2. Margaret Kaighn of testimony showing Payne’s insanity 160 
June 2. Dr. Charles H Nichols Payne s conduct at Mrs. Bransou’a 161 
June 13. Dr. James C Halt. Causes ancLmdications of insanity, moral and mental 161 
June 3. John B. Hubbard Examined Payne with regard to his insanity 164 
Junes. ’John E. Roberts Layne s conversation since his imprisonment 165 
June 3. Colonel W. H. h’.’ m'cCall Payne desired to die 166 
June 12. Mrs. Lucy Ann Grant Paynes physical condition 166 
Sa'y the affray m which Payne saved the lives of Union sol- 
Junel2. John Grant ; knew him as Lieutenant Powell 166 
Corroborated his wife’s statement 166 
IN REBUTTAL. 
June 1L DKKr:UMJaE^LJ:.±.^rES"::::" Exa™ined p,ayne with reference to his insanity 167 
June 14. Dr. Basil Morris “ «« || ” 167 
Juno 14. Assistant-Surgeon George L. Porter “ •> „ ~ J67 
l6B 
May 25'. Wary^Simms11' Wells statement after his arrest 168 
SAMUEL A. MUDD. 
May 25. Elzee Egi.ent ™V™.atsr.: Mudd’s; rebels hiding in woods 170 
May 25. Sylvester to™ tk.1??! ?£.8Jldmg,l?im to Kichmond; rebels hiding 171 
’Lent build batter*'11118 hlm and four other slaves to Bichmond to 
May 2A $ 
May 25, Rachel Spfn'cfr rebels; took charge of John Surratt’s horse 172 
HI I 
necaUed DM not ask for certificate entitling him to the reward for the 
r try arrest of Dr Mudd i7i 
une . . illiam A. Evans Saw Mudd in Washington on the ist or 2d of Slarch ; saw 
Mav 20 Tottv TT wlßw TTJvimilenie^ill« Mrs. Surratt’s house 174 
Mav 20 Ft* Rtavou g° c vxCk£rn l^th; Booth the assassin 176 
Mav IQ* §aw xlu!?d in bryantown on the afternoon of the 15th.... 176 
> . rs. Eleanor Bloyce Saw Dr. Mudd and gentleman riding into Bryantown on the 
. Ward Heard of the assassination at Bryantown, at one or two 
Mav to Mx>o t> o assassination known there that afternoon 176 
JUay 19. Mrs. Becky Briscoe Saw Dr. Mudd and strange gentleman on road to Bryan- 
jnnp o iuattfittc t> xt town; gentleman returned: Dr. Mudd wont on to village... 177 
Marcus P. Norton At National Hotel on the 3d March; Dr. Mudd entered his 
room, inquiring for Booth 177 X 
TABLE OF CONTENTS 
DEFENSE OF DR. SAMUEL A. MUDD. 
May 26. John C. Thompson Booth at Dr. Queen’s, in November, wanting to buy lands; 
introduced him to Dr. S. A. Mudd 178 
May 27. Db. William T. Bowman... Booth at Bryantown, wanting to buy land and horses 178 
May 27. Jeremiah Dyer Sheltered in the pines, in 1861; reputation of J. Z. Jenkins; 
May 27. Recalled Knew J. H. Surratt i iso 
character of Dr. Mudd it* 
May3o. Recalled Went to Richmond to avoid arrest; took the oath of alio- I 
May 27. Alvin J. Brook Knew of persons in the pines in 1861 18i 
giance on his return from Virginia > isa 
May 27. Frank Washington Saw no one in the woods last year; character of Mary Simms; 
May 27. Baptist Washington No one slept in the woods last year 181 
May 27. Mbs. Maby Jane Simms Neither of the Gwynns in the woods last year 182 
Mudd’s treatment of his servants 181 
May 20. Bennett P. Gwynn Reason for hiding in the pines 182 
May 30. William A. Mudd No one hiding in the woods last year 183 
June 3. Charles Bloyce Saw no rebel soldiers at Dr. Mudd’s; what the colored folks 
May 29. John H. Downing Conversation between Dr. Mudd and D. J. Thomas 183 
May 26. Dr. John C. Thomas Mental and physical condition of D. J. Thomas 184 
June 6. James W. Richards Thomas asked for a certificate 185 
think of Mary and Milo Simms 183 
June 9. William J. Watson Conversation about the certificate for Thomas 185 
Junes. John C. Holland Received no letter from Thomas in reference to Dr. Mudd’a 
treasonable talk 187 
June 27. Richard Edward Skinner Thomas’s reputation for veracity; his loyalty 187 
June 9. John L. Turner Thomas’s reputation; reputation of Dr. Mudd 187 
June 9. Polk Deakins Reputation of D. J. Thomas for veracity and loyalty 187 
May 27. Jeremiah T. Mudd “ “ “ “ “ 187 
June 6. Lemuel L. Orme “ “ “ ** “ 188 
JuneB. John H. Baden “ “ “ “ “ 188 
Junes. Eli J. Watson “ “ “ “ “ 188 
May 30. Joshua S. Naylor “ “ “ “ “ 189 
June 9. John Waters Reputation of Dr. Mudd 189 
June 9. Daniel W. Hawkins “ “ “ lBg 
June 9. Joseph Waters “ / “ “ 189 
June 9. Prank Ward “ “ “ 189 
DR. MUDD IN WASHINGTON DECEMBER 23, 1864. 
May 26. Jeremiah T. Mudd In Washington with Dr. Mudd; his character; saw Booth 
at church at Bryantown in November or December; Dis- 
cussion on the admission of testimony; Dr. Mudd’s loyalty, iqo 
May 27. Recalled Identified Dr. Mudd’s handwriting iqo 
May 29. J. H. Montgomery Mudd asked him to bring a stove from Washington Jm 
May 26. Francis Lucas “ “ “ “ “ 103 
May 26. Samuel McAllister Examined the Penn. House register for Dr. Mudd’s name.... 192 
May 20. Julia Ann Bloyce Never saw John H. Surratt or rebel soldiers at Dr. Mudd’s'; 
character of Mary and Milo Simms 192 
Junes. Fannie Mudd Dr. Mudd at home; three men slept in the pines in 1861; 
DR. MUDD’S WHEREABOUTS FROM Ist TO sth MARCH. 
have seen none there since 193 
Junes. Mbs. Emily Mudd Dr. Mudd attended his sick sister; never saw Surratt or 
Junes. Betty Washington Dr. Mudd at home; character of Mary Simms 194 
Junes. Frank Washington “ “ “ “ “ 194 
Confederate soldiers at Dr. Mudd’s iq3 
Junes. John P. Davis Dr. Mudd home on the 3d of March 194 
June 5. Thomas Davis Dr. Mudd attended him in March 195 
June 6. Henry L. Mudd, Jr Saw Dr. Mudd daily from 2d to sth March; Dr. Mudd had no 
carriage 195 
June 6. Dr. J. 11. Blanford Saw Dr. Mudd oth March; Mudd’s father’s carriage 195 
June 9. Miss Mary Mudd Dr. Mudd at home Ist to sth; never saw Confederate soldiers 
May 29. Thomas L. Gardiner Accompanied Dr. Mudd to Washington X9S 
DR. MUDD IN WASHINGTON MARCH 23d. 
at Dr. Mudd’s place 195 
June 6. Dr. Charles Allen Dr. Mudd spent the evening at his office 191 
June 6. Henry A. Clark Dr. Mudd took tea with him; afterward called on Dr. Allen. 197 
Slay 29. Henry L. Mudd, Jr Went with Dr. Mudd; ownership of Dr. Mudd’s farm 197 
May 29. Robert F. Martin At his house 23d March; again in April 198 
AT GIESBORO APRIL 11th. 
May 30. Recalled At his house on 11th April; saw Dr. Mudd in Washington 
May 30. Discussion On Dr. Mudd’s object in visiting Washington 193 
May 29. Dr. J. H. Blanford With Dr. Mudd 11th April 199 
_ December 24 198 
May 29. Thomas Davis Dr. Mudd from home three nights since January 9th; two 
DR. MUDD’S ABSENCE FROM HOME. 
May 27. Betty Washington Dr. Mudd absent only three nights since Christmas 201 
_ T„ strange men at Dr. Mudd’s loth April.. 200 
May 27. George Booz Saw Dr. Mudd return in the afternoon 201 
June 7. Recalled Saw no one with Dr. Mudd 201 
AT BRYANTOWN APRIL 15th AND 16th. 
June 3. Susan Stewart Saw George Booz meet Dr. Mudd 202 
June 3. Primus Johnson Saw Dr. Mudd on his way to Bryantown; man followed 
June 3. Leonard S. Roby . Heard of assassination on baturday afternoon; learned from 
Dr. George Mudd who the assassin was; reputation of 
„ „ him; man returned a10ne........ 202 
June 3. Db. Joseph Blanford Bryantown road as seen from Booz’s house 203 
_ Thomas 202 
JuneS. B. D. R. Bean Mudd in his store on the 15th„ 203 
June 5. John Acton Saw Dr. Mudd on his way to Bryantown followed by a man; 
Junes. Mason L. McPherson Heard of assassination on Saturday; reputation of Thomas. 204 
the man returned alone 203 
June 5. John McPherson Heard of assassination on Saturday; reputation of Dr. Geo. 
Junes. Peter Trotter Assassination rumors; reputation of Thomas, etc 204 
Mudd, D. J. Thomas, and Dr. Samuel A. Mudd 204 
June 5. John I. Langley Heard of assassination on Saturday Irom soldiers 205 
May 30. Maboellus Gardiner Assassination known, but not the name of the assassin 205 
May 30. Discussion Dr. Mudd’s declaration concerning the assassination 200 TABLE OP CONTENTS. 
XI 
May 29. Da. George D. Mudd Reputation of Dr. S. A. Mudd as a citizen and as a master; 
T his loyalty; reputation of D. J. Thomas 206 
oiiuey. Recalled Dr. S. A. Mudd’s statements to him 211 
ouues. Benjamin Gardiner Saw Dr. Mudd at church on Sunday 211 
Y Discussion On the admission of Dr. Mudd’s statements 211 
June 9. Recalled Dr. Mudd’s statements about the assassination 211 
June 10. Daniel E. Monroe Humor that Edwin Booth was the assassin; reputation of 
r , D. J. Thomas 212 
ivi John V. Davis At Dr. Mudd’s on Tuesday after assassination 212 
T„ay John F. Hardy Officers at Dr. Mudd’s on Friday 213 
June 9. Jane Herold Did not know Dr. Mudd 213 
i. e Mrs. Mary B. Nelson Never heard Dr. Mudd’s name mentioned 213 
in6 i ' EV- Charles H. Stonesteeet Dr. S. A. Mudd at college 213 
June 10. L. A. Gobright Assassin not positively known on the 15th 213 
June i. James Judson Jaeboe Did not know Dr. Mudd; never at Mrs. Surratt’s house; 
» loyalty of witness; discussion, etc 213 
Junes. Henry Burden Reputation of Marcus P. Norton 216 
June 6. D. W. Middleton Mr. Norton in the Supreme Court 3d March 216 
June 9. Judge A. B. Olin Reputation of Marcus P. Norton 217 
Agreement Between the Judge Advocate and Mr. Ewing as to the testi- 
mony of John F. Watson, John R. Richardson, Thomas B. 
Smith 217 
June 8. John F. Hardy Conversation with Dr. Mudd on Saturday evening 9is 
TESTIMONY IN REBUTTAL. 
June 8. Francis R. Farrell Conversation with Dr. Mudd on Saturday ever,;™ 0,5 
June 12. Jacob Shavor Reputation of Marcus P. Norton g S 
June 12. Willis Hamiston “ “ “ 
June 12. Hon. Horatio King “ “ *i 2JU 
June 9. William Wheeler “ “ » “U 
June 9. Silas H. Hodges “ » 221 
MICHAEL O’LAUGHLIN. 
May 22 The arrest of Michael O’Laughlin 1 221 
May it Mrs Mapy Tt^CPhAIL O’Langhlin in the rebel service """"i!!! !! 222 
May 15. Billy Wmtlmr T Intimacy between Booth, O’Laughlin, and Arnold 222 
May 18. John Hapman Correspondence between Booth, O’Laughlin, and Arnold 223 
Mavis Telegram from Booth to O’Laughlin 223 
May it Samufj St„S™ Another dispatch from Booth to O’Laughlin 223 
May 15 BemamT Stv ?00w aP? 0 Laughlm in confidential talk 224 
Mav 15 „ April; O’Laughlin went to see Booth 224 
y ERNAKD 1. Early In Washington with O’Laughlin on the 13th and 14th of 
May 16 David a nJJS EESOI> O’Laughlin visited Booth on the 14th 225 
May 16. MajorK™* ° Laughlin at the se of of War on night of 13th 226 
May 16. John C. Hatter """""11"""""! “ “ “ “ .. w 
une 3. Marcus P. Norton Saw Atzerodt and O’Laughlin with Booth at National...'.’.'.'.!! 227 
DEFENSE OF MICHAEL O’LAUGHLIN. 
May 25.' Cil,me to Washington with O’Laughlin on 13th and 14th 22 
JuneTi. Henderson 9,’Jlan/??'.lin Sping to surrender himself. '.'.'.!'.!'.! 229 
May625. aud 14th 229 
May 25. George Grillet !!!!!!!!!!!“! ' U ija1viglllln on th.® 13th 230 
May 25! Jmrif 0,Laughlm at his house at time of assassination 231 
June 3. John R.' Giles . !!.':: O’Laulh in Si6# witlLbim on nigbt of assassination 231 
Mav 26 PIT Mimscv u •ljauohiin_at Penn. House on night of 14th 231 
y.P. H. Maulsby B^s“d 0 Laughlinschoolmates; O’Laughlin surrendered 
SAMUEL ARNOLD. 
May 18. Eaton G. Horner ARf„!p„of lArl?,cdd ’ discussion on admission of Arnold’s. 
May 25. Voltaire Randall Contents of Arnold’s carpet-sack.. ttt 
meeting of conspirators 
Jo" ||rlEUT- H- Teeby ™ett??«sl???d “ Sam” found in Booth’s trunk:;!! 
May 18. William McPhail Identified the writing of the letter as Arnold’s 
May 25. George R. Magee Discussion on admission of testimony as to Arnold heitiD-'in 2-0 
May 18. James L. McPhail Identified Arnold’s handwriting .I!!!!!!!!! S 
May 18. Littleton P. D. Newman Arnold received suspicious money letter.!.!!!!!."*,'!!!!!!.’.'.'!!!!!'"' 239 
the rebel service m 
DEFENSE OF SAMUEL ARNOLD. 
May 31. William S. Arnold Whereabouts of Arnold March 21st to April 15t.... 940 
May 31. Frank Arnold Arnold went to Fortress Monroe April Ist 
May 31. Jacob Smith Saw Arnold daily from 20th to 30th March STX 
June 2. Charles B. Hall Arnold employed as book-keeper .'.'!!!!! 241 
May 31. George Craig At Mr. Wharton’s store with Arnold 241 
June 7. Minnie Pole Saw Arnold in Baltimore March 20th, 27th, and 28th....'...':.'."' 241 
June 6. Eaton G. Horner Arnold’s confession at Fortress Monroe ' 941 
May 16. Discussion On the daily reading of the record !!! 242 
J,OHN W. Wharton Employed Arnold as clerk at time of his arrest .’! 941 
June 8. On Mr. Aiken’s proposal to offer in evidence an affidavit of 
John McCullough, contradicting a statement made by 
T__ „„_ „ , Louis J. Weichmann 243 
June 8. Mr. Ewing offered in evidence a copy of General Orders No. 26, defining the Department of Was’h- 
lngton 243 TABLE OF CONTENTS. 
June 8. A telegraphic dispatch from John McCullough offered in evidence by Mr. Ewing 243 
June 8. Proclamation of the President, dated September 2d, 1862, with accompanying certificate of the Secre- 
tary of War, dated May 30, 1865, offered in evidence by the Judge Advocate 243 
JuneB. A copy of General Orders No. 100, Adjutant-General’s Office, Washington, April 24, 1863, offered in 
evidence by the Judge Advocate 243 
June 12. Extract from the Journal of the Senate of the United States of 13th February, 1861, showing the 
election of Abraham Lincoln and Hannibal Hamlin as President and Vice-President; and from 
the Journal of Bth February, 1865, showing the election of Abraham Lincoln and Andrew Johnson 244 
June 12. Brigadier-General E. D. Townsend—Abraham Lincoln acted as President and Hannibal Hamlii 
as Vice-President of the United States for four years preceding March 4, 1865; Andrew Johnson 
acted as Vice-President until the death of Abraham Lincoln 244 
June 12. Certified copy of the oath of office of Andrew Johnson as President of the United States 244 
June 12. Copy of the resolution of the Senate appointing William H. Seward Secretary of State of the United 
States 244 
June 12. Copy of William H. Seward’s commission as Secretary of State of the United States 244 
Juno 14, Discussion on the charges against the accused 244 
June 30. Finding and sentence of David E. Herold 247 
“ “ “ George A. Atzebodt 248 
“ “ “ Lewis Payne 248 
“ “ “ Mrs. Mary E. Surratt 248 
“ “ “ Michael O’Lauohlin 248 
“ “ “ Edward Spangler 248 
President’s approval of the findings and sentences . 249 
Modification of the sentences of Mudd, Spangler, Arnold, and O’Laughlin 249 
“ “ “ Samuel Arnold 249 
“ “ “ Samuel A. Mudd 249 
Application for Writ of Habeas Corpus 250 
Argument on Jurisdiction by Hon. Keverdy Johnson 251 
“ “ by Hon. Thomas Ewing, jr 264 
Argument in defense of David E. Herold 268 
“ “ Edward Spangler 276 
“ “ Mrs. Mary E. Surratt 289 
“ “ George A. Atzebodt 300 
“ “ Lewis Payne 308 
“ •* Dr. Samuel A. Mudd 318 
“ “ Michael O’Laughlxn and Samuel Arnold 333 
Argument by Hon. John A. Bingham 351 
Opinion of the Attorney-General 403 
APPENDIX. 
APPENDIX. 
Instructions for the Government of the Armies of the United States 410 
Proclamation of the President, September 25, 1862 419 
Affidavit of Louis J. Weichmann 420 
Affidavit of Captain George W. Dutton 421 
v ALPHABETICAL INDEX OF WITNESSES. 
PEGS. DBF. 
Acton, John 203 
Allen, Dr. Charles 197 
Anderson, Mrs. Mary J 75 
Arnold, Frank 240 
Arnold, W. S 240 
Auser, Nathan 34 
Baden, John H 188 
Ball, William 60 
Barnes, Surgeon-General J. K 95 
“ * “ 157 
“ “ “ 167 
Barr, John H jgj 
Bartley, Lieutenant Reuben ... 62 
Bates, Lewis F... " 4g 
Bean, E. D. R ogo 
Bell, William H 454 
“ “ jgg 
Blanford, Dr. J. H 195 
“ “ :::::::::::::::: ibo 
“ 200 
“ “ 203 
Bloyce, Charles 183 
Bloyce, Frank 176 
Bloyce, Julia A 192 
Bloyce, Mrs. Eleanor 176 
Boigi, Charles A 112 
Booz, George 201 
“ “ 201 
Bowman, Dr. William J 178 
Boyle, Rev. Francis E 130 
Branson, Margaret 160 
Brawner, Alexander 153 
Brenner, A 57 
Briscoe, Mrs. Becky 177 
Briscoe, Washington 145 
11 « Igg 
Brook, Albin J ! 181 
Browning, W. B 70 
Buckingham, John E 73 
Bunker, G. W 46 
“ “ 112 
Burden, Henry 216 
Burke, Colonel Martin 53 
Burroughs, Joseph 74 
“ “ 75 
Caldwell, John 148 
Calvert, George H 126 
“ “ 126 
Campbell, Robert Anson 45 
Cantlin, John 51 
Garland, Louis J 108 
Carter, Hosea B 38 
Chamberlayne, Lewis W 52 
Chester, S. K 44 
Clark, Henry A 197 
Clark, Spencer M 159 
PROS. DEF. 
Cleaver, William E 71 
Clendenin, William ....I!!".."!. 148 
Cobb, Sergeant S. T .* 84 
Conger, Everton J 1!...’...."!..". 91 
Conover, Sanford 28 
“ “ ...” 30 
“ “ 31 
Corbett, Sergeant Boston ’ 94 
Cottingham, George 124 
“ “ 125 
Courtney, John C 47 
Coyle, John F 83 
Craig, George 241 
Crane, William L 47 
Dana, C. A 40 
“ “ 41 
Dana, Lieutenant David D 88 
Davis, Dr. Charles W 96 
Davis, John F 294 
“ “ 212 
Davis, Thomas 195 
“ “ ”* 200 
Dawson, Charles ' 42 
“ “ 71 
Deakins, Polk 187 
Debonay, J. L 105 
“ “ 105 
Dempsey, Lieutenant John W 124 
“ “ “ 124 
Devenay, John *’’’ 38 
Doherty, Captain E. P . 95 
Dooley, F. H ” 152 
Douglass, H. K 66 
Downing, J. H 183 
Duell, Charles 42 
Dye, Sergeant Joseph M 72 
Dyer, Jeremiah 170 
It U x ° 
U u 180 
IQA 
Early, Bernard J *’* 224 
u u 228 
Eastwood, Daniel S.. ”* gg 
Eaton, William 4-1 
u u 
GO 
Eckert, Major T. T 41 
“ “ 41 
“ “ 47 
“ “ 52 
Edmonds, Captain Eli, U. S. N gg 
Edmunds, George F 53 
Edson, Henry G 53 
Eglent, Elzee 174 
Eglent, Sylvester 171 
Evans, William A 143 
“ “ 174 
Farrell, Francis R 218 XIV 
ALPHABETICAL INDEX OF WITNESSES. 
PROS. DEF. 
Farwell, Leonard J...., 151 
Ferguson, James 42 
Ferguson, James P 76 
“ “ 106 
Finegas, Henry 39 
Fitzpatrick, Miss Honora 121 
“ “ 132 
“ “ 132 
Fletcher, John 83 
“ “ 145 
Ford, H. Clay 99 
Ford, James R 100 
Ford, John T 102 
“ “ 104 
Frazier, Edward 49 
Fuller, John H 231 
Gardiner, Benjamin W 211 
“ “ 211 
Gardiner, Marcellus 205 
Gardiner, Polk 85 
Gardiner, Thomas L 71 
“ “ 196 
Gavacan, Simon 89 
Gemmill, Sergeant L. W 149 
Gifford, James J 77 
“ “ 109 
Giles, John R 231 
Gobright, L. A 213 
Goenther, John 112 
Grant, John 166 
Grant, Lieutenant-General U. S 37 
Grant, Mrs. Lucy Ann 166 
Grayes, W. D 51 
Greenawalt, John 146 
Grillett, George 230 
Gwynn, Bennett F 126 
“ “ 126 
“ “ 182 
Hall, Charles B 241 
Hall, Frederick H 52 
Hall, Dr. James 0 164 
“ “ 167 
Hamilton, Brig.-Gen. Alex. J 48 
Hamiston, Willis 220 
Hapman, John 223 
Hardy, John F...; 213 
“ “ 218 
Harkins, Louis B 153 
Hatter, John C 227 
Hawkins, Daniel W 189 
Hawkins, Henry 247 
Heinrichs, Oscar 66 
Henderson, J. B 225 
“ “ 229 
Herold, Emma 96 
Herold, Jane 152 
“ “ .. 213 
Hess, C. D 99 
Hodges, Silas H 221 
Holahan, John T 139 
Holahan, Mrs. Eliza 132 
Holland, John C 187 
Horner, Eaton G 234 
“ “ 241 
Howell, Augustus S 133 
Hoxton, John T 137 
Hoxton, William W 137 
Hoyle, William L 136 
Hubbard, John B 165 
PROS. DBF. 
Hudspeth, Mrs. Mary 39 
Hutchinson, George B 37 
Hyams, Godfrey Joseph 54 
James, Henry M 105 
Jarboe, James J 218 
Jaquette, Isaac 82 
Jenkins, J. Z 127 
“ “ 128 
Jenkins, Mrs. Mary 96 
Jett, Willie S 90 
Johnson, Edward 64 
Johnson, Primus 202 
Jones, Robert R 144 
Jones, Samuel P . 37 
Jordan, Edward.., 169 
Kaighn, Margaret 161 
Kallenbach, Andrew 127 
“ “ 141 
Kent, William T 82 
Kelleher, James 151 
Keilotz, William H 96 
Keim, Lieutenant W. R 147 
King, Horatio 220 
Knox, Major Kilburn 226 
Lamb, James 106 
“ “ 107 
Lanihan, Rev. P 136 
Langley, John T 205 
La touche, John 62 
Leaman, James E 152 
Leaman, Somerset 152 
Lee, John 144 
Lloyd, John M 85 
“ “ 87 
Lloyd, Joshua 90 
Loughran, Daniel 280 
Loyett, Lieutenant Alexander 87 
Lucas, Francis 192 
Lusby, James 129 
Maddox, James L 75 
Magee, George R 236 
Marsh, Salome 57 
Marsh, Stephen 159 
Marshall, William 172 
Martin, R. F 198 
“ “ 198 
Maulsby, P. H 232 
McAllister, Samuel 153 
“ “ 192 
McCall, Colonel W. H. H 166 
McDevitt, James A 140 
McGowan, Captain Theodore 78 
McKim, Dr. S. A. H 97 
McPhail, James L 148 
“ “ 222 
“ “ 239 
McPhail, William 236 
McPherson, John 204 
McPherson, Mason L 204 
Memmert, Frederick 53 
Merrick, Henry E 11l 
Merritt, James B 35 
“ “ 37 
Metz, Hezekiah 149 
Middleton, D. W 216 
Miles, John 81 
Monroe, Daniel E 212 
Monroe, Captain Frank, U. S. N 150 
Montgomery, J. H 192 ALPHABETICAL INDEX OF WITNESSES. 
XV 
~ PROS. DBF. 
Montgomery, Richard 24 
“ “ 26 
11 28 
Morgan, R. C 122 
Mudd, Fannie 493 
Mudd, George D 206 
“ “ . " 210 
Mudd, jr., h. 1... 195 
“ “ 197 
•“ “ 493 
Mudd, Jeremiah T 187 
“ 190 
_ “ “ 192 
Mudd, Miss Mary 195 
Mudd, Mrs. Emily 193 
Mudd, William A 183 
Murphy, Edward 229 
“ “ 229 
Murray, Mrs. Martha 154 
Naylor, Joshua S 189 
Nelson, Mrs. Mary E 213 
Nelson, Robert 458 
Neyins, Colonel W. R 444 
Newman, L. P. D 239 
Nichols, Dr. Charles H 464 
Nokes, James gg 
Norris, Dr. Basil 437 
Norton, Marcus P 149 
« “ iso 
« £( Fn 
Nothey, John "" 227 
Nott, Joseph T 426 
£< _ “ 427 
O’Brien, James R * 111 
Offutt, Mrs. Emma 421 
“ i( 425 
Olin, Judge A. B 82 
“ “ 217 
Orme, Lemuel L 433 
Owen, Joshua T 43 
Piles, John V 429 
Plant, Joseph P. K 444 
Pole, Minnie 241 
Pope, Matthew J 454 
Porter, Assistant Surgeon George L. 168 
Potts, Mrs. Elizabeth or 
Potts, John 48 
Price, Thomas 158 
Pumphrey, James W 72 
Purdy, Henry E 231 
Purdy, Robert 43 
Randall, Voltaire 235 
Ransford, P. T 139 
Rathbone, Major Henry R 78 
Raybold, Thomas J 109 
_ “ “ 11l 
Reeyes, A. R 420 
Reed, David C 83 
.“ “ I”!””!"!!””! i3B 
Rice, Nathan 48 
Richards, James W 185 
Richter, Hartman 153 
Ripple, Lieutenant J. L....62 
Ritterspaugh, Jacob 97 
“ « 97 
“ “ .1!..”..."”!!...!. 107 
Roberts, John E 166 
Robinson, Sergeant George F 155 
PROS. I>KF. 
Robinson, Sergeant George F 156 
Roby, A. V 142 
Roby, Dorley B 142 
Roby, Leonard S 202 
■ Robrer, William H 28 
Rosch, Charles H 98 
i “ “ 158 
1 Ross, Erastus W 62 
Russell, Abram D 64 
1 Russell, James E 47 
Ryan, John 138 
1 Ryder, Rey. W. H 47 
Semus, Rachel 137 
Sessford, Joseph S 104 
Seward, Major Augustus H 156 
Shayor, Jacob 219 
Simms, Joe 39 
“ “ 81 
Simms, Mary 170 
Simms, Milo 172 
Simms, Mrs. Mary Jane 432 
Simonds, Joseph H **". 45 
Skinner, Richard E 287 
Sleichmann, John F 73 
Smith, Jacob 240 
Smith, Major H. W 121 
Smith, Samuel 454 
Smith, William R 406 
Smoot, E. L 141 
Soule, Jules 47 
Spencer, Rachel 172 
Sprague, Lyman S 144 
Stabler; 8r00ke.... 71 
Stanton, Dayid 226 
Stewart, Edward C 223 
Stewart, Joseph B 79 
Stewart, Susan 202 
Stith, Frank 138 
Stone, Dr. Robert King 81 
1 Stonestreet, Rey. Charles H .. 136 
“ “ 218 
Streett, Samuel 224 
Surratt, Miss Anna E 130 
“ 11 4g2 
Sweeney, Charles 60 
Sweeney, Richard 229 
Sweerer, Benjamin 59 
Taltayul, Peter 72 
Taylor, Colonel Joseph H 41 
Terry, Lieutenant William H * 41 
“ “ ; 235 
Thomas, Daniel J 173 
“ “ 174 
Thomas, Dr. John G 284 
Thompson, John C 430 
“ 178 
Thompson, John L ”” 443 
Toffey, Lieutenant John J 459 
m “ “ 160 
1 Townsend, Brig.-Gen. E. D., U. S. A. 50 
“ “ “ 244 
Treat, Colonel R. B 54 
Trotter, Peter 204 
Turner, John L 437 
Turner, Mary Ann 75 
Van Tine, Mrs. Mary J 222 
Verdi, Dr. F. S 457 
1 Von Steinacker, H 33 
Walker, James 447 XVI 
ALPHABETICAL INDEX OE WITNESSES. 
PROS. BEF. 
Wall, W. L 57 
Wallace, William 221 
Walsh, Francis S 96 
Ward, Miss Anna 135 
Ward, Frank 189 
• Ward, John H 176 
Washington, Baptist 181 
Washington, Betty ; 194 
“ « 201 
Washington, Frank 181 
“ “ 194 
Washington, Melvina 171 
Waters, John 189 
Waters, Joseph 189 
Watson, Eli J 188 
Watson, William J 186 
Weichmann, Louis J 113 
“ “ 118 
« « 120 
PEOS. DEJ. 
Wells, Colonel H. H 158 
“ « 168 
Wermerskirch, Captain W. M 123 
Wharton, John W 241 
Wheeler, William E 39 
’ << “ 221 
Wiget, Rev. B. P 135 
Wilcox, Daniel H 47 
Wilkes, George 64 
Williams, Billy 223 
Williams, William 88 
Wilson, Dr. John 158 
Withers, jr,, William 79 
“ “ * 104 
Wood, William P 130 
Woods, George B 133 
Young, James 61 
Young, James P 139 
Young, Rev. N. D 136 PROCEEDINGS 
OF A 
MILITARY COMMISSION, 
Convened at Washington, D. C., 
by virtue of the following Orders: 
Executive Chamber, \ 
Washington City, May 1, 1865.J 
Columbia, on Monday, the Bth day of May, 
1865, at 9 o’clock A. M., or as soon there- 
after as practicable, for the trial of David E. 
Herold, George A. Atzerodt, Lewis Payne, 
Michael O’Laughlin, Edward Spangler, Sam- 
uel Arnold, Mary E. Surratt, Samuel A. 
Mudd, and such other prisoners as may be 
brought before it, implicated in the murder 
of the late President, Abraham Lincoln, and 
the attempted assassination of the Honorable 
William H. Seward, Secretary of State, and 
in an alleged conspiracy to assassinate other 
officers of the Federal Government at Wash- 
ington City, and their aiders and abettors. 
Whereas, the Attorney-General of the 
XJnited States hath given his opinion: 
That the persons implicated in the murder 
of the late President, Abraham Lincoln, and 
the attempted assassination of the Honorable 
William H. Seward, Secretary of State, and 
in an alleged conspiracy to assassinate other 
officers ot the Federal Government at Wash- 
ington City, and their aiders and abettors, 
are subject to the jurisdiction of, and lawfully 
triable before, a Military Commission; 
It is ordered: Ist. That the Assistant 
Adjutant-General detail nine competent mili- 
tary officers to serve as a Commission for the 
trial of said parties, and that the Judge 
Advocate General proceed to prefer charges 
against said parties for their alleged offenses, 
and bring them to trial before said Military 
Commission; that said trial or trials be con- 
ducted by the said Judge Advocate General, 
and as recorder thereof, in person, aided by 
such Assistant and Special Judge Advocates 
as he may designate; and that said trials be 
conducted with all diligence consistent with 
the ends of justice; the said Commission to 
sit without regard to hours. 
2d. That Brevet Major-General Hartranft 
be assigned to duty as Special Provost Mar- 
shal General, for the purpose of said trial, 
and attendance upon said Commission, and 
the execution of its mandates. 
3d. That the said Commission establish 
Major-General David Hunter, XL S. Vol- 
unteers. 
DETAIL FOE THE COURT. 
Major-General Lewis Wallace, U. S. Vol- 
unteers. 
Brevet Major-General August V. Kautz, 
XL S. Volunteers. 
Brigadier-General Albion P. Howe, XL S. 
Volunteers. 
Brigadier-General Robert S. Foster, XL S. 
V olunteers. 
Brevet Brigadier-General Cyrus B. Com- 
stock, U. S. Volunteers. 
Brigadier-General T. M. Harris, XL S. Vol- 
unteers. 
Brevet Colonel Horace Porter, Aid-de- 
Camp. 
Lieutenant-Colonel David R. Clendenin, 
Eighth Illinois Cavalry. 
Brigadier-General Joseph Holt, Judge Ad- 
vocate General XJ. S. Army, is appointed the 
Judge Advocate and Recorder of the Com- 
mission, to be aided by such Assistant or 
Special Judge Advocates as he may desig- 
nate. 
such order or rules of proceeding as may 
avoid unnecessary delay, and conduce to the 
ends of public justice. 
[Signed] ANDREW JOHNSON. 
War Department, Adj’t-General’s Office, I 
Washington, May 6, 1865. J 
Special Orders, No. 211. 
The Commission will sit without regard to 
hours. 
By order of the President of the XJnited 
States. 
4. A Military Commission is hereby ap- 
pointed to meet at Washington, District of 
EXTRACT. 
******** 
[Signed] W. A. NICHOLS, 
Assistant Adjutant-General. 18 
THE CONSPIRACY TRIAL. 
Court-Room, Washington, B. C., 1 
May 9,1805, 10 o’clock A. M. J 
Brigadier-General Joseph Holt, Judge Ad- 
vocate and Recorder. 
The Commission met pursuant to the fore- 
going Orders. 
All the members present; also the Judge 
Advocate General. 
The Hon. John A. Bingham, and Brevet 
Colonel H. L. Burnett, Judge Advocate, were 
then introduced by the Judge Advocate 
General as Assistant or Special Judge Advo- 
cates. 
By order of the President of the United 
States. 
[Signed] E. D. TOWNSEND. 
Assistant Adjutant-General. 
All the members named in the foregoing 
order being present, the Commission pro- 
ceeded to the trial of David E. Herold, George 
A. Atzerodt, Lewis Payne, Michael O’Laugh- 
lin, Edward Spangler, Samuel Arnold, Mary 
E. Surratt, and Samuel A. Mudd, who were 
brought into court, and having heard read 
the foregoing orders, the accused were asked 
if they had any objection to any member 
named therein, to which all severally replied 
they had none. 
The members of the Commission were 
then duly sworn by the Judge Advocate Gen- 
eral, in the presence of the accused. 
The Judge Advocate General, and Assist- 
ant Judge Advocates, Hon. John A. Bingham 
and Brevet Colonel H. L. Burnett, were then 
duly sworn by the President of the Commis- 
sion, in the presence of the accused. 
Benn Pitman, R. Sutton, D. F, Murphy, 
R. R. Hitt, J. J. Murphy, and Edward V, 
Murphy, were duly sworn by the Judge 
Advocate General, in the presence of the ac- 
cused, as reporters to the Commission. 
The accused were then severally arraigned 
on the following Charge and Specification: 
The accused, David E. Herold, George 
A. Atzerodt, Samuel Arnold, Lewis Payne, 
Michael O’Laughlin, Edward Spangler, Mary 
E. Surratt, and Samuel A. Mudd, were then 
brought into court, and being asked whether 
they desired to employ counsel, replied that 
they did. 
To afford the accused opportunity to secure 
counsel, the Commission adjourned to meet 
on Wednesday, May 10, at 10 o’clock A. M. 
Court-Room, Washington, B. C., 1 
May 10, 1865, 10 o’clock A. M. j 
The Commission met pursuant to adjourn- 
ment. 
Present, all the members named in the fore- 
going Order; also present the Judge Advo- 
cate General, and Assistant Judge Advocates 
Bingham and Burnett. 
The Judge Advocate General then read the 
following Special Order; 
War Department, Aixt’t-Genkeal’r Office, 1 
Washington, May 9, 1865. ) 
Special Orders, No. 216. 
EXTRACT. 
CHARGE AND SPECIFICATION 
AGAINST 
91. Brevet Brigadier-General Cyrus B. 
Comstock, U. S. Volunteers, and' Brevet 
Colonel Horace Porter, Aid-de-Camp, are here- 
by relieved from duty as members of the 
Military Commission, appointed in Special 
Orders No. 211, paragraph 4, dated “War 
Department, Adjutant-General’s Office, Wash- 
ington, May 6, 1865,” and Brevet Brigadier- 
General James A. Ekin, U. S. Volunteers, 
and Brevet Colonel C. H. Tomkins, U. S. 
Army, are detailed in their places respectively. 
The Commission will be composed as fol- 
lows ; 
DAVID E. HEROLD, GEORGE A. 
ATZERODT, LEWIS PAYNE, MI- 
CHAEL O’LATJGHLIN, EDWARD 
SPANGLER, SAMUEL ARNOLD, 
MARY E. SURRATT, AND SAM- 
UEL A. MUDD. 
CHARGE.—For maliciously, unlawfully, and 
traitorously, and in aid of the the existing 
armed rebellion against the United States of 
America, on or before the 6th day of March, 
A. D. 1865, and on divers other days between 
that day and the 15th day of April, A. D. 
1865, combining, confederating, and conspiring 
together with one John 11. Surratt, John Wilkes 
Booth, Jefferson Davis, George N. Sanders. 
Beverly Tucker, Jacob Thompson, William C. 
Cleary, Clement C. Clay, George Harper, 
George Young, and others unknown, to kill 
and murder, within the Military Department 
of Washington, and within the fortified and 
intrenched lines thereof,' Abraham Lincoln, 
late, and at the time of said combining, con- 
federating, and conspiring, President of the 
United States of America, and Commander-in- 
Chief of the Army and Navy thereof; Andrew 
Johnson, now Vice-President of the United 
States aforesaid; William 11. Seward, Secre- 
tary of State (f the United States aforesaid; 
Major-General David Hunter, U. S. Volun- 
teers. 
Major-General Lewis Wallace, U. S. Volun- 
teers. 
Brevet Major-General August V, Kautz, U. 
S. Volunteers. 
Brigadier-General Albion P. Howe, U. S. 
Volunteers. 
Brigadier-General Robert S. Foster, U. S. 
Volunteers. 
Brevet Brigadier-General James A. Ekin, 
U. S. Volunteers. 
Brigadier-General T. M. Harris, U. S. 
Volunteers. 
Brevet Colonel C. 11. Tomkins, U. S. Army. 
Lieutenant-Colonel David R. Clendenin, 
Eighth Illinois Cavalry. 19 
and Ulysses S. Grant, Lieutenant-General of 
the Army of the United States aforesaid, then 
in command of the Armies of the United 
States, under the direction of the said Abra- 
ham Lincoln; and in ■pursuance of and in 
prosecuting said malicious, unlawful, and 
traitorous conspiracy aforesaid, and in aid of 
said rebellion, afterward, to-wit, on the 14th day 
of April, A. D. 1865, within the Military 
Department of Washington aforesaid, and 
within the fortified and intrenched lines of 
said Military Department, together with said 
John Wilkes Booth and John 11. Surratt, 
maliciously, unlawfully, and traitorously mur- 
dering the said Abraham Lincoln, then Presi- 
dent of the United States and Commander-in- 
Chief of the Army and Navy of the United 
States, as aforesaid; and maliciously, unlaw- 
fully, and traitorously assaulting, with intent 
to kill and murder, the said William 11. Sew- 
ard, then Secretary of State of the United 
States, as aforesaid; and lying in wait with 
intent maliciously, unlawfully, and traitorously 
to kill and murder the said Andrew Johnson 
then being Vice-President of the United States] 
and the said Ulysses S. Grant, then being 
Lieutenant-General, and in command of the 
Armies oj the United States, as aforesaid. 
CHARGE AND SPECIFICATION 
Lincoln, in command of the Armies of the 
United States, aforesaid; and unlawfully, ma- 
liciously, and traitorously to kill and murder 
William H. Seward, then Secretary of State 
of the United States aforesaid, whose duty it 
was, by law, upon the death of said President 
and Vice-President of the United States afore- 
said, to cause an election to be held for elect- 
ors of President of the United States: the 
conspirators aforesaid designing and intend- 
ing, by the killing and murder of the said 
Abraham Lincoln, Andrew Johnson, Ulysses 
S. Grant, and William H. Seward, as afore- 
said, to deprive the Army and Navy of the 
said United States of a constitutional Com- 
mander-in-Chief; and to deprive the Armies 
of the United States of their lawful com- 
mander; and to prevent a lawful election of 
President and Vice-President of the United 
States aforesaid; and by the means aforesaid 
to aid and comfort the insurgents engaged in 
armed rebellion against the said United States, 
as aforesaid, and thereby to aid in the subver- 
sion and overthrow of the Constitution and 
laws of the said United States. 
And being so combined, confederated, and 
conspiring together in the prosecution of said 
unlawful and traitorous conspiracy, on the 
night of the 14th day of April, A. D. 1865, at 
the hour of about 10 o’clock and 15 minutes 
P. M., at Ford’s Theater, on Tenth Street, in 
the City of Washington, and within the mili- 
tary department and military lines aforesaid, 
John Wilkes Booth, one of the conspirators 
aforesaid, in pursuance of said unlawful and 
traitorous conspiracy, did, then and there, un- 
lawfully, maliciously, and traitorously, and 
with intent to kill and murder the said Abra- 
ham Lincoln, discharge a pistol then held in 
the hands of him, the said Booth, the same 
being then loaded with powder and a leaden 
ball, against and upon the left and posterior 
side of the head of the said Abraham Lin- 
coln ; and did thereb}', then and there, inflict 
upon him, the said Abraham Lincoln, then 
President of the said United States, and 
Commander-in-Chief of the Army and Navy 
thereof, a mortal wound, whereof, afterward, 
to-wit, on the 15th day of April, A. D. 1865, 
at Washington City aforesaid, the said Abra- 
ham Lincoln died; and thereby, then and 
there, and in pursuance of said conspiracy 
the said defendants, and the said John Wilkes 
Booth and John H. Surratt, did unlawfully, 
traitorously, and maliciously, and with the 
intent to aid the rebellion, as aforesaid, kill 
and murder the said Abraham Lincoln, Pres- 
ident of the United States, as aforesaid. 
And in further prosecution of the unlawful 
and traitorous conspiracy aforesaid, and of 
the murderous and traitorous intent of said 
Specifications—ln this: that they, the 
said David E. Herold, Edward Spangler, 
Lewis Payne, Michael O’Laughlin, Samuel 
Arnold, Mary E. Surratt, George A. Atzerodt, 
and Samuel A. Mudd, together with the said 
John H. Surratt and John Wilkes Booth, in- 
cited and encouraged thereunto by Jefferson 
Davis, George N. Sanders, Beverly Tucker, 
Jacob Thompson, William C. Cleary, Clem- 
ent C. Clay, George Harper, George Young, 
and others unknown, citizens of the United 
States aforesaid, and who were then engaged 
in armed rebellion against the United States 
of A merica, within the limits thereof, did, in 
aid of said armed rebellion, on or before the 
6th day of March, A. D. 1865, and on divers 
other days and times between that day and 
the 15th day of April, A. D. 1865, combine, 
confederate, and conspire together, at Wash- 
ington City, within the Military Department 
of Washington, and within the intrenched 
fortifications and military lines of the United 
States, there being, unlawfully, maliciously, 
and traitorously to kill and murder Abraham 
Lincoln, then President of the United States 
aforesaid, and Commander-in-Chief of the 
Army and Navy thereof; and unlawfully, 
maliciously, and traitorously to kill and mur- 
der Andrew Johnson, now Vice-President of 
the said United States, upon whom, on the 
death of said Abraham Lincoln, after the 4th 
day of March, A. D. 1865, the office of Presi- 
dent of the said United States, and Com- 
mander-in-Chief of the Army and Navy, 
thereof, would devolve; and to unlawfully, 
maliciously, and traitorously kill and murder 
Ulysses S. Grant, then Lieutenant-General, 
and, under the direction of the said Abraham 
conspiracy, the said Edward Spangler, on 
said 14th day of April, A. D. 1865, at about 
the same hour of that day, as aforesaid, 
within said military department and the mil- 
itary lines aforesaid, did aid and assist the 
said John Wilkes Booth to obtain entrance 20 
THE CONSPIRACY TRIAL. 
to the box in said theater, in which said 
Abraham Lincoln was sitting at the time he 
was assaulted and shot, as aforesaid, by John 
Wilkes Booth; and also did, then and there, 
aid said Booth in barring and obstructing 
the door of the box of said theater, so as to 
hinder and prevent any assistance to or res- 
cue of the said Abraham Lincoln against the 
murderous assault of the said John Wilkes 
Booth ; and did aid and abet him in making 
his escape after the said Abraham Lincoln 
had been murdered in manner aforesaid. 
Augustus H. Seward, Emrick W. Ilansell, 
and George F. Robinson. 
And in further prosecution of said conspir- 
acy and its traitorous and murderous designs, 
the said George A. Atzerodt did, on the night 
of the 14th of April, A. D. 1865, and about 
the same hour of the night aforesaid, within 
the military department and the military lines 
aforesaid, lie in wait for Andrew Johnson, 
then Vice-President of the United States 
aforesaid, with the intent unlawfully and ma- 
liciously to kill and murder him, the said 
Andrew Johnson. 
And in further prosecution of said unlaw- 
ful, murderous, and traitorous conspiracy, and 
in pursuance thereof, and with the intent as 
aforesaid, the said David E. Herold did, on 
the night of the 14th of April, A. D. 1865, 
within the military department and military 
lines aforesaid, aid, abet, and assist the said 
John Wilkes Booth in the killing and mur- 
der of the said Abraham Lincoln, and did, 
then and there, aid and abet and assist him, 
the said John Wilkes Booth, in attempting 
to escape through the military lines afore- 
said, and did accompany and assist the said 
John Wilkes Booth in attempting to conceal 
himself and escape from justice, after killing 
and murdering said Abraham Lincoln as 
aforesaid. 
And in the further prosecution of the con- 
spiracy aforesaid, and of its murderous and 
treasonable purposes aforesaid, on the nights 
of the ,13th and 14th of April, A. D. 1865, at 
Washington City, and within the military de- 
partment and the military lines aforesaid, the 
said Michael O’Laughlin did, then and there, 
lie in wait for Ulysses S. Grant, then Lieuten- 
ant-General and Commander of the Armies 
of the United States, as aforesaid, with in- 
tent, then and there, to kill and murder the 
said Ulysses S. Grant, 
And in further prosecution of said conspir- 
acy, the said Samuel Arnold did, within the 
military department and the military lines 
aforesaid, on or before the 6th day of March, 
A. D. 1865, and on divers other days and times 
between that day and the 15th day of April, 
A. D. 1865, combine, conspire with, and aid, 
counsel, abet, comfort, and support, the said 
John Wilkes Booth, Lewis Payne, George A. 
Atzerodt, Michael O’Laughlin, and their con- 
federates in said unlawful, murderous, and 
traitorous conspiracy, and in the execution 
thereof, as aforesaid. 
And in further prosecution of said conspir- 
acy, Mary E. Surratt did, at Washington 
City, and within the military department and 
military lines aforesaid, on or before the 6th 
day of March, A. D. 1865, and on divers 
other days and times between that day and 
the 20th day of April, A. D. 1865, receive, 
entertain, harbor, and conceal, aid and assist 
the said John Wilkes Booth, David E. Her- 
old, Lewis Payne, John H. Surratt, Michael 
O’Laughlin, George A. Atzerodt, Samuel Ar- 
nold, and their confederates, with the knowl 
edge of the murderous and traitorous conspir- 
acy aforesaid, and with intent to aid, abet, and 
assist them in the execution thereof, and in 
escaping from justice after the murder of the 
said Abraham Lincoln, as aforesaid. 
And in further prosecution of said con- 
spiracy, the said Samuel A. Mudd did, at 
Washington City, and within the military de- 
partment and military lines aforesaid, on or 
before the 6th day of March, A. D. 1865, and 
on divers other days and times between that 
day and the 20th day of April, A. D. 1865, 
advise, encourage, receive, entertain, harbor, 
and conceal, aid and assist the said John 
Wilkes Booth, David E. Herold, Lewis Payne, 
John H. Surratt, Michael O’Laughlin, George 
A. Atzerodt, Mary E. Surratt, and Samuel 
And in further prosecution of said unlaw- 
ful and traitorous conspiracy, and of the in- 
tent thereof, as aforesaid, the said Lewis 
Payne did. on the same night of the 14th 
rlay of April, A. D. 1865, about the same 
hour of 10 o’clock and 15 minutes P. M., at 
the City of Washington, and within the mil- 
itary department and the military lines afore- 
said, unlawfully and maliciously make an 
assault npon the said William H. Seward, 
Secretary of State, as aforesaid, in the dwell- 
ing-house and bed-chamber of him, the said 
William H. Seward, and the said Payne did, 
then and there, with a large knife held in 
his hand, unlawfully, traitorously, and in 
pursuance of said conspiracy, strike, stab, 
cut, and attempt to kill and murder the said 
William H. Seward, and did thereby, then 
and there, and with the intent aforesaid, with 
said knife, inflict upon the face and throat of 
the said William H. Seward divers grievous 
wounds. And the said Lewis Payne, in fur- 
ther prosecution of said conspiracy, at the 
same time and place last aforesaid, did at- 
tempt, with the knife aforesaid, and a pistol 
held in his hand, to kill and murder Fred- 
erick W. Seward, Augustus IL Seward, Em- 
rick W. Hansell, and George F. Robinson, 
who were then striving to protect and rescue 
the said William H. Seward from murder by 
the said Lewis Payne, and did, then and there, 
with said knife and pistol held in his hands, 
inflict upon the head of said Frederick W. 
Seward, and upon the persons of said Augustus 
11. Seward, Emrick W. Hansell, and George 
F. Robinson, divers grievous and dangerous 
wounds, with intent, then and there, to kill 
and murder the said Frederick W. Seward, RULES OF PROCEEDING 
21 
Arnold, and their confederates, with knowl- 
edge of the murderous and traitorous con- 
spiracy aforesaid, and with the intent to aid, 
abet, and assist them in the execution thereof, 
and in escaping from justice after the murder 
°f the said Abraham Lincoln, in pursuance 
of said conspiracy in manner aforesaid. 
By order of the President of the United 
States. J. HOLT, 
Judge Advocate General. 
be dealt with as contempt of Court, on the 
part of all persons or parties concerned in 
making or procuring such publication. ''" 
7. For the security of the prisoners and 
witnesses, and to preserve order and decorum 
in the trial and proceedings, the presiding 
officer will furnish a pass to counsel, wit- 
nesses, officers, and such persons as may be 
allowed to pass the guard, and be present at 
the trial. No person will be allowed to pass 
the guard without such pass, which, for 
greater precaution, will be countersigned by 
the Special Provost Marshal in attendance 
upon the Court. 
8. The argument of any motion will, unless 
otherwise ordered by the Court, be limited to 
five minutes by one Judge Advocate, and 
counsel on behalf of the prisoners. Objec- 
tions to testimony will be noted on the record, 
and decided upon argument, limited as above, 
on motions. When the testimony is closed, 
the case will be immediately summed up by 
one Judge Advocate, at the discretion of the 
Judge Advocate General, and be followed or 
opened, if the Judge Advocate General elects, 
by counsel for the prisoners, and the argument 
shall be closed by one Judge Advocate. 
9. The argument being closed, the Court 
will immediately proceed duly to deliberate 
and make its determination. 
Charge and Specification indorsed : 
“ Copy of the within Charge and Specifica- 
tion delivered to David E. Herold, George A. 
Atzerodt, Lewis Payne, Michael O’Laughlin, 
Samuel Arnold, Mary E. Surratt, and Samuel 
A. Mudd, on the Bth day of May, 1860. 
[Signed] “J. F. lIA RTR AN FT, 
Brev. Maj.-Gen. and Spec. Prov. Mar. Gen.” 
To the Specification, all the accused severally 
pleaded “Not Guilty.” 
To the Charge “Not Guilty” 
The Commission then considered the rules 
and regulations by which its proceedings 
should be conducted, and after discussion 
adopted the following : 
RULES OF PROCEEDING 
10. The Provost Marshal will have the 
prisoners in attendance during the trial, and 
be responsible for their security. Counsel 
may have access to them in the presence, but 
not in hearing, of a guard. 
11. The counsel for the prisoners will im- 
mediately furnish the Judge Advocate Gen- 
eral with a list of the witnesses required for 
defense, whose attendance will be procured 
in the usual manner. 
ADOPTED BY THE MILITARY COMMISSION 
CONVENED PURSUANT TO SPECIAL 
ORDERS Nos. 211 AND 216. 
1. The Commission will hold its sessions 
in the following hours; Convene at 10 A. M., 
and sit until 1 P. M., and then take a recess 
of one hour. Resume business at 2P. M. 
2. The prisoners will be allowed counsel, 
who shall file evidence of having taken the 
oath prescribed by act of Congress, or shall 
take said oath before being permitted to ap- 
pear in the case. 
3. The examination of witnesses shall be 
To allow further time for the accused to 
secure and communicate with counsel, the 
Commission adjourned to meet on Thursday, 
May 11th, at 10 o’clock A. M. 
conducted on the part of the Government by 
one Judge Advocate, and by counsel on the 
part of the prisoners. 
4. The testimony shall be taken in short- 
hand by reporters, who shall first take an 
oath to record the evidence faithfully and 
truly, and not to communicate the same, or 
any part thereof, or any proceedings on the 
trial, except by authority of the presiding 
officer. 
Coubt-Koom, Washington, D. C., "> 
May 11, 1865, 10 o’clock A. M. / 
The Commission met pursuant to adjourn- 
ment. 
All the members present; also the Judge 
Advocate, the Assistant Judge Advocates, and 
all the accused. 
The record of preceding session was read 
and approved. 
The accused, Samuel A. Mudd, applied for 
permission to introduce Frederick Stone, Esq., 
and Thomas Ewing, jr., Esq., as his counsel 
The accused, Mary E. Surratt, applied 
for permission to introduce Frederick Aiken, 
Esq., and John W. Clampitt, Esq., as her 
5. A copy of the evidence taken each day 
shall be furnished the Judge Advocate Gen- 
eral, and one copy to the counsel of the 
prisoners. 
6. No reporters but the official reporters 
shall be admitted to the court-room. But 
the Judge Advocate General will furnish 
daily, in his discretion, to the agent of the 
Associated Press, a copy of such testimony and 
proceedings as maybe published, pending the 
trial, without injury to the public and the ends 
of justice. All other publication of the evi- 
dence and proceedings is forbidden, and will 
*The testimony of Richard Montgomery, Sanford Con- 
over, and James B. Merritt was, for prudential reasons, 
taken in secret session. At the opening of the session, on 
May 13th, the Judge Advocate announced that the testi- 
mony hereafter to be introduced might bo given to the pub- 
lic without impropriety or embarrassment to the Govern-* 
ment, and that the President of the Commission would 
grant permits for admission to reporters and others to 
an extent not to interfere with the proceedings of the 
Commission. 22 
THE CONSPIRACY TRIAL. 
counsel, which applications were granted; 
and the aforesaid counsel, having first taken, 
in open Court, the oath prescribed by act of 
Congress, approved July 2, 1862, accordingly 
appeared. 
To allow further time for the accused to 
secure the attendance of counsel, the Com- 
mission adjourned, to meet on Friday, May 
12th, at 10 o’clock A. M. 
the contrary, it should lead them to adopt 
the only course left to redress the wrong. 
The taking of the oath under such circum- 
stances, argues no unwillingness to surrender 
their rights. It is indeed the only way in 
which they can protect them, and no moral 
injunction will be violated by such a course, 
because the exaction of the oath was beyond 
the authority of the Convention, and, as a 
law, is therefore void.” 
Mr. Johnson. The Convention called to 
frame a new Constitution for the State was 
called under the authority of an act of the 
Legislature of Maryland, and under that 
alone. By that legislation, their proceedings 
were to be submitted to the then legal voters 
of the State. The Convention thought that 
they were themselves authorized not only to 
impose as an authority to vote what was not 
imposed by the then existing Constitution 
and laws, but to admit to vote those who 
were prohibited from voting by such Con- 
stitution and laws; and I said, in common 
with the whole bar of the State, (and with 
what the bar throughout the Union would 
have said if they had been consulted,) that 
to that extent they had usurped the author- 
ity under which alone they were authorized 
to meet, and that, so far, the proceeding was 
a nullity. They had prescribed this oath; 
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 au- 
thority, but was necessary in order to enable 
the citizen to protect his rights under the 
then Constitution, and that there was no 
moral harm in taking an oath which the 
Convention had no authority to impose. 
The objection being then withdrawn, Mr. 
Johnson accordingly appeared as counsel for 
Mrs. Mary E. Surratt. 
The accused, David E. Herold, George A, 
Atzerodt, Lewis Payne, Michael O’Laughlin, 
Edward Spangler, Samuel Arnold, Mary E. 
Surratt, and Samuel A. Mudd, severally, 
through their counsel, asked leave to with- 
draw for the time their plea of “ Not Guilty,” 
heretofore filed, so that they may plead to the 
jurisdiction of the Commission. 
The applications were granted. 
Court-Room, Washington, D. 0 . t 
May 12, 1885, 10 o’clock, A. M. ( 
The Commission met pursuant to adjourn- 
ment. 
All the members present; also the Judge 
Advocate, the Assistant Judge Advocates, the 
accused, and Messrs. Ewing, Stone, Aiken, 
and Clarnpitt, counsel for the accused. 
The proceedings were read and approved. 
The accused, David E. Herold, applied 
for permission to introduce Frederick Stone, 
Esq., as his counsel. 
The accused, Samuel Arnold, applied for 
permission to introduce Thomas Ewing, jr., 
Esq., as his counsel; which applications were 
granted, and the aforesaid counsel accordingly 
appeared. 
The accused, George A. Atzerodt, applied 
for permission to introduce William E. Doster, 
Esq., as his counsel. 
The accused, Michael O’Laughlin, applied 
for permission to introduce Walter S. Cox, 
Esq., as his counsel. 
The accused. Lewis Payne, applied for 
permission to introduce William E. Doster, 
Esq., as his counsel. 
The accused, Edward Spangler, applied 
for permission to introduce Thomas Ewing, 
jr., Esq., as his counsel; which applications 
were granted, and Messrs. Doster, and Cox, 
having first taken, in open Court, the oath 
prescribed by act of Congress, approved July 
2, 1862, accordingly appeared. 
The accused, Mary E. Surratt, applied 
for permission to introduce the Hon. Reverdy 
Johnson as additional counsel for her, 
A member of the Commission (General T. 
M. Harris) objected to the admission of Mr. 
Johnson as counsel before the Commission, 
on the ground that he did not recognize the 
moral obligation of an oath designed as a 
test of loyalty, or to enforce the obligation of 
loyalty to the Government of the United 
States, referring to a printed letter, dated Bal- 
timore, October 7, 1864, upon “ the constitu- 
tionality, legal and binding effect and bearing 
of the oath prescribed by the late Convention 
of our State, to be taken by the voters of the 
State as the condition and qualification of the 
right to vote upon the Hew Constitution.” 
The letter, published over the signature of 
the Hon. Reverdy Johnson, pending the adop- 
tion of the New Constitution of Maryland, 
contained the following passage; 
“Because the Convention transcended its 
power, as I am satisfied it has, that is no 
reason why the people should submit. On 
The accused then severally offered a plea 
to the jurisdiction of the Commission as fol- 
lows : 
one of the accused, for plea, 
says that this court has no jurisdiction in the 
proceeding against him, because he says he is 
not, and has not been, in the military service 
of the United States. 
And, for further plea, the said 
says that loyal civil courts, in which all the 
offenses charged are triable, exist, and are in 
full and free operation in all the places where 
the several offenses charged are alleged to 
have been committed. 
And, for further plea, the said 
says that the court has no jurisdiction in the JURISDICTION OF THE COMMISSION. 
23 
latter of the alleged conspiracy, so far as it is 
charged to have been a conspiracy to murder 
Abraham Lincoln, late President of the United 
States, and William H. Seward, Secretary of 
State, because hesa}rs said alleged conspiracy, 
and all acts alleged to have been done in the 
formation and in the execution thereof, are 
in the charges and specifications alleged to 
have been committed in the City of Washing- 
ton, in which city are loyal civil courts, in full 
operation, in which all said offenses charged 
are triable. 
swer to the special plea by one of the defend- 
ants, , pleaded to the jurisdiction 
of the Commission in this case, say that this 
Commission has jurisdiction in the premise* 
to try and determine the matters in the Charge 
and Specification alleged and set forth against 
the said defendant. . 
J. HOLT, 
Judge Advocate General. 
and on being re-opened, the Judge Advocate 
announced that the pleas of the accused had 
been overruled by the Commission. 
The accused then severally made applica- 
tion for severance as follows : 
The Court was then cleared for deliberation, 
And the said , for further plea, 
aays this Court has no jurisdiction in the 
matter of the crime of murdering Abraham 
Lincoln, late President of the United States, 
and William H. Seward, Secretary of State, 
because he says said crimes and acts done in 
execution thereof are in the charges and 
specifications alleged to have been committed 
in the City of Washington, in which city are 
loyal civil courts, in full operation, in which 
said crimes are triable. 
Signed on behalf of the accused by counsel. 
The Judge Advocate then presented the 
following replication: 
Now come the United States, and for an- 
7—, one of the accused, asks that 
he be tried separate from those who are 
charged jointly with him, for the reason that 
he believes his defense will be greatly preju- 
diced by a joint trial. 
Signed by counsel on behalf of accused. 
The Commission overruled the application 
for a severance. 
The accused then severally pleaded: 
To the Specification a Not Guilty." 
To the Charge “ Not Guilty TESTIMONY 
RELATING TO THE GENERAL CONSPIRACY. 
Richard Montgomery. 
He said he was in favor of the proposition, 
but had determined to defer his answer until 
he had consulted with his Government at 
Richmond, and he was then only waiting 
their approval. He added that he thought 
it would be a blessing to the people, both 
North and South, to have these men killed. 
I have seen Lewis Payne, the prisoner at 
the bar, in Canada. I saw him at the Falls 
in the summer of 1864. I saw him again, 
and had some words with him, at the Queen’s 
Hotel in Toronto. I had had an interview 
with Mr. Thompson, and on leaving the room 
I met this man Payne in the passage way, 
talking with Mr. Clement C. Clay. Mr. Clay 
stopped me, and held my hand, finishing his 
conversation with Payne in an undertone, 
and when he left me for a moment he said, 
“Wait for me; I will return.” He then 
went and spoke to some other gentleman 
who was entering Mr. Thompson’s door, and 
then came back and bade me good-by, ask- 
ing where he could see me in half an hour. 
I told him, and made an appointment to 
meet him. While Mr. Clay was away, I 
spoke to this man Payne, and asked him 
who he was. I commenced talking about 
some of the topics usually spoken of in con- 
versation among these men. He rather hesi- 
tated about telling me who he was. He said, 
“0, I am a Canadian;” by which I under- 
stood that I was not to question him further. 
In about half an hour afterward I asked Mr. 
Clay who this man Payne was, and he said, 
“What did he say?” I told him that he said 
he was a Canadian. Mr. Clay laughed and 
said, “That is so; he is a Canadian; and,” 
he added, “we trust him.” 
The term “Canadian” was a common ex- 
pression among the Confederates there, and 
was applied to those who were in the habit 
of visiting the States; and I understood from 
Mr. Clay's laugh that their intercourse was 
of a confidential nature. 
I visited Canada in the summer of 1864, 
and, excepting the time I have been going 
backward and forward, have remained there 
until about two weeks ago. I know George 
N. Sanders, Jacob Thompson, Clement C. 
Clay, Professor Holcomb, Beverly Tucker, 
W. C. Cleary, and Harrington. I have fre- 
quently met these persons, since the summer 
of 1864, at Niagara Falls, at Toronto, St, 
Catherines, and at Montreal. Thompson 
passed by several other names, one of which 
was Carson. Clay passed by the name of 
Hope, also Tracy, and another was T. E. 
Lacy. 
In a conversation 1 had with Jacob 
Thompson, in the summer of 1864, he said 
he had his friends (Confederates) all over the 
Northern States, who were ready and willing 
to go any lengths to serve the cause of the 
South; and he added that he could at any 
time have the tyrant Lincoln, and any other 
of his advisers that he chose, put out of his 
way; he would have but to point out the 
man that he considered in his way, and his 
friends, as he termed them, would put him 
out of it, and not let him know any thing 
about it if necessary; and that they would 
not consider it a crime when done for the 
cause of the Confederacy. 
’Shortly after Mr. Thompson told me what 
lie was able to do, I repeated the conversa- 
tion to Mr. Clay, who said, “That is so; we 
are all devoted to our cause, and ready to 
go any lengths—to do any thing under the 
sun to serve our cause.” 
In January of this year, I saw Jacob 
Thompson in Montreal several times, in one 
of these conversations he said a proposition 
had been made to him to rid the world of 
the tyrant Lincoln, Stanton, Grant, and some 
others. The men who had made the propo- 
sition, he said, he knew were bold, daring 
men, and able to execute any thing they 
would undertake, without regard to the cost. 
Witness for the Prosecution.—May 12, 1865. 
I have been in Canada since the assas 
sination. A few days after, I met Beverly 
Tucker at Montreal. He said a great deal TESTIMONY OF RICHARD MONTGOMERY. 
25 
about the wrongs that the South had re- j s 
ceived at the hands of Mr. Lincoln, and that f 
he deserved his death, and it was a pity he r 
did not meet with it long ago. He said it i 
was too bad that the boys had not been c 
allowed to act when they wanted to. “The c 
boys” was an expression applied to the Con-11 
federate soldiers and others in their employ, 1 
who engaged in raids, and who were to as- t 
sassinate the President. i 
1 related a portion of the conversation I ( 
had had with Mr. Thompson to Mr. W. C. i 
Cleary, who is a sort of confidential secretary 
to Mr. Thompson, and he told me that : 
Booth was one of the parties to whom I 
Thompson had reference; and he said, in re- f 
gard to the assassination, that it was too bad 
that the whole work had not been done; by 
which I understood him to mean that they : 
intended to assassinate a greater number than ' 
they succeeded in killing. Cleary remarked, 
when speaking of his regret that the whole 
work had not been done, “They had better 
look out; we have not done yet.” And he 
added that they would never be conquered— 
would never give up. 
Cleary said that Booth had been there, visit- 
ing Thompson, twice in the winter; he thought 
the last time was in December. He had also 
been there in the summer. 
-Thompson told me that Cleary was posted 
upon all his affairs, and that if 1 sought him 
(ihompson) at any time, and he was away, I 
plight state my business to Mr. Cleary, and 
it would be all the same; that I could have 
perfect confidence in him, and that he was 
a very close-mouthed man. 
On my return to Canada, a few days after 
the assassination, I found that those parties 
supposed that they were suspected of the 
assassination. They expected to be indicted 
in Canada, for a violation of the neutrality 
law, a number of days before they were in- 
dicted, and they told me they were destroy- 
ing a great many of their papers. Tucker 
and Cleary both told me they were destroy- 
ing their papers. Tucker said, in an inter- 
view I had with him after my return, that 
it was too bad they had not been allowed to 
act when they wanted to. 
stopping. I was intrusted with dispatches 
from these Confederates to take to Rich- 
mond. I carried some to Gordonsville, with 
instructions to send them from there. I re- 
ceived a reply to these dispatches, which I 
carried back to Canada, bringing them 
through Washington, and making them 
known to the United States Government. I 
took no dispatches from the rebel Govern- 
ment to their agents in Canada without first 
delivering them to the authorities at Wash- 
ington. 
I received a dispatch at Gordonsville from 
a gentleman who represented himself as 
being in the rebel State Department, and 
sent by their Secretary of State. This dis- 
patch I delivered to Mr. Thompson in Octo- 
ber. Thompson, Clay, Cleary, and others 
represented themselves as being in the service 
of the Confederate Government. 
I frequently heard the subject of raids upon 
our frontier, and the burning of cities, spoken 
of by Thompson, Clay, Cleary, Tucker, and 
Sanders. Mr. Clement C. Clay was one of 
the prime movers in the matter before the 
raids were started. They received his direct 
indorsement. He represented himself to me 
as being a sort of representative of their War 
Department at Richmond. The men 1 have 
reference to, more especially Mr. Clay and 
Mr. Thompson, represented that they were 
acting under the sanction of their Govern- 
ment, and as having full power to act with 
reference to that; that they had full power to 
do any thing that they deeemed expedient and 
for the benefit of their cause. 
I was in Canada when arrangements were 
made to fire the City of New York. I left 
Canada to bring the news to Washington, 
two days before the attempt was made. It 
originated in Canada, and had the full sanc- 
tion of these men. 
Before the St. Albans’ raid I knew of it; 
I was not, however, aware of the precise point 
aimed at, but I informed the Government at 
Washington that these men were about setting 
out on a raid of that kind. I also informed 
the Government of the intended raids upon 
Buffalo and Rochester, and by that means 
prevented them. I heard Mr. Clay say, in 
speaking about the funds for paying these 
raids, that he always had plenty of money 
to pay for any thing that was worth paving 
for. I know that they had funds deposited 
in several different banks. They transacted 
considerable business with one which is, I 
think, called the Niagara District Bank; it 
was almost opposite to Mr. Clay’s residence 
in St. Catherines. 
J A paper containing a secret cipher, found among J. 
W iikes Booth’s effects, introduced in evidence, was here 
handed to the witness. ] 
I am familiar with two of the secret ciphers 
used by the Confederates; this is one of them. 
I saw this cipher in 1864, in Mr. Clay’s 
house—the private house in which I was 
stopping at St. Catherines. 
During my stay in Canada I was in the 
service of the United States Government, 
seeking to acquire information in regard to 
the plans and purposes of the rebels who 
were assembled there. To do this most 
With respect to George N. Sander’s posi- 
tion, Mr. Clay told me 1 had better not tell 
him all the things 1 was bent upon, nor all 
the things they intrusted to me; that he was 
a very good man to do their dirty work. 
Those were Mr. Clay’s words. He said 
Sanders was associated with men that they 
could not associate with; but that he was 
effectually, I adopted the name of James 
Thompson ; and leading them to suppose this 
was my correct name, 1 adopted some other 
name at any hotel at which I might be 26 
THE CONSPIRACY TRIAL. 
Tery useful 5n that way—a very useful man 
indeed. 
caped prisoners—led by Lieutenant Bennett 
H. Young; of their attempts and failure to 
burn tlie town; and of their robbery of three 
banks there of the aggregate amount of about 
$200,000; of their arrest in Canada by United 
States forces, their commitment, and the pend- 
ing preliminary trial. There are twelve or 
fourteen of the twenty-five who have been 
arrested, and are now in prison at Montreal, 
where the trial for commitment for extradi- 
tion is now progressing. A letter from Hon. 
J. J. N. Abbott, the leading counsel for the 
prisoners, dated Montreal, 28th October, says 
to me; “We (prisoners’ counsel) all think it 
quite clear that the facts will not justify a com- 
mitment for extradition under the law as it 
stands, and we conceive the strength of our 
position to consist in the documents we hold, 
establishing the authority of the raiders from 
the Confederate States Government. But 
there is no doubt that this authority might 
be made more explicit than it is, in so far as 
regards the particular acts complained of, and 
I presume the Confederate Government will 
consider it to be their duty to recognize offi- 
cially the acts of Lieutenant Young and his 
party, and will find means to convey such 
recognition to the prisoners here, in such a 
form as can be proven before our courts. If 
this were accompanied or followed by a de- 
mand upon our Government that the pris- 
oners be set at liberty, I think a good effect 
would be produced, although probably the 
application would not be received by the au- 
thorities. There will be at least a fortnight’s 
time, and probably more, expended in the ex 
animation of witnesses; so that there will be 
plenty of time for any thing that may be 
thought advisable to be done in behalf of the 
prisoners.” 
1 met Mr. Young at Halifax, on my way 
here, in May last. He showed me letters 
from men whom I know, by reputation, to be 
true friends of States’ rights, and therefore 
of Southern independence, vouching for his 
integrity as a man, his piety as a Christian, 
and his loyalty as a soldier of the South. 
After satisfying me that his heart was with us 
in our struggle, and that he had suffered im- 
prisonment for many months as a soldier of 
the Confederate States army, from which he 
had escaped, he developed his plans for retal- 
iating on the enemy some of the injuries and 
outrages inflicted upon the South. I thought 
them feasible and fully warranted by the law 
of nations, and therefore recommended him 
and his plans to the Secretary of War. He 
was sent back by the Secretary of War, with 
a commission as Second Lieutenant, to exe- 
cute his plans and purposes, but to report to 
Hon. and myself. We prevented his 
achieving or attempting what I am sure he 
could have done, for reasons which may be 
lully explained hereafter. Finally, disap- 
pointed in his original purpose and in all the 
subsequent enterprises projected, he proposed 
to return to the Confederate States, via Halh 
When Mr. Jacob Thompson spoke to me 
of the assassination, in January of this year, 
he said he was in favor of the proposition 
that had been made to him to put the 
President, Mr. Stanton, General Grant, and 
others out of the way; but had deferred 
giving his answer until he had consulted his 
Government at Richmond, and that he was 
only waiting their approval. Ido not know, 
of my own knowledge, that he received an 
answer; my impression, from what Beverly 
Tucker said, was that he had received their 
answer and their approval, and that they had 
been detained waiting for that. 
Cross-examined by Mr. Aiken. 
lam originally from New York City. I 
received from the Confederate Government, 
for going to Gordonsville with those dis- 
patches, equivalent to $l5O, in greenbacks. 
I reported that fact to the War Department 
at Washington, and applied it on my ex- 
pense account as having been received 
from the United States Government. On my 
return from Gordonsville, I handed the 
original dispatches over to the authorities 
here. All those they selected to go ahead 
I carried on ; all those they did not, they 
retained. 
Recalled for the Prosecution.—June 12. 
[A paper was here handed to the witness by the Judge 
Advocate. ] 
That paper I received from Clement C. 
Clay, jr., on the evening of the Ist or 2d of 
November, 1864. I saw Mr. Clay write a 
very considerable portion of it myself, and a 
part of the letter was written with my own 
pen. It was written in his house, in St. 
Catherines, Canada West, which, I believe, is 
on Park Street. I delivered a copy of that 
letter to the Hon. C. A. Dana, Secretary of 
War, here in Washington. I was instructed 
to deliver the original to Mr. Benjamin, Sec- 
retary of State of the Confederate States, if I 
could get to Richmond, and to tell him that 
I was informed of the names that were to be 
inserted in the blanks in the original letter. 
There are two or three such blanks left for 
names. There was no signature to the letter, 
which was omitted principally for my safety, 
and also that, in the event of its being seized, 
it could not be used as evidence against Mr. 
Clay. Both of these reasons were given to 
me by Mr. Clay. Mr. Clay left Canada about 
the Ist of January. 
[ The original of the following letter was then read and 
put in evidence:] 
St. Catherines, C. W., November 1, 1864. 
Hon. J. P- Benjamin, Secretary of Slate, Rich- 
mond, Virginia: 
Sir: You have doubtless learned, through 
the press of the United States, of the raid on 
St. Albans, Vermont, by about twenty-five 
Confederate soldiers—nearly all of them es- 27 
but passing through the New England jl 
states, and burning some towqs, and robbing i 
tnem of whatever he could convert to the use j 
CJ the Confederate Government. This I ap- 3 
proved as justifiable retaliation. He at- t 
tempted to burn the town of St. Albans, ( 
Vermont, and would have succeeded but for i 
the failure of the chemical preparations with 1 
which he was armed. Believing the town ( 
was already fired in several places, and must i 
be destroyed, he then robbed the banks of all < 
the funds he could find—amounting to more : 
than $200,000. That he was not prompted 
by selfish or mercenary motives, and that he < 
did not intend to convert the funds taken to 1 
his own use, but to that of the Confederate 1 
States, I am as well satisfied as I am that he 
is an honest man, a true soldier, and patriot; 
and no one who knows him well will ques- 
tion his title to this character. He assured 
me, before going on the raid, that his efforts 
would be to destroy towns and farm houses, 
not to plunder or rob; but he said if, after 
firing a town, he saw he could take funds 
from a bank, or any house, which might in- 
flict injury on the enemy and benefit his own 
Government, he would do so. He added, 
most emphatically, that whatever he took 
should be turned over to the government or 
its representatives in foreign lands. My in- 
structions to him, oft repeated, were “to 
destroy whatever was valuable; not to stop 
to rob; but if, after firing a town, he could 
seize and carry off money, or treasury or 
bank notes, he might do so, upon condition 
that they were delivered to the proper au- 
thorities of the Confederate States.” That 
they were not delivered according to his 
promise and undertaking was owimq I am 
sure, to the failure of his chemical compound 
to fire the town, and to the capture of him- 
self and men on Canadian soil, where they 
were surprised and overpowered by superior 
numbers from the United States. On show- 
ing me his commission and his instructions 
from Mr. Seddon—which were, of course, 
vague and indefinite—he said he was au- 
thorized to do all the damage he could to the 
enemy in the way of retaliation. If this be 
true, it seems to me the Confederate States 
Government should not hesitate to avow his 
TESTIMONY OF RICHARD MONTGOMERY. 
by the like course of the United States in 
many cases, cited lately in the Canadian pa- 
pers, which I can not now repeal, hut which 
you can readily find. The refusal of extra-* 
dition would have a salutary political influ- 
ence, it is thought, both in the British Prov- 
inces and in England. I can not now explain 
why. I trust, therefore, for the sake not only 
of-the brave soldiers who attempted this dar- 
ing exploit, (which has caused a panic through- 
out the United States bordering on Canada, 
and the organization of forces to resist, as 
well as the arbitrary and tyrannous order of 
General Dix touching the coming Presidential 
election,) but, for the sake of our cause and 
country, that the President will assume the 
responsibility of the act of Lieutenant Bennett 
H. Young, and that you will signify it in such 
form as will entitle it to admission as evidence 
in the pending trial. 
I send the special messenger who brings 
this, that your answer may be brought back 
by him within ten days or by 11th instant. 
The final judgment can and will be post- 
poned for the action of the Confederate States 
Government as long as possible—certainly 
for ten days. 
I avail myself of this opportunity to bring 
to your notice the case of Captain Charles H. 
Cole, another escaped prisoner of General For- 
rest’s command, who was taken about six 
weeks since in the Michigan, (the Federal war 
steamer on Lake Erie,) and is charged with 
an attempt at piracy, (for attempting to cap- 
ture the vessel,) with being a spy, etc. The 
truth is, that he projected and came very near 
executing a plan for the capture of that ves- 
sel and the rescue of the prisoners on John- 
son’s Island. He failed only because of the 
return of the Captain (Carter) of the Michi- 
gan a day sooner than expected, and the be- 
trayal (in consequence of C.’s return) of the 
entire_ plot. The only plausible ground for 
charging him with being a spy is that he 
was in Sandusky, on Johnson’s Island, and 
in the Michigan frequently, without having 
on his person the Confederate uniform, but 
wearing the dress of a private citizen. Mr. 
and I have addressed a letter to the 
commandant at Johnson’s Island, protesting 
against his being treated as a spy for the 
following reasons: “That he was in the ter- 
ritory of the United States as a prisoner 
against his consent; that he escaped by 
changing his garb; that he had no Confed- 
erate uniform when he visited Sandusky, 
Johnson’s Island, and the Michigan ; that he 
did not visit them as an emissary from the 
Confederate States; that whatever he con- 
ceived, he had not executed any thing; that 
he had conveyed no information to his Gov- 
ernment, and did not contemplate conveying 
any information to the Government.” His 
trial has been postponed. I know not why, 
or to what time. His exchange should be pro- 
posed, and notice given that any punishment 
inflicted on him will be retaliated upon an 
act was fully authorized as warrantable re- 
taliation. If the Government do not assume 
the responsibility of this raid, I think Lieu- 
tenant Y. and his men will be given up to 
the United States authorities. If so, I fear the 
exasperated and alarmed people of Vermont 
will exert cruel and summary vengeance 
upon them before they reach the prison at 
St. Albans. 
The sympathies of nine-tenths of the Can- 
adians are with Young and his men; a ma- 
jority of all the newspapers justify or excuse 
his act as merely retaliatory, and they desire 
only the authority of the Confederate States 
Government for it to refuse their extradition. 
The refusal of extradition is fully warranted 28 
THE CONSPIRACY TRIAL, 
officer of equal rank. He is a very brave 
and daring soldier and patriot, and deserves 
the protection of his Government. 
1 wrote to you on the 14th of June; to the 
President, 25th July; and to you again on the 
11th August and 12th September last. I 
trust you received those letters. Mr. H. 
(who, I see, has gotten into the Confederate 
States) has doubtless explained things here. 
I have never received a line from you or any 
person, except my brother, at Richmond. 
I have not changed the views expressed in 
my former communications. All that a large 
portion of the Northern people—especially in 
the North-west—want to resist the oppres- 
sions of the despotism at Washington, is a 
leader. They are ripe for resistance, and it 
may come soon after the Presidential election. 
At all events, it must come, if our armies are 
not overcome and destroyed or dispersed. 
No people of the Anglo-Saxon blood can 
long endure the usurpations and tyrannies 
of Lincoln. Democrats are more hated by 
Northern Republicans than Southern rebels, 
and will be as much outraged and persecuted 
if Lincoln is re-elected. They must yield to 
a cruel and disgraceful despotism or fight. 
They feel it and know it. 
I do not see that I can achieve any thing 
by remaining longer in this Province, and, 
unless instructed to stay, shall leave here by 
20th instant for Halifax, and take my chances 
for running the blockade. If lam to stay 
till spring, I wish my wife to join me under 
flag of truce, if possible. lam afraid to 
risk a winter’s residence in this latitude and 
climate. 
William H. Rohrer. 
For the, Prosecution.—June 13. 
I am acquainted with Clement C. Clay, jr., 
formerly of the United States Senate. I have 
had opportunities for becoming well acquaint- 
ed with his handwriting. I have examined 
the paper that has been testified to by Richard 
Montgomery, and from memory and com- 
parison, I have no hesitation in pronouncing 
it the writing of Clement C. Clay. 
For the Prosecution.—May 20. 
Sanford Conover. 
I was born in New York, and educated 
there. Since October last, I have resided in 
Montreal, Canada. Previous to that, I re- 
sided a short time in Baltimore. Before that, 
I was conscripted, from near Columbia, S. C., 
into the rebel service, but was detailed as a 
clerk, and served as such in the rebel War 
Department at Richmond, for upward of six 
months. Mr. James A. Seddon was at that 
time the rebel Secretary of War. I “ran the 
blockade” from Richmond, by walking most 
of the way. I rode on the cars to Hanover 
Junction, and from there walked up through 
Snickersville to Charlestown, Ya., and from 
there to Harper’s Ferry, and so on. 
While in Canada, I was intimately ac- 
quainted with George N. Sanders, Jacob 
Ihornpson, Clement C. Clay, Dr. Blackburn, 
Beverly Tucker, William C. Cleary, Lewis 
Castleman, Rev. M. Cameron, Mr. Porterfield, 
Captain Magruder, General Frost of Mis- 
souri, General Carroll of Tennessee, and a 
number of others of less note. Of the ac- 
cused who visited these persons, I knew John 
Wilkes Booth and John H. Surratt. Booth 
I saw but once. That was in the latter part 
of October last. I think I saw him with 
Sanders, and also at Mr. Thompson’s. I saw 
him principallv about the St. Lawrence Hall. 
He was strutting about there, dissipating, 
playing billiards, etc. 
Surratt I saw in Montreal somewhere 
about the 6th or 7th of April last, on several 
successive days. Surratt is a man of about 
five feet, nine, ten, or eleven inches; a spare 
man, light complexioned, and light hair. I 
saw him in Mr. Thompson’s room; and, from 
the conversation, Surratt had just brought dis- 
patches from Richmond to Mr. Thompson, 
to which their conversation referred. One 
dispatch was from Mr. Benjamin, the rebel 
Secretary of State, and there was also a letter, 
I think in cipher, from Mr. Davis. I had 
previously had some conversation with Mr. 
Thompson on the subject of the plot to as- 
sassinate Mr. Lincoln and his Cabinet, and I 
had been invited by Mr. Thompson to par- 
ticipate in the enterprise. 
On the occasion when Surratt brought the 
dispatches, Thompson laid his hand on them 
and said, “ This makes the thing all right,” 
referring to the assent of the rebel authori- 
ties. Mr. Lincoln, Mr. Johnson, the Secre- 
I need not sign this. The bearer and the 
person to whom it is addressed can identify 
me. 
But I see no reasons why your response 
should not be signed and sealed, so as to 
make it evidence, as suggested, in respe‘ct to 
the St. Albans’ raid. A statement of pris- 
oners’ counsel has been sent by way of Hal- 
ifax and Wilmington, but it may never reach 
you, or not in time for the deliverance of the 
prisoners. This is my chief reason for send- 
ing this by one I can trust. Please reply 
promptly, and start the messenger back as 
soon as possible. He will explain the char- 
acter of his mission. Send under a seal that 
can not be broken without being discovered. 
I am respectfully, your most obedient 
servant. 
N. B. See the Secretary of War (Mr. Sed- 
don) touching Young’s case. 
Recalled for the Prosecution.—June 13. 
The time occupied to go by rail from Mon- 
treal to Washington City, is between thirty- 
six and thirty-eight hours. The train whiph 
leaves Montreal at 3 o’clock in the afternoon 
connects with trains for Washington, so that 
a person leaving at 3 o’clock on the afternoon 
of the 12th, would certainly reach Washing- 
ton before daylight on the morning of the 14th. TESTIMONY OE SANFORD CONOVER. 
29 
*aiT of War, the Secretary of Slate, Judge tl 
Chase, and General Grant were to be victims te 
°1 this plot. I 
Hr- Thompson said, on one of these oc- ai 
casions, that it would leave the Government B 
entirely without a head. That there was no fi 
provision in the Constitution of thp United 
States by which, if these men were removed, a 
they could elect another President. Mr. "V 
Welles (Secretary of the Navy) was also ii 
named; but Mr. Thompson said it was not j 
worth while to kill him. I 
My first interview wjth Mr. Thompson C 
was at his room, in the St Lawrence Hall h 
Hotel, Montreal, in the early part of February d 
last. I had called on him to make some a 
inquiry about the intended raid on Ogdensburg, s 
N. Y., which had failed because the United 
States Government had received intimation C 
of the intentions of the rebels, and were pre- I 
pared for it. Mr. Thompson said, “We will 1 
have, to drop it for a time, but we will catch i 
them asleep yet.” And he added, “There is 1 
a better opportunity, a better chance to im- 0 
mortalize yourself and save your country.” 
1 told him I was ready to do any thing to c 
save the country, and asked what was to be t 
done. He said, “Some of our boys are go- £ 
ing to play a grand joke on Abe and Andy.” t 
This led to explanations, when he informed t 
me it was to kill them, or rather “to remove 1 
them from office.” He said it was only re- ( 
moving them from office; that the killing of < 
a tyrant was no murder. Thompson had ' 
blank commissions, and he told me then, ( 
or subsequently, that he had conferred one 
on Booth; that he had been commissioned, ’ 
and that everybody that engaged in the enter- 
prise would be commissioned; so that, if it 
succeeded or failed, if they escaped to Canada, 
they could not be successfully claimed under 
the Extradition Treaty. 
I know, of my own personal knowledge, 
that the commission conferred on Bennett 
H. Young, the St. Albans’ raider, was a 
blank commission, filled up and conferred by 
Mr. Clay. The name attached to it? when it 
came into the hands of these men from 
Richmond, was that of James A. Seddon, 
Secretary of War. I saw this commission, 
and I was asked by Mr. Thompson as to the 
genuineness of Seddon’s signature, having 
been a clerk in his department. I testified 
before Judge Smith, in the presence of Mr. 
Thompson, Sanders, Young, and Mr. Abbot, 
the counsel in the case, that the signature 
of Seddon was genuine. I am well ac- 
quainted with the handwriting of James A. 
Seddon, and know that the blank commis- 
sion was in his handwriting. 
These commissions were left blank, except 
the signature of Seddon, the rebel Secretary 
of War; the names were filled up in Canada. 
These commissions were conferred at pleasure 
upon those who engaged in any enterprise, 
and it was understood to be a cover, so that 
m case they were detected they could claim 
that they were rebel soldiers, and to be pro- 
tected and treated as prisoners of war. Booth, 
I believe, was specially commissioned for the 
assassination project. The commission of 
Bennett H. Young was of this sort, and was 
filled up and conferred by Mr. Clay. 
On the day before, or the very day of the 
assassination, I had a conversation with Mr. 
Wm. C. Cleary, at the St. Lawrence Hotel, 
in Montreal. We were speaking of the re- 
joicings in the States over the surrender of 
Lee and the capture of Richmond, etc , and 
Cleary remarked that they would put the 
laugh on the other side of their mouth in a 
day or two. The conspiracy was talked of 
at that time about as commonly as one would 
speak of the weather. 
Before this I had a conversation with 
George N. Sanders, who asked me if I knew 
Booth very well. He expressed some appre- 
hension that Booth would make a fizzle of 
it; that he was dissipated and reckless, and 
he was afraid the whole thing would prove 
a failure. 
While in Canada I was a correspondent 
of the New York Tribune. I communicated 
to the New York Tribune the contemplated 
assassination of the President and the in- 
tended raid on Ogdensburg. The assassina- 
tion plot they declined to publish, because 
they had been accused of publishing sensa- 
tion stories. The plot of the assassination I 
communicated in March last, and also in 
February, I think; certainly before the 4th 
of March. 
I saw John H. Surratt in Montreal, about 
the 7th to the 9th of April, within four or 
five days of the assassination of the Presi- 
dent. From the whole of his conversation I 
inferred that he was to take his part % the 
conspiracy on the President and his Cabinet, 
whatever that conspiracy might be. I do 
not remember that I heard any thing said 
about money or compensation, but it was al- 
ways well understood that there was plenty 
of money where there was any thing to be 
done. At the time of this conversation I 
understood that John H. Surratt was just 
from Richmond. 
In the conversation I had with Mr. 
Thompson in February, he said that killing 
a tyrant in such a case was no murder. He 
asked me if I had ever read the work enti- 
tled tl Killing, no Murder,” a letter addressed 
by Col. Titus to Oliver Cromwell. Mr. Ham- 
lin was also to have been included had the 
scheme been carried out before the 4th of 
March. In the conversation in April, Mr. 
Hamlin was omitted, and Vice-President 
Johnson put in his place. 
There was a proposition before these par- 
ties to destroy the Croton Dam, by which the 
City of New York is supplied with water. It 
was supposed it would not only damage the 
manufactories, but distress the people gener- 
ally very much. Mr. Thompson remarked 
that they would have plenty of fires, and 30 
THE CONSPIRACY TRIAL. 
the whole city would soon be destroyed by a 
general conflagration, without sending any 
Kennedy or anybody else there; and, he 
added, if they had thought of this scheme 
before, they might have saved some necks. 
That was said a few weeks ago, when Mr. 
Thompson, Sanders, Castleman, Gen. Carroll, 
and myself were present. 
I heard a great deal of talk about the 
attempted descent upon Chicago last year; 
that they had some eight hundred men con- 
cealed there; their object, as stated by 
Thompson and others, was the release of 
the rebel prisoners at Camp Douglas. 
few days. That was early in February. It 
was in April, in Surratt’s presence, that he 
referred to the dispatches that had been re- 
ceived from Richmond, part of which were 
in cipher, as having furnished the assent 
Recalled for the Prosecution.—May 22. 
The Dr. Blackburn to whom I referred in 
my previous testimony, is the same that 
packed a number of trunks with infected 
clothing, for the purpose of introducing pes- 
tilence into the States. I have seen him 
associating with Jacob Thompson, George 
N. Sanders, his son, Lewis Sanders, Ex-Gov. 
Westcott of Florida, Lewis Castleman, Wil- 
liam C. Cleary, Mr. Porterfield, Capt. Magru- 
der, and a number of rebels of less note. Dr. 
Blackburn was there known and represented 
himself as an agent of the so-called Confed- 
erate Government, just as Jacob Thompson 
was an agent. In June last, I knew of Dr. 
Blackburn’s trying to employ Mr. John 
Cameron, who lived in Montreal, to accom- 
pany him to Bermuda, for the purpose of 
taking charge of goods infected with yellow 
fever to bring to the cities of New York, 
Philadelphia, and, I understood, Washington. 
Cameron declined to go, being fearful of 
taking the yellow fever and dying himself. 
Compensation to the amount of several 
thousand dollars, he told me, had been of- 
fered him, which I understood was to be 
paid by Dr. Blackburn, or by other rebel 
agents, Mr. Jacob Thompson, I understood, 
was the mon'eyed agent; the others drew on 
him for what money they required. There 
were other parties in Montreal that Dr. 
Blackburn employed, or endeavored to em- 
ploy, whom 1 knew by sight, but do not re- 
member their names. There were two med- 
ical students. I heard Blackburn say that 
he went from Montreal to Bermuda, or some 
of the West India Islands, about a year ago 
last June, for the express purpose of attend- 
ing cases of yellow fever, and collecting in- 
fected clothing, and forwarding it to New 
York, but for some reason the scheme failed. 
On one occasion, I remember, Jacob Thomp- 
son, Mi-. Cleary, and, 1 think, Lewis Sanders, 
were present when Dr. Blackburn spoke of 
his enterprise. They all favored it, and were 
all very much interested in it. 
It was proposed to destroy the Croton Dam 
at New York. Dr. Blackburn proposed to 
poison the reservoirs, and made a calcula- 
tion of the amount of poisonous matter it 
would require to impregnate the water so 
far as to render an ordinary draught poison- 
ous and deadly. He had taken the capacity 
of the reservoirs, and the amount of water 
that was generally kept in them. Strychnine, 
arsenic, prussic acid, and a number of others 
were spoken of as the poisons which he pro- 
posed to use. Blackburn regarded the 
scheme as feasible; Mr. Thompson, how- 
ever, feared it would be impossible to collect 
so large a quantity of poisonous matter 
Cross-examined by Mr. Doster. 
I do not think I ever saw either of the 
prisoners, Atzerodt or Payne, in Canada. 
Cross-examined by Mr. Aiken. 
I left Richmond to go North in December, 
1868. I afterward, while in Washington, 
became a correspondent of the New York 
Tribune, and in October of last year I went 
to Canada in that capacity. I received com- 
pensation for my services as correspondent to 
the Tribune, but have never received any pay 
from the Government, nor the promise of 
any, nor have I ever received any pay from 
the Confederate Government. The parties in 
Canada did not know that I corresponded 
with the Tribune. I was freely admitted to 
their meetings and enjoyed their confidence. 
My reason for communicating the intended 
assassination to the Tribune, and not directly 
to the Government, was that I supposed that 
the relations between the editor and propri- 
etor of the Tribune and the Government were 
such, that they would lose no time in giving 
them fin formation on the subject. In regard 
to the conspiracy, as well as to some other 
secrets of the rebels in Canada, I requested 
Mr. Gay of the Tribune to give information 
to the Government, and I believe he has for- 
merly done so. 
I met John 11. Surratt in Mr. Thompson’s 
room, and once in Mr. Sander’s room. I 
spoke to Surratt, asking him what changes 
there were in Richmond, and how the place 
looked. While in Canada I went by the 
name of James Watson Wallace. 
1 heard the burning of the City of New 
York discussed by these parties, but I knew 
no particulars until after the attempt had 
been made. I never heard the name of Mary 
E. Surratt mentioned in any one of these 
conferences. 
Cross-examined by Mr. Cox. 
In February, I think it was, I heard the 
project of capturing the President and carry- 
ing him off to Richmond talked of. When 
Mr. Thompson first suggested that I should 
participate in the attempted assassination, I 
asked if it would meet with the approbation 
of the Government at Richmond ; he said he 
thought it would, but he would know in a TESTIMONY OF SANFORD CONOVER. 
31 
Jrfhout exciting suspicion, and leading to the 
detection of the parties. Whether the scheme 
has been entirety abandoned or not, I do not 
know; but so far as the blowing up of the. 
dam is concerned it has not been. Jacob 
•Thompson fully approbated the enterprise, 
and discussed it freely, together with Mr. 
Lewis Sanders, Mr. Cleary, and Mr. M. A. 
Pallen of Mississippi, who had been a sur- 
geon in the rebel army. The matter was 
discussed in June last, and I have heard it 
spoken of since. When Mr. Thompson 
made the suggestion that the collection ot so 
large an amount of poison might attract at- 
tention to the operation, Mr. Pallen and others 
thought it could be managed in Europe. 
Pallen is a physician. 
Among others that I knew in Toronto was 
Dr. Stuart Robinson, a Doctor of Divinity, 
a refugee from Kentucky, where he had been 
editor°of a journal, called the True Presby- 
terian. He was present when some of these 
schemes were being discussed. I remember 
he approved of the poisoning of the Croton 
water. He said any thing under heaven, that 
could be done would be justifiable under 
the circumstances. He is regarded as one of 
the most intense of all the traitors who have 
taken refuge in Canada; he is, I believe, 
related to the Breckinridges of Kentucky. 
Dr. Eobinson appeared to be on intimate 
terms with Jacob Thompson and Dr. Black- 
burn. 
Booth, whom I saw on one occasion in 
conversation with Sanders and Thompson, 
went by the nick-name of “ Pet.” Iso heard 
him called by Mr. Thompson, J think; by 
Cleary, I am sure, and by others. 
The firing of New York City was recog- 
nized among these parties as having been 
performed by the authority of the rebel Gov- 
ernment, and was by the direction of Mr. 
Thompson. Iso learned from Mr. 1 liomp- 
son, or at least from conversation in his pres- 
ence. Thompson said Kennedy deserved to 
be hanged, and he was devilish glad he had 
been, because lie was a stupid fellow, and a 
bungler, and had managed things badly. 
I have always, in my convictions and feel- 
ings, been loyal to the Government of the 
United States, and escaped from the rebel 
service the first moment I had opportunity. 
I know, of my own personal knowledge, that 
Jefferson Davis was the head of the so-called 
Confederate States, and was called its Presi- 
dent, and acted as such, controlling its armies 
and civil administration. 
Recalled for the Prosecution.—June 27. 
f The following was read by the Judge Advocate from a 
volume published in Montreal, by John Lovell, St. Nich- 
olas Street, 1885, entitled “The St. Albans Raid; or, In- 
vestigation into the Charges against Lieutenant Bennett 
H. Young and Command for their Acts at St. Albans, Vt., 
on the 19th of October, 1864,” at page 212: ] 
James Watson Wallace, of Virginia, on his 
oath, saith •. I am a native of Virginia, one of 
the Confederate States. I resided in Jeffer- 
son, in the said State. I left that State in Oc- 
tober. I know James A. Seddon was Secretary 
of War last year. Being shown and having 
examined the papers M, N,and 0, I say that, 
from my knowledge of his handwriting, the 
signatures to said papers are the genuine 
signatures of the said James A. Seddon. I 
have seen him upon several occasions write 
and sign his name. He has signed docu- 
ments, and afterward handed them to me, in 
my presence. I never was in the Confeder- 
ate army. I was commissioned as Major to 
raise a battalion. I bave seen a number of 
the commissions issued by the Confederate 
Government, and the commission of Lieu- 
tenant Young, marked “M,” is in the usual 
form of all commissions issued in the army, 
which are always signed by the Secretary of 
War. I never served; I was incapacitated 
by an accident, and being then kidnapped by 
the Northerners. 
I saw John H. Surratt in Canada three or 
four days after the assassination of the 
President. I saw him in the street with a 
Mr. Porterfield. I learned immediately after 
that Surratt was suspected; that officers were 
on his track; and that he had decamped. 
Mr. Porterfield is a Southern gentleman, 
now a British subject, having been made so, 
I believe, by a special act of the Canadian 
Parliament. He has been for some time a 
broker or banker there. He is the agent 
who took charge of the St. Albans plunder 
for the Ontario bank, when prematurely 
given up by Judge Coursol. Porterfield is 
on very intimate terms with Thompson and 
Sanders. 
When Mr. Thompson received the dis- 
patches from Richmond in April assenting 
to the assassination, there were present Mr. 
Surratt, General Carroll of Tennessee, I think 
Mr. Castleman, and I believe there were one 
or two others in the room, sitting farther 
back. General Carroll participated in the 
conversation, and expressed himselt as more 
anxious that Mr. Johnson should be killed 
than anybody else. He said that if the 
damned prick-louse were not killed by some- 
body, he would kill him himself. His ex- 
pression was a word of contempt for a tailor, 
so 1 have always understood. At this inter- 
view it was distinctly said that the enter- 
prise of assassinating the President was fully 
confirmed by the rebel authorities at Rich- 
mond. 
1 was in Richmond in September last. I 
then visited the War Department. It was 
then notorious that the war was to be carried 
into New England in the same way that the 
Northerners had done in Virginia. When I 
was in Virginia, I lived in my own house 
until I was burned out, and my family were 
turned out by the Northern soldiers. 
The counsel for the United States object 
to the whole of this evidence as illegal, 
irrelevant, and foreign to the issue, and conse- 
quently decline to cross-examine. 
[Signed] J. WATSON WALLACE. THE CONSPIRACY TRIAL. 
[ The -witness proceeded;] 
That contains my testimony in that case, 
and a great deal more that I did not give. 
It is compounded of the testimony of myself 
and of a James Wallace, who also was ex- 
amined in that case. There was also a 
William Pope Wallace, who gave testimony 
in'that case, and I do not know but a fourth 
Wallace. The testimony of James Wal- 
lace is included in that of James Watson 
Wallace, the name under which I was there 
known. The testimony 1 gave on that oc- 
casion was correctly reported in the Witness; 
I think also in the Montreal Transcript. In 
the Gazette, and I think in the Telegraph, 
the report was the same as appears in that 
book, which was, I believe, printed from type 
set up in the Telegraph office. 
[ The following, cut from a newspaper, was then read by 
the Judge Advocate, and afterward offered in evidence; ] 
jßeverly Tucker made the remark, after din- 
! ner—l dined with them—that that scoundrel 
I Stanton, and that blood-thirsty" villain Holt, 
j might protect themselves as long as they re- 
mained in office, and could protect themselves 
by a guard, but that would not always be the 
case, and, by the Eternal, he had a large ac- 
count to settle with them. Sanders never 
made such vehement threats as 1 have heard 
Tucker and others make. Cleary threatened 
the officers of the Government for the execu- 
tion of Beall. He said that Beall would have 
been pardoned if, it had not been , for Judge 
Holt; but, hesaid, “blood shall follow blood;” 
and added, “We have not done with them 
yet.” He boasted of it, and reminded me, 
just after the killing of Presidept Lincoln, 
of what he had said on a former occasion; 
namely, that retributive justice would come. 
He considered the killing of the President as 
an act of retributive justice. 
I had been in Canada at my last visit but 
a short time when the parties of whom I 
have testified knew of my presence. I was 
not then aware that my testimony had been 
published, or I should not have gone there. 
While sitting in a saloon, one of the Cana- 
dian rebels came in, and, discovering my pres- 
ence, immediately reported it to the rest; 
then there came in more than a dozen—San- 
ders, Tucker, Carroll, and O’Donnel, the 
man who boasted of setting fire to houses 
in New York, and others. They at once 
accused me of betraying their secrets in be- 
coming a witness before this Commission. 
Not knowing at the time that my testimony 
had been published, I denied having testi- 
fied. They insisted that it was so, and that 
they would not be satisfied unless I would 
give them a letter stating that I had not tes- 
tified. I knew that it was only by doing 
something of that kind that 1 could get 
away from them. It was then arranged that 
I should go down to my hotel, and it was 
my intention, if I got out of their hands, to 
leave the place at once. When we got op- 
posite the St. Lawrence Hall they said, “We 
will go up here.” O’Donnel had a room at 
the St. Lawrence Hall. Just as I had en- 
tered his room, Beverly Tucker came in and 
said that a mere letter would not be suffi- 
cient; that,'having testified before the Com- 
mission under oath, I must make an affida- 
vit under oath, to make my denial equally 
strong. This, at first, I declined to do, when 
a dozen of them assailed me in the most furi- 
ous manner, and 0 Donnel, drawing from his 
pocket a pistol, said if I would not consent, 
I could not leave that room alive.- I still de- 
clined for a time, when Sanders said to me, 
“Wallace, you see kind of hands you 
are in ; I hope, you will not be foolish enough 
to refuse.” It was under these circumstances 
that I consented. 
James Watson Wallace, sworn; I reside 
at present in this city; have been here since 
last October; formerly resided in the Con- 
federate States. I know James A. Seddon ; 
he occupied the position of Secretary of War. 
I should say the signatures to the papers M, 
N, 0, are those of the said Seddon. I have on 
several occasions seen the signature of James 
A. Seddon, and have seen him on several 
occasions sign his name; he has signed docu- 
ments in my presence, and handed them to 
me after signing. I never belonged to the 
Confederate" army, hut have seen many com- 
missions issued by the Confederate Govern- 
ment. The commission of Lieutenant Young, 
marked M, is in the usual form. The army 
commissions are always signed by the Secre- 
tary of War. I have never seen a commis- 
sion with the signature of the President or 
with the seal of the Government. The Con- 
federate States, at the time I left the country, 
had no seal; one had been devised, but had 
not been prepared. 
[ The witness continued: ] 
That paragraph appeared in either the 
Witness or the Transcript, from one of which 
papers it is cut, and was published immedi- 
ately after the trial, and correctly reports 
the testimony I gave on that occasion. 
After giving my testimony here on the 
20th and 22d of May, I left this city and re- 
turned to Canada, under instructions from 
Judge Holt to procure a certified copy of the 
evidence before the Court in the St. Albans 
case. I met Beverly Tucker, G. N. Sanders, 
his son, Lewis Sanders, General Carroll of 
Tennessee, M. A. Pallen of Mississippi, Ex- 
Governor Westcott of Florida, and a number 
of others. I had conversations with them, 
especially with Beverly Tucker and G. N. 
Sanders, in reference to events here in Wash- 
ington, connected with the assassination, and 
the trial of the assassins. At that time they 
had not the slightest suspicion that! had been 
a witness before this Commission. They there- 
fore received me with great cordiality, and the 
subject of the trial was very freely discussed. 
Mr. Kerr, who defended the St. Albans raid- 
ers, was sent for to prepare the statement, when 
we adjourned to the room of Ex-Governor THE SUPPKESSED TESTIMONY. 
33 
Westcott I then again declined giving my 
°ath to any statement, and again pistols 
"ere held to my head by one of Morgan’s 
guerrillas. I do not know his name, but I 
vnow him well as a rebel soldier. O’Don- 
nel also presented his pistol at me, and as- 
sured me I must take the consequences if I 
would not do as they desired me. The affi- 
davit was read to me in Westcott’s room; I, 
however, paid little or no attention to it, and 
1 there signed it, and went through the cere- 
mony of taking an oath. They also brought 
sotne other man in, accompanying Mr. Kerr. 
Kerr had no knowledge of the menaces 
under which I signed the paper. Beverly 
Tucker said, before Kerr came, that in order 
to make my deposition of any value, it must 
seem that I did it willingly, and that I 
must not manifest any unwillingness to sign 
it before Kerr; if I did, they said they would 
follow me to hell. 
of Montreal. I have seen and examined the 
report of what is called the suppressed evi- 
dence before the Court-martial now being 
holden at Washington City on Mistress Sur- 
ratt, Payne, and others; and I have looked 
carefully through the report of the evidence 
in the New York papers of a person calling 
himself Sanford Conover, who deposed to 
the facts that while in Montreal he went by 
the name of James Watson Wallace, and 
gave evidence in the St. Albans raid investi- 
gation ; that the said Sanford Conover evi- 
dently personated me before the said Court- 
martial; that I never gave any testimony 
whatsoever before the said Court-martial at 
Washington City; that I never had knowl- 
edge of John Wilkes Booth, except seeing 
him upon the stage, and did not know he 
was in Montreal until I saw it published, 
after the murder of President Lincoln ; that I 
never was a correspondent of the New York 
Tribune; that I never went under the name 
of Sanford Conover; that I never had any 
confidential communication with George N. 
Sanders, Beverly Tucker, Hon. Jacob Thomp- 
son, General Carroll of Tennessee, Hr. M. 
A. Pallen, or any of the others therein men- 
tioned ; that, my acquaintance with every 
one of these gentleman was slight; and, in 
fine, I have no hesitation in stating that the 
evidence of the said Sanford Conover person- 
ating me is false, untrue, and unfounded in 
fact, and is from beginning ,to end a tissue 
of falsehoods. 
When Kerr brought the paper for me to 
sign, I did so without any remark; although 
the statements in the body of the paper are 
absolutely false. The -following, which ap- 
peared in the Montreal Telegraph, and after- 
ward in the New York World, is a copy of 
the paper I signed. 
[ The paper was put in evidence. ] 
THE SUPPKESSED TESTIMONY. 
Sanford Conover v. James W. Wallace—Affi- 
davits of the real Wallace—Five Hundred 
Hollars Reward offered for the Arrest of 
Conover—What Thompson said about a 
Proposition to Destroy Waterworks in North- 
ern Cities—lnteresting Depositions. 
I have made this deposition voluntarily 
and in justice to mv own character and name. 
[Signed] J. WATSON WALLACE. 
[ From the Montreal Evening Telegraph, June 10. ] 
'P° the Editor of the Evening Telegraph: 
Sir; Please publish my affidavit now 
handed you, and the advertisement subjoined. 
1 will obtain and furnish others for publica- 
tion hereafter. I will add that if President 
Johnson will send me a safe conduct to go 
to Washington and return here, I will pro- 
ceed thither and go before the Military Court 
and make profert of myself, in order that they 
may see whether or not I am the Sanford 
Conover who swore as stated. 
Sworn to before me, at Montreal, this 
eighth day of June, 1865. 
G. SMITH, J. P. 
I, Alfred Perry, of Montreal, do hereby 
certify that I was present when the said 
James Watson Wallace gave the above dep- 
osition, and that he gave it of his own free 
will; and I further declare he is the same 
individual who gave evidence before the 
Honorable Justice Smith in the case of the 
St. Albans raiders. ALFRED PERRY 
Montreal, June 9. 
JAMES W. WALLACE. 
Montreal, June 8, 1865. 
Province op Canada, District op Montreal. 
James Watson Wallace, of the city and 
istrict of Montreal, counselor at law, being 
uly sworn upon the Holy Evangelists, doth 
epqse and say; I am the same James Wat- 
son Wallace who gave evidence on the sub- 
ject of the St. Albans raid, which evidence 
appears on page 212 of the printed report of 
the said case. I am a native of the county 
. Loudon, in the Commonwealth of Yir- 
I arrived in Montreal in the month 
of October last past. I resided during a por- 
mn of last winter and spring in houses in 
Craig Street and Monique Street, in the city 
Extract from suppressed testimony given 
at Washington before the Military Commis- 
sion by Sanford Conover, alias J. Watson 
Wallace, on the first two days of the pro- 
ceedings, as published in the New York pa- 
pers : 
Q. State whether you did testify on the 
question of the genuineness of that signatnre 
of Seddon ? 
A. I did. 
Q. In what court? 
A. I testified before Judge that the 
signature was genuine. 
Q. State to the Court whether you are ac- 
quainted and familiar with the handwriting 34 
THE CONSPIRACY TRIAL. 
of James A. Seddon, the rebel Secretary of 
War? 
question. And this deponent saith that no 
force or violence was used toward the said 
James Watson Wallace, nor were any men- 
aces or threats made use of toward him by 
any one, but he seemed to be anxious to 
make the said affidavit, and to use all means 
in his power to discover the person who had 
so personated him, the said James Watson 
Wallace, before the Military Commission; 
and further this deponent saith not, and h(;,th 
signed. WILLIAM 11. KER^. 
A. Yes, sir. 
Q. State to the Court, upon your oath 
here, whether the signature to the blank 
commission you saw was his genuine signa- 
ture or not? 
A. It was his genuine signature. 
Q. Did you go to Canada by the name of 
Samuel Conover? 
A. Ho, sir. 
Q. What name did you go there by? 
A. James Watson Wallace. 
[The witness continued:] 
Sworn before me at Montreal, this ninth 
day of June, eighteen hundred and sixtv-five. 
JAS. SMITH, J. S' C. 
Of Alfred Perry, the person named in the 
paper, I know nothing. I never heard of 
such a person. 
Five hundred dollars reward will be 
given for the arrest, so that I can bring to 
punishment, in Canada, the infamous and 
perjured scoundrel who recently personated 
me under the name of Sanford Conover, and 
deposed to a tissue of falsehoods before the 
Military Commission at Washington. 
JAMES W. WALLACE. 
[The Judge Advocate here read the following, which 
was put in evidence:] 
Province op Canada, District of Montreal. 
William Hastings Kerr, of the city and 
district of Montreal, esquire, advocate, being 
duly sworn, doth depose and swear that he 
knows James Watson Wallace, late of Vir- 
ginia, but now and for the last seven months 
resident in the city of Montreal, counselor 
at law; that he, this deponent, was one of 
the counsel engaged for the defense in the 
affair of the investigation before the Hon. 
Judge Smith into the St. Albans raid; that 
he was present in Court, and examined the 
said James Watson Wallace while the said 
investigation was going on, a report of whose 
testimony appears at page 12 of the printed 
case, published by John Lovell, of the said 
city of Montreal; that this deponent has fre- 
quently seen the said James Watson Wal- 
lace on private business, and has acted as the 
said James Watson Wallace’s professional 
adviser in Montreal; that this deponent yes- 
terday saw the said James Watson Wallace 
in the said city of Montreal; that he was 
present while the said James Watson Wal- 
lace denied that he, the said Janies Watson 
Wallace, was the person who, under the name 
of Sanford Conover, gave, before the Military 
Commission or Court-martial’ now and for 
some time past assembled in Washington, 
evidence which has since been published as 
the suppressed evidence in the New York 
papers—he, the said James Watson Wal- 
lace, then and there declaring that some per- 
son had personated him, the same James 
Watson Wallace, and had given testimony 
which, from beginning to end, was a tissue 
of falsehoods; that this deponent was present 
while the statements and denials of the said 
James Watson Wallace were reduced to writ- 
ing in his presence, and signed by the said 
James Watson Wallace, and sworn to by him 
before G. Smith, Esq., one of her Majesty’s 
justices of the peace; that the said James 
Watson Wallace then and there declared 
that he made the said affidavit voluntarily, 
and in order to clear himself from any 
cuspicion of being the Sanford Conover in 
[The witness continued:]. 
That paper and its preparation is part of 
the action referred to, and was prepared 
under the threat to which I have testified. 
I can not say positively that those parties 
attempted to detain me in Canada; I only 
know that I was rescued by the United States 
Government, through the interposition of 
Major-General Dix. 
Nathan Axjser. 
For the Prosecution.—June 27. 
I reside in New York, and am acquainted 
with Sanford Conover, who has just testified; 
I have known him eight or ten years; his 
character for integrity and usefulness is good, 
as far as I know. I recently accompanied 
him to Montreal, in Canada, and was present 
at an interview which he had with Beverly 
Tucker, George N. Sanders, and that clique 
of rebel conspirators. After we went into 
O’Donnel’s room, at Montreal, Mr. Cameron 
gave each of us a paper containing the evi- 
dence Mr. Conover gave here in Washington 
before the Commission, when he denied it. 
They told him he must sign a written paper 
to that effect, and if he did not, he would not 
leave the room alive. O’Donnel said that he 
would shoot him like a dog if he did not. 
Mr. Conover was first going to his hotel to 
write the paper; at first they agreed to this, 
but when they got as far as St. Lawrence 
Hall, they made up their minds they would 
not let him do this himself, and when they 
went up stairs, at the St. Lawrence Hall, they 
would not allow mq to go up. There were, 
I think, twelve or fifteen of the conspira- 
tors together; among them, Sanders, Tucker, 
O’Donnel, Gen. Carroll, Fallen, and Cameron. 
They all accompanied him for the purpose 
of preventing his escape, and obliging him to 
do what they required. TESTIMONY OF JAMES B. MERRITT. 
35 
James B. Merritt. 
also were the names of George Harper, 
Charles Caldwell, one Randall, and Harri- 
son, by which name Surratt was known, and 
whom 1 saw in Toronto. Another person, I 
think, spoken of by Sanders, was one they 
called “Plug Tobacco,” or Port Tobacco. 
I think I saw the prisoner, D. E. Herold, in 
Canada. Sanders said that Booth was heart 
and soul in this project of assassination, and 
felt as much as any person could feel, for 
the reason that he was a cousin to Beall 
that was hung in New York. He said that 
if they could dispose of Mr. Lincoln, it would 
be an easy matter to dispose of Mr. John- 
son ; he was such a drunken sot, it would 
be an easy matter to dispose of him in some 
of his drunken revelries. When Sanders 
read the letter, he also spoke of Mr. Seward, 
I inferred that it was partially the language 
of the letter. It was, I think, that if the 
President, Vice-President, and Cabinet, or 
Mr. Seward could be disposed of, it would 
be satisfying the people of the North; that 
they (the Southerners) had friends in the 
North, and that peace could be obtained on 
better terms than could be otherwise ob- 
tained; that they (the rebels) had endeavored 
to bring about the war between the United 
States and England, and that Mr. Seward, 
through his energy and sagacity, had 
thwarted all their efforts. This was sug- 
gested as one of the reasons for removing 
him. 
For the Prosecution.—May 13. 
I was born in Canada, while my parents 
"Were on a visit there from their home, Oneida 
county, New York. I am a physician, and 
have resided for about a year in Canada; 
P?rt of the time at Windsor, and part at 
-North Dumfries, Waterloo county. 
Ik' October or November last, I met at 
loronto, George Young, formerly of Mor- 
gan s command; a man named Ford, also 
from Kentucky ; and another named Graves, 
from Louisville. Young asked me if I had 
®een Colonel Steele before leaving Windsor, 
‘freele was a rebel, and I understood had 
hcen in the rebel service. He asked me if 
Colonel Steele had said anything to me in re- 
ation to the Presidential election. I told him 
he had not; he then said, “We have sorne- 
thing on the tapis of much more importance 
than any raids we have made or can make.” 
He said it was determined that Old Abe 
should never be inaugurated; that, I believe, 
Vvas his expression. They had plenty of 
friends in Washington, he said; and, speak- 
of Mr. Lincoln, he called him a “damned 
old tyrant.” I was afterward introduced to 
George N. Sanders by Colonel Steele. I asked 
oteele what was going to be done, or how he 
ljked the prospects of the Presidential elec- 
tion, and he replied, “The damned old tyrant 
oever will serve another term if he is elected.” 
"H- Sanders then said he (Lincoln) “would 
j6P himself mightv close, if he did serve an- 
other term.” 
frbout the middle of February, a meeting of 
rebels was held in Montreal, to which I was in- 
vHed by Captain Scott. I should think there 
ere ten or fifteen persons present; among 
them were Sanders, Colonel Steele, Captain 
pOtt) George Young, Byron Hill, Caldwell, 
lord, Kirk, Benedict, and myself. At that 
Reeling a letter was read by Sanders, which 
, said he had received from “the Presi- 
■Jent °t our Confederacy,” meaning Jefferson 
avis, the substance of which was that if the 
People in Canada and the Southerners in the 
plates were willing to submit to be governed 
. - such a tyrant as Lincoln, he did not wish 
° recognize them as friends or associates; 
ant he expressed his approbation of what- 
ever measures they might take to accomplish 
18 °hject. The letter was read openly in 
16 (neeting by Sanders, after which it was 
funded to those present, and read by them, 
aher another. Colonel Steele, Young, 
a iH, think Captain Scott, read it. 
>d not hear any objection raised. 
At that meeting Sanders named a number 
j Persons who were ready and willing, as 
6 Sai(l) to engage in the undertaking to re- 
i °Je the President, Vice-President, the Cab- 
tj'e ’ an<l some of the leading Generals; and 
co i-lere was any amount of money to ac- 
complish the purpose, meaning the assas- 
natxon. Booth’s name was mentioned, as 
On the evening of Wednesday, the sth of 
April last, I was in Toronto, and when on 
my way to the theater, I met Harper and 
Ford. They asked me to go with them and 
spend the evening; I declined, as I was going 
to the theater. The next morning 1 was 
around by the Queen’s Hotel, where I saw 
Harper, Caldwell, Randall, Charles Holt, 
and a man called “Texas.” Harper said 
they were going to the States, and were 
going to kick up the damnedest row that had 
ever been heard of. An hour or two after- 
ward I met Harper, and he said if I did 
not hear of the death of Old Abe, and of the 
Vice-President, and of General Dix, in less 
than ten days, 1 might put him down as a 
damned fool. This was the 6th of April. 
Booth, I think, was mentioned as being in 
Washington. They said they had plenty of 
friends in Washington, and that there were 
some fifteen or twenty going there. On Sat- 
urday, the Bth of April, I was at Galt, five 
miles from which place Harper's mother 
lives, and I ascertained there that Harper 
and Caldwell had stopped there and had 
started for the States. 
When 1 found that they had left, for 
Washington, probably for the purpose of 
assassinating the President, I went to Squire 
Davidson, a justice of the peace, to give in- 
formation and have them stopped. He said 
that the thing was too ridiculously or su- 
premely absurd to take any notice of; it 
would only appear foolish to give such inform- 36 
THE CONSPIRACY TRIAL. 
ation and cause arrests to be made on such 
grounds; it was so inconsistent that no person 
would believe it, and he declined to issue any 
process. 
tragedy in this city, or with any other plots 
yet in preparation. The bearer is directed to 
pay all expenses connected with your trip. 
I am, very respectfully, 
Your obedient servant, 
I was in Galt again on Friday after the 
assassination, and I found from Mr. Ford 
that Harper had been home on the day be- 
fore, and had started to go back to the States 
JAMES B. FRY, 
Provost Marshal General. 
again. 
Some time last fall, one Colonel Ashly, a 
rebel sympathizer, and a broker at Windsor, 
handed me a letter which he had received 
from Jacob Thompson, asking him for funds 
to enable rebels to pay their expenses in going 
to the States to make raids, as I understood; 
and, referring to the letter, he asked me to 
contribute. 
The man called Harrison I saw in Canada 
two or three times; I saw him once in a sa- 
loon, about the 15th or 20th of February; he 
was pointed out to me by Mr. Brown, I think, 
and I noticed him more particularly on ac- 
count of his name having been mentioned, in 
connection with others, at the meeting in 
Montreal, 
Cross-examined by Mr. Stone. 
In February last I had a conversation with 
Mr. Clement C. Clay in Toronto. I spoke to 
him about the letter from Mr. Jefferson Davis 
that Sanders had exhibited in Montreal; he 
seemed to understand the nature and charac- 
ter of the letter perfectly. I asked him what 
he thought about it. He said he thought the 
end would justify the means; that was his 
expression. 
Cross-examined by Me. Aiken. 
1 was on confidential terms with the rebels 
in Canada because I represented myself as 
a good Southerner. The letter from Jeffer- 
son Davis, which was read by Mr. Sanders, 
was read to the meeting some time in Feb- 
ruary, and on the 10th of April I went to 
see the justice of the peace; he refused to 
accede to my request. I then called upon the 
Judge of the Court of Assizes; made my 
statement to him, and he said I should have 
to go to the grand jury. I first communi- 
cated this information to the Government, I 
think, two weeks ago to-day, since the as- 
sassination of the President, though I under- 
stood the Government was in possession of 
the information before I communicated it 
direct. 
Surratt was once pointed out to me, in Feb- 
ruary, in Toronto; he was pointed out to me 
by Scott, I think, while he and Ford and 
myself were standing on the sidewalk. 
I saw Booth in Canada two or three times; 
I sat at the table with him once at the St. 
Lawrence; Sanders, Scott, and Steele were at 
the same table. Sanders conversed with 
Booth, and we all drank wine at Mr. Sanders’s 
expense. I have seen Booth a good many 
times on the stage, and know him very well 
by sight. 
[The witness, being here shown a photograph, identified 
it as that of J. Wilkes Booth. ] 
I saw Surratt in Toronto about the 20th 
of last February; he was pointed out to me 
on the street, and passed down by me. Ford, 
who was with me, and who was present at 
the meeting held in Montreal, said, “Doctor, 
that is Surratt.” He is a man five feet, six, 
seven, or eight inches, slim, and wore a dark 
moustache, and was dressed in ordinary 
clothes, like any gentleman would be, I think 
of a dark color. I am not positive that it 
was Surratt, because I do not know the man. 
I knew of the project to burn the City of 
New York. I heard it talked of in Windsor, 
and communicated the information to Colonel 
Hill, of Detroit, before the attempt was made. 
It was communicated to me by Robert Drake, 
and a man named Smith, both formerly of 
Morgan’s command. They both had been 
to Chicago to attend the Presidential Conven- 
tion there. They told me, after their return, 
that they went there for the purpose of re- 
leasing the rebel prisoners at Camp Douglaa 
I continued my intimacy with these rebel 
sympathizers for the purpose of giving inform- 
ation, when I should find it of importance. 
Nine-tenths of the people in Canada are rank 
rebel sympathizers, and my practice was 
mostly among Southerners. I have never re- 
ceived a dollar from the Government for fur- 
nishing any information from Canada, nor 
have 1 ever received any thing from the rebels 
I received a letter from General James B. 
Fry, the Provost Marshal General, stating 
that he had received a letter written by Squire 
Davidson, giving information of my visit to 
him for the purpose of having Harper and 
Caldwell arrested. 
[ The following letter was then read, and put In evi- 
dence: ] 
Wab Department, v 
Provost Marshal General’s Bureau, > 
Washington, D. 0., April 20, 1865. j 
Dr. J. B. Merritt, Ayr, Canada West: 
Sir: I have been informed that you pos- 
sess information connected with a plot to 
assassinate the President of the United States 
and other prominent men of this Government. 
The bearer has been sent to present this fet- 
ter to you, and to accompany you to this 
city, if you will come. The Secretary of War 
authorizes me to pledge you protection and 
security, and to pay all expenses connected 
with your journey both ways, and in addition 
to promise a suitable reward if reliable and 
useful information is furnished. Independent 
of these considerations, it is hoped that the 
cause of humanity and justice will induce 
you to act promptly in divulging any thing 
you may know connected with the recent TESTIMONY OF LIEUTENANT-GENERAL GRANT. 
37 
for services rendered them. I have proof in 
my pocket from the Provost Marshal at De- 
troit. that I furnished valuable information 
without any remuneration. 
the opposite shore, apparently surreptitiously, 
and trying to avoid detection. A little tug 
was sent out from the navy to pick it up. 
When they got to it, they found a little white 
flag sticking out of the stern of the row-boat, 
and Jacob Thompson in it. They brought 
him to Admiral Porter’s flag-ship, and I was 
sent for to meet him. Ido not recollect the 
ostensible business he had. There seemed 
to be nothing at all important in the visit, 
but he pretended to be under a flag of truce, 
and he had therefore to be allowed to go back 
again. That was in January or February 
of ’63; and it was the first flag of truce we 
had through. He professed to be in the 
military service of the rebels, and said that 
he had been offered a commission—any thing 
that he wanted; but, knowing that he was 
not a military man, he preferred having some- 
thing more like a civil appointment, and he 
had therefore taken the place of Inspector- 
General, with the rank of Lieutenant-Colonel, 
in the rebel service. 
Recalled for the Prosecution.—June 27. 
On Friday, the 2d of June, I was in Mon- 
treal. At the St. Lawrence Hall 1 saw 
General Carroll. I introduced myself to 
him as Dr. Merrill of Memphis. There was 
a targe family of Merrills residing there, who 
Were physicians. He expressed considerable 
gratification at seeing me, and he introduced 
!lle to Governor Westcott, and we conversed 
ln reference to this trial. These men were 
aot aware that I had testified before this 
Oornmission. My testimony was not pub- 
t/®hed there until Tuesday, the 6th of June. 
Mr. Beverly Tucker said, in that conversation, 
that they had friends in Court, and were per- 
fectly posted as to everything that was going 
0n at this trial. Tucker said they had burned 
all the papers they had received from Rich- 
mond, for fear some Yankee would break into 
their room and steal them, and use them 
against them in this trial. In that interview, 
■t should state that Governor Westcott ex- 
pressed no disloyal sentiments, and took no 
Part in the conversation. 
The military department of Washington 
embraces all the defenses of the city on both 
sides of the river. 
[The commission of Lieutenant-General Grant, dated 
March 4,18(54, accompanied by General Orders No. 98, was 
hero offered in evidence.] 
George B. Hutchinson. 
Cross-examination by Mr. Aiken. 
.. 4 am a native of England, and was an en- 
'sted man in the service of the United States, 
roni the 12th of June, 1861, to the 12th of 
- ovember, 1862. I have resided in Canada 
°r/he^ast seven months. I have seen Clem- 
Beverly Tucker, George N. San- 
erS) and others of that class several times, 
last saw Clement C. Clay at the Queen’s 
otel, Toronto, about the 12th or 13th of 
ebruary. 
le2d of June, and on the morning of 
e 3d, I saw Dr. Merritt in conversation with 
overly Tucker, at the St. Lawrence Hall in 
- ontreal. I heard Beverly Tucker say, in 
, ePly to a remark of Dr. Merritt, that he had 
urned all the letters, for fear some Yankee 
r n a bitch might steal them out of his 
ji-0rn’ an<i use them in testimony against 
j hey were at the time speaking about 
rii,8 trial, and the charges against them. 
_iey \vere talking to Dr. Merritt as to one to 
10m gave their confidence. 
For the Prosecution.—June 23. 
All the civil courts of the city are in op- 
eration. lam not prepared to say exactly 
to what point the Department of Washing- 
ton extends; any troops that belong to the 
command of Major General Augur, who com- 
mands the Department of Washington, sent 
out to any point, would necessarily remain un- 
der his command. Martial law, I believe, ex- 
tends to all the territory south of the railroad 
that runs across from Annapolis, running 
south to the Potomac and Chesapeake. 
I understand that martial law extends 
south of Annapolis, although I have never 
seen the order. 
For the Prosecution.—May 12. 
Samuel P. Jones. 
I resided in Richmond during a part of 
the war. I have often heard the officers and 
men of the Confederate army conversing re- 
specting the assassination of President Lin- 
coln. I have heard it discussed by rebel offi- 
cers as they were sitting around their tents. 
They said they would like to see him 
brought there ,dead or alive, and they thought 
it could be done. I heard a citizen make the 
remark that he would give from his private 
purse ten thousand dollars, in addition to the 
Confederate amount offered, to have the Presi- 
dent of the United States assassinated, and 
brought to Richmond, dead or alive. I 
have, besides that, heard sums offered to be 
paid, with the Confederate sum, for any per- 
son or persons to go north and assassinate 
the President. 1 judge, from what I heard, 
Lieutenant-General U. S. Grant. 
For the Prosecution.—May 12. 
i®,Ince the 4th of March, 1864, I have been 
Sta/6 Co?iman4 of the armies of the United 
<s- eB‘ 1 met Jacob Thompson, formerly 
Bueftary >°f e. Interior under President 
w„ \an.an s administration, when the army 
Vicksburg, at what is 
A litti Bend and Young’s Point, 
e boat was discovered coming up near 38 
THE CONSPIRACY TRIAL. 
that there was an amount offered by the 
Government in their trashy paper, to assas- 
sinate any officials of the United States 
Government that were hindering their cause. 
pany to which Captain Beall belonged, who 
was executed at Governor’s Island. Cockrell 
told me that Beall was on “ detached serv- 
ice, ” and that we would hear of him. 
Heney Yon Steinackee. 
I have heard mention made of the exist- 
ence of secret orders for certain purposes to 
assist the Confederacy. One I frequently 
heard of was called a Golden Circle, and 
several times I heard the name of the “Sons 
of Liberty.” 
For the Prosecution.—May 12. 
I was in the Confederate service as an en- 
gineer officer in the Topographical Depart- 
ment, with the pay of an engineer, and was 
on the staff of General Edward Johnson. Al- 
together 1 was in the service nearly three 
years. In the summer of ’63, being at Swift 
Run Gap, near Harrisonburg, I was over- 
taken by three citizens, and rode with them 
some eighteen or twenty hours. The name 
of one was Booth and another Shepherd. 
[No cross-examination. ] 
Hosea B. Caetek. 
For the Prosecution.—May 29, 
I reside in New Hampshire. I was at the 
St. Lawrence Hall, Montreal, Canada, from 
the 9th or 10th of September till the Ist of 
February last. I met George N. Sanders, 
Clement C. Clay, Beverly Tucker, Dr. Black- 
burn, Dr. Fallen, J. Wilkes Booth, General 
Carroll from Memphis, an old gentleman from 
Florida that wore a cue—I think his name was 
Westcott—a Dr. Wood, a gentleman named 
Clark, and many others whose names I do 
not now recollect. Ido not remember that 1 
saw Jacob Thompson there. I saw him at 
Niagara Falls on the 17th of June. Some 
twenty or thirty Southerners boarded at the 
St. Lawrence Hall, and usually associated 
together, and very little with other people 
who came there, either English or American. 
I frequently observed George N. Sanders 
in intimate association with Booth, and others 
of that class, in Montreal. 1 used to see a 
man named Payne nearly every morning. 1 
think they called him John, He was one of 
the Payne brothers, two of whom were arrested 
for the St. Albans raid ; but Lewis Payne, the 
accused, I do not think I have seen before. 
Dr. Blackburn came to the St. Lawrence 
Hall when the Donegana Hotel closed, which 
was about the 20th of October last. He 
seemed to associate on terms of intimacy 
with all those I have named, but Booth. 
Whether he came there before Booth I can 
not say. Blackburn was one of that clique of 
men who were known there as Confederates. 
[A photograph of John Wilkes Booth being shown to 
the witness, he identified a resemblance between it and 
the person referred to. The photograph was offered in 
evidence.] 
I was asked by Booth, and also by the 
others, what I thought of the probable suc- 
cess of the Confederacy. I told them, after 
such a chase as we had just had from Get- 
tysburg, I thought it looked very gloomy. 
Booth replied, “That is nonsense. If we 
only act our part, the Confederacy will gain 
its independence. Old Abe Lincoln must go 
up the spout, and the Confederacy will gain 
its independence any how.” By this expres- 
sion I understood he meant the President 
must be killed. He said that as soon as the 
Confederacy was nearly giving out, or as soon 
as they were nearly whipped, that this would 
be their final resource to gain their inde- 
pendence. The other two engaged in the 
conversation, and assented to Booth’s senti- 
ments. 
They being splendidly mounted, and my 
horse being nearly broken down, they left 
me, the next day. Three or four days after- 
ward, when I came to the camp of the Second 
Virginia Regiment, I found there three citi- 
zens, and was formally introduced by Cap- 
tain Randolph to Booth and Stevens. That 
evening there was a secret meeting of the 
officers, and the three citizens were also pres- 
ent. I was afterward informed of the pur- 
pose of the meeting by Lieutenant Cockrell 
of the Second Virginia Regiment, who was 
present. It was to send certain officers on 
“detached service” to Canada and the “bord- 
ers ” to release rebel prisoners, to lay Northern 
cities in ashes, and finally to get possession 
of the members of the Cabinet and kill the 
President. This “detached service” was a 
nickname in the Confederate army for this 
sort of warfare. I have heard these things 
spoken of, perhaps, a thousand times before 
I was informed it was the purpose discussed 
at this meeting, but I always considered it 
common braggadocio. I have freely heard it 
spoken of in the streets of Richmond among 
those connected with the rebel Government. 
Cockrell belonged, I believe, to the Second 
Virginia Regiment, and to the same com- 
I heard that the Paynes to whom I have 
referred originally came from Kentucky, and 
that they had been in the counterfeiting busi- 
ness. 1 think I have seen Cleary in Canada 
in company with John Payne. I have seen 
them in company with Sanders and Tucker 
and Blackburn every day. 
Cross-examined by Me. Dostee. 
John Deveny. 
For the Prosecution.—May 12. 
I have resided in Washington, off and on, for 
a year or two. I was formerly a Lieutenant 
in company “E,” Fourth Maryland Regi- 
ment. 1 was before that employed in Adams’s 
Express company. In July of 1863, I was 
in Montreal, and left there the 3d or 4th of TESTIMONY OF MRS. MARY HUDSPETH. 
39 
February of this year. I was well acquainted 
with John Wilkes Booth. The first time I 
saw him in Canada he was standing in the 
St. Law rence Hotel, Montreal, talking with 
George N. Sanders. I believe that wss in the 
month of October. They were talking con- 
fidentially, and drinking together. I saw them 
go into Dowley’s and have a drink together. 
1 also saw in Canada, at the same time, Jacob 
Ihotnpson of Mississippi, who was Secretary 
of the Interior under the administration of 
President Buchanan. I also saw Mr. Clement 
U Clay of Alabama, formerly United States 
Senator, Mr. Beverly Tucker, and several 
others who w'ere pointed out to me; but I 
Was not personally acquainted with those 
gentlemen. I spoke to Booth, and asked him 
he was going to play there, knowing that 
he was an actor. He said he was not. I then 
said, “ What are you going to do?” He said, 
' I just came here on a pleasure trip.” The 
other Southerners, whose names I have men- 
tioned, I have seen talking with Sanders, but 
I can not say positively that I saw them talk- 
lng with Booth. 
The next time I saw Booth was on the 
steps of the Kirkwood House, in this city, on 
the night of the 14th of April, between o and 
o o clock. He was going into the hotel as 1 
*'as standing talking to a young man named 
Lallan. As Booth passed into the hotel, he 
turned round and spoke to me, and I asked 
him when he came from Canada. He said 
he had been back here for some time, and was 
going to stay here, for some time, and would 
Bce me again. I asked, “ Are you going to 
play here again?” He replied, “No, lam 
hot going to play again; lam in the oil busi- 
ness. I laughed at his reply, it being a 
common joke to talk about the oil business. 
A few minutes afterward I saw him come 
j °wn the street on horseback, riding a bay 
mrse. I noticed particularly what kind of 
a looking rig he had on the horse, though I 
hnow not what made me do it. The next I 
saw of him was when he jumped out of the 
J°x of the theater, and fell on one hand and 
0l?e knee, when I recognized him. He fell 
with his face toward the audience. 1 said, 
tl 18 John Wilkes Booth, and he has shot 
ue President.” I made that remark right 
eie. That is the last I ever saw of him, 
lea he was running across the stage. I 
leaid the words “ Sic semper tyrannus ” shouted 
u he President’s box before I saw the man. 
fre ha(f a knife in his hand as he went across 
6 s*-age. If he made any remark as he 
ex across stage I did not notice it. The 
ci enient was very great at the time. 
Hall, Montreal. I spoke to Mr. Booth, and 
asked him if lie was going to open the the- 
ater there. He said he was not. He left me, 
and entered into conversation with a person 
who was pointed out to me as George N. 
Sanders. 
[No cross-examination.] 
Henry Finegas. 
I reside in Boston, Mass., and have been 
in the United States service since the rebel- 
lion as a commissioned officer. In the 
month of February last I was in Montreal, 
Canada, and remained there eleven days. 
While there I knew well, by sight, George 
N. Sanders, William C. Cleary, and other 
men of that circle, but did not make their 
acquaintance personally. On one occasion 
I heard a conversation between George N. 
Sanders and Wm. C. Cleary; it took place 
at the St. Lawrence Hall on the 14th or 15th 
of February. I was sitting in a chair, and 
Sanders and Cleary walked in from the door; 
they stopped about ten feet from me, and I 
heard Cleary say, “I suppose they are get- 
ting ready for the inauguration of Lincoln 
next month,” Sanders said, “Yes; if the boys 
only have luck, Lincoln won’t trouble them 
much longer.” Cleary asked, “Is every 
thing well ?” Sanders replied, “0, yes; Booth 
is bossing the job.” 
For the Prosecution.—May 26. 
The conversation took place about 5 
o'clock in the evening. Sanders and Cleary 
were standing close together, conversing in 
rather a low tone of voice, I thought. I never 
was introduced to Sanders or Cleary, but have 
been introduced to men who claimed to be 
escaped prisoners from camps in the North. 
I knew Sanders and Cleary by sight well; 1 
saw them testify in court in the St. Albans 
raid case. Cleary is a middle-sized man, 
sandy complexion, sandy hair; carries his 
neck a little on one side, and has reddish 
whiskers. Sanders is a short-sized, low, thick- 
set man, with grayish curly hair, a grayish 
moustache, and very burly form. 
I left Montreal on the 17th of February. 
I first communicated this information to the 
Government a few days ago, but spoke of it 
to two or three parties some time ago. I did 
not consider it of any importance at the 
time, but looked upon it as a piece of brag- 
gadocio. 
Cross examined hy Me. Aiken. 
Mrs. Mary Hudspeth, 
William E. Wheeler. 
For the Prosecution.—May 12. 
* r^siAe in Chickopee, Massachusetts. I 
Vpn .at Montreal, Canada, in October or No- 
aBt’ w!lcn.l saw John Wilkes Booth, 
u as standing in front of the St. Lawrence 
In November last, after the Presidential 
election, and on the day General Butler left 
New York, as I was riding on the Third 
Avenue cars, in New York City, I overheard 
the conversation of two men. They were 
talking most earnestly. One of them said he 
would leave for Washington the day after to- 
For the Prosecution.—May 12. 40 
THE CONSPIRACY TRIAL. 
morrow. The other was going to Newburg, 
or Newbern, that night. One of the two was 
a young man with false whiskers. This I 
observed when a jolt of the car pushed his 
hat forward and at the same time pushed 
his whiskers, by which I observed that the 
front face was darker than it was under the 
whiskers. Judging by his conversation, he 
was a young man of education. The other, 
whose name was Johnson, was not. I no- 
ticed that the hand of the younger man was 
very beautiful, and showed that he had led 
a life of ease, not of labor. They exchanged 
letters while in the car. When the one who 
had the false whiskers put back the letters 
in his pocket, I saw a pistol in his belt. I 
overheard the younger say that he would 
leave for Washington the day after to-mor- 
row ; the other was very angry because it 
had not fallen on him to go to Washington, 
Both left the cars before I did. After 
they had left, my daughter, who was with 
me, picked up a letter which was lying on 
the floor of the car, immediately under where 
they sat, and gave it to me; and I, thinking 
it was mine, as I had letters of my own to 
post at the Nassau Street Post-office, took it 
without noticing that it was not one of my 
own. When I got to the broker’s, where I 
was going with some gold, I noticed an en- 
velope with two letters in it. 
knew your face, no police telegraphic dispatch 
would catch you. The English gentleman, 
liar court, must not act hastily. Item ember 
he has ten days. Strike for your home, 
strike for your country; bide your time, but 
strike sure. Get introduced, congratulate 
him, listen to his stories—not many more 
will the brute tell to earthly friends. Do 
any thing but fail, and meet us at the ap- 
pointed place within the fortnight. Inclose 
this note, together with one of poor Leenea, 
I will give the reason for this when we meet. 
Return by Johnson. I wish 1 could go to 
you, but duty calls me to the West; you will 
probably hear from me in Washington. Sam 
ders is doing us no good in Canada. 
Believe me, your brother in love, 
CHARLES SELBY. 
Dearest Husband: Why do you not come 
home? You left me for ten days only, and 
you now have been from home more than 
two weeks. In that long time, only sent 
me one short note—a few cold words—and 
a check for money, which I did not require. 
What has come over you ? Have you for- 
gotten your wife and child? Baby calls lor 
papa until my heart aches. We are so lonely 
without you. I have written to you again 
and again, and, as a last resource, yesterday 
wrote to Charlie, begging him to see you and 
tell you to come home. lam so ill, not able 
to leave my room ; if I was, I would go to 
you wherever you were, if in this world. 
Mamma says I must not write any more, as 
lam too weak. Louis, darling, do not stay 
away any longer from your heart-broken wife. 
LEENEA. 
St. Louis, October 21,186-1. 
These are the letters, and both were con- 
tained in one envelope. After I examined 
the letters and found their character, I took 
them first to General Scott, who asked me to 
read them to him. He said he thought they 
were of great importance, and asked me to 
take them to General Dix. I did so. 
[The following letters were then read to the Commis- 
sion, and offered in evidence:] 
[Exhibiting an envelope with two letters.] 
Hon. Charles A. Dana. 
For the Prosecution.—June 9. 
Dear Louis: The time has at last come 
that we have all so wished for, and upon you 
every thing depends. As it was decided be- 
fore you left, we were to cast lots. Accord- 
ingly we did so, and you are to be the Char- 
lotte Corday of the nineteenth century. 
When you remember the fearful, solemn vow 
that was taken by us, you will feel there is 
no drawback—Abe must die, and now. You 
can choose your weapons. The cup, the 
knife, the bullet. The cup failed us once, and 
might agdin. Johnson, who will give this 
has been like an enraged demon since the 
meeting, because it has not fallen upon him 
to rid the world of the monster. He says 
the blood of his gray-haired father and his 
noble brother call upon him for revenge, and 
revenge he will have; if he can not wreak it 
upon the fountain-head, he will upon some 
of the blood-thirsty Generals. Butler would 
suit him. As our plans were all concocted 
and well arranged, we separated, and as I am 
writing—on my way to Detroit—l will only 
say that all rests upon you. You know 
where to find your friends. Your disguises 
are so perfect and complete, that without one 
The letters found and testified to by Mrs. 
Hudspeth, came to me by mail at the War 
Department, inclosed in one from General Dix. 
The letter from General Dix bears date No- 
vember 17th, and 1 received it, 1 suppose, the 
next day. On receiving the letters I took them 
to the President, Mr. Lincoln, who looked at 
them, but I do not think he made any spe- 
cial remark; he seemed to attach very"little 
importance to them. Two or three days 
after the assassination of the President, I was 
sent by the Secretary of War to find them. 
I went over to the White House and searched 
in the President’s private desk, where I found 
them. I kept them for some time, and after- 
ward delivered them to Judge Bingham. 
The President received a great many com- 
munications of a similar nature, but he 
seems to have attached more importance to 
these than any others, because I found them 
among his papers in an envelope marked, in 
his own handwriting, “Assassination.” The 
two letters just put in evidence, are those 
that were inclosed in the letter from General 
Dix; and the letter from General Dix is in IDENTIFICATION OF KEY TO SECRET CIPHER. 
41 
his own handwriting, with which I am fa- 
miliar. 
tents. I took all the papers to the Provost 
Marshal’s Office, and placed them in the hands 
of Lieutenant Terry. 
„„LPle following letter from General Dix was then read 
wia put in evidence:] 
Head-Quarters, Department of the East, 1 
New York City, 17th November, 1864. j 
IC. A. Dana, Esq.—My Dear Sir: The in- 
closed was picked up in a Third Avenue 
railroad car. I should have thought the 
'vhole thing got up for the Sunday Mercury, 
but for the genuine letter from St. Louis 
111 a female hand. The Charles Selby is 
obviously a manufacture. The party who 
dropped the letter was heard to say he 
start for Washington Friday night. 
He is of medium size; has black hair and 
whiskers, but the latter are believed to be 
a disguise. He had disappeared before the 
letter was picked up and examined. 
Yours truly, JOHN A. DIX. 
Colonel Joseph H. Taylor. 
For the Prosecution.—May 19. 
I am on duty at the Head-Quarters of 
the Department of Washington. 
. [A paper containing a secret cipher was handed to the 
witness.] 
I received this paper, on the night of the 
14th of April last, from Lieutenant Terry, 
an officer on duty in the Provost Marshal’s 
Office, who had been sent by me to examine 
Booth’s trunk, where it was found among 
Booth’s papers. 
Hon. C. A. Dana. 
Cross-examined by Mr. Aiken. 
lam Assistant Secretary of War. 1 was 
in Richmond, Va., on Wednesday, the sth 
of April—Richmond being evacuated on the 
3d. On the 6th of April I went into the 
office of Mr. Benjamin, the rebel Secretary 
of State. On the shelf, among Mr. Benja- 
min’s books and other things, I found this 
secret cipher key. 
[The secret cipher key is a model consisting of a cylin- 
der six inches in length, and two and one-half in diam- 
eter, fixed in a frame, the cylinder having the printed key 
pasted over it. By shifting the pointers fixed over the 
cylinder on the upper portion of the frame, according to a 
certain arrangement previously agreed upon, the cipher 
letter or dispatch can readily be deciphered. The model 
was put in evidence.] 
For the Prosecution.—May 20. 
The authorities of the War Department 
are in the habit of receiving a great many 
foolish letters from anonymous correspond- 
ents and others; some of a threatening char- 
acter, and others making extraordinary prop- 
ositions. 
Major T. T. Eckert. 
For the Prosecution.—June 13. 
An order was sent forward to General But- 
ler at New York for his troops to leave on 
the 11th of November. General Butler made 
Implication for leave to remain until the next 
Monday; the Secretary of War replied to the 
aPplication, “You have permission to remain 
Until Monday, the 14th of November.” 
I saw it was a key to the official rebel 
cipher, and as we had a good many of them 
to decipher at different times at the War De- 
partment, it seemed to me of interest, and I 
therefore brought it away. Mr. Benjamin’s 
offices consist of a series of rooms in suc- 
cession. His own office was the inmost of 
all; the next room, where his library was, and 
which seemed to have been occupied by his 
most confidential clerk or assistant, was the 
one in which I found several interesting docu- 
ments, and this cipher model among them. 
I sent it to Major Eckert at the War Depart- 
ment, who has charge of the ciphers there. 
identification of key to secret 
CIPHER. 
Lieutenant William H. Terry. 
For the Prosecution.—May 18. 
-I an? attached to the Provost Marshal’s 
this city. On the night of the as- 
sassination, Mr- Eaton placed in my hands 
certain papers which he had taken from the 
Hot I°* Wilkes Booth, at the National 
w’itneS^Pj:r containiag a secret cipher was handed to the 
one of the papers I received from 
~ r' Pa ton ; it was in that envelope, on which 
oionel Taylor marked the word “Important,” 
‘ n signed his initials to it. 
Major T. T. Eckert. 
[A secret cipher, found among the effects of J. Wilkes 
Booth, already in evidence, was here handed to the wit- 
ness ; also the secret cipher model just testified to.] 
For the Prosecution.—May 20. 
I have examined the secret cipher found in 
Booth’s trunk, and the other cipher just testi- 
fied to by the Assistant Secretary of War, and 
find they are the same. 
Cipher dispatches from the rebel authori- 
ties have from time to lime fallen into my 
hands, and as I am somewhat familiar with 
them, they have been referred to me for ex- 
amination. Some of the dispatches referred 
to me were worked on the same plan. 
William Eaton. 
For the Prosecution.—May 18. 
On the night of the 14th of April, after the 
assination, I went, under authority of the 
takJ iyePartmcnt, to the National Hotel, to 
charge of Booth’s trunk and its con- 
[The witness here produced cipher dispatches bearing 
date October 13th and 19th.] 42 
THE CONSPIRACY TRIAL. 
These dispatches which I hold in my hand 
are copies and translations of certain cipher 
dispatches which came from Canada; they 
passed through the War Department in this 
city, where copies were taken of them, and 
the originals forwarded to Richmond. These 
dispatches are written in the cipher to which 
this model and the paper found in Booth’s 
trunk furnish the key. 
[The dispatches were then read as follows, and put in 
evidence:] 
Johnson must come. Old Crook lias him in 
charge. 
Mind well that brother’s oath, and you will 
have no difficulty; all will be safe, and en- 
joy the fruit of our labors. 
We had a large meeting last night. All 
were bent in carrying out the programme to 
the letter. The rails are laid for safe exit 
Old , always behind, lost the pop at 
City Point. 
Now, I say again, the lives of our brave offi- 
cers, and the life of the South depend upon 
the carrying this programme into effect. No. 
Two will give you this. It’s ordered no more 
letters shall be sent by mail. When you 
write, sign no real name, and send by some 
of our friends who are coming home. We 
want you to write us how the news was re- 
ceived there. We receive great encourage- 
ment from all quarters. I hope there will 
be no getting weak in the knees. I was in 
Baltimore yesterday. Pet had not got there 
yet. Your folks are well, and have heard 
Irom you. Don’t lose your nerve. 
C. B. No. FIVE. 
October 13, 1864. 
We again urge the immense necessity of 
our gaining immediate advantages. Strain 
every nerve for victory. We now look upon 
the re-election of Lincoln in November as 
almost certain, and we need to whip his 
hirelings to prevent it. Besides, with Lin- 
coln re-elected and his armies victorious, we 
need not hope even for recognition, much less 
the help mentioned in our last. Holcombe 
will explain this. Those figures of the 
Yankee armies are correct to a unit. Our 
friend shall be immediately set to work as you 
direct. 
Your letter of the 13th instant is at hand. 
There is yet time enough to colonize many 
voters before November. A blow will shortly 
be stricken here. It is not quite time. Gen- 
eral Longstreet is to attack Sheridan without 
delay, and then move North, as far as practi- 
cable, toward unprotected points. 
This will be made instead of movement 
before mentioned. 
October 19, 1864. 
The letter just read, is, I believe, a correct 
translation of the cipher. 
Cross-examined by Mr. Aiken. 
In making the translation I had the as- 
sistance of a gentleman in North Carolina, 
who told me he had seen the cipher before. 
AVe first supposed, by its beginning with a 
W, that it was dated at Wilmington. The 
first evening we tried it with Wilmington, 
but we could not make out any thing. The 
next evening we tried the word “AVashing- 
ton,” and “April,” and made an alphabet, 
and stuck figures and characters under the 
letters of the alphabet, and proceeding in 
that way we at length worked it out. 
He will endeavor to assist the Republicans 
in collecting their ballots. Be watchful, and 
assist him. 
CIPHER LETTER. 
Charles Duell. 
James Ferguson. 
For the Prosecution.—June 5. 
For the Prosecution.—June 5. 
I have recently been at Morehead City, 
N. C., where I have been working under Mr. 
Duell. AVhile there, I discovered a letter 
floating in the water when we were at work, 
and called his attention to it. The letter 
which has been read is the same as was 
picked up; and I identify the envelope as the 
same. AVe found it either on the Ist or 
2d of May last. 
I reside in Washington. I was recently 
engaged in business, driving piles at More- 
head City, N. C. AVhile there, I found a let- 
ter floating in the water; it was in cipher. 
My attention was first called to it by Mr. 
Ferguson, who was working there. The en- 
velope was addressed “John W. Wise.” I 
made inquiries relative to the person to whom 
it was addressed, but I could hear of no one 
of that name in North Carolina. 
[The translation of the letter was here read, and the 
original put in evidence.] 
THE “LON” LETTER. 
Dear John: I am happy to inform you 
that Pet has done his work well. He is safe, 
and Old Abe is in hell. Now, sir, all eyes 
are on you. You must bring Shepian— 
Grant is in the hands of Old Gray ere this. 
Red Shoes showed lack of nerve in Sew- 
ard’s case, but fell back in good order. 
Washington, April the 15, ’65. 
Charles Dawson. 
I am a clerk at the National Hotel in 
this city. In looking among the initials for a 
letter for a gentleman whose name begins with 
B, I found a letter addressed “ J. W. B.” 
For the Prosecution.—June 2. THE “LON LETTER.” 
43 
Idle initials struck me as being rather pe- 
culiar, and I took the letter unopened to 
Judge Advocate Bingham, about the 24th 
of May. 
.The letter was read as follows, and it and the envelope 
"’ere put in as evidence:] 
Lon. I have seen his handwriting. He 
showed me some notes that he said he had 
been black-mailed about. The writing of 
the letter resembles his. lam the Purdy re- 
ferred to in the letter. 
ENVELOPE. 
I captured a rebel spy a few miles from 
Lon’s house. I understood he was to meet 
Lon McAleer that day to carry information 
there. I flanked the held and captured him, 
in company with two men named Darnduff, 
and a very reliable colored scout belonging to 
General Kelly. Lon McAleer had been play- 
ing both sides, loyal and disloyal; but as he 
had been lately bragging of his Unionism, I 
thought he would be glad to learn that the 
great rebel spy had been captured, so I rode 
down to him and told him. lie cursed me 
for capturing the man, and said 1 should 
have taken his money and let him go. He 
said, when he went out and saw a small 
squad of rebels who could do no great dam- 
age to the railroad, he did not report it; but 
when he saw a force that could operate 
against Cumberland and New Creek, he al- 
ways reported it, A day or two after that, I 
overtook a girl near his house. I halted her 
and searched her, and found her carrying let- 
ters. This was in the winter, in January, I 
think. A charge, such as that alluded to in 
the letter was made against me, but it was 
entirely false, and I afterward went to Mc- 
Aleer to get the thing settled. McAleer had 
a white servant named Tom, a deaf man, who 
afterward married this girl. I have heard 
he drinks. 
id’. O. stamp.] 
Cumberland, 
May 8. 
J. W. 8., 
National Hotel, 
Washington, 
1». C. 
Friend Wilkes ; 1 received yours of March 
12th, and reply as soon as practicable. I saw 
French, Brad}r, and others about the oil specu- 
lation. The subscription to the stock amounts 
to $B,OOO, and I add $l,OOO myself, which is 
about all I can stand. Now, when you sink 
your well go deep enough; don’t fail, every 
thing depends on you and your helpers. If 
you can’t get through on your trip, after you 
strike He, strike through Thornton Gap, and 
cross by Capon, Romney’s, and down the 
Branch, and I can keep you safe from all 
hardships for a year. lam clear of all sur- 
veillance, now that infernal Purdy is beat. 1 
hired that girl to charge him with an out- 
rage, and reported him to old Kelly, which sent 
him in the shade, but he suspects to (too) 
damn much now. Had he better be silenced 
for goodl I send this up by Tom, and if he 
Jon t get drunk you will get it the 9th ; at all 
events, it can’t be understood if lost. I can’t 
half write. I have been drunk for two days. 
Fon’t write so much highfalutin next time. 
No more; only Jake will be at Green’s with 
the funds. Burn this. 
South Branch Bridge, April 6, 1865. 
I do not know any person of the name of 
Green in that neighborhood; but there are 
Greens some seventy or eight miles off, and 
there may be other tamilies of that name that 
I do not know of. 
Truly, yours, LON. 
Sue Guthrie sends much love. 
The only guest at the National Hotel that 
I knew of to whom the initials J. W. B. be- 
longed was John Wilkes Booth. Any letters 
addressed to Mr. Booth in full would* be put 
into his box, as he had a room at the house. 
These being mere initials, the letter was put 
1,1 with sundry letters for those who had no 
Toom in the house. 
The route through Thornton Gap, crossing 
by Capon, Romney’s, and down the Branch, 
is an obscure route, of which I never knew 
till lately, it passes right through by Green’s 
house at Thornton Gap. Green’s reputation 
is that of a very disloyal man. 
I do not know the Sue Guthrie mentioned, 
but I have ascertained that she is a lady wrho 
lived with Mr. French. I once wrote a letter 
to French, warning him that some deserters 
from our army were going to commit robbery 
at his house. It was then that McAleer told 
me that French was his father-in-law. 
For the Prosecution.—June 16. 
Robert Purdy. 
I reside in Marshall County, West Virginia, 
near the Ohio River. I have been in the 
of the United States since the 11th of 
■December, 1861. Since the 23d of August 
I have belonged to a scouting company. 
. The letter signed “Lon” I never saw until 
was published in the public papers. I 
a)'e no knowledge whatever by whom it was 
I have heard of French, who is re- 
eired to in the letter, but I do not know of 
nZ one named Brady living on South Branch. 
there is a man in that region of country 
nined Lon ; his full name is Leonidas Mc- 
eer’ but he generally goes by the name of 
Cross-examined by Mr. Aiken. 
I am acting for the Government as detec- 
tive and scout. I have been charged with 
writing that letter myself. I was at South 
Branch Bridge in January last. South Branch 
empties into the Potomac River, and is from 
twenty-one to twenty-three miles from Cum 
berland. There is a railroad through South 
Branch to Cumberland People at South 
Branch Bridge are not in the habit of taking 
their letters to Cumberland to mail. They 
generally take them to Green Spring Run, 
about one and three-fourths miles above. THE CONSPIRACY TRIAL. 
PLOT TO CAPTURE 
that it was an impossibility; and asked him 
to think of my family. He said he had two 
or three thousand dollars that he could leave 
them. He urged the matter, and talked with 
me, I suppose, half an hour; but I still re- 
fused to give my assent. Then he said to 
me, “You will at least not betray me;” and 
added, “You dare not.” He said he could 
implicate me in the affair any how. The 
party he said were sworn together, and if I 
attempted to betray them, I would be hunted 
down through life. He urged me further, 
saying I had better go in. I told him “No,” 
and bade him good night, and went home. 
He told me that the affair was to take 
place at Ford’s Theater in Washington, and 
the part he wished me to play, in carrying 
out this conspiracy, was to open the back 
door of the theater at a signal. He urged 
that the part I would have to play would be 
a very easy alfair, and that it was sure to suc- 
ceed, but needed some one connected or ac- 
quainted with the theater. He said every 
thing was in readiness, and that there were 
parties on the other side ready to co-operate 
with them. By these parties I understood 
him to mean the rebel authorities and others 
opposed to our Government. He said there 
were from fifty to one hundred persons en- 
gaged in the conspiracy. 
He wrote to me again from Washington 
about this speculation; I think it must have 
been in January. I did not keep my letters. 
Every Sunday I devoted to answering my 
correspondence and destroying my letters. 
In January I got a letter from him, saying 
I must come. This was the letter in which 
he told me his plan was sure to succeed. I 
wrote back, saying that it was impossible, 
and I would not come. Then by return mail, 
I think, I got another letter, with fiftydollars 
inclosed, saying, I must come, and must be 
there by Saturday night. I did not go, nor 
have I been out of New York since last 
summer. The next time he came to New 
York, which I think was in February, he 
called on me again, and asked me to take a 
walk with him, and I did so. He then told 
me that he had been trying to get another 
party, one John Matthews, to join him, and 
when he told Matthews what he wanted, the 
man was very much frightened, and would 
not join him; and he said he would not have 
cared if he had sacrificed him. I told him 
I did not think it was right to speak in that 
manner. He said no; but Matthews was a 
coward, and was not fit to live. He then 
urged me again to join, and told me I must 
do so. He said there was plenty of money 
in the affair; and that, if I joined, I never 
would want for money again as long as I 
lived. He said the President and some of 
the heads of the Government came to the 
theater very frequently during Mr. Forrest’s 
engagements. I desired him not to again 
mention the affair to me, but to think of my 
poor family. He said he would ruin me in 
Samuel Knapp Chester. 
I am by pi'ofession an actor, and have 
known J. Wilkes Booth a great many years. 
For six or seven years I have known him 
intimately. In the early part of November 
last I met him in New York, and asked him 
why he was not acting. He told me that he 
did not intend to act in this portion of the 
country again; that he had taken his ward- 
robe to Canada, and intended to run the 
blockade. I saw him again on the 24th or 
25th of November, about the time we were 
to play “ Julius Ccesar ” in New York, which 
we did play on the 25th. I asked him where 
his wardrobe was; he said it was still in 
Canada, in charge of a friend. I think he 
named Martin in Montreal. 
For the Prosecution.—May 12. 
He told me he had a big speculation on 
hand, and asked me to go in with him. I 
met him on Broadway as he was talking 
with some friends. They were joking with 
him about his oil speculations. After he left 
them, he told me he had a better speculation 
than that on hand, and one they wouldn’t 
laugh at. Some time after that I met him 
again, and he asked me how I would like to 
go in with him, I told him I was without 
means, and therefore could not. He said 
that did n’t matter; that he always liked me, 
and would furnish the means. He then re- 
turned to Washington, from which place 1 
received several letters from him. He told 
me he was speculating in farms in lower 
Maryland and Virginia; still telling me that 
he was sure to coin money, and that I must 
go in with him. 
About the latter part of December, or early 
in January, he came to New York, and called 
on me at my house, No. 45 Grove Street. He 
asked me to take a walk with him which I 
did. We went into a saloon known as the 
“House of Lords,” on Houston Street, and 
remained there perhaps an hour, eating and 
drinking. We afterward went to another 
saloon under the Revere House, after which 
we started up Broadway. He had often 
mentioned his speculation, but would never 
mention what it was. If I would ask him, 
he would* say he would tell me by-and-by. 
When we came to the corner of Bleecker 
Street, I turned and bade him good night. 
He asked me to walk further with him, and 
we walked up Fourth Street, because he said 
Fourth Street was not so full of people as 
Broadway, and he wanted to tell me about 
that speculation. When we got into the un- 
frequented portion of the street, he stopped 
and told me that he was in a large conspiracy 
to capture the heads of the Government, in- 
cluding the President, and to take them to 
Richmond. I asked him if that was the 
speculation that he wished me to go into. 
He said it was. I told him I could not do it; booth’s oil speculations 
45 
the profession if I did not go. I told him 
I could not help that, and begged him not to 
mention the affair to me. 
When he found I would not go, he said he 
honored my mother and respected my wife, 
and he was sorry he had mentioned this 
affair to me; but told me to make my mind 
easy, and he would trouble me no more. I 
then returned him the money he had sent 
me. He told me he would not allow me to 
do so, but that he was so very short of funds, 
and that either he or some other party must 
go to Richmond to obtain means to carry out 
their designs. 
On Friday, one week previous to the assas- 
sination, I saw him again in New York. We 
were in the “ House of Lords,” sitting at a 
table. We had not been there long before 
be exclaimed, striking the table, “What an 
excellent chance I had to kill the President, 
if I had wished, on inauguration day! ” 
He said he was as near the President on 
that day as he was to me. 
That is all that he ever absolutely purchased. 
There was money spent for expenses on this 
lease, previous to his purchase of the land 
interest. He never realized a dollar from 
any interest possessed in the oil region. His 
speculations were a total loss. 
The first interest he acquired in any way 
was in December, 1863, or January, 1864. I 
accompanied him to the oil regions in June, 
1864, for the purpose of taking charge of his 
business there. The whole amount invested 
by him in this Alleghany River property, in 
every way, was about $5,000, and the other 
investment was about $l,OOO, making $6,000 
in all. 
His business was entirely closed out there 
on the 27th of September, 1864. 
One of the conveyances was made to his 
brother, Junius Brutus Booth, which was 
without compensation ; but a consideration 
was mentioned in the deed. The other 
transfer was to me, and it was done in con- 
sideration of my services, for which 1 never 
received any other pay. There was not a 
dollar paid to J. Wilkes Booth at all for 
these conveyances, and he paid all the ex- 
penses on the transfer and the conveyances. 
Cross-examination by Mr. Ewing. 
Booth spoke of the plot to capture the 
President, not to assassinate him, and to 
take him to Richmond., By the expression 
‘other side,” I understood him to mean 
across the lines—across the Potomac. 
Booth did not say any thing as to the means 
be had provided or proposed to provide for 
conducting the President after he should be 
seized. On one occasion he told me that he 
selling off his horses; that was after he 
bad told me he had given up this project of 
tbe capture. It was, I think, in February 
that he said he had abandoned the idea of 
Rapturing the President and the heads of the 
Government. The affair, he said, had fallen 
through, owing to some parties backing out. 
H was on Friday, the 7th of April, one week 
Previous to the assassination, that he said 
jV.bat an excellent chance he had had for 
filing the President. 
JACOB THOMPSON’S BANK ACCOUNT, 
Robert Anson Campbell. 
For the Prosecution.—May 20. 
I reside in Montreal, Canada, and am first 
teller of the Ontario Bank, of that city. 
I know Mr. Jacob Thompson very well. 
His account with the Ontario Bank I hold 
in my hand. It commenced May 30, 1864, 
and closed April 11, 1865. Prior to May 
30th, he left with us sterling exchange, drawn 
on the rebel agents in Liverpool, for collection. 
The first advice we bad was May 30th, 
when there was placed to his credit £2,061 
17s. 14d., and £20,618 11s. 4d., amounting to 
$109,965.63. The aggregate amount of the 
credits is $649,873.28, and there is a balance 
still left to his credit of $1,766.23; all the 
rest has been drawn out. Since about the 
first of March he has drawn out $300,000, in 
sterling exchange and deposit receipts. On 
the 6th of April last there is a deposit re- 
ceipt for $lBO,OOO. The banks in Canada 
give deposit receipts, which are paid when 
presented, upon fifteen days’ notice. On the 
Bth of April he drew a bill of £446 12s. Id., 
and on the same day £4,000 sterling. On 
the 24th of March he drew $lOO,OOO in ex- 
change; at another time $19,000. This ster- 
ling exchange was drawn to his credit, and 
also the deposit receipt. 
Mr. Jacob Thompson has left Montreal 
since the 14th of April last. I heard him 
say that he was going away. He used to 
come to the bank two or three times a week, 
and the last time he was in he gave a check 
BOOTH’S OIL SPECULATIONS. 
Joseph H. Simonds. 
For the Prosecution.—May 13. 
.1 was acquainted with J. Wilkes Booth in 
,l.ls lifetime, and was his business agent, par- 
icularly in the oil region. I did some little 
easiness for him in the City of Boston, but it 
as very little, and was entirely closed up 
before I left there. 
ilr. Booth’s interest in the oil speculations 
•yas as follows; He owned a third undivided 
Merest in a lease of three and a half acres 
a t ie Alleghany River, near Franklin. The 
tlw vlnterest cost $4,000. He paid $2,000 
fba b-ag one-half of it. He also purchased, 
1 . >boo, an interest in an association there 
VlllnS an undivided thirtieth of a contract THE CONSPIRACY TRIAL. 
to the hotel-keeper, which 1 cashed, and he 
then left the hotel. His friends stated to me 
that he was going to Halifax, overland. Nav- 
igation was not open then, and I was told 
that he was going overland to Halifax, and 
thence to Europe. 1 thought it strange at 
the time that he was going overland, when 
by waiting two weeks longer he could have 
taken the steamer; and it was talked of in 
the bank among the clerks. 
The account was opened with Jacob 
Thompson individually; the newspaper re- 
port was that he was financial agent of the 
Confederate States. We only knew that he 
brought Southern sterling exchange bills, 
drawn on Southern agents in the old coun- 
try, and brought them to our bank for col- 
lection. How they came to him we did not 
know. He was not, as far as I know, en- 
gaged in any business in Canada requiring 
these large sums of money. He had other 
large money transactions in Canada. I knew 
of one transaction of $50,000, that came 
through the Niagara District Bank, at St. 
Catherines; a check drawn to the order of 
Mr. Clement C. Clay, and deposited by him 
in that bank; they sent it to us, August 16, 
1864, to put it to their credit. 
Thompson has several times bought from 
us United States notes, or greenbacks. On 
August 25th he bought $15,000 in green- 
backs. and on July 14th, $19,125. This was 
the amount he paid in gold, and at that time 
the exchange was about 55. I could not say 
what the amount of greenbacks was, but that 
is what he paid for it in gold. On March 
14th, last, he bought $l,OOO worth of green- 
backs at 44|, for which he paid $552 20 in 
gold. On the 20th of March he bought 
£6,500 sterling at He also bought drafts 
on New York in several instances. 
[The bills of exchange found on Booth’s body at the 
time of his capture were here exhibited to the witness.] 
Those are the Ontario Bank bills of ex- 
change that were sold to Booth, bearing date 
October 27, 1864. 
BOOTH AT THE NATIONAL HOTEL. 
For the Prosecution.—May 12. 
Gr. W. Bunker. 
I am a clerk at the National Hotel in this 
city. John Wilkes Booth has been in the 
habit of stopping at that hotel when he came 
to the city. From the register, which 1 have 
examined, I find that Booth was not at the 
National Hotel during the month of October, 
1864. He arrived in the evening of Novem- 
ber 9th, and occupied room “20;” left on an 
early train on the morning of the 11th; re- 
turned November 14th, in the early part of 
the evening, and left on the 16th. His next 
arrival was December 12th; left December 
17th by the morning train; he arrived again 
December 22d; left on the 24th ; arrived De- 
cember 31; left January 10th; arrived again 
January 12th ; left on the 28th ; arrived again 
February 22d; occupied room “231,” in com- 
pany with John T. H. Wentworth and John 
McCullough. Booth left February 28th in 
8:15 A. M. train, closing his account to date, 
inclusive. His name does not appear on the 
register, but another room is assigned to him, 
and his second account commences March 
Ist, without any entry on the register of that 
date. On the 2d, 3d, and 4th he is called at 
8 o’clock A. M.; 21st of March, pays $5O on 
account, and left that day on 7:30 F. M. train; 
arrived again March 25th—room “ 231;” took 
tea, and left April Ist on an afternoon train; 
arrived April Bth, room “228,” and remained 
thereuntil the assassination of the President. 
J. Wilkes Booth, the actor, had a small 
account at our bank. I had one or two 
transactions with him, but do not remember 
more at present. He may have been in the 
bank a dozen times; and 1 distinctly remem- 
ber seeing him once. He has still left to his 
credit $455, arising from a deposit made by 
him, consisting of $2OO in $2O Montreal bills, 
and Davis’s check on Merchants’ Bank of 
$255. Davis is a broker, who kept his office 
opposite the St. Lawrence Hall, and is, I 
think, from either Richmond or Baltimore. 
When Booth came into the bank for this 
exchange, he bought a bill of exchange for 
£6l and some odd shillings, remarking, “ I 
am going to run the blockade, and in case I 
should be captured, can my capturers make 
use of the exchange?” I told him they 
could not unless he indorsed the bill, which 
was made payable to his order. He then 
said he would take $3OO, and pulled out that 
amount, 1 think, in American gold. I figured 
up what $3OO would come to at the rate of 
exchange—l think it was 9|—and gave him 
a bill of exchange for £6l and some odd 
[The attention of the witness was directed to the prison- 
ers at the bar.] 
The only one of the accused I know is the 
one with the black whiskers and imperial, 
[pointing to the accused. Michael O’Laughlin.] 
I do not know his name, but know him by 
sight. He frequently called on Booth at the 
hotel. I do not think I saw him the last 
few days of Booth’s stay there. 
[A certified memorandum of the above dates, copied 
from the register of the National Hotel, was here offered 
in evidence.] 
JEFF. DAVIS AND THE ASSASSINA- 
TION. 
Lewis F. Bates. 
I reside in Charlotte, N. C., where I have 
resided a little over four years. I am Super- 
intendent of the Southern Express Company 
for the State of North Carolina. I am a 
native of Massachusetts. On the 19th of 
For the Prosecution.—May 30. 
shillings. PLOT TO DESTROY STEAMERS, GUN-BOATS, ETC, 
April; -Tefferson Davis stopped at my house 
ln Charlotte, when he made an address to the 
People from the steps of my house. While 
speaking, a telegram from John C. Breckin- 
ridge was handed him. 
chusetts, while I was conductor, and I never 
heard any thing against his reputation for 
truth. 
William L. Ckanb. 
followinS telegram was hero read to the Commis- 
1 am the agent of Adams’s Express Com- 
pany in New York Eastern Division. I have 
known Lewis F. Bates since 1848, and have 
never heard any thing against his reputation 
as a man of truth and integrity. 
For the Prosecution.—June 9. 
Greensboro, April 19, 1865. 
ills Excellency President Davis: 
Bresident Lincoln was assassinated in the 
theater in Washington on the night of the 
11th instant. Seward’s house was entered on 
the same night, and he was repeatedly stabbed, 
ar>d is probably mortally wounded. 
JOHN C. BRECKINKIDGE. 
Daniel H. Wilcox. 
For the Prosecution.—June 9. 
In concluding his speech, Jefferson Davis 
read that dispatch aloud, and made this re- 
mark, “If it were to be done, it were better 
it were well done.” lam quite sure these are 
the words he used. '![ 
A day or two afterward, Jefferson Davis 
and John C. Breckinridge were present at my 
house, when the assassination of the President 
yas the subject of conversation. In speak- 
lng of it, John C. Breckinridge remarked 
to Davis, that he regretted it very much; 
that it was very unfortunate for the people 
ot the South at that time. Davis replied, 
'Well, General, I don’t know, if it were to 
he done at all, it were better that it were well 
hone ; and if the same had been done to Andy 
Johnson, the beast, and to Secretary Stanton, 
*-he job would then be complete.” No re- 
mark was made at all as to the criminality 
the act, and from the expression used by 
John C. Breckinridge, I. drew the conclusion 
that he simply regarded it as unfortunate for 
the people of the South at that time. 
I left the South a year ago last April. I 
have known Mr. L. F. Bates for two or three 
years quite intimately; he occupied a position 
of great trust and responsibility, and is a man 
of truth and integrity. He bore the best 
reputation possible. His character is without 
reproach, as far as I know. 
For the Prosecution.—June 9. 
Jules Soule. 
I reside in the city of New York at 
present; for the pUst few years I have lived 
in Columbia, S. C. I knew Mr. L. F. Bates; 
he bore the reputation of a truthful and re- 
liable man, in every respect, to the best of 
my knowledge. We have been intimately 
connected in business for (he last three or 
four years. The position he occupied was 
one of high responsibility and trust. 
Majok T. T. Eckert. 
For the Prosecution.—June 9. 
J. C. Courtney. 
For the Prosecution.—May 30. 
Mr. L. F. Bates was brought here by the 
order of the Secretary of War. 
I reside in Charlotte, N. C., and am en- 
gaged in the telegraphing business, in connec- 
-1orn0rn wirii the Southern Express Company. 
The telegram to which Mr. Bates has just 
estified is a true copy of the message that was 
janemitted to Jefferson Davis on the 19th of 
pril last, and signed John C. Breckinridge. 
was standing by the operator when the 
message was received. Jefferson Davis re- 
-s®>ved the message at Mr. Bates’s house in 
larlotte, to which place he had come from 
reensburg or Concord, where he had stopped 
the night before. 
PLOT TO DESTOY STEAMERS, GUN- 
BOATS, ETC. 
Rev. AY. H. Ryder. 
For the Prosecution.—May 18. 
I reside in Chicago. On the 9th of April 
I left that city for Richmond, Ya.; arrived 
there the 14th, and remained there until the 
21st of that month. While there I visited 
the State Capitol, and found the archives of 
the so-called Confederate States scattered 
about the floor; and, in common with others, 
took as many of these as I chose. I collected 
quite a number of papers in different rooms 
and from among the rubbish. There were 
one or two persons with me, and, as we 
handled the papers, any thing that seemed 
important or interesting we put into our 
pockets. Among the papers so found waa 
this letter. 
James E. Russell. 
■ reside in Springfield, Mass. I have 
nown Lewis F. Bates for about twenty-five 
pirs. lor the last five years I have not 
nowni any thing of his whereabouts, until I 
arned from him that he had been living in 
mrlotte, N. C. He was in business as bag- 
ge-master on the Western Railroad, Massa- 
For the Prosecution.—June 9. 48 
THE CONSPIRACY TRIAL, 
[The following letter was then read and Differed in evi- 
dence:] 
Richmond, February 11, 1565. 
burning the enemy’s shipping, towns, etc. 
Preparations are in the hands of Professor 
McCullough, and are known to only one other 
party. Asks the President to have an in- 
terview with General Harris, formerly a 
member of Congress from Missouri, on the 
subject. 
His Excellency Jefferson Davis, Pres’t C. S. A. 
Sir: When Senator Johnson of Missouri 
and myself waited on you a few days since, 
in relation to the prospect of annoying and 
harassing the enemy by means of burning 
their shipping, towns, etc., there were several 
remarks made by you upon the subject that 
I was not fully prepared to answer, but which, 
upon subsequent conference with parties pro- 
posing the enterprise, I find can not apply as 
objections to the scheme. 
1. The combustible material consists of 
several preparations and not one alone, and 
can be used without exposing the party using 
them to the least danger of detection what- 
ever. The preparations are not in the hands 
of McDaniel, but are in the hands of Pro- 
fessor McCullough, and are known but to 
him and one other party, as I understand. 
2. There is no necessity for sending persons 
in the military service into the enemy’s coun- 
try; but the work may be done by agents, 
and, in most cases, by persons ignorant of the 
facts, and therefore innocent agents. 
I have seen enough of the effects that can 
be produced to satisfy me, that, in most cases, 
without any danger to the parties engaged, 
and in others but very slight, we can—l. 
Burn every vessel that leaves a foreign port 
for the United States. 2. We can burn every 
transport that leaves the harbor of New 
York or other Northern port, with supplies 
for the armies of the enemy in the South. 
3. Burn every transport and gunboat on the 
Mississippi River, as well as devastate the 
country of the enemy, and fill his people with 
terror and consternation. lam not alone of 
this opinion, but many other gentlemen are 
as fully and thoroughly impressed with the 
conviction as I am. I believe we have the 
means at our command, if promptly appro- 
priated and energetically applied, to demor- 
alize the Northern people in a very short time. 
For the purpose of satisfying your mind upon 
the subject, I respectfully, but earnestly, re- 
quest that you will have an interview with 
General Harris, formerly a member of Con- 
gress from Missouri, who, 1 think, is able, 
from conclusive proofs, to convince you that 
what I have suggested is perfectly feasible 
and practicable. 
The deep interest I feel for the success of 
our cause in this struggle, and the conviction 
of the importance of availing ourselves of 
every element of defense, must be my excuse 
for writing you, and requesting you to invite 
General Harris to see you. If you should see 
proper to do so, please signify the time when 
it will be convenient for you to see him. 
I am, respectfully, your obedient servant, 
W. S. OLDHAM. 
Secretary of State, at his convenience, please 
see General Harris, and learn what plan he 
has for overcoming the difficulty heretofore 
experienced. J. D. 
20 Feb’y, ’65. 
Rec’d Feb’y 17, 1865. 
SECOND INDORSEMENT. 
For the Prosecution.—May 18. 
John Potts 
I am chief clerk in the War Department, 
which position I have filled for upward of 
twenty years. While Jefferson Davis was 
Secretary of War, I had abundant opportuni- 
ties of becoming acquainted with his hand- 
writing, and became perfectly familiar with 
it. In my belief, the indorsement on that 
letter just read is in his handwriting. 
Nathan Rice. 
For the Prosecution.—May 18. 
I was requisition clerk eight years ago. 
when Jefferson Davis was Secretary of War, 
and every day he had to sign the requisitions 
that came to me. The indorsement on the 
letter signed W. S. Oldham, I should think, 
was in the handwriting of Jefferson Davis. 
I had ample opportunities of becoming ac- 
quainted with his handwriting, seeing from 
ten to twenty-five signatures of his every day, 
and sometimes they were signed in my pres- 
ence. 
Joshua T. Owen. 
For the Prosecution.—May 18. 
I have known Professor McCullough, I 
suppose, for twenty years; he was Professor 
of Chemistry at Princeton College. At Jef- 
ferson College, Pennsylvania, where 1 grad- 
uated about 1839 or 1840, he was Professor 
of Mathematics, and if my recollection serves 
me, he was Assayer at the Mint, Philadelphia. 
He has, I believe, been at Richmond during 
the rebellion, in the service of the Confed- 
erates. He had attained some distinction as 
a chemist, perhaps more in that than in any 
thing else. 
General Alexander J. Hamilton. 
For the Prosecution.—May 20. 
I am a citizen of the State of Texas, and 
was formerly a member of Congress from 
that state. I am perfectly familiar with the 
handwriting of Williamson S. Oldham. The 
letter which has just been introduced in evi- 
dence, signed W. S. Oldham, is in his hand- 
INDORSEMENT. 
Hon. W. S. Oldham. Richmond, February 
12, 1865. In relation to plans and means for DESTRUCTION OF STEAMBOATS, ETC. 
49 
Writing. At the time of writing this letter, 
he was a member of the Senate of the so- 
called Confederate States. I so conclude, 
because I was present, jn 1861, when he was 
elected for six years, by the rebel Legislature 
®f Texas, to a seat in the Senate of the rebel 
Government, and since then I have seen re- 
ports of many speeches of his, and resolutions 
nd bills introduced by him into the rebel 
Senate. 
as being all right. Mr. Benjamin told us all 
three to call next day. We did so, when he 
said he had shown those papers to Jefferson 
Davis, and he (Benjamin) wanted to know 
if we would not take $30,000 and sign re- 
ceipts in full. We told him we would not. 
Mr Benjamin then said that if Dillingham 
was to claim this in Louisville, he wanted a 
statement of it. We went back to the hotel, 
and I wrote the statement myself. It read 
that Mr. Dillingham had been hired by Gen- 
eral Polk, and that he had been sent to 
Louisville expressly to do that work—namely, 
burn the hospital. It was then talekd over, 
with Mr. Benjamin, and we made a settle- 
ment with him for $50,000; $35,000 down in 
gold, and $15,000 on deposit, to be paid in 
four months, provided the claims proved cor- 
rect. The money was paid by a draft on 
Columbia for $34,800 in gold, and $2OO in 
gold we got in Richmond. We received the 
gold on the draft at Columbia. 
While at Richmond Mr. Benjamin told me 
that Mr. Davis wanted to see me. I went in 
with Benjamin to see Mr. Davis, and we sat 
and talked. The conversation first was about 
what was called the Long Bridge, between 
Nashville and Chattanooga. Mr. Davis 
wanted to know what I thought about de- 
stroying it. He said they had been think- 
ing about it, and of sending some one to have 
it done. I told him I knew of the bridge,% 
though I did not, for I had never been there; 
but I did not know what to think about de- 
stroying it. He said I had better study it 
over. Finally, I told him I thought it could 
be done. Mr. Benjamin, I believe it was, 
who first remarked that he would give 
$400,000 if that bridge was destroyed, and 
asked me if I would take charge of it. I 
told him I would not, unless the passes were 
taken away from those men that were now 
down there; and Mr. Davis said it should be 
done. The conversation then turned on the 
burning of the steamboats. I told Mr. Davis 
that I did not think it was any use burning 
steamboats, and he said no, he was going to 
have that stopped. The next day I saw an 
order in the paper taking away passes issued 
on or before the 23d of August. These passes 
were permits to do this kind of work. 
I asked Mr. Davis if it would make any dif- 
ference where the work of destroying bridges 
was done. He said it did not; it might be 
done in Illinois, or any place; that we might 
destroy railroad bridges, commissary and 
quarter-master stores—any thing appertain- 
ing to the army, but as near Sherman’s base 
as possible; that Sherman was the man who 
was doing more harm than any body else at 
that time. 
DESTRUCTION OF STEAMBOATS, Etc. 
Edwaed Frazier. 
I am a steamboat man, and have been 
taking St. Louis my home for the last nine 
0r ten years. During 1864 I knew of the 
operations of Tucker, Minor Majors, Thomas 
E. Clark, and Colonel Barrett of Missouri, 
lor burning boats carrying Government freight, 
transports, and other vessels on the Missis- 
-BlPpi, Ohio, and other rivers. These men 
ere in the service of the Confederate Gov- 
ernment. I knew of the following steamboats 
laving been been burned by the operations 
O' these parties: the Imperial, Hiawatha, the 
Robert Campbell, the Louisville, the Daniel 
• daylor, and others, besides some in New 
rleans that I do not know the name of. 
I he Imperial was one of the largest and 
ir>est transports on the western waters. In 
b*n CaBe D*e burning of the Robert Camp- 
e !' which was destroyed in the stream, when 
Under way, at Milliken’s Bend, twrenty-five 
niles above Vicksburg, there was a consid- 
erable loss of life. The agent who destroyed 
?’8 boat was on board. These boats were 
a rp?Wned by private individuals. 
1 a 6 °PeraE°ns of these men were to in- 
ude Government hospitals, store-houses, and 
thing appertaining to the army. A 
uited States hospital at Louisville was 
urned in June or July of 1864. I do not 
ljtl°)'r who burned it, but a man named Dil- 
ngham claimed compensation for it. 
i)c ,Was iu Richmond from the 20th to the 
r . 1 °r 26th of August last, when I had an 
tb eroI6W wdb Die rebel Secretary of War, 
■ e Secretary of State, and Mr. Jefferson 
n VlB- Thomas L. Clark, Dillingham, and 
boat b ca!led there in connection with the 
A q jU,rn*ng> and put in claims to Mr. James 
rd - /loti, the rebel Secretary of War. Mr. 
urn tb lntIroduced me to Mr. Seddon. He told 
it w ad thrown up that business; that 
We aS now *n. Dio hands of Mr. Benjamin, 
nt tl"ent kim, and Mr. Benjamin looked 
if t Papers we brought him, and asked me 
that j anT thing about them. I told him 
rip.i. d'di and that I believed they were all 
llem i • asbed me if I was from St. Louis; 
if bo i mn was- He then asked Mr. Clark 
had rTnew me to be all right, and he said I 
een represented to him by Mr. Majors 
For the Prosecution.—June 8. 
I presume Mr. Davis knew that the pay I 
received was for the work I had done; he 
knew I had received money there. 
The papers we presented were statements 
written out by Mr. Clark, of the services 
rendered and the amount claimed. 50 
THE CONSPIRACY TRIAL. 
Mr. Davis seemed fully aware of what we 
had done, and he did not condemn it. Mr. 
Majors and Barrett belonged to an organiza- 
tion known as the 0. A. K., or Order of 
American Knights. 
Q. Will you state, if you think proper to 
do so, whether you are also a member of 
that order? You are not bound to state it, 
if the answer will criminate you in any way. 
1 Hailing a man from the barge, I put the ma- 
chine in motion, and gave it in his charge. 
He carried it aboard. The magazine con- 
tained about twelve pounds of powder. Re- 
joining my companion, we retired to a safe 
distance to witness the effect of our effort. In 
about an hour the explosion occurred. Its 
effect was communicated to another barge 
beyond the one operated upon, and also to a 
large wharf building containining their stores, 
(enemy’s,) which was totally destroyed. The 
scene was terrific, and the effect deafened my 
companion to an extent from which he has 
not recovered. My own person was severely 
shocked, but I am thankful to Providence 
that we have both escaped without' lasting 
injury. We obtained and refer you to the 
inclosed slips from the enemy’s newspapers, 
which afford their testimony of the terrible 
effects of this blow. The enemy estimate the 
loss of life at fifty-eight killed and one hun- 
dred and twenty-six wounded, but we have 
reason to believe it greatly exceeded that. 
The pecuniary damage we heard estimated 
at four millions of dollars; but of course we 
can give you no account of the extent of it 
exactly. I may be permitted, Captain, here 
to remark that, in the enemy’s statement, a 
party of ladies, it seems, were killed by this 
explosion. It is saddening to me to realize 
the fact that the terrible effects of war induce 
such consequences; but when I remember the 
ordeal to which our own women have been 
submitted, and the barbarities of the enemy's 
crusade against us and them, my feelings are 
relieved by the reflection that while this 
catastrophe was not intended by us, it amounts 
only, in the providence of God, to just re- 
taliation. 
[The witness declined to answer.] 
I understood that Colonel Barrett held the 
position of Adjutant-General of this organi- 
zation, of the Sons of Liberty, for the State 
of Illinois. Ido not know that Majors and 
Barrett were in Chicago in July last, but Mr. 
Majors left St. Louis, either in June or July, 
to go to Canada, and I presume went there 
by way of Chicago. 
THE CITY POINT EXPLOSION. 
Brig.-Gen. E. D. Townsend, U. S. A. 
For the Prosecution.—June 12. 
I was well acquainted with G. J. Pains, 
who resigned as Lieutenant-Colonel of the 
Fifth Regiment of United States Infantry in 
1861. He has, I understand, since then been 
Brigadier-General in the rebel service. I 
jkm acquainted with his handwriting, and, to 
Hhe best of my knowledge and belief, the sig- 
nature to the indorsement now shown to me 
is in his handwriting. 
[The following letter, with the indorsement, was then 
read and put in evidence:] 
Richmond, December 16, 1864. 
Ca.pt. Z. McDaniel, Com ding Torpedo Go.: 
Captain: I have the honor to report that, 
in obedience to your order, and with the 
means and equipment furnished me by you, 
I left this city 26th July last, for the line of 
the James River, to operate with the “Hozo- 
logical Torpedo ” against the enemy’s vessels 
navigating that river. I had with me Mr. R. 
K. Dillard, who was well acquainted with the 
localities, and whose services I engaged for 
the expedition. On arriving in Isle of Wight 
County on the 2d of August, we learned of 
immense supplies of stores being landed at 
City Point; and, for the purpose, by stratagem, 
of introducing our machine upon the vessels 
there discharging stores, started for that point. 
We reached there before daybreak, on the 
9th of August last, with a small amount of 
provisions, having traveled mostly by night, 
and crawled upon our knees to pass the east 
picket line. Requesting my companion to re- 
main behind about half a mile, I approached 
cautiously the wharf, with my machine and 
powder covered by a small box. Finding the 
Captain had come ashore from a barge then 
at the wharf, I seized the occasion to hurry 
This being accomplished, we returned to 
the objects of our original expedition. We 
learned that a vessel (the Jane Duffield) was 
in Warwick River, and, with the assistance 
of Acting-Master W. H. Hinds, of the Con- 
federate States navy, joined a volunteer party 
to capture her. She was boarded on the 17th 
September last, and taken without resistance. 
We did not destroy her, because of the effect 
it might have had on the neighboring citizens 
and our own further operations. At the in- 
stance of the Captain she was bonded, he 
offering as a hostage, in the nature of security 
to the bond, one of his crew, who is now 
held as a prisoner of war on this condition in 
this city. 
In the meanwhile we operated on the James, 
as the weather and moon co-operated, but 
without other success than the fear with which 
the enemy advanced, and the consequent re- 
tarding of his movements on the river. We 
neared success on several occasions. Finding 
our plan of operations discovered by the 
enemy, and our persons made known and 
forward with my box. Being halted by one 
of the wharf sentinels, I succeeded in passing 
him by representing that the Captain had 
ordered me to convey the box on board. 
pursued by troops landed from their boats at 
Smithfield, we deemed it best to suspend oper- 
ations in that quarter and return to report to 
you, officially, our labors. Your orders were MILLION DOLLARS FOR ASSASSINATION. 
51 
lo remain in the enemy’s lines as long as we 
'“ould do so; but I trust this conduct will 
Jiieet your approval. The material unused has 
been safely concealed. I have thus, Captain, 
Presented you in detail the operations con- 
ducted under your orders and the auspices of 
your company, and await further orders. 
Very respectfully, your obedient servant, 
JOHN MAXWELL. 
the sum of fifty thousand dollars in advance, 
which is supposed to be necessary to reach 
and slaughter the three villains. 
“I will give, myself, one thousand dollars 
toward this patriotic purpose. Every one 
wishing to contribute will address Box X, 
Cahawba, Alabama. 
“ December 1, 1864.” 
INDORSEMENTS. 
That advertisement was published in the 
Selma Dispatch, and, as far as I remember, 
at the date named. It was inserted four or 
five times; the manuscript passed through 
ray hands, and was in the handwriting of 
Mr. G. W. Gayle, of Cahawba, Ala. His 
signature was on the manuscript, to indicate 
that he was the author, and was responsible 
for it. 1 am familiar with his handwriting. 
The Selma Dispatch had a circulation of 
about eight hundred copies, and exchanged 
with most, if not all, the Richmond papers. 
Mr. Gayle is a lawyer of considerable 
reputation, and is distinguished, even in 
Alabama, for his extreme views on the sub- 
ject of slavery and the rebellion, and as an 
ardent supporter of the Confederacy. 
December 17, 1564. 
Report of J. Maxwell, of Captain Z. Mc- 
■Raniel’s Company, Secret Service, of his oper- 
ations on James River. 
Respectfully forwarded to Brigadier-General 
Rains. Z. McDANIEL, 
Captain Company A, Secret Service. 
Fob. Bu., Richmond, Va., \ 
December 17, 1864. J 
For Hon. Secretary of War: 
Present. 
Respectfully forwarded, with remark that 
John Maxwell and R. K. Dillard were sent 
by Captain McDaniel into the enemy’s lines 
by my authority, for some such purpose, and 
the supposition was strong, as soon as the 
tremendous explosion occurred at City Point, 
the 9th August last, that it was done 
through their agency, but, of course, no re- 
port could be made until the parties returned, 
"'hich they did on Wednesday last, and gave 
an account of their proceedings. 
this succinct narrative is but an epitome 
°t their operations, which necessarily implies 
Secrecy, for the advantage of this kind of 
Bervice, as well as their own preservation. 
John Maxwell is a bold operator and well 
calculated for such exploits, and also his co- 
llator, R. K. Dillard. 
W. D. Graves. 
I reside in Selma. Alabama, and am a 
printer. I was engaged in the office of the 
Selma Dispatch in December last, and 
remember seeing an advertisement published 
in that paper, signed “X,” bearing date 
December Ist, 1864, headed, “One Million 
of Dollars Wanted, to have Peace by the 
First of March.” I saw the manuscript 
from which the advertisement just testified 
to was set up. It was in the handwriting 
of Colonel G. W. Gayle; I am well acquainted 
with it, having seen it frequently in articles 
we had published before. 
For the Prosecution.—■ June 27. 
G. J. RAINS, 
Brigadier General, Sup'i. 
Million dollars for assassina- 
tion. 
PROPOSALS TO RID THE COUNTRY 
“OF SOME OF HER DEADLIEST 
ENEMIES.” 
John Cantlin. 
For the Prosecution.—June 27. 
reside at Selma, Alabama, and am a 
rL+i *•’ I was foreman of the Selma Dis- 
[T * m December last. 
advertisement, purporting to have been 
Judge AdJni a e kclma Dispatch, was then read by the 
ge Advocate, and offered in evidence;] 
j> NR Million Dollars Wanted to have 
of t]CE oY THE ST 0F ARcn.—If the citizens 
wit! 'tL^outbern Confederacy will furnish me 
of n or good securities for the sum 
of ar6 dollars, I will cause the lives 
AnH ra tOl -^‘nc°in) Wm. H. Seward, and 
Johnson to be taken bv the Ist of 
*+inext- will give us peace, and 
live b, hetTorld that cruel tyrants can not 
Rcpnmr l . °f liberty.’ If this is not 
Pished, nothing will be claimed beyond 
jFor the Prosecution.—May 22. 
Colonel R. B. Treat 
I am Chief Commissary of the Army of 
the Ohio, and have recently been on duty in 
the State of North Carolina. The army 
with which I have been connected captured 
a variety of boxes said to contain archives 
of the so-called Confederate States. They 
were delivered up by General Joseph A. 
Johnston, at Charlotte, N. C. 
A letter was sent to General Schofield at 
Raleigh from General Johnston at Charlotte, 
stating that he had in his possesion there 
the records and archives of the Confederacy, 
which he was ready to deliver on General 
Schofield's sending an officer to receive 
them. The day following, an officer on the 52 
THE CONSPIRACY TRIAL. 
General’s staff was sent to Charlotte, who 
received them and brought them to Raleigh. 
From that point I brought them here, and 
delivered them at the War Department to 
Major Eckert, Acting Assistant Secretary of 
War. 
having taken the yellow fever, etc., at Ber- 
muda, 1 have been rendered unfit for service 
since my arrival. 
I was reared up in the State of Alabama, 
and educated at its university. Both the 
Secretary of War and his assistant, Judge 
Campbell, are personally acquainted with 
my father, William J. Alston, of the Fifth 
Congressional District of Alabama, having 
served in the time of the old Congress, in the 
years 1849-50-51. 
If I do any thing for you, I shall expect 
your full confidence in return. If you do 
this, I can render you and my country very 
important service. Let me hear from you soon. 
1 am anxious to be doing something, and 
having no command at present, all, or nearly 
all, being in garrison, I desire that you favor 
me in this a short time. I would like to 
have a personal interview with you, in order 
to perfect the arrangements before starting. 
I am, very respectfully, 
Your obedient servant, 
Lieut. W. ALSTON. 
Major T. T. Eckert. 
For the Prosecution.—May 22. 
Yesterday morning I received at the War 
Department certain boxes from Colonel 
Treat, purporting to contain the archives or 
records of the War Department of the so- 
called Confederate States. Some of these 
boxes, by my direction, have been opened 
by Mr. Frederick H. Hall, and their contents 
have undergone an examination by him. 
Frederick H. Hall. 
For the Prosecution.—May 22. 
I have opened certain of the boxes deliv- 
ered to Major Eckert, containing the archives 
of the so-called Confederate States. From 
the box marked “Adjutant and Inspector- 
General’s Office; Letters received July to 
December, 1864,” I took this letter. 
INDORSEMENTS. 
[The following letter was then read and offered in evi- 
A, 1,390. Lieutenant W. Alston, Mont- 
gomery, Sulphur Springs, Ya. [No date.] 
Is lieutenant in General Duke’s command. 
Accompanied raid into Kentucky and was cap- 
tured, but escaped into Canada, from whence 
he found his way back. Been in bad health. 
Now oilers his services to rid the country 
of some of its deadliest enemies. Asks for 
papers to permit him to travel within the 
jurisdiction of this Government. Would like 
to have an interview and explain. 
Respectfully referred, by direction of the 
President, to the Honorable Secretary of War. 
BURTON W. HARRISON, 
Private Secretary. 
dence:] 
Montgomery, White Sulphur Springs, Va. 
To his Excellency the President of the Confed- 
erate States of America: 
Dear Sir: I have been thinking some 
time that I would make this communication 
to you, but have been deterred from doing 
so on account of ill health. I now offer you 
my services, and if you will favor me in my 
designs, I will proceed, as soon as my health 
will permit, to rid my country of some of her 
deadliest enemies, by striking at the very 
heart’s blood of those who seek to enchain 
her in slavery. I consider nothing dishon- 
orable having such a tendency. All I ask 
of you is to favor me by granting me the 
necessary papers, etc., to travel on while 
within the jurisdiction of the Confederate 
Government, I am perfectly familiar with 
the North, and feel confident that I can 
execute any thing I undertake. I am just 
returned now from within their lines. lam 
a lieutenant in General Duke’s command,, 
and I w'as on the raid last June in Kentucky 
under General John H. Morgan. 1 and all 
of my command, excepting about three or 
four, and two commissioned officers, were 
taken prisoners; but finding a good oppor- 
tunity, while being taken to prison, I made 
my escape from them. Dressing myself in 
the garb of a citizen, I attempted to pass 
out through the mountain; but finding that 
impossible, narrowly escaping two or three 
times from being retaken, I shaped my 
course north and went through to the Canadas, 
from whence, by the assistance of Colonel 
J. P. Holcombe, I succeeded in making my 
way around and through the blockade; but 
Received November 29, 1864. 
Recorded book A. A. G. 0., December 15, 
1864. 
A. G. for attention. 
By order. J. A. CAMPBELL, A. S. W. 
Lewis W. Chamberlayne. 
For the Prosecution.—May 26. 
1 reside at Richmond, Virginia, and have 
been on duty as a clerk in the War Department 
of the Confederate States. While so acting, 
I became acquainted with the handwriting 
of John A. Campbell, rebel Assistant Secre- 
tary of War, and late Judge of the Supreme 
Court of the United States; also, with that 
of Burton W. Harrison, the Private Secretary 
of Jefferson Davis. I have examined the 
letter of Lieutenant W. Alston, and the 
indorsements thereon, and the indorsement, 
“ Respectfully referred, by direction of the 
President, to the Honorable Secretary of 
War,” is, to the best of my knowledge and 
belief, in the handwriting of Burton W 
Harrison, who was recognized in the Wai COMMISSIONS FOR RAIDERS. 
53 
Office at Richmond as the private secretary 
°f Jefferson Davis. 
The other indorsement, 
“ A. G. for attention. 
to obey implicitly their instructions. You 
and your men will receive from these gentle- 
men transportation, and the customary rations 
and clothing, or the commutation therefor. 
JAMES A. SEDDON, 
Va., June 16. Secretary of War. 
“By order. 
[Signed] “J. A. Campbell, A. S. W.” 
18 m the handwriting of Judge Campbell. 
Bennett H. Young, who was on trial, pro- 
duced that document as his authority for the 
acts he did at St. Albans. 
COMMISSIONS FOR RAIDERS. 
Henry G. Edson. 
For the Prosecution.—June 10. 
George F. Edmunds. 
For the Prosecution.—May 27. 
I reside at St. Albans, Vt, and am an at- 
torney and counselor at law. I was in 
Canada during the judicial investigations in 
connection with the St. Albans raid, acting as 
counsel in behalf of the bank and the United 
States. I saw there George N. Sanders, Ja- 
cob Thompson, Clement C. Clay, and others 
of that circle of rebels. 
I heard a conversation be'tween George N. 
Sanders and other parties at St. John’s, in re- 
gard to movements in the States contemplated 
by the rebel authorities. I made a memo- 
randum in my diary of this conversation at 
the time. 
I reside at Burlington, Vt., and am coun- 
selor at law. At the recent trial of the St. 
Albans raiders that took place in Canada, 
I appeared as counsel in behalf of the Gov- 
ernment of the United States. 
In the performance of my duty there, I 
became acquainted with Jacob Thompson, 
William C. Cleary, Clement C. Clay, George 
A- Sanders, and others of that clique. They 
assumed to be officers of the Confederate 
government in defending these raiders. I 
have no personal knowledge of their real 
authority, but they were notoriously under- 
stood there to be the representatives of the 
rebel cause. Mr. Cleary was examined as a 
witness on the part of the defendants; he 
represented that the persons engaged in this 
raid were acting under the authority of the 
Confederate Government. All those who 
testified stood upon that defense. 
The volume entitled “The St. Albans 
Haiders, or Investigation into the Charges 
against Lieutenant Bennett H. Young, and 
Command for their acts at St. Albans. Vt., 
on the 19th of October, 1864, compiled by 
p N. Benjamin, B. C. L., printed at Montreal 
hy John Lovell,’’ contains, on page 216, a copy 
a paper marked R, the original of which 
Was given in evidence at the trial, on the part 
°f the defendant, Mr. Young, and others. I 
examined the original very critically, and I 
ani able to swear that this is substantially a 
COPy, and I have no doubt it is a literal one. 
[The following was then read and put in evidence:] 
In speaking of the so-called St. Albans raid, 
George N. Sanders said he was ignorant of it 
before it occurred, but was satisfied with it. 
He said tfiat it was not the last that would 
occur; but it would be followed up by the 
depleting of many other banks, and the burn; 
ing of many other towns on the frontier, and 
that many Yankee sons of (using a 
course, vulgar expression) would be killed. 
He said that they had their plans perfectly 
organized, and men ready to sack and burn 
Buffalo, Detroit, New York, and other places, 
and had deferred them for a time, but would 
soon see the plans wholly executed; and any 
preparation that could be made by the Gov- 
ernment to prevent them would not, though 
it might defer them for a time. He made 
other statements in connection with the case; 
that he had hired a house in St. John’s, 
which he intended to furnish himself, to ac- 
commodate his friends and attorneys; that 
he had employed twenty or thirty counsel in 
Canada. 
Confederate States of 
War Department, r . 
rp Richmond, Va., June 16,1864.) 
0 Lieutenant Bennett H. Young : 
Lieutenant: You have been appointed 
6111 porarily first lieutenant in the provisional 
anny for special service. 
you will proceed, without delay, to the 
ntisli Provinces, where you will report to 
srB- Thompson and Clay for instructions. 
Tou will, under their direction, collect 
ogether such Confederate soldiers who have 
scaped from the enemy, not exceeding twenty 
“ nu,nber, as you may deem suitable for the 
purpose, and will execute such enterprises as 
|be intrusted to you. You will take care 
0 commit no violation of the local law, and 
paper r. 
Sanders claimed to be acting as an agent 
of the so-called Confederate Government. 
He said that he had retained the counsel who 
had acted in the case, and that Mr. Clement 
C. Clay, from the Clifton House, was also to 
aid. 
PLOT TO BURN NEW YORK CITY. 
Colonel Martin Burke. 
For the Prosecution.—May 29. 
I knew Robert C. Kennedy, who was 
hanged in New York in March last I had 
charge of him and had him hung. I hold 
in my hand a confession made by him in 54 
THE CONSPIRACY TRIAL. 
my presence, a day or so before bis execu- 
tion. 
comfort, while we at the South are bearing 
all the hardships and privations. 
In retaliation for Sheridan’s atrocities in 
the Shenandoah Yalley, we desired to destroy 
property, not the lives of women and chil- 
dren, although that would, of course, have 
followed in its train. 
[The following was then read and put in evidence:] 
CONFESSION OF ROBERT C. KENNEDY. 
After my escape from Johnson’s Island, I 
went to Canada, where I met a number of 
Confederates. They asked me if I was will- 
ing to go on an expedition. I replied, “Yes, 
if it is in the service of my country.’’ They 
said, “It is all right,” but gave no intima- 
tion of its nature, nor did I ask for any. I 
was then sent to New York, where I staid 
some time. There were eight men in our 
party, of whom two fled to Canada. After 
we had been in New York three weeks, we 
were told that the object of the expedition 
was to retaliate on the North for the atroc- 
ities in the Shenandoah Valley. It was de- 
signed to set fire to the city on the night of 
the Presidential election; but the phospho- 
rus was not ready, and it was put off until 
the 25th of November. I was stopping at 
the Belmont House, but moved into Prince 
Street. I set fire to four places—in Barnum’s 
Museum, Lovejoy’s Hotel, Tammany Hotel, 
and the New England House. The others 
only started fires in the house where each 
was lodging, and then ran off. Had they all 
done as I did, we would have had thirty-two 
fires, and played a huge joke on the fire de- 
partment. I know that lamto be hung for 
setting fire to Barnum’s Museum, but that 
was only a joke. I had no idea of doing it. 
I had been drinking, and went in there with 
a friend, and, just to scare the people, I 
emptied a bottle of phosphorus on the floor. 
We knew it would n’t set fire to the wood, 
for we had tried it before, and at one time 
concluded to give the whole thing up. 
Done in the presence of 
Lieut-Col. MARTIN BURKE. 
And J. HOWARD, Jr. 
March 24, 10:30 P. M. 
INTRODUCTION OF PESTILENCE. 
Godfrey Joseph Hyams. 
For the Prosecution.—May 29. 
I am a native of London, England, but 
have lived South nine or ten years. During 
the past year, I have resided in Toronto, 
Canada. About the middle of December, 
1863, I made the acquaintance of Dr. Black- 
burn ; I was introduced to him by the Rev. 
Stewart Robinson, at the Queen’s Hotel, in 
Toronto. I knew him by sight previously, 
but before that had had no conversation 
with him. I knew that he was a Confeder- 
ate, and was working for the rebellion. Dr. 
Blackburn was then about to take South 
some men who had escaped from the Fed- 
eral service, and I asked to go with him. 
He asked me if I wanted to go South and 
serve the Confederacy. I said I went. He 
then told me to come up stairs; he wanted 
to speak to me. He took me up stairs to 
a private room, and pledged his word, as a 
Freemason, and offered his hand in friend- 
ship, that he would never deceive me; he said 
he wanted to confide to me an expedition. 
I told him I would not care if I did. He 
said 1 would make an independent fortune 
by it, at least $lOO,OOO, and get more honor 
and glory to my name than General Lee, 
and be of more assistance to the Confederate 
Government, than if I was to take one hun- 
dred thousand soldiers to reinforce General 
Lee. I pledged my word that 1 would go, 
if I could do any good He then told me 
he wanted me to take a certain quantity of 
clothing, consisting of shirts, coats, and un- 
derclothing into the States, and dispose of 
them by auction. I was to take them to 
Washington City, to Norfolk, and as far 
South as I could possibly go, where the Fed- 
eral Government held possession and had the 
most troops, and to sell them on a hot day 
or of a night; that it did not matter what 
money I got for the clothes;! had just to 
dispose of them in the best market, where 
there were most troops, and where they 
would be most effective, and then come 
away. 
There was no fiendishness about it. After 
setting fire to my four places, I walked the 
streets all night, and went to the Exchange 
Hotel early in the morning. We all met 
there that morning and the next night. My 
friend and I had rooms there, but we sat in 
the office nearly all the time, reading the 
paper’s, while we were watched by the de- 
tectives, of whom the hotel was full. I ex- 
pected to die then, and if 1 had, it would 
have been all right; but now it seems rather 
hard. I escaped to Canada, and was glad 
enough when I crossed the bridge in safety. 
I desired, however, to return to my com- 
mand, and started with my friend for the 
Confederacy, via Detroit. Just before enter- 
ing the city, he received an intimation that 
the detectives were on the lookout for us, 
and, giving me a signal, he jumped from the 
cars, I did n’t notice the signal, but kept on, 
and was arrested in the depot. 
I wish to say that killing women and 
children was the last thing thought of. We 
wanted to let the people of the North under- 
stand that there were two sides to this war, 
and that they can’t be rolling in wealth and 
He told me I should have $lOO,OOO for 
my services; $60,000 of it directly after I 
returned to Toronto; but he said that would INTRODUCTION OF PESTILENCE. 
55 
not be a circumstance to what I should get. 
He said I might make ten times $lOO,OOO. 
I was to stay in Toronto, and go on with 
iny legitimate business, until 1 heard from 
hnn. He told me to keep quiet, and if I 
•uoved anywhere, I was to inform Dr. Stuart 
Robinson where I went to, and he would 
telegraph for me, or write to me through 
nitn. Some time in the month of May, 1864, 
t went to my work, and worked on until the 
day of June, 1864; it was on a Satur- 
day night; I had been out to take a pair 
°f boots home to a customer of mine; and 
when I returned home, my wife had a letter 
for me from Dr. Blackburn, which Dr. Stu- 
art Robinson had left in passing there. I 
fead the letter, and went out to see Dr. Rob- 
jnson. I asked him what I was to do about 
•H he said he did not know any thing at all 
about it; that he did not want to furnish any 
111 cans to commit an overt act against the 
United States Government. He advised me 
to borrow from Mr. Preston, who keeps a 
tobacco manufactory in Toronto, enough 
•noney to take me to Montreal, which I did. 
I went down to Montreal, and there got 
•Honey from Mr. Slaughter, according to the 
directions contained in the letter. The letter 
instructed me to proceed from Montreal to 
Halifax to meet Dr. Blackburn; it was dated 
‘‘ Havana, May 10, 1864.” I went to Hal- 
•fox, to a gentleman by the name of Alexan- 
der H. Keith, jr., and remained under his 
eare until Dr. Blackburn arrived in the 
Alphia, on the 12th of July, 1864. 
Anen Dr. Blackburn arrived, he sent to the 
warmer’s Hotel, where I was staying, for me. 
* went to see him, and he told me that 
the goods were on board the steamer Alphia, 
and that the second officer on the steamer 
Would go with me and get the goods off, as 
they had been smuggled in from Bermuda, 
‘h. Hill, the second officer, told me to get 
an express wagon and take it down to Cu- 
Hard’s steamboat wharf; I did so, and there 
got eight trunks and a valise. I was directed 
to take them to my hotel, and put them in 
a private room. I put them in Mr. Doran’s 
private sitting -room. 
I then went around to Dr. Blackburn and i 
old him I had got the goods off the steamer, i 
■_ told me that the five trunks tied up with 1 
•'Opes were the ones for me to take, and asked I 
•He it I would take the valise into the States, t 
and send it by express, with an accompany- ( 
lng letter, as a donation to President Lin- i 
coin. I objected to taking it, and refused J 
0 do it. I then took three of the trunks ( 
a'id the valise around to his hotel. He was 
•hen staying at the Halifax Hotel. The 1 
runks had Spanish marks upon them, and c 
-/old me to scrape them off; and that Mr. t 
lid would go with me the next morning, | 
a|. Hiake arrangements with some captain i 
0 a vessel to take them. There were two £ 
•essels there running to Boston, and I was t 
0 make an arrangement with either of them 1 
to smuggle the trunks into Boston. The 
next morning I went down with Mr. Hill to 
the vessels. 
i Mr. Hill had a private conversation with 
[ Captain McGregor, the captain of the first 
t vessel to whom we applied, and he refused 
i to take the goods. We then went to see 
i Captain John O’Brien of the bark Halifax. 
, Hill told him that I had some presents in 
a my trunks, consisting of silks, satin dresses, 
- etc , that I wanted to take to my friends, 
r The Captain and Mr. Hill had a private 
1 conversation, and when the Captain came 
r out, he consented to take them. I was to 
- give him a twenty-dollar gold piece for 
[ smuggling them in. I put them on board 
- the vessel that day, and he stowed them 
t away. The vessel laid live days at Boston 
1 before he could get a chance to get them off, 
■ but he finally succeeded in getting them off 
; and expressed them to Philadelphia, where 
■ I received them, and brought them to Bal- 
timore. I then took out the goods, which 
were very much rumpled, smoothed them 
out, and arranged them, bought some new 
trunks, and repacked them, and brought 
■ them to this city. 
Dr. Blackburn, by way of caution, asked 
. me before leaving if I had had the yellow 
fever; and on my saying “No,” he said, 
“You must have a preventive against 
catching it. You must get some camphor 
and chew it, and get some strong cigars, the 
strongest you can get, and be sure to keep 
gloves on when handling the things.” He 
gave me some cigars that he said he had 
brought from Havana, which he said were 
strong enough for any thing. 
When I arrived in this city, I turned over 
five of the trunks to Messrs. W. L. Wall & 
Co., commission merchants in this city, and 
four to a man by the name of Myers from 
Boston, a sutler in Sigel’s or Weitzel’a 
division. He said he had some goods which 
he was going to take to Newbern, North 
Carolina, and I told him that I had a lot 
of goods that I wanted to sell, and to make 
the best market I could for them, I would 
turn them over to him on commission. I 
also told him I would shortly have more, 
and mentioned that I had disposed of some 
to Wall & Co., of this city. Dr. Blackburn 
told me, when I was making arrangements, 
that I should let the parties to whom I 
disposed ray goods know that I would have 
a big lot to sell, as it was in contemplation to 
get together about a million dollars’ worth 
of goods and dispose of them in this way. 
Dr. Blackburn stated that his object in 
having these goods disposed of in different 
cities, was to destroy the armies or anybody 
that they came in contact with. All these 
goods, he told me, had been carefully infected 
in Bermuda with yellow fever, small-pox, 
and other contagious diseases. The goods in 
the valise, which were intended for President 
Lincoln I understood him to say. had been 56 
THE CONSPIRACY TRIAL. 
infected both with yellow fever and small- 
pox. This valise I declined taking charge 
of, and turned it over to him at the Halifax 
Hotel, and I afterward heard that it had 
been sent to the President. 
balance.” He asked me to give him a 
receipt, which I did: “Received of Jacob 
Thompson he sum of $5O, on account of 
Dr. Blackburn.” That was about the 11th 
or 12th of August last. The next day I 
wrote to Messrs. Wall & Co., of Washington, 
desiring them to send me an account of the 
sales, and the balance due me. When 1 
received their answer, I took it up to show 
to Colonel Thompson. He then said he was 
perfectly satisfied I had done my part, and 
gave me a check for $5O on the Ontario 
Bank. I gave him a receipt: “Received 
from Jacob Thompson $lOO, in full, on 
account of Dr. Luke P. Blackburn.” 
On the five trunks that I turned over to 
W. L. Wall & Co., I got an advance of $lOO, 
Among these five trunks there was one that 
was always spoken of by Blackburn to me 
as “Big Ho. 2,” which he said 1 must be sure 
to have sold in Washington. 
On disposing of the trunks, I immediately 
left Washington, and went straight through 
until I got to Hamilton, Canada. In the 
waiting-room there I met Mr. Holcombe and 
Mr. Clement C. Clay. They both rose, shook 
hands with me, and congratulated me upon 
my safe return, and upon my making a for- 
tune. They told me I should be a gentleman 
for the future, instead of a working-man and 
a mechanic. They seemed perfectly to under- 
stand the business in which I had been 
engaged. Mr. Holcombe told me that Dr. 
Blackburn was at the Donegana Hotel in 
Montreal, and that I had better telegraph to 
him, stating that 1 had returned. 
As Dr. Blackburn had requested me to 
telegraph to him, as soon as I got into 
Canada, I did so; and the next night, be- 
tween 11 and 12 o’clock, Dr. Blackburn 
came up and knocked at the door of my house. 
1 was in bed at the time. I looked out of 
the window and saw Dr. Blackburn there. 
Said he, “Come down, Hyams, and open the 
door; you’re like all damned rascals who 
have been doing something wrong—you’re 
afraid the devil is after you.” He was in 
company with Bennett PI. Young. I came 
down and let him in. He asked me how I 
had disposed of the goods, and I told him. 
“ Well,” said he, “ that is all right, as long as 
big Ho. 2 went into Washington; it will kill 
them at sixty yards’ distance.” I then told 
the Doctor that every thing had gone wrong at 
my home in my absence; that I needed some 
funds; that my family needed money. He 
said he would go to Colonel Jacob Thompson 
and make arrangements for me to draw upon 
him for any amount of money I required. 
He then said that the British authorities had 
solicited his services in attending to the yellow 
fever that was then raging in Bermuda; that 
he was going on there; and that as soon as he 
came back he would see me. I went up to 
Jacob Thompson the next morning, and 
told him what Dr. Blackburn had said. He 
said, “Yes; Dr. Blackburn had been there, 
and had made arrangements for me to draw 
$lOO whenever it was shown that I had made 
disposition of the goods according to his 
direction.” I told him I needed money; that 
I had been so long away from home that 
every thing I had was gone, and I wanted 
money to pay my rent, etc. He said, “I will 
give you $5O now, but it is against Dr. 
Blackburn’s request; when you show me that 
you have sold the goods, 1 will give you the 
I told Jacob Thompson of the large sum 
which Dr. Blackburn had promised me for 
my services, and that he and Mr. Holcombe 
had both told me that the Confederate Gov- 
ernment had appropriated $200,000 for the 
purpose of carrying it out; but he would not 
pay me any thing more. 
When Dr. Blackburn returned from Ber- 
muda, I wrote to him at Montreal, and told 
him I wanted some money, and that he 
ought to send me some; but he made no reply 
to my letter. I was then sent down to Mon- 
treal with a commission for Bennett H. 
Young, to be used in his defense in the St. 
Albans raid case. I there met Dr. Black- 
burn. He said I had written some hard let- 
ters to him, abusing him, and that he had no 
money to give me. He then got into his car- 
riage at the door, and rode off to some races, I 
think, and never gave me any more satisfac- 
tion. As I wanted money before leaving for the 
States, I went to the Clifton House, Hiagara. 
Dr. Blackburn told me he had no money 
with him then, but that he would go to Mr. 
Holcombe and get some, as he had Confed- 
erate funds with him. Blackburn said that 
when I returned he would get the money for 
the expedition, from either Plolcombe or 
Phompson, it did not matter which. From 
this, and from Holcombe and Clay both 
shaking hands with me, and congratulating 
me at Hamilton upon my safe return, I 
thought, of course, they knew all about it. 
I do not know that Dr. Stuart Robinson 
knew of the business in which I was engaged, 
but he took good care of me while I was 
at Toronto, in the fall, and until Dr. 
Blackburn wrote for me in the spring; and 
when he gave me Dr. Blackburn’s letter, he 
told me to borrow the money from Mr. 
Preston to take me to Montreal, as he said 
he did not want to commit an overt act 
against the United States Government him- 
self. Mr. Preston lent me $lO to go to 
Montreal. On arriving at that place, accord- 
ing to the directions in Dr. Blackburn’s 
letter, I went to Mr. Slaughter to get the 
means to take me to Halifax. Mr. Slaughter 
was short of funds, and had only $25 that he 
could give me. He said that I had better go 
to Mr. Holcombe, who was staying at the 
Donegana Hotel, and he would give me the STARVATION OF UNION PRISONERS. 
57 
°alance. I went to the hotel and sent up my 
'daine. Mr. Holcombe had heard of my 
name, and he sent for me to come up. I 
tohi him that I wanted some money to take 
1116 to Halifax; he asked me how much I 
"'anted; I told him as much as would make 
IIP $4O; he said, “You had better take $50;” 
’"t as 1 did not want that much, I only took 
enough to make up $4O. When I came to 
*' ashington to dispose of the goods, which 
"Tas on the sth of August, 1864, I put up at 
the National Hotel; registered my name as 
W, Harris, under which name I did 
business with Wall & Co. 
Sams on Account of J. W. Haeeis, Esq 
96 shirts, purchased by & Seidel... 
,$134- 40 
9 coats, purchased by Walker 
4 60 
3 trunks, purchased by Wm. Smith 
. 1 60 
2 trunks, purchased by Hand 
. 2 60 
$142 90 
April 6. Cash 
...$100 no 
Sept. 5. Com., duty, and war tax 
“ Cash, per balance 
.... 28 61 
$142 90 $142 90 
The shirts I bought were tossed into the 
trunks promiscuously, and I supposed the 
packing had been done in a hurr}". When 
I first opened the trunks I was in doubt 
about the money I had advanced being a 
safe investment, but a close inspection of the 
clothing showed it to be new, and that it had 
not been worn. 
W. L. Wall. 
For the Prosecution.—May 29. 
. I am an auction and commission merchant 
ln this city. In August last, while I was out 
°f'town, a person named Harris called at my 
store, and told my book-keeper that he had 
eor»e shirts that he wanted to sell at auction, 
a"d asked him if he would sell them the next 
*aorning. The clerk told him he would. 
Harrig tpen aspe(j for an advance of $lOO. 
money was given him, and the shirts 
"'ere sold the next morning. 
STARVATION OF UNION .PRISONERS, 
Salome Marsh. 
I entered the United States service in 1861 
as Lieutenant of the Fifth Maryland Volun- 
teer Infantry, and served until the 31st of 
August, 1864. At the time I quit the service 
I held the rank of Lieutenant-Colonel. 
For the Prosecution.—May 25. 
A. Beenner. 
While Major, I was a prisoner of war, 
confined at Libby Prison, from the 15th of 
June, 1863, to the 21st of March, 1864. 
I was captured near Winchester, on the 
Martinsburg road, on the 15th of June. I 
was then in General Milroy’s command, and 
at the time of my capture 1 was in command 
of my regiment. 1 was captured by General 
Ewell’s corps, of the rebel army. I was 
taken to Winchester, and, on account of ill 
health, was kept there two weeks in hospital. 
I was somewhat sick at the time of my cap- 
ture, from excessive duty, exposure, etc. At 
the expiration of two weeks my health some- 
what improved. I was then compelled to 
march to Staunton in a feeble condition; and 
on the road was treated very kindly by the 
officer in charge of the squad. I arrived in 
Libby Prison, and was incarcerated there. 
The rations we received there when I first 
arrived were small, but such as they gave us 
at first were tolerably fair. There was about 
one loaf of bread allowed to two men—half 
a loaf per man—and, I judge, about four 
ounces of meat, and about three spoonfuls 
of rice. That constituted the ration that we 
received at first. After I had been there 
about four months, the meat was stopped, 
and we only received it occasionally. Then 
they took the bread from us, and gave us 
instead what they called corn-bread, but it 
was of a very coarse character, I have 
known the officers there to be without meat 
for two or three weeks at a time, and receive 
nothing but the miserable corn bread that 
they gave us. Occasionally they would dis- 
tribute some few potatoes, but of the very 
worst character, rotten, etc., such as the men 
During last summer I was a clerk in the 
service of Mr. Wall, of this city. In the 
nionth of August a man named J. W. Harris 
Carne to the store late one evening. I sup- 
posed him to be a sutler returning home, 
ie said he had some twelve dozen shirts and 
some coats, which he asked me to sell. I 
advanced him $lOO on them, and sold them 
tr 6 peX*” morn'n§- They were packed in five 
Gn the Ist of September he wrote from 
°ronto, for an account of sales and the bal- 
ance of the money, as follows; 
Messrs. Wall & Co., Auction and Commission 
Merchants: 
Gentlemen: On Friday, the sth of August, 
agt month, I left in your care five trunks, 
obtaining one hundred and fifty fancy woolen 
lu‘ts and twenty-five coats, to be sold at auc- 
’°u on the next morning, and business call- 
Jl.? me to Toronto, I have not been able to 
f°l/° le since. I beg most respect- 
U, 1 that you will send me an account of 
c‘l es, and a check on New York for the pro- 
. 8- I have written before, but I have re- 
mved no answer. I shall come over in Oc- 
er, about the 10th, with some five or six 
10usand pairs of boots and shoes. 
Yours most respectfully, 
n J. W. HARRIS, 
'are °f Post-office Box No. 126, Toronto, G. W. 
p•? serß bim the following account of the 
esj and the balance of the money: 
For the Prosecution.—May 29. 58 
THE CONSPIRACY TRIAL, 
could hardly eat. This continued for some 
time. The officers held a meeting there in 
regard to the treatment we were receiving, 
and a letter was sent to General Quid, the 
rebel Commissioner of Exchange, signed by 
Colonel Streight, I think, who was chairman 
of the meeting at the time, complaining of 
our treatment, and asking that we should re- 
ceive better treatment. General Quid sent a 
written reply, stating that our treatment was 
good enough, better than their prisoners were 
receiving in our prisons, at Fort Delaware 
and other places. 
When I had been there some five months, I 
was taken sick with the dropsy, for the want 
of proper nourishment, proper diet, etc., and 
was quite ill, and was sent to the hospital. 
I remained there some few weeks. During 
my stay in the hospital I saw some enlisted 
men brought in from Belle Isle. The con- 
dition of these men was horrible in the ex- 
treme. lam satisfied from their appearance 
that they were in a starving condition. Out 
of a squad of forty that were brought in, at 
least from eight to twelve died the first night 
they were brought there. I asked the As- 
sistant Surgeon in charge of the officers’ de- 
partment of the hospital—l forget his name; 
he was very kind to us, though, and very 
much of a gentleman—wbat was the matter 
with these men. He stated that their condi- 
tion was owing to the want of proper treat- 
ment; that they did not receive the nourish- 
ment that they ought to have for such men. 
I suppose I had been in that hospital about 
two weeks when two of the officers made 
their escape. Major Turner, the keeper of 
Libby Prison—who was a very passionate 
man, and very insulting to the officers, al- 
ways insulting in his remarks whenever he 
had occasion to speak to any of them, and 
very ungentlemanly—took it into his head to 
remove us from that place, and take us back 
to Libby Prison. He had a room washed 
out for us in Libby, and removed us to that 
room while it was in a wet condition, al- 
though some of the officers who were in the 
hospital were in a dying state. We were 
placed in that wet room and compelled to 
remain there twenty-four hours, without cot. 
bed, or any thing else to lie upon, and with- 
out a morsel to eat, as a punishment, be- 
cause those two men had escaped. The 
treatment generally to prisoners was of a verv 
harsh character. 
seeing those men that were brought to the 
hospital while 1 was there. They were in an 
emaciated condition, and their whole appear- 
ance indicated that they were suffering for 
want of food, and were in a state of starva- 
tion. I noticed that, though in a tottering 
and feeble condition, they were eager to ob- 
tain something to eat, and would grasp at 
any thing that was offered them in the shape 
of victuals; and 1 am satisfied that the pris- 
oners brought to the hospital died simply of 
neglect, and the want of proper food—of 
starvation. 
The only reason that I could hear from the 
rebel authorities for their treatment of Union 
prisoners, was that it was a matter of retal- 
iation ; they said that their prisoners were 
treated in a worse manner than we were. 
As to the quantity of food given us, a man 
might possibly live on what they gave us at 
first, although it was not near what we 
would call a full ration. Subsequently, the 
quantity given could not possibly support life 
for any length of time. The corn bread 
which they gave us was corn-meal and bran; 
it was very coarse, baked in a rough condi- 
dition, and very often we had to live on that 
and water alone for days at a time. 
Frederick Memmeet. 
For the Prosecution.—May 25. 
I have held the rank of Captain in the 
United States service for two years and ten 
months. On the 15th of June, 1863, I was 
taken prisoner, and was exchanged on the 
Ist of May, 1864. I was confined in the Libby 
Prison, and the treatment we received there 
was simply awful. 
When we went there first, we had half a 
loaf of wheat-bread, between three and four 
ounces of meat, and about two tablespoon- 
fuls of rice. That was continued for about 
give the following extract from a letter received by us 
during the progress of this trial: 
“Baltimore, June 21, 1865. 
* * * “When South Carolina took the fatal step of 
secession, I was lecturing in the University of Virginia, 
having an engagement which would have paid me $5OO for 
two weeks more work. 1 cast in my lot with the Southern 
Confederacy, and with that was wrecked on the ‘Lee’ 
shore. 
“I was taken prisoner on the 25th of January, 1864, and 
held as a prisoner of war until the sth of June-, 1805, when 
I was released, and took the oath of allegiance to the 
United States. Fourteen months of my imprisonment were 
spent as superintendent of a prisoners’ school at Point 
Lookout. This school had a library of 3,000 volumes, 
mostly school books. There were 1,200 pupils and 50 teach- 
ers. We taught many poor fellows to read and write who 
had never understood such mysteries before. 
Colonel Powell spoke to Turner in regard 
to the treatment he had inflicted upon those 
men. Colonel Powell said he thought it was 
wrong to punish a parcel of sick and dying 
men for the sake of two who had attempted 
to escape. His reply was, as near, as I can 
recollect, “It is too damned good for you.’’* 
The only opportunity I had of knowing 
the treatment enlisted men received, was from 
“ But we did not confine ourselves to the lower branches. 
We taught all the English branches, Latin, Greek, French, 
German, and mathematics through trigonometry. 
“ I was appointed agent for the distribution of supplies 
furnished by the C. S. for the prisoners at Point Lookout, 
and as such distributed over $200,000 worth of goods. Af- 
terward I was promoted to the high position of ‘ Mayor 
of the City of Canvas.’ and was charged with the duty of 
maintaining law and order among my 22,000 comrades. 
Thus I have passed sixteen long months a prisoner ” 
• In contrast with the above, and to show how Confed- 
erate prisoners were treated in “Northern” prisons, wo STARVATION OF UNION PRISONERS. 
59 
four months; after that the treatment was 
ery bad. We had a meeting, at which 
Colonel Streight presided, and of which Col- 
onel Irvine, who was afterward our Assist 
snt Exchange Commissioner, was Secretary. 
”1® sent a communication to Judge Quid, 
he sent to the rebel Secretary of War, 
keddon. We received for answer that they 
oould do nothing for us; that it was good 
enough for Yankees; that their prisoners 
treated just as badly as we were; and 
that they could not help us in any way. We 
then sent another communication, asking 
them to give us our money, (which they had 
away from us when we came to the 
, bby,) that we might have something to 
buy food with, but they would not do that, 
t had my money hid under my shoulder- 
-Btraps, and kept it there; but the others had 
gtven theirs up, and it was never returned. 
We often had no meat for twenty days. 
After I had been there four months, they 
topped the meat for five or six days, and 
gave us bread and water, a little beans and 
fIOB- At this time we got half a loaf of corn- 
bread, or abdiit ten ounces, I guess. When 
* left Libby, we had had nothing but corn- 
bread and water for twenty days. The pris- 
oners were very much reduced and emaciated 
by this treatment, and a great many of them 
bad the scurvy. 
The bearing of the keepers of the prison 
.'Vas rough and insulting, and they abused us 
n] every way they could. 1 went to the hos- 
pital two or three times when our Lieutenant- 
j-'Olonel died, and the prisoners who were 
brought in looked awful; I can not find any 
"Tord to describe how they looked. Their 
c°ndition was the result of starvation. 
After the battle of Chickamauga, and the 
Wounded prisoners from the West were brought 
ln> I saw some fifteen or sixteen amputated 
oases placed on a cart, and a rope tied around 
lem> so that they could not fall off; and they 
Were carried in that way from the depot to 
le hospital, although right opposite Libby, 
a°t more than one thousand yards off", I 
guess, there were twenty or twenty-five am- 
ulances not in use. 
the time I left Libby, I had the scurvy 
j° badly that I could hardly walk, and I 
lave been sick pretty much ever since; and, 
lough I have now recovered, I still feel it, 
not the strength I used to have. 
When Turner, the keeper of the prison, 
ame up, which was very seldom, we spoke 
o him about ameliorating the condition of 
le prisoners. We also spoke to a committee 
tj°m their Senate that was appointed to go 
Hough the Libby and examine our condi- 
j°u > they reported favorably, although we 
lowed them the bread we got, and told them 
e^Jece*ved no meat, and little of any thing 
\y. 'Vent to Turner once and told him I 
ar>ted to get some medicine; that I was get- 
‘g worse, and could hardly walk; and that 
the doctor would not give me any. Turner 
said he had not got any. His words were, 
“ You can not have any; it don’t make any 
difference to me. What the hell have Ito do 
with it?” When I told him that I had 
nothing to eat, and no money to buy any 
thing, he said, “That’s good enough for 
Yankees.” 
We once remonstrated with Dick Turner, 
who was an inspector there, and told him 
that we did not get any thing to eat, and how 
things were. He said, “That’s good enough 
for you. Our prisoners are just as badly 
treated by your fellows as you are here, and 
you have no business to come down here. I 
wish to kill you off. If I had the command, 
I would hang every God damned one of 
you.” 
Benjamin Sweerer. 
I am Color-sergeant of the Ninth Mary- 
land Regiment. I was captui’ed on the 18th 
of October, 1863, and was held prisoner at 
Belle Island for over five months, and seven 
days at Scott’s Building. There were about 
thirteen thousand prisoners, about half of 
whom were provided with shelter; the rest 
were just on the naked sands of the island. 
I lay there two months without ever putting 
my head under shelter, although it was in 
the winter time. The treatment of the pris- 
oners was brutal, and we had not half enough 
to live on. There were twenty-five pounds 
of meat, the biggest part of which was bone, 
served out for a hundred men, and corn-bread 
with the husks ground up in it. Not having 
fuel enough to warm us, and not provisions 
enough to live on, I saw the men freezing to 
death on the island. I saw them starving to 
death; and, after they were dead, I saw them 
lying, for eight or nine days, outside of the 
intrenchments, where we were kept, and the 
hogs eating them. We were refused permis- 
sion to bury them. I asked myself, as a 
favor, to be allowed to bury our prisoners, 
and was refused permission. I spoke to 
Lieutenant Bossieux, who had charge of the 
island, about the treatment of our men ; and 
he told me he had nothing to do with it; that 
it was in accordance with the orders he had 
received from Major Turner, the keeper of 
the rebel prison. The deaths of the pris- 
oners were caused mostly by starvation. I 
helped to carry out from ten to fifteen and 
twenty a day. 
A great many of the prisoners, to my 
knowledge, volunteered to work at shoe-mak- 
ing and building a furnace on the island, in 
order to support themselves. 
When I came home I weighed one hundred 
and twenty-three pounds; my ordinary weight 
in health is one hundred and seventy dr one 
hundred and eighty. Ido not think I could 
have lasted a month longer there; I was 
pretty nearly gone when I left. 
For the Prosecution.—May 25. 60 
THE CONSPIRACY TRIAL. 
William Ball. 
do not know, but they did not seem to care. 
A committee from the prisoners was sent to 
Captain Wirz, who was in command of the 
interior of the prison, in respect to this, and 
he said he did not care a damn whether the 
water ran through the garbage or not, or 
whether we got any or none. 
When we first went there, there were on an 
average as many as six or eight of the prison- 
ers shot every day. If a man would stick 
his nose half a foot over the line, he would 
be shot. It was said the rebel soldiers were 
rewarded with thirty days’ furlough for shoot- 
ing a Yankee; and I never heard of their 
wantonness in shooting our soldiers being re- 
buked by the rebel authorities. 
The treatment of the prisoners in the hos- 
pital was very poor. All they would give 
them was pitch-pine pills; pitch-pine pills for 
diarrhea, and pitch-pine pills for the scurvy, 
the head-ache, or anything else. These pills 
were made out of the pitch that runs out of the 
trees there, and a little vinegar. They got no 
medicine. Medicines, it was said, were sent 
there by the Confederate Government, but 
they were sold by the doctor in charge for 
greenbacks. 
The money that was taken from the prison- 
ers was never returned to them—not a cent of 
it. When I was captured, they took my shoes 
off, and I walked bare-foot on the pike from 
near Waterford to Gordonsville, and then they 
took my money and clothes. I had nothing 
but a pair of drawers and shirt for nine 
months in Andersonville. I lay there for 
this whole nine months in the open field 
without a bit of shelter; and there were thou- 
sands in the same fix. The men would die 
there in the morning, and by night nobody 
could go within fifty feet of them. They had 
to be put into the wagons with long wooden 
pitch-forks, when they were carried off and 
put into the trenches. 
Colonel Gibbs was in command of the post, 
and Captain Wirz was in command of the 
interior of the prison. Clothing that was 
sent to Andersonville by our Government, 
consisting of blankets, pants, socks, and other 
things, Wirz took himself, and put into his 
own house, and sold. 
Up to March 24th, when I left Anderson- 
ville, 16,725 of the prisoners had died; that 
was the number 1 took from the books myself, 
and there were at that time about 1,500 not 
able to be moved. It was the rations they got 
that brought on their sickness, and when they 
got sick they could not eat the stuff served 
out, and, of course, they starved. As to 
medical treatment, there was nothing at all 
of any benefit. 
I enlisted in the sendee of the United 
States in April, 1862, and was captured by 
the enemy on the 7th of May, 1864. I was 
a prisoner of war at Andersonville, Georgia, 
eleven months and twenty-three dajrs. At 
the time I was there, there were about thirty- 
two thousand prisoners. The treatment of 
the prisoners was poor indeed; they were 
turned into a swamp, with no shelter what- 
ever, and were stripped of all their clothing, 
blankets, hats, caps, shoes, money, and what- 
ever they had. Where we were confined 
there was no shelter and no trees, although 
there were plenty of pine woods about there. 
The encampment was nothing but an open 
swamp, with a hill on each side. 
Every morning, about nine or ten o’clock, 
they would bring a wagon on the ground, with 
corn-meal and some bacon. Of the corn-meal, 
which was ground up, cobs and all, and was full 
of stones and one thing and another, they gave 
each man half a pint, and two ounces of ba- 
con, which was all alive, rancid, and rotten, 
and a half spoonful of salt. This was to 
last us twenty-four hours. Once in a while 
we would get hold of a good piece of bacon, 
but that was not often. The provisions served 
out to us were of such a character that no 
man would eat them unless he was in a 
starving condition; and from the amount and 
character of the food served out, it would not 
be possible to sustain human life for any 
length of time. 
The effect of this treatment upon the health 
of the prisoners was very bad; it killed them 
off rapidly. The deaths averaged from sixty 
to a hundred a day; and one day one hundred 
and thirty-three died. These deaths were 
caused principally by starvation. There was 
some remonstrance addressed to the rebel 
authorities by the prisoners in regard to their 
treatment; but they said they did the best 
they could for them, and they did not care a 
damn whether the Yankees died or not. 
For the Prosecution.—May 25. 
I remember Howell Cobb visiting Ander- 
sonville some time in February. He is the 
man who was formerly the Secretary of the 
Treasury. He made some very bitter re- 
marks, in a speech to the rebels, in reference 
to our prisoners. As to our treatment, he 
said that was the best that could be done for 
us; but if the authorities liked to do better 
they probably could, but they did not seem to 
care much about it. I remember he made 
some reference in his speech to a plan on 
hand to burn and plunder Northern cities. 
The heat in the open sun was very intense, 
and the water was very poor indeed. You 
could get water by digging down half a foot. 
There was a place a little way above into 
which they threw all the dirt and garbage 
that came from Andersonville, and the water 
we were obliged to drink ran through all this 
filth. Whether this was designed or not, I 
Charles Sweeney. 
For the Prosecution.—May 26 
My present home is in the State of New 
York. I was a private in the United States 
service, and was captured by the rebels twice. STARVATION OF UNION PRISONERS. 
61 
Hie first time I was taken prisoner, I was con- 
fined two months and ten days at Libby; the 
second time I was a prisoner fifteen months, 
of which I spent two months in Belle Isle hos- 
pital, near Richmond; about six months at 
Andersonville, in Georgia; and the rest of the 
6me at Savannah. 
of March. He preached up to the guard the 
way the war was going on. The guards 
around there were only old men and boys 
that never knew any thing. He said to them, 
“You see this big graveyard; all those in the 
stockade will be in the graveyard before long.” 
He expected we were all going to be starved 
to death, if we were held long enough. He 
said they would all perish before they would 
come back to the Union again. He also said 
they would hang Old Abe if they caught 
him, as he supposed Old Abe would hang 
him if he caught him. 
At Belle Isle I had less than half a pound 
°f bread a day, an,d once in a while got a lit- 
tle rice soup. For about six weeks Ido not 
Relieve I had a piece of meat as big as my two 
fingers. When I went to the hospital, the 
bread was a little better, but there was very 
Httle meat. They pretty nearly starved me, 
bor aboiit four or five months after I got to 
Andersonville they gave me a pretty good 
ration of the kind it was. I had all I wanted 
to eat of corn-meal, but the bacon was pretty 
strong. After August they began to cut 
down our ration, and our allowance was very 
short. 
James Young. 
For the Prosecution.—May 26. 
I was a prisoner of war nine months and 
two days, I was confined in Andersonville, 
Ga., and Charleston and Florence, S. C. At 
Andersonville the greater portion of the 
rations were cooked, but in a very inferior 
way—corn-bread and mush, boiled rice and 
boiled bacon. The ration of bread for the 
day was about four inches long, three wide, 
and two thick; with that we got about two or 
three ounces of boiled pork. The effect of 
this stinted diet upon the health of the men 
was very injurious; they were wasting and 
dying all the time. The number of deaths 
for August, I understood, was three thousand 
and forty-four. We were exposed to the sun, 
without any shelter, though there was wood- 
land all around us. The stockade, where we 
were was chopped out of it but we were all 
exposed. The heat during the day was ex- 
treme, but the nights were cool. 
The water was very poor; it was infected 
by the garbage and filth through which it 
ran. 
Old Captain Wirz told the guard that they 
must shoot every Yankee caught with his 
band or his head over the dead-line; and 
that for every man shot the guard would, 
get a furlough of thirty days; so they 
used to kill our men as though they were 
brutes. 
I had a brother at Andersonville, who was 
very sick and dying. For about eight days, 
to my knowledge, he had nothing to eat. He 
Could not eat their corn-meal, and what they 
gave him, for it was not fit for a dog to eat. 
h had a little money that I used to gather 
about the camp, and I bought a few biscuits 
|br him, but 1 could not get enough to feed 
him on long, and he lay in his tent and 
starved. I went to the doctor and told him 
my brother was dying, and asked him to see 
him; but he said, “No, I can not do it.” 
Before he died, my brother said, “Keep good 
courage; stick to your Government; never 
h6<e an oath to that Government.” I told 
him I would, and I have done it. 
I made my escape; but after I got over 
he stockade, they caught me, took me back, 
and gagged me for six hours. It was very 
c°ld, and when I got up I could hardly walk, 
and I was Bicjj jn iloSpi(al; but in the 
month of June I was able to be up, and I 
bought I would try again to make my es- 
cape and get to Stoneman, who was making 
a raid, I heard. I got out of the hospital, 
and traveled that night in the swamps and 
lnud, clear up to my neck, and made four 
miles. The pickets, however, caught me, 
nd took me back to Captain Winder. He 
old them to put me in the stockade, with a 
}all and chain; and at Wirz’s head-quarters 
Was put in the stockade all day in the hot 
with my arms stretched out. The sun 
meted me so much that the next day I was 
j . > and for six days I could neither eat nor 
1 unk any thing. It is God only who has let 
me live this long. * 
General Cobb came there on the 4th day 
At Florence I heard some hard threats 
made against the “Yanks,” as they called 
us. Our cavalry were raiding, destroying 
their country, they said, and they would 
starve us, they said, in retaliation. We re- 
ceived worse treatment at Florence than at 
Andersonville, and got less rations. The 
amount of food was not sufficient to sustain 
life for any long period of time. Men that 
were destitute of any little means of their 
own, or had no watches or trinkets that they 
could sell, kept running down till they died. 
I had some money, and I bought some extra 
provisions, and kept my health tolerably 
good. 
At Charleston I was imprisoned about three 
weeks. We were treated very well there, 
with the exception of the shooting of our 
men inside the inclosure by the guards; that 
occurred often, and seemed to be encouraged 
by the officers. I never knew of a man being- 
rebuked or punished for such shooting. At 
Andersonville the general report in camp was 
that the rebel authorities offered their men a 
thirty days’ furlough for every “Yank” they 
would shoot inside of the stockade. 62 
THE CONSPIRACY TRIAL. 
Lieutenant J. L. Ripple. 
panied and had charge of ns that the torpedo 
was buried there. It was always spoken of 
as the torpedo. The place that had been dug 
out was about six feet in diameter. The 
ground was a little raised, as if the dirt had 
been dug out and put back again. It was 
directly under the center of the prison. Rebel 
officers and others told us that the prison had 
been mined on account of Colonel Dahl- 
gren’s raid, and that if we succeeded in get- 
ting into the city, they would blow up the 
prisoners rather than liberate them. 
For the Prosecution.—June 10. 
I entered the United States service, in the 
Thirty-Ninth Illinois, as a private, on the 
28th of October, 1861. I was a prisoner of 
war for six months at Andersonville, Ga. The 
character of the food furnished to the pris- 
oners was pom*, and the quantity very small. 
We got only half a pint of corn-meal daily, 
and from two to four ounces of meat. The 
result was the prisoners died in large num- 
bers, occasioned, without doubt, in many 
cases, by starvation and the horrible treat- 
ment they received. 
I heard rebel officers approve of the kind 
of treatment we received; they said it was 
good enough for us. 1 remember Captain 
Wirz saying, on the Ist of July, “It is good 
enough for you; 1 wish you’d all die.” The 
location of the camp at Andersonville, and 
the arrangements to which the prisoners were 
subjected, seemed to show that the Confed- 
erate authorities intended the infliction of all 
possible suffering, short of putting the men 
to death. At Millen it was somewhat better. 
Erastus W. Ross. 
For the Prosecution.—May 25 
I was in the service of the rebel Govern- 
ment; I was conscripted and detailed as a 
clerk at the Libby Prison, and never served 
in the army. 
In March, 1864, General Kilpatrick was 
making a raid in the direction of Richmond. 
About that time the prison was mined. I 
saw the place where I was told the powder 
was buried under the prison; it was in the 
middle of the building. The powder was put 
there secretly in the night; 1 never saw it, 
but I saw the fuse; it was kept in the office 
safe. I was away at my uncle’s the night 
the powder was placed there, and was told of 
it the next morning by one of the colored 
men at the prison. There were two sentinels 
near the place to prevent any person’s 
approaching it. The excavation made was 
about the size of a barrel-head, and the earth 
was thrown up loosely over it. Major Tur- 
ner, the commandant of the prison, had 
charge of the fuse. He told me that the 
powder was there, and that the fuse was to 
set it off; that it was put there for the secu- 
rity of the prisoners, and if the army got in, 
it was to be set off for the purpose of blowing 
up the prison and the prisoners. 
The powder was secretly taken out in 
May, and the whole building was then shut 
up. The prisoners had all been sent to 
Macon, Georgia. 
I suppose the powder was placed there by 
the authority of General Winder, or the 
Secretary of War. Major Turner said he 
was acting under the authority of the rebel 
War Department, though I never saw any 
written orders about it. 
A pack of blood-hounds was kept at An- 
dersonville, and I heard some of the men 
who went after them say that some of the 
prisoners who had escaped were pursued and 
torn by the blood-hounds. 
While at Andersonville I knew Quarter- 
master Hume. I heard him say, previous to 
the election, that if Mr. Lincoln were re- 
elected. he would not live to be inaugurated. 
He said that a party North would attend to 
him, and to Mr. Seward also. I also heard a 
lieutenant, who was in charge of the guard, 
say something to the same effect. 
MINING OF LIBBY PRISON. 
Lieutenant Reuben Bartley. 
I have been in the United States service 
since 1862, and since August the 3d have been 
in the signal corps. I was confined in Libby 
Prison from the 3d of March to the 16th of 
July, 1864, and at other prisons until the 10th 
of December, 1864. 
On being taken to Libby, we were informed, 
when taken into the hall, that the place had 
been mined. The next morning we were taken 
into a dungeon in the cellar part of the build- 
ing. In going to the door of the dungeon, 
we had to go round a place where there was 
fresh dirt in the center of the cellar. The 
guard would allow no person to pass over it 
or near it. On inquiring why, we were told 
that that was the place where the torpedo 
had been placed. It remained there while 
we were in the dungeon, and for some time 
after we were taken up stairs. 
I learned also from the officers who accom- 
For the Prosecution.—May 22. 
For the Prosecution.—May 25. 
John Latouche. 
1 was First Lieutenant in Company B, 
Twenty-fifth Virginia Battalion, C. S. A. I 
was detailed to post duty in Richmond, to 
regulate the details of the guards of the 
military prisons there, and in March, 1864, 
I was on duty at Libby Prison. Major 
Turner, the keeper of the prison, told me he 
was going to see General Winder about the 
guard. On his return he told me that General 
Winder himself had been to see the Secretary THE BEN. WOOD DRAFT. 
63 
°f War, and that they were going to put 
powder under the prison. In the evening of 
the same day, the powder was brought. 
There were two kegs, of about twenty-five 
pounds each, and a box which contained, I 
suppose, about as much as the two kegs. A 
hole was dug in the center of the middle 
basement, and the powder was put down 
there. The box, when put in, just came 
level with the ground, and the place was 
covered over with gravel. I did not see any 
fuse to it then. I placed a sentry over this 
powder, so that no accident might occur; 
a'id the next day Major Turner, who had 
charge of the fuse, showed it to us in his 
office; he showed it to everybody there. It 
a long fuse, made of gutta-percha; such 
a one as I had never seen before. 
In May, I think it was, Major Turner 
'vent South, and all the prisoners were sent 
out of the Libby building proper to the 
South; and General Winder sent a note 
flown to the office, with directions to take up 
Ike powder as privately or as secretly as 
Possible; I forget the exact word. The note 
Was delivered into my hands for the in- 
spector of the prison, to whom I either gave 
or sent it. I afterward heard Major Turner 
®ay that, in the event of the raiders coming 
mto Richmond, he would have blown up the 
place. I understood him to say that those 
Were his orders. 
[The requisition, having been read, was put in evidence.] 
The “$10,000” underneath the $25,000, 
is the purchase money in gold of $25,000 
worth of United States funds. 
At Mr. Thompson’s request, the name of 
Benjamin Wood was erased, (the pen just 
being struck through it,) and my name, as 
an officer of the bank, written immediately 
beneath it, that the draft might be negotiable 
without putting any other name to it. 
I have in my hand, it having been ob- 
tained from the cashier of the City Bank in 
New York, the original draft for the $25,000, 
for which that requisition was made by Mr. 
Thompson, in the name of Benjamin Wood. 
It reads: 
$25,000. THE ONTARIO BANK. No. 4,329. 
At three days’ sight, please pay to the order of D. S. 
Eastwood, in current funds, twenty-five thousand dollars, 
value received, and charge the same to account of this 
blanch. 
(U. S. Inter. Rev. )To the Cashier, H.T. Stakes, 
i 2 cts. > City Bank, Manager 
I Bank Check. I New York. 
Montreal, 10th Auoust, 1864. 
Pay to the Hon. Benj. Wood, Esq., 
or Order. 
D. S. Eastwood, 
B. Wood. 
INDORSED; 
[The draft, having been read, was put in evidence.] 
I found this draft in the hands of the 
payee of the City Bank, in New York, and 
1 understand from the cashier it has been 
paid. 
Mr. Thompson was frequently in the 
habit of drawing moneys in the name of an 
officer of the bank, so as to conceal the 
person for whom it was really intended. A 
good deal of Thompson’s exchange was 
drawn in that way, so that there is no indi- 
cation, except from the bank or the locality 
on which the bill was drawn, to show where 
use was to be made of the funds. Large 
amounts were drawn for, at his instance, on 
the banks of New York, but we were not 
acquainted with the use they were put to. 
The Benjamin Wood, to whom the draft 
was made payable, is, I believe, the member 
of Congress, and the owner of the New York 
News. 
THE BEN. WOOD DRAFT. 
Daniel S. Eastwood. 
For the Prosecution.—June 16. 
I am assistant manager of the Montreal 
branch of the Ontario Bank, Canada. I 
'vas officially acquainted with Jacob Thomp- 
son, formerly of Mississippi, who has for 
some time been sojourning in Canada, and 
have knowledge of his account with our 
bank, a copy of which was presented to this 
Commission by Mr. Campbell, our assistant 
teller. 
The moneys to Mr. Thompson’s credit 
accrued from the negotiation of bills of 
exchange, drawn by the Secretary of the 
Treasury of the so-called Confederate States, 
on Frazier, Trenholm & Co., of Liverpool, 
■they were understood to be the financial 
agents of the Confederate States at Liverpool, 
ai>d the face of the bills, I believe, bore that 
inscription. Among the dispositions made 
Rom that fund, by Jacob Thompson, was 
$-5,000, paid in accordance with the follow- 
lng requisition; 
Montreal, Aug. 10th, 18G4. 
Wanted from the Ontario Bank, 3 days sight. 
On N. York, 
Favor Benjamin Wood, Esq.. 
$25,000 
For current funds. 
t, 10,000 
Dehv. 60 p. c. A. M. 
Ex. 15,000. 
[Jacob Thompson’s bank account, already in evidence, 
was handed to the witness.] 
This is a copy of Jacob Thompson’s 
banking account with us, as testified to by 
Robert Anson Campbell. I see in the ac- 
count, entries of funds that were used for 
the purpose of exchange on New York and 
also on London. The item, $lBO,OOO, on the 
6th of April, 1865, was issued in deposit 
receipts, which may be used any where. 
John Wilkes Booth purchased a bill of 
exchange at our bank, about the beginning 
of October, and made a deposit at the same 
time, which remains undrawn to this day. 
I do not know of his having been in our 
bank but once. John H. Surratt’s name I 
never heard mentioned. 64 
THE CONSPIRACY TRIAL. 
Cross-examined by Mu. Aiken. 
1 have heard, has been recently managed 
by John Mitchell, late editor or assistant 
editor of the Richmond Examiner and the 
Richmond Enquirer. 
I do not remember any drafts cashed at 
our bank in favor of James Watson Wallace, 
Richard Montgomery, or James B. Merritt. 
I have no recollection of the names. 
George Wilkes. 
For the Prosecution.—June 16. 
Abram D. Russel. 
For the Prosecution.—June 16. 
I am City Judge for the City of New York, 
judge of the highest criminal court in the 
State. I am acquainted with Benjamin 
Wood of the City of New York, and also 
with his handwriting. 
I am acquainted with Benjamin Wood of 
New York, and am familiar with his hand- 
writing. 
[The $25,000 draft was here handed to the witness.] 
The signature at the back of that bill of 
exchange I should take to be his. At the 
date of this bill Benjamin Wood was a mem- 
ber of Congress of the United States. He 
was editor and proprietor of the New York 
News; so he told me himself. The paper, 
[The bill of exchange was here handed to the witness.] 
The indorsement on this bill of exchange 
is in the handwriting of Benjamin Wood. I 
have no doubt it is his. He was at that time 
member of Congress of the United States and 
editor and proprietor of the New York News. 
DEFENSE. 
TESTIMONY TO IMPEACH H. YON 
STEIN ACKER, MAY 30. 
witness a man of this character, who has 
openly violated the obligation of his oath, 
and his faith as an officer, and to adminis- 
ter the oath to him and present his testimony, 
is but an insult to the Commission, and an 
outrage upon the administration of justice. 
I move, therefore, that this man, Edward 
Johnson, be ejected from the Court as an 
incompetent witness on account of his no- 
torious infamy, on the grounds I have 
stated. 
[Edward Johnson was called as a witness for the de- 
fense on the part of Mary E. Surratt. On appearing on 
the stand, General Howr. said:] 
Mr. President: It is well known to me, 
and to very many of the officers of the army, 
that Edward Johnson, the person who is now 
introduced as a witness, was educated at the 
National Military Academy at the Govern- 
ment expense, and that, since that time, for 
years he held a commission in the army of the 
United States. It is well known in the army 
that it is a condition precedent to receiving 
a commission, that the officer shall take the 
oath of allegiance and fidelity to the Gov- 
ernment. In 1861 it became my duty as 
an officer to fire upon a rebel party, of 
which this man was a member, and that 
party fired upon, struck down, and killed 
loyal men that were in the service of the 
Government. Since that time, it is notori- 
ous to all the officers of the army that the 
man who is introduced here as a witness, 
has openly borne arms against the United 
States, except when he has been a prisoner 
in the hands of the Government. He is 
brought here now as a witness to testify be- 
fore this Commission, and he comes with 
his hands red with the blood of his loyal 
countrymen, shed by him or by his assist- 
ance, in violation of his solemn oath as a 
man, and his faith as an officer. I submit 
to this Commission that he stands in the eye 
of the law as an incompetent witness, because 
he is notoriously infamous. To offer as a 
General Ekin. I rise, sir, to second the 
motion, and I am glad the question is now 
presented to the Commission. 1 regard the 
gentleman clearly incompetent as a witness. 
That one who has been educated, nourished, 
and protected by the Government, and, in 
direct violation of his oath* has taken up 
arms against the Government, should present 
himself as a witness before this Commission, 
I regard as the hight of impertinence, and 
I trust, therefore, that the motion will be 
adopted without a moment’s hesitation. 
Mr. Aiken. I was not aware that the fact 
of a person’s having borne arms against the 
United States disqualified him from becom- 
ing a witness in a court of justice; and, there- 
fore, it can not be charged upon me, that I 
designed any insult to the Commission in in- 
troducing General Johnson as a witness 
here. It will be recollected that Mr. Jett, 
who has also borne arms against the Gov- 
ernment, was introduced here as an impor- 
tant witness by the prosecution; and he, ac- 
cording to his own statement, had never 
taken the oath of allegiance, and his testi- 
mony, at that time, was not ejected to. TESTIMONY TO IMPEACH 11. VON STEINACKER. 
65 
General Kautz. This is not a volunteer 
witness, is he? 
Mr. Aiken. No, sir. 
The Judge Advocate. If it please the 
Court, the rule of law on this point is, that 
before a witness can be renderd so infamous 
as to become absolutely incompetent to tes- 
tify, he must have been convicted by a judi- 
cial proceeding, and the record of his convic- 
tion must be presented as a basis of his 
rejection. All evidences of his guilt that 
fall short of that conviction affect only his 
credibility. This Court can discredit him 
just as far as they please upon that ground; 
but I do not think the rule of law, as now 
understood, would authorize the Court to de- 
clare him an incompetent witness, and inca- 
pable of testifying, however unworthy of 
credit he may be. 
General Wallace. For the sake of the 
character of this investigation, for the sake 
of public justice—not for the sake of the 
person introduced as a witness, but for the 
persons who are at the bar on trial—I ask 
the General who makes the motion to with- 
draw it. 
in either; but if he would enlist himself as 
a private, and if he was what he represented 
himself, an engineer and draftsman, I would 
put him on duty, as a private, under an en- 
gineer officer of my staff. Under these con- 
ditions he enlisted. I attached him to head- 
quarters, and assigned him to special duty 
under an engineer officer, Captain Oscar 
Hendricks, with whom he acted as drafts- 
man and assistant from that time until he 
left. 
Q. Was he the subject of a court-martial 
at any time in your camp; and, if so, for 
what ? 
Judge Advocate Bingham. I object to the 
question. The record of such a court-mar- 
tial would be the only competent evidence of 
conviction, and if the record were here, it 
would not impart any verity. Ido not think 
there were any courts in Virginia in those 
days that could legally try a dog. 
Mr. Aiken. Under the circumstances, pa- 
rol testimony of the fact is the best that can 
be offered, and therefore I presume it will 
not be seriously objected to. 
General Howe. On the statement of the 
Judge Advocate General, that this witness is 
technically and legally a competent witness, 
I withdraw the objection. 
[ The Commission sustained the objection. ] 
Soon after the battle of Gettysburg, our 
encampment was near Orange Court-House, 
Orange County, Virginia. 1 know nothing 
of, and never heard of, any secret meeting 
of the officers of the Stonewall Brigade, at 
the camp of the Second Virginia Regiment. 
I never knew of any plans discussed for the 
assassination of the President of the United 
States, and I never heard his assassination 
alluded to by any officer of my division as 
an object to be desired ; nor did I ever hear, 
while in the South, of a secret association 
called the Knights of the Golden Circle, or 
Sons of Liberty, nor have I ever known of 
any one belonging to them, or reputed to 
belong to them. 
I never saw John Wilkes Booth, and never 
heard of him till after the assassination of 
the President. 
[The witness, being duly sworn by the Judge Advocate, 
testified as follows:] 
Examined by Me. Aiken. 
I am, at present, a United States prisoner 
of war, confined at Fort Warren, Boston 
Harbor. 1 was captured at Nashville about 
the 15th of December last. Since February, 
1863, I have been a Major-General in the 
Confederate States army. 
I am acquainted with the man who went 
by the name of Henry Von Steinacker. He 
was a private on engineer duty; but was not 
an officer either of the engineers, the staff, or 
of the line. He belonged to the Second Vir- 
ginia Infantry, of the Stonewall Brigade, 
which was one of the brigades of my divi- 
sion. In the month of May, 1863, a man 
accosted me in Richmond, on the Capitol 
Square, by my rank and name, and with the 
rank I had borne in the United States army, 
as Major Johnson; he told me he had served 
under me as a private, and applied to me 
for a position in the engineer corps. He 
told me that he was a Prussian by birth, 
and an engineer by education. It was not 
>n my power to give him a position, and he 
left me that evening. He afterward made 
a second application to me for a position. 
1 was then ordered off to my division at 
I redericksburg, and in about a week after 
aiy arrival there this man appeared in my 
camp again, and made application for a po- 
sition in the engineer corps, or on my staff. 
I told him I could not give him a position 
I do not know that H. Von Steinacker 
was a member of General Blenker's staff, 
though he told me he was; but he also told 
me that he was a deserter from the United 
States service, or that he attempted to desert 
and had been apprehended. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I graduated at West Point Military Acad- 
emy in 1838, and was in the United States 
service till the breaking out of the rebellion. 
My rank at that time was that of Captain 
and Brevet Major of the Sixth Infantry, 
United States army. I tendered my resig- 
nation in May, I think, and received notice 
of its acceptance in June, 1861. I then went 
to my home in Virginia, and in a few weeks 
I entered the Confederate States service, in 
which I have since remained. 66 
THE CONSPIRACY TRIAL. 
Oscar Heinrichs. 
Mr. Ewing. I move that the cipher letter 
introduced in evidence, June sth, and its 
translation, be rejected as testimony, and that 
it be so entered upon the record. My reason 
is a twofold one. In the first place, I really 
believe the letter to be fictitious, and to bear 
upon its face the evidence that it is so. In 
the second place, it is testimony that is wholly 
inadmissible under the plainest rules of evi- 
dence. It is not signed; the handwriting was 
not proved; it was in cipher; it was not shown 
at all that it was traced to anybody proved 
or charged to be connected with this con- 
spiracy, or that it was in the possession of 
anybody shown or charged to be connected 
with this conspiracy. The rule in regard to 
declarations in cases of conspiracy is, that 
they may be admitted when they are declara- 
tions of one of the conspirators. This is not 
shown to be the declaration of one of the con- 
spirators ; and when the declarations are those 
of a conspirator, they must accompany some 
act of the conspiracy, being not merely a 
declaration of what had been done, or was 
going to be done, but some declaration con- 
nected with an act done in furtherance of the 
common design. The rule is very succinctly 
stated in Benet on Military Law and Courts- 
Martial. page 289: 
“In like manner, consultations in further- 
ance of a conspiracy are receivable in evi- 
dence, as also letters, or drafts of answers to 
letters, and other papers found in the pos- 
session of co conspirators, and which the jury 
may not unreasonably conclude were written 
in prosecution of a common purpose, to which 
the prisoner was a party. For the same 
reason, declarations or writings explanatory 
of the nature of a common object, in which 
the prisoner is engaged, together with olhera, 
are receivable in evidence, provided they 
accompany acts done in the prosecution of 
such an object, arising naturally out of these 
acts, and not being in the nature of a subse- 
quent statement or confession of them. But 
where words or writings are not acts in them- 
selves, nor part of the res gestx, but a mere re- 
lation or narrative of some part of the trans- 
action, or as to the share which other persons 
have had in the execution of a common de- 
sign, the evidence is not within the principle 
above mentioned; it altogether depends on 
the credit of the narrator, who is not before 
the court, and therefore it can not be received.” 
In this case, it is a declaration not only of 
some person who is not shown to be connected 
with the conspiracy, but it is a declaration of 
some person whose existence nobody knows 
any thing of—a nameless man. The letter is 
as completely unconnected with the subject of 
investigation as the loosest newspaper para- 
graph that could be picked up anywhere. 
Assistant Judge Advocate Bingham. If the 
Court please, there is a great deal in what the 
gentleman says that exactly states the law of 
conspiracy; but there is one thing I beg him 
to notice, that while that limitation which he 
For the accused, Mary E. Surratt.—May 30. 
Examined by Mr. Aiken. 
I served as engineer officer on the staff of 
General Edward Johnson, and on the staff 
of other general officers of the Confederate 
States army. 
I am acquainted with Henry Von Stein- 
acker; he was detailed to me as draftsman 
shortly after General Johnson took command 
of my divison, and I employed him as such. 
He had neither the rank nor the pay of an 
engineer officer. 
I am not acquainted with J. Wilkes Booth, 
the actor. I never saw a person calling him- 
self by that name in our camp; nor did any 
secret meeting of officers ever, to my knowl- 
edge, take place in that camp, where plans 
for the assassination of President Lincoln 
were discussed. 
H. K. Douglas. 
For the accused, Mary E. Surratt.— May 30. 
Examined by Mr. Aiken. 
I have held several commissions in the 
Confederate States service; my last was that 
of Major and Assistant Adjutant-General. 
During the last campaign I served on the 
staff of six general others—Generals Edward 
Johnson, Early, Gordon, Pegram, Walker, 
and Ramsey. 
I know a man named Von Steinacker; he 
was in the Second Virginia Infantry, the 
Stonewall Brigade. At the battle of Gettys- 
burg I was wounded and taken prisoner, and 
remained prisoner for nine months. I did 
not see Steinacker in camp after I returned 
to duty, but I got a letter from him, 
I do not know of any secret meeting being 
held in our camp for the discussion of plans 
for the assassination of the President of the 
United States. 
I wish to say of the officers of that brigade, 
that their integrity as men, and their gal- 
lantry as soldiers, would forbid them from 
being implicated in any such plot as the as- 
sassination of Mr. Lincoln; and in their be- 
half I desire to say, that I do not believe they 
knew any thing about it, or in the least de- 
gree sympathized with so unrighteous an 
act. 
Steinacker acknowledged to me, on several 
occasions, that he was a deserter from the 
Northern army. I have never heard of the 
existence of any secret treasonable societies, 
organized for the assassination of the Presi- 
dent of the United States. I never was a 
member of the Knights of the Golden Circle 
or Sons of Liberty, nor do I know of any of 
the General’s staff being connected with that 
organization. I never heard it declared in 
Richmond that President Lincoln ought to 
be assassinated. DISCUSSION ON THE MOTION TO REJECT CIPHER LETTER. 
67 
has named obtains in regard to third persons, 
there are two principles of the law touching 
conspiracy which are just about as old as the 
crime itself, and as old as the common law, 
which itself is the growth of centuries— 
namely, that every declaration made, whether 
it is in the formation of a conspiracy, in the 
prosecution of a conspiracy, before it is shown 
to have been organized, or after it is shown 
to be completed, is always evidence against 
the party himself 
There is an allegation in the charge and 
specification that this conspiracy was entered 
into with the parties named, and with others 
unknown, which is also a mode of proceed- 
ing known to the administration of justice 
wherever the common law obtains. There is 
a rule in connection with this that can not be 
challenged, and that is that the declarations 
of parties who are neither indicted nor on 
trial, are admissible in the trial ot those who 
are indicted and upon trial touching the con- 
spiracy. In the first place, you find it proved, 
beyond any question of doubt, that Booth, 
during the month of October, 1864, was in 
Canada, plotting this assassination with the 
declared agents of this revolt. You find that 
about the 14th of November, 1864, after he 
had so plotted this assassination with those 
who had weighed him out the price of blood, 
he is on his way to Washington City for the 
purpose of hiring his assistants; he is in the 
City of New York; he is in conversation with 
one of his co-conspirators, and, in my judg- 
ment, with one of them who is now within 
the hearing of my voice. 
In that conversation they disclosed the fact 
that they are conspirators, as detailed by the 
witness who was present, Mrs. Hudspeth. 
Upon one of them the lot has fallen to go to 
Washington, to carry out the conspiracy, to 
hire the assassins—to go to Washington to 
strike the murderous mow in aid of this re- 
bellion ; and what of the other? The other 
has been ordered, according to the testimony, 
to go to Newbern, North Carolina—Newbern, 
■which became the doomed city afterward 
among these conspirators for the importa- 
tion of pestilence. After the introduction of 
proof of this sort against these unknown 
conspirators, who are numbered by fifties 
aud hundreds, as Booth himself testified 
when he was trying to hire with his money 
a man who could not be hired to do murder, 
Mr. Chester—after such facts as these are 
proved, in the very vicinity of Newbern this 
infernal thing is found floating as a waif on 
the waters, bearing witness against these 
villains. Although you can not prove the 
writer of it, I say it is admissible in evidence. 
H is alleged that there are conspirators here 
unknown. There are facts here to prove 
tbat one of them was to go to Newbern. 
The letter is found in the vicinity of New- 
hern, in North Carolina, at the dock in 
More]lea(j The foundation has been 
kid for the introduction of it 
Allow me to say one other word in this 
connection. There are, I know, some rules 
of law that draw very harshly on conspira- 
tors that are engaged in crime. It may seem 
very hard that a man is to be affected in the 
remotest degree by a letter written by an- 
other who is not upon his trial, or a letter 
that has never been delivered, which could 
only speak from the time of its delivery; 
and yet the gentleman knows very well that 
upon principle it has been settled that a let- 
ter written and never delivered is admissible 
upon the trial of conspirators. 
Mr. Ewing. Written by a co-conspirator. 
Assistant Judge Advocate Bingham. Of 
course. But the fact that it was written by 
a co-conspirator is patent on its face, and 
gathered from the other facts in proof in the 
case. The point about it is that he is an 
unknown conspirator. Suppose it had been 
found in possession of Booth, addressed to 
him through the post-office, instead of being 
sent by hand, as the cipher letter shows they 
must do, because the detectives are on their 
track; suppose it had been found in the pos- 
session of Booth, will any man say that it 
would not be admissible in evidence against 
him and everybody else who conspired with 
him in this infernal plot? What difference 
does it make that it had not reached him, or 
the other hired assassin, that was on the 
track of Sherman, to creep into his tent and 
murder him, as they crept into the tent of 
the Commander-in-chief of your army and 
murdered him. I say it is evidence. 
Mr. Cox. If the Court will allow me, I de- 
sire to submit a word in support of the mo- 
tion made by General Ewing. When it was 
announced that a cipher letter was about to 
be offered in evidence, the counsel for the de- 
fense took it for granted that it belonged to 
that general class of evidence relating to the 
machinations of the rebel agents in Canada, 
which had been generally admitted here 
without objection. The counsel for the de- 
fense have had no objection to the exposure 
of those machinations; their only concern 
has been to show that their clients were not 
involved in them. The whole of the evidence 
of this description of a secret character here- 
tofore has been evidence relating to the con- 
trivances and machinations of the rebel 
agents in Canada, either on their own re- 
sponsibility, or in connection with the author- 
ities in Richmond. Therefore, no objection 
was made to the introduction of that evi- 
dence ; nor was it perceived, until the letter 
was read before the Court, that it purported 
to come from somebody in immediate coiv 
nection with the act of assassination itself. 
Therefore the counsel were taken by surprise, 
and allowed the letter to be read to the Court 
without objection, without even inspecting it, 
as they had a right to do, if they desired to 
submit objections to its introduction as evi- 
dence. 
The rule stated by the learned Judge Ad- 68 
THE CONSPIRACY TRIAL. 
vocate is undoubtedly true, in general, that 
the declarations of conspirators are admissi- 
ble in evidence against their co-conspirators; 
but that is subject to (his limitation, that the 
conspiracy must first be established between 
the author of the declaration, whether oral 
or written, and the party accused. That con- 
spiracy being first proved by evidence aliunde, 
by other proof than the declaration itself, 
then the declaration may be offered in evi- 
dence to show the scope and design of the 
conspiracy; and if it had been established 
that this letter emanated from somebody be- 
tween whom and any one of the accused the 
conspiracy had been established, unquestion- 
ably it wrould have been evidence against the 
accused, supposing it to be made in the pros- 
ecution of the conspiracy. But there has not 
been a particle of proof produced to the 
Court showing that the letter did emanate 
either from Booth, or any one of his associ- 
ates. The logic of my learned friend on the 
other side seems to be this: It is sufficiently 
established, at least by prima facie evidence 
before the Court, that Booth was engaged in 
a conspiracy with some unknown persons; 
this letter comes from an unknown person; 
ergo, it is a letter from somebody connected 
with Booth in this conspiracy. 
Assistant Judge Advocate Bingham. Not 
all the logic. 
Mr. Cox. But, as far as it goes, it seems to 
be the logic of the other side. He says the 
charge is that these accused were engaged in 
a conspiracy with somebody unknown; this 
letter comes from somebody unknown; there- 
fore it is admissible in evidence. That is 
about the substance of it. I submit' to the 
Court that this is chop-logic. The rule of 
law is that the author of a declaration must 
first be shown, and when a letter is produced 
here, and read in evidence, it must be first 
shown whose the handwriting is; that it is 
really the production of somebody whose 
declarations, oral or written, are evidence 
against the accused; and until that is proved 
the letter is clearly inadmissible. 
If the Court will look at the face of the 
letter, although that is a matter for argu- 
ment, in case it is fairly before the Court as 
evidence, I think the Court will perceive 
that it does bear on its very face the marks 
of fabrication. The letter is picked out of 
the water at Morehead City, no more blurred, 
I think, than any paper on this table. It 
looks as if it had been written and dropped 
in the water immediately before it was found, 
for the very purpose of being picked up 
by the Government agents, to be used as 
evidence. It declares that, “Pet” (who, I 
suppose, is intended to mean Booth) “has 
done his work well.” “We had a large 
meeting last night” (the Friday night when 
these conspirators were flying from the city 
for their lives.) “ I was in Baltimore yester- 
day.” That was Friday. “Pet had not got 
there.” Of course he had not got there when 
the work of conspiracy was to be done that 
very night, Friday; yet this letter assumes 
that he had done the work before, and was 
to get there “yesterday,” Friday, in Balti- 
more. Every thing about it is suspicious. 
That, however, is a matter of argument to 
the Court, as a question of evidence, when 
it is before the Court as evidence. In support 
of the motion of my learned friend, 1 submit 
that the letter was read and admitted in 
evidence by surprise; it is not legitimate evi- 
dence, and therefore should be so entered 
upon the record. 
Assistant Judge Advocate Bingham. I 
have only to say that the motion of the 
learned counsel will come more fitly when he 
makes his final argument. It is competent 
for him to say then to the Court, “ You are 
not entitled to consider this evidence;” but I 
object to commencing the argument of the 
case in the middle of the trial, and asking the 
Court to decide a part of the case at one time, 
and another part of it at another. That is a 
new system of practice. 
In regard to the remarks of my learned 
friend who has just spoken, his tongue cer- 
tainly tripped, and he forgot himself, when he 
said that, in cases of conspiracy, written 
evidence could not be admitted without prov- 
ing the handwriting. I asked him, and 
challenged him, to produce a single authority 
that showed any such limitation, where a 
paper was found relating to the conspiracy, 
no matter who wrote it. Will the gentleman 
say here that because we did not prove who 
wrote the cipher that was found in Booth’s 
possession, which accords exactly with the 
cipher found in Davis’s or Benjamin’s posses- 
sion at Richmond, it is not evidence? It is 
no matter who wrote it; he had it, and let 
him account for his possession of it, and let 
him account for the uses he was making of 
it. This letter was found on the premises 
under the control and occupied by the enemy, 
who were engaged in this cqnspiracy. The 
gentleman said that “Pet” is referred to in 
the letter. He is, and it is proved that “ Pet” 
is the name by which Booth was known 
among his co-conspirators in Canada; it is so 
proved by Conover. How would Conover 
know any thing about the contents of this 
letter? Who has proved that he was in 
North Carolina at the time of the flight? 
The letter is dated Washington, April 15th, 
which is the day after the murder, and the 
day of the death of the President of the 
United States. It does not follow, by any 
means, that it was written in Washington; 
but that is what is on its face. Now, let us 
see whether there is any thing of this sup- 
posed contradiction on the face of it. 
“I am happy to inform you that Pet has 
done his work well. He is safe, and Old 
Abe is in hell.” 
Is there any contradiction here in dates, 
or time, or fact? Did not Abraham Lincoln 
die on the morning of the 15th of April, and DISCUSSION ON THE MOTION TO REJECT CIPHER LETTER, 
69 
is not that in proof? The conclusions of 
this miserable monster, of course, are not 
statements of facts; but, monster as he is, he 
knows enough to state the fact, which he 
does state, that “Pet has done his work 
well,” after their method of well-doing, and 
that bis victim, Abraham Lincoln, is dead. 
That is the fact that he states; there is no 
contradiction there. “ Now, sir, all eyes are 
on you.” Who? “You.” “ You must bring 
Sherman. Grant is in the hands of Old Gray 
ere this.” Who in America knew that, ex- 
cept a man in this conspiracy, on the 15th of 
April ? 
Mr. Cox. We do not know that it was 
written on that day. 
before the day of the murder. “Pet had 
not got there yet.” Where? At midnight 
yesterday, under cover of the same darkness 
which he sought when he inflicted the mor- 
tal wound upon Abraham Lincoln. If he 
had got the benefit of the trains, everybody 
knew he would have been there “yesterday.” 
Where is the contradiction ? 
I submit to the Court that this is no time 
to decide the effect of this letter upon the 
case or upon the Court. 
Mr. Cox. The argument of the learned 
counsel for the Government is, that the 
handwriting of a letter need not be proved 
when it is found in the custody of parties 
implicated in the conspiracy. That I may 
admit, but that assumes the whole question. 
The letter was not found in the custody of 
any person. It was found floating upon the 
water, and non constat that the letter may 
not have been written the very day when it 
was found, and a few minutes before it was 
found; and written by somebody who had 
possessed himself of sufficient knowledge of 
the facts charged against the conspirators 
to enable him to fabricate a letter specious 
on its face, and appearing to have some bear- 
ing on the conspiracy itself. 
Assistant Judge Advocate Bingham. Par- 
don me for saying to the gentleman, that 
while his statement is correctly made as re- 
gards what I said, I did also say, in that 
connection, that we must lay a foundation, 
and show that it had been in the custody 
of one of the conspirators. I think we have 
done it by showing that “Pet” was the 
name of one of the party; by showing that 
the object of the conspiracy, as narrated in 
the letter, was the object agreed upon; by 
showing that that was not a matter of 
notoriety, nor a matter known to anybody 
except tbe conspirators themselves on the 
day of its date; and by showing that all the 
evidence in this case, so far as this letter 
can be understood to-day, corroborates the 
fact which I assert, that the writer of the 
letter, on the 15th day of April, was a party 
to this conspiracy—a fact clearly enough 
shown, I think, to hang him if he were 
found with that paper in his pocket, though 
no man knew his name, and no man ever 
testified about the writer, unless he could 
explain how he came by it. 
Assistant Judge Advocate Bingham. We 
are taking things as we find them. “Eed 
Shoes showed lack of nerve in Seward’s 
case, but fell back in good order.” Who 
knew in what sort of order he fell back, ex- 
cept a co-conspirator? We know who Red 
Shoes was. He did fall back. 
Mr. Cox. When was the letter found? 
Assistant Judge Advocate Bingham. On 
the second day of May. 
Mr. Cox. Three weeks after. 
Assistant Judge Advocate Bingham. Yes ; 
but the gentleman assumes in his criticism 
that it bears date the day it purports to 
have been written. “Johnson must come. 
Old Crook has him in charge.” Who knew 
on the 15th of April who had him in charge? 
“Mind well that brother’s oath.” Who 
knew then about the oath ? It is all abund- 
antly proved here, however. “And you will 
have no difficulty. All will be safe, and en- 
joy the fruit of our labors.” That is, the 
price. “We had a large meeting last night. 
All were bent on carrying out the programme 
to the letter.” The gentleman says there is 
a contradiction. Wherefore? “The rails 
are laid for safe exit. Old , always be- 
hind—missed the pop at City Point. I say 
again, the lives of our brave officers, and 
the life of the South, depend on carrying 
this programme into effect.” Which was the 
original design. “ Number 2 will give you 
this. When you write sign no real name. 
I was in Baltimore yesterday. Pet had not 
got there yet.” The gentleman says there 
is a contradiction. Wherefore? Was not 
“ yesterdav ” until midnight at least of the 
Uth of April? “I was in Baltimore yester- 
day.” Assuming that he was in Washing- 
ton on the 15th, he was in Baltimore the day 
The Commission overruled the motion of 
Mr. Ewing. TESTIMONY 
RELATING TO JOHN WILKES BOOTH, AND CIRCUM- 
STANCES ATTENDING THE ASSASSINATION. 
Egbert K. Jones. 
was quite a large one, such as cavalry offi- 
cers wear, and was loaded and capped. 
I am a clerk at the Kirkwood House in 
this city. The leaf exhibited to the Com- 
mission is from the register of the Kirkwood 
House. It contains the name of G. A. Atze- 
rodt, Charles County. 
For the Prosecution.—May 13. 
William A. Browning. 
For the Prosecution.—May 16. 
I am the private secretary of President 
Johnson. Between 4 and 5 o’clock in the 
afternoon of the 14th of April last, I left the 
Vice-President’s room in the Capitol, and 
went to the Kirkwood House, where we 
both boarded. On going to the office of the 
hotel, as was my custom, I noticed a card in 
my box, which was adjoining that of Mr. 
Johnson’s, and Mr. Jones, the clerk, handed 
it to me. It was a very common mistake in 
the office to put cards intended for me into 
the Vice-President’s box, and his would find 
their way into mine; the boxes being to- 
gether. 
[The leaf from the hotel register was offered in evidence.] 
It appears from the register that Atzerodt 
took room No. 126 on the morning of the 
14th of April last, I think before 8 o’clock 
in the morning. I was not present when 
his name was registered, and did not see 
him until between 12 and 1 in the day. I 
recognize Atzerodt among the accused. That 
is the man, 1 think. 
[The witness here pointed to the accused, G. A. Atze- 
rodt.] 
I went to the room occupied by Atzerodt 
after it had been opened by Mr. Lee, on the 
night of the 15th of April, and 1 saw all the 
articles that were found there. I can not 
identify the knife, though it was similar to 
the one just shown me. It was between the 
sheet and the mattress. The bed had not 
been occupied on the night of the 14th, nor 
had the chambermaid been able to get into 
the room the next day. A young man spoke 
to Atzerodt when I saw him standing at the 
office counter. I do not know his name. 
Atzerodt before that asked me if any one 
had inquired for him within a short time. 
From the book it appears that Atzerodt paid 
one day in advance. I had never seen him 
in the hotel before. 
During that day I gave a card of J. 
Wilkes Booth to Colonel Browning, Mr. 
Johnson’s secretary. It was put in his box. 
I am not positive that I received it from J. 
Wilkes Booth, although I may have done so. 
[A card was here handed to the witness.] 
7 recognize this as the card found in my 
box. The following is written upon it in 
pencil: 
Don’t wish to disturb you; are you at 
home? J- WILKES BOOTH. 
[The card was offered in evidence.] 
I had known J. Wilkes Booth when he 
was playing in Nashville, Tenn.; I met him 
there several times; that was the only ac- 
quaintance I had with him. 
When the card was handed to me, I re- 
marked to the clerk, “It is from Booth; is 
he playing here?” I thought perhaps he 
might have called upon me, having known 
me; but when his name was connected with 
the assassination, I looked upon it differ- 
ently. 
Cross-examined by Mr. Doster. 
The Vice-President was, I believe, at the 
Capitol the greater part of the forenoon of 
that day. He was at dinner at the Kirk- 
wood at 5 o’clock, and I do not think he 
was out afterward. He was in his room for 
Cross-examination by Mr. Doster. 
I do not think I could identify the par- 
ticular pistol found in Atzerodt’s room. It THE ASSASSINATION, 
71 
the balance of the evening. I was there, I 
think, up to 6 or 7 o’clock, when I left, and 
did not return until about 11 or 12 o’clock, 
after the assassination. 
together, and were sometimes there three or 
four times a day. Mr. Surratt kept two 
horses at the stable, and Atzerodt rode out 
occasionally with Surratt. 
I have in my hand a note from Mr. Sur- 
ratt, which reads: 
For the Prosecution.—May 26 
Charles Dawson. 
Mr. Howard will please let the bearer, Mr. 
Atzerodt, have my horse whenever he wishes 
to ride, also my leggings and gloves, and 
oblige, Yours, etc., 
[Signed] J. H. SURRATT. 
Feb. 22, 1865. 
I am acquainted with the handwriting of 
J. Wilkes Booth, and the signature on the 
card shown to me is undoubtedly that of 
John Wilkes Booth. 
Thomas L. Gardiner. 
For the Prosecution.—May 26. 
This note was sent to the stable by Mrs. 
Surratt, and I put it on file. Atzerodt sev- 
eral times rode horses from that order. It 
was afterward rescinded. 
I saw at the Government stables in this 
city, Seventeenth and I Streets, a dark-bay 
one-eyed horse on the Bth of this month. It 
is the same horse that was sold some time 
in the latter part of November, by my 
uncle, George Gardiner, to a man named 
Booth. Booth came to my uncle’s with 
Dr. Samuel A. Mudd, and Booth selected 
this one out of three horses my uncle had 
for sale. In accordance with this request, I 
delivered it to him the next morning at 
Bryantown. Booth and Dr. Mudd came on 
horseback, and after the purchase they left 
together. Booth made the agreement, and 
Dr. Mudd took no part or interest in the 
purchase that I saw. 
In the early part of April, Atzerodt told 
me that John H. Surratt had been to Rich- 
mond, and that in coming back he got into 
difficulty; that the detectives were after him ; 
but he thought he would soon be relieved 
from the difficulty. 
On the 31st of March, Atzerodt took away 
from the stable a horse blind of one eye, a 
fine racking horse, and another smaller bay 
horse, under an order from John H. Surratt. 
Surratt claimed the horses, but Booth paid 
for their keep. Atzerodt afterward brought, 
these horses back to the stable to sell them 
to Mr. Howard, but failing to sell them, he 
took them away. The horse now at the 
Government stable, corner Seventeenth and 
I Streets, is the same one-eyed bay horse that 
Atzerodt took away on the 31st of March, 
and brought back for sale some days after- 
ward. 
Cross-examined by Mr. Stone. 
My uncle’s house is but a short distance 
from Dr. Mudd’s, not over a quarter of a 
mile. Booth said he wanted a horse to run 
in a light buggy to fravel over the lower 
counties of Maryland, that he might look at 
the lands, as he desired to buy some. My 
uncle told him he had but one horse that 
he could recommend as a buggy-horse, and 
that he could not spare, as he wanted it for 
his own use. He then offered to sell him a 
young mare, but Booth said a mare would 
not suit him. My uncle then said that he 
had an old saddle-horse that he would sell 
him if it would suit him. Booth examined 
the horse, and said he thought it would 
suit, as he only wanted it for one year. He 
bought the horse, and paid for him. 
I think 1 have heard of Booth being in 
the neighborhood of Bryantown some time 
before that, but I never heard of his being 
at Dr. Mudd’s house. Our farms were ad- 
joining, and I very often saw Dr. Mudd; 
sometimes two or three times a week. 
William E. Cleater. 
I keep a livery stable on Sixth Street, in, 
this city. In January last, J. Wilkes Booth 
kept a one-eyed bay horse at my stable, part 
of the time, for about a month. On the 30th 
of January he sold the horse to the prisoner, 
Samuel Arnold, so Booth told me, and Ar- 
nold paid me eight dollars for the eight days 
that the horse remained there after the sale. 
For the Prosecution.—May 22. 
John H. Surratt used to hire horses from 
me in January last, to go down into the 
country to parties. He was generally with 
Mr. Booth, but after three or four visits down 
the country, Booth left word that Mr. Sur- 
ratt was to have his horse any time he came 
for it. 
I have seen Atzerodt at our stable once; 
he was there with horses for sale. 1 have 
seen the one-eyed horse now at the Govern- 
ment stables on Seventeenth and I Streets, 
and it is the same that Arnold bought of 
Booth. 
For the Prosecution.—May 15. 
Brooke Stabler. 
I am manager at Howard’s livery stable, 
on G Street. I was acquainted with J. 
Wilkes Booth, John H. Surratt, and George 
A. Atzerodt. They were frequently at the 
stable together; they almost always came 
Cross-examined by Mr. Ewing. 
I have only seen Arnold twice; on the Bth 
of February when he paid me, and once 
since. 72 
THE CONSPIRACY TRIAL. 
James W. Pumphry. 
o’clock, walked up to the bar, and called 
for some whisky, which I gave him; he 
then called for some water, which I also 
gave him; he placed the money on the 
counter and went out. I saw him go out 
of the bar alone, as near as I can judge, 
from eight to ten minutes before I heard the 
cry that the President was assassinated. 
I am acquainted with the prisoner, Her- 
old; have known him since he was a boy. 
I saw him on the night of the murder, or 
the night previous to that; he came into my 
place and asked me if Mr. Booth had been 
there that afternoon. I told him I had not 
been there myself in the afternoon, when he 
asked, “Was he not here this evening?” I 
said, “No, sir;” and he went out. 
For the Prosecution.—May 15, 
I reside in Washington City, and keep a 
livery stable. I was acquainted with J. 
Wilkes Booth. He came to my stable about 
12 o’clock of the 14th of April last, and en- 
gaged a saddle-horse, which he said he 
wanted about 4or half-past 4 that day. He 
had been in the habit of riding a sorrel 
horse, and he came to get it, but that horse 
was engaged, and he had in its place a small 
bay mare, about fourteen or fourteen and a 
half hands high. She was a bay, with black 
legs, black mane and tail, and a white star 
in the forehead. I think the off’ front foot 
had white spots. I have never seen the mare 
since. He asked me to give him a tie-rein 
to hitch the horse. I told him not to hitch 
her, as she was in the habit of breaking the 
bridle. He told me he wanted to tie her 
while he stopped at a restaurant and got a 
drink. I said, “ Get a boy at the restaurant 
to hold her.” He replied that he could not 
get a boy. “O,” said I, “you can find plenty 
of bootblacks about the streets to hold your 
horse.” He then said, “I am going to Gro- 
ver’s Theater to write a letter; there is no 
necessity of tying her there, for there is a 
stable in the back part of the alley; I will 
put her there.” He then asked where was 
the best place to take a ride to; I told him, 
“You have been some time around here, and 
you ought to know.” He asked, “How is 
Crystal Spring?” “A very good place,” I 
said, “but it is rather early for it.” “Well,” 
said he, “ I will go there after I get through 
writing a letter at Grover’s Theater.” He 
then rode off’, and I have never seen Booth 
since. 
I can not positively swear as to whether 
that was Thursday or Friday evening. I 
think Herold came alone to the bar. I did 
not see anybody come in there with him. 
As near as I can recollect, the time was be- 
tween 6 and 7 o’clock. 
Cross-examined by Mr. Stone. 
Sergeant Joseph M. Dye. 
On the evening of the 14th of April last, 
I was sitting in front of Ford’s Theater, about 
half-past 9 o’clock. I observed several per- 
sons, whose appearance excited my suspicion, 
conferring together upon the pavement. The 
first who appeared was an elegantly-dressed 
gentleman, who came out of the passage, 
and commenced conversing with a ruffianly- 
looking fellow; then another appeared, and 
the three conversed together. It was then 
drawing near the second act. The one that 
appeared to be the leader, the well-dressed 
one, said, “I think he will come out now,” 
referring to the President, I supposed. The 
President’s carriage was standing in front of 
the theater. One of the three had been 
standing out, looking at the carriage, on the 
curbstone, while. I was sitting there, and 
then went back. They watched awhile, and 
the rush came down ; many gentlemen came 
out and went in and had a drink in the sa- 
loon below. After the people went up, the 
best-dressed gentleman stepped into the sa- 
loon himself; remained there long enough 
to get a drink, and came out in a style as 
if he was becoming intoxicated. He stepped 
up and whispered to this ruffian, (that is, 
the miserablest-looking one of the three), 
and went into the passage that leads to the 
stage from the street. Then the smallest 
one stepped up, looked at the clock in the 
vestibule, called the time, just as the best- 
dressed gentleman appeared again. Then 
he started up the street, remained there 
awhile, and came down again, and called 
the time again. I then began to think there 
was something going on, and looked toward 
For the Prosecution.—May 15. 
About six weeks before the assassination, 
Booth called at my stable, in company with 
John H. Surratt. He said he wanted a good 
saddle-horse. I said, “ Before you get him 
you will have to give me reference; you are 
a stranger to me.” He replied, “If you 
do n’t know me you have heard of me; I am 
John Wilkes Booth.” Mr. Surratt spoke up 
and said, “This is John Wilkes Booth, Mr. 
Pumphry; he and I are going to take a 
ride, and I will see that you are paid for the 
horse.” 1 let him have the horse, and I was 
paid. 
Cross-examined by Mr. Aiken. 
Mr. Surratt never came to my place with 
Booth after the first time. I do not know 
any of the prisoners at the bar. 
Peter Taltavul. 
I was acquainted with John Wilkes 
Booth. I kept the restaurant adjoining 
Ford’s Theater, on the lower side. Booth 
came into my restaurant on the evening of 
the 14th of April, I judge a little after 10 
For the Prosecution.—May 15. 73 
'his man as lie called the time. Presently 
he went up again, and then came down and 
called tlie time louder. I think it was ten 
minutes after 10 that he called out the last 
'■■ lie. He was announcing the time to the 
other two, and then started on a fast walk 
the street, and the best dressed one went 
inside the theater. 
THE ASSASSINATION, 
what time it was. I told him to step into 
the lobby and he could see. He stepped out 
and walked in again, entering by the door 
that leads to the parquette and dress-circle; 
came out again, and then went up the stair- 
way to the dress-circle. The last I saw of 
him was when he alighted on the stage from 
the box, and ran across the stage with a 
knife in his hand. He was uttering some 
sentence, but 1 could not understand it, being 
so far from him. 
I was invited by Sergeant Cooper to have 
some oysters; and we had barely time to 
get seated in the saloon and order the oys- 
ters, when a man came rushing in and said 
the President was shot. 
Cross-examined by Mr. Ewing. 
[A photograph of J. Wilkes Booth was handed to the 
witness.] 
I know the accused, Edward Spangler. I 
am perfectly satisfied that he was not in 
front of the theater during the play on the 
night of the 14th of April; had he come 
out, I must have seen him. I have never 
known Spangler wear a moustache. 
That was the well-dressed man; but his 
moustache was heavier and his hair longer 
than in the photograph, but these are his 
features exactly. 
The ruffianly man I saw was a stout 
man, with a rough face, and had a bloated 
Appearance; his dress had been worn a con- 
siderable time. The prisoner, Edward Span- 
gler, has the appearance of the rough-looking 
ffian, except that he had a moustache. 
The one that called the time was a very 
neat gentleman, well dressed, and he had a 
moustache. I do not see him among the 
prisoners. He was better dressed than any 
I see here. He had on one of the fashion- 
able hats they wear here in Washington, 
with round top and stiff brim. He was not 
a very large man, about five feet, six inches 
high; his coat was a kind of drab color, and 
his hat was black. 
John F. Sleichmann. 
I am assistant property man at Ford’s 
Theater, and have to set the furniture, etc., on 
the stage. I was at the theatqr on the night 
of the assassination of the President. About 
9 o’clock that night I saw John Wilkes 
Booth. He came up on a horse, and entered 
by the little back door to the theater. Ned 
Spangler was standing by one of the wings, 
and Booth said to him, “ Ned, you ’ll help me 
all you can, won’t you?” and Ned said, “0 
yes.” Those were the first words that 1 heard. 
I just got a glimpse of Booth after the 
President was shot, as I was going out at the 
the first entrance on the right-hand side near 
the prompter’s place. I saw Booth on the 
afternoon of the 14th, between 4 and 5 
o’clock, in the restaurant next door. I went in 
to look for James Maddox, and I saw Booth, 
Ned Spangler, Jim Maddox, “Peanuts,” and 
a young gentleman by the name of John 
Mouldey, I think, drinking there. 
For the Prosecution.—May 15. 
Cross-examined by Mr. Ewing. 
During the half hour or more that I sat 
111 the front of the theater, the man in 
touched clothes was there; he stood on the 
pavement at the end of the passage. His 
moustache was black, and he had on a 
pouched hat, one that had been worn some 
fune. I did not pay particular attention so 
as to observe the color of his dress. Booth 
entered the theater the last time at the front 
door; he whispered to the man, and left 
mm, and went into the theater by the front 
door. I did not see the man in the slouched 
dress change his position, because I was 
observing Booth. The other man went up 
ibe street on a fast walk. I suppose it was 
about fifteen minutes after Booth entered 
lue theater, that we heard the news of the 
nssassi nation, while we were in the saloon. 
Cross-examined by Mr. Ewing. 
Booth spoke to Spangler right by the back- 
door. I saw his horse through the open 
door, but as it was dark I could not see if any 
one was holding it. 
I was on the stage that night, except when 
I had to go down to the apothecary’s store to 
get a few articles to use in the piece, and when 
I went into the restaurant next door. Span- 
gler’s business on the stage is shoving the 
scenes. I went to the front of the theater 
by the side entrance, on the left-hand side. 
When I was in front, I noticed the Presi- 
dent’s carriage there, butdidnotsee Spangler; 
had he been there, I guess I should have seen 
him. I have never seen Spangler wear a 
moustache. I was in front of the theater two 
or three times, but was on the stage during 
the third act. I think it was ten or fiiteen 
minutes before the close of the second act 
that I was in the restaurant next door. 
About ten minutes, I suppose, after the 
John E. Buckingham. 
For the Prosecution.—May 15. 
I am night door-keeper at Ford’s Theater. 
rn Ibe daytime I am employed at the Wash- 
lngton Navy Yard. 
I know' John Wilkes Booth by sight. 
About 10 o’clock on the evening of the 14th 
m came to the theater, walked in and went 
out again, and returned in about two or 
three minutes. He came to me and asked 74 
THE CONSPIRACY TRIAL. 
assassination, Spangler was standing on the 
•tage by one of the wings, with a white hand- 
kerchief in his hand. He was very pale, and 
was wiping his eyes. Ido not know whether 
he was crying or not. 
Booth was very familiar with the actors 
and employees of the theater, and was back- 
ward and forward in the theater frequently. 
He had access to the theater at all times, and 
came behind the scenes, and in the green-room, 
and anywhereabout the theater, just as though 
he was in the employment of Mr. Ford. 
When Booth spoke to Spangler, they were 
about eight feet from me, but Booth and 
Spangler were not more than two or three feet 
apart. After Booth had spoken, he went 
behind the scenes. I do not know whether 
Booth saw me, but he could have seen me 
from where he was standing; no one else was 
by at the time that I noticed. Spangler is, I 
think, a drinking man; whether he was in 
liquor that night I do not know. 
that has never done any harm to you?” He 
said he ought to be cursed when he got so 
many men killed. 
I only saw one horse in the stable when I 
was there between 5 and 6 o’clock, and L 
was not there afterward. There was another 
horse there some days before. Booth brought 
a horse and buggy there; it was a little horse; 
Ido not remember the color. The fellow that 
brought the horse there lived at the Navy 
Yard. I think he used to go with Booth 
very often. I do not see him among the 
prisoners. 
[Probably Herold, though the witness failed to recognize 
him among the prisoners and the guards.] 
I saw Booth as he came out of the small 
door. I did not see anybody else. I did not 
see Spangler come in or go out while J was 
sitting at the door. 
Cross-examined by Me. Ewing. 
It was about six or eight minutes after 
Deboney called Spangler that Spangler called 
me. I w’as sitting at the first entrance on the 
left, attending to the stage-door. I w'as there 
to keep strangers out, and prevent those coming 
in who did not belong there. 
When 1 was not there, Spangler used to 
hitch up Booth’s horse, and hold him or feed 
him. Between 5 and 6 that evening, Span- 
gler wanted to take the saddle off Booth’s 
horse, but Booth would not let him; then he 
wanted to take the bridle off, but Booth 
would not agree to it; so Spangler just put a 
halter round the horse’s neck, but he took 
the saddle off’ afterward. 
Joseph Burroughs, alias “Peanuts.” 
For the Prosecution.—May 16. 
I carry bills for Ford’s Theater during 
the daytime, and stand at the stage-door at 
night. I knew John Wilkes Booth, and used 
to attend to his horse, and see that it was 
fed and cleaned. His stable was immediately 
back of the theater. On the afternoon of 
the 14th of April, he brought his horse to 
the stable, between 5 and 6 o’clock. He 
hallooed out for Spangler; when he came, 
Booth asked him for a halter. He had none, 
and sent Jake up stairs after one. Jim Mad- 
dox was down there too. Between 9 and 
10 o’clock that night, I heard Deboney call- 
ing to Ned that Booth wanted him out in the 
alley. 1 did not see Booth come up the 
alley on his horse, but I saw the horse at the 
door when Spangler called me out there to 
hold it. When Spangler told me to hold the 
horse, I said I could not; I had to go in to 
attend to ray door. He told me to hold it, 
and if there was any thing wrong to lay the 
blame on him; so I held the horse. I held 
him as I was sitting over against the house 
there, on a carpenter’s bench. 
I heard the report of the pistol. I was still 
out by the bench, but had got off when Booth 
came out. He told me to give him his horse. 
He struck me with the butt of a knife, and 
knocked me down. He did this as he was 
mounting his horse, with one foot in the 
stirrup: he also kicked me, and rode off im- 
mediately. 
I was in the President’s box that afternoon 
when Harry Ford was putting the flags 
around it. Harry Ford told me to go up with 
Spangler and take out the partition of the 
box; that the President and General Grant 
were coming there. While Spangler was at 
work removing it he said, “Damn the Presi- 
dent and General Grant.” I said to him, 
“ What are you damning the man for—a man 
I was out in front of the theater that night 
while the curtain was down ; Igo out between 
every act. When the curtain is up, Igo in- 
side. I did not see Booth in front of the the- 
ater that night, nor Spangler. I never saw 
Spangler wear a moustache. 
Booth was about the theater a great deal; 
he sometimes entered on Tenth Street, and 
sometimes from the back. The stable where 
Booth kept his horses is about two hundred 
yards from the back entrance to the theater. 
When I went to hold the horse for Booth 
that night, 1 think they were playing the first 
scene of the third act. 
Spangler always worked on the left-hand 
side of the stage; that is the side the Presi- 
dent’s box was on, and it was on that side I 
attended the door. When I was away, Span- 
gler used to attend the door for me ; that was 
the door that went into the alley from Tenth 
Street. A man by the name of Simmons 
worked with Spangler on that side of the 
stage, and on the other side, Skeggy, Jake, 
and another man worked. While the play 
was going on, these men were always about 
there. It was their business to shove the 
scenes on. They usually staid on their own 
side of the stage, but when a scene stood the 
whole of the act, they might go round on the 
other side; sometimes they would go out, but 
not very often. THE ASSASSINATION, 
75 
Recalled for the Prosecution.—May 22. 
horse step down the alley. I looked out of the 
window, and it seemed as if the gentleman 
was leading the horse down the alley. He did 
not go further than the end of it, and in a few 
minutes he came back up to the theater door, 
holding his horse by the bridle. He pushed 
the door open, and said something in a low 
voice, and then in a loud voice he called 
“Ned” four times. There was a colored 
man up at the window, who said, “ Mr. Ned, 
Mr. Booth wants you.” This is the way I 
came to know it was Mr. Booth, for it was 
dark and I could not see his face. When 
Ned came, Mr. Booth said, in a low voice, 
“Tell Maddox to come here.” 
The stable in the rear of the theater was 
fitted up for Booth in January, by Spangler 
and a man by the name of George. It was 
raised up a little higher for the buggy, and 
two stalls put in it. Booth occupied that 
stable until the assassination. First he had 
a saddle-horse, which he sold; then he got 
a horse and buggy. The buggy he sold on 
Wednesday before the assassination. Ned 
Spangler, the prisoner, sold it for him. 
Cross-examined by Mr. Ewing. 
I do not know to whom Spangler sold it. 
Booth and Gifford told Spangler on the 
Monday, to take it to the bazar on Mary- 
land Avenue; but he could not get what he 
Wanted for it there, and sold it afterward to 
a man that kept a livery stable. 
Then Ned went back and Maddox came 
out, and they said something to each other. 
Maddox then took off the horse from before 
my door, round to where the work bench 
was, that stood at the right side of the house. 
They both then went into the theater. The 
horse stood out there a considerable time, 
and kept up a great stamping. After awhile, 
the person who held the horse kept walking 
backward and forward; I suppose the horse 
was there an hour and a half altogether. 
Then I saw Booth come out of the door 
with something in his hand, glittering. He 
came out of the theater so quick that it 
seemed as if he but touched the horse, 
and it was gone like a flash of lightning. I 
thought to myself that the horse must surely 
have run off with the gentleman. Presently 
there was a rush out of the door, and I heard 
the people saying. “Which way did he go?” 
1 asked a gentleman what was the matter, 
and he said the President wras shot. I asked 
who shot him. Said he, “ The man who went 
out on the horse.” 
Mary Ann Turner (colored.) 
For the Prosecution.—May 16. 
I reside in the rear of Ford’s Theater; 
my front-door fronts to the back of the 
theater. I knew John Wilkes Booth when 
I saw him. I saw him on the afternoon of 
the 14th, standing in the back-door of Ford’s 
Theater, with a lady by his side. Between 
7 and 8 o’clock that night, he brought a horse 
up to the back door of the theater, and, 
opening it, called “Ned” three times. 
Ned came to him, and I heard him say, 
m a low voice, “Tell Maddox to come here.” 
When Maddox came, Booth said something 
m a very low voice to him, and I saw Maddox 
reach out his hand and take the horse. 
Where Ned went I can not tell. Booth 
then went, into the theater. After the assas- 
sination, I heard the horse going very rapidly 
°ut of the alley. I ran immediately to my 
door and opened it, but he was gone. The 
crowd then came out, and this man, Ned, 
came out of the theater. 
„ [The witness here identified the accused, Edward 
Spangler.] 
When I saw him, I said, “Mr. Ned, you 
know that man Booth called you.” Said he, 
‘ I know nothing about it.” 
I went up to the theater door, and saw 
Mr. Spangler. When he came out, I said 
to him, “Mr. Spangler, that gentleman called 
you.” Said he, “ No, he did n’t.” Said I, 
“Yes, he did.” He said, “No, he didn’t 
call me.” He denied it, and I kept on say- 
ing so. 
Cross-examined by Mr. Ewing. 
When Mr. Maddox took the horse round 
out of my sight, I could not see who held 
him. He came back after a little while, and 
went into the theater again. Mr. Spangler 
came out when Booth called him, and told 
him to tell Maddox to come out, but I am 
not certain that Spangler came out again. 
Mary Jane Anderson (colored.) 
For the Prosecution.—May 16. 
. I live right back of Ford’s Theater, ad- 
joining Mrs. Turner’s house. 1 knew John 
Wilkes Booth by sight. I saw him on the 
morning of the 14th of April down by the 
stable, and again between 2 and 8 o’clock in 
me afternoon, standing in the theater back- 
d°°r, in the alley, talking to a lady. I stood 
111 tny gate and looked right wishful at him. 
He and this lady were pointing up and 
oown the alley, as if they were talking about 
m They stood there a considerable time, 
and then Booth went into the theater. 
After I had gone up stairs that night, a 
triage drove up, and after that I heard a 
For the Prosecution.—May 22. 
James L. Maddox. 
I was employed at Ford’s Theater as 
property man. In December last, I rented 
from Mrs. Davis, for John Wilkes Booth, the 
stable where he kept his horse up to the 
time of the murder of President Lincoln. 
Mr. Booth gave me the rent money monthly, 
and I paid it to Mrs. Davis. 
1 saw Harry Ford decorating the Presi- 76 
THE CONSPIRACY TRIAL. 
dent’s box on the afternoon of the 14th of 
April, but do not remember seeing any one 
else in the box. I was in there but once. 
the President’s house, say that night that he 
had come down that morning and engaged 
the box for the President. 
I saw Joe Simms, the colored man, coming 
from Mr. Ford’s room, through the alley 
way,-carrying on his head the rocking-chair 
that the President was to use in the evening. 
I had not seen that chair in the box this 
season; the last time I saw it before that 
afternoon was in the winter of 1863, when 
it was used by the President on his first visit 
to the theater. 
James P. Ferguson. 
I keep a restaurant, adjoining Ford’s 
Theater, on the upper side. 1 saw J. Wilkes 
Booth, on the afternoon of the 14th, between 
2 and 4 o’clock, standing by the side of 
his horse—a small bay mare; Mr. Maddox 
was standing by him talking. Booth re- 
marked, “See what a nice horse I have got; 
now watch, he can run just like a cat; ” and, 
striking his spurs into his horse, he went off 
down the street. 
For the Prosecution.—May 15 
Cross-examined by Mr. Ewing. 
My duties require me to be on the stage 
while the performance is going on, unless, as 
sometimes happened, there is nothing at all 
to do, when Igo out. My business is to see 
that the furniture is put on the stage aright, 
and to get the actors any side properties that 
may be required for use in the play. 
The passage way by which Booth escaped 
is usually clear. Only when we are playing 
a heavy piece, and when in a hurry, do we 
run things in there. The “American Cousin,’’ 
which was performed on that night, is not a 
heavy piece, and the passage would therefore 
be clear of obstruction. 
About 1 o’clock Mr. Harry Ford came 
into my place and said, “Your favorite, Gen- 
eral Grant, is to be at the theater to-night, 
and if you want to see him you had better go 
and get a seat.” I went and secured a seat 
directly opposite the President’s box, in the 
front dress-circle. I saw the President and 
his family when they came in, accompanied 
by Miss Harris and Major Rathbone. 
Somewhere near 10 o’clock, during the sec- 
ond scene of the third act of “Our American 
Cousin,” I saw Booth pass along near the 
President’s box, and then stop and lean 
against the wall. After standing there a 
moment, I saw him step down one step, put 
his hands on the door and his knee against 
it, and push the door open—the first door 
that goes into the box. 1 saw no more of 
him until he made a rush for the front of the 
box and jumped over. He put his left hand 
on the railing, and with his right he seemed 
to strike back with a knife. I could see the 
knife gleam, and the next moment he was 
over the box. As he went over, his hand 
was raised, the handle of the knife up, the 
blade down. The President sat in the left- 
hand corner of the box, with Mrs. Lincoln 
at his right. Miss Harris was in the right- 
hand corner, Major Rathbone sitting back at 
her left, almost in the corner of the box. At 
the moment the President was shot, he was 
leaning his hand on the railing, looking down 
at a person in the orchestra; holding the flag 
that decorated the box aside to look between 
it and the post, I saw the flash of the pistol 
right back in the box. As the person jumped 
over and lit on the stage, I saw it was Booth. 
As he struck the stage, he rose and exclaimed, 
“ Sic semper tyrannus I and ran directly across 
the stage to the opposite door, where the actors 
come in. 
I heard some one halloo out of the box, 
“Revenge for the South!” I do not know 
that it was Booth, though I suppose it must 
have been; it was just as he was jumping 
over the railing. His spur caught in the blue 
part of the flag that was stretched around the 
box, and, as he went over, it tore a piece of 
the flag, which was dragged half way across 
the stage on the spur of his right heel. 
Spangler’s position on the stage was on 
the left-hand side, facing the audience, and 
the same side that the President’s box was 
on. I saw Spangler during nearly every 
scene. If he had not been at his place, I 
should certainly have missed him. If he 
had missed running off a single scene, I 
should have known it. Sometimes a scene 
lasts twenty minutes, but in the third act 
of the “ American Cousin ” there are seven 
scenes, the way Miss Keene plays it, and had 
Spangler been absent five minutes after the 
first scene of this act we should have noticed 
it. In the second act, I guess, he has a half 
hour, and in the first scime of the third act 
he has twenty-five minutes, and after this the 
scenes are pretty quick. 
I was at the front of the theater during the 
second aGt, but did not see Spangler there. 
I have never seen Spangler wear a moustache 
during the two years that I have known him. 
I was in the first entrance to the stage, the 
side the President’s box is on, at the moment 
of the assassination. Three or four minutes 
before that, while the second scene of the 
third act was on, I crossed the stage with the 
will, and saw Spangler in his place. After 
the pistol was fired, I caught a glimpse of 
Booth, when he was about two feet off the 
stage. I ran on the stage and heard a call 
for water; I ran and brought a pitcher full, 
and gave it to one of the officers. I did not 
see Spangler after that, that I remember, 
until the next morning. I may have seen 
him, but not to notice him. 
I heard about 12 o’clock that the Presi- 
dent was coming to the theater that night; I 
was told so by Mr. Harry Ford. I heard a 
young man, one of the officers connected with THE ASSASSINATION, 
77 
Just as Booth went over the box, I saw 
the President raise his head, and then it hung 
back. I saw Mrs. Lincoln catch his arm, 
and I was then satisfied that the President 
was hurt. By that time Booth was across 
the stage. A young man named Harry 
Hawk was the only actor on the stage at 
the time. 
one with castors in the box this season, but 
not the rocking-chair. The last time I saw 
the chair before it was placed in the Presi- 
dent’s box was in Mr. Ford’s room, adjoining 
the theater. 
On Monday morning, after the assassina- 
tion, I was trying to find out how the door of 
the President’s box had been fastened, when 
I first saw the mortise in the wall. The 
Secretary of War came down to the theater 
to examine the box, and he told me to bring 
a stick and fit it in the door. I found that 
a stick about three feet six inches long, if 
pressed against it, would prevent the door 
from being opened on the outside, but if the 
door was shaken, the stick would fall. The 
mortise in the plastering looked as though it 
had been recently made, and had the appear- 
ance of having been made with a knife. Had 
a chisel or hammer been used, it would have 
made a sound, but with a knife it could have 
been done quietly. It might have required 
some ten or fifteen minutes to make it. 1 
had not been in the box, I think, for a week. 
Had the marks been there then, I think I 
should have observed it, as I am particular 
in looking around to see the place is clean. 
It was the duty of Mr. Rayboltd, the up- 
holsterer, to decorate the box; but he had a 
stiff neck, and got Mr. Clay Ford to do it for 
him, so he told me afterward. 
At the moment of the assassination I was 
in front of the theater; twenty minutes before, 
1 was behind the scenes where 1 saw Spangler; 
he was then waiting for his business to change 
the scene. 
I left the theater as quickly as I could, 
Und wrent to the police station on D Street, 
to give notice to the Superintendent of Police, 
Hr. Webb. I then ran up D Street to the 
house of Mr. Peterson, where the President 
was taken. Colonel Wells was standing on 
the steps, and I told him that I had seen it 
Ml, and I knew the man who jumped out of 
the box. 
Next morning I saw Mr. Clifford, who said, 
11 You made a hell of a statement about what 
you saw last night; how could you see the 
flash of the pistol when the ball was shot 
through the door?” On Sunday morning 
Miss Harris, accompanied by her father, 
Judge Clin, and Judge Carter, came down to 
the theater, and I went in with them. We 
got a candle and examined the hole in the 
door of the box through which Mr. Gifford 
said the ball had been shot. It looked to 
me as if it had been bored by a gimlet, and 
then rimed round the edge with a knife. In 
several places it was scratched down, as if 
the knife had slipped. After this examina- 
tion, I was satisfied that the pistol had been 
fired in the box. 
Mr. Gifford is the chief carpenter of the 
theater, and I understood had full charge 
of it. I recollect when Richmond was sur- 
rendered I said to him, “ Have you not got 
any flags in the theater?” He replied, “ Yes, 
I have; I guess there is a flag about.” I 
said, “ Why do you not run it out on the 
roof?” He answered, “There’s a rope, isn’t 
that enough?” I said, “You are a hell of 
a man, you ought to be in the Old Capitol.” 
He did n’t like me any how. 
The passage on each side of the entrances 
is always kept free. The entrances are al- 
ways more or less filled with tables, chairs, 
etc. The passage way through which Booth 
passed to the outer door is about two feet 
eight inches to three feet wide; some places a 
little wider, some a little narrower; but it is 
never obstructed, except by people when they 
have a large company on the stage; never by 
chairs, tables, etc. It is necessary to keep 
this passage way clear to allow the actors and 
actresses to pass readily from the green-room 
and dressing-rooms to the stage. I was on 
the stage until the curtain went up at each 
act, and saw Spangler there each time. The 
last time I saw him was about half-past 9 
o’clock. 
Cross-examined by Mr. Ewing. 
We looked for the bar that had been used 
to fasten the box-door, but could not find it. 
I know Mr. Spangler very well. I never 
saw him wear a moustache, that I recollect. 
Cross-examined by Mr. Ewing. 
James J. Gifford. 
For the Prosecution.—May 19. 
I was the builder of Ford’s Theater, and 
am stage-carpenter there. I noticed Mr. 
Harry Clay Ford in the President’s box, on 
the 14th of April last, putting flags out; I 
Hink I saw Mr. Raybold with him. When 
1 was in the box on Saturday, the 15th, I 
Baw the large rocking-chair. I do not know 
'whether or not it has been previously used 
‘■His season, but I saw it there last season. It 
Was part of a set of furniture—two sofas and 
‘Wo high-backed chairs—one with rockers and 
0,16 with castors. I have sometimes seen the 
I was in front of the theater a part of the 
time between the second and third acts. I 
did not see Spangler in front of the theater 
at all; I do not think he could have been 
there without my knowing it, because the 
scenes would have gone wrong had he left 
the stage for any length of time. I never 
knew Spangler to wear a moustache. 
In the play of the “American Cousin ” there 
are, I believe, some five or six scenes in each 
act, and Spangler’s presence on the stage 
would have been indispensable to the per- 78 
THE CONSPIRACY TRIAL. 
formance. Ritterspaugh was on duty with 
Spangler on lx is side of‘ the stage that night. 
I know nothing more of Booth’s connection 
with Spangler than that it was friendly. 
Everybody about the house, actors and all, 
were friendly with Booth; he had such a 
winning way that he made every person like 
him. lie was a good-natured, jovial kind of 
man, and the people about the house, as far 
as 1 know, all liked him. He had access to 
the theater by all the entrances, just as the 
employees of the theater had. Spangler ap- 
peared to be a sort of drudge for Booth, doing 
such things as hitching up his horse, etc. 
erous cheering. The party proceeded along 
in the rear of the dress-circle and entered the 
box that had been set apart for their recep- 
tion. On entering the box, there was a large 
arm-chair that was placed nearest the audi- 
ence, farthest from the stage, which the Pres- 
ident took and occupied during the whole 
of the evening, with one exception, when he 
got up to put on his coat, and returned and 
sat down again. When the second scene of 
the third act was being performed, and while 
I was intently observing the proceedings 
upon the stage, with my back toward the 
door, I heard the discharge of a pistol behind 
me, and, looking round, saw through the 
smoke a man between the door and the Pres- 
ident. The distance from the door to where 
the President sat was about four feet. At 
the same time I heard the man shout some 
word, which I thought was “ Freedom !’’ 1 
instantly sprang toward him and seized him. 
He wrested himself from my grasp, and 
made a violent thrust at my breast with a 
large knife. I parried the blow by striking 
it up, and received a wound several inches 
deep in ray left arm, between the elbow and 
the shoulder. The orifice of the wound waa 
about an inch and a half in length, and 
extended upward toward the shoulder sev- 
eral inches. The man rushed to the front of 
the box, and I endeavored to seize him again, 
but only caught his clothes as he was leap- 
ing over the railing of the box. The clothes, 
as I believe, were torn in the attempt to hold 
him. As he went over upon the stage, 1 
cried out, “Stop that man.” I then turned 
to the President; his position was not 
changed ; his head was slightly bent forward, 
and his eyes were closed. 1 saw that he was 
unconscious, and, supposing him mortally 
wounded, rushed to the door for the purpose 
of calling medical aid. 
On reaching the outer door of the passage 
way, I found it barred by a heavy piece of 
plank, one end of which was secured in the 
wall, and the other resting against the door. 
It had been so securely fastened that it re- 
quired considerable force to remove it. This 
wedge or bar was about four feet from the 
floor. Persons upon the outside were beat- 
ing against the door for the purpose of enter- 
ing. I removed the bar, and the door was 
opened. Several persons, who represented 
themselves as surgeons, were allowed to 
enter. I saw there Colonel Crawford, and 
requested him to prevent other persons from 
entering the box. 
I then returned to the box, and found the 
surgeons examining the President’s person. 
They had not yet discovered the wound. As 
soon as it was discovered, it was determined 
to remove him from the theater. He was 
carried out, and I then proceeded to assist 
Mrs. Lincoln, who was intensely excited, to 
leave the theater. On reaching the head of 
the stairs, I requested Major Potter to aid 
me in assisting Mrs. Lincoln across the 
Captain Theodore McGowan, 
For the Prosecution.—May 15. 
1 was present at Ford’s Theater on the 
night of the assassination. I was sitting in 
the aisle leading by the wall toward the door 
of the President’s box, when a man came and 
disturbed me in my seat, causing me to push 
my chair forward to permit him to pass; he 
stopped about three feet from where I was 
sitting, and leisurely took a survey of the 
house. I looked at him because he happened 
to be in my line of sight. He took a small 
pack of visiting-cards from his pocket, select- 
ing one and replacing the others, stood a 
second, perhaps, with it in his hand, and then 
showed it to the President’s messenger, who 
was sitting just below him. Whether the 
messenger took the card into the box, or, 
after looking at it, allowed him to go in, I 
do not know; but, in a moment or two more, 
I saw him go through the door of the lobby 
leading to the box, and close the door. 
After I heard the pistol fired, I saw the 
body of a man descend from the front of the 
box toward the stage. He was hid from my 
sight for a moment by the heads of those 
who sat in the front row of the dress-circle, 
but in another moment he reappeared, strode 
across the stage toward the entrance on the 
other side, and, as he passed,! saw the gleam- 
ing blade of a dagger in his right hand. He 
disappeared behind the scenes in a moment, 
and 1 saw him no more. 
I know J. Wilkes Booth, but, not seeing 
the lace of the assassin fully, I did not at the 
time recognize him as Booth. 
Major Henry R. Rathbone. 
On the evening of the 14th of April last, 
at about twenty minutes past 8 o'clock, I, in 
company with Miss Harris, left my residence 
at the corner of Fifteenth and H Streets, and 
joined the President and Mrs. Lincoln, and 
went with them, in their carriage, to Ford’s 
Theater, on Tenth Street. On reaching the 
theater, when the presence of the President 
became known, the actors stopped playing, 
the band struck up “ Hail to the Chief,” and 
the audience rose and received him with vocif- 
For the Prosecution.—May 15. THE ASSASSINATION. 
79 
street to the house where the President was 
being conveyed. The wound which 1 had 
received had been bleeding very profusely, 
and on reaching the house, feeling very faint 
from the loss of blood, I seated myself in 
the hall, and soon after fainted away, and 
was laid upon the floor. Upon the return 
of consciousness I was taken to my resi- 
dence. 
wanted many minutes until the scene changed, 
and it was a time in the scene when the 
stage and passage way would have been 
somewhat obstructed by some of the scene- 
shifters, and the actors in waiting for the 
next scene, which requires their presence. 
I never remember seeing Spangler wear a 
moustache. 
In a review of the transactions, it is my 
confident belief that the time which elapsed 
between the discharge of the pistol and the 
time when the assassin leaped from the box 
did not exceed thirty seconds. Neither Mrs. 
Lincoln nor Miss Harris had left their seats. 
[A bowie-knife, with a heavy seven-inch blade, was 
exhibited to the witness, stains of blood being still upon 
the blade.] 
Joseph B. Stewart. 
For the Prosecution.—May 20. 
I was at Ford’s Theater on the night of 
the assassination, of the President. I was 
sitting in the front seat of the orchestra, on 
the right-hand side. The sharp report of 
a pistol at about half-past 10—evidently a 
charged pistol—startled me. I heard an ex- 
clamation, and simultaneously a man leaped 
from the President’s box, lighting on the 
stage. He came down with his back slight- 
ly toward the audience, but rising and turn- 
ing, his face came in full view. At the 
same instant I jumped on the stage, and the 
man disappeared at the left-hand stage en- 
trance. 1 ran across the stage as quickly a* 
possible, following the direction he took, 
calling out, “Stop that man!” three times. 
When about twenty or twenty-five feet from 
the door through which the man ran, the 
door slammed to and closed. Coming up to 
the door, I touched it first on the side 
where it did not open; after which I caught 
hold at the pioper place, opened the door, 
and passed out. The last time that I exclaimed 
“Stop that man,” some one said, “He is 
getting on a horse at the door;” and almost 
as soon as the words reached my ears I 
heard the tramping of a horse. On opening 
the door, after the temporary balk, I per- 
ceived a man mounting a horse. The moon 
was just beginning to rise, and I could see 
any thing elevated better than neai the 
ground. The horse was moving with a 
quick, agitated motion—as a horse will do 
when prematurely spurred in mounting— 
with the reins drawn a little to one side, 
and for a moment I noticed the horse describe 
a kind of circle from the right to the left. I 
ran in the direction where the horse was head- 
ing, and when within eight or ten feet from 
the head of the horse, and almost up with- 
in reach of the left flank, the rider brought 
him round somewhat in a circle from the 
left to the right, crossing over, the horse’s 
feet rattling violently on what seemed to be 
rocks. I crossed in the same direction, aim- 
ing at the rein, and was now on the right 
flank of the horse. He was rather gaining 
on me then, though not yet in a forward 
movement. I could have reached his flank 
with my hand when, perhaps, two-thirds of 
the way over the alley. Again he backed 
to the right side of the alley, brought th» 
horse forward and spurred him; at the same 
instant he crouched forward, down over the 
pummel of the saddle. The horse then went 
This knife might have made a wound sim- 
ilar to the one I received. The assassin 
beld the blade in a horizontal position, I 
think, and the nature of the wound would 
indicate it; it came down with a sweeping 
blow from above. 
[The knife was offered in evidence.] 
William Withers, Jr. 
For the Prosecution.—May 15. 
I am the leader of the orchestra at Ford’s 
Theater. I had some business on the stage 
with our stage-manager on the night of the 
14th, in regard to a national song that I had 
composed, and I went to see what costume 
they were going to sing it in. After talking 
with the manager, I was returning to the 
orchestra, when I heard the report of a pis- 
tol. I stood with astonishment, thinking 
why they should fire off a pistol in “Our 
American Cousin.” As I turned round I 
beard some confusion, and saw a man run- 
ning toward me with his head down. I did 
not know what was the matter, and stood 
completely paralyzed. As he ran, 1 could 
not get out of his way, so he hit me on the 
leg, and turned me round, and made two 
nuts at me, one in the neck and one on the 
Blde, and knocked me from the third en- 
trance down to the second. The scene saved 
*ne. As I turned, I got a side view of him, 
and I saw it was John Wilkes Booth. He 
then made a rush for the back door, and out 
be went I returned to the stage and heard 
that the President was killed, and I saw him 
ln the box apparently dead. 
Where I stood on the stage was not more 
than a yard from the door. He made one 
plunge at the door, which I believe was 
ebut, and instantly he was out. The door 
°Pcns inward on the stage, but whether he 
opened it, or whether it was opened for him, 
1 do not know. I noticed that there was 
Nothing to obstruct his passage out, and this 
kerned strange to me, for it was unusual. 
On that night the passage seemed to be 
olcar of every thing. I do not think it 
Cross-examined by Mr. Ewing. 80 
THE CONSPIRACY TRIAL. 
forward, and soon swept rapidly to the left, 
up toward F Street. I still ran after the 
horse some forty or fifty yards, and com- 
manded the person to stop. All this occu- 
pied only the space of a few seconds. 
After passing the stage, I saw several per- 
sons in the passage way, ladies and gentle- 
men, one or two men, perhaps five persons. 
Near the door on my right hand, I saw 
a person standing, who seemed to be in the 
act of turning, and who did not seem to be 
moving about like the others. Every one 
else that I saw but this person, seemed in- 
tensely excited, literally bewildered; they 
were all in a terrible commotion and moving 
about, except this man. As I approached 
the door, and only about fifteen feet from it, 
this person was facing the door; but, as I 
got nearer, he partially turned round, moving 
to the left, so that I had a view of him as he 
was turning from the door and toward me. 
under my right elbow, [the witness was a tall 
man,] and as I approached the horse at the 
nearest point, some one ran rapidly out of the 
alley. The one who passed me is not so tall 
as Spangler by, perhaps, four or five inches. 
I did not notice that the person whom I now 
suppose to be Spangler wore whiskers or a 
moustache; my impression is that he was 
slightly bearded. It was his visage, the side 
face, that struck me. I do not undertake to 
swear positively that the prisoner, Edward 
Spangler, is the person I saw near that door; 
but I do say that there is no one among 
these prisoners, who calls that man to my 
mind, except the one who, I am told, is Mr. 
Spangler; but I am decided in ray opinion, 
that Spangler resembles the person I saw 
there. 
As I got to the door, Booth was just com- 
pleting his balance in the saddle. I think, 
from his position and the motion of the 
horse, that the moment he got one foot in 
the stirrup he spurred the horse, and, hav- 
ing the rein drawn more on one side than 
the other, lost control of him for the moment, 
so far as making him take a straight for- 
ward movement; he was circling round, 
moving with a quick sort sort of motion, ap- 
parently making more exertion than head- 
way, but still going pretty fast. 
Hearing the report of a loaded pistol, and 
seeing the man jump from the President’s 
box with a dagger in his hand, my impres- 
sion was that the person had assassinated, 
or attempted to assassinate, the President, 
and every effort I made after I started to get 
upon the stage was under this conviction; 
so much so that I stated to the people in the 
tenement houses in the rear, before 1 returned 
to the theater, that the person who went off 
on that horse had shot the President. 
[The witness was directed to look at the prisoners, to see if 
he recognized among them the person he saw standing at 
the door.] 
That man [pointing to Edward Spangler] 
looks more like the person I saw near the 
door than anybody else I see here. He re- 
calls the impression of the man’s visage as 
I passed him. When the assassin alighted 
on the stage, I believed I knew who it 
was that had committed the deed; that it 
was J. Wilkes Booth, and I so informed 
Richards, Superintendent of the Police, that 
night. I knew Booth by sight very well, 
and when I was running after him, I had 
no doubt in my mind that it was Booth, 
and should have been surprised to find that 
it was anybody else. I felt a good deal 
vexed at his getting away, and had no doubt 
when I started across the stage that 1 could 
catch him. From the time I heard the door 
slam until I saw the man mounting his 
horse, was not over the time I could make 
two steps. 
Job Simms (colored.) 
For the Prosecution.—May 15. 
I am satisfied that the person I saw in- 
side the door was in a position and had an 
opportunity, if he had been disposed to do so, 
to have interrupted the exit of Booth, and 
from his manner, he was cool enough to 
have done so. This man was nearest "of all 
to the door, and could have opened and 
gone out before I did, as it would have been 
but a step to the right and a reach to open it. 
I have worked at Ford’s Theater for the past 
two years. On the day of the President’s 
assassination, during the performance, while 
I was up on the flies to wind up the curtain, 
I heard the fire of a pistol, and looking down 
I saw Booth jump out of a private box down 
on to the stage, with a bowie-knife in his 
hand, and then making his escape across the 
stage. Between 5 and 6 o’clock that day, 
I was in front of the theater, when I saw 
Booth go into the restaurant by the side of 
the theater. Spangler was sitting out in front, 
and Booth invited him to take a drink. I did 
not hear a word spoken between them. Booth 
and Spangler were very intimate. I have 
often seen them together, and drinking to- 
gether. 
Cross-examined by Mr. Ewing. 
The man I have spoken of stood about 
three feet from the door out of which Booth 
passed; I noticed him just after the door 
slammed. From the position in which he 
stood, he might have slammed it without my 
noticing it. The lock of the door, as I ap- 
proached it, was on the right-hand side, the 
hinges to the left. If the door had been 
open and I had not been stopped, I could 
have got the range of the horse outside. 
As 1 passed out of the door, a person, a 
small person, passed behind me, directly 
Cross-examined by Mr. Ewing. 
Spangler had charge of Booth’s horses. 
There was a young man hired by Booth, but 
I suppose Mr. Booth thought he might not THE ASSASSINATION 
81 
do right by his horses, so he got Spangler to 
see to their being fed and watered. 
Spangler’s place on the stage is at the back 
part of the stage, next to the back-door lead- 
ing out to the side alley. The President’s box 
is on the left-hand side as you look toward 
the audience. My position is on the flies on 
the opposite side of the President’s box, and 
Mr. Spangler’s place was on the opposite side 
below, the side the President’s box is on. I 
saw him in the first act. Ido not remember 
seeing him in the second, but I was not look- 
ing for him. When I saw Mr. Spangler, he 
had his hat on. I never saw him wear a 
moustache. Mr. Spangler was on the stage 
attending to his business as usual that night. 
He was obliged to be there. From my position 
on the flies I could see him very well. 
the stage. It was, I think, in the third act; 
and from the time Booth brought his horse 
there until the President was shot was, I 
think, about three-quarters of an hour. I 
I was at the window pretty nearly all the 
time. From the time Booth brought the 
horse until he went away, and from the time 
I looked out of the window, John Peanuts 
was lying on the bench holding the horse; I 
did not see any one else holding it. 
John Peanuts attended to Mr. Booth’s 
horses. I have seen Spangler hold Booth’s 
horses or hitch them up, but 1 never saw him 
put any gearing on them. Spangler’s place 
on the stage was on the same side as the 
President’s box, and he was there when Booth 
called him. There was another man work- 
ing with Spangler to help him shove the 
scenes. 
Recalled for the Prosecution.—May 18. 
After the President was shot, I came down 
the stairs, and I saw Spangler out there at 
the door Booth went out of. There were, I 
think, two or three other or more men out 
there, some of whom were strangers. When 
I came down, I went toward the door, and 
Spangler came out, and I asked him who it 
was that held the horse, and he said, “ Hush ! 
do n’t say any thing about it; ” and I did n’t 
say any more, though I knew who it was, 
because I saw the boy holding the horse. 
Spangler, I suppose, when he said this, was 
about a yard and a half from the door, out- 
side the door. Spangler appeared to be ex- 
cited; every person appeared to be very much 
excited. By the time I got down stairs, the 
door through which Booth had passed was 
open. I never saw Spangler wear a moustache. 
On the afternoon of the day of the assas- 
sination, I saw Mr. Harry Ford and another 
gentleman fixing up the box. Mr. Ford told 
me to go to his bed-room and get a rocking- 
chair, and bring itdown and put it in the Presi- 
dent’s box. I did so. The chair had not been 
there before this season. It was a chair with 
a high back to it and cushioned. Mr. Span- 
gler was at the theater during the afternoon. 
He worked there altogether, the same as I did. 
Cross-examined by Mr. Ewing. 
I did not notice Mr. Spangler there in the 
afternoon, but his business was to be there. It 
was about 3 o’clock in the afternoon when 
Mr. Harry Ford and, I think, Mr. Bucking- 
ham were in the private box. 1 did not see 
Spangler in the President’s box in the after- 
noon, nor did I see him when I came away 
from the private box. 
Dr. Robert King Stone. 
John Miles (colored.) 
I am a practicing physician in this city, 
and was the family physician of the late 
President of the United States. 
For the Prosecution—May 16. 
For the Prosecution.—May 15. 
I work at Ford’s Theater. I was there 
on the day of the assassination of the Presi- 
dent. About 3 o’clock in the afternoon Booth 
put his horse in the stable, and Ned Spangler 
and Jim Maddox were with him. The stable 
is not more than five yards from the theater. 
Between 9 and 10 o’clock that night, J. 
Wilkes Booth brought a horse from the stable, 
and, coming to the back door of the theater, 
called “ Ned. Spangler’’ three times. When 
Booth first called Spangler, some person told 
him that Booth called him, and he ran across 
the stage to him. I saw nothing more of 
Spangler or Booth until I heard the pistol go 
off In a minute or two I heard the sound 
of a horse’s feet going out of the alley. Before 
this I saw a boy holding the horse in the 
alley, perhaps for fifteen minutes. That was 
after Booth had called Spangler. 
I was sent for by Mrs. Lincoln immedi- 
ately after the assassination. I arrived in a 
very few moments, and found that the Presi- 
dent had been removed from the theater to 
the house of a gentleman living directly op- 
posite; and had been carried into the back 
room of the residence, and was there placed 
upon a bed. I found a number of gentle- 
men, citizens, around him, and, among oth- 
ers, two assistant surgeons of the army, who 
had brought him over from the theater, and 
had attended to him. They immediately 
gave'the case over to my care, knowing my 
relations to the family. I proceeded to ex- 
amine the President, and found that he had 
received a gun-shot wound in the back part 
of the left side of his head, into which I car- 
ried my finger. I at once informed those 
around that the case was a hopeless one; 
that the President would die; that there was 
no positive limit to the duration of his life; 
that his vital tenacity was very strong, and he 
would resist as long as any man could; but 
Cross-examined by Mr. Ewing. 
When Booth called Spangler I was up on 
the flies, about three and a balf stories from 82 
THE CONSPIRACY TRIAL. 
that death certainly would soon close the 
scene. I remained with him, doing what- 
ever was in my power, assisted by my friends; 
but, of course, nothing could be done, and 
he died from the wound the next morning 
at about half-past 7 o’clock. It was about 
a quarter past 10 that I reached him. 
The next day, previous to the process of 
embalmment, an examination was made in the 
presence of Surgeon-General Barnes, Dr. Cur- 
tis, and Dr. Woodward, of the army. We 
traced the wound through the brain, and the 
ball was found in the anterior part of the 
same side of the brain, the left side; it was 
a large ball, resembling those which are shot 
from the pistol known as the Derringer; an 
unusually large ball—that is, larger than 
those used in the ordinary pocket revolvers. 
It was a leaden hand-made ball, and was 
flattened somewhat in its passage through 
the skull, and a portion had been cut off in 
going through the bone. I marked the ball 
“A. L.,” the initials of the late President, 
and in the presence of the Secretary of War, 
in his office, inclosed it in an envelope, sealed 
it with my private seal, and indorsed it with 
my name. The Secretary inclosed it in an- 
other envelope, which he indorsed in like 
manner, and sealed with his private seal. It 
was left in his custody, and he ordered it to 
be placed among the archives of his depart- 
ment. 
Isaac Jacquette. 
I was present at Ford’s Theater on the 
night of the assassination. Soon after the 
President was carried out, I went to the box 
with several others. 
For the Prosecution.—May 18. 
[A woodon bar, about two inches square and three feet 
long, was handed to the witness.] 
This wooden bar was lying on the floor 
inside of the first door going into the box. 
I picked it up and took it home with me. 
There was an officer stopping at my boarding- 
house, and he wanted a piece of it, which I 
sawed off for him, but he concluded after- 
ward not to take it. It is nearly covered 
with spots of blood which were fresh at the 
time when I found it. 
[The bar was offered in evidence.] 
Judge A. B. Odin. 
For the Prosecution.—May 18. 
On Sunday, the 16th of April, accompanied 
by Miss Harris, I visited Ford’s Theater, and 
made an examination of the President’s box, 
doors, locks, etc. My attention was called to 
the incision into the wall that was prepared 
to receive the brace that fitted into the corner 
of the panel of the outer door; the brace 
was not there. The door opens into the 
passage leading to the box at an angle with 
the wall, and a brace, fitted against the wall 
to the corner of the door, fastens the door 
very securely. 1 discovered that, and looked 
for the remains of the plastering that had 
been cut from the wall to make this incision. 
That, so far as 1 could observe, had been 
carefully removed from the carpet, where it 
must have fallen, as it was cut by some 
sharp instrument 
The indentation upon the panel of the 
door where the brace might have been fixed 
from against the wall, was quite perceptible, 
and the brace was so fixed that it would be 
very difficult to remove it from the outside. 
I think it could not have been done without 
breaking the door down. The more pressure 
that was made upon it from the outside, or 
the dress-circle, the firmer it would have been 
held in its place. 
It had been said that the pistol was dis- 
charged through the panel of the door. As 
the passage way is somewhat dark, I pro- 
cured a light and examined very carefully 
the hole through the door. I discovered at 
once that that was made by some small in- 
strument in the first place, and was, as I 
supposed, cut out then by a sharp instrument 
like a penknife; and, by placing the light 
near the door, I thought I saw marks of a 
shaip cutting knife used to clean out the hole. 
I examined to see if I could discover the 
chips that must have been made by boring 
and cutting this small hole, but they had 
been removed. It was a freshly-cut hole, 
the wood apparently being as fresh as it 
would have been the instant it was cut 
[An official envelope, sealed with the official seal of the 
Secretary of War, was here opened by the Judge Advo- 
cate in the presence of the witness, from which was taken 
a Derringer pistol and an envelope containing a leaden 
ball in two pieces.] 
This is the ball which I extracted from 
the head of the President; I recognize it 
from the mark which I put upon it with my 
pen-knife, as well as from the shape of the 
ball. This smaller piece is the fragment 
which was cut off in its passage through the 
skull. The ball was flattened, as I have be- 
fore described. 
[The ball was then offered in evidence.] 
William T. Kent. 
For the Prosecution.—May 16. 
About three minutes after the President 
was shot, I went into his box; there were 
two other persons there and a surgeon, who 
asked me for a knife to cut open the Presi- 
dent’s clothes. On leaving the theater I 
missed my night-key, and thinking .1 had 
dropped it in pulling out my knife, 1 hurried 
back, and on searching round the floor of 
the box, I knocked my foot against a pistol, 
which I picked up, and, holding it up, 1 cried 
out, “ I have found the pistol.” I gave it up 
to Mr. Gobright, the agent of the Associated 
Press. The next morning I went round to 
the police station and identified it there. 
[A Derringer pistol, about six inches in length, was 
handed to the witness.] 
This is the pistol I picked up in the Pres- 
ident’s box on the night of the 14th of April. 
[The pistol was offered in evidence.] PURSUIT AND CAPTURE OP BOOTH AND lIEROLD. 
83 
I then discovered that the clasp which fas- 
tens the bolt of the outer door had been 
loosened. The upper screw holding the clasp 
had been loosened in such a way that when 
the door was locked I could push it open 
with my forefinger. 
I then placed the chair in which the Pres- 
ident sat in the position, as nearly as Miss 
Harris could recollect, it had occupied on 
the night of the assassination. Seating my- 
self in it, and closing the door, it was found 
that my head—about midway from the base 
to the crown—would be in the range of the 
eye of a person looking through the hole 
in the door. It was a large high-backed 
arm-chair, with satin cushions, not a rock- 
ing-chair, I think. 
rung. He bad grown pretty much out of my 
recollection; still I knew him, though I had 
no intimacy with him. 
I last saw John H. Surratt before the 14th 
of April, I think, in October. In appearance, 
John H. Surratt is light complexioned, with 
rather singular colored hair; it is not red, it 
is not white, it is a kind of sandy. It was 
cut rounded, so as to lay low on his collar, 
and a little heavy. I did not notice whether 
he wore a moustache or a goatee, for I was 
more interested in his clothing. 
I never saw him in that dress before. In 
hight, I suppose he is about five feet, ten 
inches; he is not a stout man, but rather 
delicate. Ido not suppose he would weigh 
over one hundred and forty pounds, judging 
from his build. In walking, he stoops a 
little. He was on the same side of the 
avenue that I was, and passed within three 
feet of me. I am as certain that it was 
Surratt as that I stand here. 
Cross-examined by Mr. Aiken. 
David C. Deed. 
For the Prosecution.—May 15. 
On the 14th of April, about 2 o’clock, as 
1 was standing just below the National 
Theater, I saw John H. Surratt, and we 
bowed to each other as he passed. I am 
quite positive that it was John H. Surratt. 
He was dressed in a country-cloth suit of 
drab, very fine in its texture and appearance, 
and very genteelly got up. I took particular 
notice of his clothing, for it was my business 
to make clothes. He had a little, round- 
crowned drab hat. He was on foot, but I 
particularly noticed he wore a pair of new, 
brass-plated spurs, with very large rowels. 
1 have known John H. Surratt a great 
while. I knew him when quite a boy, at his 
father’s house, and have seen him out gun- 
See testimony of C. 
John F. Cotlb, 
For the Prosecution.—May 17. 
I am connected with the National Intelli- 
gencer. I knew J. Wilkes Booth in his 
lifetime, though not intimately. 
The statement that Booth, on the night 
before the assassination, wrote an article in 
which he set forth the reasons for his crime, 
and left it with one of the editors of the Na- 
tional Intelligencer, is not correct. No such 
paper was ever received, to my knowledge, 
D. Hess, page 99. 
PURSUIT AND CAPTURE OF BOOTH AND HEROLD. 
see the saddles and bridles. I showed him a 
saddle, and he said it was too small. Then 
I showed him another. That suited him 
very well, only that it had not the kind of 
stirrups he wanted. The stirrups were cov- 
ered with leather, and he wanted a pair of 
English steel stirrups. He then wanted to 
see the bridles. I took him into the office 
and showed him the bridles, and he picked 
out a double-reined bridle. Before he mounted 
the horse he asked me how late he could 
stay out with him. I told him he could 
stay out no later than 8 o’clock, or 9, at 
furthest. After that hour I became very 
uneasy about the horse, and wanted to see 
about it before I closed up the stable; and 
that is how I got to see Atzerodt and Herold. 
At about 10 o’clock, having a suspicion 
that Herold was going to take the horse 
For the Prosecution.—May 17. 
John Fletcher. 
David E. Herold came to our stable, in 
company with the prisoner, Atzerodt, about 
a quarter to 1 o’clock, on the 14th of 
April, and engaged a horse, which he told 
me to keep for him, and he would call for it 
at 4 o’clock. At a quarter past 4 he 
came and asked me how much I would 
charge him for the hire of the horse. I 
told him five dollars. He wanted it for 
four. I told him he could not have it for 
that. He knew the horse, and inquired for 
that particular one. I went down to the 
stable with him, and told him to take a mare 
that was in the stable; but he would not 
have her. I then told him I would give 
him the other horse. He then wanted to 84 
THE CONSPIRACY TRIAL. 
away, I went across E Street, and up Four- 
teenth Street, till I came upon Pennsylvania 
Avenue, close to Willard’s, where I saw 
Herold riding the roan horse. He seemed 
as if he was coming down from the Treasury 
upon the Avenue. He was passing Four- 
teenth Street; the horse was pulling to get 
to the stable, for he was a horse very well 
acquainted with the stable. I suppose Her- 
old knew me by the light of the lamp, for 
he turned the horse around, and I hallooed to 
him, “You get off that horse now; you 
have had it long enough;” but he put spurs 
to it, and went, as fast as the horse could 
go, up Fourteenth Street, making no reply to 
me. He was a very fast horse, and all the 
time used as a lady’s saddle-horse; any one 
could ride him, he was so gentle and nice; 
his pace was a single foot rack. He would 
trot if you w'ould let the bridle go slack. He 
was a light roan horse, black tail, legs, and 
mane, and close on fifteen hands high. I 
kept sight of him until he turned to the east 
of F Street. That was about twenty-five 
minutes past 10. 
I then returned to the stable for a saddle 
and bridle and horse myself, and went 
along the avenue until I came to Thirteenth 
Street; went up Thirteenth Street to E; along 
E until I came to Ninth, and turned down 
Ninth Street to Pennsylvania Avenue again. 
1 went along the avenue to the south side of 
the Capitol. I there met a gentleman, and 
asked him if he had passed any one riding on 
horseback. He said yes, and that they were 
riding very fast. I followed on until 1 got to 
the Navy Yard bridge, where the guard 
halted me, and called for the sergeant of the 
guard. He came out, and I asked him if a 
roan horse had crossed that bridge, giving 
him a description of the horse, saddle, and 
bridle, and the man that was riding. He 
said, “Yes, he has gone across the bridge.” 
“Did he stay long here?” I asked. He re- 
plied, “He said that he was waiting for an 
acquaintance of his that was coming on; but 
he did not wait, and another man came 
riding a bay horse or a bay mare, right after 
him.” “ Did he tell you his name?” “ Yes, 
he said his name was Smith.” I asked if I 
could cross the bridge after them. He said, 
“ Yes, you can cross, but you can not return.” 
I said, “If that is so, I will not go.” So I 
turned around and came back to the city 
again. When I came to Third Street, I 
looked at my watch, and it wanted ten min- 
utes to 12. I rode pretty fast going down to 
the Navy Yard, but I rode slowly coming 
back. I went along E Street until I got to 
Fourteenth Street, and inquired of the fore- 
man at Murphy’s stable, by the name of 
Dorsey, whether this roan horse had been 
put up there. He said, “No; but,” said he, 
“you had better keep in, for President Lin- 
coln is shot and Secretary Seward is almost 
dead.” I then returned to the stable, put 
up the horse, came outside of the office 
window, and sat down there; it was half-past 
1 o’clock. 
Cross-examined by Mr. Stone. 
When I caught sight of Herold on the 
horse, near Willard’s, the horse seemed some- 
what tired, and as if he wanted to go to the 
stable, and appeared as if he had been ridden 
a right smart distance. He was then going 
an easy kind of pace. I am quite satisfied 
that it was Herold I saw on my horse. 
I became acquainted with Herold by his 
calling at our stable, about the sth or 6th of 
April, inquiring for the man Atzerodt, but he 
did not inquire for him by name; he wanted 
to know if the man that kept the horse in 
the side stable had been there that day. He 
came to our stable every day, from about the 
sth or 6th of April until the 12th, inquiring 
for Atzerodt, and I saw him ride with him. 
One day Atzerodt went out riding, and sent 
the horse back by Herold, and the next day 
Atzerodt asked, “ How did he bring the horse 
back?” and if he rode him fast. 
Sergeant Silas T. Cobb. 
For the Prosecution.—May 16. 
On the night of the 14th of April, I was 
on duty at the Navy Yard bridge. At about 
half-past 10 or 11 o’clock, a man approached 
rapidly on horseback. The sentry challenged 
him, and I advanced to see if he was a proper 
person to pass. 
I asked him, “Who are you, sir?” He 
said, “My name is Booth.” I asked him 
where he was from. He made answer, “ From 
the city.” “Where are you going?” I said; 
and he replied, “I am going home.” I asked 
him where his home was. He said it was in 
Charles. I understood by that that he meant 
Charles County. I asked him what town. 
He said he did not live in any town. I said, 
“ You must live in some town.” Said he, “ I 
live close to Beantown ; but do not live in the 
town.” I asked him why he was out so late; 
if he did not know the rule that persons were 
not allowed to pass after 9 o’clock. He said 
it was new to him; that he had had some- 
where to go in the city, and it was a dark 
night, and he thought he would have the 
moon to ride home by. The moon rose that 
night about that time. I thought he was a 
proper person to pass, and I passed him. 
[A photograph of J. Wilkes Booth was shown the wit- 
ness.] 
That is the man that passed first. He rode 
a small-sized horse, rather an under-sized 
horse, I should think, a very bright bay, with 
a shining skin, and it looked as though he 
had just had a short burst—a short push— 
and seemed restive and uneasy, much more 
so than the rider. In all, I had some three 
or four minutes’ conversation with him before 
I allowed him to pass. 
In perhaps five or seven, or, at the outside, 
ten minutes, another person came along. He PURSUIT AND CAPTURE OE BOOTH AND HEROLD. 
85 
(lid not seem to be riding so rapidly as the 
first, or his horse did not show signs of it as 
much as the first. I asked who he was, and 
he said that his name was Smith, and that he 
was going home; that he lived at the White 
Plains. I asked him how it was that he was 
out so late. He made use of a rather indeli- 
cate expression, and said that he had been in 
bad company. I brought him up before the 
guard-house door, so that the light shone full 
in his face and on his horse. 
John M. Lloyd. 
For the Prosecution.—May 13. 
I reside at Mrs. Surratt's tavern, Surratts- 
ville, and am engaged in hotel-keeping and 
farming. Some five or six weeks before the 
assassination of the President, John H-. Sur- 
ratt, DavidE. Herold, andG. A. Atzerodtcame 
to my house. Atzerodt and Surratt drove 
up to my house in the morning first, and 
went toward T. 8., a post-office about five 
miles below there. They had not been gone 
more than half an hour, when they returned 
with Herold. All three, when they came 
into the bar-room, drank, I think. John 
Surratt then called me into the front parlor, 
and on the sofa were two carbines, with 
ammunition; also a rope from sixteen to 
twenty feet in length, and a monkey-wrench. 
Surratt asked me to take care of these things, 
and to conceal the carbines. I told him 
there was no place to conceal them, and I 
did not wish to keep such things. He then 
took me into a room I had never been in, 
immediately above the store-room, in the 
back part of the building. He showed me 
where I could put them underneath the joists 
of the second floor of the main building. 
I put them in there according to his direc- 
tions. 
[The accused, David E. Herold, was directed to stand up 
for identification.] 
He is very near the size of the second 
horseman; but, I should think, taller, al- 
though I can not be sure, as he was on 
horseback. He had a lighter complexion 
than this man. After his explanation, 1 
allowed him to pass. He rode a medium- 
sized, roan horse. I should think the horse 
was going at a heavy racking pace, or some- 
thing like that. The horse did not move 
like a trotting horse. He carried his head 
down. 
Afterward, a third horseman rode up, and 
made inquiry after a roan horse; after a man 
passing on a roan horse. He made no in- 
quiry about the other horseman who had 
passed first. He did not seem to have any 
business on the other side of the bridge that 
I considered of sufficient importance to pass 
him, and so I turned him back. 
I do not think the moon was up at that 
time, but rose after the horsemen had gone 
forward. 
I stated to Colonel Wells that Surratt put 
them there, but I carried the arms up and 
put them in there myself There was also 
one cartridge-box of ammunition. Surratt 
said he just wanted these articles to stay for 
a few days, and he would call for them. 
On the Tuesday before the assassination of 
the President, I was coming to Washington, 
and I met Mrs. Surratt, on the road, at Union- 
town. When she first broached the subject 
to me about the articles at my place, I did 
not know what she had reference to. Then 
she came out plainer, and asked me about 
the “shooting-irons.” I had myself forgot- 
ten about their being there. I told her they 
were hid away far back, and that I was 
afraid the house might he searched. She 
told me to get them out ready ; that they 
would be wanted soon. I do not recollect 
distinctl}' the first question she put to me. 
Her language was indistinct, as if she wanted 
to draw my attention to something, so that 
no one else would understand. Finally she 
came out bolder with it, and said they 
would be wanted soon. I told her that I 
had an idea of having them buried; that 
I was very uneasy about having them 
there. 
Polk Gardiner. 
For the Prosecution.—May 16. 
On the night of the 14th of April last, 1 
was on the Bryantown road, coming to 
Washington, and about 11 o’clock, when on 
Good Hope Hill, I met two horsemen, one 
about half a mile behind the other, and both 
riding very fast. The first, who was on a 
dark horse, I think a bay, asked me if a 
horseman had passed ahead; he then asked 
me the road to Marlboro, and if it did not 
turn to the right. I told him no; to keep 
the straight road. 
As the second horseman rode up, a lot of 
teamsters were passing at the time, and I 
heard him ask them whether a horseman 
had passed ahead; I do not know whether 
he asked them or me; I did not answer. 
He rode a roan horse, a light horse, a roan or 
an iron-gray. 
On the 14th of April I went to Marlboro 
to attend a trial there; and in the evening, 
when I got home, which I should judge was 
about 5 o’clock, I found Mrs. Surratt there. 
She met me out by the wood-pile as I drove 
in with some fish and oysters in my buggy. 
She told me to have those shooting-irons 
ready that night, there would be some parties 
who would call for them. She gave me 
I met the first horseman two miles and a 
half or three miles from the city, half-way 
Up the hill. It was not over five or ten 
minutes before the second horseman came 
along. Both of them were riding very fast. 
I got off the hill entirely before I met the 
second man. 
Cross-examined by Mr. Cox. 86 
THE CONSPIRACY TRIAL. 
something wrapped in a piece of paper, 
which I took up stairs, and found to be a 
field-glass. She told me to get two bottles 
of whisky ready, and that these things were 
to be called for that night. 
Just about midnight on Friday, Her- 
old came into the house and said, “Lloyd, 
for God’s sake, make haste and get those 
things.” I did not make any reply, but 
went straight and got the carbines, supposing 
they were the parties Mrs. Surratt had re- 
ferred to, though she didn’t mention any 
names. From the way he spoke he must 
have been apprised that I already knew what 
I was to give hin>. Mrs. Surratt told me to 
give the carbines, whisky, and field-glass. I 
did not give them the rope and monkey- 
wrench. Booth did n’t come in. I did not 
know him; he was a stranger to me. He re- 
mained on his horse. Herold came into the 
house and got a bottle of whisky, and took 
it out to him, and he drank while sitting 
on his horse. Herold, I think, drank some 
out of the glass before he went out. 
I do not think they remained over five 
minutes. They only took one of the car- 
bines. Booth said he could not take his, be- 
cause his leg was broken. 
Just as they were about leaving, the man 
who was with Herold said, “I will tell you 
some news, if you want to hear it,” or some- 
thing to that effect. I said, “I am not par- 
ticular ; use your own pleasure about telling 
it.” “Well,” said he, “I am pretty certain 
that we have assassinated the President and 
Secretary Seward.” I think that was his 
language, as well as I can recollect. Whether 
Herold was present at the time he said that, 
or whether he was across the street, I am 
not positive; I was much excited and un- 
nerved at the time. 
Cross-examined by Mr. Aiken. 
I rented Mrs. Surratt’s house at Surratts- 
ville, about the first of December last, and 
Mrs. Surratt frequently came there after 
that. When I met Mrs. Surratt on the 
Tuesday preceding the assassination, I was 
coming to Washington, and she was going 
to my place, I supposed. I stopped, and so 
did she I then got out and went to her 
buggy. It had been raining, and was very 
muddy. Ido not know that the word “car- 
bine” was mentioned. She spoke about 
those shooting-irons. It was a very quick 
and hasty con versation. lam confident that 
she named the shooting-irons on both oc- 
casions; not so positive about the first as 
I am about the last; I know she did on 
the last occasion. On the Friday I do not 
think Mrs. Surratt was there over ten min- 
utes. 
When I first drove up to the wood-yard, 
Mrs. Surratt came out to where I was. The 
first thing she said to me was, “Talk about 
the devil, and his imps will appear,” or 
something to that effect. I said, “I was not 
aware that I was a devil before.” “Well,” 
said she, “Mr. Lloyd, I want you to have 
those shooting-irons ready; there will be 
parties here to-night who will call for them.” 
At the same time she gave me something 
wrapped up in a newspaper, which I did not 
undo until I got up stairs. 
The conversation I had with Mrs. Sur- 
rat about the shooting-irons was while I was 
carrying the fish and oysters into the house. 
Mrs. Surratt then requested me to fix her 
buggy for her. The front spring bolts were 
broken; the spring had become detached 
from the axle. I tied them with some cord; 
that was the only fixing I could give them. 
Mrs. Off'utt, my sister-in-law, was, I believe, 
in the yard ; but whether she heard the con- 
versation or not, I do not know. 
The first information that I gave of this 
occurrence was to Lieutenant Lovett and 
Captain Cottingham, some time about the 
middle of the week; but I did not detail all 
the circumstances. I told these officers that 
it was through the Surratts that 1 had got 
myself into the difficulty. If they had never 
brought me on there, I never would have got 
myself into difficulty, or words to that effect; 
and I gave full information of the particu- 
lars to Colonel Wells, on the Saturday week 
following. 
When Booth and Herold left my house, 
they took the road toward T. B. Herold 
came up toward the stable between me and 
the other man, who was on the light-colored 
horse, and they rode off at a pretty rapid 
gait. When Herold brought back the bottle 
from which Booth had drank the whisky, he 
remarked to me, “ I owe you a couple of 
dollars;” and said he, “Here.” With that 
he offered me a note, which next morning I 
found to be one dollar, which just about paid 
The moon was shining when the men 
came. The man whose leg was broken was 
on a light-colored horse; I supposed it to be 
a gray horse, in the moonlight. It was a 
large horse, I suppose some sixteen hands 
high ; the other, ridden by Herold, was a bay, 
and not so large. 
Between 8 and 9 o’clock the next morning 
the news was received of the assassination 
of the President, and I think the name of 
Booth was spoken of as the assassin. 
I have heard Atzerodt called by the nick- 
name of “Port Tobacco.” I used to call 
him “Miserable,” and then I called him, for 
a long time, “Stranger.” I do not think I 
had been acquainted with him over two 
months before the assassination. 
[Two carbines, Spencer rifles, were exhibited to the wit- 
ness.] 
The carbines were brought in covers. The 
cover that is on this one looks like the cover 
in which it was brought to me. I took the 
cover off one, and the peculiar kind of 
breech attracted my attention, never having 
seen one like it before. They look like the 
carbines that were brought to my place. PURSUIT AND CAPTURE OF BOOTH AND HEROLD. 
87 
for the bottle of liquor they had just pretty 
nearly drank. 
I think I told Mrs. Offutt, after Mrs. Sur- 
ratt went away, that it was a field-glass she 
had brought. She did not tell me that Mrs. 
Surratt gave her a package. 
on Tuesday, the 18th of April. Dr. Mudd, 
whom I recognize among the accused, did 
not at first seem inclined to give us any satis- 
faction; afterward he went on to state that 
on Saturday morning, at daybreak, two stran- 
gers had come to his place; one of them 
rapped at the door, the other remained on 
his horse. Mudd went down and opened the 
door, and with the aid of the young man 
who had knocked at the door helped the 
other, who had his leg broken, off his horse, 
took him into hif? house and set his leg. 
On asking him who the man with the 
broken leg was, he said he did not know; 
he was a stranger to him. The other, he 
said, was a young man, about seventeen or 
eighteen years of age. Mudd said that one 
of them called for a razor, winch he fur- 
nished, together with soap and water, and the 
wounded man shaved off his moustache. 
One of our men remarked that this was sus- 
picious, and Dr. Mudd said it did look sus- 
picious. I asked him if he had any other 
beard. He said, “Yes, he had a long pair of 
whiskers.” He said the men remained there 
but for a short time, and I understood him 
that they left in the course of the morning. 
He said that the wounded man went off on 
crutches that he (Mudd) had had made for 
him. He said the other led the horse of the 
injured man, and he (Mudd) showed them 
the way across the swamp. He told me that 
he had heard, at church, on Sunday morn- 
ing, that the President had been assassinated, 
but did not mention by whom. We were 
at his house probably an hour, and to the 
last he represented that those men were en- 
tire strangers to him. 
It was generally understood at this time 
that Booth was the man who assassinated 
the President; even the darkeys knew it; and 
I was told by them that Booth had been there, 
and that he had his leg broken. 
On Friday, the 21st of April, I went to Dr. 
Mudd’s again, for the purpose of arresting 
him. When he found we were going to search 
the house, he said something to his wife, and 
she went up stairs and brought down a boot. 
Mudd said he had cut it off the man’s leg, 
in order to set the leg. I turned down the 
top of the boot, and saw the name “J. 
Wilkes” written in it. 
By Mr. Doster. 
I did not know his name to be Atzerodt 
until, I suppose, two or three weeks at the 
farthest. 
By Mr. Stone. 
Booth did not take a carbine with him. 
I only brought one carbine down; Booth 
said he could not carry his; I had the car- 
bine then in my bed-chamber. It was no 
great while after Mrs. Surratt left, when, ac- 
cording to her orders, I got them from the 
store-room and carried them to my bed-room 
to have them ready. I brought the carbine 
and gave it to Herold before they said they 
had killed the President; they never told me 
that until they were about riding off. I was 
right smart in liquer that afternoon, and 
aiter night I got more so. I went to bed be- 
tween 8 and 9 o’clock, and slept very soundly 
until 12 o’clock. I woke up just as the 
clock struck 12. A good many soldiers came 
there on Saturday, and on Sunday night 
others came and searched the place. When 
they asked if I had seen two men pass that 
way in the morning, I told them I had not. 
That is the only thing I blame myself about. 
If I had given the information they asked 
of me, I should have been perfectly easy re- 
garding it. This is the only thing I am 
sorry I did not do. 
Recalled for the Prosecution.—May 15. 
Cross-examined by Mr. Aiken. 
When the party brought the carbines to 
my house, Mr. Surratt assisted me in carry- 
ing them up stairs, together with the cart- 
ridge-boxes, and they were immediately con- 
cealed between the joists and ceiling of an 
unfinished room, where they remained until 
that Friday when Mrs. Surratt gave me in- 
formation that they would be wanted that 
night. I then took them out, according to 
her direction, and put them in my bed-room, 
so as to have them convenient for any par- 
ties that might call that night I was out 
by the wood-pile when Mrs. Surratt handed 
the package to me. I prepared two bottles 
of whisky, according to her directions. « 
I called Mudd’s attention to it, and he 
said he had not taken notice of it before. 
Some of the men said the name of Booth 
was scratched out, but I said that the name 
of Booth had never been written. 
[A long riding boot, for the loft foot, slit up in front for 
about eight inches, was exhibited to the witness.! 
v. Lieutenant Alexander Lovett. 
For the Prosecution.—May 16. 
That is the boot. 
On the day after the assassination of the 
President, 1 went with others in pursuit of 
the murderers. We went by way of Surratts- 
ville to the house of Dr. Samuel A. Mudd, 
which is about thirty miles from Washington, 
and about one-quarter of a mile or so off the 
road that runs from Bryantown, arriving there 
At the second interview, he still insisted 
that the men were strangers to him. I made 
the remark to him that his wife said she 
had seen the whiskers detached from his 
face, and I suppose lie was satisfied then, for 
he subsequently said it was Booth. After we 
[The boot was offered in evidence.] 88 
THE CONSPIRACY TRIAL. 
left his house, one of the men showed him 
Booth’s photograph, and Mudd remarked 
that it did not look like Booth, except a lit- 
tle across the eyes. Shortly after that, he 
said he had an introduction to Booth in No- 
vember or December last, at church, from a 
man named Johnson or Thompson. On be- 
ing questioned, he said he had been along 
with Booth in the country, looking up some 
land, and was with him when he bought a 
hoi-se of Esquire Gardiner, last fall. 
Although I was in citizen’s clothes at the 
time, and addressed ;no threats to him, Dr. 
Mudd appeared to be much frightened and 
anxious. When asked what arms the men 
had, Dr. Mudd stated that the injured man 
had a pair of revolvers, but he said nothing 
about the other having a carbine, or either 
of them having a knife; his manner was 
very reserved and evasive. 
Mr. Wilmer’s, a thing I did not like to do, 
as I knew the man by reputation, and was 
satisfied it was unnecessary. We tracked 
the men as far as we could. We went into 
the swamp and scoured it all over; I went 
through it half a dozen times; it was not a 
very nice job though. I first heard from 
Lieutenant Dana that two men had been at 
Mudd’s house. I afterward heard from Dr. 
George Mudd that a party of two had been 
at Dr. Samuel Mudd’s. 
Cross-examined by Mr. Stone. 
When we first went to Dr. Samuel Mudd’s 
house, we were accompanied by Dr. George 
Mudd, whom we had taken from Bryantown 
along with us. Our first conversation was 
with the Doctor’s wife. When we asked Dr. 
Mudd whether two strangers had been there, 
he seemed very much excited, and got as 
pale as a sheet of paper, and blue about the 
lips, like a man that was frightened at some- 
thing he had done. Dr. George Mudd was 
present when I asked if two strangers had 
been there. He had spoken to Dr. Samuel 
Mudd previous to that. He admitted that 
two strangers had been there, and gave a 
description of them. 
In my first interview with Mudd on the 
Tuesday, I did not mention the name of Booth 
at all; and it was not till! had arrested him, 
when on horseback, that lie told me he was 
introduced to Booth last fall, by a man 
named Johnson or Thompson. 
At the time that Dr. Mudd was describing 
to me the “two strangers” that had been 
to his house, I did not tell him of my track- 
ing Booth from Washington; I did not men- 
tion Booth’s name at all; it was not ray busi- 
ness to tell him whom I was after. 
Cross-examined by Me. Ewing. 
On my second visit, Dr. Mudd was out, 
and his wife sent after him; I walked down 
and met him. I was accompanied by spe- 
cial officers Simon Gavacan, Joshua Lloyd, 
and William Williams. After we entered the 
house, I demanded the razor that the man 
had used. It was not until after we had 
been in the house some minutes, and one of 
the men said we should have to search the 
house, that Dr. Mudd told us the boot had 
been found, and his wife brought it to us. 
I asked him if that might not be a false 
whisker; he said he did not know. I asked 
this because Mrs, Mudd had said that the 
whisker became detached when he got to the 
foot of the stairs. The Doctor never told me 
that he had Booth up stairs; he told me he 
was on the sofa or lounge, 
Mudd stated, at our first interview, that 
the men remained but a short time; after- 
ward his wife told me that they had staid 
till about 3 or 4 o’clock, on Saturday after- 
noon. I asked Mudd if the men had much 
money about them. He said they had con- 
siderable greenbacks; and, in this connection, 
although I did not ask him if he had been 
paid for setting the man’s leg, he said it was 
customary to make a charge to strangers in 
such a case. When Dr. Mudd said he had 
shown the men the way across the swamps, 
I understood him to refer to the swamps a 
thousand yards in the rear of his own house. 
He told us that the men went to the Rev. 
Dr. Wilmer’s, or inquired for Parson Wil- 
mer’s; that he took them to the swamps; that 
they were on their way to Allen’s Fresh; 
but I paid no attention to this at the time, 
as I considered it was a blind to throw us off 
our track. We, however, afterward searched 
Lieutenant David D. Dana. 
For the Prosecution.—May 20. 
On Saturday, the day after the assassina- 
tion of the President, I sent a guard of four 
men ahead of me to Bryantown, and they 
arrived about half an hour before me. I 
arrived there about 1 o’clock. I commu- 
nicated the intelligence of the assassination, 
and the name of the assassin, to the citizens; 
it spread through the village in a quarter of 
an hour. Some of the citizens asked me if 
I knew for a certainty it was J. Wilkes 
Booth, and I told them yes, as near as a 
person could know any thing. 
William Williams. 
On Monday, the 17th of April, in com- 
pany with some cavalry, 1 proceeded to Sur- 
rattsville. On the next day, Tuesday, I ar- 
rived at Dr. Mudd’s. He was not at home, 
and his wife sent for him. I asked if any 
strangers had been that way, and he said 
there had not. Some of the officers then 
talked with him. I think he stated that he 
first heard of the assassination of the Presi- 
dent at church, on the Sunday morning. He 
seemed to be uneasy, and unwilling to give 
us any information without being asked di- 
rectly. , 
For the Prosecution.—May 17. PURSUIT AND CAPTURE OF BOOTH AND HEROLD. 
89 
On Friday, the 21st. we went there again 
for the purpose of arresting Dr. Mudd. lie 
was not at home, but his wife sent for him. 
I asked him concerning the two men who 
had been at his house, one of them having a 
broken leg. He then said that they had 
been there. I asked him if those men were 
not Booth and Herold. He said they were 
not. He said he knew Booth, having been 
introduced to him last fall by a man by the 
name of Thompson, I believe. 
After we had arrested him, and were on 
our way to Bryantown, I showed him Booth’s 
picture, and asked him if that looked like 
the man who had his leg broken. After 
looking at the picture a little while, he said 
it did not; he did not remember the features; 
after awhile, however, he said it looked 
something like Booth across the eyes. 
At our second visit to Dr. Mud'd’s house, 
I informed Mrs. Mudd that we had to search 
the house She then said 
had a shawl round his shoulders. Dr. Mudd 
said that on leaving they asked him the 
road to Parson Wilmer’s, and that he had 
shown them the way down to the swamp. 
I did not pay much attention to their going 
to Parson Wilmer’s at first, because I 
thought it was to throw us off the track; 
but we followed the road as far as we 
could, after which we divided ourselves, and 
went all through the different swamp roads. 
The road is not .much frequented. We found 
horses’ tracks, but not such as satisfied me 
that they were the tracks of these men, and 
we heard nothing of them on the road. We 
got to the Rev. Mr. Wilmer’s, I think, on 
the Wednesday evening. We were acting 
under the orders of Major O’Beirne, and 
Lieutenant Lovett had charge of our squad. 
Simon Gavacan. 
Mr. Ewing. You need not state what Mrs. 
Mudd said. 
I was at Dr. Mudd’s house on the fore- 
noon of Tuesday, the 18th of April, in pur- 
suit of the murderers of the President. We 
inquired if two men passed there on the 
Saturday morning after the assassination, 
and Dr. Mudd said no. Then we inquired 
more particularly if two men had been there, 
one having his leg fractured. He said yes. 
In answer to our questions, he told us that 
they had come about 4, or half-past 4, on 
Saturday morning, and rapped at his door; 
that he was a little alarmed at the noise, but 
came down and let them in; that he and the 
other person assisted the man with the 
broken leg into the house, and that he at- 
tended to the fractured leg as well as he 
could, though he had not much facilities lor 
doing so. I believe he said the wounded 
person staid on the sofa for awhile, and after 
that was taken up stairs, and remained 
there until between 3 and 5 o’clock in the 
afternoon of Saturday. He said that he 
went out with the other man to find a buggy 
to take away the wounded man, but could 
not get one. I understood him to say that 
on leaving his house they first inquired the 
road to Allen’s Fresh, and also to the Rev. 
Dr. Wilmer's, and that he took them part 
of the way to show them the road. He told 
us he did not know the persons at all. 
On Friday, the 21st, we went to Dr. 
Mudd’s again, for the purpose of arrest- 
ing him and searching his house. He was 
not in, but his wife sent for him. When 
he came, we told him that we would have 
to search his house. His wife then went up 
stairs and brought down a boot and a razor. 
Inside the leg of the boot we found the 
words, “J. Wilkes.” We asked him if he 
thought that was Booth, and he said he 
thought not. He said the man had whis- 
kers on, but that he thought he shaved off 
his moustache up stairs. When we inquired 
of him if he knew Booth, he said that he 
was introduced to him last fall by a man 
For the Prosecution.—May 17. 
The Judge Advocate. Any thing that was 
said in Dr. Mudd’s presence is admissible. 
The witness continued. This was said, I 
believe, in Dr. Mudd’s presence. She said 
that the man with the broken leg had left 
his boot in the bed. She. then went and 
brought the boot down. It was a long rid- 
ing-boot, with “ J. Wilkes” and the maker’s 
name, “Broadway, N. Y.,” written inside. 
The boot was cut some ten Inches from the 
instep. 
Dr. Mudd said that the men had arrived 
before daybreak, and that they went away 
on foot between 3 and 4 o’clock on the af- 
ternoon of Saturday. He had set the man’s 
leg, and had had crutches made for him by 
one of his men. 
Cross-examined by Mr. Stone. 
Lieutenant Lovett was present at this con- 
versation. I believe it was on Friday that 
Dr. Mudd said that the first knowledge he 
had of the assassination was received at 
church on the Sunday before. I asked him 
the question on Friday, if “ two strangers ” 
had been there. He said that there had 
been. Two men had come there at day- 
break; one, a smooth-faced young man, ap- 
parently seventeen or eighteen years of age, 
and that he had set the leg of one of them. 
They had come to his door and knocked, 
and he had looked out of the window up 
stairs, and asked them wrho they were. I 
believe he said their reply was that they 
were friends, and wanted to come in. Dr. 
Mudd then came down stairs, and, with the 
assistance of the young man, got the wounded 
man off his horse into the parlor, and ex- 
amined his leg on the sofa. The wounded 
man had a moustache, he said, and pretty 
long chin-whiskers. I asked him if he 
thought the whiskers were natural. He 
said he could not tell. The injured man 90 
THE CONSPIRACY TRIAL. 
named Thompson, but he thought the man 
■who had been there was not Booth. 
Booth’s portrait was shown to Dr. Mudd. 
He told us that Booth had been down there 
last fall, when he was introduced to him by 
Mr. Thompson. I think he said Booth was 
there to buy some property. 
Before he came to the house, Mrs. Mudd 
brought us the boot, and when the Doctor 
saw that we had the boot, he admitted that 
Booth had been there. Dr. Mudd then 
brought the razor down himself, and gave it 
to Lieutenant Lovett. 
Cross-examined by Mr. Ewing. 
Our conversation with Dr. Mudd lasted 
probably an hour. He was asked questions 
by all of us. Lieutenant Lovett was there 
all the time. When Mrs. Mudd brought 
down the boot and razor, we thought we 
had satisfactory evidence that Booth and 
Herold had been there, and did not search 
the house further. I believe there was a 
photograph of Booth shown to Dr. Mudd 
on Tuesday, and he said he did not rec- 
ognize it, but said there was something 
about the forehead or the eyes that resem- 
bled one of the parties. 
For the Prosecution.—May 17. 
Willie S. Jett. 
I was formerly a member of the Ninth 
Virginia Cavalry. More recently, I was sta- 
tioned in Caroline County, Virginia, as com- 
missary agent of the Confederate States Gov- 
ernment. 1 was on my way from Fauquier 
County (where I had been with Mosby’s 
command) to Caroline County, Virginia, in 
company with Lieutenant Buggies and a 
young man named Bainbridge. At Port 
Conway, on the Bappahannock, I saw a 
wagon down on the wharf, at the ferry, on 
the Monday week after the assassination of 
President Lincoln. A young man got out of 
it, came toward us, and asked us what com- 
mand we belonged to. We were all dressed 
in Confederate uniform. Lieutenant Buggies 
said, “We belong to Mosby’s command.” 
He then said, “If I am not inquisitive, can 
I ask where you are going?” 1 spoke, then, 
and replied, “ That’s a secret, where we are 
going.” After this we went back on the 
wharf, and a man with crutches got out of 
the wagon. One of us asked him what com- 
mand he belonged to, and he replied, “ To 
A. P. Hill’s corps.” Herold told us their 
name was Boyd; that his brother was wounded 
below Petersburg, and asked if we would 
take him out of the lines. We did not tell 
him where we were going. Herold asked us 
to go and take a drink, but we declined. We 
then rode up to the house there, and having 
tied our horses, we all sat down. After we 
had talked a very short time, Herold touched 
me on the shoulder and said he wanted to 
speak to me; he carried me down to the 
wharf, and said, “ I suppose you are raising 
a command to go South?” and added that 
he would like to go along with us. At 
length I said, “ I can not go with any man 
that I don’t know any thing about.” He 
seemed very much agitated, and then re- 
marked, “We are the assassinators of the 
President.” 1 was so much confounded that 
1 did not make any reply then that I remem- 
ber. Lieutenant Buggies was very near, 
watering his horse; 1 called to him, and he 
came there, and either Herold or myself re- 
marked to Lieutenant Buggies that they were 
the assassinators of the President. Booth 
then came up, and Herold introduced himself 
to us, and then introduced Booth. Herold 
passed himself off to us first as Boyd, and 
Joshua Lloyd. 
For the Prosecution.—May 16. 
I was engaged with others in the pursuit 
of the murderers of the President in the di- 
rection of Surrattsville. We got to Dr. 
Mudd’s on Tuesday, the 18th. I asked him 
if he had not heard of the President being 
assassinated; he said yes. I then asked him 
if he had seen any of the parties—Booth, 
Herold, or Surratt; he said he had never 
seen them. 
On Friday, the 21st, at the second inter- 
view, he said two men came there about 4 
o’clock on the Saturday morning, and re- 
mained there until about 4 in the afternoon. 
They came on horseback; one of them had 
a broken leg, and when they left bis house 
one was riding and the other walking, lead- 
ing ins horse. 
As we were sitting in the parlor, Mrs. Mudd 
seemed very much worried, so did the Doc- 
tor, and he seemed to be very much excited. 
At this interview Lieutenant Lovett and Mr. 
Williams did most of the talking; 1 was not 
well. Dr. Mudd said that he had been in 
company with Booth ; that he had been in- 
troduced to him by a man named Thomp- 
son, 1 think he said, at church. He offered 
no explanation of his previous denial. When 
the men left, he said they went up the hill 
toward Parson Wilmer’s, and I think he said 
he showed them the road. I understood 
him to say that the man’s leg was broken 
by the fall of the horse. 
Cross-examined by Mr. Stone. 
It was late on Tuesday evening when we 
were there. Each time that we went to his 
house Dr. Mudd was out, but not far away, 
for he was not long in returning with the 
messenger sent for him. At the first inter- 
view, I asked if any strangers had passed 
that way, and then if Booth and Herold had 
passed; ! described them to him, and the 
horses they rode, and he denied either that 
any strangers or Booth and Herold had 
passed. The interview only lasted a few 
minutes. PURSUIT AND CAPTURE OF BOOTH AND HEROLD. 
91 
said he wanted to pass under that name. 
He afterward told us their true names were 
Herold and Booth, but they kept the name 
of Boyd. Booth, I remember, had on his 
hand “J. W. B.” We went back then to 
the house, and sat down there some time on 
the steps. Then we went across the river. 
Booth rode Euggles’s horse. Herold was 
walking. When we got on the other side of 
the river, before they got out of the boat, I 
got on my horse and rode up to Port Royal, 
went into a house, and saw a lady. I asked 
her if she could take in a wounded Confed- 
erate soldier, just as he represented himself to 
me, for two or three days. She at first con- 
sented; then afterward she said she could 
not. I walked across the street to Mr. Cat- 
litt’s, but he was not at home. We then 
went on up to Mr. Garrett’s, and there we left 
Booth. Herold and all of us went on up the 
road, then, to within a few miles of Bowling 
Green. Bainbridge and Herold went to Mrs. 
Clark’s, and Buggies and myself to Bowling 
Green. The next day Herold came to Bow- 
ling Green, spent the day, had dinner, and 
left in the evening, and that was the last 
[ saw of him, except the night that they 
were caught, when I went down there; 1 saw 
him the next morning in the custody of the 
officers. I recognize the prisoner Herold as 
the man that I saw with Booth. 
the two men who came with you across the 
river?” He came up to me and said, “ Can I 
see you alone?” 1 replied, “Yea, sir, you 
can.” Lieutenant Baker and Lieutenant 
Doherty were with me. I asked them to go 
out of the room. After they were gone, he 
reached out his hand to me and said, “ I know 
who you want, and I will tell you where they 
can be found.” Said I, “ That’s what I want 
to know.” He said, “They are on the road 
to Port Royal, about three miles this side of 
that.” “At whose house are they ?” I asked. 
“Mr. Garrett’s,” he replied; “I will go there 
with you and show you where they are now, 
and you can get them.” I said, “ Have you a 
horse ? ” “ Yes, sir.” “ Get it, and get ready 
to go." I said to him, “You say they are on 
the road to Port Royal ? ” “ Yes, sir.” I said 
to him, “I have just come from there.” He 
stopped a moment, and seemed to be consider- 
ably embarrassed. Said he, “ I thought you 
came from Richmond. If you have come that 
way, you have come past them. I can not 
tell you whether they are there now or not.” 
I said it did not make any difference; we 
would go back and see. He dressed; had his 
horse saddled ; we gathered the party around 
the house together, and went back to Mr. 
Garrett’s house. Just before we got to the 
house, Jett, riding with me, said, “We are 
very near now to where we go through ; let us 
stop here and look around.” He and 1 rode 
on together. I rode forward to find the gate 
that went through to the house, and sent 
Lieutenant Baker to open another. I went 
back for the cavalry, and we rode rapidly up 
to the house and barn, and stationed the men 
around the house and quarters. 
Herold said he wanted us to help in get- 
ting Booth further South, but we had no fa- 
cilities ; and he seemed a good deal disap- 
pointed after we made known our real object, 
that we were going on a visit. Booth was 
not present when Herold told me they were 
the assassinators of the President; when he 
came up, he said he would not have told, 
that he did not intend telling. Herold did 
not appear very self-possessed; his voice 
trembled very much, and he was a good deal 
agitated. His language was, “We are the 
assassinators of the President;” and then, 
pointing back to where Booth was standing, 
he said, “ Yonder is J. Wilkes Booth, the 
man who killed the President,” or he may 
have said “Lincoln.” I have never taken 
the oath of allegiance, but am perfectly will- 
ing to take it. 
Cross-examined by Mr. Stone. 
I went to the house and found Lieutenant 
Baker at the door, telling somebody to strike 
a light and come out. I think the door was 
open when I got there. The first individual 
we saw was an old man, whose name was said 
to be Garrett. I said to him, “ Where are 
the two men who stopped here at your 
house?” “ They have gone.” “Gone where?” 
“Gone to the woods.” “Well, sir, where- 
abouts in the woods have they gone?” He 
then commenced to tell me that they came 
there without his consent; that he did not 
want them to stay. I said to him, “I do not 
want any long story out of you; I just want 
to know where these men have gone.” He 
commenced over again to tell me, and I turned 
to the door and said to one of the men, 
“ Bring in a lariat rope here, and I will put 
that man up to the top of one of those locust 
trees.” He did not seem inclined to tell. 
One of his sons then came in and said, “ Do n’t 
hurt the old man; he is scared; I will tell 
you where the men are you want to find.” 
Said I, “ That is what 1 want to know; where 
are they?” He said, “In the barn.” 
We then left the house immediately and 
went to the barn, and stationed the remaining 
part of the men. As soon as I got there, I 
heard somebody walking around inside on the 
Everton J. Conger. 
For the Prosecution.—May 17. 
I assisted in the pursuit of the murderers 
of the President. 
Judge Advocate. Will you please take up 
the narrative of the pursuit at the point where 
you met with Willie Jett, and state what oc- 
curred until the pursuit closed. 
Witness. On the night of the capture, I 
found Jett in bed in a hotel in Bowling Green. 
I told him to get up; that I wanted him. lie 
put on his pants, and came out to me in the 
front part of the room. I said, “Where are 92 
THE CONSPIRACY TRIAL. 
hay. By that time another Garrett had come 
from somewhere; and Lieutenant Baker said 
to one of them, “You must go in the barn 
and get the arms from those men.” I think 
he made some objection to it; I do not know 
certainly. Baker said, “ They know you, and 
you can go in.” Baker said to the men inside, 
“We are going to send this man, on whose 
premises you are, in to get your arms, and you 
must come out and deliver yourselves up.” I 
do not think there was any thing more said. 
Garrett went in, and he came out very soon 
and said, “ This man says ‘ Damn you, you 
have betrayed me,’ and threatened to shoot 
me.” I said to him, “ How do you know he 
was going to shoot you?” Said he, “He 
reached down to the hay behind him to get 
his revolver, and I came out.” I then directed 
Lieutenant Baker to tell them that if they 
would come out and deliver themselves up, 
very well; if not, in five minutes we would 
set the barn on fire. Booth replied: “ Who 
are you; what do you want; whom do you 
want?” Lieutenant Baker said, “We want 
you, and we know who you are; give up your 
arms and come out.” I say Booth; for I 
presumed it was he. He replied, “ Let us 
have a little time to consider it.” Lieuten- 
ant Baker said, “Very well;” and some ten 
or fifteen minutes probably intervened between 
that time and any thing further being said. 
He asked again, “ Who are you, and what do 
you want ? ” I said to Lieutenant Baker, “Do 
not by any remark made to him allow him to 
know who we are; you need not tell him who 
we are. If he thinks we are rebels, or thinks 
we are his friends, we will take advantage of 
it; we will not lie to him about it, but we need 
not answer any questions that have any refer- 
ence to that subject, but simply insist on his 
coming out, if he will.” The reply was made 
to him, “It don’t make any difference who 
we are; we know who you are, and we want 
you; we want to take you prisoners.” Said 
he, “This is a hard case; it may be I am to 
be taken by my friends.” Some time in the 
conversation he said, “Captain, I know you 
to be a brave man, and I believe you to be 
honorable; lam a cripple. I have got but 
one leg; if you will withdraw your men in 
‘line’ one hundred yards from the door, I will 
come out and fight you.” Lieutenant Baker 
replied that he did not come there to fight; 
we simply came there to make him a prisoner; 
we did not want any fight with him. Once 
more after this he said, “If you’ll take your 
men fifty yards from the door, I’ll come out 
and fight you; give me a chance for my life.” 
The same reply was made to him. His answer 
to that was, in a singular theatrical voice, 
“ Well, my brave boys, prepare a stretcher for 
me.” 
Some time passed before any further con- 
versation was held with him. In the mean 
time I requested one of the Garretts to pile 
some brush up against the corner of the barn— 
pine boughs. He put some up there, and after 
awhile came to me and said, “This man in 
side says that if I put any more brush in 
there he will put a ball through me.” “ Very 
well,” said I, “you need not go there again.” 
After awhile Booth said, “There’s a man in 
here wants to come out.” Lieutenant Baker 
said “ Very well; let him hand his arms out, 
and come out.” Some considerable talk 
passed in the barn; some of it was heard, 
some not. One of the expressions made use 
of by Booth to Herold, who was in the barn, 
was, “You damned coward, will you leave 
me now? Go, go; I would not have you 
stay with me.” Some conversation ensued be- 
tween them, which I supposed had reference 
to the bringing out of the arms, which was 
one of the conditions on which Herold was to 
come out. It was not heard; we could simply 
hear them talking. He came to the door and 
said, “ Let me out.” Lieutenant Baker said 
to him, “Hand out your arms.” The reply 
was, “ I have none.” He said, “You carried 
a carbine, and you must hand it out.” Booth 
replied, “The arms are mine, and I have got 
them.” Lieutenant Baker said, “ This man 
carried a carbine, and he must hand it out.” 
Booth said, “Upon the word and honor of a 
gentleman, he has no arms; the arms are 
mine, and I have got them.” I stood by the 
side of the Lieutenant and said to him, 
“Never mind the arms; if we can get one of 
the men out, let us do it; and wait no longer.” 
The door was opened, lie stuck out his hands; 
Lieutenant Baker took hold of him, Brought 
him out, and passed him to the rear. I went 
around to the corner of the barn, pulled some 
hay out, twisted up a little of it, about six 
inches long, set fire to it, and stuck it back 
through on top of the hay. It was loose, 
broken-up hay, that had been trodden upon 
the barn-floor. It was very light, and blazed 
very rapidly—lit right up at once. 
I put my eye up to the crack next to the 
one the fire was put through, and looked in, 
and I heard something drop on the floor, 
which I supposed to be Booth’s crutch. He 
turned around toward me. When I first got 
a glimpse of him, he stood with his back 
partly to me, turning toward the front door. He 
came back within five feet of the corner of 
the barn. The only thing I noticed he had 
in his hands when he came was a carbine. 
He came back, and looked along the cracks, 
one after another, rapidly. He could not see 
any thing. He looked at the fire, and from 
the expression of his face, I am satisfied he 
looked to see if he could put it out, and 
was satisfied that he could not do it; it was 
burning so much. He dropped his arm, re- 
laxed his muscles, turned around, and start- 
ed for the door at the front of the barn. I 
ran around to the other side, and when 
about half round I heard the report of a 
pistol. I went right to the door, and went 
into the barn and found Lieutenant Baker 
looking at Booth, holding him, or raising 
him up, I do not know which. I said to PURSUIT AND CAPTURE OF BOOTH AND HEROLD. 
93 
him, “He shot himself.” Said he, “No, ho 
did not, either.” Said I, “Whereabouts is he 
shot—in the head or neck?” I raised him 
then, and looked on the right side of the 
neck, and saw a place where the blood was 
running out. I said, “Yes, sir; he shot 
himself.” Lieutenant Baker replied very earn- 
estly 7 that he did not. I then said, “Let us 
carry him out of here; this will soon be 
burning.” We took him up and carried him 
out on the grass, underneath the locust-trees, 
a little way from the door. I went back 
into the barn immediately to see if the fire 
could be put down, and tried somewhat my- 
self to put it out, but I could not; it was 
burning so fast, and there was no water and 
nothing to help with. I then went back. 
Before this, I supposed him to be dead. He 
had all the appearance of a dead man; but 
when I got back to him, his eyes and mouth 
were moving. I called immediately 7 for some 
water, and put it on his face, and he somewhat 
revived, and attempted to speak. I put my 
ear down close to his mouth, and he made 
several efforts to speak, and finally I under- 
stood him to say, “Tell mother I die for my 
country.” I said to him, “Is that what you 
say?” repeating it to him. He said, “Yes.” 
They carried him from there to the porch of 
Mr. Garrett’s house, and laid him on an old 
straw bed, or tick, or something. By that time 
he revived considerably; he could then talk in 
a whisper, so as to be intelligibly understood; 
he could not speak above a whisper. He 
wanted water; we gave it to him. He wanted 
to be turned on his face. I said to him, 
“ You can not lie on your face; ” and he want- 
ed to be turned on his side; we turned him 
upon his side three times, I think, but he 
could not lie with any comfort, and wanted 
to be turned immediately back. He asked 
me to put my hand on his throat and press 
down, which I did, and he said, “ Harder.” 
I pressed down as hard as I thought neces- 
sary, and he made very strong exertions to 
cough, but was unable to do so—no muscu- 
lar exertion could he make. I supposed he 
thought something was in his throat, and I 
said to him, “Open your mouth and put out 
your tongue, and I will see if it bleeds.” 
Which he did. I said to him, “There is no 
blood in your throat; it has not gone through 
any part of it there.” He repeated two or 
three times, “ Kill me, kill me.” The reply 
was made to him, “We don’t want to kill 
you; we want you to get well.” I then took i 
what things were in his pockets, and tied 
them up in a piece of paper. He was not : 
then quite dead. He would—once, perhaps, ; 
in five minutes—gasp; his heart would al- 
most die out, and then it would commence i 
again, and by a few rapid beats would make 1 
a slight motion. I left the body and the - 
prisoner Herold in charge of Lieutenant 
Baker. I told him to wrait an hour if Booth < 
was not dead; if he recovered, to wait there 1 
and send over to Belle Plain for a surgeon i 
j from one of the gun-ships; and, if he died 
in the space of an hour, to get the best con- 
veyance he could, and bring him oft. 
I staid there some ten minutes after that 
was said, when the doctor there said he was 
dead. 
rA knife, pair of pistols, belt, holster, file, pocket com- 
pass, spnr, pipe, carbine, cartridges, and bills of exchange 
were shown to the witness.] 
That is the knife, belt, and holster taken 
from Booth ; the pistols I did not examine 
with any care, but they looked like these. 
That is the pocket compass, with the candle 
grease on it, just as we found it; the spur I 
turned over to Mr. Stanton, and I judge this 
to be the one taken from Booth. That is 
the carbine we took; it is a Spencer rifle, 
and has a mark on the breech by which I 
know it. Both the pistols and carbine were 
loaded. I unloaded the carbine myself in 
Mr. Secretary Stanton’s office, and these are 
the cartridges that I took out; there was one 
in the barrel, and the chamber was full. 
These are the bills of exchange; I put my 
initials on them. 
[All these articles were put in evidence; also the bill of 
exchange in triplicate. The first of the set was read as 
follows:] 
No. 1492. THE ONTARIO BANK, 
[Stamp.] Montreal Branch. 
Exchange for £6l 12s. 10d. 
Sixty days after sight of this first of exchange, (second 
and third of the same tenor and date unpaid,) pay to the 
order of J. Wilkes Booth sixty-one pounds twelve shil- 
lings and ten pence sterling. Value received, and charge 
to acc’t of this office. 
To Messrs. Glynn Mills & Co., London. 
[Signed] H. STANTJS, Manager. 
Montreal, 27 Oct’r, 1864 
The farm of Mr. Garrett, in whose barn 
Booth was captured and killed, is in Caroline 
County, Ya., about three miles from Port 
Koval, on the road to Bowling Green. 
I had seen John Wilkes Booth in Wash- 
ington, and recognized the man who was 
killed as the same. I had before remarked 
his resemblance to his brother, Edwin Booth, 
whom I had often seen play. 
I recognize among the accused, the man 
Herold, whom we took prisoner on that oc- 
casion, in the barn. We found on Herold a 
small piece of a school map of Virginia, 
embracing the region known as the Northern 
Neck, where they were captured. 
Cross-examined by Mr. Stone. 
We found no arms on Herold. He had 
some conversation with Booth while in the 
barn, in which Booth called him a coward; 
and when the question of delivering up the 
arms was raised, Booth said that the arms 
were all his.- When Booth said, “There is 
a man in here who wants to get out,” I 
think he added, “who had nothing to do 
with it.” 
I think we got to Garrett’s barn about 2 
o’clock in the morning, and it was about 
fifteen minutes past 3 that Booth was shot 
and carried out on the grass. 94 
THE CONSPIRACY TRIAL. 
For the Prosecution.—May 17. 
Sekg’t Boston Corbett. 
He was told to hand out his arms. Herold 
declared that he had no arms, and Booth de- 
clared that the arms all belonged to him, and 
that the other man was unarmed. lie was 
finally taken out without his arms. 
The Judge Advocate. Conger has just de- 
tailed to the Commission the circumstances 
connected with the pursuit, capture and kill- 
ing of Booth, in which, I believe, you were 
engaged. 1 will ask you to state what part 
you took in the capture and killing of Booth, 
taking up the narrative at the point when you 
arrived at the house. 
Immediately after Herold was taken out, 
the detective, Mr. Conger, came round to the 
side of the barn where I was, and passing me, 
set fire to the hay through one of the cracks 
of the boards a little to my right, I had 
previously said to Mr. Conger, though, and 
also to my commanding officer, that the pos- 
sition in which I stood left me in front of 
a large crack you might put your hand 
throiigh it—and I knew that Booth could 
distinguish me and others through these 
cracks in the barn, and could pick us off if 
he chose to do so. In tact, he made are 
mark to that effect at one time. Said he, 
“ Cap, I could have picked off' three or four 
of your men already if I wished to do so. 
Draw your men off fifty yards, and I will 
come out,” or such words. He. used such 
language many times. When the fire was 
lit, which was almost immediately after, 
Herold was taken out of the barn. As the 
flame rose, he was seen. We could then dis- 
tinguish him about the middle of the barn, 
turning toward the fire, either to put the fire 
out or else to shoot the one who started it; I 
did not know which ; but he was then coming 
toward me, as it were, a little to my right—a 
full front breast view. 1 could have shot him 
then much easier than when I afterward did, 
but as long as he was there, making no dem- 
onstration to hurt any one, I did not shoot 
him, but kept my eye on him steadily. 
Finding the fire gaining upon him, he 
turned to the other side of the barn, and got 
toward where the door was, and as he got 
there I saw him make a movement toward 
the door. I supposed he was going to fight 
his way out. One of the men, who was watch- 
ing him, told me that he aimed the carbine at 
me. He was taking aim with tiie carbine, 
but at whom I could not say. My mind was 
upon him attentively to see that he did no 
harm, and when I became impressed that it 
was time I shot him, I took steady aim on 
my arm, and shot him through a large crack 
in the barn. When he was bi-ought out I 
found that the wound was made in the neck, 
a little back of the ear, and came out a little 
higher up on the other side of the head. 
He lived, I should think, until about 7 o’clock 
that morning; perhaps two or three hours 
after he was shot. I did not myself hear 
him speak a word after he was shot, except 
a cry or shout as he fell. Others, who were 
near him and watching him constantly, said 
that he did utter the words which were pub- 
lished. 
I recognize the prisoner Herold among the 
accused as the man we took out of the barn, 
I had never seen Booth before, but from a re- 
mark made by my commanding officer, while 
on the boat going down to Belle Plain, that 
Sergeant Boston Corbett. When we rode 
up to the house, my commanding officer, Lieu- 
tenant Doherty, told me that Booth was in 
that house, saying, “ I want you to deploy the 
men right and left around the house, and see 
that no one escapes.” Which was done. After 
making inquiries at the house, it was found 
that Booth was in the barn. A guard was 
then left upon the house, and the main por- 
tion of the men thrown around the barn, 
closely investing it, with orders to allow no 
one to escape. We had been previously 
cautioned to see that our arms were in readi- 
ness for use. After being ordered to surren- 
der, and told that the barn would lie fired in 
five minutes if he did not do so, Booth made 
many replies. He wanted to know who we 
took him for; he said that his leg was broken ; 
and what did we want with him ; and he was 
told that it made no difference. His name 
was not mentioned in the whole affair. They 
were told that they must surrender as prison- 
ers. Booth wanted to know where we would j 
take them, if they would give themselves up 
as prisoners. He received no satisfaction, 
but was told that he must surrender uncondi- 
tionally, or else the barn would be fired. The 
parley lasted much longer than the time first 
set; probably a full half hour; but he posi- 
tively declared that he would not surrender. 
At one time he made the remark, “ Well, my 
brave boys, you can prepare a stretcher for 
me;” and at another time, “Well, Captain, 
make quick work of it; shoot me through 
the heart,” or words to that effect; and thereby 
I knew that he was perfectly desperate, and 
did not expect that he would surrender. 
After awhile we heard the whispering of 
another person—although Booth had pre- 
viously declared that there was no one there 
but himself—who proved to be the prisoner 
Herold. Although we could not distinguish 
the words, Herold seemed to be trying to per- 
suade Booth to surrender. After awhile, he 
sang out, “Certainly,” seeming to disdain to 
do so himself. Said he, “Cap, there is a 
man in here who wants to surrender mighty 
bad.” Then I suppose words followed inside 
that we could not here. Herold, perhaps, 
thought he had better stand by him, or some- 
thing to that effect. Then Booth said, “ 0, 
go out and save yourself, my boy, if you can ; ” 
and then he said, “ 1 declare before my Maker 
that this man here is innocent of any crime 
whatever,” seeming willing to take all the 
blame on himself and trying to clear Herold. PURSUIT AND CAPTURE OP BOOTH AND lIEROLD. 
95 
Booth’s leg was broken, I felt sure it was 
Booth that I fired at; for when the men in the 
barn were summoned to surrender, the reply 
of the one who spoke was that his leg was 
broken, and that he was alone. I knew also, 
from his desperate language, that he would 
not be taken alive, and such remarks, that it 
was Booth, for I believe no other man would 
act in such a way. 
myself.” The door was opened, and I directed 
Herold to put out his hands; I took hold of 
his wrists and pulled him out of the barn. I 
then put my revolver under my arm and ran 
my hands down him to see if he had any 
arms, and he had none. I then said to him. 
“ Have you got any weapons at all about 
you?” He said, “ Nothing at all but this,” 
pulling out of his pocket a piece of a map of 
Virginia. Just at this time the shot was 
fired and the door thrown open, and 1 dragged 
Herold into the barn with me. Booth had 
fallen on his back. The soldiers and two de- 
tectives who were there went into the barn 
and carried out Booth. I took charge of 
Herold ; and when I got him outside he said, 
“ Let me go away; let me go around here; I 
will not leave; I will not go away.” Said I, 
“No, sir.” Saidhetome, “ Who is thatthat 
has been shot in there in the barn ? ” “ Why,” 
said I, “ you know well who it is.” Said he, 
“No, I do not; he told me his name was 
Boyd.” Said I, “It is Booth, and you know 
it.” Said he, “No, I did not know it; I did 
not know that it was Booth.” 
From the conversation in the barn, I judge 
that Herold was at first anxious to surrender, 
and upon Booth’s refusing to do so, I rather 
thought he desired to stay with him ; but I can 
not say whether it was before or*after that 
that Booth declared before his Maker that the 
man with him was innocent of any crime 
whatever. 
Cross-examined by Mr. Stone. 
1 wish to state here, as improper motives 
have been imputed to me for the act I did, 
that I twice offered to my commanding officer, 
Lieutenant Doherty, and once to Mr. Conger, 
to go into the barn and take the man, saying 
that I was not afraid to go in and take him ; 
it was less dangerous to go in and fight him 
than to stand before a crack exposed to his 
fire, where I could not see him, although he 
could see me; but I was not sent in. Im- 
mediately when the fire was lit, our positions 
were reversed; I could see him, but he could 
not see me. It was not through fear at all 
that I shot him, but because it was my im- 
pression that it was time the man was shot; 
for 1 thought he would do harm to our men 
in trying to fight his way through that den, if 
I did not. 
I then took him and tied him by the hands 
to a tree opposite, about two yards from where 
Booth’s body was carried, on the verandah 
of the house, and kept him there until we 
were ready to return. Booth in the mean time 
died, and 1 sewed him up in a blanket. Previ- 
ous to this I had sent some cavalry for the 
doctor; and we got a negro who lives about a 
mile from there, with a wagon, and put the 
body on board the wagon, and started for Belle 
Plain. 
Herold told me afterward that he met 
this man by accident about seven miles from 
Washington, between 11 and 12 o’clock on the 
night of the murder. He said that after they 
met they went to Mathias Point, and crossed 
the Potomac there. He did not mention the 
houses at which they stopped. Dr. Stewart’s 
house was mentioned by some one as a place 
at which they had stopped, but whether it was 
by Herold or not I do not remember. 
Capt. Edward Doherty. 
For the Prosecution.—May 22. 
I had command of the detachment of the 
Sixteenth New York Cavalry that captured 
Booth and Herold. 
Judge Advocate. The circumstances of the 
capture having been fully detailed by other 
witnesses, I will ask you to state the part you 
took, if any, in the capture of the prisoner 
Herold, and all he said on that occasion. 
Witness. There had been considerable con- 
versation with reference to the arms that Booth 
and Herold had inside of Garrett’s barn. 
Cross-examined by Mr. Stone. 
Booth said, while in the barn, that he was 
the only guilty man, and that this man Herold 
was innocent, or words to that effect. Herold 
made no resistance after he was captured. 
We requested Booth and Herold to come 
out of the barn. Booth at first denied that 
there was anybody there but himself, but 
finally he said, “ Captain, there is a man here 
who wishes to surrender awful bad.” Mr. 
Baker, one of the detectives who was there, 
said, “ Let him hand out his arms,” I stood 
by the door and said, “ Hand out your arms 
and you can come out.” Herold replied, “ 1 
have no arms.” Mr. Baker said, “Weknow 
exactly what you have got.” I said, “We 
had better let him out.” Mr. Baker said, 
“No, wait until Mr. Conger comes here.” 1 
said, “No; open that door,” directing a man 
to open the door; “ I will take that man out 
Surgeon-General J. K. Barnes. 
I examined the bod}' of J. Wilkes Booth 
after his death, when he was brought to this 
city. He had a scar upon the large muscle 
of the leftside of his neck, three inches below 
the ear, occasioned by an operation performed 
by Dr. May of this city for the removal of » 
tumor some months previous to Booth’s death. 
It looked like the scar of a burn instead of 
an incision, which Dr. May explained by the 
fact that the wound was torn open on the stage 
when nearly well. 
For the Prosecution.—May 20. 96 
THE CONSPIRACY TRIAL. 
DEFENSE OF DAY ID E. HEROLD. 
Captain Eli D. Edmonds, U. S. N.—May 27. 
By Mr. Stone. 
E. Herold, well. During last February, I 
was home, my wife being sick, and I saw the 
prisoner a good deal then; I may have seen 
him every day, except, perhaps, four or five. 
I consider his character very boyish. I see 
him often with boys; he is very fond of 
their company, and never associates with 
men. He is fond of sport, gunning, dogs, etc. 
I know David E. Herold, one of the pris- 
oners; I saw him at his home in Washing- 
ton on the 20th and 21st of February. lam 
positive in my recollection of it. 
Francis S. Walsh.—May 30. 
Emma Herold.—May 30. 
By Mr. Stone. 
I reside in Washington, on Eighth Street, 
east. I have known the prisoner, David E. 
Herold, since he was a boy; have known him 
intimately since October, 1863. I am a 
druggist, and employed Herold as a clerk 
eleven months. During this time, he lived 
in my house, and I knew of nothing ob- 
jectionable in his character. He was light 
and trifling in a great many things, more 
like a boy than a man, but I never saw any 
thing to find fault with in his moral char- 
acter. He was temperate in his habits, and 
regular in his hours. He was easily per- 
suaded and led, more than is usually the 
case with young men of his age ; I considered 
him boyish in every respect, I should sup- 
pose him to be about twenty-two years of age. 
I am sister of David E. Herold. I know 
that my brother was home on the 15th of 
February last; I remember it from my hav- 
ing sent him a valentine, which he received 
on the 15th; and my sisters talked with him 
about it. I also knew that he was at home 
on the 19th of February; it was the Sunday 
after Valentine’s day. I remember taking a 
pitcher of water up stairs, and my brother 
met me in the passage and wanted it; but 
I would not give it to him; he then tried to 
take it from me, and we both got wet from 
the water being spilled. He was also at 
home between those days. 
James Hokes.—May 30. 
By Mr. Stone. 
Mrs. Mary Jenkins.—May 30. 
By Mr. Stone. 
I have lived in Washington since 1827; 
reside in that part called the Navy Yard. I 
have known the prisoner, Herold, from his 
birth—about twenty-three years, I believe. 
With his family I have been intimate for 
eighteen or nineteen years; there are seven 
children living, I believe, and he is the only 
boy. I have always looked upon him as a 
light and trifling boy; that very little relia- 
bility was to be placed in him; and I consider 
him more easily influenced by those around 
him than the generality of young men of his 
age. I have never heard him enter into any 
argument on any subject in the world, like 
other young men; all his conversation was 
light and trifling. 
I know the prisoner, David E. Herold 
He was at my house on the 18th of February 
last, and received my rent. I have his re 
ceipt of that date to show it. 
Mrs. Elizabeth Potts.—May 30. 
By Mr. Stone. 
I know the accused, David E. Herold. I 
can not say whether he was in Washington 
on the 20th of last February, but I know 
he was there on the 19th, for he came to 
ray house for his money. As I was not 
prepared, I told him I would send it to him 
the next day, which I did, and I have his 
receipt for the money, dated the 20th. 
William H. Keilotz.—May 30. 
By Mr. Stone, 
Dr. Charles W. Davis.—May 31. 
By Mr. Stone. 
I reside in Washington City, near tl 
Navy Yard. I was formerly in the Quarte 
master’s Department on General Woe 
I have lived next door to Mr. Herold for 
thirteen years, and know the prisoner, David TESTIMONY CONCERNING EDWARD SPANGLER. 
97 
staff. I have known the prisoner, Herold, 
from early boyhood, having lived a great part 
of the time next door. At present I live 
four or five squares off, but I see him fre- 
quently. Ido not know that I can describe 
his character in better terms than to say that 
he is a boy; he is trifling, and always has 
been. There is very little of the man about 
him. From what I know of him, I should 
say he is very easily persuaded and led; I 
should think that nature had not endowed 
him with as much intellect as the generality 
of people possess. I should think his age is 
about twenty-two or twenty-three, but I con- 
sider him far more of a boy than a man. 
Dr. Samdel A. H. McKim.—May 31. 
By Mr. Stone. 
I reside in Washington City, the eastern 
part. I am acquainted with the prisoner, 
Herold; can scarcely say when I did not 
know him; I have known him very well for 
the last six years. I consider him a very 
light, trivial, unreliable boy; so much so 
that I would never let him put up a prescrip- 
tion of mine if I could prevent it, feeling con- 
fident he would tamper with it if he thought 
he could play a joke on anybody. In 
mind, I consider him about eleven years of 
age. 
TESTIMONY CONCERNING EDWARD SPANGLER. 
Jacob Ritterspaugh. 
For the Prosecution.—May 19. 
me on the face with the back of his hand, 
and he said, “Do n’t say which way he went." 
I asked him what he meant by slapping me 
in the mouth, and he said, “ For God’s sake, 
shut up; ” and that was the last he said. 
The man of whom I speak is Edward 
Spangler, the prisoner at the bar. I did not 
see any one else go out before the man with 
the knife. A tall, stout man went out after 
me. 
I know the prisoner, Edward Spangler. 
He boarded where I did, at Mrs. Scott’s, on 
the corner of Seventh and G Streets. He had 
no room in the house; he took his meals 
there, and slept at the theater. He used to 
keep his valise at the house, and when the 
detectives came and asked if Spangler had 
any thing there, I gave it to them. He had 
no clothes there, nothing but that valise; I 
do not know what it contained. lam corn- 
When I heard the pistol fired I was stand- 
ing in the center of the stage, listening to the 
play, and Spangler was at the same place, 
just about ready to*shove off’ the scenes; I 
stood nearest the door. lam certain we both 
stood there when the pistol was fired. I did 
not at first know what had happened. Some 
one called out “ Stop that man; ” and then I 
heard some one say that the President was 
shot, and not till then did I know what had 
occurred. When I came back, Spangler was 
at the same place where I had left him.* 
There was a crowd in there by that time, both 
actors and strangers. When Spangler slapped 
me there were some of the actors near who 
had taken part in the play; one they called 
Jenny—l do not know what part she took— 
was standing perhaps three or four feet from 
me; I do not know whether she heard what 
he said; he did not say it so very loud. He 
spoke in his usual tone, but he looked as if 
he was scared, and a kind of crying. I 
heard the people halloo, “Burn the theater! ” 
“ Hang him and shoot him ! ” I did not, 
that I know of, tell a number of persons what 
Spangler said when he slapped me. I did not 
tell either of the Messrs. Ford; I told it to 
nobody but Gifford, the boss. At Carroll 
Prison, the same week that I was released, 
I told him that Spangler said 1 should not 
Cross-examined by Mr. Ewing. 
monly called Jake about the theater. 
Recalled for the Prosecution.—May 30. 
I was a carpenter in Ford’s Theater down 
to the 14th of April last, and was there on 
that night when the President was shot He 
occupied the upper box on the left-hand side 
of the stage, the right as you come in from 
the front. My business was to shift wings 
on the stage and pull them off, and fetch 
things out of the cellar when needed. 
I was standing on the stage behind the scenes 
on the night of the 14th, when some one 
called out that the President was shot, and 
directly I saw a man that had no hat on run- 
ning toward the back door. 
He had a knife in his hand, and I ran to 
stop him, and ran through the last entrance, 
and as I came up to him he tore the door 
open. I made for him, and he struck at me 
with the knife, and I jumped back then. He 
then ran out and slammed the door shut. I 
then went to get the door open quick, and I 
thought it was a kind of fast; I could not 
get it open. In a moment afterward I opened 
the door, and the man had just got on his 
horse and was running down the alley; and 
then I came in. I came back on the stage 
where I had left Edward Spangler, and he hit 98 
THE CONSPIRACY TRIAL. 
say which way the man went. I told a de- 
tective that Spangler hit me in the mouth 
with his open hand. Ido not know his name ; 
he was one of Colonel Baker’s men ; had black 
whiskers and moustache, and weighed about 
one hundred and forty pounds, I should think. 
He came up to the house where I board in 
the afternoon of the day on which I was re- 
leased, and I told him then. I have no recol- 
lection of telling any one else, though I might 
have said something at the table, and the rest 
might have heard. 
1 saw Booth open the back- door of the 
theater and shut it, but I did not know who 
he was then; I did not see his face right. I 
was the first person that got to the door after 
he left; I opened the door, but did not shut 
it. The big man that ran out after me might 
have been five or six yards from me when I 
heard him, or it might have been somebody 
else, call out, “ Which way ? ” I cried out, 
“This way,” and then ran out, leaving the 
door open. By that time the man had got 
on his horse and gone off1 down the alley. I 
saw the big man outside, and have not seen 
him since. I did not take particular notice 
of him ; but he was a tolerably tall man. It 
might have been two or three minutes after I 
went out till I came back to where Spangler 
was standing, and found him kind of scared, 
and as if he had been crying. I did not say 
any thing to him before he said that to me. 
It was Spangler’s place, with another man, to 
shove the scenes on; he was where he ought to 
be to do the work he had to do. I did not 
hear any one call Booth’s name. It was not 
till the people were all out, and I came out- 
side, that I heard some say it was Booth, and 
some say it was not. Spangler and I boarded 
together; we went home to supper together, 
on the evening of the assassination, at 6 
o’clock, and returned at 7. 
ing-house. It was the next week after the 
assassination. I did not search him; my 
orders were to arrest him. 
Charles H. Rosch. 
For the Prosecution.—May 19. 
After the arrest of the prisoner, Edward 
Spangler, 1 went, in company with two of 
the Provost Marshal’s detectives, to the 
house on the north-east corner of Seventh 
and H Streets, where he took his meals. 
When we inquired for his trunk, we were 
told that he kept it at the theater; but the 
man at the house handed us a carpet-bag, 
in which we found a piece of rope measur- 
ing eighty-one feet, out of which the twist 
was very carefully taken. The bag was 
locked, but we found a key that unlocked it. 
It contained nothing but the rope, some 
blank paper, and a dirty shirt-collar, I was 
not present when Spangler was arrested. I 
went to his house between 9 and 10 o’clock 
on the night of Monday, April 17. 
Cross-examined by Mr. Ewing. 
It was a man called Jake, apparently a 
German, that told me it was Spangler’s bag, 
and that it was all he had at the house. He 
said he worked at the theater with Spangler. 
There were two other persons there, board- 
ers I presume. We got the rope from a 
bed-room on the second, floor that faced 
toward the south; the bag was right near 
where Jake had his trunk. I am satisfied 
that the coil of rope I see here now is the 
same that I took from Spangler’s carpet-bag. 
See testimony of 
Jos. Burroughs alias “Peanuts,” page 74 
Mary Ann Turner “ 75 
Mary Jane Anderson “ 75 
James L. Maddox “ 75 
Joseph B. Stewart “ 79 
Joe Simms “ 80 
John Miles “ 81 
John E. Buckingham “ 73 
William Eaton. 
Recalled for the Prosecution.—May 19. 
I arrested the prisoner, Edward Spangler, 
in a house on the South-east corner, I think, 
of Seventh and H; I believe it was his board- DEFENSE OF EDWARD SPANGLER. 
99 
DEFENSE OF EDWARD SPANGLER. 
C, D. Hess. 
that theater as the one in which to commit 
the crime. 
For the Defense.—May 31. 
By Mr. Ewing. 
The Commission sustained the objection. 
1 am manager of Grover’s Theater, and I 
have been in the habit of seeing John Wilkes 
Booth very frequently. On the day before 
the assassination he came into the office 
during the afternoon, interrupting me and 
the prompter of the theater in reading a 
manuscript. He seated himself in a chair, 
and entered into a conversation on the gen- 
eral illumination of the city that night. He 
asked me if I intended to illuminate. I said 
yes, I should, to a certain extent; but that 
the next night would be my great night of 
the illumination, that being the celebration 
of the fall of Sumter. He then asked, “Do 
you intend to” or “ Are you going to invite 
the President?” My reply, I think, was, 
“Yes; that reminds me I must send that 
invitation.” 1 had it in my mind for several 
days to invite the Presidential party that 
night, the 14th. I sent my invitation to 
Mrs. Lincoln. My notes were usually ad- 
dressed to her, as the best means of accom- 
plishing the object. 
Booth’s manner, and his entering in the 
way he did, struck me as rather peculiar. 
He must have observed that we were busy, 
and it was not usual for him to come into 
the office and take a seat, unless he was 
invited. He did upon this occasion, and 
made such a point of it that we were both 
considerably surprised. He pushed the mat- 
ter so far that I got up and put the manu- 
script away, and entered into conversation 
with him. 
H. Clay Ford. 
For the Defense.—May 31. 
By Mr. Ewing. 
On the 14th of April last I was treasurer 
of Ford’s Theater. I returned to the theater 
from my breakfast about half-past 11 o’clock 
that day, when my brother, James R. Ford, 
told me that the President had engaged a 
box for that night. John Wilkes Booth was 
at the theater about half an hour afterward. 
I do not know that the fact of the Presi- 
dent’s going to the theater that night was 
communicated to Booth, but I think it is 
very likely he found it out while there. I 
saw him going down the street while I was 
standing in the door of the theater; as he 
came up he commenced talking to the parties 
standing around. Mr. Raybold then went 
into the theater and brought him out a let- 
ter that was there for him. He sat down on 
the steps and commenced reading it. This 
was about 12 o’clock. He staid there per 
haps half an hour. I went into the office, 
and when I came out again he was gone. 
I told Mr. Raybold about fixing up and 
decorating the box for the President that 
night, but he had the neuralgia in his face, 
and I fixed up the box in his place. I found 
two flags in the box already there, which I 
got Mr. Raybold to help me put up. An- 
other flag I got from the Treasury Depart- 
ment. It was the Treasury regimental flag. 
I put this blue regimental flag in the center, 
and the two American flags above. There 
was nothing unusual in the decorations of 
the box, except the picture of Washington 
placed on the pillar in the middle of the 
box. This had never been used before. We 
usually used small flags to decorate the box; 
but as General Grant was expected to come 
with the President, we borrowed this flag 
from the Treasury regiment to decorate 
with. 
It is customary in theaters to keep the 
passage-way between the scenes and the 
green-room and the dressing-rooms clear, but 
much depends upon the space there is for 
storing scenes and furniture. 
[The counsel was eliciting from the witness the position 
of the box usually occupied by the President on visiting 
Grover’s Theater, and the nature of the leap that an assas- 
sin would have to make in endeavoring to escape from the 
box, when objection was made to the testimony as irrele- 
vant.] 
Mr. Ewing. I wush merely to show that, 
from the construction of Ford’s Theater, it 
would be easier for the assassin to effect his 
escape from Ford’s Theater than it would be 
from Grover’s. The purpose is plainly to 
show that Ford’s Theater was selected by 
Booth, and why Ford’s Theater is spoken of 
by him as the one where he intended to 
capture or assassinate the President, and to 
relieve the employees of Ford’s Theater, Mr. 
Spangler among them, from the imputation 
which naturally arises from Booth’s selecting 
The furniture placed in the box consisted 
of one chair brought from the stage and a 
sofa, a few chairs out of the reception-room, 
and a rocking-chair, which belonged to the 
same set, I had brought from my bed-room. 
This chair had been in the reception-room, 
but the ushers sitting in if had greased it 
with their hair, and I had it removed to my 
room, it being a very nice chair. The only 
reason for putting that chair in the box was 
that it belonged to the set, and I sent for it 
to make the box as neat as possible 100 
THE CONSPIRACY TRIAL. 
I received no suggestions from any one as 
to the decoration of the box, excepting from 
Mr, Haybold and the gentleman who brought 
the flag from the Treasury Department. 
All that Spangler had to do with the box 
was to take the partition out. There are two 
boxes divided by a partition, which, when 
the President attended the theater, was al- 
ways removed to make the box into one. 
Spangler and the other carpenter, Jake, re- 
moved it. The President had been to the 
theater, I suppose, about six times during the 
winter and spring; three or four times during 
Mr. Forrest’s engagements, and twice during 
Mr. Clark’s engagement. These are the 
only times 1 remember. 
I did not direct Spangler with respect to 
the removal of the partition; I believe Mr. 
Raybold sent for him. While we were in 
the box Spangler was working on the stage; 
I think he had a pair of flats down on the 
stage, fixing them in some way. I called for 
a hammer and nails; he threw up two or 
three nails, and handed* me the hammer up 
from the stage. 
Spangler, of course, knew that the Presi- 
dent was coming to the theater that evening, 
as he assisted in taking out the partition. 
In decorating the box I used my penknife 
to cut the strings to tie up the flags, and left 
it there in the box. 
Three or four times during the season 
Booth had engaged box No. 7, that is part 
of the President’s box, being the one nearest 
the audience. He engaged no other box. 
During the play that evening, the “Ameri- 
can Cousin,’’ I was in the ticket-office of the 
theater. I may have been out on the pave- 
ment in front two or three times, but I do 
not remember. I did not see Spangler there. 
I never saw Spangler wear a moustache. 
The screws of the keepers of the lock to 
the President’s box, I understand, were burst 
some time ago. They were not, to my 
knowledge, drawn that day, and left so that 
the lock would not hold the door on its be- 
ing slightly pressed. It was not done in my 
presence, and if it was done at all, it was 
without my knowledge. 
I do not remember any conversation with 
Mr. Ferguson before the day of the assassin- 
ation about decorating the theater in celebra- 
tion of some victory. 
The letter that Booth received on the day 
of the assassination, and read on the steps 
of the theater, was a long letter, of either 
four or eight pages of letter-paper—whether 
one or two sheets I do not know, but it was 
all covered with writing. He sat on the 
steps while reading his letter, every now and 
then looking up and laughing. It was while 
Booth was there that I suppose he learned 
of the President’s visit to the theater that 
evening. There were several around Booth, 
talking to him. Mr. Gifford was there; Mr. 
Evans, an actor, and Mr. Grillet, I remem- 
ber, were there at the time. 
The President’s visit to the theater that 
evening could not have been known until 12 
o’clock, unless it was made known by some 
one from the Executive Mansion. It was 
published in the Evening Star, but not in 
the morning papers. 
I am not acquainted with John H. Surratt. 
By Me. Aiken. 
[Photograph of John H. Surratt exhibited to the wit- 
ness.l 
I never saw that person that I know of. 
By Mr. Ewing. 
I have never, to my knowledge, seen the 
prisoner, Herold. 
The mortise in the passage-way was not 
noticed by me; the passage was dark, and 
when the door was thrown back against the 
wall, as it was that day, I should not be 
likely to notice it had it been there at that 
time. Had the small hole been bored in 
the door, or had the screws been loosened, it 
is not likely I should have noticed them. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
None of the other boxes were occupied on 
the night of the President’s assassination, 
and I do not remember any box being taken 
on that night. I certainly did not know 
that the boxes were applied for, for that even- 
ing, and that the applicants were refused and 
told that the boxes were already taken. The 
applicants did not apply to me. Booth did 
not apply to me, or to any one, for those 
boxes, to my knowledge, nor did any one else 
for him. There were four of us in the office 
who sold tickets. There were not, to my 
knowledge, any applications for any box ex- 
cept the President’s. There may have been 
applications without my knowledge. 
I know nothing of the mortise "in the wall 
behind the door of the President’s box. I 
heard of it afterward, but have never seen it, 
nor did I see the bar said to have been used 
to fasten the door, nor did I see the hole 
bored through the first door of the Presi- 
dent’s box, though I have since heard there 
was one. I have not been in the box since. 
By the Court. 
I might have stated in the saloon on Tenth 
Street that the President was to be at the 
theater that evening, and also that General 
Grant was to be there. 
James R. Ford. 
For the Defense.—May 30. 
By Mr. Ewing. 
At the time of the assassination, I was 
business manager of Ford’s Theater. I was 
first apprised of the President’s intended visit 
to the theater on Friday morning, at half- 
past 10 o’clock. A young man, a messenger 
from the White House, came and engaged DEFENSE OF EDWARD SPANGLER. 
101 
the box. The President had been previously 
invited to the theater that night, and I had 
no knowledge of his intention to visit the 
theater until the reception of that message. 
I saw John Wilkes Booth about half-past 
12, two hours after I received this informa- 
tion. I saw him as 1 was coming from the 
Treasury Building,, on the corner of Tenth 
ancT E Streets. I was going up E Street, 
toward Eleventh Street; he was coming 
from the direction of the theater. 
evidence, or any evidence at all, to introduce 
a conversation between Booth and this wit- 
ness at another time and place. It is no 
evidence at all, it is not colorable evidence, 
and the Court have nothing in the world to 
do with it. It would be impossible to ask 
the witness any questions that would be more 
irrelevant or incompetent than the question 
that is now asked him. 
Mr. Ewing. I will state to the Court 
further that it has already received testimony, 
as explanatory of the presence of Booth in 
Charles County, of his avowed object in 
going there—testimony to which the Judge 
Advocate made no objection, and which he 
must have then regarded as relevant. This 
testimony is clearly to that point of explana- 
tion of Booth’s visit in Lower Maryland, as 
well as an explanation of the alleged conver- 
sation with Mudd in January. 
Assistant Judge Advocate Bingham. The 
difference is this: the defense attempted to 
prove negotiations in Charles County, and 
we thought we would not object to that; but 
this is another thing altogether. It is an 
attempt to prove a talk, irrespective of time 
or place, or any thing else. 
The Commission sustained the objection. 
Q. State whether, upon any occasion, you 
have had any conversation with Booth as to 
the purchase of lands, and, if so, where? 
Assistant Judge Advocate Bingham. I ob- 
ject to the question. 
Mr. Ewing. Testimony has already been 
admitted on that point. 
Assistant Judge Advocate Bingham. I 
know, but it is unimportant as to this man; 
there is no question about this man in the 
case. 
Mr. Ewing It is very important as to one 
of the prisoners. 
Assistant Judge Advocate Bingham. This 
witness can not be evidence for any human 
being on that subject, no matter what Booth 
said to him about it. I object to it on the 
ground that it is entirely incompetent, and 
has nothing in the world to do with the case. 
If this witness had been involved in it, I ad- 
mit it might be asked, with a view to excul- 
pate him from any, censure before the public. 
Mr. Ewing. The Court will recollect that 
in Mr. Weichman’s testimony there was evi- 
dence introduced by the prosecution of an 
alleged interview between Dr. Mudd and 
Booth at the National Hotel, in the middle 
of January, which was introduced as a circum- 
stance showing his connection with the con- 
spiracy, which Booth is supposed to have 
then had on foot. The accused, Dr. Mudd, 
is represented to have stated that the con- 
versation related to the purchase of his lands 
in Maryland. I wish to show by this wit- 
ness that Booth spoke to him frequently, 
through the course of the winter, of his 
speculations, of his former speculations in 
oil lands, which are shown to have been 
actual speculations of the year before, and 
of his contemplating the investmentof money 
in cheap lands in Lower Maryland. The 
etfect of the testimony is to show that the 
statement, which has been introduced against 
the accused, Dr. Mudd, if it was made, was 
a bona fide statement, and related to an actual 
pending offer, or talk about the sale of his 
farm to Booth. 
Assistant Judge Advocate Bingham. The 
only way, if the Court please, in which they 
can do any thing in regard to this matter of 
file declaration of Mudd, if it was made, 
(and, if it was not made, of course it does 
ttot concern anybody,) is simply to show by 
legitimate evidence that there was such a ne- 
By Mb. Ewing. 
Q. Do you know any thing of the visit 
made by Booth into Charles County last 
fall ? 
A. He told me 
Assistant Judge Advocate Bingham objected 
to the witness giving the declarations of 
Booth. 
The Witness. I have never known Booth 
to go there. 
Q. Have you ever heard Booth say what 
the purpose of any visit which he may 
have made last fall to Charles County 
was ? 
Assistant Judge Advocate Bingham renewed 
his objection. 
The Commission sustained the objection. 
The notice in the Evening Star that an- 
nounced the President’s intended visit to the 
theater, also said that General Grant would 
be there. 
By Mb. Aiken. 
By Assistant Judge Advocate Bubnett 
I wrote the notice for the Star in the 
ticket-office of the theater about halfpast 
11 or 12 o'clock, and sent it to the office 
immediately; I at the same time carried one 
myself to the National Republican. The 
notice appeared in the Star about 2 o’clock. 
Before writing the notice I asked Mr. Phil- 
lips, an actor in our establishment, who was 
on the stage, to do it; he said he would after 
he had finished writing the regular adver- 
tisements. I also spoke to my younger 
gotiation going on between himself and Booth, 
fhe point I make is, that it is not legitimate 
brother about the propriety of writing it. I 
; had not seen Booth previous to writing the 102 
THE CONSPIRACY TRIAL. 
notice, nor do I remember speaking to any 
one else about it. 
The second act depends very much upon 
the action and the spirit of the actors en- 
gaged in it. Sometimes it is much more 
rapid than at others. In the second act I 
hardly think there is an interval of more 
than five or eight minutes between the times 
that Spangler would have to move the scenes. 
His constant presence upon the stage would 
be absolutely necessary if he attended to his 
duties. 
By Mr. Aiken. 
I had sent the notice to the Star office 
before seeing Booth. 
[Exhibiting the photograph of John H. Surratt.] 
Ido not know Surratt. I never remember 
seeing him. 
John McCullough, the actor, left this city 
the fourth week in January. He returned 
with Mr. Forrest at his last engagement. I 
do not know exactly when, but about the 
Ist of April. 
In the intervals between the scenes, he 
should be preparing for the next change, to 
be ready at his scene, and to remain on the 
side where the assigned 
him his post of duty; besides, emergencies 
often arise during an act that require extra 
services of a stage hand. 
J. B. Wright was the stage-manager, 
James J. Gifford the stage-carpenter. The 
stage-manager directs, the stage-carpenter 
executes the work belonging to the entire 
stage. The duty of keeping the passage-way 
clear and in a proper condition belongs to 
Gifford’s subordinates, the stage hands who 
were on the side where this passage is. It is 
the duty of each and every one to keep the 
passage-way clear, and is as indispensable as 
keeping the front door clear. The action of 
the play might be ruined by any obstruction 
or hinderance there. 
John T. Ford. 
For the Defense.—May 31. 
I reside in Baltimore, and am proprietor 
of Ford’s Theater in the city of Washing- 
ton. The prisoner, Edward Spangler, has 
been in my employ three or four years at 
intervals, and over two years continuously. 
Spangler was employed as a stage hand, 
frequently misrepresented as the stage-car- 
penter of the theater. He was a laborer to 
assist in shoving the scenery in its place, 
as the necessity of the play required. These 
were his duties at night, and during the day 
to assist in doing the rough carpenter work 
incidental to plays to be produced. 
Q. State whether or not his duties were 
such as to require his presence upon the 
stage during the whole of a play. 
A. Strictly so; his absence for a moment 
might imperil the success of a play, and 
cause dissatisfaction to the audience. It is 
My positive orders are to keep it always 
clear and in the best order. It is the pas- 
sage-way used by all the parties coming from 
the dressing-rooms. Where a play was per- 
formed like the “American Cousin,” the 
ladies were in full dress, and it was abso- 
lutely necessary that there should be no 
obstruction there, in order that the play 
should be properly performed. Coming from 
the dressing-rooms and the green-room of the 
theater, every one had to use that passage. 
The other side of the stage was not used 
more than a third as much, probably. Most 
of the entrances by the actors and actresses 
are made on the prompt side; but many are 
essential to be made on the 0. P. side. By 
entrances to the stage, I mean to the pres- 
ence of the audience. The stage-manager 
was a very exacting man in all those details, 
and I have always found the passage clear, 
unless there was some spectacular play, in 
which he required the whole spread of the 
stage. Then at times it would be partly in- 
cumbered, but not enough so to prevent the 
people going around the stage, or going to 
the cellar-way and underneath, and passing 
to the other side by way of the cellar. 
The “American Cousin ” was a very plain 
play ; no obstruction whatever could be ex- 
cused on account of that play; it was all 
what we call flats, except one scene. The 
flats are the large scenes that cross the 
stage. 
very important to the effect of a play that 
the scenery should be well attended to in all 
its changes; and he is absolutely important 
there every moment from the time the cur- 
tain rises until it falls. There are intervals, 
it is true, but he can not judge how long or 
how brief a scene may be. 
On Friday, the day of the assassination, I 
was in Richmond. Hearing of the partial 
destruction of that city by fire, I went there, 
anxious to ascertain the condition of an 
uncle, a very aged man, and my mother-in- 
law. 1 did not hear of the assassination 
until Sunday night, and then I heard that 
Edwin Booth was charged with it. On Mon- 
day morning I started for Washington by 
the 6 o’clock boat. While on the boat I saw 
the Richmond Whig, which confirmed the 
report I had heard of the assassination on 
Sunday night. 
During the performance of the “ American 
Cousin,” Spangler’s presence on the stage 
would be necessary. The first scene of the 
third act is quick, only of a few moments’ 
duration. The second scene is rather a long 
one, longer perhaps than any other scene in 
that act, probably eight, ten, or twelve minutes 
long. Spangler’s presence would be neces- 
sary unless positively informed of the dura- 
tion of the scene. 
The prompt side, the side on which the 
prompter is located, is the position of the 
stage-carpenter, and opposite to where 
Spangler worked, which is on the 0. P. side, DEFENSE OF EDWARD SPANGLER. 
103 
opposite the prompter’s place. Keeping the 
passage-way clear would not be a duty of 
Spangler’s, unless he was specially charged 
with it. 
Spangler, I know, considered Baltimore 
liis home. He buried his wife there about a 
year ago, or less, while in my employ. He 
Usually spent his summer months there, 
during the vacation of the theater, chiefly in 
crab-fishing. I have understood he was a 
great crab-fisher; we used to plague him 
about it. 
[Exhibiting a coil of rope found at Spangler’s boarding- 
house, in his carpet-bag.] 
case of the prisoner, Arnold, who in his con- 
fession, as orally detailed here, stated that the 
plan was to capture the President, and Ches- 
ter corroborates that; and also to assist the 
case of the prisoner, Spangler, by showing that 
Booth was not able to get, or did not get, in 
the theater any instruments to assist him in 
the purpose, and was endeavoring to get 
them brought there—men that he had pre- 
viously manipulated. 1 think it is legiti- 
mate. 
Assistant Judge Advocate Bingham. Noth- 
ing can be clearer, if the Court please, than 
that it is utterly incompetent. It is not a 
simple question of relevancy here; it is ab- 
solute incorapetency. A party who conspires 
to do a crime may approach the most up- 
right man in the world with whom he has 
been, before the criminality was known to 
the world, on terms of intimacy, and whose 
position in the world, was such that he might 
be on terms of intimacy with reputable gen- 
tlemen. It is the misfortune of a man that 
is approached in that way; it is not his 
crime, and it is not colorably his crime 
either. It does not follow now, because 
Booth chose to approach this man Chester, 
that Booth is therefore armed with the 
power, living or dead, to come into a court 
of justice and prove on his own motion, or 
on the motion of anybody else, what he may 
have said touching that man to third per- 
sons. The law is too jealous of the reputa- 
tion and character of men to permit any 
such proceedings as that. 
The Commission sustained the objection. 
Q. Do you think that the leap from the 
President’s box upon the stage would be at 
all a difficult one for Booth ? 
That rope might be used as a crab-line, 
though it is rather short for that purpose. 
Professional crab-fishers use much longer 
ropes than this, four hundred or five hun- 
dred feet long, though I have seen ropes as 
short as this, which I understand is eighty 
feet, used by amateurs in that sport. The 
rope is supported by a buoy, and to it are 
attached smaller ropes or lines. 
Spangler seemed to have a great admira- 
tion for J. Wilkes Booth; I have noticed 
that in ray business on the stage with the 
stage-manager. 
Booth was a peculiarly fascinating man, 
and controlled the lower class of people, 
such as Spangler belonged to, more, I sup- 
pose, than ordinary men would. Spangler 
was not in the employ of Booth, that I know, 
and only since the assassination have I heard 
that he was in the habit of waiting upon 
him. I have never known Spangler to wear 
a moustache. 
I have known John Wilkes Booth since 
his childhood, and intimately for six or seven 
years. 
Q. State whether you have ever heard 
Booth speak of Samuel K. Chester, and, if 
so, in what connection and where. 
Assistant Judge Advocate Bingham. I 
9hject to any proof about what he said in 
regard to Chester. 
Q. [By Mr. Ewing.] State whether or 
not Booth ever applied to you to employ 
Chester, who has been a witness for the pros- 
ecution, in your theater. 
Assistant Judge Advocate Bingham. That 
I object to. It is certainly not competent to 
introduce declarations of Booth made to any- 
body in the absence of a witness that may 
be called, relative to a transaction of his, to 
affect him in any way at all. I object to it 
as wholly incompetent. 
Mr. Ewing. It is not to attack Chester, 
may it please the Court, that I make this 
inquiry, but rather to corroborate him; to 
show that Booth, while manipulating Ches- 
ter to induce him to go into a conspiracy for 
the capture of the President, was actually at 
the same time endeavoring to induce Mr. 
Bord to employ Chester, in order that he 
might get him here to the theater and use 
him as an instrument; and it goes to affect 
the case of several prisoners at the bar—the 
A. I shoqld not think so; I have seen 
him make a similar leap without any hesi- 
tation, and I am aware that he usually in- 
troduced such a leap into the play of “ Mac- 
beth." 
Q. Do you think, then, from your know- 
ledge of the physical powers of Booth, that 
that leap was one that he would not need to 
rehearse ? 
A. I should not think a rehearsal of it was 
needed. He was a very bold, fearless man; 
he always had the reputation of being of 
that character. He excelled in all manly 
sports. We never rehearse leaps in the thea- 
ter, even when they are necessary to the 
action of the play; they may be gone over 
the first time a play is performed, but it is 
not usual. Booth had a reputation for being 
a great gymnast. He introduced, in some 
Shakspearian plays, some of the most extra- 
ordinary and outrageous leaps—at least they 
were deemed so by the critics, and were con- 
demned by the press at the time. 
I saw him on one occasion make one of 
these extraordinary leaps, and the Baltimore 
Sun condemned it in an editorial the next 
day—styling him “ the gymnastic actor.” 
It was in the play of “Macbeth,” the en- 104 
THE CONSPIRACY TRIAL. 
trance to the witch scene; he jumped from 
a high rock down on the stage, as high or 
perhaps higher than the box; I think nearly 
as high as from the top of the scene; and he 
made the leap with apparent ease. 
Booth was in the habit of frequenting 
Ford’s Theater at Washington. I seldom 
visited the theater but what I found him 
about or near it, during the day, while I was 
there. I usually came down to the theater 
three days a week, devoting the other three 
to my business in Baltimore, and being there 
between the hours of 10 and 3. I would 
nearly always meet Booth there when he 
was in the city. He had his letters directed 
to the theater, and that wras the cause of 
his frequent visits there, as I thought then. 
The last time I saw Booth was some two or 
three weeks before the assassination. 
rare. My reason for constructing so many 
boxes to this theater was, that usually pri- 
vate boxes were in demand in Washington— 
more so than in almost any other city. It 
is not a favorable place to see a performance, 
but it is a fashionable place here to which 
to take company. 
jßecalled for the Defense.—June 9. 
By Mr. Ewing. 
I have known Edward Spangler for nearly 
four years. He has been in my employ most 
of that time. He was always regarded as a 
very good-natured, kind, willing man. His 
only fault was in occasionally drinking more 
liquor than he should have done, not so as 
to make him vicious, hut more to unfit him 
to work. Since he has been in my employ 
I never knew him to be in but one quarrel, 
and that was through drink. He was always 
willing to do any thing, and was a very good, 
efficient drudge. He was considered a very 
harmless man by the company around the 
theater, and was often the subject of sport 
and fun. I do not think he was intrusted 
with the confidence of others to any extent. 
He had not many associates. He had no 
self-respect, and was a man that rarely slept 
in a bed; he usually slept in the tlieater. 
I never knew any thing of his political senti- 
ments in this city; never heard from him an 
expression of partisan or political feeling. 
In Baltimore he was known to be a member 
of the American Order. 
The last appearance of John McCullough 
at my theater in Washington was on the 18th 
of March, the night, 1 believe, when the 
“Apostate ” was played. Mr. McCullough 
always appears with Mr. Forrest, and he has 
since appeared in New York. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
1 can not state positively that the private 
boxes are locked when not in actual use; 
that is our custom in Baltimore. Mr. Gif- 
ford, who had control of the whole theater, 
is the responsible party whom I should 
blame for any thing wrong about the boxes. 
We keep the boxes locked, and the keys in 
the box-office; here, I understand, the custom 
is for the ushers to keep the keys. James 
O’Brien was the usher of the dress-circle, 
and James R. Ford and Henry Clay Ford 
were the parties authorized to sell tickets for 
those boxes that day. 
Q. Ho you know as a fact that none of 
the boxes were occupied that night, except 
that occupied by the President? 
A. I have only heard so. 
Q. Is the play of the “American Cousin ’ 
a popular one? Hoes it attract considerable 
audiences ? 
By Mr. Clampixt. 
I never met J. Z. Jenkins except in Carroll 
Prison. 
Joseph S. Sessford. 
For the Defense.—June. 3. 
I was seller of tickets at Ford’s Theater. 
My business commenced about half-past 6 in 
the evening. 
None of the private boxes, except that 
occupied by the party of the President, were 
applied for on the evening of the assassina- 
tion, nor had any been sold during the day 
that 1 know of. 
A. It was, when originally produced, an 
exceedingly attractive play; of late years it 
has not been a strong card, but a fair at- 
traction. 
Q. Is it not a very unusual thing, when 
such plays are produced, for your private 
boxes to be entirely empty? 
A. Washington is a very good place for 
selling boxes usually. They are generally in 
demand, and nearly always two or three 
boxes are sold. 
Q. Can you recall any occasion on which 
a play, so popular and attractive as that was, 
presented when none of your private boxes, 
save the one occupied by the President, was 
used ? 
William Withers, Jr. 
Recalled for the Defense.—May 31 
By Mr. Ewing. 
The door leading into the alley from the 
passage was shut when Booth rushed out 
After he made the spring from the box, and 
ran across the stage, he made a cut at me, 
and knocked me down to the first entrance; 
then I got a side view of him. The door was 
shut, but it opened very easily; I saw that 
distinctly. He made a plunge right at the 
knob of the door, and out he went, and pulled 
the door after him. He swung it as he went 
out. I did not see Booth during the day. 
A. I remember occasions when we sold 
no boxes at all, and had quite a full house— 
a good audience; but those occasions were DEFENSE OF EDWARD SPANGLER. 
105 
Henry M. James. 
I saw Spangler three or four times that even- 
ing on the stage in his proper position. I saw 
him about two minutes before the shot was 
fired. He was on the same side I was on— 
the same side as the President’s box. About 
five minutes after the shot was fired I again 
saw Spangler standing on the stage, with a 
crowd of people who had collected there. 
I saw Booth when he made his exit. I 
was standing in the first entrance on the 
left-hand side. When he came to the center 
of the stage, I saw that he had a long knife 
in his hand. It seemed to me to be a double- 
edged knife, and looked like a new one. He 
paused about a second, I should think, and 
then went off at the first entrance to the 
right-hand side. I think he had time to get 
out of the back door before any person was 
on the stage. It was, perhaps, two or three 
seconds after he made his exit before I saw 
any person on the stage in pursuit. The 
first person I noticed was a tall, stout gentle- 
man, with gray clothes on, I think, and I 
believe a moustache. Booth did not seem 
to run very fast across the stage; he seemed 
to be stooping a little when he ran off. 
The distance he ran would be about thirty- 
five or forty feet; but he was off the stage 
two or three seconds before this gentleman 
was on, and of the two, I think Booth was 
running the fastest. 
For the Defense.—May 31. 
By Mr. Ewing. 
I was at Ford’s Theater on the night of 
the assassination. When the shot was fired, 
I was standing ready to draw off the flat, 
and Mr. Spangler was standing right opposite 
to me on the stage, on the same side as 
the President's box, about ten feet from me. 
From his position he could not see the box, 
nor the side of the stage on which Booth 
jumped. 1 had frequently during the play 
seen Spangler at his post I saw no one 
with him. The passage-way was clear at 
the time; it was.our business to keep it clear; 
it was more Spangler's business than mine. 
I saw Spangler when the President entered 
the theater. When the people applauded on 
the President’s entry, he applauded with 
them, with both hands and feet. He clapped 
his hands and stamped his feet, and seemed 
as pleased as anybody to see the President 
come in. 
1 did not see Jacob Eitterspaugh near 
Spangler that evening. He might have been 
there behind the scenes, but I did not see 
him. I can not say how long 1 staid in 
my position after the shot was fired; it might 
have been a minute. I did not see Spangler 
at all after that happened. 
By Assistant Judge Advocate Bingham. 
I was at the theater at 12 o’clock that 
day. I did not see Booth there. 
By Mr. Aiken. 
Jacob Eitterspaugh was employed there, 
and it was his business to be there behind 
the scenes, though I did not see him. 
Recalled for the Prosecution.—June 13. 
J. L. Debonat. 
When the shot was fired on the night of 
the assassination, I was standing on the left- 
hand side of the first entrance, the side the 
President’s box was on. About a minute and 
a half or two minutes after Mr. Stewart left 
the stage, or about time to allow of his getting 
to the back door, I saw Spangler shove the 
scene back to give the whole stage to the 
people who came on. I do not know who 
assisted him. Spangler then came to the 
front of the stage with the rest of the people. 
There was then a cry for water. I started 
to the green-room, and he came the same 
way. About a half dozen of us went to get 
some water to carry it to the private box. 
When Booth wanted Spangler to hold his 
horse, and I went over to tell him, Spangler 
and Sleichman were standing close to each 
other on the opposite side of the stage, the 
side of the President’s box. Spangler then 
left; I saw him go out to Booth, and in about 
a minute or a minute and a half Booth came 
in. 
For the Defense.—May 31. 
By Mr. Ewing. 
I was playing what is called “ responsible 
utility” at Ford’s Theater at the time of 
the assassination. On the evening of the 
assassination, Booth came up to the alley 
door and said to me, “Tell Spangler to 
come to the door and hold my horse.” I did 
not see his horse. I went over to where 
Mr. Spangler was, on the left-hand side, at 
his post, and said, “ Mr. Booth wants you to 
hold his horse.” He then went to the door 
and went outside, and was there about a 
minute, when Mr. Booth came in. Booth 
asked me if he could get across the stage. I 
told him no, the dairy scene was on, and he 
would have to go under the stage and come 
up on the other side. About the time that 
he got upon the other side, Spangler called 
to me, “Tell Peanut John to come here and 
hold this horse; 1 have not time. Mr. 
Gifford is out in the front of the theater, and 
all the responsibility of the scene lies upon 
me.” I went on the other side and called 
John, and John went there and held the 
horse, when Spangler came in and returned 
to his post. 
I heard no conversation between Spangler 
and Booth. Booth met Spangler at the door, 
and was standing at the door on the outside; 
the door was about half open when Spangler 
went out. If any person had followed Span- 
gler I should have seen him. I was half-way 
between the back door and the green-room, 106 
THE CONSPIRACY TRIAL. 
about eighteen or twenty feet distant, I sup- 
pose. Booth, when he came in, Went under 
the stage to the opposite side, and went out 
of the side door; I went under the stage and 
crossed with him. I did not see him speak 
to any one. I was in front of the theater 
about five minutes before the assassination; 
I did not see Spangler there. 
I have known Spangler for about six 
months. I have never seen him wear a mous- 
tache. He is a man that has been a little 
dissipated a considerable portion of his time— 
fond of spreeing round. He is free in con- 
versation, especially when in liquor. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I eat in the dress-circle on the north side, 
the same side as the entrance through which 
Booth passed. From the place where I sat I 
could not distinctly see the mouth of the 
entrance. 
For the Defense.—June 2. 
By Mr. Ewing. 
James Lamb. 
For over a year I have been employed at 
Ford’s Theater as artist and scene-painter. 
Cross-examined by the Judge Advocate. 
When Booth passed under the stage, he 
went through the little side passage, level with 
the lower floor of the theater, that leads out 
into Tenth Street; that side passage also 
leads up to Mr. Ford’s room. I went out 
through that passage to the front of the 
theater, and returned by the same way, and 
had taken my place on the stage when the 
pistol was fired. I was not doing any thing, 
but was leaning up against the corner of the 
scene at the time. We were waiting for the 
curtain to drop. Mr. Harry Hawk was on 
the stage at the moment, playing in a scene. 
[The rope found in Spangler’s bag exhibited to the wit- 
ness.] 
I have seen ropes like this at the theater. 
There are probably forty or fifty of such ropes 
in use there. They are called border-ropes, 
and are about seventy or eighty feet in length, 
used for suspending the borders that hang 
across the stage. The borders are long strips 
of canvas, painted to represent some exteriors, 
others interiors, and as they are required to 
be changed for the scene that is on, they are 
raised or lowered by means of such ropes as 
these. This rope has the appearance of 
having been chafed; a new rope would be a 
little sliffer in its texture than this. I should 
say this is a new rope, but has been in use, 
though I can not detect any thing that would 
lead me to say it has been in use as a border- 
rope; if it had been, there would have been 
a knot fastening at the end, or have the ap- 
pearance of having been tied. 
By Mr. Ewing. 
I played in the piece, taking the part of 
John Wigger, the gardener. 
William R. Smith. 
For the Defense.—June 2. 
By Mr. Ewing. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I am Superintendent of the Botanical Gar- 
den, Washington. I was in Ford’s Theater 
at the time of the assassination. I saw J. 
Wilkes Booth pass off the stage, and Mr. 
Stewart get on it. Mr. Stewart was among 
the first to get on ; but my impression is that 
Booth was off the stage before Mr. Stewart 
got on it. I did not notice him after he got 
on the stage. 
I think it is a rope very similar to the 
ones used at the theater, but I should be very 
sorry to swear that it was one of them. 1 
should say the material was rnanilla. 
I know John Wilkes Booth by sight. I 
never spoke a word to him in my life. I did 
not hear him say any thing in March or 
April last about the President. I never was 
in his company. 
By Mr. Ewing. 
Recalled for the Defense.—May 31. 
J. P. Ferguson. 
From an examination of the rope, I have 
no reason to believe that it was not used as 
a border-rope. I was in the theater the 
whole of Saturday, the day after the Presi- 
dent was assassinated, from 10 o’clock until 
the military guard took possession, and I saw 
Spangler there several times during the day. 
I saw the gentleman who first got upon the 
stage after Booth got off. He was a large 
man, dressed in light clothes, with a mous- 
tache. This gentleman was the first that got 
upon the stage, and I suppose it was probably 
two or three minutes—about that long—after 
Booth went off the stage that this man went 
out of the entrance. I saw no one else run 
out of the entrance except Hawk, the young 
man who was on the stage at the time Booth 
jumped from the box. If any one had ruu 
out of the entrance following Booth, I should 
probably have seen him, because I thought 
it was very singular that those who were near 
the stage did not try to get on it. 
I saw him on the stage. Maddox, Jake, 
Mr. Gifford, and Mr. Wright, the stage-man- 
ager, were in and out occasionally. Garland 
was also there with Spangler, Maddox, and 
myself, in the forenoon, loitering and walk- 
ing -about, sometimes sitting down; there 
was no companionship particularly. I have 
not seen Spangler since until this morning. 
By Assistant Judge Advocate Bingham. DEFENSE OF EDWARD SPANGLER. 
107 
Jacob Ritterspaugh. 
hand. Ritterspaugh said, “It is well for 
him I had not something in my hand to 
return the blow.” Then he represented 
Spangler as saying, when he slapped him' 
“Hush up; hush up; you know nothing 
about it. What do you know about it? Keep 
quiet; ” hushing him up. 
Ritterspaugh did not say to me that when 
Spangler hit him on the face he said, “ Do n’t 
say which way he went.” I am certain Rit- 
terspaugh did not say that to me, or words to 
that effect. 
Recalled for the Defense.—June 2. 
By Mr. Ewing. 
When I was in the theater with Mr. 
Lamb, the next day after the assassination, 
I told him about Spangler slapping me and 
Baying, “Shut up; don’t say which way he 
Went; ” and on tbe night of the assassina- 
tion, when Garland came up to Mr. Gifford’s 
room, he woke me up and asked where Ned 
was. I told him I did not know, and then 
I told him that Ned had slapped me in the 
mouth, and said, “Don’t say which way he 
went.” 
Cross-examined by Assistant Judge Advocate 
Bingham. 
As I was on the stage with Spangler on 
the day of the assassination, we saw a man 
in the dress-circle smoking a cigar. I asked 
Spangler who it was, but he did not know; 
and I said we ought to tell him to go out; 
but Spangler said he had no charge on that 
side of the theater, and had no right to do 
so. I took no more notice of him, and went 
to my work again. After awhile I saw him 
sitting in the lower private box, on the right- 
hand side of the stage. He was looking at 
us. I told Ned, and he spoke to him, and 
then the man went out. That was about 6 
o’clock on the evening of the day on which 
the President was assassinated. That was 
about 6 o’clock in the evening. 
Q. Can you tell just exactly the words he 
did say, that you have sworn to already ? 
A. Yes, sir. 
Q. State them. 
A. “ Shut up; what do you know about it? 
Hold your tongue.” 
Q. That is what Jake said? 
A. That is what Spangler said to Jake. 
Q. Are you now reporting what Jake said, 
or reporting what Spangler said ? 
A. I am reporting what Spangler said and 
what Jake said. 
Q. We are not asking you for what Span- 
gler said; we are asking you what Jake said. 
State, if you please, what Jake said on that 
occasion, and exactly what you have sworn 
he said, and all he said. 
A. I will, as near as I can recollect. As he 
told me, he said, “ I followed out the party, 
was close at his heels, or near to him, and I 
said that is Booth. I know him ; I know 
him ; ” or words to that effect, as near as can 
be. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
1 never saw the man before. He wore a 
moustache. I saw him first in the dress- 
circle. then in the lower private box on the 
right-hand side of the stage, the left-hand 
when you come in from the front of the 
theater. 
Q. Jake said he followed out the party, 
close to his heels ? 
James Lamb. 
A. Near to him. 
Q. And that he knew who that was? 
A. He did not say that he followed the 
Recalled for the Defense.—June 2. 
party. 
Q. I am asking you what he said. Did 
you not swear just now that he said he fol- 
lowed the party close to his heels ? 
A. He was near to him. 
I saw Ritterspaffgh on the stage on Satur- 
day, the day following the President’s assas- 
sination. Ritterspaugh was grumbling, and 
saying that it was well for Ned that he 
had n’t something in his hand at the time. 
I asked him why. He replied, “He struck 
me last night a very hard blow, and he said 
at the same time, ‘Shut up; you know 
nothing about it.’ ” This was said in con- 
nection with Ritterspaugh having said it was 
Booth that ran across the stage. Ritter- 
spaugh said he called out, “ I know him; I 
know who it was; it was Booth,” or some- 
thing of that kind, and then Ned struck him 
nnd said “Hush up; be quiet. What do 
}ou know about it?” That was while Mr. 
Booth, or whoever it was, was leaving the 
stage. It was when he was making his es- 
cape that this man Jake said he was rushing 
up and made this exclamation, “ That was 
Booth; I know him; I know him; I will 
Bwear that was Booth;” when Ned turned 
round and struck him in the face with his 
Q. Did you or did you not swear that he 
said he followed the party close to his heels? 
A. You know whether I swore it or not. 
Q. I ask you whether you did swear to it 
or not? 
A. I say he did. 
Q. Very well, then, stick to it. Then 
Jake said he followed the party close to his 
heels ? 
A. Yes, sir. 
Q. And he knew who he was? 
A. Yes, sir. 
Q. What more did Jake say? Did he 
say he came back after following him close 
to his heels ? 
A. No; he received a blow from Spangler, 
and that shut him up. 
Q. Do you swear now that Spangler fol- 
lowed the man close to his heels ? 108 
THE CONSPIRACY TRIAL. 
A. No, sir. 
Q. Then how did they fix it ? 
A. Spangler was standing in the way. 
Q. While Jake was following the man 
close to his heels? 
iarly before the assassination. He was there, 
a great deal, and was very intimate with all 
the employees, and called them by name. He 
was a gentleman who would soon get ac- 
quainted, and get familiar with people on a 
very short acquaintance. 
A. No, not at all. 
Q How was that ? 
A. Spangler, I suppose— 
Q. You need not state what you suppose. 
State what Jake said. That is the only 
question before the Court. 
A. That is what I have stated. 
[Exhibiting to witness the rope found in Spangler’s bag.] 
We use just such ropes as that in the thea- 
ter to pull up the borders and scenes, and for 
bringing up lumber to the top dressing-rooms, 
because the stairs are too narrow. About 
two weeks before the assassination, we used 
such a rope as that to haul up some shelv- 
ing for my wardrobe, through the window, to 
the fourth story; Spangler and Ritterspaugh 
brought it up. Ido not know that the rope 
we used was an extra one; there were a great 
many ropes around the theater. I am not 
qualified to judge about how much the rope 
has been psed; this one does not look like an 
entirely new rope; it is not such as I would 
buy for a new one; it looks as if it had been 
exposed out of doors, or in the rain. 
For the Defense.—June 12. 
Louis J. Garland. 
By Mr. Ewing. 
I am acquainted with Jacob Ritterspaugh. 
On the night of the assassination I went to 
Mr. Gifford’s room, and Ritterspaugh was 
there asleep. I woke him up, and asked him 
where Spangler was. He seemed frightened, 
and thought I was Mr. Booth. 
I asked him where Mr. Spangler was. He 
told me he did not know where he was now; 
the last he had seen of Mr. Spangler was 
when he was standing behind the scenes, and 
that he did not know where he had gone; 
that when the man was running past he had 
said that was Mr. Booth, and Spangler had 
slapped him in the mouth and said to him, 
“ You do n’t know who it is; it may be Mr. 
Booth, or it may be somebody else.” 
He did not say then that Spangler slapped 
him on the face with the back of his hand 
and said, “Don’t say which way he went.” 
nor any thing to that effect. 
I did not see Spangler until the next day; 
then I saw him in the theater, on the stage. 
When he went up stairs to bed on the Sat- 
urday night after the assassination, he said 
there was some talk that the people were 
going to burn the theater, and as he slept 
very heavily, he was afraid to sleep up there; 
so I took him into ray room, and he was 
there all night. He was put under arrest 
that night in my room. At half-past 9 
o'clock on Sunday morning the guard came 
and relieved him, and when I was discharged 
we both went into the street. I went to 
church, and in the afternoon saw Spangler 
again in the street near the theater. We 
walked round together that afternoon, and 
in the evening went down to Mr. Bennett’s, 
and to Mr. Gurley’s on C street. Some one 
came there and told him he was going to be 
arrested, and I advised him at once to go 
and see the detectives, and not have them 
come after him when he was asleep and take 
him out of his bed. I went to Mr. Barry, 
one of the detectives, and asked him if there 
was any such report at the police head-quar- 
ters. and he said no. I know that Spangler 
had very little money those two days, for he 
wanted to see Mr. Gifford to get some. 
Booth frequented the theater very famil- 
Cross-examined hy Assistant Judge Advocate 
Bingham. 
Spangler used to sleep in the theater before 
the assassination, and he slept there on that 
night, but not in the room he usually slept 
in. On that night he slept in the carpenter’s 
shop attached to the theater. Ido not know 
where he slept on Sunday night. 
It was about 12 o’clock on Friday night 
when I woke Ritterspaugh up; there was no 
one with me, but a policeman stood in the 
passage-way. Mr. Gifford’s bed is in the 
manager’s office, on the first floor of the 
green-room; that is where I found Ritter- 
spaugh. He was frightened when I woke 
him up, and thought it was Booth. He did 
not say any thing to me about Booth draw- 
ing a knife on him. When I asked, “Where 
is Ned?” he said he did not know where he 
was; that he supposed he was up. I made 
no reply, and he went on and said that when 
Booth ran out through the passage-way, while 
he and Ned were standing behind the scenes, 
he made the remark, “That is Mr. Booth,” 
and Ned slepped him in the mouth and said, 
“ You do n’t know whether it is Mr. Booth, 
or who it is.” That is all that I remember 
he said. 
I never told it to any one but Mr. William 
Withers, jr. I dined with him on the Sun- 
day after the assassination, and told him 
then. 
By Mr. Ewing. 
The carpenter-shop is attached to the theater 
just the same as my wardrobe is. It is not 
in the theater building, but it is included in 
the theater. You do not have to go into the 
street to get to it. You leave the theater, 
and there is a passage-way to go up, the same 
as we have to go to the green-room and the 
dressing-rooms. 
Ritterspaugh had fully waked up when he DEFENSE OF EDWARD SPANGLER. 
109 
told me that; he stood up and recognized me. 
He knew who it was before he began to 
speak. 
The theater w£s guarded on Sunday night, 
but any of the employees who slept there 
could get in. Mr. Spangler had a pass from 
the captain or officer of the guard to go in 
and out when he liked, and on Saturday I 
had a pass for that purpose. 
By Mr. Aiken. 
I saw J. Wilkes Booth, about half-past 11 
or 12 o’clock on the 14th, pass the stage en- 
trance and go to the front door. He bowed 
to me, but we had no conversation. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
It is fully three weeks ago that Ritter- 
spaugh said he was scared, and that he could 
not tell what he was doing; but I do not re- 
member his precise words. He seemed to be 
troubled about it, and asked me if he could 
not make a correct statement, and I told him 
certainly he could. 
James J. Gifford. 
Recalled for the Defense.—May 30. 
By Mr. Ewing. 
On Monday evening of the week previous 
to the assassination, I heard Booth tell Span- 
gler to take his horse and buggy down to 
Tattersall’s, the horse-market, and sell it. I 
presume Spangler sold it. He brought the 
man up with him, and asked me to count 
the money and give him a receipt. I took 
the money and handed it over to Booth. 
Q. State whether or not, since the assas- 
sination, and previous to his release from Car- 
roll Prison, Ritterspaugh told you at the 
prison that the prisoner, Edward Spangler, 
directly after the assassination of the Presi- 
dent in the theater, hit him in the face with 
the back of his hand and said, “Don’t say 
which way he went.” 
A. To the best of my knowledge, I never 
heard him say so. He asked me if he could 
amend the statement that he had made. He 
said he had not told all he knew, and he 
asked me if he could amend it. I told him 
certainly, but he ought to be particular and 
state the truth of what he knew. That is all 
the conversation we ever had regarding it. 
He told me he had made a misstatement, and 
had not told all he knew. He did not say 
what he had omitted; if he had, I should 
surely have remembered it, for I have had 
nothing but this case to think about since I 
have been in the Old Capitol Prison. 
If any thing was wrong about the locks on 
the private boxes at the theater, it was the 
duty of the usher to inform me, and for me 
to have them repaired. No repairing was 
done to any door leading to the President’s 
box since August or September of last year. 
I have frequently heard of Spangler going 
crab-fishing, but I never saw him. He has 
told me of going down to the Neck on the 
Saturday night, and staying till Monday 
morning; and I have heard others say that 
they had gone crabbing with him. 
[Exhibiting to the witness the rope found in Spangler's 
bag.] 
They use a line of that sort, with small 
lines tied to it, about three feet apart, and 
pieces of meat attached as bait. The line is 
trailed along, and as the crabs seize the bait 
they are dragged along and taken. I have 
seen ropes similar to this used, and sometimes 
a little longer. As there is but little strain 
upon the rope, it is not particular about the 
size. 
Thomas J. Raybold. 
For the Defense.—June 2. 
By Mr. Ewing. 
I have been engaged at Ford’s Theater 
since the first Monday of December a year 
ago. I was employed to take charge of the 
house; to see to the purchasing of every 
thing required in the house, and if any re- 
pairs were needed, they were done through 
my order. In the absence of the Messrs. 
Ford, I was in the box-office and sold the 
tickets. 
I know of the lock on the door of box 8, 
the President’s box, as it is called, being 
burst open during Mrs. Bowers’s engagement 
in March. On the 7th of March Mr. Mer- 
rick, of the National Hotel, asked me, while 
at dinner, to reserve some seats in the orches- 
tra for some company, which I did. It is 
customary, after the first act is over, for 
reserved seats, which have not been occu- 
pied, to be taken by any person wanting 
seats. Mr. Merrick did not come by the 
end of the first act, and the seats were oc- 
cupied. Shortly afterward word was sent to 
me in the front office, saying that Mr. Mer- 
rick and his friends were there, and inquiring 
for the seats. I took them up stairs to a 
private box, No. 6, but it was locked, and I 
could not get in; I went then to boxes 7 and 
8, generally termed the President’s box, and 
they were also locked. I could not find the 
keys, and I supposed the usher had them; 
but he had left the theater, as he frequently 
does, when the first act is over; so I put my 
shoulder against the door of No. 8, the box 
nearest the stage, to force it open, but it did 
not give way to that, and I stood from it 
with my back and put my foot against it 
close to the lock, and with two or three 
kicks it came open. There is another lock 
in the house to which I did the same thing 
when I could not find the key. When the 
President came to the theater, boxes 7 and 
8 were thrown into one by the removal of 
the partition between them. The door to 
No. B—the one I burst open—was the one 
always used, and was the door used on the THE CONSPIRACY TRIAL. 
night of the assassination. The other door 
could not he used. 
[Exhibiting to the witness the coil of rope found in 
Spangler’s carpet-bag.] 
I can not swear that this rope has been 
used at the theater, but we used such ropes 
as this at the time of the Treasury Guard’s 
ball, from the lobby to the wings, to hang 
the colors of different nations on. It is like 
the kind of rope we use in the flies for 
drawing up the different borders that go 
across from one wing to the other. From its 
appearance, I judge this rope has been used. 
It would be lighter in color if it had not 
been. 
I do not know whether the lock was ever 
repaired after I burst it open. It was my 
place to report it to Mr. Gifford and have it 
repaired, but I never thought of it from that 
time. 1 frequently entered the box afterward, 
and always passed in without a key. I 
never said a word to Mr. Gifford about re- 
pairing the lock, and never thought even of 
examining it to see what condition it was 
in. The locks were only used to keep per- 
sons out when the boxes were not engaged. 
I have frequently had to order persons out 
when the boxes were left open. 
About two weeks prior to the 14th of 
April, J. Wilkes Booth engaged a private 
box, No. 4, at Ford’s Theater, and in the 
afternoon he came again to the office and 
asked for an exchange of the box, and I 
believe it was made to box 7. I can not be 
positive whether it was box 7 or 8, that he 
occupied that night, but I think it was 7. 
It is the door leading into box 7 that has 
the hole bored in it. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
Any rope that was used about the theater, 
I should judge, ought to stay there; I do 
not think its proper place would be in a 
carpet-sack half a mile off. We use a great 
many such ropes ; and sometimes, when they 
are taken down, they lie upon the scene-loft 
until we need them again. 
The outer door, or door of the passage to 
the President’s box, never had a lock on; I 
do not think it has even a latch on. Ido not 
know whether the force I employed against 
the door burst the lock or the keeper off; I 
supposed at the time that it started the keeper. 
The fastening on the door is of pine I be- 
lieve; I do not know whether it was split or 
not; I did not examine it. I did not touch 
box 7. 
To the best of my knowledge, there were 
no tickets sold up to the time of the open- 
ing of the theater on the night of the assas- 
sination ; I can not say positively, for I had 
been sick with neuralgia for several days, 
and was not in the office the whole of the 
day. I was there in the morning, between 
10 and 11, when the messenger obtained 
tickets for the President, and again in the 
afternoon, but do not know of any applica- 
tions, and if there had been, I should have 
seen when I counted the house at night, 
which I did on the night of the assassina- 
tion, at 10 o’clock, as usual. 
I saw Booth on the morning of the 14th 
at the office; I do not know whether before 
or after the box was engaged for the Presi- 
dent. I know he got a letter from the office 
that morning. Booth’s letters were directed 
to Mr. Ford's box at the post-office, and he 
generally came every morning for them. 
Mr. Ford would get 'the letters as he came 
from breakfast in the morning, and bring 
them to the office, when the letters that 
belonged to the stage would be sent there, 
and those belonging to Booth would be called 
for by him. 
The rocking-chair was placed in the posi- 
tion it occupied in the President’s box simply 
because, in any other position, the rockers 
would have been in the way. When the 
partition was taken down, it left a triangular 
corner, and the rockers went into that, cor- 
ner at the left of the balustrade of the box; 
they were there out of the way. That was 
the'only reason why I put it there. I had 
it so placed on two occasions before; last 
winter a year ago, when Mr Hackett was 
playing, when the President was there. The 
sofa and other parts of the furniture had 
been used this last season, but up to that 
night the chair had not. 
The last time I was in the President’s box 
was on the morning after the assassination ; 
I went in with some gentlemen to look at 
the hole in the door. I did not see the 
mortise in the wall, nor any piece of wood 
to fasten the door with, nor did I see the 
mortise the previous afternoon. I was there 
but for about five minutes, while the flags 
were being put up. The chair was in the 
box when I went in to help put up the flags; 
it was placed behind the door of box No. 7, 
with the rockers in the corner toward the 
audience. I did not see him in the box, but 
my opinion is that the way the chair was 
placed, the audience was rather behind the 
President as he sat in the chair. 
I can not say the precise day on which 
Booth occupied box No. 7. Mr. Ford was the 
one who sold him the box and exchanged it. 
There were ladies and men with Booth, I 
think. 
By Mr. Ewing 
I can not state whether it was after Booth 
played Pescara that he occupied that box. To 
the best of my recollection, it was about two 
weeks before the assassination; it might have 
been more. He had the box on two oc- 
casions. Once when he engaged it, he did 
not use it; he told me that the ladies at the 
National Hotel had disappointed him. 
1 do not know any thing at all as to 
whether Spangler got that rope from the 
theater rightfully or not. DEFENSE OF EDWARD SPANGLER. 
Recalled for the Defense.—June 2. 
By Mr. Ewing. 
I have never known him to stop at any 
other hotel than the National. 
Since I was upon the stand, I have visited 
Ford’s Theater, and examined the keepers of 
the locks of boxes Nos. 7 and 8. The lock 
of box 8 is in the condition that I stated this 
morning. It has been forced, and the wood 
has been split by forcing the lock. The 
screw in the keeper is tight, and the keeper 
has been forced aside. The lock on the 
door of box 7 has been forced, which I was 
not aware of until I saw it just now. You 
can take the upper screw out with your 
finger, and push it in and out; you can put 
your thumb against it, and put it in to the 
full extent of the screw. I can not say as 
to its having been done with an instrument. 
It must have been done by force; I know 
that No. 8 was done by force applied to the 
outside of the door; the other has a similar 
appearance. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
Mr. McCullough may have called on some 
friend in the house, and I not see him. I 
have not seen him since the 26th of March. 
It was the very first box that we went into 
on visiting the theater on the 7th of March; 
the partition was between the box we occu- 
pied and the one to our right, further on 
toward the stage. The box nearest the stage 
we did not enter at all. It was the very first 
box we came to that we entered, and it 
was the door of this box that was burst open. 
The upper screw came out entirely, and the 
keeper swung round on the lower screw', and 
left the lock without any fastening at all. 
James O’Brien. 
For the Defense.—June 3. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I have been employed as clerk in the Quar- 
ter-master General’s office. I also had an 
engagement at night as usher at Ford’s 
Theater. 
The wood in box 7 is not split a particle. 
The reason why I think force has been used 
with that lock is, that if the screw was 
drawn by a screw-driver, when it went back 
again it wmuld have to be put back by the 
driver, but when force has been used, it 
would make the hole larger, and you could 
put the screw in and out just as you can the 
screw in the door of box 7. 
Sometime before the assassination I noticed 
that the keeper of box 8 had been wrenched 
off'. I was absent one evening, at home sick, 
and when 1 came next I found that the keeper 
was broken oft'; but, as the door shut pretty 
tight, I never thought of speaking about it. 
You might lock the door, but if you were to 
shove it, it would come open. 
The keeper on box No. 7 appeared to be 
all right; 1 always locked that box. The 
door of No. 8 was used when the Presidential 
party occupied the box; when the party oc- 
cupying the Presidential box entered, the door 
was always left open. The door of the pas- 
sage leading to the two boxes had no lock on 
it, or fastening of any kind. 
By Mr. Aiken. 
Ido not know John H. Surratt. Ido not 
know any of the prisoners except Spangler. 
He is the only one I ever saw with the ex- 
ception of one, [Herold,] whom I knew when 
he was quite a boy. 
Henry E. Merrick. 
For the Defense.—June 2. 
By Mr. Ewing. 
Joseph T. K. Plant. 
For the Defense.—June 2. 
By Mr. Ewing. 
I am a clerk at the National Hotel, Wash- 
ington. On the evening of the 7th of March, 
in company with my wife, Mr. Marcus P. 
Norton of Troy, N. Y., Miss Engels, and 
Mrs. Bunker, I went to Ford’s Theater. Mr. 
Ray bold took us to a private box. We 
f)assed down the dress-circle on the right- 
land side, and entered the first box; there 
was a partition up at the time between the 
two boxes. Mr. Ray bold went to the office 
for the key, but could not find it. He then 
placed his shoulder, I think, against the door 
and burst it open. The keeper was burst 
off I think; at least the screw that held 
the upper part of the keeper came out, and 
it whirled around, and hung by the lower 
screw. 
My occupation at present is that of a dealer 
in furniture; ever since I was fourteen years 
old I have been, more or less, engaged in 
cabinet work. I have visited Ford’s Theater 
to-day, and have examined the keepers on 
boxes No. 7 and No. 8. To all appearances 
they have both been forced. The wood-work 
in box 8 is shivered and splintered by the 
screws. In box 7,1 could pull the screw with 
my thumb and finger; the tap was gone clear 
to the point. I could force it back with my 
thumb. In box 4, which is directly under box 
8, the keeper is gone entirely. 
I should judge that the keepers in boxes 7 
and 8 were made loose by force; I could not 
see any evidence of an instrument having 
been used to draw the screws in either of 
them. 
Our books show that John McCullough, 
the actor, left the National Hotel on the 26th 
of March > since then I have not seen him. 112 
THE CONSPIRACY TRIAL. 
I noticed a hole in the wall of the passage 
behind the boxes; it had the appearance of 
having been covered with something; I could 
not see what, as no remnant of it was left, in 
size about five by seven and a half or eight 
inches. I noticed also a hole, a little more 
than one-fourth of an inch in diameter, in 
the door of box 7. It is larger on the outside 
than it is on the inside. The left side of the 
hole feels rough, as if cut by a gimlet, while 
the lower part on the right-hand side appears 
to have been trimmed with a penknife or 
some sharp instrument. The hole might, I 
think, have been made by a penknife, and 
the roughness might have been caused by the 
back of the knife. 
Charles A. Boigi. 
For the Defense.—June 2. 
By Mr. Ewing. 
I know the accused, Edward Spangler; he 
boarded at the house where I boarded. He 
boarded there five or six months, I presume, 
before the assassination, and I saw him at 
and about the house as usual for several days 
afterward. They had him once or twice in 
the station-house, I believe, before he was 
finally arrested; I do not recollect the date 
of his final arrest. 
John Goenther. 
For the Defense.—June 2. 
G. W. Bunker. 
By Mr. Ewing. 
For the Defense.—June 2. 
I boarded in the same house with the ac- 
cused, Edward Spangler, previous to his ar- 
rest. He boarded there on and off for six or 
seven months, perhaps longer. I have lived 
there off and on for the last three years. To my 
certain knowledge, 1 saw Spangler about the 
house for two or three days before the assassin- 
ation ; I never saw him wear a moustache. 
lam clerk at the National Hotel. The 
day after the assassination I packed Booth’s 
effects at tHe National, and had his trunk re- 
moved into our baggage-room. In his trunk 
I found a gimlet with an iron handle.* I 
carried it to my room, and afterward gave it 
to Mr. Hall, who was attending to Mr. Ford’s 
business. 
John McCullough, who always made his 
home at the National, I find registered his 
name the last time on March 11; he left on 
the 26th of March. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I am not certain what days it was that I 
saw Spangler at the house. He did not sleep 
there. I used to see him in the morning, and 
of evenings when I came from work. I work 
in the arsenal, and generally take my dinner 
with me. 
* The gimlet would bore a hole three-sixteenthi of an 
Inch in diameter. TESTIMONY 
RELATING TO 
MRS. MARY E. SURRATT. 
[See testimony of John M. Lloyd, page 85.] 
stopped at the house of Mr, Lloyd, who 
keeps a tavern there. Mrs. Surratt went into 
the parlor. I remained outside a portion 
of the time, and went into the bar-room a 
part of the time, until Mrs. Surratt sent for 
me. We left about half-past 6. Surratts- 
ville is about a two-hours’ drive to the city, 
and is about ten miles from the Navy Yard 
bridge. 
Just before leaving the city, as I was going 
to the door, I saw Mr. Booth in the parlor, 
and Mrs. Surratt was speaking with him. 
They were alone. He did not remain in the 
parlor more than three or four minutes; and 
immediately after he left, Mrs. Surratt and I 
started. 
I saw the prisoner, Atzerodt, at Howard’s 
stable, when I went to hire the buggy that 
afternoon. I asked him what he wanted, 
and he said he was going to hire a horse, 
but Brook Stabler told him he could not 
have one. 
Louis J. Weichmann 
For the Prosecution.—May 13. 
I have been clerk in the office of General 
Hoffman, Commissary-General of prisoners, 
since January 9, 1864. 
My acquaintance with John H. Surratt 
commenced in the fall of 1859, at St. Charles 
College, Maryland. We left college together 
in the summer of 1862, and I renewed my 
acquaintance with him in January, 1863, in 
this city. On the Ist of November, 1864, I 
Went to board at the house of his mother, 
Mrs. Surratt, the prisoner, No. 541 H Street, 
between Sixth and Seventh, and boarded 
there up to the time of the assassination. 
On the 2d of April, Mrs. Surratt asked me 
to see J. Wilkes Booth, and say that she 
wished to see him on “private business.” 
I conveyed the message, and Booth said he 
would come to the house in the evening, as 
soon as he could; and he came. 
On the Tuesday previous to the Friday 
of the assassination, I was sent by Mrs. 
Surratt to the National Hotel to see Booth, 
for the purpose of getting his buggy. She 
wished me to drive her into the country on 
that day. Booth said that he had sold his 
bu 
ggy, but that he would give me $lO in- 
stead, that I might hire one. He gave me 
the $lO, and I drove Mrs. Surratt to Surratts- 
ville on that day, leaving this city about 9 
and reaching Surrattsville about half-past 12 
o clock. We remained at Surrattsville half 
an hour, or probably not so long. Mrs. Sur- 
ratt stated that she went there for the pur- 
pose of seeing Mr. Nothe, who owed her some 
money. 
On Friday, the day of the assassination, I 
went to Howard’s stable, about half-past 2 
0 clock, having been sent there by Mrs. Sur- 
ratt for the purpose of hiring a buggy. She 
herself gave me the money on that occasion, 
a ten-dollar note, and 1 paid $6 for the 
haggy. I drove her to Surrattsville the same 
day, arriving there about half-past 4. We 
I remember going with John H. Surratt 
to the Herndon House, about the 19th of 
March, for the purpose of renting a room. 
He inquired for Mrs. Mary Murray, who 
kept the house; and when she came, Sur- 
ratt said that he wished to have a private 
interview with her. She did not seem to 
comprehend; when he said, “Perhaps Miss 
Anna Ward has spoken to you about this 
room. Did she not speak to you about en- 
gaging a room for a delicate gentleman, who 
was to have his meals sent up to his room ? ” 
Then Mrs. Murray recollected, and Mr. Sur- 
ratt said he would like to have the room 
the following Monday, I think, the 27th of 
March, when the gentleman would take pos- 
session of it. No name was mentioned. I 
afterward heard that the prisoner, Payne, 
was at the Herndon House. One day I met 
Atzerodt on the street, and asked him where 
he was going. He said he was going to 
see Payne. I then asked, “Is it Payne who 
is at the Herndon House?” He said, “Yes.” 
That was after the visit John H. Surratt had 
made to engage the room. 
About the 17th of March last, a Mrs. 114 
THE CONSPIRACY TRIAL. 
Slater came to Mrs. Surratt’s house, and 
stopped there one night. This lady went to 
Canada and Richmond. On Saturday, the 
23d of March, John Surratt drove her and 
Mrs. Surratt into the country in a buggy, 
leaving about 8 o’clock in the morning. He 
hired a two-horse team, white horses, from 
Howard’s. Mrs. Surratt told me on her re- 
turn that John had gone to Richmond with 
Mrs. Slater. Mrs. Slater, I understood, vras 
to have met a man by the name of Howell, 
a blockade-runner; but he was captured on 
the 24th of March, so Surratt took her back 
to Richmond. Mrs. Slater, as I learned 
from Mrs. Surratt, was either a blockade-run- 
ner or a bearer of dispatches 
Surratt returned from Richmond on the 
3d of April, the day the news of the fall of 
Richmond was received. I had some con- 
versation with him about the fall of Rich- 
mond, and he seemed incredulous. He told 
me he did not believe it; that he had seen 
Benjamin and Davis in Richmond, and they 
had told him that Richmond would not be 
evacuated. 
tional Hotel. When we arrived there, he 
told us to be seated, and ordered cigars and 
wines for four. Dr. Mudd then went out 
into a passage and called Booth out, and 
had a private conversation with him. When 
they returned, Booth called Surratt, and all 
three went out together and had a private 
conversation, leaving me alone. <1 did not 
hear the conversation; I was seated on a 
lounge near the window. On returning to 
the room the last time Dr. Mudd apologized 
to me for his private conversation, and 
stated that Booth and he had some private 
business; that Booth wushed to purchase his 
farm, but that he did not care about selling 
it, as Booth was not willing to give him 
enough. Booth also apologized, and stated 
to me that he wished to purchase Dr. Mudd’s 
farm. Afterward they were seated round 
the center-table, when Booth took out an 
envelope, and on the back of it made marks 
with a pencil. I should not consider it 
writing, but from the motion of the pencil 
it was more like roads or lines. 
After this interview at the National Hotel 
Booth called at Mrs. Surratt’s frequently, 
generally asking for Mr. John H. Surratt, 
and in his absence for Mrs. Surratt. Th,eir 
interviews were always apart from other per- 
sons. I have been in the parlor in company 
with Booth, when Booth has taken Surratt 
up, stairs to engage in private conversation. 
Sometimes, when engaged in general conver- 
sation, Booth would say, “John, can you go 
up stairs and spare me a word?” They 
would then go up stairs and engage in pri- 
vate conversation, which would sometimes 
last two or three hours. The same thing 
would sometimes occur with Mrs. Surratt. 
Surratt only remained in the house about 
an hour, when he told me he was going to 
Montreal, and asked me to walk down the 
street with him and take some oysters. He 
left that evening, saying he was going to 
Montreal, and I have not seen him since. 
I saw about nine or eleven $2O gold 
pieces in his possession, and $5O in green- 
backs, when he came back from Richmond; 
and just before leaving for Canada, he ex- 
changed $4O of gold for $6O in greenbacks, 
with Mr. Holahan. 
I afterward learned in Montreal that Sur- 
ratt arrived there on the 6th of April, and 
left on the 12th for the States; returned on 
the 18th, and engaged rooms at the St. Law- 
rence Hall, and left again that night, and 
was seen to leave the house of a Mr. Porter- 
field, in company with three others, in a 
wagon. I arrived at Montreal on the 19th, 
and my knowledge was derived from the reg- 
ister of St. Lawrence Hall. 
When I saw Booth at the National Hotel 
on the Tuesday previous to the assassination, 
to obtain his buggy for Mrs. Surratt, he 
spoke about the horses that he kept at How- 
ard’s stable, and I remarked, “ Why, I 
thought they were Surratt’s horses.” He said, 
“No, they are mine.” 
John H. Surratt had stated to me that he 
had two horses, which he kept at Howard’s 
stable, on G Street. 
Some time in March last, I think, a man 
calling himself Wood came to Mrs. Surratt’s 
and inquired for John H. Surratt. I went to 
the door and told him Mr. Surratt was not 
at home;'lie, thereupon expressed a desire to 
see Mrs. Surratt, and I introduced him, hav- 
ing first asked his name. That is the man 
[pointing to Lewis Payne, one of the accused,] 
He stopped at the house all night. He had 
supper served up to him in my room; 1 took 
it to him from the kitchen. He brought no 
baggage; he had a black overcoat on, a 
black dress-coat, and gray pants. He re- 
mained till the next morning, leaving by the 
earliest train for Baltimore. About three 
weeks afterward he called again, and I again 
went to the door. I had forgotten his name, 
and, asking him, he gave the name of Payne. 
I saw a letter from John Surratt to his 
mother, dated St. Lawrence Hall, Montreal, 
April 12th, which was received here on the 
14th; I also saw another letter from him in 
Canada to Miss Ward, but that was prior to 
the letter to his mother. 
About the 15th of January last I was 
passing down Seventh Street, in company 
with John H. Surratt, and when opposite 
Odd Fellows’ Hall, some one called “Sur- 
ratt, Surratt;” and turning round, he recog- 
nized an old acquaintance of his, Dr. Samuel 
A. Mudd, of Charles County, Md.; the gen- 
tleman there [pointing to the accused, Sam- 
uel A. Mudd.] He and John Wilkes Booth 
were walking together. Surratt introduced 
Dr. Mudd to me, and Dr. Mudd introduced 
Booth to both of us. They were coming 
down Seventh Street, and we were going up. 
Booth invited us to his room at the Na- TESTIMONY CONCERNING MRS. MARY E. SURRATT. 
115 
I ushered him into the parlor, where were 
Mrs. Surratt, Miss Surratt, and Miss Honora 
Fitzpatrick. He remained three days that 
bnae. He represented himself as a Baptist 
preacher; and said that he had been in 
Prison in Baltimore for about a week; that 
he had taken the oath of allegiance, and 
was now going to become a good and loyal 
citizen. 
Surratt, or Mrs. Surratt, as he said. Since 
then he must have been at the house ten or 
fifteen times. The young ladies of the house, 
not comprehending the name that he gave, 
and understanding that he came from Port 
Tobacco, in the lower portion of Maryland, 
gave him the nickname of “ Port Tobacco.” 
1 never saw him in the house with Booth. 
At the time Booth played the part of Pes- 
cara, in the “ Apostate,” he gave Surratt two 
complimentary tickets, and as Surratt and I 
were going to the theater, we met Atzerodt 
at the corner of Seventh Street and Pennsyl- 
vania Avenue, and told him where we were 
going. He said he was going there too; and 
at the theater we met David E. Herold 
[pointing to the accused, David E. Herold, 
who smiled and nodded in recognition.] We 
also met Mr. Holahan, who boarded at Mrs. 
Surratt’s. 
Mrs. Surratt and her family are Catholics. 
John H. Surratt is a Catholic, and was a 
student of divinity at the same college as 
Myself. I heard no explanation given why a 
baptist preacher should seek hospitality at 
Mrs. Surratt’s; they only looked upon ft as 
°dd, and laughed at it. Mrs. Surratt herself 
remarked that he was a great looking Bap- 
fist preacher. In the course of conversation 
cue of the young ladies called him “Wood.” 
I then recollected that on his first visit he 
bad given the name of Wood. On the last 
occasion he was dressed in a complete suit of 
gray; his baggage consisted of a linen coat 
and two linen shirts. 
After the play was over, all five of us left 
the theater together—Mr, Surratt, Holahan, 
and myself, in company. We went as far as 
the corner of Tenth and E Streets, when Sur- 
ratt, turning round, noticed that Atzerodt 
and Herold were not following, and desired 
me to go back after them. When I went 
back, I found Atzerodt and Herold in the 
restaurant adjoining the theater, talking very 
confidentially with Booth. On my approach 
they separated, and Booth said, “ Mr. Weich- 
mann, will you not come and take a drink?” 
which I did. We then left the restaurant, 
and joined the other two gentlemen on E 
Street; went to Kioman’s and had some oys- 
ters; after that we separated—Surratt, Hol- 
ahan, and myself going home, and the others 
going down Seventh Street. 
The only evidence of disguise or prepara- 
tion for it, that I know of, was a false mous- 
tache, which I found on the table in my room 
One day. I put the moustache into a little 
toilet-box that was on my table. Payne 
afterward searched round the table and in- 
quired for his moustache. I was sitting on 
a chair and did not say any thing. 1 re- 
tained the moustache, and it was found in 
ay baggage that was seized. 
On returning from my office one day, while 
Fayne was there, I went up stairs to the 
third story and found Surratt and Payne 
seated on a bed, playing with bowie-knives. 
Ihere were also two revolvers and four sets 
of new spura 
Cross-examined by Hon. Beverdy Johnson. 
[A spur, a large bowie-knife, and a revolver, found in 
•Vtzerodt’s room at the Kirkwood House, were exhibited 
to the witness.] 
When I went to board with Mrs. Surratt, 
in November, 1864, she rented her farm at 
Surrattsville to Mr. Lloyd, and removed to 
this city. Her house is on H Street, and 
contains eight rooms—six large and two 
small. Mrs. Surratt rented her rooms and 
furnished board. Persons were in the habit 
of coming from the country and stopping at 
her house. Mrs. Surratt was always very 
hospitable, and had a great many acquaint- 
ances, and they could remain as long as they 
chose. During the whole time I have known 
her, her character, as far as I could judge, 
was exemplary and lady-like in every par- 
ticular; and her conduct, in a religious and 
moral sense, altogether exemplary. She was 
a member of the Catholic Church, and a 
regular attendant on its services. I gen- 
erally accompanied her to church on Sun- 
day. She went to her religious duties at 
least every two weeks, sometimes early in 
the morning and sometimes at late mass, 
and was apparently doing all her duties to 
God and man up. to the time of the as- 
sassination. I visited Mrs. Surratt several 
times during ’63 and ’64, while she lived in 
the country. I made her acquaintance 
That is one of the spurs. There were three 
spurs similar to that in a closet in my room 
when I was last there, and those three be- 
longed to the eight that had been purchased 
by Surratt. The knives they were playing 
with were smaller than that knife. The re- 
volvers they had were long navy revolvers, 
with octangular barrels; that has a round 
barrel. 
I met the prisoner, David E. Herold, at 
Mrs. Surratt’s, on one occasion; I also met 
him when we visited the theater when Booth 
played Pescara; and I met him at Mrs. 
Surratt’s, in the country, in the spring of 
1863, when I first made Mrs. Surratt’s ac- 
quaintance. I met him again in the sum- 
wier of 1864, at Piseataway Church. These 
are fbe only times, to my recollection, I ever 
111 ®t him. I do not know either of the pris- 
®Jaer8>. Arnold or O’Laughlin. I recognize 
prisoner Atzerodt. He first came to Mrs. 
arratt’s house, as near as I can remember, 
about three weeks after I formed the acquaint- 
ance of Booth, and inquired for John H. 116 
THE CONSPIRACY TRIAL. 
through her son, who had been a college- 
mate of mine for three years. 
During the winter of 1864, John Surratt 
was frequently from home; in the month of 
November, especially, he was down in the 
country almost all the time. His stay at 
home was not at all permanent; sometimes 
he would be at home for half a week, and 
away the other half; sometimes he would be 
three or four weeks at a time in the country. 
I do not know of his being in Canada in the 
winter of' 64-5, although he could have gone 
without my knowledge. I was upon very 
intimate terms with him, seeing him almost 
every day when he was at home; we sat at 
the same table, roomed together, and shared 
the same bed. 
money that Mr. Nothe owed her, and that 
she was again compelled to go to Surratts- 
ville, and asked me to take her down. Of 
course I consented. I did not see the letter. 
We took with us only two packages; one 
was a package of papers about her prop- 
erty at Surrattsville; and another package, 
done up in paper, about six inches, I should 
think, in diameter. It looked to me like 
perhaps two or three saucers wrapped up. 
This package was deposited in the bottom 
of the buggy, and taken out by Mrs. Surratt 
when we arrived at Surrattsville. We re- 
turned to Washington about half-past 8 or 
9. About ten minutes after we got back, 
some one rang the front-door bell. It was 
answered by Mrs. Surratt, and I heard foot- 
steps go into the parlor, immediately go out 
again, and down the steps. I was taking 
supper at the time. 
I first heard of the assault on President 
Lincoln and the attack on Secretary Seward 
at 3 o’clock on Saturday morning, when the 
detectives came to the house and informed 
us of it. 
He never intimated to me, nor to any one 
else to my knowledge, that there was a pur- 
pose to assassinate the President. He stated 
to me, in the presence of his sister, shortly 
after he made the acquaintance of Booth, 
that he was going to Europe on a cotton 
speculation ; that $3,000 had been advanced 
to him by an elderly gentleman, whose name 
he did not mention, residing somewhere in 
the neighborhood; that he would go to Liv- 
erpool, and remain there probably only two 
weeks to transact his business; then he 
would go to Nassau; from Nassau to Mata- 
moras, Mexico, and find his brother Isaac, 
who had been in Magruder’s army in Texas 
since 1861. 
At another time he mentioned to me that 
he was going on the stage with Booth; that 
he was going to be an actor, and they were 
going to play in Richmond. 
His character at St. Charles College, (Cath- 
olic,) Maryland, was > excellent. On leaving 
college he shed tears; and the president, ap- 
proaching him, told him not to weep; that 
his conduct had been so excellent during the 
three years he had been there, that he would 
always be remembered by those who had 
charge of the institution. 
On the occasion of Mrs. Surratt’s visit to 
Surrattsville, on the 11th of April, she told 
me she had business with Mr. Nothe; that 
lie owed her a sum of money, $479, and the 
interest on it, for thirteen years. On arriving 
there, about half-past 12,' she told Mr. Noth 
the bar-keeper, to send a messenger imme- 
diately to Mr. Nothe. In the mean time, 
Mrs. Surratt and myself went to Captain 
Gwynn’s place, three miles lower down, took 
dinner there, and remained about two hours. 
At Mrs. Surratt’s desire, Captain Gwynn re- 
turned with us to Lloyd’s. When we ar- 
rived there, Mr. Nott said that Mr. Nothe 
was in the parlor. They went in and trans- 
acted their business; but I did not go in, and 
did not see Mr. Nothe. 
Mrs. Surratt’s second visit to Surrattsville 
was on the afternoon of the 14th of April. 
She rapped at my room-door on that after- 
noon, and told me she had received a letter 
from Mr. Charles Calvert in regard to that 
The first time that Payne came to Mrs. 
Surratt’s, when he gave the name of Wood, 
he had on a black coat; and when he went 
into the parlor he acted very politely. He 
asked Miss Surratt t6 play on the piano, 
and he raised the piano-cover, and did every 
thing which indicated a person of breeding. 
The moustache that I found upon my table 
was black, and of medium size; it was Suffi- 
ciently large to entirely change the appear- 
ance of the wearer. When I found it I 
thought it rather queer that a Baptist 
preacher should use a moustache; I thought 
no honest person had any reason to wear 
one. I took it and locked it up, because I 
did not care to have a false moustache lying 
round on my table. I remember exhibiting 
it to some of the clerks in our office, and 
fooling with it the day afterward; I put on 
a pair of spectacles and the moustache, and 
was making fun of it. 
Atzerodt, to my knowledge, stopped in the 
house only one night; he slept alone in the 
back room in the third story. John Surratt 
was out in the country; he returned that 
evening; and Atzerodt, who had, I under- 
stood, been waiting to see John, left the next 
day. I afterward heard Miss Anna and Mrs. 
Surratt say that they did not care about 
having him brought to the house. Miss 
Anna Surratt’s expression was, she didn’t 
care about having such sticks brought to 
the house; that they were not company for 
her. 
John Surratt is about six feet high, with 
very prominent forehead, a very large nose, 
and sunken eyes; he has a goatee, and 
very long hair of a light color. The day he 
left for Montreal he wore cream-colored 
pants, gray frock-coat, gray vest, and a plaid 
shawl thrown over him. 
When he returned from Richmond, he TESTIMONY CONCERNING MRS. MARY E. SURRATT. 
117 
had nine or eleven S2O gold pieces; he did not 
tell me from whom he got them, nor did 
I make any inquiries. I know he had no 
gold about him when he left for Richmond. 
On the evening of the 14th, Mrs. Surratt 
showed me the letter she had received that 
day from John. It was a letter on general 
subjects. He said he was much pleased with 
the city of Montreal, and with the French 
cathedral there; that he had bought a French 
pea-jacket, for which he had paid $lO in sil- 
Ver; that board was too high at St. Law- 
rence Hall, $2.50 a day in gold, and that he 
would probably go to some private boarding- 
house, or that he would soon go to Toronto, 
hhe letter was signed “John Harrison,” not 
his full name; his name is John Harrison 
Surratt 
After their return to the room, we re- 
mained probably twenty minutes; then left 
the National Hotel and went to the Penn- 
sylvania House, where Dr. Mudd had rooms. 
We all went into the sitting-room, and Dr. 
Mudd came and sat down by me; and we 
talked about the war. He expressed the 
opinion that the war would soon come to an 
end, and spoke like a Union man. Booth 
was speaking to Surratt. At about half-past 
10, Booth bade us good night,.and went out; 
Surratt and I then bade Dr. Mudd good night. 
He said he was going to leave next morning. 
I had never seen Dr. Mudd before that 
day. I had heard the name of Mudd men- 
tioned in Mrs. Surratt’s house, but whether 
it was this Dr. Samuel Mudd I can not say. 
I have heard of Dr. George Mudd and Dr. 
Samuel Mudd. 
By Mr. Ewing. 
By Mr. Stone. 
Dr. Mudd introduced Booth to John H. 
Surratt and myself about the 15th of Jan- 
uary, I could fix the exact date, if reference 
could be had to the register of the Pennsyl- 
vania House, where Dr. Mudd had a room 
at the time. lam sure it was after the Ist 
°f January, and before the Ist of February. 
It was immediately after the recess of Con- 
gress. The room that was occupied by Booth 
at the National Hotel had been previously 
occupied, so Booth said, by a member of 
Congress. Booth, I remember, walked round 
the room, put his hand on the shelf, and 
took down some Congressional documents, 
and remarked, “ What a good read I shall 
have when lam left to myself.” It was the 
first day of Booth’s arrival in the city, and 
of his taking possession of the room, I un- 
derstood. Most of the Congressmen had 
Congress was in session at the time. 
When Booth and Dr. Mudd met Surratt 
and myself, on Seventh Street, Surratt first 
introduced Dr. Mudd to me, and then Dr. 
Mudd introduced Booth to both of us. 
"Ooth then invited us down to his room at 
he National Hotel. As we walked down 
Seventh Street, Mr. Surratt took Dr. Mudd’s 
arrn, and I walked with Booth. The conver- 
sation at the National lasted, I suppose, 
hree-quarters of an hour. When Booth took 
16 envelope out of his pocket, and with a 
ljenc;i (jrew iineS; as it Were, on the back of 
ns envelope, Mr. Surratt and Dr. Mudd 
jvere looking on. All the while he was doing 
1 they were engaged in deep private conver- 
sion, which was scarcely audible. I was 
acting about eight feet from them and could 
vear nothing of it. When Booth went out 
c the room with Dr. Mudd, they remained 
°t more than five or eight minutes. They 
'ent into a dark passage, and I judge they 
cniained there, as I heard no retreating foot- 
" ejn’ anfi they did not take their hats. 
Almost immediately after their return 
nrratt went out, and all three staid out about 
vie Same ength of time as at the first inter- 
I first saw Herold in the summer of 1863, 
at Surrattsville, at a serenade there. A band 
had gone down from the city to serenade the 
officers who had been elected, and the band 
stopped at Mrs. Surratt’s, on the way down, 
and serenaded us; on returning in the morn- 
ing, they stopped and serenaded us again. 
Herold was with this party, and it was on 
this occasion that John Surratt introduced 
him to me. 
By Mu. Clampitt. 
There was nothing in the conversation be- 
tween Dr. Mudd, Booth, and Surrratt, at the 
National Hotel, that led me to believe there 
was any thing like a conspiracy going on 
between them. 
When Mrs. Surratt sent me to Booth, and 
he offered me the ten dollars, I thought at 
the time that it was nothing more than an act 
of friendship. I said to Booth, “I am come 
with an order for that buggy that Mrs. Surratt 
asked you for last evening.” He said, “I 
have sold my buggy, but here are ten dollars, 
and you go and hire one.” I never told Mrs. 
Surratt that. 
Mrs. Surratt would sometimes leave the 
parlor on being asked by Booth to spare him 
a word. She would then go into the passage 
and talk with him. These conversations 
would not, generally, occupy more than five 
or eight minutes. 
By Mr. Aiken. 
On the 14th of April, when I drove Mrs. 
Surratt to Surrattsville, I wrote a letter for 
her to this man Nothe; it was, I remember, 
“Mr. Nothe: Sir—Unless you come forward 
and pay that bill at once, I will bring suit 
against you immediately.” I also remember 
summing up the interest for her on the sum 
of $479 for thirteen years. 
By Mr. Doster. 
Atzerodt has been frequently to Mrs. Sur- 
ratt’s house, and had interviews with John 118 
THE CONSPIRACY TRIAL. 
H. Surratt in the parlor. I knew nothing of 
what took place between them. On the 
occasion of Payne’s last visit to the house. 
Atzerodt came to see Surratt, and I saw 
Payne and Atzerodt together, talking in my 
room. 1 do not know of any conversation 
that passed between Atzerodt and Booth, or 
Atzerodt and Payne, having reference to a 
conspiracy. 
Surratt was continually speaking about 
cotton speculations, and of going to Europe, 
and I heard Atzerodt once remark that he 
also was going to Europe, but he was going 
on horseback; from that remark I concluded 
he was going South. 
At half-past 2 o’clock, on the afternoon of 
the 14th, I saw Atzerodt at the livery-stable, 
trying to get a horse. The stable-keeper, in 
my presence, refused to let him have one. I 
asked Atzerodt where he was going, and he 
said he was going to ride in the country, and 
he said he was going to get a horse and send 
for Payne. I met Atzerodt one day on 
Seventh Street, and asked him where he was 
going. He said he was going to see Payne. 
I asked him if it was Payne who was at the 
Herndon House. He said, “Yes.” When 
Payne visited the Surratts, his business ap- 
peared to be with Mr. Surratt. On the 
occasion of his first visit, I was in the parlor 
during the whole time. I did not notice any 
other disguise than the false moustache 
spoken of, nor any thing else to show that 
Payne wanted to disguise himself. He ap- 
peared to be kindly treated by Mr. Surratt, as 
if he was an old acquaintance. 
I do not know whether the Surratt family 
regarded him as a man in disguise or as a 
Baptist minister. One of the young ladies 
looked at him, and remarked that he was a 
queer-looking Baptist preacher, and that he 
would not convert many souls. 
to bring me some water, and inquired at the 
same time where John had gone. He told me 
Massa John had left the front of the house, 
with six others, on horseback, about half- 
past 2 o’clock. On going down to dinner, I 
found Mrs. Surratt in the passage. She was 
weeping bitterly, and 1 endeavored to console 
her. She said, “John is gone away; go down 
to dinner, and make the best of your dinner 
'you can.” After dinner, I went to my room, 
sat down, commenced reading, and about half- 
past 6 o'clock Surratt came in very much ex- 
cited—in fact, rushed into the room. He had 
a revolver in his hand—one of Sharpe’s re- 
volvers, a four-barrelled revolver, a small one, 
you could carry it in your vest-pocket. He 
appeared to be very much excited. I said, 
“John, what is the matter; why are you so 
much excited?” He replied, “I will shoot 
any one that comes into this room; my pros- 
pect is gone, my hopes are blighted; I want 
something to do; can you get me a clerk- 
ship?” In about ten minutes after, the pris- 
oner, Payne, came into the room. He was also 
very much excited, and I noticed he had a 
pistol. About fifteen minutes afterward, Booth 
came into the room, and Booth was so excited 
that he walked around the room three or four 
times very frantically, and did not notice me. 
He had a whip in his hand. I spoke to him, 
and, recognizing me, he said, “ 1 did not see 
you.” The three then went up stairs into the 
back room, in the third story, and must have 
remained there about thirty minutes, when 
they left the house together. On Surratt’s re- 
turning home, I asked him where he had left 
his friend Payne. He said, “ Payne had gone 
to Baltimore.” I asked him where Booth 
had gone; he said Booth had gone to New 
York. Some two weeks after, Surratt, when 
passing the post-office, inquired for a letter 
that was sent to him under the name of James 
Sturdey. I asked him why a letter was sent 
to him under a false name; he said he had 
particular reasons for it. 
The letter was signed “Wood,” and the 
substance of it was, that the writer was at the 
Revere House in New York, and was looking 
for something to do; that he would probably 
go to some boarding-house on West Grand 
Street, I think. This must have been before 
the 20th of March. 
Recalled for the Prosecution.—May 18. 
[A telegraphic dispatch was handed to the witness.] 
I received this dispatch and delivered it to 
John H. Surratt on the same day. I can not 
say that I received it on the 23d of March, 
but it was after the 17th of March. 
New York, March 23, 1865. 
To Weichmann, Esq., $4l H Street: 
Tell John to telegraph number and street 
at once. [Signed] J. BOOTH. 
When I asked the negro servant to tell me 
who the seven men were that had gone out 
riding that afternoon, he said one was Massa 
John, and Booth, and Port Tobacco, and that 
man who was stopping at the house, whom I 
recognized as Payne. Though they were very 
much excited when they came into the room, 
they were very guarded indeed. Payne made 
no remark at all. Those excited remarks by 
Surratt were the only ones made. 
[The original of the above dispatch was offered in evi- 
dence;] 
This is in Booth’s handwriting. I have 
seen Booth’s handwriting, and recognize his 
autograph. When I delivered the message 
to John Surratt, I asked him what particular 
number and street was meant, and he said, 
“ Do n’t be so damned inquisitive.” 
During Payne’s second visit to Mrs. Sur- 
ratt’s house, some time after the 4th of March, 
I returned from my office one day at half-past 
4 o’clock. I went to my room, and ringing 
the bell for Dan, the negro servant, told him 
I did not hear the conversation that took 
place between Mrs. Surratt and Mr. Lloyd at 
Uniontown. Mrs. Surratt leaned sideways 
Cross-examined by Me. Aiken. TESTIMONY CONCERNING MRS. MARY E. SURRATT. 
119 
m the buggy, and whispered, as it were, in Mr. 
Lloyd’s ear. 
I have seen Mrs. Slater at Mrs. Surratt’s 
house only once, though I understand she has 
been there twice. Mrs. Surratt told me that 
sh ecame to the house with Mr. Howell; that 
she was a North Carolinian; I believe that 
she spoke French, and that she was a block- 
ade-runner or bearer of dispatches. Mrs. Sur- 
ratt"said if she got into trouble there was no 
danger, because she could immediately apply 
to the French Consul, speaking French as she 
did. At the time I saw her, she drove up to 
the door in a buggy; there was a young man 
with her. Mrs. Surratt told me to go out 
and take her trunk. She wore a crape mask 
vail. That was some time in the month of 
February. When Howell was at Mrs. Sur- 
ratt’s, he gave the name of Spencer. They 
refused to tell me his right name, but I after- 
ward learned from John Surratt that his name 
Was Augustus Howell. His nickname in the 
house was Spencer. He was well acquainted 
with Mrs. Surratt. I was introduced to him, 
and had some conversation with him. I told 
him I would like to be South. I had been a 
student of divinity, and I was studying for 
the diocese of Richmond. I told him that 1 
Would like to be in Richmond for the pur- 
pose of continuing my theological studies. 
about its being a cipher used at Richmond, 
nor did he give it to me with any idea of 
corresponding in it; and the only use I ever 
made of it was to write out a poem of Long- 
fellow’s in it, which I showed to Mr. Cruik- 
shank, a clerk in the War Department. He 
was in the habit of making puns and enig- 
mas himself; and I told him I would give 
him an enigma which he could not make out. 
The cipher alphabet was in my box, and no 
doubt was found among my things when they 
were seized. 
I read in the paper, the morning after the 
assassination, the description of the assassin 
of Secretar}' Seward; he was described as a 
man who wore a long gray coat, and I went 
to the stable on G Street and told Brook 
Stabler that I thought it was Atzerodt. I 
afterward met Mr. Holahan, and he also 
communicated similar suspicions to me, and 
after breakfast we gave ourselves up to Su- 
perintendent Richards, of the Metropolitan 
Police force. I told Officer McDevitt about 
Payne, and where he was stopping, and what 
I knew of Surratt, Atzerodt, and Herold. No 
threats were made in case I did not divulge 
what I knew, and no offers or inducements 
if I did. My only object was to assist the 
Government. I surrendered myself because 
I thought it was my duty. It was hard for 
me to do so, situated as I was with Mrs. 
Surratt and her family, but it was my duty, 
and so I have always regarded it since. 
I can not say that any objection was ever 
made by any of the prisoners at the bar to 
my being present at any of their conversa- 
tions, but they would withdraw themselves. 
When Booth would call, he would converse 
perhaps five or ten minutes, and then I no- 
ticed that John would tap or nudge Booth, 
or Booth would nudge Surratt; then they 
would go out of the parlor and stay up stairs 
for two or three hours. I never had a word 
of private conversation with them which I 
would not be willing to let the world hear. 
Their conversations, in my presence, were on 
general topics. I never learned any thing 
from the conversations of any of the prison- 
ers at the bar of any intended treason or 
conspiracy. I would have been the last man 
in the world to suspect John Surratt, my 
school-mate, of the murder of the President 
of the United States. My suspicions were 
aroused by Payne and Booth coming to the 
house, and their frequent private conversa- 
tions with John Surratt, and by seeing Payne 
and Surratt playing on the bed with bowie- 
knives, and again by finding a false mous- 
tache in my room; but my suspicions were 
not of a fixed or definite character. 1 did 
not know what they intended to do. I made 
a confidant of Captain Gleason in the War 
Department. I told him that Booth was a 
secesh sympathizer, and mentioned snatches 
of conversation I had heard from these par- 
ties; and I asked him, “Captain, what do 
you think of all this?” We even talked 
By Mr. Clampitt. 
Q. Why had you a greater desire to continue 
your studies in Richmond than the North? 
Assistant Judge Advocate Bingham. I ob- 
ject to that question. It is wholly immaterial 
what reason he had. 
Mr. Clampitt. It is important, and concerns 
the res gestce of the case. 
Assistant Judge Advocate Bingham. Sup- 
posing he should give an answer, how would 
you dispose of it? 
Mr. Clampitt. By further testimony that 
we may adduce hereafter. It may be a con- 
necting link. 
Assistant Judge Advocate Bingham. You 
can not do it in that way. If you had asked 
Mm for his declarations, I could understand 
ffj but this is an attempt to get at the in- 
ferior motive of the witness, which you can 
not do, unless you can obtain the power of 
omnipotence. 
The question was waived. 
Witness. I spoke about Mr. Howell to 
Captain Gleason, a clerk in our office, and 
said to him, “There is a blockade-runner at 
Surratt’s; shall I have him delivered 
UP'■ ’ I agitated the question with myself for 
three days, and decided in favor of Surratt; 
I thought it would be perhaps the only time 
the man would be there, and that I would let 
him go, in God’s name. 
By Mr. Aiken. 
While I was a clerk in the War Depart- 
ment, this man Howell taught me a cipher 
alphabet, and how to use it. He said nothing 120 
THE CONSPIRACY TRIAL. 
over several things which they could do. I 
asked him whether they could be bearers of 
dispatches or blockade-runners. I remember 
seeing in the New York Tribune, of March 
19th, the capture of President Lincoln fully 
discussed, and I remarked to Captain Glea- 
son, “Captain, do you think any party could 
attempt the capture of President Lincoln ?” 
He laughed and hooted at the idea. This 
happened before the horseback ride of Sur- 
ratt and the six others. I remarked to the 
Captain, the morning after they rode, that 
Surratt had come back, and I mentioned to 
Gleason the very expressions Surratt had 
used, and told him that, to all appearances, 
what they had been after had been a failure; 
and that I was glad, as I thought Surratt 
would be brought to a sense of his duty. 
Q. How came you to connect the discus- 
sion which you read in the papers with any 
of these parties, and have your suspicions 
aroused against them ? 
Assistant Judge Advocate Bingham. 1 
object to the question. It is no matter how 
the man’s mental processes worked. We can 
not inquire into that. 
Mr. Aiken. It will be recollected that 
yesterday a witness was asked what his im- 
pressions were, and it. was not objected to. 
Assistant Judge Advocate Bingham. The 
question is now, how he came to form cer- 
tain conclusions. We can not try a question 
of that sort. No court on earth could do it. 
It is a thing we can not understand, nor any- 
body else; and perhaps the witness himself 
would not now be able to state what con- 
trolled his mental operations at that time. 
Mr. Aiken. I insist on my question. 
Assistant Judge Advocate Bingham. The 
witness has already gone on and told all he 
can tell, and given declarations; and now he 
is asked to state how he came to connect 
them with the newspaper article. Of what 
use is that to anybody? I object to it as a 
wholly immaterial and irrelevant question. 
No matter how the witness answers, it can 
throw no light on the subject, in favor of or 
against the prisoners. 
Mr. Aiken. But the Judge Advocate is 
aware that the witness did not tell all he 
wished to know in the examination in chief, 
and in his re-examination went into matter 
not brought out in the examination in chief, 
or in the cross-examination, which also was 
not objected to by us. 
The Court sustained the objection. 
Witness. I had been a companion of 
John H. Surratt’s for seven years. I did 
not consider that I forfeited my friendship 
to him in mentioning my suspicions to Mr. 
Gleason ; he forfeited his friendship to me 
by placing me in the position in which I 
now stand, testifying against him. I think 
I was more of a friend to him than he was 
to me. He knew that I permitted a block- 
ade-runner at the house, without informing 
upon him, because I was his friend. But 1 
hesitated about it for three days ; still, when 
my suspicions of danger to the Government 
were aroused, I preferred the Government to 
John Surratt. 
By Mr. Ewing. 
The ride of the parties spoken of, I think, 
took place after my reading the article in the 
Tribune of March 19th. I also saw in the 
Republican, some time in February, that the 
assassination of President Lincoln was con- 
templated, and Surratt once made the re- 
mark to me that if he succeeded in his cot- 
ton speculation, his country would love him 
forever, and that his name would go down 
green to posterity. 
I do not know what were his intentions, 
but he said he was going to engage in cot- 
ton speculations; he was going to engage in oil. 
My remark to Captain Gleason about the 
possibility of the capture of the President 
was merely a casual remark. He laughed 
at the idea of such a thing in a city guarded 
as Washington was. It was the morning 
after the ride that I stated to Captain Glea- 
son that Surratt’s mysterious and incompre- 
hensible business had failed; and I said, 
“Captain, let us think it over, and let us 
think of something that it could have been.” 
I mentioned a variety of things—blockade- 
running, bearing dispatches; and we then 
thought of breaking open the Old Capitol 
Prison ; but all those ideas vanished ; we hit 
upon nothing. I will state that since that 
ride my suspicions were not so much aroused 
as before, because Payne has not been to the 
house since; and Atzerodt, to my knowledge, 
had not been to the house since the 2d of 
April. The only one that visited the house 
during that time was this man Booth. 
Recalled for the Prosecution.—May 19. 
[The accused, Lewis Payne, was here attired in the coat 
and vest in which ho was arrested at the house of Mrs. 
Surratt.J 
Payne wore that coat and vest the last 
time he came to Mrs. Surratt’s, when he staid 
three days, on the 14th, 15th and 16th of 
March, and it was on the 16th that the party 
took that horseback ride. The next day 
after that I mentioned ray suspicions to Cap- 
tain Gleason. I had spoken to him previously, 
on various occasions, about this blockade- 
runner, and about Mrs. Slater, but I can not 
fix the precise date. lam enabled to fix the 
date of Payne’s last visit to the house, from 
the fact that he went with John Surratt, Miss 
Fitzpatrick, and Miss Dean to see “Jane 
Shore” played at the theater. Forrest was 
playing there at that time, and Surratt had 
got a ten-dollar ticket. It was the next day 
that this horseback ride occurred. 
A. R. Reeves. 
I reside in Brooklyn, N. Y. lam a tele- 
graphic operator. 
For the Prosecution.—May 18. TESTIMONY CONCERNING MRS. MARY E. SURRATT. 
121 
[A telegraphic dispatch was handed to the witness.] 
Cross-examined by Mr. Aik ex. 
This is the original dispatch that was 
handed to me by John Wilkes Booth, at the 
St. Nicholas Hotel, New York, to be sent to 
Washington. It reads: 
When the two carriages passed at Union- 
town, and Lloyd got out, it was misty and 
raining a little. The carriages were two or 
thi’ee yards apart, I suppose. I never looked 
out of the carriage at all after Mr. Lloyd left 
it, and Lloyd said nothing to me about his 
conversation with Mrs. Surratt. 
New Yokk, March 23, 1865. 
To Wcichmann, Esq., 541 II Street: 
Tell John to telegraph number and street 
at once. [Signed] J. BOOTH. 
Mrs. Surratt arrived at Mr. Lloyd’s about 
4 o’clock on the afternoon of the 14th. I 
had a conversation with her before Mr. Lloyd 
came in. 
It was sent on the-23d. I remember 
Booth’s signing “ J. Booth,” instead of John 
Wilkes Booth, knowing that to be his name; 
I noticed at the time that Wilkes was left out. 
[A photograph of Booth was exhibited to the witness.] 
Q. Did you learn any thing of her business 
there that day ? 
Assistant Judge Advocate Bingham ob- 
jected to the question. Statements of Mrs. 
Surratt, in the absence of Mr. Lloyd, were 
not admissible. 
This is the gentleman who handed the dis- 
patch to me. 
Miss Honora Fitzpatrick. 
Witness. Mrs. Surratt gave me no charge 
in reference to her business, only concerning 
her farm, and she gave me no packages. : 
Q. During your visit to Mr. Lloyd’s, did you 
ever hear any conversation there with refer- 
ence to “ shooting-irons?” 
Assistant Judge Advocate Bingham ob- 
jected to the question. The witness had 
already stated that she did not hear the con- 
versation between Mr. Lloyd and Mrs. Sur- 
ratt. 
1 resided at the house of Mrs. Mary E. 
Surratt, the prisoner at the bar, last winter. 
During the month of March last, I saw John 
Wilkes Booth and John H. Surratt there, 
and of the prisoners, Mr. Wood, [pointing to 
the prisoner, Lewis Payne,] I do not know 
bim by any other name, and Mr. Atzerodt 
[pointing to the accused, George A. Atzerodt.] 
I never saw David E. Herold there. I only 
saw Mr. Wood at Mrs. Surratt’s twice; once 
■was in March. Atzerodt was there but a 
short time; he staid over night once. 
For the Prosecution.—May 22. 
Mr. Aiken claimed the right to ask the 
question, in order to impeach the credibility 
of the previous witness, Lloyd. 
The Commission sustained the objection. 
Some time in March, in company with Mr. 
Surratt, Wood, [Payne,] and Miss Dean, I 
went to Ford’s Theater. Ido not know what 
box we occupied, but think it was an upper 
box. John Wilkes Booth came into the box 
while we were there. The day after this visit 
to the theater I went to Baltimore, and was 
absent for about a week. 
Major H. W. Smith. 
For the Prosecution.—May 19. 
1 was in charge of the party that took 
possession of Mrs. Surratt’s house, 541 H 
Street, on the night of the 17th of April, and 
arrested Mrs. Surratt, Miss Surratt, Mies 
Fitzpatrick, and Miss Jenkins. When I 
went up the steps, and rang the bell of the 
house, Mrs. Surratt came to the window, and 
said, “Is that you, Mr. Kirby?” The reply 
was that it was not Mr. Kirby, and to open 
the door. She opened the door, and 1 asked, 
“Are you Mrs. Surratt?” She said, “I am 
the widow of John H. Surratt.” And 1 
added, “The mother of John H. Surratt, 
jr.?” She replied, “I am.” I then said, 
“ 1 come to arrest you and all in your house, 
and take ,you for examination to General 
Augur's head-quarters.” No inquiry what- 
ever was made as to the cause of the arrest. 
While we were there, Payne came to the 
house. I questioned him in regard to his 
occupation, and what business he had at the 
house that time of night. He stated that he 
was a laborer, and had come there to dig a 
gutter at the request of Mrs. Surratt. I went 
to the parlor door, and said, “ Mrs. Surratt, 
will you step here a minute?" She came 
out, and I asked her, “Do you know this 
man, and did you hire him to come and dig 
a gutter for you?” She answered, raising 
Mrs. Emma Opfutt. 
For the Prosecution.—May 17. 
On Tuesday, the 11th of April, I was in 
the carriage with Mr. Lloyd, my brother-in- 
law. When somewhere about Uniontown 
we met Mrs. Surratt. Our carriage passed 
before we recognized that it was her, when 
Mr. Lloyd got out. Mrs. Surratt 
called him Ido not know. I did not hear 
their conversation, for I was some distance 
oft] 
On Friday, the 14th, I saw Mrs. Surratt at 
Mr. Lloyd’s house. She came into the par- 
lor. Mr. Lloyd had been to Marlboro that 
hay, attending court; he had just returned, 
aad had brought some oysters and fresh fish 
With him, and had driven round to the back 
Part of the yard. Having occasion to go 
through to the back part of the house, she 
came with me, and I saw her and Mr. Lloyd 
conversing together in the back yard. I paid 
”0 attention at all to them, and could not 
tell a word that passed between them. 122 
THE CONSPIRACY TRIAL. 
her right hand, “ Before God, sir, I do not 
know this man, and have never seen him, 
and I did not hire him to dig a gutter for 
me.” Payne said nothing. 1 then placed 
him under arrest, and told him he was so 
suspicious a character that I should send him 
to Colonel Wells, at General Augur’s head- 
quarters, for further examination. Payne 
was standing in full view of Mrs. Surratt, 
and within three paces of her, when she de- 
nied knowing him. 
R. C. Morgan. 
For the Prosecution.—May 19. 
On the night of the 17th of April, I was in 
the service of the War Department, acting 
under the orders of Colonel Olcott, special 
commissioner of that department. About 
twenty minutes past 11 o’clock, on the evening 
of the 17th of April, Colonel Olcott gave me 
instructions to go to the house of Mrs. Sur- 
ratt, 541 H Street, and superintend the seizing 
of papers, and the arrest of the inmates of the 
house. 1 arrived there about half-past 11 
o’clock, and found Major Smith, Captain Wer- 
merskirch, and some other officers, who had 
been there about ten minutes. The inmates 
were in the parlor, about ready to leave. 
A variety of photographs were found in a 
photograph-alburn and in various parts of 
Mrs, Surratt’s house. 
Gross-examined by Mr. Aiken. 
Payne was dressed that night in a gray 
coat, black pantaloons, and rather a fine pair 
of boots. Hh had on his head a gray shirt- 
sleeve, hanging over at the side. His panta- 
loons were rolled up over the tops of his 
boots; on one leg only, I believe. 
I have known some loyal people who have 
had in their possession photographs of the 
leaders of the rebellion. I can not say that 
I have seen on exhibition at bookstores, or 
advertised by newspaper dealers and keepers 
of photographs, cartes-de-visite of the leaders 
of'the rebellion. I have seen photographs of 
Booth, but only since this trial. 
I had sent out for a carriage to take the 
women arrested in the house to head-quar- 
ters, when I heard a knock and a ring at the 
door. At the same time Captain Wermers- 
kirch and myself stepped forward and opened 
the door, when the prisoner, Payne, [point- 
ing to Lewis Payne,] came in with a pickaxe 
over his shoulder, dressed in a gray coat, 
gray vest, black pants, and a hat made out 
of, I should judge, the sleeve of a shirt or 
the leg of a drawer. As soon as he came in, 
I immediately shut the door. Said he, “ I 
guess I am mistaken.” Said I, “Whom do 
you want to see?” “Mrs. Surratt,” said he. 
“ You are right; walk in.” He took a seat, and 
I asked him what he came there at this time 
of night for. He said he came to dig a gut- 
ter; Mrs. Surratt had sent for him. 1 asked 
him when. He said, “In the morning.” I 
asked him where he last worked. He said, 
“Sometimes on I Street.” I asked him 
where he boarded. He said he had no board- 
ing-house; lie was a poor man, who got his 
living with the pick. I put my hand on the 
pick-axe while talking to him. Said I, “ How 
much do you make a day?” “Sometimes 
nothing at all; sometimes a dollar; some- 
times a dollar and a half” Said I, “Have 
you any money?" “Not a cent,” he replied. 
I asked him why he came at this time of night 
to go to work. He said he simply callecf to 
find out what time he should go to work in 
the morning. I asked him if he had any 
previous acquaintance with Mrs. Surratt. 
He said, “No.” Then I asked him why she 
selected him. He said she knew he was 
working around the neighborhood, and was 
a poor man, and came to him. I asked him 
how old he was. He said, “About twenty.” 
I asked him where he was from. He said 
he was from Fauquier County, Virginia. 
Previous to this he pulled out an oath of 
allegiance, and on the oath of allegiance was, 
“Lewis Payne, Fauquier County. Virginia.” 
I asked him if he was from the South. He 
said he was. I asked him when he left 
there. “Some time ago; in the month of 
February,” I think he said. I asked him 
what he left for. He said he would have to 
go in the army, and he preferred earning his 
Payne was dressed at the time in a gray 
coat and black pantaloons. 
Re-examined by the Judge Advocate. 
[Exhibiting to the witness a brown and white mixed 
coat.,] 
That is the coat Payne wore, to the best of 
my belief. 
I am certain that this is the coat; I re- 
member it by its color and general look. As 
near as I could judge by the light that was 
in the hall at the time, that was the coat. 
By Mr. Doster. 
[Submitting to the witness a dark-gray coat.] 
The coat now shown me is the one worn 
by Payne on the night of his arrest. I rec- 
ognize it by the buttons. All that was 
wanting in the other coat was the buttons, 
but it was difficult in the light in which I was 
standing to tell, ihe coat just shown me is 
the one. 
[The gray coat was offered in evidence.] 
I think, if 1 saw a gentleman dressed in 
black, with a white neck-cloth, representing 
himself as a Baptist preacher, and two months 
afterward I met the same person, with a shirt- 
sleeve on his head, an old gray coat, his 
pantaloons stuffed into his boots, with a 
pickaxe on his shoulder, presenting him- 
self as a laborer, and in the night-time, I 
think that, were I very familiar with his 
countepance, I should recognize him as the 
same person. 
By Mr. Aiken. TESTIMONY CONCERNING MRS. MARY E. SURRATT. 
123 
iving by the pickaxe. I asked him if he 
could read. He said, “No.” I asked him 
if lie could write. He said he could manage 
to write his name. 
to Lewis Payne] is the man of whom I speak, 
and Mrs. Surratt [pointing to the prisoner, 
Mary E. Surratt] is the woman of whom 1 
speak. 
I then told him he would have to go up to 
the Provost Marshal’s office and explain. He 
moved at that, but did not answer. The 
carriage had returned then that had taken 
off the women, and I ordered Thomas Sam- 
son and Mr. Rosch to take him up to the 
Provost Marshal’s office. He was then taken 
up and searched. I then proceeded, with 
Major Smith and Captain Wermerskirch, to 
search through the house for papers, and re- 
mained there until 3 o’clock in the morning. 
Cross-examined by Mr. Aiken. 
I made a search of Mrs Surratt’s house, 
and found a number of photographs, papers, 
a bullet-mold, and some percussion-caps. The 
bullet-mold and percussion-caps were found 
in the back room of the lower floor, which, 
I believe, was Mrs. Surratt’s room. 
I found cartes-de-visite, lithographic ones I 
think, but got up in the same shape as photo- 
graphic cartes-de-visite, of Jefferson Davis, 
Alexander H. Stephens and Beauregard. I also 
saw a photograph of General McClellan there. 
When Mrs. Surratt made the asseveration 
with regard to Payne, 1 was standing in the 
hall, very near the front parlor; she was 
in the parlor very near the hall-door, or 
standing in the door-way. 
When Major Smith informed Mrs. Surratt 
that the carriage was ready to take her to the 
Provost Marshal’s office, she requested a 
minute or so to kneel down and pray. She 
knelt down; whether she prayed or not I 
can not tell. Payne was dressed in a dark 
coat; pants that seemed to be black, and 
seemingly a shirt-sleeve, or the lower part 
of a pair of drawers, on his head, that made 
a very closely-fitting head-dress, hanging down 
about six or seven inches. 
[A pickaxe was here exhibited to the witness.] 
That is the pickaxe he had on his shoulder. 
[lt was then offered in evidence.] 
When Payne knocked at the door, Mrs. 
Surratt and the inmates of the house were 
all in the parlor, prepared to leave. Mrs. 
Surratt had been directed to get the bonnets 
and shawls of the rest of the persons in the 
house, so that they could not communicate 
with each other 
The next morning I went down to the house 
and found cartes-de-visite of Jefferson Davis, 
Beauregard, and Alexander H. Stephens; and 
Lieutenant Dempsey, the officer in charge, 
showed me a photograph of J. Wilkes Booth, 
that he had found behind a picture, which 
he turned over to the Provost Marshal. 
[An envelope containing two photographs of General 
Reanregard, one of Jefferson Davis, one of-Alexander H. 
Stephens, andacard with the arms of the State of Virginia 
and two Confederate flags emblazoned thereon, with the 
Inscription 
[The prisoner, lewis Payne, by direction of the Judge 
Advocate, was then dressed in a dark-gray coat, and a 
shirt-sleeve for a head-dress.] 
“ Thus will it over he with tyrants, 
Virginia the Mighty, 
That is the coat he wore, and that is the 
way he had the head-dress on. I would not 
positively swear to the coat, but it is as near 
the color and shape of that coat as can be. 
I found all these at the house of Mrs. 
Surratt 
Sic Semper Tyrannis."] 
[The coat and shirt-sleeve were put in evidence.] 
I do not recollect having seen photographs 
of J. Wilkes Booth at book-stores before the 
assassination of the President; and I never 
had photographs of Jefferson Davis and 
other prominent leaders of the rebellion in 
my hand, until I had these, found at Mrs. 
Surratt’s. I have not seen people with photo- 
graphs of these men since the rebellion, 
though they might have had them before. 
Cross-examined by Mr. Aiken. 
He was full of mud, up to his knees, nearly. 
I have seen, in Baltimore, in booksellers, 
stores, pictures of Jefferson Davis, Alexander 
H. Stephens, etc., exhibited for sale; and I 
have seen photographs of Booth in the hands 
of persons, but only in the hands of those 
who took an interest in having him arrested. 
I do not remember seeing a photograph of 
him before the assassination. 
If I had seen a person dressed genteelly 
in black clothes, with a white neckerchief, 
representing himself as a Baptist minister, I 
think 1 would recognize him in the garb 
Payne wore, for he had taken no particular 
pains to disguise himself; his face looked 
just the same as it does now, and the only 
difference was in the clothes. 
Captain W. M. Wermerskirch. 
On the night of the 17th of April I was 
at the house of Mrs. Surratt, in this city, 
aud was present when the prisoner, Payne, 
came in, about midnight. Major Smith 
ashed Mrs. Surratt whether she knew him, 
and Mrs. Surratt, in the presence of Payne, 
held up one or both ber bands, anc* said, 
Before God, I have never seen that man 
Gore. I have not hired him; I do not 
now any thing about him;” or words to 
uit effect. The prisoner at the bar [pointing 
For the Prosecution.—May 19. 
The photographs were found all over the 
house—in the front parlor, in the back parlor, 
and in the two rooms up stairs. There were 
three albums containing photographs, besides 
loose pictures. 
By Mr. Clampitt. 
[A small framed colored lithograph, representing Morn- 
ing, Noon, and Night, was exhibited to the witness.] 124 
THE CONSPIRACY TRIAL. 
I saw this picture in Mrs. Surratt’s house, 
in the back room of the lower floor, standing 
on the mantel-piece, I believe. I left it there, 
because I did not think any thing of it. This 
picture was all that was visible. 
ularly; and I have seen some of eminent 
actors—Forrest, Macready, and others—ex- 
posed for sale at different places I was a 
prisoner for thirteen months, and during that 
time I saw a good many of the leaders of 
the rebellion, both personally and in pictures, 
but I have not seen them in the loyal states, 
except as I have mentioned. 
Lieutenant John W. Dempsey. 
[Exhibiting to the witness the picture Morn, Noon, and 
For the Prosecution.—May 19. 
Recalled for the Prosecution.—June 3. 
[A photograph of J. Wilkes Booth, side view, was ex- 
hibited to the witness.] 
This is the photograph I found at the 
back of the picture “ Morn, Noon, and Night,” 
which was found on the mantel-piece in the 
back room of the first floor, known, I believe, 
as Mrs. Surratt’s room. It was marked, in 
pencil, “Booth.” The pencil words, “J. 
Wilkes Booth,” I wrote when I found it. I 
showed the photograph to an officer in the 
house, and then turned it over to Colonel 
Ingraham. 
[The picture and photograph were put in evidence.] 
Night.] 
I found this in the back room of the first 
floor of Mrs. Surratt’s house. The back part 
was all sealed, and my curiosity was excited 
by noticing a piece torn off the back. 1 
opened the back and found the likeness of 
J. Wilkes Booth, with the word “Booth” 
written in pencil on the back of it. 
Cross-examined by Mr. Aiken, 
I may have seen photographs of Davis, 
Lee; and other leaders of the rebellion in 
newspapers—the Sunday newspapers partic- 
DEFENSE OF MRS. MARY E. SURRATT. 
George Cottingham. 
For the Defense.—May 25. 
By Mr. Aiken. 
was as much as he could do to carry him- 
self. as his leg was broken. Then Booth told 
Lloyd, “ I have murdered the President; ” and 
Herold said, “ I have fixed off Seward.” He 
told me this when he came from Bryantown, 
on his way to Washington, with a squad of 
cavalry; I was in the house when he came 
in. He commenced crying and hallooing 
out, “0, Mrs. Surratt, that vile woman, she 
has ruined me! lamto be shot! I am to 
be shot!” 
I am special officer on Major O’Beirne’s 
force, and was engaged in making arrests 
after the assassination. After the arrest of 
John M. Lloyd by my partner, Joshua A. 
Lloyd, he was placed in my charge at Roby’s 
Postroffice, Surrattsville. For two days after 
his arrest Mr. Lloyd denied knowing any thing 
about the assassination. I told him that I 
was perfectly satisfied he knew about it, and 
had a heavy load.on his mind, and that the 
sooner he got rid of it the better. He then 
said to me, “0, my God, if I was to make 
a confession, they would murder me!” I 
asked, “Who would murder you?” He re- 
plied, “These parties that are in this con- 
spiracy.” “Well,” said I, “if you are afraid 
of being murdered, and let these fellows get 
out of it, that is your business, not mine.” 
He seemed to be very much excited. 
Lloyd stated to me that Mrs. Surratt had 
come down to his place on Friday between 4 
and 5 o’clock: that she told him to have the 
fire-arms ready; that two men would call for 
them at 12 o’clock, and that two men did 
call; that Herold dismounted from his horse, 
went into Lloyd’s tavern, and told him to go 
up and get those fire-arms. The fire-arms, he 
stated, were brought down; Herold took one, 
and Booth’s carbine was carried out to him ; 
but Booth said he could' not carry his, it 
I asked Lloyd where Booth’s carbine was; 
he told me it was up stairs in a little room, 
where Mrs. Surratt kept some bags. I went 
up into the room and hunted about, but could 
not find it. It was at last found behind the 
plastering of the wall. The carbine was in 
a bag, and had been suspended by a string 
tied round the muzzle of the carbine; the 
string had broken, and the carbine had fallen 
down. We did not find it where Lloyd told me 
it was. When Lloyd made these statements 
to me no one was present but Mr. Jenkins, 
a brother of Mrs. Surratt’s. Lloyd said that 
Mrs. Surratt spoke about the fire-arms be- 
tween 4 and 5 o’clock on the day of the 
assassination. 
At the last interview I had with him, when 
he came to the house to go to Washing- 
ton, he cried bitterly, and threw his hands 
over his wife’s neck, and hallooed for his 
prayer-book. Lloyd's wife and Mrs. OfFutt 
were in the room, and heard all the conver- 
sation. DEFENSE OF MRS. MARY E. SURRATT. 
125 
Recalled for the Defense.—May 25. 
By Mr. Aiken. 
Q. Then you gave me to understand, and 
you are ready now to swear to it, that you 
told me a lie? 
Q. Will you state the precise language that 
Lloyd used with reference to Mrs. Surratt in 
Lis confession to you? 
The Judge Advocate objected to the repeti- 
tion of the question. Mr. Aiken stated that 
he proposed to follow it up by asking the 
witness if he had not made a different state- 
ment to him (Mr. Aiken) in reference to 
what Lloyd had said. “ I ask the witness 
now what I stated to him.” 
A. Undoubtedly I told you a lie there; 
for I thought you had no business to ask me. 
Q. No business! As my witness, had I 
not a right to have the truth from you ? 
A. I told you you might call me into court; 
and I state here that I did lie to you; but 
when put on my oath I will tell the truth. 
Witness. I met Mr. Aiken at the Metro- 
politan Hotel on Saturday evening last, I 
think. He asked me to take a drink. I 
went up and drank with him. He then said, 
“ I am going to have you as a witness in 
this case.” He asked me to sit down on a 
sofa and have some conversation. I said no; 
>t would not look well for me to be sitting 
there, but I would go outside and take a 
Walk. When we went outside, the first ques- 
tion Mr. Aiken put to me was, whether I 
was a Catholic. I said I was not. We 
walked along, and he said, “Lloyd has made 
a confession to you.” Said I, “Yes.” He 
then said, “Will you not state that confes- 
sion to me?” I declined to do it, but told 
him he might ask any questions, and I would 
answer them. He put the question to me, if 
-Lloyd had stated that Mrs. Surratt had 
corne down there and told him to have the 
fire-arms ready. I said not. I had an ob- 
ject in that answer. lam now on my oath, 
and when on my oath I speak the truth, and 
I can havb witnesses to prove what I say— 
six cavalrymen, Mr. Lloyd’s wife, and Mrs. 
Offutt. He wanted to pick facts out of me 
'a the case, but that is not my business; I 
am an officer, and I did not want to let him 
hnow any thing either way; I wanted to 
come here to the Court and state every thing 
that I knew. I told him distinctly that 1 
would not give him that confession; that I 
had no right to do so. 
Q. Lid I ask you if Mr. Lloyd, in his con- 
fession, said any thing at all in reference to 
Mrs. Surratt? 
A. You asked me first whether Lloyd had 
®ade a confession to me, and I said, “Yes.” 
Said you, “What is that confession? I 
should like to know it.” My answer to you 
yyas, “ I decline giving you that confession; 
hut if you will ask a question, I will answer 
you.” That question you put to me, and I 
answered; I said “No.” 
Q- That Mr. Lloyd did not say so ? 
■A- I did say so. Ido not deny that. 
.Q- Then what did you tell me this afternoon 
Wlth reference to it ? 
, A. I told you the same thing over again in 
the witness-room, when you asked me, before 
f came up on the stand. It is a part of my 
business (I am a detective officer) to gain 
*uy object. I obtained the confession from 
°yd through strategy. 
Mrs. Emma Offutt. 
Recalled for the Defense.—June 13. 
By Mr. Aiken. 
On the evening of the 14th of April, Mr. 
Lloyd was very much in liquor, more so than 
I have ever seen him in my life. I insisted 
on his lying down, and I had to help him 
take off his coat. In a few minutes he got 
up and said he was too sick, and would go 
into the dining-room; but he went into the 
bar-room after that. For the last four or 
five months I have noticed his drinking 
freely. 
I did not hear his full confession to Cap- 
tain Cottingham; but I heard some remarks 
he made on the Sunday night when he was 
brought up from Bryantown, on his way to 
Washington. I was there all the time, and 
I did not hear him say, referring to Mrs. Sur- 
ratt, “That vile woman, she has ruined me." 
Mr. Aiken. I wish to state to the Court 
that at the time Mrs. Offutt gave her tes- 
timony before, she came here very unwell. 
If I have been correctly informed, she had 
been suffering severely from sickness, and 
had taken considerable laudanum. Her mind 
was considerably confused at the time, and 
she now wishes to correct her testimony in 
an important particular. 
Witness. After I left here the other day, 
I thought of my reply to a question that 
was asked me, and it has been on my mind 
ever since, and I requested Mr. Aiken to 
mention it to the Court. 
I was asked by the Judge Advocate if 
Mrs. Surratt handed me a package, and I 
said “No;” but she did hand me a package, 
and said she was requested to leave it there. 
That was about half-past 5 o’clock, and be- 
fore Mr. Lloyd came in. After that I saw 
the package lying on the sofa in the parlor. 
Shortly afterward Mr. Lloyd came in. 
When I saw Mrs. Surratt and Mr. Lloyd 
talking together at the buggy in the yard, I 
was in and out all the time. 1 did not see 
Mr. Lloyd go into the parlor, but I saw him 
on the piazza, and I think from that that he 
must have gone into the parlor. He had a 
package in his hand, but I did not see Mrs. 
Surratt give it to him. After the package 
was handed to me, it might have been taken 
by Mrs. Surratt and handed to Lloyd, but I 
did not see her give it to him. 
I learned from Mrs. Surratt that she would 126 
THE CONSPIRACY TRIAL. 
not have come down to Surrattsvllle that 
day; had it not been for the letter she re- 
ceived; and I saw business transacted while 
she was there. 
On Friday, the day of the murder of the 
President, as I was passing in my buggy, 
some one hailed me, and said Mrs. Surratt 
wanted to see me in the tavern. She gave 
me a letter for Mr. Nothey, and asked me 
to read it to him, which I did. I have trans- 
acted some business tor her relative to the 
sale of lands her husband had sold to Mr. 
Nothey; and I have personal knowledge ot 
Mr. Nothey buying land from Mrs. Surratt’s 
late husband; I was privy to the transaction. 
About half-past 4 on that day, the 14th, I 
parted with Mr. Lloyd on the road from 
Marlboro, about five miles from Surrattsvllle, 
and did not see him afterward. He had 
been drinking right smartly. 
Since January last I have met Mrs. Sur- 
ratt several times. I never heard from her 
a word concerning any plot or conspiracy, 
and never heard any disloyal expressions 
from her. 
I know that Mrs. Surratt’s sight is defect- 
ive. On one occasion, last December, she 
came down to see her mother, who was lying 
very sick. On being told by a servant that 
Mrs. Surratt was coming toward the door, I 
went there to her, and said, ‘‘ Why, Mrs. Sur- 
ratt!” When she said, “O, Mrs. Offutt, is 
that you ?” and then she added, “ 1 can 
scarcely see.” I led her into the parlor, and 
she told me that her eyes were failing very 
fast 
Recalled for the Defense.—May 26, 
[A letter was handed to the witness.] 
By Mk. Aiken. 
For the Defense.—May 25. 
George H. Calvert. 
This is the letter I carried to Mr. Nothey 
from Mrs. Surratt, and which I read to him 
on the 14th of April: 
By Mr. Aiken. 
Surkattsville, M»., April 14, 1865. 
Mr. John Nothey: 
Sir—l have this day received a letter from 
Mr. Calvert, intimating that either you or 
your friend have represented to him that I 
am not willing to settle with you for the land. 
You know that 1 am ready, and have been 
waiting for the last two years; and now, if 
you do not come within the next ten days, I 
will settle with Mr. Calvert, and bring'suit 
against you immediately. 
Mr. Calvert will give you a deed, on 
receiving payment. 
M. E. SURRATT, 
Administratrix of J. H. Surratt. 
I reside in Bladensburg, and am acquainted 
with the prisoner, Mrs. Mary E. Surratt. On 
the 12th of April last I addressed a business 
letter to her. I addressed more than one to 
her, but the last was on the 12th of April. 
[Mr. Aiken called upon the Government to produce the 
letter, stating that he would suspend further examination 
of the witness till it could be produced.] 
Recalled for the Defense.—May 26. 
By Mr. Aiken. 
[A letter was handed to the witness. 
Bivekspale, April 12, 1865. 
Mrs. M. E. Surratt • 
Dear Madam—During a late visit to the 
lower portion of the county, I ascertained of 
the willingness of Mr. Nothey to settle with 
you, and desire to call your attention to the 
fact, in urging the settlement of the claim of 
my late father's estate. However unpleasant, 
I must insist upon closing up this matter, as 
it is imperative, in an early settlement of the 
estate, which is necessary. 
You will, therefore, please inform me, at 
your earliest convenience, as, to how and 
when you will be able to pay the balance 
remaining due on the land purchased by your 
late husband. 
John Nothey. 
For the Defense.—May 26. 
By Mr. Aiken. 
I reside about fifteen miles from Washing- 
ton, in Prince George’s County. Some years 
ago I purchased seventy-five acres of land 
from Mr. John Surratt, sen. Mrs. Surratt 
sent me word that she wanted me to come to 
Surrattsville to settle for this piece of land. 
I owed her a part of the money on it. I 
met her there on Tuesday in regard to it. 
On Friday, the 14th of April, Mr. Gwynn 
brought me a letter from Mrs. Surratt, but I 
did not see her that day. 
I am, dear madam, yours respectfully, 
GEO. H. CALVERT, Jr. 
That is the letter I addressed to Mrs. Sur- 
ratt on the 12th of April. 
Joseph T. Nott. 
For the Defense.—May 30. 
By Mr. Aiken. 
[The letter was read and offered in evidence.] 
B. F. Gwynn. 
For the Defense.—May 25. 
By Mr. Aiken. 
For the past two or three months I have 
been tending bar at Mr. Lloyd’s tavern at 
Surrattsville. 
I reside in Prince George’s County, near 
Surrattsville. I have been acquainted with 
Mrs. Surratt seven or eight years. 
On the 14th of April I saw Mr. Lloyd in 
the morning, and again at sundown. He 
had been to Marlboro on that day; and when 
he returned, he brought some fish and oya- DEFENSE OF MRS. MARY B. SURRATT. 
127 
ters, which he carried round to the kitchen 
in the back yard. For some weeks past Mr. 
Lloyd had been drinking a good deal; nearly 
every day, and night, too, he was pretty tight. 
At times he had the appearance of an insane 
man from drink. I saw him at the buggy 
in which Mrs. Surratt was, assisting in fixing 
it. He was pretty tight that evening. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
The conversation began directly Mr. Lloyd 
came into the house, and lasted about five 
minutes. Mr. Lloyd, Mrs. Lloyd, and Mrs. 
Offutt were there. Lloyd told Cottingham 
that he was innocently persuaded into this 
matter by Mrs. Surratt, or Mrs. Surratt’s 
family, I believe he said, but I will not say 
positively that he said by whom, or that 
Mrs. Surratt’s name was mentioned in the 
conversation. Lloyd told Cottingham that 
the carbine was hid up stairs, and after Lloyd 
was gone Mr. Cottingham went up for it. 
By Mr. Clampitt. 
I first saw Mr. Lloyd that evening after 
his return from Marlboro, driving round to 
the kitchen. I was at the stable, and coming 
out I saw him going round there. Mr. 
Weichmann was there, and Captain Bennett 
F. Gwynn drove up in front of the bar-room. 
J. Z. Jenkins. 
For the Defense.—May 30. 
Ilecalled for cross-examination.—June 2. 
By Assistant Judge Advocate Burnett. 
I reside in Prince George’s County, Mary- 
land. I was at Mr. Lloyd’s on the 14th, 
when Louis J. Weichman and Mrs. Surratt 
drove up to the house. Mrs. Surratt showed 
me a letter from George Calvert, also two 
judgments that Mr. Calvert obtained in the 
Circuit Court of our county against Mr. Sur- 
ratt, sen. She said this letter brought her 
there, and I made out the interest on those 
judgments for her. She expressed no wish 
to see John M. Lloyd, and she was ready to 
start some time before he came, and was on 
the point of going when Lloyd drove up. 
Her business was with Captain Gwynn, and 
when he came in sight she went back and 
staid. Lloyd was very much intoxicated at 
the time. 
By Mr. Aiken. 
I have never, to my knowledge, done or 
said any thing against the Government, or 
the Union party in Maryland, during this 
struggle. I have never taken sides with the 
secession element there, nor said any thing 
against the officers of the Government or the 
Executive. 
I know Mr. Edward Smoot. I do not 
remember saying to him, after the murder of 
the President, on his stating that John H. 
Surratt was one of the murderers, that he 
was undoubtedly in New York by that time; 
I may or may not have said so; and I might 
have said, “John knows all about this mat- 
ter;’’ but I do not recollect it; and I have 
no recollection whatever of saying that six 
months ago I could have told all about this 
matter; nor do 1 remember telling him not 
to mention any thing about the conversation 
I had had with him. I think if I had said 
eo to Mr. Smoot, I should remember it, but I 
do not. Indeed, Ido not recollect seeing Mr. 
Smoot. 
My intercourse with Mrs. Surratt has been 
of an intimate character. She has never, to 
my knowledge, breathed a word that was dis- 
loyal toward the Government; nor have I ever 
heard her make any remark showing her to 
have knowledge of any plan or conspiracy to 
capture or assassinate the President or any 
member of the Government I have known 
her frequently to give milk, tea, and such 
refreshments as she had in her house, to 
Union troops when they were passing. Some- 
times she received pay for it; at other times 
she did not. I recollect when a large number 
of horses escaped from Giesboro, many of 
them were taken up and put on her premises. 
These horses were carefully kept and fed by 
her, and afterward all were given up. She 
received a receipt for giving them up, but 
never got any pay, to ray knowledge. 
I know that Mrs. Surratt’s eyesight is de- 
fective. I have seen a man by the name of 
A. S. Howell stopping, I believe twice, at 
Mrs. Surratt’s hotel. He was stopping there 
as other travelers do. 
I may have seen Mr. Smoot on Saturday, 
the 15th of April last, but I have no recol- 
lection of it; nor of any such conversation 
with him. 
By Mr. Aiken. 
By the Court. 
I do not think I rejoiced at the success of 
the rebels at the first battle of Bull Run. I 
belong to the Catholic Church \Vhen I belong 
to any Church at all. I have not belonged 
to any Church for seven years. 
Andrew Kallenbach. 
For the Defense.—June 13. 
By Mr. Aiken. 
I was present in the back room of Mr. 
Eloyd’s house when he came from Bryan- 
°wn, at the time of his arrest. I did not 
2ear Lloyd say to Captain Cottingham, “ Mrs. 
Urratt, that vile woman, she has ruined me.” 
I saw Mrs. Surratt, at Surrattsville, a few 
days before the assassination of the Presi- 
dent 
By Mr. Clampitt. 
Q. At that meeting did she not state to 128 
THE CONSPIRACY TRIAL. 
you, when you asked for the news, that our 
army had captured General Lee’s army and 
taken Richmond? 
against the Government. I have been en- 
tirely on the side of the Government daring 
the whole war, and never, by act or word, 
have I aided or abetted the" rebellion, and 
never has the scrawl of a pen gone from 
me across to them, nor from them to me. I 
have never fed any of their soldiers, nor 
induced any soldiers to go into their army, 
nor aided and assisted them in any way. 
Assistant Judge Advocate Buenett ob- 
jected to the question as incompetent and 
irrelevant. 
Mr. Clampitt stated that the object of the 
question was to show that the accused, Mary 
E. Surratt, had, a few days before the assas- 
sination, exhibited in her expressions a loyal 
feeling. 
Assistant Judge Advocate Buenett stated 
that the way to prove her character for loy- 
alty was by bringing witnesses who knew 
her reputation in that respect, and not by 
bringing in her own declarations. 
Mr. Clampitt waived the question. 
Mrs. Surratt’s reputation for loyalty was 
very good. I never heard it questioned, and 
I never heard her express any disloyal sen- 
timents. 
lie-examined by Me. Aiken. 
I am under arrest, but I do not know what 
for. The commissioners of our county of- 
fered $2,000 for any information that could 
be given, leading to the arrest of any party 
connected with the assassination, which Mr. 
Cottingham claimed on account of having 
arrested John M. Lloyd, and he asked me if 
I would not see the State’s Attorney and see 
whether he could get it or not. 
When I said that Mr. Kallenbach ought 
to be a strong witness against my sister, on 
account of her bringing his children up, I 
spoke ironically. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
Mrs. Surratt is my sister. I live about a 
mile and a half this side of her place. I 
was arrested by the Government about ten 
days ago. About 10 or 11 o’clock the night 
before, I met a man by the name of Kallen- 
bach, and another by the name of Cottingham. 
All that I said on that occasion, that I re- 
member, was that my sister had fed his 
family (Kallenbach’s); but I did not say 
that if Kallenbach or any one else testified 
against my sister, that I would send him to 
hell, or see that they were put out of the 
way, nor did I use any threats against him 
in case he appeared as a witness against 
Mrs. Surratt. What I did say was, that I 
understood he was a strong witness against 
my sister, which he ought to be, seeing that 
she had raised his family of children. I 
disremember calling him a liar during the 
conversation, and if there was any angry 
or excited conversation, I did not mean 
it any how. He said nothing to me 
about John H. Surratt going to Richmond 
with the full knowledge and consent of his 
mother. Mrs. Lloyd was there and heard 
our conversation, and so also was Mr. Cot- 
tingham. 
On the 14th of April, when Mrs. Surratt 
was at Lloyd’s, I saw Mr. Gwynn there, and 
perhaps from ten to fifteen others, during 
that time; among them, Kallenbach and 
Walter Edelin. I was there from between 
2 and 3 o’clock until a little after sundown. 
I saw Mr. Surratt speaking to Mr. Gwynn 
in the parlor; Weichmann also was in the 
parlor, I think. Gwynn left the house before 
Mrs. Surratt. 
I think that during the war my attitude 
toward the Government has been perfectly 
loyal. During the revolution, I have spent 
$3,000 in my district to hold it in the Union, 
and during the struggle I have taken no part 
J. Z. Jenkins. 
Recalled for the Defense.—June 7. 
By Me. Aiken. 
In 1861, about the time of the first Bull 
Run fight, I got a United States flag from 
Washington, which I and several of our 
Union neighbors raised. There came a report 
shortly after that it was going to be taken 
down by the secesh sympathizers. I went 
round the neighborhood and collected some 
twenty or thirty men with muskets, double- 
barreled guns, or whatever they had, and 
we lay all night round the flag to keep it up. 
I was there one night and a day, I think. 
At the time of the election, when they were 
all Democrats 'round there except myself, I 
used money, when I had n’t it to spare and 
my family needed it, to get Union voters into 
Maryland. I remember bringing Richard 
Warner from the Navy Yard, Washington, 
to the polls. He had not been away long 
enough to lose his vote. I have never had 
any intercourse, one way or another, with 
the enemies of ray country. At the election 
for Congress, in 1862, I was not allowed to 
vote; I was arrested on the morning of the 
election. I took the oath of allegiance at 
the time they were voting on the adoption of 
the new constitution, and voted that day. 
The last time I voted for member of Congress 
was for Harris; then, for the first time in 
my life, I voted the Democratic ticket. I 
have been an old-line Whig. I have suf- 
fered from the war in the loss of my negroes; 
but I never, to my recollection, made any 
complaint about that. When the State de- 
clared her new constitution, I was willing for 
them to go. DEFENSE OF MRS. MARY E. SURRATT 
129 
Richard Sweeney. 
James Ltjsby. 
For 'he Defense.—June 12. 
For the Defense.—June 2. 
By Mr. Aiken. 
1 met John* M. Lloyd at Marlboro on the 
14th of April last, and rode back with him 
part of the way toward his home. He was 
considerably under the influence of liquor, 
and he drank on the road. 
By Me. Aiken. 
I reside in Prince George’s County, Md. I 
was at Marlboro on Good-Friday, the day 
that Mr. Lincoln was killed. Mr. Lloyd 
and I returned from Marlboro to Surratts- 
ville together. He was very drunk on that 
occasion; I got there about a minute and a 
half, perhaps, before he did. I drove to the 
bar-room door, and he went round to the front 
door. I saw Mrs. Surratt just as she was about 
to start to go home. Her buggy was standing 
there at the gate, when we drove up, and 
she left in fifteen or twenty minutes after 
that 
By Mr. Clampitt. 
I am acquainted with J. Z. Jenkins, the 
brother of Mrs. Surratt. I have known him 
for ten years, and can speak confidently of 
bis reputation as a loyal man. At the outset 
of these difficulties he was a zealous Union 
man. A Union flag was erected within one 
hundred yards of where I boarded, and there 
was a rumor that it was to be cut down, and 
Jenkins was one of the men who took a gun 
and remained there all night for the purpose 
of guarding the flag. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
When I got out of my wagon, I went into 
the bar-room to get a drink; and I do not 
know what took place in the mean time, 
when Lloyd went round the house. lam 
quite sure Lloyd was drunk. 1 had been 
quite smart in liquor in the course of the day 
before I met Lloyd, and then took drinks 
with Lloyd; but I do not think I was as 
tight as he; nor do I think I am altogether 
mistaken as to who was drunk that day. I 
did not see him take the fish out of his 
buggy. He did not drive into the yard; he 
drove to the front gate, I know; I did not 
see him go out. It is twelve miles from Marl- 
boro to Surrattsville—about two and a half 
hours’ drive. We drove along pretty brisk. 
Cross-examined by the Judge Advocate. 
Lloyd returned from Marlboro to Sur- 
rattsville in his buggy; I was on horseback. 
We both drank; I do not know which drank 
the most; we drank from the same bottle. 
Lloyd was excited in his conversation and 
deportment generally; but he kept the road 
straight, and I did not see him deviate from 
it. It was six miles to Surrattsville from 
where we parted. I thought he could take 
care of himself. 
Q. Have you been entirely loyal yourself 
during the rebellion ? 
A. I suppose so, and think so. I have 
never done any thing inimical to the interests 
of the Government, that I know of. 
Q. Have you never desired the success of 
file rebellion ? 
J. Y. Piles. 
For the Defense.—June 13. 
By Mb. Aiken. 
A. No, sir; I never expressed any desire 
for its success. 
I live about ten miles from Washing- 
ton, in Prince George’s County, Md. I am 
personally acquainted with J. Z. Jenkins, 
and have known him ever since I was a 
little boy. I regarded him, formerly, as one 
of the most loyal men in that part of the 
country. I thought that he and I were two 
of the most loyal men there, at the begin- 
ning of the rebellion. A flag was raised, sent 
down, as I understood, by Mr. John Murphy, 
the butcher, who lived at the Navy Yard, 
Washington, about a month before the riots 
in Baltimore. A little while after, the news 
was spread, that a party from the Southern 
States, or from the lower counties of Mary- 
land, were coming to cut it down. About 
twenty men were raised in our neighbor- 
hood, who armed themselves to protect the 
flag, and Mr. Jenkins, I believe, was among 
the number who staid with us that night. 
I have never heard a disloyal sentiment 
from Mr. Jenkins, nor do I know of any 
overt acton his part that might be construed 
into disloyalty; but I have not been in his 
company of late. About six months ago I 
Q. Have you always desired that the Gov- 
ernment should succeed in putting down the 
rebellion ? 
A. I can not say but what my feelings 
were neutral in the matter. 
Q. Are you quite sure they were neutral ? 
It is very difficult to be neutral in such a war 
as this has been. 
A. I think I was about as strictly neutral 
as anybody else. 
. Q. When you examine your feelings closely, 
you can recall them, have you not an im- 
pression that at some time or other you 
preferred that the rebellion should succeed? 
A. I may possibly have done so. I think 
I exercised a neutral feeling very nearly. 
Q- You were neutral in your conduct? 
A. And in my feelings—as strictly neutral, 
I think, as anybody else. 
Q- You think you were perfectly indif- 
ferent whether the Government succeeded or 
failed. 
■A I waa 130 
THE CONSPIRACY TRIAL. 
had some conversation with him, when he 
said he was as good a loyal man as I was. 
Whether he regarded me disloyal, and him- 
self too, or whether he regarded ua both 
loyal, I can not say. 
had left the State of Maryland, hut who had 
not lost their residence, to return to Mary- 
land to vote the Union ticket. 
I do not know of my own knowledge, but 
it was generally understood by those acting 
with the administration, that after the first 
battle of Bull Run, Mr. Jenkins procured a 
United States flag and hoisted it in his 
county, and that, when certain rebel sym- 
pathizers threatened to haul it down,’ he 
gathered a hand of from twenty to fifty Union 
men, and stood by it all night to protect it. 
I believe Mr. Jenkins to be a loyal man. 1 
never heard him utter an}7 sentiments against 
the Government of the United States, but he 
is very bitter on the administration on ac- 
count of the negroes. Outside of this, I 
believe him to be a truly loyal man. The 
people down there, who, in the early part of 
the war, acted with the administration, are 
now dissatisfied with it on account of its 
action on the subject of slavery, and there is 
scarcely a single friend of the administration 
in that county now. 
I never heard him express any desire for 
the success of the South; but I have heard 
him express himself very positively the other 
way. Mr. Jenkins is now under arrest at 
the Old Capitol Prison, but I do not know 
what for. 
Cross-examined by Assistant Judge Advocate 
Burnett. 
Since 1862 I have not heard any direct 
expression of opinion from him; but since his 
negroes have been taken from him, rumor 
says he is not quite so good a Union man as 
he was in the beginning. That is the gen- 
eral rumor. 
J. C. Thompson. 
For the Defense.—June 7. 
By Mr. Aiken. 
I live at Tee Bee, Prince George’s County, 
Maryland. I have known J. Z. Jenkins 
since 1861, and have always considered him 
a loyal man. 
Cross-examined by Assistant Judge Advocate 
Burnett. 
I do not know that I am a competent 
judge of loyalty; I have always considered 
myself loyal, and I think that such has 
been my reputation. I have never desired 
the success of the Southern rebellion, and 
have been all the time on the side of the 
Government 
Cross-examined by the Judge Advocate. 
Q. Do you not regard such bitter hostility 
to the Government, in a civil war like this, 
as in the interest of the public enemy, and 
therefore disloyal? 
A. Lately I have not considered him sound 
on the subject, and have had very little to 
do with him, except on account of former 
friendship in past times. I thought then he 
was as loyal as any man in the county, and 
regarded him as such, and treated him as a 
friend; but at the last election he voted for 
Harris, and was in with these other parties, 
and I did not like that state of affairs, and 
hence had not that political confidence in 
him that I had previously. 
Dr. J. H. Blandford. 
For the Defense.—June 7. 
By Mr. Aiken. 
I am acquainted with J. Z. Jenkins, and 
have regarded him as loyal to the Govern- 
ment of the United States. I never heard 
him express any disloyal sentiments; and at 
the beginning of the war, he was generally 
avoided by those who were not thoroughly 
in favor of the administration. Mr. Jenkins, 
I know, supported the opposition candidates 
to the Democracy. 
I know Andrew Kallenbach; he is a 
Democrat, and has always acted with the 
Democratic party. 
Miss Anna E. Surratt. 
For the Defense.—May 30. 
By Mr. Aiken. 
Wm. P. Wood. 
For the Defense.—June 5. 
By Mr. Clampitt 
I was arrested on the 17th of April, and 
have since been confined at Carroll Prison. 
I have met Atzerodt, the prisoner at the 
bar, at our house in Washington City. I do 
not think he remained over night but once. 
He called very often, and asked for that man 
Weichman. He was given to understand 
that he was not wanted at the house; ma 
said she did not care about having strangers 
there. The last time Atzerodt was there, 
Weichman engaged the room for him, and 
asked ma to allow him to stay there all night. 
They were sitting in the parlor, and made 
several signs over to each other. Weichman 
and he then left the room, and presently 
I am at present Superintendent of the Old 
Capitol Prison. I know J. Z. Jenkins, and 
have been intimately acquainted with him 
for five years. In 1860 and 1861, Mr. Jen- 
kins was counted as one of the most reliable 
Union men in that district, and I know that 
up to 1862 he labored himself, and urged 
his friends to labor, and spent his means 
freely, to keep the State of Maryland in the 
Union. In 1862 and 1863, I understood that 
he came to this city to obtain voters who DEFENSE OF MRS. MARY E. SURRATT. 
131 
Weichman came back and asked ma if she 
vv°uld have any objections to Atzerodt re- 
gaining there that night; that he did not 
eftl at home at an hotel. After thinking for 
®onie time, ma said, “Well, Mr. Weichman, 
have no objections.” Mr. Weichman was 
a boarder at my mother’s house, and was but 
t°o kindly treated there. It was my mother’s 
habit to sit up for him at night, when he was 
®ut of the house; she would sit up and wait 
him the same as for my brother. 
Payne first came to our house one night 
after dark, and left very early the next morn- 
That was not long after Christmas, 
oome weeks afterward, he came one night 
we were all in the parlor. Weichman 
to the door and brought the gentleman 
jn, and I recognized him as the one who had 
been there before under the name of Wood. 
I did not know him by the name of Payne at 
all. I went down stairs to tell ma that he 
was there. She was in the dining-room. She 
said she did not understand why strange per- 
sons should call there, but she supposed their 
object was to see my brother, and she would 
treat them politely, as she was always in the 
habit of treating every one. He called two or 
three times after that—perhaps the same 
week, or two weeks after—l can not say 
exactly. On this visit, as we were sitting in 
the parlor, he said, “ Mrs. Surratt, if you have 
uo objection, I will stay here to-night; I in- 
tend to leave in the morning.” And I believe 
he did leave the next morning. 
I have met John Wilkes Booth at our 
house. The last time he was there was on 
Iriday, the 14th, I think; I did not see him ; 
I heard he had been there. 
My mother went to Surrattsville on the 
Friday of the assassination, and I think her 
carriage was at the door at the time Mr. 
Booth called. I heard some one come up 
the steps as the buggy was at the door, and 
was ready to start. Ma had been talk- 
ing about going during the day, before Booth 
came, and perhaps the day before; she said 
she was obliged to go on some business in 
regard to some land. Mr. Booth only staid 
a very few minutes. He never staid long 
when he came. 
lion. My father gave them to me before his 
death, and I prize them on his account, if on 
nobody else’s I also had in the house pho- 
tographs of Union Generals—of General 
McClellan, General Grant, and General Joe 
Hooker. 
The last time I saw my brother was on 
Monday, the 3d of April; I have never seen 
him since. He may have been on friendly 
terms with J. Wilkes Booth. Mr. Booth 
called to see him sometimes. I never asked 
him what his friendship was to Booth. One 
day, when we were sitting in the parlor, Booth 
came up the steps, and my brother said he 
believed that man was crazy, and he wished 
he would attend to his own business and let 
him stay at home. He told me not to leave 
the parlor, but I did. 
Assistant Judge Advocate Burnett. Miss 
Surratt, you ought to be cautioned here, that 
the statements or conversations of Mr. Sur- 
ratt, or Mr. Booth, or your mother, are not 
competent testimony. You should state sim- 
ply what was done, and not give the state- 
ments of the parties; and the counsel ought 
not to ask for such statements. 
Mr. Aiken. [To witness.] In giving your 
evidence you will avoid giving statements 
that you heard your brother make, and the 
language he used. State only what you 
know, as far as your knowledge goes. 
My brother was at St. Charles’s College, 
near Ellicott Mills, Maryland, in 1861; but 
he was not a student of divinity. He was 
there, I think, three scholastic years, and 
spent his vacations, in August, at home. 
During the time he was not at home for 
vacation he was at college. 
I never, on any occasion, heard a word 
breathed at my mother's house of any plot 
or conspiracy to assassinate the President of 
the United States; nor have I ever heard 
any remarks in reference to the assassination 
of any member of the Government; nor did 
I ever hear discussed, by any member of the 
family, at any time or place, any plan or 
conspiracy to capture the President of the 
United States. 
My mother’s eyesight is very bad, and she 
has often failed to recognize her friends. She 
has not been able to read or sew by gaslight 
for some time past. I have often plagued 
her about getting spectacles, and told her she 
was too young-looking to wear spectacles 
just yet; and she has replied that she could 
not read or see without them. 
„JA.yytiiro, called “ Morning, Noon, and Night,” was 
exhibited to the witness.] 
That, picture belonged to me; it was given 
to me by that man Weichman, and I put a 
photograph of John Wilkes Booth behind it. 
I went with Miss Honora Fitzpatrick to a 
daguerrean gallery one day to get her picture ; 
we saw some photographs of Mr. Booth there, 
and, being acquainted with him, we bought 
two and took them home. When my 
brother saw them, he told me to tear them 
up and throw them in the fire, and that, if I 
did not, he would take them from me. So I 
«!d them. I owned photographs of Davis, 
Stephens, Beauregard, Stonewall Jackson, 
and perhaps a few other leaders of the rebel- 
My brother left college in 1861 or 1862, the 
year my father died. I was at school at 
Bryantown from 1854 until 1861; I left on 
the 16th of July. Surrattsville, where we 
formerly resided, is on the road between 
Washington and Bryantown. 
I never saw Dr. Samuel Mudd in my 
mother’s house in Washington. 
By Mr. Ewing. 132 
THE CONSPIRACY TRIAL. 
Recalled for the Defense.—June 7. 
By Mr. Aiken. 
Recalled for the Defense.—June 9. 
By Mr. Aiken. 
[Submitting to the witness the card containing the arms 
of the State of Virginia, with the motto “Sic semper 
tijrannis.”] 
I was at communion with Mrs. Surratt on 
Thursday morning, the 13th of April. I was 
present at the time of Payne’s arrest at Mrs. 
Surratt’s house. I did not recognize him at 
the house, but I did at General Augur’s 
office, when the skull-cap was taken offi his 
head. 
I recognize that card; it belongs to me, 
and was given me by a lady about two and 
a half years ago. 
We commenced moving from Surrattsville 
to the house on II Street about the Ist of 
October last; I went there myself about the 
first week in November. We have occupied 
no other house in Washington. 
I have never seen Judson Jarboe at our 
house; he never visited the house at all. I 
have seen him pass in his buggy in the coun- 
try, but I have never seen him to speak to 
him. I never saw Dr. Samuel Mudd at my 
mother’s house in the city, nor heard of his 
being there. 
By Mr. Ewing. 
I know Mrs. Surratt’s eyesight is defective; 
I have often threaded a needle for her when 
she has been sewing during the day, because 
she could not see to do it herself, and I have 
never known her to sew or read by gaslight. 
I never saw Judson Jarboe until 1 got ac- 
quainted with him at Carroll Prison. I never 
saw Dr. Samuel Mudd at Mrs. Surratt’s 
house, and never heard his name mentioned 
there. 
Cross-examined, ly Assistant Judge Advocate 
Burnett. 
When we were at General Augur’s head- 
quarters, Mrs. Surratt w'as taken in another 
room. Payne was down behind the railing, 
in the room in which Miss Surratt, Miss 
Jenkins, and myself were. The only time 
that Mrs. Surratt was in the room with us 
was when Miss Surratt gave way to her feel- 
ings, because some one suggested that this 
man Payne was her brother, John H. Surratt 
I do not remember that Mrs. or Miss Surratt 
said there that they had never seen that 
man before. Miss Surratt remarked that 
that ugly man was not her brother, and she 
thought whoever called him so was no gen- 
tleman. He had his cap off at that time. I 
did not hear her deny that she had ever seen 
him. 
Miss llonora Fitzpatrick. 
For the Defense.—May 25. 
By Mr. Aiken. 
I boarded at the house of Mrs. Surratt, on 
II Street, from the 6th of October last till I 
was arrested. I met the prisoner Payne at 
breakfast one morning, I think in March or 
April last. I have seen him there twice; 
the last time was in March. 
I know the prisoner, Atzerodt. I have 
seen him at Mrs. Surratt’s, but I do not know 
in what month. He only stayed there a 
short time; I think Mrs. Surratt sent him 
away. I occupied the same room as Mrs. 
Surratt, and Miss Surratt slept in the same 
room for a time. 
I do not remember whether the officers 
called Mrs. Surratt out to see Payne at the 
time of his arrest at the house; I remained 
in the parlor all the time. 
[The picture, “ Morning, Noon, and Night,” was exhib- 
ited to the witness.] 
I know this picture; it belonged to Miss 
Surratt, and was kept on the mantle-piece, 
but I do not know of any photograph placed 
behind it. I bought a photograph of J. 
Wilkes Booth, and took it to Mrs. Surratt’s 
house; Miss Anna Surratt also bought-one. 
The last time I saw Mr. Booth at Mrs. Sur- 
ratt’s was on the Monday before the assas- 
sination. John Surratt had left a fortnight 
before, and I never saw him after. 
I am acquainted with Louis J. Weichman; 
he was treated in Mrs. Surratt’s house more 
like a son than a friend. 
Mrs. Eliza Holahan 
For the Defense.—May 25. 
By Mr. Aiken. 
I boarded with Mrs. Surratt from the 7th 
of February until two days after the assas- 
sination. I know the prisoner at the bar 
who called himself “Wood,” [Payne;] I 
saw him at Mrs. Surratt’s in February, and 
the second time, I think, about the middle of 
March. He was introduced to me as Mr. 
Wood, but I never exchanged a word with 
him on either visit. I asked Miss Anna Sur- 
ratt who he was, and she said he was a Mr. 
Wood, a Baptist minister. I said I did not 
think he would convert many souls; he did 
not look as if he would. He was there but 
one night on his first visit, and on the sec- 
ond, two or three days, I think; it was after 
the inauguration. I have seen the prisoner 
Atzerodt at Mrs. Surratt’s, though I never 
Mrs. Surratt has complained that she could 
not read or sew at night on account of her 
sight. I have known of her passing her 
frfend, Mrs. Kirby, on the same side of the 
street, and not see her at all. 
The photographs of Stephens, Beauregard, 
ind Davis did not belong to me. 
Cross-examined ly the Judge Advocate. DEFENSE OF MRS. MARY E. SURRATT. 
133 
beard of him by that name; he called him- 
self, and the young ladies called him, “ Port 
lobacco.” I saw him come in at times, and 
be dined there once or twice. I heard Mrs. 
Surratt say she objected to Mr. Atzerodt; she 
did not like him, and that she would rather 
be did not come there to board. I can not 
Bay that I was intimate with Mrs. Surratt; 
I liked her very much; she was a very kind 
lady to board with; but I was more intimate 
With her daughter than I was with her. 
Q. In all the time you boarded in her 
bouse did you ever hear Mrs. Surratt say any 
thing with reference to the existence of a 
conspiracy to assassinate the President ? 
Assistant Judge Advocate Bingham ob- 
jected to the question. The law so hedges 
about this matter of crime that those who are 
charged with it are never permitted to prove 
their own declarations in their own favor, be- 
cause, if it were so, the greatest criminal that 
ever cursed the eai’th and disgraced our com- 
mon humanity could make an abundant 
amount of testimony out of the mouth of the 
*aost truthful people living. 
Mr. Aiken replied, that if the witness had 
beard Mrs. Surratt make any remarks with 
reference to a conspiracy, and disclosed to her 
any knowledge of that fact, it would be val- 
uable evidence on the part of the Government, 
and it would be just as valuable to the defense 
If she did not. 
rattsville. I was present one evening, when 
she handed me a newspaper to read for her; 
and I called one evening at her house, about 
the 20th of February, and, although the gas 
was lit in the hall, she failed at first to 
recognize me 
I met Louis J. Weichman once at Mrs 
Surratt’s; I remained there two days or more. 
I had no particular business, and I went to 
Mrs. Surratt’s because I knew them, and 
because it was cheaper than at an hotel. 
When I saw Mr. Weichman I showed him 
a cipher, and how to use it. Weichman then 
made one himself. 
[The cipher found among Booth’s effects was exhibited 
to the witness.] 
The cipher I showed to Mr. Weichman 
was the same as this. 
Q. Did Mr. Weichman at that time give 
you any information in regard to the num- 
ber of prisoners that we had on hand? 
Assistant Judge Advocate Bingham objected 
to the question, inasmuch as Mr. Weichman 
was never asked any question in relation*to 
that matter in his cross-examination. 
The question was waived. 
I had some conversation with Mr. Weich- 
man with respect to his going South; he 
said he would like to go South, or intended 
to go South. 
Q. Did he say any thing, in connection 
with his wishes to go South, of his sympa- 
thies ? 
The question was waived. 
I have seen John Wilkes Booth at Mrs. 
Surratt’s three or four times. When he called, 
be spent most of his time in company with 
Mrs. Surratt, I believe; he would ask for Mr. 
John Surratt, as I understood; if he was not 
there, for Mrs. Surratt. 
Mrs. Surratt’s eyesight was defective. I 
never saw her read or sew after candlelight, 
b went to Church with Mrs. Surratt during 
Lent very often; she was very constant in 
ber religious duties. 
. I have not seen John Surratt since early 
lQ March, when he was last at home. 
Assistant Judge Advocate Bingham ob- 
jected to the question, inasmuch as Mr. 
Weichman had not been asked, on his cross- 
examination, whether he had stated any thing 
to Mr. Howell about his sympathies at that 
time and place. 
The question was waived. 
Mr. Weichman said he would like to go 
South with me, but he was not ready, he said, 
to go at that time; but as soon as he got his 
business arranged he was going. He asked 
me if I thought he could get a position in 
Richmond; I told him I did not know whether 
he could or not, as the wounded and invalid 
solders generally had the preference in the 
offices there by an order of the War Depart- 
ment. He told me that his sympathies were 
with the South, and that he thought it would 
ultimately succeed. I believe he said he had 
done all he could for that Government—re- 
ferring to the South. We had some conver- 
sation in regard to the number of prisoners 
on hand, and he stated to me the number of 
Confederate prisoners the United States Gov- 
ernment had on hand, and the number they 
had over that of the Confederate Government. 
I doubted it at the time, but he said it would 
not admit of doubt; that he had the books 
in his own office to look at. 
In that conversation, I think, Mr. Weich- 
man said he had done all he could for the 
South; he expressed himself as a friend of 
the South, as a Southern man or a secesh 
sympathizer would. 
George B. Woods. 
vor the Defense.—May 25. 
I reside in Boston. I have been in the 
habit of seeing, in Boston, photographs of 
■be leaders of the rebellion exposed for sale, 
Lie same as Union celebrities. 
Q; Have you not seen them in the pos- 
session of persons supposed to be loyal ? 
. Assistant Judge Advocate Bingham ob- 
jected to the question as immaterial. 
Mr. Aiken waived the question. 
For the Defense.—May 27. 
bJy name is Augustus Howell. I first be- 
acquainted with Mrs. Surratt and John 
• Lurratt about a year and a half ago, atSur- 
Augustus S. Howell. THE CONSPIRACY TRIAL. 
Cross-examined by Assistant Judge Advocate 
Burnett, 
in Richmond but to see some friends, and to 
get some drafts. Our Maryland boys gen- 
erally sold drafts, and I used to go down 
to Richmond occasionally to buy drafts for 
them. 
Before the war, I resided principally in 
Prince George’s County, Md.; for about'two 
years, off and on, I have lived in King 
George County, Ya. 
Q. What has been your business for the 
last year and a half? 
Mr. Aiken. I object to the question. In 
the examination in chief, the witness was 
asked nothing at all with reference to his 
business, one way or the other. I do not 
object to his stating it, if he wishes to do so, 
but I do not think it is relevant. 
Q. On whom did you buy drafts? 
A. That would be implicating others, and 
I do not wish to answer that question. 
Any thing relative to myself I will answer 
willingly. 
Assistant Judge Advocate Burnett. Pro- 
tection on the stand only applies to yourself, 
not to others. 
Witness. They were upon some of my 
friends in Maryland. They were not upon 
any of the accused, or any person in Wash- 
ington. I never carried any dispatches in 
my life. 
I have been at Richmond about half a 
dozen times since I have known the Surratts. 
I can not say that I was known to my 
friends as a blockade-runner. 
Assistant Judge Advocate Burnett. The 
Court has the right to know the status of the 
witness. We have a right to know whether 
his employment was loyal or disloyal, and 
whether that fact was known to the family 
of Surratts. It is always competent to give 
to the Court the full status of the witness 
during the time about which he testifies. It 
is but the ordinary course of cross-examina- 
tion. 
My name is Augustus Howell; that is my 
correct name. I generally write my name 
A. S. Howell. “S” stands for Spencer. My 
friends call me Spencer, but I seldom use 
the “S” in my name. 
The cipher I showed to Weichmann I 
learned out of a magician’s book. I have 
been acquainted with it for six or seven 
years. 
General Wallace. I should like to hear 
the reason of the objection. 
Mr. Aiken. It is objected to, first, because 
no question was asked the witness in the ex- 
amination in chief, in reference to what his 
business has been; and, secondly, because it 
is entirely irrelevant to the issue now before 
us, in every way and shape. 
The Commission overruled the objection. 
Mr. Aiken. I now object to the witness 
answering the question. He is not obliged 
to do so, if his answer will tend in any way to 
criminate himself as to any thing in which 
he has been engaged; and if he does not 
wish to answer the question, he has the privi- 
lege not to do it. 
Assistant Judge Advocate Burnett. If it 
is placed on the ground of personal security, 
if the witness claims that privilege at the 
hands of the Court, he can make that claim, 
and I will not press that portion of the ques- 
tion. [To the witness.] It is your right, and 
I apprise you of it now, to claim protection at 
the hands of the Court against any matter 
that will criminate yourself. 
Witness. I have had no particular occu- 
pation since I came out of the Confederate 
army. 1 was in the First Maryland Artillery 
of the Confederate service, during the first 
year of the war, up to July, 1862, I believe. 
Since then I have not been employed in any 
particular business. I have been to Rich- 
mond occasionally. Sometimes I went once 
a month, sometimes once in two or three 
months. I do not think I have been but 
twice the last year. I was there in Decem- 
ber, and again in February, I think. Some 
one might have gone with me in December, 
but Ido not remember who it was. In Feb- 
ruary, some half dozen accompanied me, but 
they were principally from the neighborhood 
in the county. I had no particular business 
I never met a person by the name of Mrs. 
Slater at Mrs. Surratt’s house. I met a lady 
by that name in Washington, about the 20th 
or 22d of February, and had some conver- 
sation with her in front of Mrs. Surratt’s house. 
We went to Virginia together. John H. Sur- 
ratt was with her in the buggy. I met Mrs. 
Slater in Richmond about the last of Feb- 
ruary. It was soon after I saw her in front 
of Mrs. Surratt’s house, that I met her in 
Richmond. 
I staid about two days and a half at Mrs. 
Surratt’s in February. I told them that I 
had been to Richmond. I do not know that 
they knew my business. I had some con- 
versation with Mrs. Surratt, and judged she 
knew I was from Richmond. I think Atze- 
rodt was at Mrs. Surratt’s house during the 
time I was there, but I never saw Payne. 
I used to meet Dr. Mudd occasionally, 
when I was at Bryantown. He never sent 
messages by me to Richmond, nor did I 
bring any back to him. I was at his house 
about a year ago, but never made it a stop- 
ping-place. 1 I had lost a pistol which I left 
at a house in Bryantown, and I asked him 
to go there and get it for me, but he did not. 
I was going up into the country, and did not 
miss the pistol until I was passing Dr. Mudd’s 
place. It was because his house was tjie 
nearest that I went in and asked him to get 
it for me. 
I brought one draft from Richmond, from 
young Marriott, in Prince George’s County, 
Maryland, for his sister, of S2OO, and for which 
I paid at the rate of SBOO of Confederate for DEFENSE OF MRS. MARY E. SURRATT. 
135 
SIOO of United States money. Another from 
young Tolson, which I have not yet collected, 
and another from a young man by the name 
of Chew, on his brother in Anne Arundel 
County, 
I do not know any thing of Weichman’s 
having quarreled with the Surratt family, 
because he was loval and they were disloyal, 
nor did I know t'iiat it was his intention to 
glean from me all I knew for the purpose of 
turning me over to the military authorities; 
if so, he did not succeed. I never took the 
oath of allegiance to the United States. 
days before the second, and that I received 
on the day of the assassination; it was that 
which took me to Mrs. Surratt’s on that day. 
He inclosed them in letters to me. I answered 
his letters to me, and left them with his mother, 
as I supposed she would be glad to hear from 
him. I have not seen them since. 
Rev. B. F. Wiget. 
For the Defense.—May 25. 
By Mr, Aiken. 
I am President of the Gonzaga College, F 
Street, between Ninth and Tenth. It is about 
ten or eleven years since I became acquainted 
with Mrs. Mary E. Surratt. I knew her well, 
and I have always heard every one speak very 
highly of her character as a lady and as a 
Christian. During all this acquaintance, noth- 
ing has ever come to my knowledge respecting 
her character that could be called unchristian. 
I frequently saw Ur. Mudd at Bryantown 
before the war. I have never had any com- 
munication with him, except in regard to that 
pistol.* 
By Me. Ewing. 
Miss Anna Ward. 
For the Defense.—June 3. 
By Me. Aiken. 
Q. Is there an institution in the city of Rich- 
mond for theological studies? 
Assistant Judge Advocate Bingham. lob 
ject to that question as wholly immaterial. 
What is the necessity of inquiring into that? 
You might as well ask whether it was an 
octagon or not; whether it was two stories 
or forty stories high. If immaterial questions 
were allowed to be asked and answers ob- 
tained, and the witnesses contradicted, the 
case would never end, if the Court lived to be 
as old as Methusalah, provided a succession 
of counsel could be obtained to keep up the 
fire. Wharton’s American Criminal Law, p. 
434, section 817, says: “ The credit of a wit- 
ness may be impeached by proof that he has 
made statements out of court contrary to what 
he has testified at the trial. But it is only in 
such matters as are relevant to the issue that 
the witness can be contradicted. Therefore, 
a witness can not be examined as to any dis- 
tinct collateral fact irrelevant to the issue for 
the purpose of impeaching his testimony after- 
ward by contradicting his statements.” 
Mr. Aiken said he would recall the recol- 
lection of the learned Assistant Judge Advo- 
cate to the fact that the answer of Mr. Weich- 
man was on the record that he was a stu- 
dent of divinity, and that he desired to go to 
Richmond to continue his studies there. Mr, 
Weichman was interrogated as to these 
points, and the foundation was thus laid for 
impeaching his credibility as a witness. 
These questions to the witness now on the 
stand (which I have a right to put) are for 
that very purpose. 
General Wallace. The witness Weichman 
did not state that there was a theological 
academy, or any thing of that kind, in Rich- 
mond. 
Mr. Aiken. He said that he belonged to 
that diocese, and wanted to go to that diocese 
to finish his studies. 
The Judge Advocate. He said nothing 
about a theological school there. He said he 
I reside at the Female [Catholic] School, 
on Tenth Street, Washington. I have been 
acquainted with Mrs. Surratt between six and 
eight years. I know Mrs. Surratt’s eyesight 
to be defective; she has failed to recognize 
me on the street. On one occasion, at her 
bouse, 1 gave her a letter to read, and she 
handed it back, saying she could not see to 
read by gaslight. lam near-sighted myself. 
On one occasion something was pointed out 
to me, and I was laughed at for not seeing 
ft, as it was pretty close by, and Mrs. Surratt 
remarked that she supposed I was something 
bke herself; I could not see; and that she 
labored under the same difficulty. 
I have not been very intimate with Mrs. 
Surratt. She always bore the character of a 
perfect lady and a Christian, as far as my ac- 
quaintance with her extended. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
My last visit to Mrs. Surratt’s house was on 
day of the assassination. Some time in 
February or March, perhaps, I went to the 
Herndon House to ask if there was a vacant 
room. I did not engage a room; I simply 
'rent there to ask if there was a vacant room. 
I said nothing about its being for a delicate 
gentleman, for I did not known for whom it 
intended. I have met Mr. Weichman, 
Mr. Holahan, and Mr. Booth at Mrs. Surratt’s, 
but do not know that I ever met any of the 
Prisoners at the bar there. I can not see them 
'rell enough to know them, but do not think 
I have. 
I received two letters from John H. Sur- 
ratt, post-marked Montreal, C. E., for his 
mother. I do not recollect the date of the 
hrst I received; it was probably one or two 
e not present the contradictions and prevarica- 
each 0t thls witness without occupying many pages. In 
control8-® Swe his last statements, many of them flatly 
raaictmg those made a few moments before. 136 
THE CONSPIRACY TRIAL. 
wished to go there for the purpose of continu- 
ing his theological studies. 
Mr, Aiken. The inference was, if he was 
going to complete his theological studies, that 
there was a school there. 
Rev. Peter Lanihan. 
For the Defense.—May 26. 
Assistant Judge Advocate Bingham. You 
do not propose to contradict inferences I sup- 
pose ? 
The Commission sustained the objection. 
I am a Catholic priest, and reside near 
Beantown, St. Charles County, Maryland. I 
have been acquainted with Mrs. Mary E. 
Surratt, the prisoner at the bar, for about 
thirteen years; intimately so for about nine 
years. In my estimation, she is a good 
Christian woman, and highly honorable. I 
never heard her on any occasion express 
disloyal sentiments. 
By Me. Aiken. 
Cross-examined by the Judge Advocate. 
I have a personal knowledge of her gen- 
eral character as a Christian, but not of her 
character for loyalty. My visits were all 
short, and political affairs were never dis- 
cussed; I was not her pastor. I first became 
acquainted with Mrs. Surratt from having 
had two of her sons with me. I have seen 
her perhaps once in six weeks. I can not say 
I remember hearing her utter a loyal senti- 
ment since the beginning of the rebellion; 
nor do I remember hearing any one talk about 
her as being notoriously disloyal before her 
arrest. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
Mrs. Surratt’s character in her neighbor- 
hood is that of a good Christian woman. I 
have conversed with her since the rebellion 
in regard to current events and public affairs, 
and do not remember having heard any 
expression of disloyal sentiments, and I have 
been very familiar with her, staying at her 
house. Ido not remember having heard her 
reputation for loyalty spoken of. 
Rev. Feancis E. Boyle. 
For the Defense.—May 25. 
Rev. N. D. Young. 
For the Defense.—May 26. 
By Mr. Aiken. 
lam a Catholic priest. My residence is at 
St. Peter’s Church. I made the acquaintance 
of Mrs. Mary E. Surratt eight or nine years 
ago, and have met her perhaps three or four 
times since. I have heard her always well 
spoken of as an estimable lady, and never 
heard any thing to her disadvantage. I have 
never heard her utter any disloyal sentiments. 
By Mr. Aiken. 
I am a Catholic priest; I reside at the 
pastoral house of St. Dominick’s Church, on 
the Island, on Sixth Street, in Washington 
City. I became acquainted with Mrs. Mary 
E. Surratt about eight or ten years ago. My 
acquaintance has not been intimate. I have 
occasionally seen her and visited her. I had 
to pass her house about once a month, and 
generally called there—sometimes staid an 
hour. Her reputation, as far as I have 
heard, is that of a Christian lady, in every 
sense of the word. I have heard her spoken 
of with the greatest praise, and never heard 
any thing of her but what was highly favor- 
able to her character. She never expressed 
any disloyal sentiments to me. 
Cross-examined by the Judge Advocate. 
I have never heard much of her sentiments, 
and do not undertake to say what her reputa- 
tion for loyalty is. 
Rev. Charles H. Stonestreet. 
For the Defense.—May 25. 
By Me. Aiken. 
I am the pastor of St. Aloysius Church in 
this city. I first became acquainted with 
Mrs. Mary E. Surratt twenty years ago. I 
have only occasionally seen her since. Dur- 
ing the last year or two, I have scarcely seen 
her. I have always looked upon her as a 
proper Christian matron. At the time of my 
acquaintance with her, there was no question 
of her loyalty. 
Cross-examined by the Judge Advocate. 
I never heard her speak upon current 
events in any manner, loyal or disloyal. 
William L. Hoyle. 
For the Defense.—May 26. 
By Mr. Aiken. 
I reside on Missouri Avenue, Washington. 
I am not particularly acquainted with Mrs. 
Surratt. I have a store acquaintance only; 
I know nothing of her, and have heard 
nothing against her. I never heard her 
express any disloyal sentiments ; I never had 
any political conversation with her. 
i know John H. Surratt by sight. I last 
saw him in this city about the end of Feb- 
ruary or the beginning of March. Just 
Cross-examined by the Judge Advocate. 
I do not remember having seen Mrs. Sur- 
ratt, though I may have done so transiently, 
since the commencement of the rebellion; 
and of her character for loyalty since then 
I know nothing but what I have read in the 
papers. DEFENSE OF MRS. MART E. SURRATT 
137 
prior to the draft I saw him in the store. In 
appearance he is rather delicate looking; 
about six feet in iiight, of light complex- 
10rb and about twenty-two or twenty-three 
years of age. 1 think he had neither goatee 
n9r moustache when I saw him, though I 
"dll not be positive. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
, I never heard Mrs. Surratt utter any polit- 
lcal sentiment, loyal or disloyal; it was only 
as a customer that I knew her. 
of the Rev, Mr. Evans in your community— 
in your neighborhood ? 
A. No, except by rumor. 
Q. In Evans’s neighborhood? 
A. Evans kept school in the neighborhood 
where I live, some ten or twelve years ago. 
Q. The question is as to his reputation now. 
A. I know nothing of his reputation now. 
By Assistant Judge Advocate Bingham. 
By Me. Aiken. 
John T. Hoxton. 
For the Defense.—June 13. 
By Mr. Aiken. 
Q. Has his reputation in his neighborhood, 
and where he has taught school, been noto- 
riously bad? 
Assistant Judge Advocate Bingham. I 
object to any such question. The witness 
has disclosed the fact that he does not know 
what the present reputation of Mr. Evans 
among his own neighbors for truth and verac- 
ity is. The law, in its humanity and in its 
justice, has said that no man called into a 
court as a witness shall be put upon trial for 
every act of his life; the question is as to his 
general reputation at the time he appears as 
a witness. Now it is proposed to go back 
ten years. It is supposed in law that in ten 
years a man can live down a slander. 
The question was waived. 
I have resided in Prince George’s County, 
Ataryland, about a mile from Surrattsville, 
lor the last forty-five or fifty years. I have 
known Mrs. Mary E. Surratt lor a number 
pf years, but mostly since she came to reside 
■a our neighborhood, about ten or twelve 
years ago. Since the rebellion I have not 
aiet her very frequently. Of late years I 
kave gone from home but little; I have not 
visited her house often, and when there I 
have staid but a short time. I never had 
aay conversation with her on political sub- 
jects. Her reputation in the neighborhood, 
as a truthful, Christian, kind lady, is very 
good, I believe. I never heard any thing to 
the contrary. 
I am very well acquainted with J. Z. 
Jenkins. He was a good Union man up to 
1862, I think. At the election of that year 
ke was arrested, and since then I have under- 
wood that he had secession proclivities. I 
relieve that he once assisted in defending the 
Union flag with arms in his hands. Mr. 
Jenkins was a good Union man two years 
a.go, but I have known very little of him 
W°ce that time. The report in the neighbor- 
hood is, that he is not at this time a very 
loyal man. I have never known of Mr. 
Jenkins committing a disloyal act, nor have 
I heard from him an expression unfriendly 
1° the Government, during the past two years. 
I know the Rev. W. A. Evans. There is 
ho Presbyterian Church in Prince George’s 
County that I know of. I can not exactly 
Say what is the reputation of Mr. Evans in 
that neighborhood for veracity. Mr. Evans 
Was impeached some years ago. 
Assistant Judge Advocate Bingham. You 
hoed not state that. 
Q- From your knowledge of his character 
and his reputation, would you believe him 
?n oath where any of his interests were 
Evolved ? 
. Assistant Judge Advocate Bingham ob- 
jected to the question. The witness should 
hrst state whether he knew the general repu- 
tation of Mr. Evans for truth among his 
Neighbors. 
Q- Are you acquainted with the reputation 
[See testimony of Eev. W. A. Evans, page 174.] 
William W. Hoxton. 
For the Defense.—June 13. 
By Me. Aiken. 
I reside about a mile from Surrattsville, 
in Prince George’s County, Md. I have 
known Mrs. Surratt, the prisoner at the bar, 
for about twelve years. She has always been 
looked upon as a very kind lady—to the sick 
especially—and a church-going woman. I 
have seen her very often during the last four 
or five years, and never heard her utter a 
disloyal word. 
I am acquainted with J. Z. Jenkins; he 
lives about a mile and a half from me. He 
was the strongest Union man I ever saw when 
the war broke out; but I have heard that he 
changed when he lost his negroes, though I 
never heard him say any thing disloyal when 
he lost them, and 1 have never heax-d of any 
disloyal or overt act of his against the Gov- 
ernment. 
Rachel Semus (colored.) 
For the Defense.—June 13. 
By Mr. Aiken. 
I have lived at Mrs. Surratt’s house for six 
years; was hired to her by Mr. Wildman. 
She treated her servants very well all the time 
I was with her; I never had reason to com- 
plain. I remember Mrs. Surratt has fed 
Union soldiers at her house, sometimes a 
good many of them; and I know that she 
always tried to do the best for them that she 
could, because I always cooked for them 138 
THE CONSPIRACY TRIAL. 
, She always gave them the best she had, 
and very often she would give them all she had 
in the house, because so many of them came. 
I recollect her cutting up the last ham she 
had in the house, and she had not any more 
until she sent to the city. 1 never knew of 
her taking any pay for it. I never heard her 
express herself in favor of the South ; if she 
used such expressions, I did not hear them. 
Her eyesight has been failing for a long time; 
very often I have had to go up stairs and 
thread her needle for her because she could not 
see to do it; I have had to stop washing to go 
up and thread it for her in the day-time. I 
remember one day telling her that Father 
Lanihan was at the front gate, coming to the 
house, and she said, “No, it was not him, it 
was little Johnny”—meaning her son. 
on his coat-collar. I did not notice whether 
he had whiskers or moustache, as I was more 
attracted by the clothing he had on. His 
appearance was very genteel, remarkably so. 
He did not look like a person just from a 
long journey; his clothing was clean, and 
remarkably nice and genteel. I can not say 
that I have had any connection with Mr. 
Surratt since he was quite a child; I knew 
him by sight, and we had just a bowing or 
speaking acquaintance as we passed each 
other. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
[A recent and large-sized photograph of John H. Surratt 
was handed to the witness.! 
This is a fair picture of John H. Surratt; 
the only thing I notice is that his hair is not 
cut as I noticed his on the 14th of April, but 
the shape of the coat, the style in which it is 
cut, is precisely the same. 
jßecalled for the Defense.—June 3. 
David C. Eeed, 
By Mr. Aiken. 
By Mr. Aiken 
The last time I saw John H. Surratt was 
about half-past 2 o’clock on the day of the 
assassination, the 14th of April last. I was 
standing on the stoop of Hunt & Goodwin’s 
military store, and Mr. Surratt was going 
past the National Hotel. I noticed his hair 
was cut very singularly, rounding a wav down 
If that picture had been shown to me with- 
out being told it was the picture of Mr. Sur- 
ratt, I do not know that I should recognize it, 
if I saw it hanging in a window; but if I 
looked at it and examined it, I should recog- 
nize it as John H. Surratt. It is a remark- 
able face. 
TESTIMONY IN REBUTTAL. 
For the Prosecution.—June 7. 
John Evan. 
a detective. I have never heard any thing 
said against his character relative to money 
matters, veracity, or any thing of that kind 
I have known Louis J. Weichman about a 
year, not perhaps intimately, but he has been 
quite friendly and communicative in his con- 
versation with me. As far as my knowledge 
goes, he has always borne a good character 
as a moral young man, and I know nothing 
against his character for truth. Ido not be- 
lieve he would tell a falsehood, and I would 
believe him whether under oath or not. 
As regards his loyalty, 1 only remember 
one conversation that distinctly bore on that 
question, and from that conversation my im- 
pression was that he rejoiced at the restora- 
tion of the Union. I have no recollection 
of his ever expressing sentiments that left a 
contrary impression on my mind. 
For the Prosecution.—June 7. 
Frank Stith. 
I have known Louis J. Weichman in- 
timately for about.sixteen months. His repu- 
tation as an honest, truthful man is very good 
indeed, as far as I have heard. I have never 
heard it questioned. We were both in the 
public service, in the same office. His repu- 
tation for loyalty was excellent, and he was 
open and outspoken in his friendship for the 
Government. He was a member of the vol- 
unteer military organization formed for the 
defense of this city. 
Cross-examined by Mr. Aiken. 
I was not a visiting friend of Mr. Weich- 
man; our meetings were casual. I am a 
clerk in the War Department, but in a differ- 
ent department to_ Mr. Weichman’s. He 
never represented himself to me as being in 
Confidential relations to that department as 
Cross-examined by Mr. Aiken. 
My relations to Mr. Weichman, outside of 
the office, were not very intimate. I never 
heard of his being a detective in the depart- 
ment. It might have been considered that 
a refusal to join that military organization 
would be equivalent to a dismissal from the 
office. Mr. Weichman did not always wear TESTIMONY IN REBUTTAL. 
139 
blue pantaloons about the office. I can not 
Bay that he only wore his blue pantaloons on 
drill and rainy days, or that he made use of 
hateful expressions on putting them on, and 
luimediately retired to change them for his 
citizen’s dress when drill was over. 
once at breakfast. The name by which 1 
knew him was Wood. John Wilkes Booth 
I have seen there frequently. I have seen 
him in the parlor with Mrs. Surratt and the 
young ladies. I never knew the prisoner, 
David E. Herold, to call there. I remember, 
about two weeks before the assassination, see- 
ing a carriage at Mrs. Surratt’s door, and a 
person, whom I afterward learned to be Mrs. 
Slater, got into it one morning as 1 was dress- 
ing. Mrs. Surratt was on the pavement talk- 
ing to this person as she was getting into the 
carriage. John Surratt was with this Mrs, 
Slater. This was the last time I saw John 
Surratt previous to the 3d of April. The last 
time I saw him was on the night of the 3d 
of April, the day on which the news of the 
fall of Richmond was received. He knocked 
at the door of my room at about 10 o’clock, 
after I was in bed, and wished me to exchange 
some gold for greenbacks; and I gave him 
$6O in paper for $4O in gold. He said he 
wanted to go to New York, and that he could 
not get it exchanged in time to leave by the 
early train in the morning. 
I never knew any thing of Mrs. Surratt’s 
defective eyesight while I lived with her; I 
do not remember its being alluded to by any 
member of the household. 
James P. Young. 
For the Prosecution.—June 7. 
I am in General Meig’s office in the War 
Department. I am intimately acquainted 
'vith Louis J. Weichman; have known him 
since 1856'. I was a college class-mate of his 
ut the Philadelphia High School; we both 
entered it in 1856. He remained at that col- 
iege for two or three years, then left and went 
to Maryland to another college. I frequently 
beard from him, and about eighteen months 
ago I met him in this city, and have been 
very intimate with him since. His reputa- 
tion as an honest and truthful man is excel- 
lent, and his character without any reproach 
whatever. I have had many conversations 
with him on political matters, and he was 
always most free and unequivocal in his ex- 
pressions of loyalty to the Government. I 
regard him as a very radical, loyal man. 
Doth he and I are members of the Union 
League. 
Cross-examined by Mr. Aiken. 
Cross-examined by Mr. Aiken. 
I have never known him as a detective in 
the employ of the Government. 
Atzerodt passed by a nickname when he 
was at Mrs. Surratt’s. I was usually from 
home in the evening, and therefore can not 
say whether Mrs. Surratt could read or sew 
by gaslight. I never heard any political con- 
versation at Mrs. Surratt’s, and never heard 
of any plot to capture the President, or of 
any plot or conspiracy to assassinate the Presi- 
dent, or any members of his cabinet; if I had, 
I should have endeavored to prevent it. 
For the Prosecution.—June 7. 
P. T. Hansford. 
I have known Louis J. Weichman since 
last September. I am a clerk in the War 
Department, and he was a clerk in another 
branch of the "War Department; he has 
visited me at my own rooms. His reputation 
for integrity and truth 1 have always regarded 
as being very good indeed. I have had very 
little conversation with him about political 
Matters, and am not competent to give an 
opinion as to his loyalty. 
By Mr. Ewing. 
Mr. Ewing. I have two or three questions 
to ask the witness. It is not properly a cross- 
examination; but I propose to treat him as 
my witness, if there is no objection. 
Assistant Judge Advocate Burnett, The 
gentleman announces that he desires to ask 
some questions, making the witness his own ; 
as we shall be entitled to rebut, there is no 
objection. 
I never saw or knew of Mr. Judson Jarboe, 
or of any person by the name of Jarboe 
coming to Mrs. Surratt’s, nor have I ever 
known of Dr. Mudd coming there; I never 
heard his name mentioned. 
Cross-examined by Mr. Aiken. 
Mr. Weichman and myself belonged to 
tbe same military organization, called the 
*ar -Department Rifles. A refusal to be- 
anie a member of that organization I un- 
derstood to be equivalent to a dismissal from 
°ffice. I have simply met Mr. Weichman as 
a friend. 
John T. Holahan. 
Mrs. Surratt’s house is on the south side 
of II Street, about forty-five feet from Sixth 
Street. It is the first house from the corner 
of Sixth Street; a brick house, painted 
drab or lead color, with a basement and a 
flight of eight or ten steps up to the front 
door. 
Q. Will you state whether Mr. Weichman 
gave himself up after the assassination of the 
President ? 
During the winter and spring, and up to the 
?l§bt of the assassination, I boarded with 
Mrs. Surratt. While there, I saw Atzerodt 
Several times, though I did not know him by 
‘bat name; he seemed to be with John Sur- 
ratt most of the time. I also saw Payne there 
For the Prosecution.—June 7. 140 
THE CONSPIRACY TRIAL. 
Assistant Judge Advocate Burnett. You 
need not state that. 
need not state any thing about his expres- 
sions. 
Mr. Ewing. My inquiry in regard to Mr. 
Weichman is for the purpose of proving acts 
in regard to him in association with Booth 
and other men connected with the conspiracy. 
1 want to show by his acts at that time that 
he was really a guilty party in the plot to 
kill the President. If I show that he was, 
and that instead of being indicted he appears 
here turning State’s evidence, it will tend very 
much, I think, to impair the value of his 
testimony. It is not the ordinary form of im- 
peachment of a witness by laying the foun- 
dation in his examination for contradicting 
his statements upon the stand. That is not 
the purpose, but it is to show that he occu- 
pied the position of a co-conspirator, and that 
he comes here clearing himself by being a 
swift witness against others. 
Assistant Judge Advocate Bingham. What 
the gentleman calls the act of Weichman 
never can be proved by any human being but 
by Weichman himself. He has testified that 
he was taken into custody. Nobody doubts 
it. He has testified that he was in custody 
when he was brought on the stand. Nobody 
questions it. It is utterly incompetent for the 
gentleman to prove any thing he said about 
that matter, until he has first laid the foun- 
dation by a cross-examination of Weichman, 
and then it is never competent, except by 
way of contradiction. There is no such foun- 
dation laid, and it is therefore incompetent 
and illegal at any stage of the case, either now 
or any other day. 
The Commission sustained the objection. 
I saw Mr. Weichman the morning after the 
murder; he was a good deal excited. About 
2 o’clock on that morning, Mr. McDevitt 
and Mr. Clarvoe, detectives of the Metro- 
politan Police, entered Mrs. Surratt’s house. 
Mr. Weichman opened the door for them. 
These officers were in the passage when my 
wife woke me up. Whether Mr. Weich- 
man was in bed or dressed when the officers 
called, Ido not know. I slept in the front 
room, and he in the back room on the same 
floor. 
By Assistant Judge Advocate Burnett. 
The excitement on account of the assassin- 
ation was very general throughout the city. 
It was some weeks after Mrs. Slater had been 
there that Mrs. Surratt told me the team in 
which John Surratt and Mrs. Slater went 
away was a hired one, and that John was 
then down in the country. When Mr. Howell 
was at Mrs. Surratt’s, it might have been 
about the Ist of March; he remained, I think, 
three or four days. 
James McDevitt. 
On the night of the assassination, I went 
to Mrs. Surratt’s house with Mr. Clarvoe, and 
several other officers of the department. We 
rang the bell, when a lady put her head out 
of the window and asked who was there. 
We said we wished to enter the house. As 
she retired, Mr. Weichman opened the door; 
he was in his shirt, which was all open in 
front; he had his pants on, and was, I think, 
in his stocking feet. He appeared as if he 
had just got out of bed. He had time from 
the moment we rang to dress himself to that 
extent. We did not arrest Mr. Weichman 
then, but we did subsequently when he came 
to our office. Mr. Weichman accompanied 
me to Canada; I took him to identify John 
H. Surratt. He went with me willingly in 
pursuit of the assassins, and was zealous and 
earnest in performing the part allotted him 
in the pursuit; and though he had every op- 
portunity to escape, he did not. I left him in 
Canada when I returned to New York. I 
could not state, from my own knowledge of 
John Surratt’s writing, that the entry on 
the register of the St. Lawrence Hall is his. 
For the Prosecution.—June 7. 
Cross-examined by Mr. Aiken. 
Mr. Weichman came to our office the 
morning after the assassination, with Mr. 
Holahan. Weichman made no confession in 
regard to himself We did not find John H. 
Surratt in Canada. I saw that he was reg- 
istered on the books of the St. Lawrence 
Hall as “John Harrison, Washington, D. 
C.,” on the 6th of April, and again by the 
same name on the 18th of April, but without 
any city or State address. I received the first 
intimation that John H. Surratt would be 
likely to be found in Canada from Mr. 
Weichman. Mrs. Surratt also told me, on 
the morning after the assassination, that she 
had received a letter from him on the 14th, 
dated in Canada, We were inquiring for her 
son, when she said she had not seen him for 
two weeks, and that there was a letter some- 
where in the house, which she had received 
from him that day. I asked her for the let- 
ter, but it could not be found. 
Q. Was Weichman then arrested? 
A. I took Weichman down myself to Super- 
intendent Eichards. 
Q. When? 
A. In the morning, after breakfast- 
ed When you took him down, did you know 
he was to be arrested? 
Assistant Judge Advocate Bingham ob- 
jected to the question, and it was waived. 
Q. How did you come to take him down ? 
A. From an expression he made to me. 
Assistant Judge Advocate Bingham. You 
need not state any thing he said. 
Q. Was that expression the expression of 
a wish to be delivered up? 
A. No, sir. 
Assistant Judge Advocate Bingham. You TESTIMONY IN REBUTTAL. 
141 
Andrew Kallenbach. 
he reckoned John was in New York hy that 
time. I asked him why he thought so, and 
he said, “My God ! John knows all about the 
murder; do you suppose he is going to stay 
in Washington and let them catch him ?” I 
pretended to be very much surprised and said, 
“Is that so ?” He'replied, “It is so, by God I 
I could have told you that this thing wras 
coming to pass six months ago.” Then he 
put his hand on my shoulder and said, “ Keep 
that in your own skin, my boy. Don’t 
mention that; if you do, it will ruin me for- 
ever.” The Mr. Nott who said this is the 
Joseph T. Nott who testified here to-day. I 
have heard him speak against the Govern- 
ment frequently, and denounce the adminis- 
tration in every manner and form; I heard 
him say that, if the South did not succeed, 
he did not want to live another day. 
I reside near Surrattsville, Prince George’s 
County, Maryland. On the evening of the 
17th of April last, I had a conversation with 
■Mr. J. Z. Jenkins, at Mr. Lloyd’s house at 
Surrattsville. He said that I was a liar; that 
be understood I had been telling some lies on 
I'hn, and if he found it to be true, he would 
give me the damnedest whipping I ever had. 
He further said that if I testified against him, 
any one connected with him, he would 
give me a damned whipping. This was said 
lr* the presence of Mr. Cottingham and Mr. 
Joshua Lloyd. Jenkins had been drinking, 
but I can not say that he was drunk on the 
occasion. I have known Mr. Jenkins about 
leu years, I think. He has always said in 
Uiy presence that he was a Union man; and 
1 have never heard him express any disloyal 
sentiments. I can not say what his reputa- 
tion for loyalty is in the neighborhood. 
For the Prosecution.—June 7. 
Cross-examined by Mr. Aiken. 
I have a brother-in-law named William 
Ward, who was in the Southern army; he 
was brought home under a guard of soldiers. 
I did not, on the occasion of his return, tell 
him that he had done just right, and that I 
wished I had been there to help him. I did 
not express opposition to his coming back in 
any way, nor did I express sentiments against 
the Government and friendly to the South. 
I begged my brother-in-law to take the oath 
and remain at home. 
At the breaking out of the rebellion, I re- 
sided in Charles County, and was a member 
of Captain Cox’s military company, which 
was organized before the war. It disbanded 
in the spring of 1861. I withdrew from it as 
soon as a rebel flag was brought and pre- 
sented to it. 
Cross-examined by Mr. Aiken. 
Nothing had been said by me that night to 
'uduce Jenkins to call me a liar. I have a 
son in the rebel army; he went there of his 
°'vn choice, and without my consent. He 
returned about three weeks ago. I judge he 
bus been in the rebel army during the war. 
J did not place any restrictions in the way of 
bis going. 
I have lived as a neighbor of Mrs. Surratt’s 
for many years. She had never been more 
|ban neighborly with me and my family, nor 
bus she given things to my family more than 
**uy neighbor will do for another. In politics 
1 have been a Democrat all my life. I have 
never expressed any disloyal sentiments, and 
have never said that I wished the South 
'vould succeed. 
I have known Mr. Jenkins for about five 
years, I think. I do not exactly recollect 
when I had any political conversation with 
him. The last time I talked with him was 
about the Ist of April last, at Upper Marlboro. 
He came to me and told me that Roby was 
applying for the position of constable in the 
county, and asked me why I did not apply 
for it. I told him I did not wish it. He said, 
“You ought to take it to keep Roby from 
getting it;” and he added that he had told 
the County Commissioners that if they ap- 
pointed Mr. Roby, or any other man of his 
party, he would spend every dollar he had to 
defeat them, if they became candidates for 
any other office. 
I did not vote at the last Congressional elec- 
tion ; I did not know any thing about either 
of the candidates. I have not been an active 
Union man. I have not meddled either way. 
The conversation with Mr. Nott occurred in 
the bar-room at Surrattsville, on the 15th of 
April. It was all the conversation we had at 
that time. He did not state what time he 
last saw John Surratt, nor what reason he 
had to believe him to be connected with the 
affair. Some gentlemen came in while he 
was talking with me, and he had to wait on 
E. L. Smoot. 
( I live in Prince George’s County, Mary- 
-and, about a mile from Surrattsville. I am 
Acquainted with J. Z. Jenkins of Surrattsville, 
brs. Surratt’s brother. He was represented 
as a Union man during the first year of the 
"ar, but after that, by most persons, he was 
poked upon as a Southern sympathizer; I 
\now of no exception to this among the 
I aion men. I never heard his reputation for 
°yalty talked of much, but I have heard him 
faU I think, he was a friend to the South, 
4nd an enemy to the Government during the 
struggle. 
J know Joseph T. Nott, of Surrattsville. 
n the day after the President’s murder, I 
'pet two young men connected with General 
Agur g head-quarters, one of whom told me 
lat John H. Surratt was supposed to be the 
man W]lo attempted to kill Mr. Seward. I 
jBked Mr. Nott if he could tell me where 
’ otm Surratt was; he smiled and told me 
For the Prosecution.—June 2. 142 
THE CONSPIRACY TRIAL. 
the bar. On the next day, Sunday, I commu- 
nicated this remark verbally to General Au- 
gur, Colonel Baker, and Colonel Wells. Mr. 
Nott did not inform me how he knew John 
Surratt was connected with it, and I did not 
ask him. He only said he could have told 
me six months ago that this thing was going 
to happen. I never knew Mr. Jenkins to do 
any thing disloyal, but he has denounced the 
administration frequently when talking with 
me. Ido not recollect particularly to what 
he referred. I have heard many do the same 
so frequently, that I do not recollect what Mr. 
Jenkins said on any particular occasion. I 
never heard any man whom I regarded as a 
loyal man denounce the administration. 
who opposes the acts of the administration, 
I never knew of any act of disloyalty on the 
part of Mr. Jenkins, except his abuse of the 
Government. 
With respect to Mr. Jenkins spending 
$3,000 to sustain the Union and the Govern- 
ment, I do not think he ever had it to spend. 
I have never heard of his spending any thing, 
except from his own lips. 
For the Prosecution.—June 5. 
Dorley B. Roby. 
I have known Mr. J. Z. Jenkins for several 
years. For the last three years he has been 
one of the most disloyal men in the county. 
It is from personal knowledge of his conduct 
and observations that I pronounce him dis- 
loyal. He got so outrageous that I had to 
apply to General Wallace, at Baltimore, to 
have him arrested. Since that time he has 
behaved himself a little better. He is known 
and recognized in that neighborhood as an 
open and outspoken enemy of the Govern- 
ment. I have heard him curse the President, 
and damn him to all intents and purposes. 
He said old Lincoln, the damned old son of 
a bitch, had offered him an office, but that 
he would not hold office under any such 
damned creature, or any such damned Gov- 
ernment. 
A. Y. Roby. 
I reside close to Surrattsville,Prince George’s 
County, Maryland. Since June 12, 1863, I 
have been enrolling officer. I have known 
J. Z. Jenkins since 1861, but not very inti- 
mately till 1863. Mr. Jenkins’s reputation in 
that neighborhood, during the year 1861, was 
that of a Union man ; but since that time he 
has been looked upon as a sympathizer with 
the South. Since 1862 he has been in the 
attitude of an enemy to the Government, and 
has opposed all its measures. Mr. Jenkins 
took the oath prescribed by the Legislature 
of Maryland, and then voted. 
For the Prosecution.—June 2. 
I have known Mr. Jenkins for four or five 
years. I was not a resident of the county 
in 1861 and 1862; I was in 1863. I was 
born in Charles County, and raised in Prince 
George’s; and I have been backward and for- 
ward through there all the time. In 1862 I 
knew Mr. Jenkins very well. I knew him to 
be a Llnion man till about three years ago. 
He was a very strong Know-Nothing, and I 
was a Know-Nothing too. Jenkins aban- 
doned the Union party about three years 
ago this fall. He lost a negro man; and it 
seemed that his loyalty to his Government 
only lasted as long as his negro was pro- 
tected. As soon as he lost the negro, he 
abandoned his Union principles. 
Tile flag that was raised, and which Mr. Jen- 
kins is said to have protected, was understood 
to be a Know-Nothing flag; a Union flag raised 
by the Know-Nothing party. The Know-Noth- 
ings were generally considered Union men, but 
there were a good many who, like Mr. Jen- 
kins, went over to the rebels as soon as there 
was a division of parties. 
There is no suit pending between me and 
any citizen of Maryland; there is a suit pend- 
ing against my son, Andrew Y. Roby. He 
was appointed Deputy Provost Marshal for 
the purpose of carrying out General Schenck's 
order at the election. He was ordered to have 
every man arrested who interfered with the 
election. This man Jenkins behaved very 
badly at the election. Colonel Baker had a 
company of m6n there, and my son suggested 
Cross-examined by Mr. Clampitt. 
The first time I saw Mr. Jenkins was when 
he came to the armory of Captain Mark’s 
company, in Washington, of which I was a 
member. Some time between April and July 
of 1861 he came there begging for money for 
some Union man who had been killed. The 
next time I saw him was at my house, when 
he was opposing the nominees of the Union 
party. Hr. Bayne was a candidate for Sen- 
ator; Mr. Sasser was candidate for Clerk of 
the County, and Mr. Grimes for Sheriff. I 
think Mr. John M. Brook was the disunion 
candidate for Senator; I do not know that 
Mr. Brook has been in the rebel army; I 
know that he was South, and staid until he 
came home under the President’s Amnesty 
Proclamation. 
I have been living near Surrattsville since 
September, 1863. 1 have seen Mr. Jenkins 
nearly every day. All this time Mr. Jenkins 
has been talking against the Government. At 
the April election, in 1864, when we voted for 
a convention to make a new constitution, he 
said he had been offered office under the 
damned Government, but he would not hold 
office under any such damned Government. 
He said this before a great crowd at the polls. 
I had just objected to his vote. I asked Mr. 
Jenkins if he would vote for such a man as 
Harris; he said he wanted the South to suc- 
ceed, and he said lie would vote for Harris 
against anybody. I consider a man disloyal 
Cross-examined by Mr. Aiken. TESTIMONY IN REBUTTAL. 
143 
*° the Captain that Jenkins should be ar- 
rested. He was arrested, placed on a chair, 
and a bottle of whisky taken from his pocket. 
night I thought the poor fellow had got 
sober; he looked very penitent, and I sug- 
gested to the Captain that it was not worth 
'yhile to take him up to Colonel Baker’s, 
that he should allow him to go; and he 
e-cted on my suggestion. The suit pending 
between my son and Mr. Jenkins is for false 
By Assistant Judge Advocate Bingham. 
fhe prosecution against my son is for at- 
tempting to execute the Federal authority. 
-*me authorities, who have the management 
°f the case, have taken steps to have it re- 
moved to the United States Court. 
land, and if he has done any thing to protect 
the Union flag when it was threatened to be 
torn down by secession sympathizers, 1 have 
known nothing of it. I have known him to 
call at the different polls on election times, 
and endeavor to dissuade men from voting 
for the Union cause-. Even at the last elec- 
tion, in 1864, he said he would not vote for 
the damned abolition Government to save 
anybody’s life. 
By the Judge Advocate 
I do not know a loyal man in that neigh- 
borhood except Mr. Roby, his son, and a few 
others. We were in danger all the time, so 
much so that I had to call upon General 
Augur for a guard. 
1 belong to the New School Presbyterian 
Church, and I am a member of the Presby 
tery of the District of Columbia. 
William A. Evans. 
I reside in Prince George’s County, Md., 
and am a Presbyterian minister. I was com- 
pelled to leave my Church in 1861 because 
?f my loyalty and devotion to the Union. 
Prince George’s County is a very disloyal 
Neighborhood. 
I know J. Z. Jenkins very well. He pre- 
tended to be a loyal man in 1861, as a great 
many in Prince George’s, St. Mary’s, and 
those lower counties did, but I never consid- 
ered him a loyal man, because, if he had been, 
le would have co-operated with me and 
several others, who were endeavoring to dis- 
charge our duty to our country. His repu- 
lsion and conduct since 1861, has been dis- 
,?yal. I call him a rebel. His sympathy with 
he rebels has been open and outspoken. 
For the Prosecution.—June 5. 
John L. Thompson. 
For the Prosecution.—June 5. 
I have known J. Z. Jenkins ever since I 
can remember. For the last two years and 
six months he has not been a loyal man; 
for the four years preceding that he was. 
He is regarded as a disloyal man in that 
community; his disloyalty is open and out- 
spoken. 
I have had a difficulty with Mr. Jenkins, 
which grew out of my being drafted, and 
going to Mr. Roby’s son to aid me, Jenkins 
said he would cut my throat in consequence 
of it, and drew his knife, a small pen-knife, 
against me. The only reason that I know 
for his conduct was, that he hated the Gov- 
ernment. Jenkins said that, in case he was 
forced to fight, he would go with the South. 
I lived in Mrs. Surratt’s family for two 
years. I do not think she was a loyal 
woman. I judge so by her conversation., 
which was against the Government. 
Cross-examined by Mr. Clampitt. 
I have known Mr. Jenkins about fifteen 
Tears. I lived in the same county as he did 
}N 1861, but because of my abolition procliv- 
Jhcs, I was not, at times, permitted to remain 
ln the county or the State. There was a writ 
cut for me in 1861, and I was only permitted 
:? visit my house in secrecy. Everybody 
. knows Mr. Jenkins knows that he is a 
ehel. in be pretended to be a Union 
|Nan; but I knew him to be a hypocrite. I 
Judged him to be a rebel by his conduct; 
aying that the country would go to ruin, 
. that the South would be successful. He 
.uid this to other gentlemen, and they repeated 
to me. I held a secret commission under the 
government I know nothing of his labors 
0 obtain Union votes in the State of Mary- 
I have known Mr. Jenkins ever since he 
was a child. He was considered a loyal man 
in 1861, but not in 1863. I know nothing 
of Mr. Jenkins coming to Washington to 
obtain votes for the Union Government. I 
know of his assisting to raise the Union flag, 
and with a band of men assisting in protect- 
ing it; but that was in 1861. 1 have heard 
him make disloyal remarks many a time. 
He said that he hated the Government the 
worst on earth, and he said that emancipa- 
tion was all wrong. 
Cross-examined by Mr. Clampitt. 144 
THE CONSPIRACY TRIAL. 
TESTIMONY CONCERNING GEORGE A. ATZERODT 
Robert R. Jones. 
i 
bank-book was an envelope with the frank 
of the Hon. John Conners. There was also 
a pair of new gauntlets, a colored handker- 
chief, three boxes of cartridges, a piece of 
liquorice, and a tooth-brush. On the corner 
of the bank-book was “J. W. Booth, 53.” 
On the inside of the book was “ Mr. J. Wilkes 
Booth in account with the Ontario Bank, 
Canada. 1864; October 27; bv deposit, cr. 
$455.” 
There was also a brass spur, a pair of 
socks, and two collars. Between the sheets 
and mattresses I found this large bowie-knife. 
For the Prosecution. —May 13. 
I am a clerk at the Kirkwood House in this 
city. The leaf exhibited to the Commission 
is from the register of the Kirkwood House. 
It contains the name of 0. A. Atzerodt, 
Charles County. It appears from the regis- 
ter that Atzerodt took room No. 126 on the 
morning of the 14th of April last, I think 
before 8 o’clock in the morning. I was not 
present when his name was registered, and 
did not see him until between 12 and 1 in the 
day. I recognize Atzerodt among the ac- 
cused. That is the man, I think. 
[The witness here pointed to the accused, G. A. Atze- 
rodt.] 
[These articles were all offered in evidence.] 
The room in which these things were found 
was No. 126, and is on the floor above the room 
then occupied by Vice-President Johnson. 
I went to the room occupied by Atzerodt 
after it had been opened by Mr, Lee, on the 
night of the 15th of April, and I saw all the 
articles that were found there. I can not 
identify the knife, though it was similar to 
the one just shown me. It was between the 
sheet and the mattress. The bed had not 
been occupied on the night of the 14th, nor 
had the chambermaid been able to get into 
the room the next day. A young man spoke 
to Atzerodt when I saw him standing at the 
office counter. I do not know his name. 
Atzerodt, before that, asked me if any one 
had inquired for him within a short time. 
From the book it appears that Atzerodt paid 
one day in advance. I had never seen him 
in the hotel before. 
The person I met at the Kirkwood House, 
who spoke of the suspicious-looking man 
being there, said, “I believe that he had a 
gray coat on.” I did not find the signature 
of Atzerodt, or any thing in the room; I 
only know it was his room because it said so 
on the register. 
Cross-examined by Mr. Poster. 
By the Judge Advocate. 
In coming down from room 126, to reach 
the office of the hotel, a person would pass 
the door of the room occupied by Vice- 
President Johnson. When I came down, 
there was a soldier at the door. A man of 
any courage, coming down the stairs, could 
easily throw a handful of snuff in the sol- 
dier’s eyes and go right into Mr. Johnson’s 
room. 
John Lee. 
For the Prosecution.—May 13. 
I belong to the military police force of this 
city. On the night of the 15th of April I 
went, by order of Major O’Beirne, to the 
Kirkwood House. When I got there a per- 
son employed in the house, whom I knew, 
told me there had been a rather suspicious- 
looking man there, who had taken a room 
the day previous. On the hotel register I 
found a name written very badly—GK A. 
Atzerodt. I went to the room occupied by 
this man; the door was locked, and the key 
could not be found. With permission of one 
of the proprietors I burst open the door. I 
found in the room a black coat hanging on 
the wall; underneath the pillow, or bolster, I 
found a revolver, loaded and capped. In the 
pocket of the coat I found a bank-book of 
J. Wilkes Booth, showing a credit of $455, 
with the Ontario Bank, Montreal, and also a 
map of Virginia; a handkerchief marked 
“Mary R. Booth;” another marked “F. M.” 
or “ F. A. Nelson;” another handkerchief 
with the letter “ H” in the corner. In the 
Lyman S. Sprague. 
I am clerk at the Kirkwood House in this 
city. I went up to the room of the prisoner, 
Atzerodt, with Mr. Lee, and was present 
when it was broken open. All I saw found, 
as I went in, was the revolver under the 
pillow. No one inquired for Atzerodt on the 
14th while I was in the office. 
For the Prosecution.—May 15. 
Cross-examined by Me. Poster. 
I was at the desk of the Kirkwood House 
that day from 8 in the morning till 12 at 
noon; no one called for Atzerodt during that 
time. 
Colonel W. R. Neyins. 
For the Prosecution—May 27. 
I was in this city on the 12th of April) 
and stopped at the Kirkwood House. While 
there, I saw that man [pointing to the TESTIMONY CONCERNING GEORGE A. ATZERODT. 
145 
accused, George A. Atzerodt] in the passage 
that leads to the dining-room, when he asked 
me if I knew where President Johnson was. 
I believe that was his first question. I 
showed him where Mr. Johnson’s room was, 
on the left-hand side of the passage; “ How- 
ever,” said I, “ the Vice-President is now 
eating his dinner.” I thought he was a 
■stranger, and referred him to the Vice- 
President’s servant, a colored man, who was 
standing behind him. He looked into the 
dining-room; whether he went in or not I 
do not know. 
on her. Atzerodt paid the boy fifty cents for 
her keep, and asked me if that was right; 
I said, “Yes.” “If I stay until morning,” 
he asked, “how much more are you going 
to charge me?” “Only fifty cents,” I said. 
He then went out and staid about three- 
quarters of an hour, when he returned. He 
told me not to take the bridle or saddle off 
the mare until 10 o’clock, and to keep the 
stable open for him. I said I would do so, 
and that I would be there myself at that 
time. At 10 o’clock he came after the mare. 
He asked me to take a drink with him, and 
I did, at the Union Hotel, corner of Thir- 
teen-and-a-half and E Streets. I had a glass 
of beer and he drank some whisky. Eeturn- 
ing to the stable he said, “ If this thing hap- 
pens to-night, you will hear of a present,” or 
“Get a present.” He seemed to me about 
half-tight, and was very excited-looking. I 
did not pay much attention to him. As he 
mounted the mare I said, “ I would not like 
to ride that mare through the city in the 
night, for she looks so skittish.” 
“Well,” said he, “She’s good upon a re- 
treat.” I then said to him, “Your acquaint- 
ance is staying out very late with our horse;” 
that was Herold. “Oh,” said he, “He’ll he 
back after awhile.” Atzerodt then left, and 
I followed him until he went down E Street 
and passed Thirteen-and-a-half Street, and 
saw him go into the Kirkwood House. I 
watched until he came out and mounted the 
mare again. He went along D Street and 
turned to Tenth Street, to the left of X) and 
Tenth Streets. I then returned to the stable. 
Cross-examined by Mr. Poster. 
This was between 4 and 5 o’clock. There 
was no other person at dinner at the time 
but the Vice-President and myself. This 
man met me near the two or three steps that 
come down into the dining-room. I showed 
him where the Vice-President was sitting at 
the further end of the room, with his yellow 
man behind him. Atzerodt had on dark 
clothes at the time, and, I believe, a low- 
crowned black felt hat. I noticed his coun- 
tenance more than his clothes, but I could 
tell him among fifty thousand. 1 am now 
sixty-five years of age. 
By Judge Advocate Burnett. 
When I first came into Court this morn- 
ing, I was asked to point out, among the 
prisoners, the man I had seen at the Kirk- 
wood House, and I designated the prisoner, 
Atzerodt, before his name was mentioned to 
me. 
John Fletcher. 
For the Prosecution.—May 17. 
Washington Briscoe, 
I am foreman at J. Naylor’s livery-stable, 
in this city. On the 3d of April, Atzerodt 
and another gentleman came to the stable 
with two horses, and inquired for Mr. Nay- 
lor. Atzerodt said they wanted to put up the 
horses at the stable, and I ordered them to 
be put up. The other gentleman said he was 
going to Philadelphia, and that he would 
leave the sale of his horse to Atzerodt; he 
left, and I have not seen him since. Atzerodt 
kept the horses at the stable until the 12th 
of April, when he sold one of them to 
Thompson, the stage contractor, and took 
the other, a brown horse, aw'ay. This was 
a very heavy, common work horse, blind 
of one eye; it was a dark-brown, with a 
heavy tail, and heavy fetlocks down to the 
feet. 
For the Prosecution.—May 18. 
I have known the prisoner, George Atze- 
rodt, for seven or eight years. On the night 
of the 14th of April, between half-past 11 
and 12, he got on a Navy-Yard car at Sixth 
Street. I was in the car, but he did not rec- 
ognize me till I spoke to him. I asked him 
if he had heard the news, and he said he 
had. Then he asked me to let him sleep in 
the store, down at the Navy Yard, with me. 
I told him he could not. His manner was 
excited, and he was very anxious to sleep 
there; he urged me to let him. I told him 
again he could not; that the gentleman I was 
with was there, and 1 had no right to ask 
him. He rode down as far as I did, then got 
out and asked me again. When he left me, 
he said he would go back to the Pennsylvania 
House, on C Street, where he was stopping. 
I saw Atzerodt no more till 1 o’clock, on 
the 14th of April, when he and Herold came 
f° the stable with a dark-bay mare. He 
said he had sold the brown horse and saddle 
and bridle in Montgomery County, and had 
bought this mare, with saddle and bridle. 
He then told me to put up the mare in the 
stable. I went to my supper at half-past 6, 
and when I came back the colored boy had 
the mare at the door, with saddle and bridle 
Cross-examined by Mr. Doster. 
I did not notice the precise time when I 
met Atzerodt, but I think it was between 
half-past 11 and 12. I was going to the 
Navy Yard, my home, and he rode down in 
the car with me to I Street, near my store, 
and got out where I did. I waited with him 
on the corner of I and Garrison Streets, till 146 
THE CONSPIRACY TRIAL. 
the car came back. I think it was near 12 
when he got into the car again and left me. 
I hardly know whether he had been drink- 
ing; but, judging from his manner, he was a 
little excited. 
inches high, and his weight was about one 
hundred and forty pounds, I should judge. 
He was poorly dressed, in dark clothes. His 
pants were worn through at (he hack near 
the heels. I took notice of that as he walked 
out of the door to go to his room. He 
was quite dark-complexioned and very much 
weather-beaten. He had dark hair. 
John Greenawalt. 
For the Prosecution.—May 17. 
I keep the Pennsylvania House, on C 
Street, between Four-and-a-half and Sixth 
Streets. I know the prisoner, Atzerodt. A 
person frequently called on Atzerodt, who, I 
have since found, was J. Wilkes Booth. 
[A photograph of J. Wilkes Booth was exhibited to the 
witness.] 
Neither of the men seemed excited. This 
man Thomas, I noticed, kept a close eye on 
me as I came in. It was Thomas who asked 
for the room. Atzerodt was lying on the 
settee in the corner of the room when I came 
in. Atzerodt asked for his old room; I told 
him it was occupied, and that he would have 
to go with this man. It was a large room, 
with six beds in it. There were other per- 
sons in the room before Thomas and Atze- 
rodt went there. 
That is the person. Sometimes Booth 
would come through the hall where Atzerodt 
would be sitting; at other times Booth would 
walk in and walk back, when Atzerodt would 
get up and follow him. They have had fre- 
quent interviews in front of my house; and 
several times, as I walked on the steps, they 
would leave and walk toward the National 
Hotel, where they stood and had their inter- 
view. 
On one occasion several young men from 
Port Tobacco met Atzerodt at the Pennsyl- 
vania House They had been drinking, and 
Atzerodt asked me to take a drink, which I 
did, when he said, “Greenawalt, I am pretty 
nearly broke, but I have always got friends 
enough who will give me as much money as 
will see me through.” He added, “I am 
going away some of these days, and I will 
return with as much gold as will keep me all 
my lifetime.” This was said about the Ist 
of April, nine or ten days after he first came 
to my house, which was on the 18th of 
March last. Atzerodt was in the habit of 
stopping at my house. He never stopped 
any length of time. He left my house on 
the Wednesday before the assassination. He 
had no baggage with him. I saw him next 
on the Saturday morning after the assassin- 
ation, between 2 and 3 o’clock. 
I had just come in the house myself, and 
had gone to my room. About five minutes 
afterward a servant came up with a five-dol- 
lar bill and said, “There is a man come in 
with Atzerodt who wants lodging, and wants 
to pay for it.” So I went down and gave the 
man his change. I had an uneasiness about 
the thing myself; thought there was some- 
thing wrong. 
Thomas had the appearance of a laboring 
man. I think he wore a broadcloth coat, 
though it was very much worn, but I judged 
that his clothes were worn as a disguise. Hia 
hair, moustache, and whiskers were black. 
The name he gave was Samuel Thomas. He 
got up about 5 o’clock and left the house, 
so the servant told me. A lady who was 
stopping at the house had given orders for 
a carriage to take her to the 6:15 train. She 
left before I got up, and as the servant was 
going out of the door, this man Thomas 
went out and asked the way to the railway 
depot. He had no baggage. 
Atzerodt left shortly afterward, and walked 
toward Sixth Street. As the servant came 
back from getting the carriage, he met Atze- 
rodt, and said to him, “What brings you out 
so early this morning?” “Well,” said he, “I 
have got business.” He left without paying 
his bill, and I have never seen him since untU 
now. There he sits, [pointing to the accused, 
George A. Atzerodt. j 
In March, Atzerodt showed me a revolver 
he had just bought. I told him I wished I 
had known he wanted one, for I had a new 
one for which I had no use. 
[The revolver found by John Bee, at the Kirkwood 
House, was here exhibited to the witness.] 
The revolver Atzerodt had was similar to 
that, but I do not think that is the same. 
Atzerodt left my house on the 12th of 
April. He had been there from the 18th of 
March. On the 27th of March he left and 
staid away over night, and returned with a 
man named Bailey. 
Atzerodt once handed a large revolver into 
the office for me to keep for him. I saw no 
other arms. He may have had others; in 
the office he said he had a knife. 
When Mr. Bailey left my house, he wanted 
to pay his stage fare, and I bought of him 
some eight or nine $2.50 gold-pieces, and, I 
think, about seven dollars’ worth of silver. 
I can not say that Thomas and "Atzerodt 
were acquainted previously to their calling 
Cross-examined by Mr. Doster. 
Atzerodt asked for his old room, and I 
told him it was occupied. I told him he 
would have to go with this gentleman. So 
I gave this man Thomas his change, and 
told the servant to show him to his room, 
and Atzerodt was going to follow him, when 
I said, “Atzerodt, you have not registered.” 
Said he, “Do you want my name?” I re- 
plied, “Certainly.” He hesitated some, but 
stepped back and registered, and went to his 
room. He had never before hesitated to 
register his name. The man who was with 
Atzerodt was about five feet seven or eight TESTIMONY CONCERNING GEORGE A. ATZERODT. 
147 
at my house on the night of the 14th. At- 
zerodt did not seem sleepy, and he was not in 
liquor. I did not see them come in; the 
servant told me they came in together; but 
that is the only reason I had for thinking 
they came together. I told Atzerodt that he 
would have to room with that man, and he 
bad no objection. I do not recognize the 
ttian Thomas among the prisoners. 
That man [pointing to the accused, Edward 
Spangler] resembles him somewhat, but is not 
eo dark, and he has not got the beard on that 
Thomas had then. I could not be positive it 
is the same man. 
[The coat found by John Lee at the Kirkwood House 
handed to the witness.] 
when they came in; but the man seemed to 
have on dark clothes and a slouch hat. He 
paid in advance, and went straight to the 
room. Ido not know that I would know him. 
I can not say that any of the prisoners resem- 
ble him. I was not so well acquainted with 
him as with Mr., Atzerodt, who had been 
stopping there a couple of weeks. 
Cross-examined by Me. Dostek. 
[A coat found at the Kirkwood House by John Lee was 
exhibited to the witness.] 
I do not I’ecollect seeing that coat before. 
I have cleaned Mr. Atzerodt’s clothes and 
boots, but I never saw that coat. We gen- 
erally close the house at half-past 12 or 1 
o’clock, and we had not closed on the Friday 
night when Mr. Atzerodt came first; we closed 
soon afterward. The horse that I held for 
him then was a light-bay hbrse, small; it 
seemed to be young, and had plenty of spirit 
I opened the door for Mr. Atzerodt on the 
second visit, and took him and the other 
man to their room. They had no conversa- 
tion in my presence. 
I have seen Mr. Atzerodt have a belt, with 
a pistol and a knife, but I never saw the 
knife out of the sheath. That was probably 
four or five days before that Friday. 
I never saw Atzerodt wear that coat. 
Cross-examined by Mr. Ewing. 
The man Thomas had black hair and a 
heavy black moustache, and he had whiskers 
and beard in front 
By the Court. 
I do not know why Atzerodt and the man 
Thomas got up at the same time in the morn- 
ing. They did not occupy the same bed. On 
the Wednesday before the assassination, when 
Atzerodt left, he told me he was going away, 
and he said, “ Greenawalt, I owe you a couple 
of days’ board; will it make any difference to 
you whether I pay for it now or when I come 
back ?” He said he was going to Mont- 
gomery County. 
I never saw the prisoner, O’Laughlin, at 
nay house. 
[Exhibiting to the witness the knife found by John Lee 
at the Kirkwood House.] 
By the Judge Advocate. 
I can not tell whether that was the knife. 
It was in the sheath, fastened to the belt. 
[Exhibiting a bowie-knife found on Atzerodt.] 
It was something more like that. 
[The knife was offered in evidence.] 
James Walker (colored). 
For the Prosecution.—May 18. 
My business at the Pennsylvania House, 
this city, is to make fires, carry water, and 
fo wait on gentlemen that come in late and 
early. I have seen the prisoner, Atzerodt, 
[pointing to the accused, George A. Atzerodt,] 
ftt the house. He came there between 12 and 
1 o’clock, I think, on Friday night, the 14th of 
April; I held his horse while he went into 
the bar. When he came out, he asked me 
to give him a stick or a switch, as the horse 
was shy of the light; I gave him a piece of 
a hoop, and he went off. I do not know 
"whether he had any arms; I did not see any. 
About 2 o’clock in the morning he came 
back again, on foot this time. I had to get 
to let him in. He wanted to go to room 
01, which he had commonly occupied; but 
that was taken up, and he went to 53. He 
left between 5 and 6 in the morning. As I 
was going out for a hack to take a lady to 
the 6:15 train, I overtook him about thirty 
6teps from the door; he was walking along 
slowly. Another man came to the house 
about the same time that night, and occupied 
the same room. He went away a little ear- 
lier, to take the 6:15 train; I opened the 
door and let him out. He had no baggage 
that I saw. The gas was down pretty low 
Lieutenant W. R. Keim. 
For the Prosecution.—May 18. 
I was at the Pennsylvania House, in this 
city, on the night of the 14th of April last. 
I went to the hotel about 4 o’clock on the 
Saturday morning, and Atzerodt was in bed 
when I went into the room. His bed was 
opposite mine. I asked him if he had heard 
of the assassination of the President, and he 
said he had; that it was an awful affair. When 
I awoke in the morning, he was gone. I did 
not see any arms with him. About a week 
or ten days before the assassination I occupied 
room 51 with Atzerodt. 
[The large bowie-knife found at the Kirkwood House 
was exhibited to the witness.] 
I would not swear that is the knife I have 
seen in Atzerodt’s possession, but it was one 
about that size. Atzerodt went out of the 
room one morning and left the knife in his 
bed. I got up and took it, and put it under 
my pillow. In a few minutes he returned, 
went to his bed and looked about, and then 
said, “ Have you seen my knife?’’ I replied, 
“Yes; here it is.” Then he said, “I want 
that; if one fails, I want the other;” and I gave 
it to him. His pistol, a revolver, he always 
carried round his waist. 148 
THE CONSPIRACY TRIAL. 
Cross-examined by Mk. Poster. 
shoe-store, told me she saw it in the gutter, 
and sent the colored woman down to get it, 
but that she did not want it to come into the 
house. I told her that I would take it to the 
Chief of Police, which I did. 
I did not know the prisoner, Atzerodt, be- 
fore meeting him at the Pennsylvania House. 
On the Saturday morning after the assassin- 
ation, when I went into the room where he 
was, I did not speak to him immediately; it 
was perhaps five or ten minutes before I 
spoke. He was in bed, but whether undressed 
or not I can not say. When I spoke to him 
about the assassination, he said it was an 
awful thing, and that was about all he said. 
I did not see him after that. He always 
addressed me as “ Lieutenant.” It was about 
a week or ten days before the assassination 
that I took the knife from his bed. We had 
been drinking together, as we lay in bed; had 
had, perhaps, two or three whisky-cocktails 
apiece. His words, as near as I remember, 
when I gave llim back the knife, were, “If 
this fails, the other will not.” 
It was about 6 o’clock in the morning 
when I saw the woman pick it up. It lay 
in the gutter on F Street, in front of Creaser’s 
house, under the carriage step, as if the in- 
tention were to throw it there. Creaser’s is 
on F Street, between Eighth and Ninth, op- 
posite the Patent Office. 
Cross-examined by Mr. Poster. 
Marshal James L. McPhail 
For the Prosecution.—May 18 
I am Provost Marshal of the State of 
Maryland. I received an intimation from 
the prisoner, Atzerodt, that he desired to see 
me. I went to him, and he stated to me that, 
on the night of the assassination of the 
President, he had thrown his knife away in 
the streets of Washington. I made no prom- 
ise or threat to him, in any way, in connec- 
tion with the confession. 
John Caldwell. 
For the Prosecution.—May 25. 
1 reside in Georgetown. On the morning 
after the assassination, at about 8 o’clock, I 
was at Matthews A Co.'s store, 49 High 
Street, Georgetown, when that man, [point- 
ing to the accused, George A. Atzerodt,] whom 
1 knew, came in; and, after my asking him 
how he was, and so on, said he was going into 
the country, and asked me if I did not want 
to buy his watch. I told him I had a watch 
of my own, and did not want another. He 
then asked me to lend him $lO. I told him 
I had not the money to spare. He then took 
his revolver off, and said, “Lend me $lO, and 
take this as security, and I will bring the 
money or send it to you next week. I thought 
the revolver was good security for the money, 
and I let him have the money, expecting him 
to pay it back. 
By Mr. Poster. 
Q. Was he not in irons at the time? 
A. Yes, sir; he was in a cell in the prison, 
and in irons. 
Mr. Poster. I respectfully submit that a 
confession made under such circumstances is 
not admissible, because it was made under 
duress, which put the mind of the prisoner 
in a state of fear. 
The Judge Advocate. There was neither 
threat nor promise, and the fact that the man 
was in prison, or even in irons, does not atfect 
the question of his mental liberty. A man’s 
limbs may be chained, and his mind be per- 
fectly free to speak the truth, or to conceal 
it, if he chooses. 
Mr. Poster, in support of his objection, 
quoted from the case of Commonwealth v. 
Mosler, 4 Barr’s Reports, 265, to the effect 
that a confession to an officer, as well as to a 
private person, must be unattended with any 
inducement of hope or fear, and must be 
founded on no question calculated to entrap 
the prisoner; and referred also to 1 Leech, 
263; 2 East’s Pleas of the Crown; 2 Russell 
on Crimes, 644; 1 Washington’s Circuit Court 
Reports, 625; 1 Chitty’s Criminal Law, 85; 1 
Greenleaf on Evidence, 214; 2 Starkie, 36. 
I claim that the prisoner was under the in- 
fluenceof fear when he made that confession, 
and without that influence would not have 
made it. 
[A new revolver, loaded and capped, was handed to the 
witness.] 
This is the revolver. It was loaded and 
capped as it is now. I did not inquire of him 
why it was loaded and capped. 
[The revolver was offered in evidence.] 
I have known Atzerodt for three or four 
years. We were not on very intimate terms; 
we were always civil to each other when we 
met. I had never loaned Atzerodt any money 
before. 
Cross-examined by Mr. Poster. 
William Clendenin. 
For the Prosecution.—May 18. 
[A bowie-knife was shown to the witness.] 
I have had that knife in ray hands before. 
I saw a colored woman pick up something 
out of a gutter, on F Street, as I was passing 
down on "the morning after the assassination. 
She was about ten feet from me, and I went 
to her and asked what it was, and she gave 
me this knife in a sheath. A lady in the third 
story window of the house, next to Creaser’s 
The Judge Advocate. I think it is due to 
the witness that he should be allowed to state 
precisely under what circumstances this con- 
fession was made, and if there is a trace of 
fear, or hope, or incitement of that kind, I 
shall not insist for a moment on the answer 
being heard. TESTIMONY CONCERNING GEORGE A. ATZERODT. 
149 
Witness. I should state that a brother-in- 
law of Atzerodt is on my force, and for a time 
a brother of the prisoner was on it, and they 
repeatedly told me that Atzerodt desired to 
Bee me. After consulting with the Secretary 
of War, a pass was given me, and I saw the 
prisoner. I saw him first on the gun-boat, 
and afterward in his cell. There was no 
threat, or promise, or inducement of any 
hind made. On the contrary, I told him that 
1 could make no promises to him; if he had 
any thing to say to me, he might say it, but 
I had nothing to say to him. I did not ask 
him a single question to induce him to make 
a confession. 
the road that leads to Burnsville. It was be- 
tween 10 and 11 o’clock on Sunday that At- 
zerodt came there; he remained some two or 
three hours. Two young men named Lea- 
man were in the room when Atzerodt made 
the remark about somebody following Gen- 
eral Grant. Ido riot remember that Atzerodt 
said any thing about the assassination; they 
might have been talking about it before I 
came into the room. The conversation about 
General Grant occurred after I got into the 
room. 
Sergeant L. W. Gemmill. 
For the Prosecution.—May 17. 
[The Commission overruled the objection.] 
I arrested the prisoner, George A. Atzerodt, 
[pointing to the accused,] on the 20th of April, 
about 4 o’clock in the morning, at the house 
of a man named Richter, near a place called 
Germantown. I was sent there for the pur- 
pose by Captain Townsend, with a detail of 
six men. I first went to Mr. Purdon’s house 
to get him as guide to Mr. Richter’s. When 
I knocked at the door, Richter asked me 
twice who it was before he would let me in. 
1 told him to come and see. When he came 
to the door, I asked him if there was a man 
named Attwood there; he said no, there was 
no one there; that he had been there, but 
had gone to Frederick, or to that neighbor- 
hood. I then told him that I was going to 
search the house, when he said that his 
cousin was up stairs in bed. His wife then 
spoke up, and said that as for that there were 
three men there. He got a light, and taking 
two men with me, went up stairs, where I 
found Atzerodt lying on the front of the bed. 
I asked him his name, and he gave me a 
name that I did not understand, and which I 
thought was a fictitious one. I told him to 
get up and dress himself; and I took him to 
Mr. Leaman, a loyal man, who knew him. 
Mr. Leaman told me it was the man. Atze- 
rodt made no inquiry as to why he was ar- 
rested; but denied having given me a fictitious 
name. I asked him if he had left Washington 
lately, and he said no. I then asked him if he 
had not something to do with the assassina- 
tion, and he told me that he had not. 
Atzerodt said he had thrown his knife away, 
just above the Herndon House, which, I think, 
18 on the corner of Ninth and F Streets. 
Cross-examined by Mr. Doster. 
Atzerodt stated that his pistol was in the 
possession of a young man by the name of 
Caldwell, at Matthews & Co.’s store, George- 
town. He had gone to Caldwell, and bor- 
rowed $lO on it, on the morning of the 15th 
of April. He also spoke of a certain coat 
hanging in the room at the Kirkwood House, 
and of a pistol, bowie-knife, and other articles 
there, all of which he stated belonged to the 
accused, David E. Herold. 
Mr. Stone. I must object to that. 
Mr. Doster. The answer has been ob- 
tained, Ido not wish to press it further. 
For the Prosecution.—May 17. 
Hezekxah Metz. 
I reside in Montgomery County, Md., about 
twenty-two miles from Washington City. On 
the Sunday following the death of Mr. Lin- 
coln, the prisoner, George A. Atzerodt, was 
at tny house, and eat his dinner there. That 
18 the man, [pointing to the accused, George 
Atzerodt.] He was just from Washington. 
We were inquiring about the news, and a 
conversation came up about General Grant’s 
being shot—for we had understood that he 
had been shot on the cars—when Atzerodt 
Baid, as I understood, “If the man that was 
[° follow him had followed him, it was likely 
m be so.” 
Atzerodt passed in the neighborhood by the 
narne of Andrew Attwood; that was the 
aanie by which I knew him. When I saw 
9*rni he represented himself as coming from 
Washington, and was traveling in the direc- 
Bon of Barnsville. 
Cross-examined by Mr. Doster. 
My orders from Captain Townsend were 
to arrest a man by the named of Attwood; 
and I was ordered to go to Mr. Purdon and 
get a description of him, and to press him as 
a guide to the house of Richter. Ido not 
remember the name Atzerodt gave me, and 
would not swear that it was not “ Atzerodt; ” 
he afterward insisted that that was the name 
he gave me. He spoke in German, and that 
is the reason why I did not understand the 
name. 
Cross-examined by Mr. Doster. 
It is two or three years since I first became 
acquainted with Atzerodt. I had but a slight 
acquaintance with him; I knew him when I 
him. He went by the name of Andrew 
Attwood around our neighborhood, and he 
as gone by that name ever since I have 
aown him. My house is about a mile from 
Marcus P. Norton. 
Recalled for the Prosecution.—June 3. 
Assistant Judge Advocate Burnett stated 
to the Commission that since the case was 150 
THE CONSPIRACY TRIAL. 
closed on the part of the prosecution, testi- 
mony of importance had been discovered, 
tending to implicate George A. Atzerodt, 
Michael O’Laughlin, and Samuel A. Mudd, 
in connection with J. Wilkes Booth. 
language used in the conversation, but the 
substance of it was, that if the matter suc- 
ceeded as well with Mr. Johnson as it did 
with old Buchanan, their party would get 
terribly sold. 
Mr. Cox objected to the introduction of any 
evidence that would affect the prisoners in- 
dividually, the understanding being that the 
prosecution was closed, except as to evidence 
reflecting light on the general conspiracy. 
It was contrary to the practice of civil courts 
to allow the introduction of testimony after 
the prosecution had been closed, except what 
was strictly in rebuttal. 
Assistant Judge Advocate Burnett stated 
that in military courts, even after the case 
had been closed on both sides, it was allow- 
able to call new witnesses at the discretion 
of the Court. 
Cross-examined hy Mr. Doster. 
The conversation between Atzerodt and 
Booth took place in the rotunda office of 
the National Hotel, early in the evening, as 
I was sitting, perhaps, within two or three 
feet of them. I remember the prisoner, At- 
zerodt, by his countenance and general feat- 
ures, tboxigh I do not think he had as much 
of a scowl on his face as he has now. 
Recalled for the Prosecution.—June 8. 
Cross-examined by Mr. Doster. 
The Commission decided to admit the testi- 
mony. 
I have seen Booth play in Washington, in 
New York, and once, 1 think, in Boston, but I 
can not recall how many times, nor the pieces 
in which I saw him. At the time of hearing 
the conversation between Booth and Atzerodt 
I reside in the city of Troy, New York. 
From about the 10th of January until about 
the 10th of March, I was stopping at the 
National Hotel in this city. I knew J. Wilkes 
Booth, having seen him several times at the 
theater. I saw the prisoners, George A. At- 
zerodt and Michael O’Laughlin, prior to the 
inauguration of President Lincoln. I saw 
Atzerodt twice, and O’Laughlin three or four 
times, in conversation with Booth. On one 
occasion I accidentally heard some conversa- 
tion between Atzerodt and Booth, as I sat on 
the same seat with them; it was on the even- 
ing of either the 2d or 3d of March last; I 
think the 3d. I can not give the precise 
National Hotel, 1 did not consider it as 
having reference to an attempt to poison Mr. 
Johnson; but the assassination of the Presi- 
dent, and Booth being coupled with it, is what 
has turned my attention to the conversation. 
See also the testimony of 
Louis J. Weichmann pages 113, 118 
J. M. Lloyd page 130 
Anna E. Surratt “ 130 
Honora Fitzpatrick “ 132 
Eliza Holahan “ 132 
John Holahan “ 139 
Eaton G. Horner “ 234 
DEFENSE OF GEORGE A.ATZERODT. 
Captain Frank Monroe, U. S. N. 
For the Defense.—May 30. 
By Mr. Doster. 
Mr. Doster. The prisoner desires to make 
a full statement of his guilt in this transac- 
tion, if there is any guilt, and of his inno- 
cence, if there is any evidence of it. He asks 
his statement to be placed on record, because 
he has been debarred from calling any other 
prisoners who might be his witnesses, for the 
reason that they are co-defendants. He 
therefore asks that he may be allowed to 
speak through Captain Monroe, as he would 
otherwise speak through one of his co-defend- 
ants. 1 ask this as a matter of fairness and 
liberality at the hands of the Commission. 
The Judge Advocate. It is greatly to be 
deplored that the counsel for the accused will 
urge upon the Court proposals which they 
know to be contrary to law. 
Mr. Doster. I have no more to ask the 
I had the custody of the prisoner at the bar 
on board the monitors Saugus and Montauk. 
Mr. Doster. Before going further with 
the examination of the witness, I wish to sub- 
mit an application of the prisoner in writing. 
[The paper was handed to the Judge Advocate, who 
having read it, said:[ 
This is a proposal on the part of the pris- 
oner, Atzerodt, that his confessions made to 
the witness shall be heard by this Court as 
testimony in his favor—confessions in regard 
to which no evidence whatever has been in- 
troduced by the Government. I can not 
understand on what grounds such an applica- 
tion can be urged. 
witness then. DEFENSE OF GEORGE A. ATZERODT. 
151 
Matthew J. Pope. 
let the prisoner, Atzerodt, [pointing to the 
accused, George A. Atzerodt,] have out of my 
stable a small bay mare, sixteen and a half 
hands high. He paid me five dollars for the 
hire. The horse was returned, to the best of 
my knowledge, between 9 and half-past 9 thaf 
night. 
Q. When Atzerodt engaged the horse, did 
you have a conversation with him? 
A. Yes, sir. 
Q. State what that conversation was. 
Assistant Judge Advocate Burnett ob- 
jected to the question as incompetent. 
The question was waived. 
Atzerodt wrote his name on the slate in a 
tolerably good hand; and he gave me sev- 
eral references willingly. He first gave a 
number of persons in Maryland. He said he 
knew a good many persons there, and that he 
was a coach-maker by trade. Stanley Hig- 
gins was one to whom he referred; I can not 
recall any other. He also gave me the name 
of John Cook in Washington as a reference, 
and several other names in Washington, but 
I do not remember them. 
For the Defense.—June 2. 
By Me. Poster. 
I Jive at the Navy Yard, and keep a livery- 
stable; until recently I kept a restaurant. A 
few days before the assassination of the Presi- 
dent, perhaps about the 12th of April—l do 
fiot know the exact day—a gentleman called 
st my stable to sell a bay horse; it was a 
large bay horse, and blind of one eye. 
[The prisoner, George A. Atzerodt was desired to stand 
Up tor identification.] 
That man has something of the same feat- 
ures; he wasveiy much such a looking man; 
but if it is the same, he is not near so stout as 
when he brought the horse to my stable. I 
can not say positively that it is the same. 
There are many applications at my stable to 
buy and sell horses, that I did not take much 
notice of him. I told him I did not want to 
buy the horse; that I had more horses 
than I had use for. It was some time after 
12 or 1 o’clock at noon that he came. The 
horse was put into my stable, and the gentle- 
man went over to my restaurant and took a 
drink. He left there with a man named Barr, 
a wheelwright in the Navy Yard. They 
came back together, and the gentleman took 
his horse out and rode him away. The horse 
was in the stable, I think, some two or three 
hours. Barr was not sober at the time; he 
had been drinking a little. 
Cross-examined by Assistant Judge Advocate 
Burnett. 
I was not there when the horse was re- 
turned. When I went to the stable next 
morning, the horse was there. 
Samuel Smith. 
For the Defense.—May 30. 
By Mr. Poster. 
John H. Baer. 
For the Defense.—June 5. 
By Mr. Poster. 
I am a stable-boy at Mr. Kelleher’s stable. 
I was at the stable on the night of the 14th of 
April last. The bay mare that was let out 
about 2 o’clock in the afternoon was returned 
in the course of the evening; to the best of 
my knowledge, it was about 11 o’clock. She 
was about in the same condition as when she 
was taken out. 
I have seen Atzerodt, the prisoner at the 
bar, once before. I was coming from my 
work at the Navy Yard one evening, and 
stopped at Mr. Pope’s restaurant, and there 
met this gentleman. I did not know him at 
the time, but we had several drinks together. 
1 proposed to him to go home and take supper 
with me, and he did so. After supper, we 
went back to Mr. Pope’s restaurant, and 
bad, I think, a couple of drinks. We then 
Went out, returned to the restaurant again, 
and took two more glasses, and from there 
went to Mr. Pope’s stable. The gentleman 
took his horse out, and I saw him get on and 
ride off. That is the last I saw of him. By 
referring to my book, I can tell the exact day 
°n which this occurred, because I know the 
work that I did that day; I made two spring 
blocks for Sanderson & Miller. I find it was 
the 12th of April. 
Cross-examined by Assistant Judge Advocate 
Burnett. 
I did not notice the person who brought 
back the mare; there was a little light in the 
stable, but it was very dim; and there was 
no light on the sidewalk. The man stopped 
outside the door, and I went out there and 
brought the mare in. It was by feeling her 
that 1 could tell she had not been ridden hard. 
Leonard J. Farwell. 
For the Defense.—June 3. 
By Me. Poster. 
James Kelleher. 
On the evening of the 14th of April last, 
on leaving Ford’s Theater, I went immedi- 
ately to the Kirkwood House, to the room of 
Vice-President Johnson. I should think it 
was between 10 and half-past 10 o’clock. I 
found the room door locked. I rapped, but 
receiving no answer, I rapped again, and said. 
For the Defense.—May 30. 
By Me. Poster. 
I am one of the proprietors of the livery- 
6table on Eighth and E Streets. On the 14th 
°f April last, about half-past 2 in the day, 1 152 
THE CONSPIRACY TRIAL. 
in a loud voice, “Governor Johnson, if you 
are in the room, I must see you.” I believe 
the door was locked, but am not certain. I 
can not say whether I took hold of the han- 
dle or not. I did not see any one apparently 
lying in wait near Mr. Johnson’s door. 
I remained in Mr. Johnson’s room about 
half an hour. I took charge of the (Joor, 
and locked and bolted it on the inside. A 
number of persons came to the door, but I 
did not allow any of them to come in, unless 
he was some gentleman personally known to 
the Vice-President. I also rang the bell and 
had a guard placed at the door. 
that is so or not; I don't suppose it is so; 
if it had been, I should have heard it.” 
While we were at the dinner-table, my 
brother asked him the question again, 
whether General Grant was killed or not, 
and he said, “No, I don’t suppose he was; 
if he was killed, he would have been killed 
probably by a man that got on the same 
car”—or the same train, I do not remember 
which—“that Grant got on.” 
I was not in Atzerodt’s company more 
than half an hour, and that was about all 
that passed in reference to this in my presence. 
I thought Atzerodt seemed somewhat con- 
fused at the dinner-table. He had been 
paying his addresses to the daughter of Mr. 
Metz, and it appeared that she had been 
showing him the cold shoulder that day, and 
he was down in the mouth in consequence. 
There was no remark made at the dinner- 
table that I did not hear. 
[The witness was here requested to look at the prisoner, 
George A. Atzerodt.] 
I do not know that I have seen the prisoner 
before. 
For the Defense.—May 30. 
By Mr. Poster. 
Miss Jane Herold. 
Atzerodt’s father had settled in our neigh- 
borhood, but moved away when Atzerodt 
was quite a boy, and I had seen but little of 
him until the last year or two. He visited 
among the neighbors there, many of whom 
were respectable people. 
1 am the sister of David E. Herold, the 
prisoner at the bar. 
[Exhibiting to the witness the black coat found at the 
Kirkwood House, also the handkerchief marked “H.”] 
I think I never saw that coat in the pos- 
session of my brother. The handkerchief 
does not belong to him. 
James E. Leaman. 
F. H. Dooley. 
For the Defense.—May 30. 
By Mr. Poster. 
For the Defense.—May 31. 
By Mr. Poster. 
I have known the prisoner, George A. 
Atzerodt, for about two years. I was at the 
house of Mr. Metz on the Sunday morning 
following the assassination. I broached the 
subject of General Grant being assassinated, 
and asked him whether it was so or not. He 
said he did not suppose it was; and he 
added, “ If it is so, some one must have got on 
the same cars that he did.” That was all the 
conversation that I had with him, with the 
exception that when he and I were out in 
the yard he said— 
Mr. Poster. That is unnecessary; you 
need not state what he said in the yard. 
I am an apothecary, on the corner of 
Seventh Street and Louisiana Avenue. The 
tooth-brush and liquorice found at the Kirk- 
wood House have trade-marks on them that 
I am positive do not belong to my estab- 
lishment 
Somerset Leaman. 
For the Defense.—May 30. 
By Mr. Poster. 
I have known the prisoner, George A. 
Atzerodt, ever since he was a boy. I was at 
the house of Hezekiah Metz on the Sunday 
morning following the assassination of the 
President, and met Atzerodt there. As I 
approached him, I said, in the way of a 
joke, “ Are you the man that killed Abe 
Lincoln?” “Yes,” said he, and laughed. I 
said, “ Well, Andrew”—he went by the name 
of Andrew there “I want to know the 
truth of it; is it so ?” I asked him if the 
President was assassinated, and he said, “Yes, 
it is so; and he died yesterday evening about 
3 o’clock.” I then asked him if it was true 
that Mr. Seward’s throat was cut, and two 
of his sons stabbed, and he replied, “Yes, 
Mr. Seward was stabbed, or rather cut at the 
throat, but not killed, and two of his sons 
were stabbed.” I then asked him if what 
we heard about General Grant was correct, 
that he was assassinated on the same night. 
He answered, “No, I don’t know whether 
By Assistant Judge Advocate Burnett. 
Q. Go on and state what he said to you in 
the yard. 
A. He said, “0, my! what a trouble I 
see.” I said to him, “Why, what have you 
to trouble you?” Said he, “More than I 
will ever get shut of.” 
Q. That was immediately after you had 
been speaking of the assassination, was it? 
A. No, sir; some time afterward. I took 
it for granted— 
Assistant Judge Advocate Burnett. You 
need not state what you took for granted. 
Give the words, and nothing else. 
A. That was about all he said at that time. 
Atzerodt had been paying hie addresses to 
Mr. Metz’s daughter, and she had slighted him 
some time before he went out into the yard. 
By Mr. Poster. DEFENSE OF GEORGE A. ATZERODT. 
153 
Hartman Kichter. 
Assistant Judge Advocate Bingham. If 
the counsel wishes to prove that the prisoner, 
Atzerodt, is a coward, I will withdraw my 
objection. 
Witness. I know nothing of his reputa- 
tion for cowardice, save what I have heard 
from others. I have heard men say that he 
would not resent an insult. 
For the Defense.—May 31 
I live in Montgomery County, Maryland, 
ar>d am a cousin of the prisoner, George A. 
Atzerodt. He came to my house about 2or 
? 0 clock on Sunday afternoon. I met him 
the morning, on my road to church. I 
(*'d not have much conversation with him, 
I noticed nothing peculiar about him. 
remained at my house from Sunday till 
Thursday morning, and occupied himself 
'yith walking about, working in the garden a 
Jdtle; and going among the neighbors. He 
bl.d not attempt to get away, or to hide 
himself. When he was arrested he seemed 
very willing to go along. He had on a kind 
gray overcoat when he came to my house. 
By Mr. Doster. 
Alexander Brawner. 
For the Defense.—June 8. 
By Mr. Doster. 
I live in Port Tobacco, Md. I have known 
the prisoner, Atzerodt, six or eight years. 
He was- at Port Tobacco about the last of 
February or the beginning of March. I think 
he came from Bryantown; he rode a sorrel 
horse. I had some business in the country, 
and he went along with me. 
I never considered Atzerodt a courageous 
man, by a long streak. I have seen him in 
scrapes, and 1 have seen him get out of 
them very fast. I have seen him in bar-room 
scrapes, little scrapes, and where pistols were 
drawn, and he generally got out of the way, 
and made prett}r fast time. His reputation 
is that of a notorious coward. 
Samuel McAllister. 
For the Defense.—May 30. 
By Mr. Doster. 
During the month of April I saw a pistol 
Rnd a dirk in Atzerodt’s possession. He 
Save them to me to keep for him. 
..._d'he knife and pistol found at the Kirkwood House 
ere exhibited to the witness.] 
Those are not the knife and pistol. 
Uhe knife found near F and Ninth Streets on the morn- 
u5 of the 15th of April was exhibited.] 
That looks very much like the knife; it 
'vas a knife of that description. 
ni,Exhibiting to the witness the pistol identified by John 
Tidwell, on which he loaned £lo.] 
That looks very much like it. 
On the evening of the 14th of April, at 
a‘>out 10 o’clock, he rode up to the door 
LPennsylvania House] and called the black 
b°y out to hold his horse. I did not take 
Particular notice of him, or notice whether 
Re was excited or not. 
Q- Do you know any thing about his rep- 
utation for courage ? * . 
Assistant Judge Advocate Bingham. I 
yffiject to that; I do not think we are going 
10 try his character for courage. 
. Mr. Doster. May it please the Court, I 
ffitend to show that this man is a constitu- 
10nal coward; that if he had been assigned 
j e duty of assassinating the Vice-President, 
ie never could have done it; and that, from 
118 known cowardice, Booth probably did 
?°t assign him to any such duty. Certainly 
18 just as relevant as any thing can be. 
Louis B. Harkins. 
For the Defense.—June 8. 
I have known Atzerodt for probably ten 
years. He was down at Port Tobacco about 
the latter part of February or the beginning 
of March. I think I saw' him for a day or 
two. He is looked upon down there, by folks 
that know him, as a good-natured kind of a 
fellow. We never gave him credit down our 
way for much courage. I call to mind two 
difficulties in which I saw him—one hap- 
pened in my shop, and the other in an oys- 
ter saloon—in both of which I thought he 
lacked courage. 
By Me. Doster. 
Washington Briscoe. 
For the Defense.—May 30. 
By Mr. Doster. 
I have known the prisoner, Atzerodt, six 
or seven years at Port Tobacco. He has al- 
ways been considered a man of little courage, 
and remarkable for his cowardice. 154 
THE CONSPIRACY TRIAL. 
TESTIMONY CONCERNING LEWIS PAYNE. 
Mrs. Martha Murray. 
For the Prosecution.—May 19. 
him, and when I found out that he would 
go up, I asked him to excuse me. He said, 
“Oil know; that’s all right,” I thought 
he might, perhaps, be sent by Dr. Yerdi, and 
he might go up and tell Mr. Seward that I 
would not let him go up, or something of 
that kind. I got on the steps and went up 
in front of him. As he went up I asked him 
not to walk so heavy. He met Mr. Freder- 
ick Seward on the steps this side of his 
father’s room. He told Mr. Frederick that 
he wanted to see Mr. Seward. Mr. Frederick 
went into the room and came out, and told 
him that he could not see him; that his 
father was asleep, and to give him the 
medicine, and he would take it to him. 
That would not do; he must see Mr. Seward. 
He must see him; he said it in just that 
way. Mr. Frederick said, “You can not see 
him.” He kept on talking to Mr. Frederick, 
saying, that he must see him, and then Mr. 
Frederick said, “I am the proprietor here, 
and his son; if you can not leave your mes- 
sage with me, you can not leave it at all.” 
Then he had a little more talk there for a 
while, and stood there with the little package 
in his hand. Mr. Frederick would not let 
him see Mr- Seward no way at all, and then 
he started toward the step and said, “Well, 
if I can not see him—” and then he mum- 
bled some words that I did not understand, 
and started to come down. I started in front 
of him. I got down about three steps, I guess, 
when I turned around to him and said, 
“Do n’t walk so heavy.” Then by the time 1 
turned around to make another step, he had 
jumped, back and struck Mr. Frederick.' By 
the* time I could look back, Mr. Frederick 
was falling; he threw up his hands and fell 
his sister’s room; that is two doors 
this side of Mr. Seward’s room. Then I ran 
down stairs and out to the front door, hal- 
looing “murder,” and then ran down to Gen- 
eral Augur's head-quarters. I did not see 
the guard, and ran back again. By that time 
there were three soldiers who had run out of 
the building and were following me. When 
I got way back to the house, turning the 
corner there, I saw this man run out and get 
on his horse. He had on a light overcoat, 
but he had no hat on when he came out 
and got on his horse. I did not see his horse 
when he came to the house, and did not 
know he had a horse until I saw him get 
on it. I hallooed to the soldiers, “There he 
is, going on a horse!” They slacked their 
running, and ran out into the street, and did 
not run any more until he got on his horse 
' and started" off. I followed him up as far as 
My husband keeps the Herndon House, 
corner of Ninth and F Streets, opposite the 
Patent Office, cat-a-cornered. The only one 
of the prisoners I recognize as having seen 
before is that man, [pointing to the. accused, 
Lewis Payne.] 1 think I have seen him; 
his features are familiar to me, but I would 
not say for certain. He was two weeks in 
our house, and he left on the Friday, the day 
of the assassination. He left on the 14th 
day, about 4 o'clock. We have dinner at 
half-past 4, and this gentleman came into 
the sitting-room and said he was going away, 
and wanted to settle his bill; and he wished 
to have dinner before the regular dinner; so 
I gave orders for the dinner to be cut off 
and sent up to him. He went into the 
dining-room to eat his dinner, and I have 
not seen him since. 
I do not recognize either of the prisoners as 
having visited this man. I remember that 
he once came in with two gentlemen to sup- 
per. Ido not remember that any one spoke 
to me about engaging a room for this man. 
I am spoken to by so many that I could 
not remember any particular circumstance 
of that kind. 
Wm. H. Bell (colored.) 
For the Prosecution.—May 19. 
I live at the house of Mr. Seward, Secre- 
tary of State, and attend to the door. That 
man [pointing to the accused, Lewis Payne] 
came to the house of Mr. Seward on the 
night of the 14th of April. The bell rang 
and I went to the door, and that man came in. 
He had a little package in his hand; he said 
it was medicine for Mr. Seward from Dr. 
Verdi, and that he was sent by Dr. Yerdi to 
direct Mr. Seward how to take it. He said 
he must go up. I told him that he could not 
go up; then he repeated the words over, and 
was a good while talking with me in the hall. 
He said he must go up; he must see him. 
He talked very rough to me in the first place. 
I told him he could not see Mr. Seward; 
that it was against my orders to let any one 
go up, and if he would give me the medi- 
cine and tell me the directions. I would take 
it up, and tell Mr. Seward how to take it. 
He was walking slowly all the time, listen- 
ing to what I had to say. He had his right 
hand in his coat-pocket, and the medicine in 
his left. He then walked up the hall toward 
the steps I had spoken pretty rough to TESTIMONY CONCERNING LEWIS PAYNE. 
155 
Street and Fifteen-and-a-lialf Street, and lie 
urned right out into Vermont avenue, where 
1 -lost sight of him. He rode a bay mare; it 
[and I ran out, I did not observe any horse; 
j but when I saw him run out of the house, I 
I followed him to I Street; it seems to me he 
'Vas a very stout animal, and did not appear 
;° be a very high horse. He did not go very 
ast until he got to I Street. I must have 
been within twenty feet of him, but at I 
Street he got away from me altogether. 
I do not know what he struck Mr. Fred- 
rick Seward with. It appeared to be round, 
and to be mounted all over with silver, and 
'[as about ten inches long. I had taken it 
0r a knife, but they all said afterward it was 
a pistol. I saw him raise his hand twice to 
strike Mr. Frederick, who then fell. I did 
Hot wait any longer, but turned round and 
'vent down stairs. When he jumped round, 
jl® just said, “You,” and commenced hitting 
him on the head; but I had hardly missed 
him from behind me until I heard him say 
that word. 
went very slow, because I kept up with him 
till he got to I Street. 
William H. Bell. 
Recalled for the Prosecution.—May Ift 
[By direction of the Judge Advocate the handcuffs 
were removed from the prisoner Payne, who put on the 
dark-gray coat, and over it the white and brown mixed 
coat, and the hat identified by Colonel Wells.] 
When he came to Mr. Seward’s he had on 
that coat, and that is the very same hat he 
had on; one corner of it was bent down over 
his eye. He had on a white collar, and looked 
quite nice to what he looks now. He had 
the same look as he has now, but he looked 
pretty fiery out of his eyes at me, the same 
way he looks now. 
I never saw this man about the door that I 
know of, nor did I see any person on the 
pavement when I came out. 
Sergeant George F. Robinson. 
For the Prosecution.—May 19. 
Cross-examined by Mr. Roster. 
On the 14th of April last I was at the resi- 
dence of Mr. Seward, Secretary of State, 
acting as attendant nurse to Mr. Seward, who 
was confined to his bed by injuries received 
from having been thrown from his carriage. 
One of his arms was broken and his jaw frac- 
tured. 
I do not know how old I am; I guess I 
am between nineteen and twenty. I was at 
school four or five years. I have been at 
Mr. Seward’s nine months, and am second 
gaiter. The talk with the man was inside; 
he came in and I closed the door. He had a 
very fine voice. 
That man [pointing to the accused, Lewis 
Payne] looks like the man that came to Mr. 
Seward’s house on that Friday night. I 
heard a disturbance in the hall, and opened 
the door to see what the trouble was; and as 
I opened the door this man stood close up to 
it. As soon as it was opened, he struck me 
with a knife in the forehead, knocked me 
partially down, and pressed by me to the bed 
of Mr. Seward, and struck him, wounding him. 
As soon as I could get on my feet, I en- 
deavored to haul him off the bed, and then 
he turned upon me. In the scuffle, some one 
[Major Seward] came into the room and 
clinched him. Between the two of us we got 
him to the door, or by the door, and he, 
unclinching his hands from around my neck, 
struck me again, this time with his fist, 
knocking me down, and then broke away 
from Major Seward and ran down stairs. 
I saw him strike Mr. Seward with the same 
knife with which he cut my forehead. It 
was a large knife, and he held it with the 
blade down below his hand. I saw him cut 
Mr. Seward twice that I am sure of; the 
first time he struck him on the right cheek, 
and then he seemed to be cutting around his 
neck. I did not hear the man say any 
thing during this time. 
I afterward examined the wounds, and 
found one cutting his face from the right 
cheek down to the neck, and a cut on his 
neck, which might have been made by the 
same blow, as Mr. Seward was partially 
sitting in bed at the time; and another on 
the left side of the neck. Those were all I 
1 noticed his hair and his pantaloons, and 
h noticed his boots that night. He talked to 
Mr. Frederick at least five minutes while up 
there near his father’s door, in the third story. 
Me had on very heavy boots at the time, black 
Pants, light overcoat, and a brown hat. His 
£ace ivas very red at the time he came in; and 
he had very black, coarse hair. 
1 saw the same boots on him the night they 
captured him, and the same black pants. 
_ The first time I saw the prisoner after that 
night was on the 17th of April. They sent 
for me about 3 o’clock in the morning to go 
down to General Augur’s head-quarters. A 
Colonel there, with large whiskers and mous- 
tache, [Colonel H. H. Wells,] asked me to 
describe this man. I told him he had black 
hair, a thin lip, very fine voice, very tall, and 
broad across the shoulders, so I took him to 
be. There were twenty or thirty gentlemen 
|n the room at the time, and he asked me 
ft any gentleman there had hair like him, 
and I told him there was not. He then said, 
I will bring a man in here and show him 
to you.” I was leaning down behind the desk 
so that I could not be seen. The light was 
then put up, and a good many men walked 
into the room together. I walked right up to 
this man, and put my finger right here, [on the 
bp,] and told him I knew him; that he was 
the man. Nobody had offered me any money 
|°r giving the information, and no threats had 
been made to me. 
When he struck Mr. Frederick Seward, 156 
THE CONSPIRACY TRIAL. 
noticed, buUthere may have been more, as 
it was all bloody when I saw it. Mr. Sew- 
ard received all his stabs in bed; but after 
the man was gone, and I went back to the 
bed, I found that he had rolled out, and was 
lying on the floor. - - 
I did not see Mr. Frederick Seward down 
floor; the first I saw of him was after 
the man was gone; when I came back into 
the room he was inside the door, standing up. 
The man went down stairs immediately after 
he unwound his arm from round my neck, 
and struck me with his fist. I did not see 
him encounter Major Seward. 
father, I shoved the person of whom I had 
hold to the door, with the intention of getting 
him out of the room. While I was pushing 
him, he struck me five or six times on the 
forehead and top of the head, and once on 
the left hand, with what I supposed to be a 
bottle or decanter that he had seized from 
the table. During this time he repeated, in 
an intense but not strong voice, the words} 
“I’m mad! I’m mad!’ On reaching the 
hall he gave a sudden turn, and sprang away 
from me, and disappeared down stairs. When 
near the door of my father’s room, as I was 
pushing him out, ahd he came opposite 
where the light of the hall shone on him, I 
saw that he was a very large man, dark, 
straight hair, smooth face, no beard, and I 
had a view of the expression of his counte- 
nance. I then went into my room and got my 
pistol. It may possibly have taken me a 
minute, as it was in the bottom of m5r carpet- 
bag, to find it. I then ran down to the fro’nt 
door, intending to shoot the person, if he 
attempted to return. While standing at the 
door, the servant boy came back and said 
the man had ridden off on a horse, and that 
he had attacked the persons in the house 
with a knife. I then realized for the first 
time that the man was an assassin, who 
had entered the house for the purpose of 
murdering my father. 
I suppose it was five minutes before I went 
back to my father’s room. Quite a large 
crowd came around the door; I sent for the 
doctors, and got somebody to keep the crowd 
off before I went up to his room. It might 
not have been five minutes, but certainly 
thr§e, before I got back; I think nearer five. 
1 was injured pretty badly myself, I found, 
when I got up stairs again. After my fa- 
ther’s wounds were dressed, I suppose about 
an hour, and after my own head had been 
bandaged, I went in and saw my father, and 
found that he had one very large gash on his 
right cheek, near the neck, besides a cut on 
his throat on the right-hand side, and one 
under the left ear. I did not examine my 
brother's wounds; in fact, I went into his 
room but for a short time that night. I did 
not know how badly hurt he was. The next 
day he was insensible, and so remained; and 
it was four or five days before I saw what his 
wounds were. I found then that he had two 
wounds, one on the scalp, that was open to 
the brain, and another one over the ear. 
After the pieces of fractured skull were taken 
out, it left the covering of the brain open. 
It was such a wound that I should have sup- 
posed could have been made with a knife, but 
the surgeons seemed to think it was made 
by the hammer of a pistol. I heard that a 
pistol was picked up in the house, but I did 
not see it. I saw the hat that was found, 
and think I should recognize it. 
After he was gone we picked up a revolver, 
Or parts of one, and his hat. 
I should judge that to be the hat; it looks 
like the one found there. 
[A slouch felt hat was exhibited to the witness.] 
[A revolver was exhibited to the witness.] 
That is the revolver picked up; I did not 
see this part, [the ramrod, which was discon- 
nected.] 
[The hat and revolver were both offered in evidence.] 
[At the request of the Court, the guard was directed to 
place the hat on the head of the prisoner, Payne, to see if 
it fitted him or not, which was done, Payne smiling 
pleasantly. It was found to fit him.] 
Recalled for the Prosecution.—May 19. 
[The accused, Lewis Payne, clad in the coat and vest in 
which he was arrested, and the hat found at Mr. Sew- 
ard’s, was directed to stand up for recognition.] 
He looks more natural now than he did 
before. lam not sure about it, but I think 
that is the man that came to Secretary Sew- 
ard’s house on the night of the 14th of April, 
a little after 10 o’clock. The pistol that was 
picked up in the room after he left was 
loaded. I examined it. 
Major Augustus H. Seward. 
For the Prosecution.—May 26. 
I am the son of the Hon. William H. Sew- 
ard, Secretary of State, and was at his home 
in this city on the night of the 14th of April 
last. I saw that large man, with no coat on, 
[pointing to the accused, Lewis Payne,] at 
ray father’s house that night. 
I retired to bed at half-past 7 on the night 
of the 14th, with the understanding that I 
was to be called about 11 o’clock to sit up with 
my father. I very shortly fell asleep, and 
so remained until awakened by the screams 
of my sister, when I jumped out of bed and 
ran into my father’s room in my shirt and 
drawers. The gas in the room was turned 
down rather low, and I saw what appeared to 
me to be two men, one trying to hold the other 
at the foot of my father’s bed. I seized by 
the clothes on his breast the person who was 
held, supposing it was my father, delirious; 
but, immediately on taking hold of him, I 
knew from his size and strength it was not 
my father. The thought then struck me 
that the nurse had become delirious sitting 
up there, and was striking about the room at 
random. Knowing the delicate state of my 
[A slouch felt hat was exhibited to the witness.] 
I am quite certain that is the hat. I did 
not see it the night it was picked up, but tl < TESTIMONY CONCERNING LEWIS PAYNE. 
157 
*|ext day it was taken out of the bureau- 
drawer, where it had been put the night be- 
°re, and shown to me. 
■The surgeons think it was a knife with 
Much I was struck, and after the servant boy 
told me what the man had been doing, I sup- 
posed so myself, though at the time 1 thought 
Mvas being struck with a bottle or a decanter. 
iNot hav ing any idea that it was a man with 
a knife, I did not think any thing about it. 
I feel entirely satisfied that the prisoner at 
jle bar, Payne, is the same man that made 
toe attack on that night. 
Doctor T. S. Verdi. 
lam a physician. On Friday night, the 
14th of April, about half-past 10 o’clock, per- 
haps a little sooner, I was summoned to 
the house of Mr. Seward, the Secretary of 
State. I saw the Hon. William H. Seward, 
Mr. Frederick Seward, Major Augustus 11. 
Seward, Mr. Robinson, and Mr. Hansell,'all 
wounded, and their wounds bleeding. I had 
left Mr. Seward about 9 o’clock that evening, 
very comfortable, in his room, and when I saw 
him next he was in his bed, covered with 
blood, with blood all around him, blood under 
the bed, and blood on the handles of the doors. 
I found Mr. Emrick W. Hansel! on the 
same floor with Mr. Seward, lying on a bed. 
He said he was wounded. I undressed him, 
and found a stab over the sixth rib, from the 
spine obliquely toward the right side. I put 
my fingers into the wound to see whether it 
had penetrated the lungs. I found that it 
had not, but I Could put my fingers probably 
two and a half inches or three inches deep. 
Apparently there was no internal bleeding. 
The wound seemed to be an inch wide, so 
that the finger could be put in very easily 
and moved all around. It was bleeding then, 
very fresh to all appearances; probably it was 
not fifteen or twenty minutes since the stab 
had occurred. 
For the Prosecution—May 22. 
Cross-examined by Mr. Dostbr. 
This is not the first time I have seen the 
Prisoner since the attack; I saw him on board 
Me monitor the day after he was taken. He 
'Ms brought up on deck of the monitor, and 
■*- took hold of him the same way I had hold 
°t him when I shoved him out of the room, 
aod I looked at his face, and he had the same 
a in every way, that he had the 
moments that I saw him by the light in 
Me hall; his size, his proportions, smooth 
laCe, no beard, and when he was made to 
repeat the words, “I’m mad! I’m mad!” I 
recognized the same voice, varying only in 
the intensity. 
Surgeon-Generax, Joseph K. Barnes. 
For the Prosecution.—May 19. 
I was called on the night of the 14th of 
April, a few minutes before 11 o’clock, to go to 
‘V; Seward, the Secretary of State. On ar- 
rivmg at his house, I found the Secretary 
founded in three places; Mr. Frederick W. 
Seward insensible and very badly wounded in 
Me head; the rest of the family I did not 
®ee, as I was occupied with them. The 
Secretary was wounded by a gash in the right 
cheek, passing around to the angle of the 
Ja'v; by a stab in the right neck, and by a 
etab in the left side of the neck. 
Mr. Frederick Seward was suffering from a 
fracture of the cranium in two places; he 
Was bleeding very profusely, exceedingly faint, 
ahnost pulseless, and unable to articulate. 
1 He wounds seem to have been inflicted by 
some blunt instrument—the butt of a pistol, 
a loaded bludgeon, or something of that 
kind. 
Mr. Seward, the Secretary of State, had 
keen progressing very favorably. He had re- 
covered from the shock of the accident of 
fro days previously, and was getting along 
Mry well. His right arm was broken close to 
Me shoulder-joint, and his jaw was broken in 
w°_ places; but the serious injury of the first 
a°oident was the concussion. 
The wounds of Mr. Seward were of a very 
dangerous character, and he is still suffering 
from them. 
1- saw Major Seward in the room; but I did 
n.°t treat any of the wounded persons profes- 
&°nally, except Mr. Seward. 
Cross-examined by Mr. Doster. 
Mr. was conscious, but 
had great difficulty in articulating. He wanted 
to say something, but he could not express 
himself. He knew me perfectly well. He 
had a smile of recognition on his lips, and as 
I looked upon his wound on the forehead, he 
was evidently impressed with the idea that 
the severest wound was in the back of the 
head, and he commenced saying, “It is, it 
is,” and would put his finger to the back of 
his head. I examined the wound, and found 
that his skull was broken, and I said to him, 
“You want to know whether your skull is 
broken or not?” and he said, “Yes.” He 
was sensible for some time; but probably in 
half an hour he went into a sleep, from which 
he woke in about fifteen or twenty minutes, 
and we attempted to put him to bed. Then 
he helped himself considerably. We put 
him to bed, and he went to sleep, in which 
he remained for sixty hours; he then im- 
proved in appearance, and gradually became 
more sensible. 
I saw terror in the expression of all Mr. 
Secretary Seward’s family, evidently expecting 
that his wounds were mortal. 1 examined 
the wounds, and immediately turned round to 
the family and said, “ I congratulate you all 
that the wounds are not mortal; ” upon which 
Mr. Seward stretched out his hands and re- 
ceived his family, and there was a mutual 
congratulation. This was probably twenty 
minutes before Doctor Barnes arrived. 158 
THE CONSPIRACY TRIAL. 
Mr. Seward had improved very much from 
his accident, and was not in a critical condi- 
tion when this attack was made. The effect 
of the wounds he received on the night of the 
14th was principally from loss of blood, which 
weakened him very much, and made his con- 
dition still more delicate and difficult to rally 
from the shock. The wound itself created 
more inflammation in the cheek that had 
been swollen by the injury received before, 
and rendered the union of the bones more 
difficult. It is not my opinion that the 
Colonel H. H. Wells. 
I had the prisoner, Payne, in my custody 
on the 17th of April, the night of his arrest. 
He had on a dark-gray coat, a pair of black 
pants, and something that looked like a skull- 
cap. 
For the Prosecution.—May 19. 
I took off his coat, shirt, pants, vest, and 
all his clothing the next day on board the 
monitor. He had on a white linen shirt and 
a woolen under-shirt, minus one sleeve; a 
wounds received by Mr. Seward tended to 
aid his recovery from his former accident; 
that idea got afloat from the fact that the 
cheek was very much inflated and swollen, 
and that by cutting into it, it would probably 
recover faster; but I never entertained and 
never expressed such an opinion. 
pair of boots with a broad ink-stain on them 
on the inside. 
[A box containing varffrhs articles of clothing wa!s ex- 
hibited to the witness.] 
These are the articles. There is a distinct 
mark on them by which I recognize them. 
I described to the prisoner at the time what 
I supposed was his position when he com- 
mitted the assault, and told him I should 
find blood on the coat-sleeve in the inside. 
Spots of blood were found in the position I 
described. 
Robert Nelson (colored.) 
For the Prosecution.—May 20. / 
I live in Washington; I used to live in 
Virginia. » 
[A knife shown to the witness.] 
That looks like'the knife I found opposite 
Secretary Seward’s house, on the Saturday 
morning after he wad* stabbed. I gave it to 
an officer at the, door first, and afterward to 
that gentleman, [pointing to Surgeon John 
Wilson, U. S. A.] 
Cross-examined by Mr. Poster. 
I do not say that it is the same knife, but 
it looks like the one I found in the middle 
of the street, right in front of Secretary Sew- 
ard’s house, between 5 and 6 o’clock in the 
morning. 
Dr. John Wilson. 
For the Prosecution.-—May 20. 
[The knife shown to Robert Nelson was exhibited to the 
witness.] 
This is the knife I received from the col- 
ored boy who has just left the stand. He 
gave it to me in the library of Mr. Seward’s 
house, about 10 o’clock on Saturday morn- 
ing, the 15th of April. 
Thomas Price. 
For the Prosecution.—May 19. 
On Sunday afternoon, the 16th of April, I 
picked up a coat in a piece of woods that 
lies between Fort Bunker Hill and Fort Sar- 
atoga. 
[Two coats were here submitted to the witness.] 
This is the coat. It is a white and brown 
mixed cloth. I discovered traces of blood on 
the sleeve; that is how I recognize it. I 
found it about three miles from the city, in 
the direction of the Eastern Branch. 
There is a road from one fort to another, 
and the coat was found in the piece of woods 
on the eastern side of the road. 
[The witness exhibited the spots referred to.] 
I found spots, also, on the white shirt- 
sleeve. I called Payne’s attention to this 
at the time, and said, “ What do you think 
now?” He leaned back against,the side of 
the boat and said nothing. 
[The articles were offered in evidence.] 
I asked him where he had got his boots. 
He said he had bought them in Baltimore, 
and had worn them three months. I called 
his attention to this falsehood, as it was apt- 
parent the boots had Only been slightly worn. 
He made no reply to that. 
I took the boots away with me, and sent 
one of them to the Treasury Department, to 
ascertain, if possible, what the name was. 
Cross-examined by Mr. Doster. 
I did not threaten the prisoner at any time. 
I think it is very possible I called him a liar. 
I Saw stains of blood on the coat that was 
brought to me from Fort Bunker Hill; I 
called the prisoner’s attention to the fact, 
and said, “How did that blood come there?” 
He replied, “It is not blood.” I said, “ Look 
and see, and say, if you can, that it is not 
blood.” He looked at it and said, “I do not 
know how it came there.” 
Charles H. Rosch. 
For the Prosecution.—May 19. 
I was present when the prisoner, Payne, 
was searched. 
[A bundle of articles, including a pair of boots and a 
pocket-compass, was handed to the witness.] 
All these articles were taken from the per- 
son of that big man there, [pointing to. the 
accused, Lewis Payne.] 
The pocket-compass lie himself handed to 
Mr. Samson, and Mr. Samson handed it to 
me. I recognize the boots; they were pullafci 
off in my presence. TESTIMONY CONCERNING LEWIS PAYNE. 
159 
Spencer M. Clark. 
boot after it bad been subjected to chemical 
preparations by Mr. Clark. By examining 
the writing through a glass, I came to the 
conclusion that the name written there was 
“J. W. Booth.” 
For the Prosecution.—May 19. 
[Submitting to the witness a pair of boots.] 
I had one of these boots yesterday for 
exaniination. I then discovered the name, 
w*?ich has now mostly disappeared under the 
euect of the acid I put upon it. 
. When I received the boot, it had on the 
lnside a black mark, made apparently to 
c°ver -writing. I examined it with a micro- 
6c°pe, and found that it was one coat of ink 
overlaid on another. I then attempted to 
al<e off the outer coat to see what was 
’elow, and partially succeeded. The name 
aPpeared to me to be J. W. Booth. The J 
and W were distinct; the rest of the writing 
M'as obscure. I can not speak positively of 
a thing that is in itself obscure, but it left 
Very little doubt upon my mind that the 
aarne was Booth. 
I did not know to whom the hoot belonged, 
or where it came from; and I had no suspi- 
cion why it was in Mr. Clark’s possession. I 
was accidentally passing the room of the 
Assistant Secretary of the Treasury, when 
Mr. Clark said, “ I have something curious 
to show you, I wish you would look at it,” 
or words to that effect. The first letter, “J,” 
was very distinct; the W and B were less so. 
I thought the outline of the writing was quite 
visible and determinable, but to say that it 
was distinct would not be true. I was asked 
what I thought the name was. My reply 
was, I thought it was the name of a very 
distinguished individual. 
Cross-examined by Mr. Poster. 
Cross-examined by Mr. Poster. 
. I have charge of the engraving and print- 
ing in the Treasury Pepartment. I took off 
outer coat of ink by the use of oxalic 
Hcid. Where the lower coat of ink has 
retnained exposed to the air longer than the 
uPper coat, it is possible to take off the 
aPper and leave the lower or inner coat 
The reason the latter part of 
le name in this case was more obscure than 
le first, is because I left the acid too long 
°n the outer coat, and it attacked the lower 
°ne. The upper coat is separated from the 
by washing with water as fast as it is 
>ssolved. The acid is put on under a mag- 
mer, and the moment the outer coat disap- 
l?earB, and the under one begins to show, I 
estroy the acid. An examination at the 
the outer coat dissolves and is 
ashed away, shows the lower coat of writ- 
ng- I supposed the lower coat had been 
posed to the air longer than the outer, and 
I'ade an effort to test it, which proved that 
1 so. 
Ole boot was given me by Mr. Field, 
**nd Assistant Secretary of the Treasury, 
10 told me it had belonged to Payne. I 
xPected to find the name of Payne, but I 
lougJit I plainly discovered the “th ” at the 
j . > when the name Booth came to my 
was before I had clearly detenn- 
gled upon the B. I should hesitate to 
"ear positively to any thing so obscure as 
obliterated signature, but 1 entertain very 
Tl G t^ the narne is J- W. Booth. 
rt/fre is no process, that I arn aware of, to 
BaA°re ie name- The writing can not be 
J'd to be erased; it has been acted upon by 
le acid which destroys the color of the ink. 
I arrived at the conclusion that it was the 
name of J. W. Booth before I had received 
any intimation as to what it was supposed 
to be. 
By the J edge Advocate. 
Stephen Marsh. 
For the Prosecution.—May 19. 
That boot was shown to me by Mr. Field, 
Assistant Secretary of the Treasury, yester- 
day. On examining it, I thought I could 
make out certain letters on it. At first 1 
could make out “J. W. B h,” then I 
thought I could trace a t next to the h ; thus: 
J. W. B th. I could not be positive as 
to the intervening letters; I examined them 
only with the naked eye, but in regard to the 
letters I have mentioned, I have no doubt at 
all. In the intervening space, between the 
B and th, there was room for two or three 
letters. 
Cross-examined by Mr. Poster. 
The boot was handed to me by Mr. Field 
in his room. I was told to examine it, and 
see if I could make out what name appeared 
to be written there. I did so, and the result 
I have stated. 
Lieutenant John F. Toffey. 
For the Prosecution.—May 17. 
On the night of the 14th or the morning 
of the 15th of April last, it might have been 
a little after 1, as I was going to the Lin- 
coln Hospital, where I am on duty, I saw a 
dark-bay horse, with saddle and bridle on, 
standing at Lincoln Branch Barracks, about 
three-quarters of a mile east of the Capitol. 
The sweat was pouring off’ him, and had 
made a regular puddle on the ground. A 
sentinel at the hospital had stopped the horse. 
I put a guard round it and kept it there 
until the cavalry picket was thrown out, 
Edward Jordan. 
For the Prosecution.—May 19. 
am a. solicitor of the Treasury. I was 
Attested to look at the ink-marks on that 160 
THE CONSPIRACY TRIAL. 
when I reported the fact at the office of'the 
picket, and was requested to take the horse 
down to the head-quarters of the picket, at 
the Old Capitol Prison. I there reported 
having the horse to Captain Lord, and he 
requested me to take it to General Augur’s 
head-quarters. Captain Lansing of the Thir- 
teenth Hew York Cavalry and myself took 
it there, where the saddle was taken off, and 
the horse taken charge of. 
Cross-examined by Mr. Doster. 
The horse was on a sort of by-road that 
leads to Camp Barry; it turns north from the 
Branch Barracks toward Camp Barry to 
the Bladensburg road. I found him by the 
dispensary of the hospital. He had come 
running there, but from what direction I do 
not know. 
jßecalled.—May 18 
[A saddle was here shown to the witness.] 
I have been to General Augur’s stables on 
Seventeenth and I Streets, and there recog- 
nized the horse I found. 
I should think that was the saddle; I 
know the stirrups. When I got to General 
Augur’s head-quarters, I found that the horse 
was blind of one eye. Whether he had 
fallen or not I do not know, but as I rode 
him down I noticed that he was a little 
lame. 
See also testimony of 
Louis J. Weichmann.. pages 113,118 
Miss Anna E. Surratt page 130 
Miss Honora Fitzpatrick “ 132 
John T. Holahan “ 139 
Mrs. Eliza Holahan “ 132 
From the Lincoln Hospital to the Navy 
Yard Bridge is fully a mile. 
Major H. W. Smith “ 121 
Capt. W. M. Wermerskirch “ 123 
R. C. Morgan “ 122 
[The saddle was put in evidence.] 
DEFENSE OF LEWIS PAYNE. 
Miss Margaret Branson. 
but the declaration of a person suspected of 
insanity is an act, and therefore admissible. 
Assistant Judge Advocate Bingham. That 
is all very true; but the proper way to get 
at it is to lay some foundation for introduc- 
ing the declarations in support of the allega- 
tion that the party was insane. In this case 
no foundation has been laid. 
For the Defense.—June 2. 
I live at Ho. 16 North Eutaw Street, 
Baltimore. I first met the prisoner, Payne, 
at Gettysburg, immediately after the battle 
there. I was a volunteer nurse, and he was 
in my ward. He was very kind to the sick 
and wounded. Ido not know that he was a 
nurse, nor do I know that he was a soldier. 
As nearly as I remember, he wore blue 
pants, no coat, and a dark slouch hat. He 
went there by the name of Powell, and by 
the name of Hoctor. The hospital contained 
both Confederate and Union soldiers. I was 
there about six weeks, and left the first 
week in September. I do not remember 
whether Powell was there the whole of that 
time. 
By Mr. Hosier. 
Mr. Hosier. I claim that the whole con- 
duct of the alleged murderer, from beginning 
to end, is the work of an insane man, and 
that any further declarations I may prove, 
are merely in support of that theory and of 
that foundation as laid by the prosecution. 
Assistant Judge.Advocate Bingham. Ac- 
cording to that, the more atrocious a man’s 
conduct i», the more he is to be permitted to 
make a case for himself by all his wild dec- 
larations, of every sort and to everybody, at 
every time and at every place. If he only 
manages to get a knife large enough to sever 
the head of an ox as well as the head of 
a man, rushes past all the friends of a sick 
man into his chamber, stabs him first on one 
side of the throat and then on the other, and 
slashes him across the face, breaks the skull 
of his son, who tries to rescue him, yetys, 
“I am mad! I am mad!” and rushes to the 
door and mounts a horse which he was care- 
ful to have tied there, he may thereupon 
prove all his declarations in his own defense, 
to show that he was not there at all. 
Mr. Hosier. It is claimed here that there 
is no foundation laid for the plea of insanity- 
In the first place, all the circumstances con- 
I saw him again some time that fall or 
winter, at my mother’s house. He was 
there but a very short time; ouly a few 
hours, and I had very little conversation 
with him. 
Q. Hid he say to you where he was going ? 
Assistant Judge Advocate Bingham. The 
witness need not state; what he said to her 
is altogether incompetent evidence. 
Mr. Hosier. May it please the Court, I 
intend to set up the plea of insanity, as I 
have already stated, in the case of the pris- 
oner, Payne. It is very true that, under all 
other pleas, declarations of this kind are not 
considered competent evidence for the defense, DEFENSE OF LEWIS PAYNE. 
161 
nected with the assassination show the work 
°f insane men. The entrance into the house 
°f Mr. Seward was by a stratagem which is 
Peculiarly indicative of insane men. Then 
|he conduct of Payne, after he entered the 
hougej without the slightest particle of dis- 
Suise, speaking to the negro for five minutes 
a person that he must know would be able 
to recognize him again therafter; the ferocity 
°f the crime, which is not indicative of hu- 
JHan nature in its sane state; his leaving all 
|he traces which men usually close up be- 
hind him. Instead of taking away his pistol 
acd his knife and his hat, he walks leisurely 
°ut of the room, having plenty of time to 
lake these away, and abandons them; he 
takes his knife and deliberately throws it 
down in front of Mr. Seward’s door, as 
though anxious to be detected; and then, 
lnstead of riding off quickly, as a sane man 
Would under the circumstances, he moves off 
®o slowly that the negro tells you he followed 
him for a whole square on a walk; and after- 
ward, instead of escaping either to the north, 
°.n the side where there were no pickets at the 
time, (for it was shown he had a sound 
horse,) or instead of escaping over the river, 
as he had ample opportunity of doing—be- 
cause if he could not get across the Ana- 
°osta Bridge, he might have swam the river 
at any point—he wanders off into the woods, 
I’ldes around like a maniac, abandons his 
dorse, takes to the woods, and finally comes 
hack to the very house which, if he had 
any sense, he knew must be exactly the 
house where he would be arrested—where there 
Were guards at the time, and where he must 
have known, if he had been sane, that he 
Would immediately walk into the arms of 
~he military authorities. He goes to this 
house in a crazy disguise; because who in 
the world ever heard of a man disguising 
himself by using a piece of his drawers as a 
*\ab supposing that a sane man would not 
discover the disguise. Finally, there is the 
conduct of this person since he has been 
isre on trial—the extraordinary stolidity of 
his man, as opposed to the rest of the prison- 
jFs; instead of showing the slightest feeling, 
, ,e. kas displayed an indifference throughout 
Ds trial. You yourselves noticed that at 
16 time of that solemn scene, when the ne- 
Sro identified him he stood here and laughed 
the moment when his life was trembling 
ln the balance. I ask you, is that the con- 
Uct of a sane man? There are, besides, 
j°me physical reasons which go hand in 
land with insanity, and corroborate it, of a 
c laracter more delicate, and which I can 
a°t mention now, but which lam prepared 
.? Prove before the Court at any time. I say 
iat the most probable case of insanity that 
can ke made out has been made out by the 
Prosecution, in the conduct of this prisoner 
,re the assassination, during the assassi- 
abon, at the time of his arrest, and during 
the trial. 
Mr. Clampitt. May it please the Court, I 
do not rise for the purpose of denying to 
the counsel for the accused, Payne, the right 
to set up the plea of insanity, or any other 
plea that he thinks proper; but I do rise for 
the purpose of indignantly proclaiming that 
he has no right to endeavor to bring before 
this Court the house of Mrs. Surratt as a 
rendezvous to which Payne would naturally 
resort. There is no evidence which has 
shown that he would naturally go to her 
house for the purpose of hiding or for the 
purpose of screening himself from justice. 
The Commission sustained the objection 
of the Judge Advocate. 
Witness. Ido not know where he went 
to from my mother’s. In January of this year, 
he came again to our house. He was dressed 
then in citizen’s dress of black, and repre- 
sented himself to be a refugee from Farquier 
County, Va., and gave his name as Payne. 
He took a room at my mother’s house, staid 
there six weeks and a few days, and left in the 
beginning of March. He never, to my knowl- 
edge, saw any company while there. I never 
saw J. Wilkes Booth, and do not know that 
he ever called upon Payne. 
Margaret Kaxghn. 
For the Defense.—June 2. 
By Mr. Poster. 
I am servant at Mrs. Branson’s. I have 
seen the prisoner, Payne, at Mrs. Branson’s 
boarding-house; he came there last January 
or February, and remained till the middle of 
March. I remember he asked a negro servant 
to clean up his room, and she gave him some 
impudence, and said she would not do it. She 
called him some names, and then he struck 
her; he threw her on the ground and stamped 
on her body, struck her on the forehead, and 
said he would kill her; and the girl after- 
ward went to have him arrested. 
Pr. Charles H. Nichols. 
For the Defense.—June 2. 
By Me. Poster, 
Q. Have I at any time given you any indi- 
cation of the answers I expected you to give 
before this Court? 
Q. State what your official position is, and 
your profession. 
A. I am a doctor of medicine, and super- 
intendent of the Government Hospital for the 
Insane, which position I have occupied for 
thirteen years. 
Q. What class of persons do you treat in 
your hospital ? 
A. Insane persons exclusively. The bulk 
of the patients I treat are composed of sailors 
and soldiers. 
A. You have not. 
Q. Please define moral insanity. 
A. When the moral or affective faculties 162 
THE CONSPIRACY TRIAL. 
seem to be exclusively affected by disease of the 
brain, I call that a case of moral insanity. 
Q. What are some of the principal leading 
causes that produce moral insanity? 
A. My impression is that insanity is oft- 
ener caused by physical disease than moral 
causes, and that the fact that insanity takes 
the form of moral insanity is apt to depend 
on the character of the individual before he 
becomes deranged. 
Q. Do madmen never confederate in plans ? 
A. Very seldom. 
Q. Is or is not a morbid propensity to de- 
stroy, proof of insanity? 
A. Not a proof, but it is a very common 
attendant upon insanity. 
Q. Is it not a symptom of insanity if one, 
apparently sane, and without provocation or 
cause, commits a crime? 
A. I should regard it as giving rise to a sus- 
picion of insanity, but not of itself a proof of it. 
Q. Is not all conduct that differs from the 
usual modes of the world proof of insanity? 
A. I will answer that by saying that no 
single condition is a proof of insanity in every 
instance, but that an entire departure from 
the usual conduct of man would be consid- 
ered as affording strong ground to suspect 
the existence of insanity. 
Q. Are madmen not remarkable for great 
cruelty ? 
A. My impression is that madmen exhibit 
about the same disposition in that respect 
that men generally do. 
Q. Do or do not madmen, in committing 
crimes, seem to act without pity? 
A. Those who commit criminal acts fre- 
quently do. 
Q. Is active service in the field, among 
soldiers, at any time, a cause of moral in- 
sanity? 
A. It is; but not a frequent cause. I have 
known cases of moral insanity occur among 
soldiers. 
Q. Has or has not insanity increased very 
much in the country, and in your hospital, 
during the present war? 
A. It has. 
Q. Has it not increased much more, pro- 
portionately, than the increase in the army? 
A. It has. 
Q. How is the increase accounted for? 
A. By the diseases, hardships, and fatigues 
of a soldier’s life, I think, to which the men 
were not accustomed until they entered the 
service. 
Q. Are young men who enlist more ex- 
posed to insanity than men who enlist in 
middle life? 
Q. If one should try to murder a sick man 
in his bed, without ever having seen him 
before, would it not be presumptive proof of 
insanity? 
A. It would give rise, in my mind, to the 
suspicion that a man was insane. I should 
not regard it as proof. 
Q. If the same person should besides try 
to murder four other persons in the house 
without having seen them before, would it 
not strengthen that suspicion of insanity ? 
A. I think it would. 
A. lam not sure that they are. My im- 
pression is, that young men accommodate 
themselves to a change in their manner of 
life rather more readily than men of middle 
age- 
Q. What are some of the leading symp- 
toms of moral insanity? 
A. The cases are as diverse as the indi- 
viduals affected. If a man, for example, be- 
lieves an act to be right which he did not 
believe to be right when in health, and which 
people generally do not believe to be right, 
I regard that as a symptom of moral in- 
sanity. 
Q. Is depression of spirits at any time con- 
sidered a symptom of insanity.? 
A. It is. 
Q. If the same person should make no at- 
tempt to disguise himself, but should converse 
for five minutes with a negro servant, walk 
away leisurely, leave his hat and pistol be- 
hind, throw away his knife before the door, 
and ride away so slowly that he could be fol- 
lowed for a square by a man on foot, would 
not such conduct further corroborate the sus- 
picion of insanity ? 
Q. Is great taciturnity considered a symp- 
tom ? 
A. It is a frequent symptom of insanity, 
but I can conceive that great taciturnity 
might exist without insanity. 
Q. Is a disposition to commit suicide and 
an indifference to life considered a symptom ? 
A. It is. 
A. I think it would. It is a peculiarity of 
the insane, when they commit criminal acts, 
that they make little or no attempt to conceal 
them ; but that is not always the case. 
Q. If the same person should cry out, while 
stabbing one of the attendants, “I am mad, I 
am mad,” would it not be further ground for 
suspicion that he was insane? 
A. Such an exclamation would give rise, in 
my mind, to an impression that the man was 
feigning insanity. Insane men rarely make 
such an exclamation, or a similar one, and 
they rarely excuse themselves for a criminal 
act on the ground that they are insane. 
Q. Do not madmen sometimes unconscious' 
ly state that they are mad ? 
A. They do sometimes, but it is not fro- 
quent that they do. 
Q. Is great cunning and subtlety in making 
plans concomitant of insanity? 
A. The insane frequently exhibit extraor- 
dinary cunning in their plans to effect an 
object 
Q. Is it or is it not possible for a madman to 
confederate with other madmen or sane men 
in plans? 
A. I would say that it is not impossible, 
but it is infrequent for madmen to confeder- 
ate in effecting their plans. DEFENSE OF LEWIS PAYNE. 
163 
Q. Do you not remember cases in your ex- 
perience where madmen have told you they 
Were mad ? 
A. They frequently do it in this way: An 
individual knows that he is regarded as in- 
sane, and if taken to task for any improper 
act, a shrewd man will excuse himself on the 
ground that he is an insane man, and there- 
fore not responsible. 
Q. If the same person that I have men- 
tioned should, although in the possession of 
a sound horse, make no effort to escape, but 
"should abandon his horse, wander off Into the 
woods, and come back to a house surrounded 
with soldiers, and where ho rrdght expect to 
be arrested, would that not be additional 
ground for the suspicion that he was insane? 
A. I should regard every act of a man who 
bad committed a crime, indicating that he 
was indifferent to the consequences, as a 
ground for suspecting that he was insane. 
Q. If the same person should return to this 
bouse I have epoken of, with a piece of his 
drawers for his hat, at a time when he saw 
the soldiers in its possession, would not that 
be additional proof of insanity? 
A. I can hardly see what bearing that 
Would have upon the question of insanity. 
Q. I understood you to say before that 
tnadmen seldom disguise themselves. The 
disguise in question consisted of a piece of 
drawers being used for a hat. I ask whether 
that disguise may properly be presumed to be 
fbe disguise of a sane man or an insane man ? 
A. It would depend upon circumstances, 
bf is a common peculiarity of insane men, 
that they dress themselves in a fantastic 
banner; for example, make head-dresses out 
°f pieces of old garments. They do it, how- 
ever, apparently from a childish fancy for 
something that is fantastic and attracts at- 
tention; and I do not recollect a case of an 
msane person dressing himself in a garment 
°r garments of that kind for the sake of dis- 
guising himself 
Q- If this same person, after his arrest, 
should express a strong desire to be hanged, 
and express great indifference of life, would 
that be additional ground for suspicion of 
tusanity? 
A. I think it would, 
. Q- Would it be further ground for suspi- 
cion if he seemed totally indifferent to the 
conduct of his trial, laughed when he was 
identified, and betrayed a stolidity of manner 
different from his associates? 
A. I think it would. 
. Q Please state to the Court what physical 
sickness generally accompanies insanity, if 
anY there is. 
■A- I believe that disease, either functional 
?r organic, of the brain always accompanies 
msanity. No other physical disease neces- 
-Ba,rily) or perhaps usually, accompanies it. 
Q- Is long-continued constipation one of 
the Physical conditions that accompany in- 
sanity? 
A. Long-continued constipation frequently 
precedes insanity. Constipation is not very 
frequent among the actual insane. 
Q. If this same person that I have de- 
scribed to you, had been suffering from con- 
stipation for four weeks, would that be con- 
sidered additional ground for beliefring in his 
insanity ? 
A. I think it would. I think some weight 
might be given to that circumstance. 
Q. If the same person, during his trial 
and during his confinement, never spoke 
until spoken to, at a time when all his com- 
panions were peevish and clamorous; if he 
never expressed a want when all the rest 
expressed many ; remained in the same spirits 
when the rest were depressed; retained the 
same expression of indifference when the 
rest were nervous and anxious, and continued 
immovable, except a certain wildness in his 
eyes, would it not be considered additional 
ground for believing in his insanity? 
A. I think it would. 
Q. If this same person, after committing 
the crime, should, on being questioned as to 
the cause, say he remembered nothing dis- 
tinctly, but only a struggle with persons 
whom he had no desire whatever to kill, 
would not that be additional ground for sus- 
picion of insanity ? 
A. I think it would. 
Q. What are the qualities of mind and 
person needed by a keeper to secure control 
over a madman ? 
A. Self-control. 
Q. Are not madmen easily managed by 
persons of strong will and resolute character? 
A. ’Yes, sir; they are. 
Q. Are there not instances on record of 
madmen who toward others were wild, while 
toward their keepers, or certain persons 
whom they held to be superiors, they were 
docile and obedient, in the manner of dogs 
toward their masters ? 
A. I think the servile obedience which a 
dog exhibits to his master is rarely exhib- 
ited by the insane. It is true, that the insane 
are comparatively mild and obedient to cer- 
tain persons, when they are more or less 
turbulent and violent toward other persons. 
Q. Would it not be possible for such a 
keeper, exercising supreme control over a 
madman, to direct him to the commission of 
a crime, and secure that commission? 
A. 1 should say that would be very diffi- 
cult, unless it was done in the course of a 
few minutes after the plan was laid and the 
direction given. I should say, generally, it 
would be very difficult. 
Q. Is not the influence of some persons 
over madmen so great that their will seems 
to take the place of the will of the mad- 
man ? 
A. There is a great difference in the 
control that different individuals have over 
insane persons, but 1 think it an error that 
that control reaches the extent you have 164 
THE CONSPIRACY TRIAL. 
described, or the extent, I may add, that is 
popularly supposed. 
Q. Do you or not recognize a distinction 
between mania and delusion? 
given just a categorical one to all the ques- 
tions that have been asked me, I believe; I 
am, personally, and as an expert, very much 
opposed to giving an opinion in respect to 
hypothetical cases, for the simple and best 
of reasons, as I conceive that 1 have none, 
and I could give no definite opinion upon 
the facts implied in the questions submitted 
to me. Every case of insanity is a case of 
itself, and has to be studied with all the light 
that can be thrown upon it, and it is impos- 
sible for me to give an opinion upon a hypo- 
thetical case. 
A. A certain distinction, inasmuch as de- 
lusion may accompany any form and every 
form of insanity, and mania is the name 
given to a particular form, which may or 
may not be accompanied by delusion. 
Q- Are not instances of insane delusion 
more frequent during civil war than any 
other kind of insanity? 
A. My impression is, that cases in which 
delusions are entertained are not as frequent. 
Insanity is of a more general character—so 
far as my experience goes, has been during 
the war, among soldiers—than it usually is. 
Q. Does or does not constant dwelling on 
the same subject lead to an insane delusion ? 
A. It frequently does, I think. 
Q. If a body of men, for instance, who 
owned slaves,were constantly hearing speeches 
and sermons vindicating the divine right of 
slavery, burned men at the stake for attempt- 
ing to abolish slavery, and finally took up 
arms to defend slavery, when no man was 
really attacking it, would not that be evi- 
dence that some of these men were actually 
deluded ? 
Dr. James C. Hall. 
For the Defense.—June 13. 
This morning I spent three-quarters of an 
hour in an examination of the prisoner, 
Lewis Payne. I first examined him with 
regard to his physical condition. His eye 
appeared to be perfectly natural, except that 
it appeared to have very little intellectual 
expression; but it was capable of showing a 
great deal of passion and feeling. I discov- 
ered a remarkable want of symmetry in the 
two sides of his he’ad. The left side is much 
more developed than the right. His pulse I 
counted twice carefully; I found it to be a 
hundred and eight, which is about thirty 
strokes above a natural healthy pulse. In 
other respects his health seemed to be good, 
with the exception of another habit, which, 
I believe, the Court is informed of—namely, 
constipation. His general muscular develop- 
ment is perfectly healthy. 
I questioned him first to test his memory. I 
found that it acted very slowly. He appeared 
to answer my questions willingly, but his mind 
appeared to be very inert, and it took some 
time before he would give me an answer to 
a very simple question, though he did not 
seem to be at all reluctant in giving me the 
information I was seeking for. His intel- 
lect appears to be of a very low order; and 
yet I could not discover that there was any 
sign of insanity. His mind is naturally dull 
and feeble, and, I presume, has not been culti- 
vated by education. 
I asked him certain questions which I 
thought would draw out his moral nature 
and feelings, and the conclusion to which I 
came was, that he would perform acts, and 
think himself justified in so doing, which a 
man of better moral nature and of a better 
mind would condemn. 
A. I think it would; but it does not follow 
that the delusion is what I technically de- 
nominate an insane delusion, arising from 
disease of the brain, and for which a man is 
not responsible. 
Q. If one of those same men who owned 
slaves, and believed in the divine origin of 
slavery, and had fought in its defense, and 
believed that he had also fought in defense 
of his home and friends, should attempt, on 
his own motion, to kill the leaders of the 
people, who he believed were killing his 
friends, would not that conduct be esteemed 
a fanatical delusion ? 
Assistant Judge Advocate Burnett. Un- 
less Mr. Doster can give us some idea when 
this species of examination will be brought 
to a close, we must here interpose objection. 
It certainly has nothing whatever to do with 
the case. He is imagining facts that do not 
exist, and he is examining upon a basis that 
he has not laid, and it is certainly ixrelevant 
and foreign to the issue. Will Mr. Doster state 
if lie is nearly through with his examination? 
Mr. Doster. The course of examination 
that I propose is not a great deal longer. I 
mentioned the other day that it was impos- 
sible for me to secure the attendance of wit- 
nesses from Florida. Eegularly, I ought not 
to have called Dr. Nichols before these wit- 
nesses had been here and had been exam- 
ined. I have been unwilling to detain Dr. 
Nichols here, and have endeavored to go over 
the whole ground with him, so that 1 need 
not call him twice, as I would have to do if I 
were to call these witnesses from Florida first. 
Witness. If I may be allowed, I would 
like to give an explanatory answer. I have 
Q. Did you or not state the case to him of 
a person committing the crime with which he 
is charged, and ask his opinion in reference 
to the moral right to commit it? 
A. I did. I mentioned it as a supposed 
case, and he said he thought a person in per- 
forming such an act as I described would be 
justified. “ I wish you would give me some 
reason,” I said, “ why you think he would 
be justified; why you think an act which 
1 think wl-ong, and which everybody else 165 
DEFENSE OF LEWIS PAYNE. 
thinks wrong, could be justified.” His an- 
swer amounted to this, that he thought in 
a person was entitled to take life. That 
Was the reason he assigned why he thought 
such an act could be justified. 
I should say that, from the whole exam- 
ination, there was reasonable ground for 
suspicion of insanity. It seems to me that 
no man could, if he were perfectly sane, ex- 
hibit the utter'insensibility that he does and 
did in my presence. Ido not think there was 
any attempt at deception. He answered the 
questions, so far as his mind would permit 
him, plainly and clearly, without any attempt 
at deceiving me or misleading me. I can not 
give a positive opinion that he is laboring 
Under either moral or mental insanity. To 
decide on a case of this kind, one ought to see 
the person at various times and under various 
circumstances. I never saw this man before. 
tor, that, from the whole examination you 
have made, you regard the prisoner, Payne, as 
sufficiently sane to be a responsible being for 
his acts? 
A. I have not altogether made up my mind 
on that. Ido not think that the single exam- 
ation which I have made would suffice to 
decide the question. I think there is enough 
to allow us a suspicion that he may not be a 
sane and responsible man. I can 
give no positive opinion on that point. His 
intellect is very feeble and inert. 
Q. The extent, then, to which you go, is 
that there is ground for suspicions ? You do 
not express any such opinion ? 
A. I do not express a positive opinion that 
he is either morally or mentally insane, but 
that there is sufficient ground, both from his 
physical condition and his mental develop- 
ment, for a suspicion of insanity. 
Q. Do you rest that suspicion largely on his 
course of reasoning, and the conclusion he 
drew from the case which you supposed? 
A. Yes, sir; I should think that was the 
result either of insanity or very badly culti- 
vated mind, and very bad morals. 
Q, Might it not be wholly the result of very 
bad morals? 
Cross-examined by the Judge Advocate. 
I can not discover any positive signs of 
Cental insanity, but of a very feeble, inert 
fthnd; a deficiency of mind rather than a 
derangement of it; a very low order of intel- 
lect. His memory appears to be slow 
acting. 
Q. Did he or not seem to have a distinct 
recollection of his crime, and also of the mo- 
hves and course of reasoning— 
Mr. Doster. I object to that question. 
Witness. I did not refer to it as the crime 
committed by himself. I asked him what 
*le would think of a man who had committed 
a crime such as he was charged with, and 
he said he thought he would be right in 
doing it. I carefully avoided applying the 
*ct or crime to himself, personally; I merely 
BPpke of it as a supposititious case. I did not 
‘hink it would be right for me to receive any 
Confession from him, and I rather avoided 
extorting it. Iby no means regard atrocious 
CrDne as per se evidence of insanity. 
Q. Do yPu regard insensibility under crime 
0r indifference to the results of crime as indi- 
cating insanity ? 
Y. Where a man commits crime habitually 
and without any adequate motive or provo- 
cation, I should be disposed then to suspect 
ffisanity. If there is an absence of motive 
and an absence of provocation, and if it is 
,°ne habitually, these are the conditions. A 
Blngle act I should be very reluctant to form 
an opinion upon. 
Q- If a man, engaged in arms as a rebel 
against the Government of his country, is 
cund assassinating its Chief Magistrate and 
16 Members of its Cabinet, would you or not 
Regard these circumstances as indicating suf- 
’ciently the presence of motive to save him 
lOai the imputation of insanity? 
Yes, he might have a motive. I can 
cadily conceive that a man might think he 
*ad a sufficient motive and a sufficient justi- 
“Cation for it. 
Q- Do I or not understand you to say, Doc- 
A. It might entirely. I attach some im- 
portance to his physical condition. It is 
generally known that persons who are insane, 
habitually, with few exceptions, have an un- 
usual frequency of pulse. His pulse is thirty 
odd strokes above the normal standard. 
Q. He was aware of the purpose for which 
you had your interview with him, was he not ? 
A. I introduced myself by telling him 
that I was a physician, and that the Court 
had directed me to examine into his condi- 
tion, and I referred to some matters connected 
with his health. 
Q. Did he seem to be under any excite- 
ment? 
A. Not the least. He was perfectly calm, 
and at times smiled. He did not seem to be 
playing a part at all. He appeared to answer 
the questions honestly and truthfully, so far 
as I could judge; but his memory is very 
slow, and it is very difficult to get from him 
an answer to a very simple question. 1 asked 
him in regard to his birth and his residence. 
He could not remember the maiden name of 
his mother. He said her first name was Caro- 
line, but he could not remember her maiden 
name. 
But I have known sane persons who forgot 
their own names. The celebrated John Law, 
of this city, would go to the post-office and be 
unable to call for a letter in his own name. 
John B. Hubbard. 
For the Defense.—June 3. 
By Mr. Doster. 
I am at times in charge of the prisoner, 
Lewis Payne, and have at times had conver- 
sation with him. 166 
THE CONSPIRACY TRIAL. 
Q. Please state the substance of that con- 
cognizant of the conduct of the prisoner in 
his cell, and to the best of my knowledge he 
has been constipated from the 29th of April 
until last evening; that was his first passage. 
I never had any conversation with him on 
the subject of his death. 
versation. 
Assistant Judge Advocate Bingham. That 
I object to. 
The Judge Advocate. Is this conversa- 
tion offered as a confession, or as evidence 
of insanity? 
Mr. Poster. As evidence of insanity. I 
believe it is a settled principle of law that all 
declarations are admissible under the plea of 
insanity. 
Assistant Judge Advocate Bingham. There 
is no such principle of the law, that all decla- 
rations are admissible on the part of the ac- 
cused for any purpose. I object to the intro- 
duction of the declarations of the prisoner, 
made on his own motion. 
Mas. Lucy Ann Grant. 
For the Defense.—June 12. 
By Me. Poster. 
Mr. Poster. lam about to call two wit- 
nesses, and to prevent any objections being 
made, I will state that the reason for calling 
them is to show that the prisoner, Payne, 
three months before the alleged attempted 
assassination of Mr. Seward, saved the lives 
of two Union soldiers. It is the very essence 
of insanity that one violates the “ even tenor” 
of his previous life; and, therefore, if I can 
show that three months before the alleged 
attempted assassination this person exercised 
a degree of honor and benevolence, which he 
afterward violated and turned into ferocity 
and malignity, it will give a high degree of 
probability to the plea, and his subsequent 
conduct can only be explained by his being 
under the control of fury and madness. 
Witness. I live on the Waterloo Pike, 
Warrenton, Virginia. I recollect having seen 
one of the prisoners before; that one with 
the gray shirt, [pointing to the accused, 
Lewis Payne.] I saw him some time about 
Christmas in the road in front of our house; 
he was in charge of three Union prisoners. 
It was at the time of General Torbett’s raid; 
after he had passed through Warrenton, on 
his return to Washington. Some men—rebel 
soldiers, I suppose, from their uniform—were 
going to kill these prisoners, and I remember 
seeing this man try to prevent it. He told 
them that he could not defend all, but if 
they killed or captured the one he had in 
charge, they would do it at the peril of their 
lives. They left the road then, and Ido not 
know what became of them afterward, but I 
know one of the prisoners was killed, for a 
Confederate soldier wanted to bring him into 
my house, and I was scared nearly to death. 
The Judge Advocate. If the Court please, 
as a confession, of course, this declaration is 
not at all competent, but if it is relied upon 
as indicating an insane condition of mind, I 
think it would be better for the Court to con- 
sider it. We shall be careful, however, to 
exclude from its consideration these state- 
ments so far as the question of the guilt or 
innocence of the particular crime is con- 
cerned, and to admit them only so far as 
they may aid in solving the question of in- 
sanity raised by the counsel. 
Witness. I was taking him out of the 
court-room, about the third or fourth day of 
the trial, and he said he wished they would 
make haste and hang him; that he was tired 
of life, and would rather be hung than come 
back here in the court-room. And about a 
week ago he spoke to me about his constipa- 
tion; he said he had been constipated ever 
since he had been here. I have no personal 
knowledge of the truth of this. 
Cross-examined by the Judge Advocate. 
I communicated this statement to Colo- 
nel Podd or Colonel McCall, and I believe to 
General Hartranft, and to no one else. 
John E. Egberts. 
For the Defense.—June 3. 
By Mr. Poster. 
I am on duty around the prison, but have 
no special charge of the prisoner, Lewis 
Payne, more than the others. I have had 
a little conversation with him. After the 
coat and hat were taken off him, on the day 
that Major Seward was examined, I had to 
put his irons back on him, and he told me 
then that they were tracking him pretty close, 
and that he wanted to die. 
Cross-examined by the Judge Advocate. 
I never saw the man before or since; but 
he is the same man, lam certain. I should 
know him anywhere. He was dressed in a 
dark gray uniform, and some of the men 
called him “ Lieutenant.” I understood from 
a citizen to whom I was speaking about his 
trying to save those Union prisoners that his 
name was Powell. 
Colonel W. H. H. McCall. 
For the Defense.—June 3. 
By Mr. Poster. 
John Grant. 
For the- Defense.—June 12. 
By Mr. Poster. 
1 have charge of the prisoner, Payne, in 
connection with Colonel Frederick and Colo- 
nel Podd; we each have eight hours’duty 
out of the twenty-four. My duty makes me 
I am the husband of Mrs. Grant, who 
has just left the stand. I was about three TESTIMONY IN EEBUTTAL. 
167 
hundred yards from my home, when the 
affray began in front of my house, on the 
first of last January. I rushed home as 
<iuickly as I could, when the pistol firing 
commenced; and I saw that that man, 
[Payne,] whose name I understood was 
Powell, saved the lives of two Union eol- 
diets. 
TESTIMONY IN REBUTTAL. 
Surgeon-General J. K. Barnes. 
Q. What are you prepared to state as to his 
moral insanity ? 
A. We asked him the question to-day 
whether he believed in a God. He said he 
did, and that he believed he was a just God. 
He also acknowledged to me that at one time 
he had been a member of the Baptist Church. 
I asked him the question, which I believe I 
repeated to the Court yesterday, whether he 
thought that private assassination, practiced 
upon an enemy in public war, was justifiable. 
After some little hesitation, he said that he 
believed it was. 
Cross-examined by Mr. Poster. 
In association with Dr. Hall and Surgeon 
Norris, I have made an examination this 
uiorning of the prisoner, Payne, and find no 
evidence of insanity—none whatever. 
The evidences of sanity which struck me as 
present in his case are his narrative of himself, 
°f the places he has been at, of his occupation, 
the coherence of his story, and, the most im- 
portant evidence, his reiteration of his state- 
ments of yesterday and of his first examination 
this morning. That is considered a very se- 
yere test. It is called the Shakspearian test, 
Und is one of the severest. 
For the Prosecution.—June 14. 
Q. Is it or not esteemed an evidence of a 
fanatical delusion that a person believes to 
be right what everybody else believes to be 
wrong ? 
A. In some instances it would; but I can 
readily conceive that there are persons whose 
minds and morals are such that they would 
believe a crime similar to that which he 
has committed to be justifiable and proper, 
even a duty. 
I should consider the Shakspearian test 
a test for both moral and mental sanity. 
_ I have not of late years had a large expe- 
r*ence in cases of insanity; but some years 
ago I was in charge of the insane wards of a 
large hospital. 
I was present when the prisoner answered 
■Dr. Hall’s question as to his moral responsi- 
bility for this crime, and heard him say that, 
Under certain circumstances, he considered 
euch a crime justifiable. 
Cross-examined by Mr. Poster. 
For the Prosecution.—June 14. 
Pr. Basil Norris. 
1 am a surgeon in the regular army. 
This morning, in association with the Sur- 
geon-General of the army and Pr. Hall, I 
made an examination of the prisoner, Payne, 
and I arrived at the conclusion that he is not 
insane. 
Recalled for the Prosecution.—June 14. 
. This morning, in connection with Pr. Nor- 
ris and Pr. Porter, we had an examination of 
I'16 prisoner, Lewis Payne, and since the 
Recess of the Commission, Pr. Barnes, the 
Burgeon-General, joined us, and we examined 
hun again. 
I asked him very nearly the same questions 
Pr°p°sed to him yesterday, for the purpose 
°‘ seeing whether he would give me answers 
insistent with those which I then received, 
and I found that they were very accurately 
he same, and he answered to-day with rather 
uiore promptness than yesterday. 
I think I am now prepared to say that 
pere is no evidence of mental insanity. 
Jayne’s mind is weak and uncultivated, but 
Can not discover any sufficient evidence of 
Cental insanity. 
Pr. James C. Hall. 
His look is natural, and his speech per- 
fectly natural, and his manner natural; that 
of a man sane. There is nothing in his 
appearance, or speech, or manner that indi- 
cates to me that he is a man of unsound mind. 
In my opinion, there is nothing to indicate the 
presence either of moral or what may be called 
mental insanity. We asked him a number 
of questions. His reasoning faculties ap- 
peared to be good, and his judgment good, 
to which I attach great importance. 
We could not learn of any thing in his 
past life, so far as we have been able to 
gather his history, that would indicate in- 
sanity. We learned but very little of his 
past history; but so far as his life has been 
disclosed since he has been here, his con- 168 
THE CONSPIRACY TRIAL. 
duct and conversations, nothing that he has 
done, has indicated to me that he was an in- 
sane man. 
believe there are cases on record of mono- 
maniacs who have gone whole weeks with- 
out referring to the subject on which they 
were insane; but I have never seen such 
cases. 
Cross-examined ly Me. Bostee. 
I am not familiar with cases of insanity, 
but I have seen some cases, and have visited 
institutions for the insane. I would form 
my opinion of a man very much as any other 
person. 
Assistant Surgeon Geoege L. Poetee. 
I was associated with Surgeon-General 
Barnes and other medical gentlemen in an 
examination of the prisoner, Lewis Payne, 
and our conclusion was that he was a sane 
man, and responsible for his actions. 
For the Prosecution.—June 14. 
It is not usual for madness to escape the 
scrutiny of physicians on a single interview, 
or on two interviews. I think there is some- 
thing always in the appearance of a man, in 
his manner or in his speech, that would 
arouse a suspicion of a physician, or indeed 
of any intelligent person, even on one inter- 
view. 
He has been under my eye ever since he 
has been confined here. 1 have made in- 
spections twice each day since the 30th of 
April; and his conduct and conversation 
during that period have been such as to 
impress me that he is a sane and responsible 
man. I have not observed any indication 
of insanity, i 
I have heard of cases of men who have 
been examined for months at a time before 
their madness was discovered, but none have 
come to my knowledge. 
I do not think the conduct of the prisoner 
in my presence was the conduct of a madman 
during a lucid interval. It will be found upon 
scrutiny that the conduct of a madman in a 
lucid interval differs from the ordinary con- 
duct of men. Upon careful examination, 
there will be some indication always, in my 
opinion, that to several medical men, or sev- 
eral intelligent men, will be observable. I 
would regard it as a very exceptional case if 
this man should be insane. I believe it is 
possible that this man might be a mono- 
maniac on a subject not broached to him this 
morning; but yet a monomaniac will almost 
invariably—l believe myself hewould invari- 
ably—in a conversation with strange persons, 
strike upon that subject that he had the delu- 
sion on—that subject upon which he was 
insane. It is my opinion that a monoma- 
niac, in an examination of half an hour 
even, by strange persons especially, would 
strike upon the subject on which he was 
deluded; that he would speak upon the sub- 
ject on which he was a monomaniac. I 
I believe that the law does not recog- 
nize moral as distinct from mental insanity. 
Moral insanity is where the mind of a person 
is perverted on moral subjects; mental insan- 
ity has regard to the intellectual more than 
the moral faculties. The symptoms of moral 
insanity are common to all cases of insanity. 
Insane persons have generally some phys- 
ical symptoms which I find wanting in this 
case. I have examined this man twice each 
day, and I found that his pulse, as a general 
rule, was lower than the pulse of the others. 
Recently, I have examined by the watch, and 
find that his has not been so frequent as 
that of the other prisoners. Last night it 
was eighty; this morning it was eighty-three 
or eighty-four. Another symptom of insan- 
ity is want of sleep, restlessness. In this 
case it has been particularly noticeable that 
while the other prisoners were awake when 
I madf my inspections in the evening, I 
almost always found this man asleep. 
Cross-examined ly Me. Bostee. 
TESTIMONY CONCERNING SAMUEL A. MUDD. 
Colonel H. H. Wells. 
his front yard a person holding two horses, 
on one of which a second person was sitting. 
The one who held the horses he described 
as a young man, very talkative and fluent 
of speech. The person on horseback had 
broken his leg, and desired medical attend- 
ance. He (Mudd) assisted in bringing the 
person on horseback into his house, and lay- 
ing him upon the sofa in the parlor. After 
he had lain on the sofa for some time, he 
was carried up stairs, and put on a bed in 
For the Prosecution.—May 16. 
Buring the week subsequent to the assas- 
sination, I had three interviews with Br. 
Samuel A. Mudd, in each of which he made 
statements to me; the first and third verbal, 
the second in writing. He said that, about 
4 o’clock on Saturday morning, the 15th of 
April, he was aroused by a loud knock at 
his door. Going to the window, he saw in TESTIMONY CONCERNING- SAMUEL A. MUDD. 
169 
6ie front room. He then examined his leg, 
and found that the front bone was broken, 
Nearly at right angles, about two inches 
above the instep. It seemed, in his judg- 
ment, as slight a breaking as it could possi- 
b|y be. The patient complained also of a 
Pam in his back. He examined and found 
apparent cause for the pain, unless it 
flight have been in consequence of his fall- 
P'g from his horse, as he said he had done. 
■b>r- Mudd stated that he dressed the limb as 
'Vell .as he was able to do it with the limited 
facilities he had, and called a young man, a 
'vhite servant, I think, to make a crutch for 
Uln. At breakfast, the younger of the two 
Persons partook with them. After breakfast, 
~r- Mudd observed the condition of his pa- 
rent. He seemed much debilitated, and pale 
such an extent that he was unable to tell 
'vhat his complexion might have been, light 
0l‘ dark. After breakfast the young man 
some remark about procuring a con- 
Veyance to take his friend away. In the 
fasan time he (Mudd) had been about, giving 
Erections to his farm servants. 1 think he 
Baid the two persons remained until some 
hftie after dinner. He started out with the 
young man to see if a carriage could be pro- 
ved at his father’s, but meeting his younger 
brother, he ascertained from him that the 
carriage could not be procured, and then 
rode on to join the young man who had gone 
abead, and together they rode into the pines 
a toile and a half beyond the elder Mudd’s 
oouse. The young man remarked that he 
'vOuld not go further to get a carriage, but 
go back to the house and see if he 
could get his friend off in some way or other. 
r- Mudd then went, as he said, to the town, 
°r near the town, to see some friends or 
Patients, and then returned to his house. 
8 he came back to his house, he saw the 
younger man of the two pass to the left of 
ue house toward the barn. 
He said he did not recognize the wounded 
Ulan. X exhibited to him a photograph of 
.°oth, but he said he could not recognize 
Um from that photograph. 
He ]ie jia(j been introduced to Booth 
at Church, some time in November last, as 
Ranting to buy farming lands, and that they 
lad some little conversation on the subject 
? lands. In this conversation Booth asked 
there were any desirable horses that could 
e bought in the neighborhood cheaply; and 
ludd mentioned a neighbor of his who had 
Ijcuie horses that were good drivers; that 
°oth remained with him that night, and 
ext morning purchased one of those horses. 
, tu answer to a question, he admitted that 
e could now recognize the person he treated 
8 the same person he was introduced to— 
°oth. He had never seen Booth from the 
lmie he was introduced to him in Church 
i Hat Saturday morning. Herold he 
T u°t before seen. 
He thought there was something strange 
about these two persons, from the young 
man coming down shortly after breakfast 
and asking for a razor, saying his friend 
wished to shave himself; and when he was 
up stairs shortly afterward, he saw that the 
wounded mandiad shavedvoff his moustache. 
The wounded man, he thought, had a long, 
heavy beard; whether natural or artificial 
he did not know. He kept a shawl about 
his neck, seemingly for the purpose of con- 
cealing the lower part of his face. He said 
he first heard of the murder either on Sun- 
day morning or late on Saturday evening. 
He said that Herold—for by that name we 
spoke of him after the first explanation— 
asked him the direct road to Dr. Wilmer’s, 
saying he was acquainted with the Doctor. 
Dr. Mudd described the main traveled road, 
and was then asked if there was not a nearer 
way. He replied that there was a road 
across the swamp, and described it. 
Dr. Mudd pointed out to me the track they 
took, and I went with him a long way into 
the marsh, and across it on to the hill, 
where, instead of keeping straight on, they 
turned square to the left, across a piece of 
plowed ground, and there all trace of them 
was lost. 
This embraces what Dr. Mudd told me at 
the several interviews. 
Dr. Mudd’s manner was so very extraor- 
dinary, that I scarcely know how to describe 
it. He did not seem unwilling to answer a 
direct question; he seemed embarrassed, and 
at the third interview alarmed, and I found 
that, unless I asked direct questions, import- 
ant facts were omitted. I first saw him on 
Friday, the 21st, -and my last interview was 
on Sunday, I think. We had, perhaps, a 
dozen interviews in all. It was at the last 
interview that I told him he seemed to be 
concealing the facts of the case, which would 
be considered the strongest evidence of his 
guilt, and might endanger his safety. 
On Sunday Dr. Mudd took us along the 
road that the two men had taken from his 
house. They took the direction pointed out 
by the Doctor until they came to the hill. 
The marsh there is full of holes and bad 
places. I thought I discovered, from their 
tracks, that in going to the right to avoid a 
bad yfiace they had changed their direction, 
and got lost. 
My impression is that Dr. Mudd said he 
had first heard of the assassination on the Sat- 
urday evening; that somebody had brought 
the news from Bryantown. The question 
was asked Dr. Mudd by some person whether 
any thing had been paid to him for setting 
the wounded man’s leg, and I think he said 
they had paid him $25. 
He said that he had told Dr. George Mudd, 
I think he said on Sunday, that there had 
been two suspicious men at his house. The 
town was full of soldiers and people, coming 
Cross-examined ly Mr. Ewing. 170 
THE CONSPIRACY TRIAL. 
and going all the time, and the place was in 
a state of general excitement. 
he had come in right, but he could not; he 
was dressed in woman’s clothes. 
By the Judge Advocate. 
A man named John Surratt and a man 
named Walter Bowie, visited Dr. Mudd’s last 
summer. Mr. Surratt was a young-looking 
man, slim made, not very talj, nor very short, 
and his hair was light. He came very often. 
Dr, Samuel Mudd and his wife both called 
him Mr. Surratt; they all called him that 
He was there almost every Saturday night 
to Monday night; and when he would go to 
Virginia and come back he would stop there. 
He did not sleep at Dr. Mudd’s, but out in 
the woods. Besides him, there was a Captain 
White, from Tennessee, they said; a Captain 
Perry, Lieutenant Perry, Andrew Gwynn, 
Benjamin Gwynn, and George Gwynn; they 
all slept in the woods. When they came to 
the house to eat, Dr. Mudd would put us 
out to watch if anybody came; and when 
we told them somebody was coming, they 
would run to the woods again, and he would 
make me take the victuals out to them. I 
would set them down, and stand and watch, 
and then the rebs would come out and get 
the victuals. Surratt and Andrew Gwynn 
were the only two that I saw come out and 
get them. I have seen Surratt in the house, 
up stairs and in the parlor, with Dr. Mudd. 
They never talked much in the presence of 
the family; they always went off by them- 
selves up stairs. 
Some men that were lieutenants and offi- 
cers, came from Virginia, and brought letters 
to Dr. Sam Mudd; and he gave them letters 
and clothes and socks to take back. They 
were dressed in gray coats, trimmed up with 
yellow; gray breeches, with yellow stripes 
down the leg. After Dr. Mudd shot my 
brother, Elzee Eglent, one of his slaves, he 
said he should send him to Richmond, to 
build batteries, I think he said. 
I understood Dr. Mudd to mean that lie 
recognized the wounded man, while at his 
house, to be the Booth to whom he had been 
introduced in November. His expression 
was that he did not recognize him at first, 
but, on reflection, he remembered him as the 
person to whom he had been introduced. 
He said that, as he came back in the after- 
noon, he saw the wounded man going away 
from the house, hobbling through the mud. 
Herold had been riding the bay horse, and 
was going off on k. The roan horse, he sup- 
posed, was in the stable. He did not say 
that he did not see them but from the 
position he described them as being in, he 
could not see them the moment after they left 
the stable. 
By Mr. Ewing. 
As near as I can recollect, the words used 
by Dr. Mudd, in reference to recognizing 
Booth’s photograph, were that he should not 
have recollected the man from the photo- 
graph, and that he did not know him or re- 
member him when he first saw him; but that 
On reflection he remembered that he was the 
man who was introduced to him in November 
last; but he did not say whether this reflec- 
tion, from which he recognized the wounded 
man as the one to whom he had been intro- 
duced, occurred before or after the man left; 
but the impression made on my mind was 
that it was before the man left. He gave as 
the-reason for not remembering him at first 
that the man was very much worn and de- 
bilitated, and that he seemed to make an effort 
to keep the lower part of his face disguised; 
but of course the open light of day, the shav- 
ing of the face, and the fact that he some- 
times slept, gave better opportunities for 
observation. I do not think he said any 
thing to indicate that the wounded man at 
any time entirely threw off his attempt to 
disguise; but when he came to reflect, he 
remembered that it was the man to whom he 
had been introduced; he did not, however, 
I believe, say that that reflection or memory 
came to him at any particular moment. 
Cross-examined by Mr. Ewing. 
It was about four years ago, that Dr. Mudd 
said that Mr. Lincoln came through, dressed 
in woman’s clothes; he said it at the table. 
Dr. Mudd never slept in the woods, only the 
men that used to come there; the bed-cloBhes 
were taken out into the woods to them. 
l am sure I saw Mr. Surratt there a dozen 
times last summer. I do not think he slept 
in the house any time; none of them ever 
did, but Watt Bowie. The last time I saw 
Mr. Surratt there, apples and peaches were 
ripe. I do not know what month it was. 
He said he was going to Washington then. 
He took dinner there six or seven times last 
summer; but when the men from Washing- 
ton were after them, th($7 got scared, and ate 
in the woods, Mr. William Mudd, Vincent 
Mudd, and Albert Mudd saw Mr. Surratt 
there; they all visited the house while the 
rebs were about. When Sylvester Mudd 
and some others came, they would run out 
of the way. A young man named Albion 
Brooke saw Mr. Surratt at Dr. Mudd’s sev- 
Mary Simms (colored.) 
For the Prosecution.—May 25. 
I know that prisoner yonder, Dr. Samuel 
Mudd, [pointing to the accused. Samuel A. 
Mudd.] I was his slave, and lived with him 
four years; I left him about a month before 
this Christmas gone. I heard him talk 
about President Lincoln. He said that he 
stole in there at night, dressed in woman’s 
clothes; that they lay in watch for him, and 
if he had come in right they would have 
killed him. He said nothing about shooting 
him; he would have killed him, he said, if TESTIMONY CONCERNING SAMUEL A. MUDD. 
171 
®ral times last summer. It was winter when 
commenced to come there, and he 
ICePt coming, on and off’, till summer was 
ot,t; and after that I did not see him. He 
Bcd to go to Virginia and come back, and 
0 Washington and back, and every time he 
w°uld bring the news. Sometimes he would 
c°ttie once a week, and then again he might 
n°t come for two weeks. 
Q. State whether you heard him say any 
thing, at any time, about sending men to 
Richmond; and, if so, what he said, and to 
whom he was talking. 
A. Last August, a twelvemonth ago, I 
heard him say he was going to send me, 
Elzee, my brother, Frank, and Dick Gardner, 
and Lou Gardner to Richmond to build bat- 
teries. 
By Assistant Judge Advocate Bingham. 
Mr. Ewing objected to the question and 
answer. 
Albion Brooke was a white man; Dr. Sam- 
Mudd’s wife was his aunt. He sometimes 
forked out in the field where the colored 
People were. 
The Commission overruled the objection. 
Witness. That was the last Friday in the 
August before last, and I left the next night. 
Forty head of us went in company. 
Elzee Eglent (colored.) 
For the Prosecution—May 25. 
Cross-examined by Me. Ewing. 
When I heard Dr. Mudd say this he was 
standing at my old master’s front gate, under 
the oak-tree, where their horses were, talking 
to Walter Bowie and Jerry Dyer. 
I know Dr. Samuel Mudd; he was my 
"°ss; yonder he is, [pointing to the accused, 
Samuel A. Mudd.] 1 was his slave, and lived 
him. I left him on the 20th of the 
August before the last. 
, Q- Did he say any thing to you before you 
him about sending you to Richmond? 
A. Yes, sir; he told me the morning he 
shot me that he had a place in Richmond for 
me. 
Melvina Washington (colored.) 
For the Prosecution.—May 25. 
I used to live with Dr. Samuel Mudd; I 
was his slave; I see him there, [pointing to 
the accused, Samuel A. Mudd.] I left him 
this coming October two years. The last 
summer I was there I heard him say that 
President Lincoln would not occupy his seat 
long. There was a heap of gentlemen in the 
house at the time, but I do not know who 
they were. Some had on gray clothes, and 
some little short jackets, with black buttons, 
and a little peak on behind. Sometimes 
they staid in the house, and sometimes slept 
in the pines not far from Dr. Mudd’s spring. 
Dr. Mudd carried victuals to them sometimes, 
and once he sent them by Mary Simms. I 
happened to be at the house one time when 
they were all sitting down to dinner, and they 
had two of the boys watching; and when 
they were told somebody was coming, these 
men rushed from the table to the side door, 
and went to the spring. 
I heard Dr. Mudd say one day, when he 
got mad with one of his men, that he would 
send him to Richmond, but I did not hear 
him say what he was to do there. 
Air. Ewing. I object to that question and 
‘■be answer. 
The Judge Advocate. The object of the 
Question is to show disloyalty. 
The Commission overruled the objection. 
Witness. He told me he had a place in 
for me when I should be able to 
§° away. He did not say what I was to do 
lere. That was the June before the last, 
named four more that he said be was 
gdng to send to Richmond—Dick and my 
*0 brothers, Sylvester and Frank. 
I saw men come to Dr. Mudd’s, dressed 
B.°nie in black clothes and some in gray; gray 
Jackets, coat-like, and gray breeches. One 
P them, Andrew Gwynn, I had seen before; 
le others I did not know. They used to 
BfPeP *n the woods, about a quarter of a mile 
°|h I reckon, and would come to the house 
j different times, and go back to the woods. 
, don’t know where they got their victuals, 
ut I have seen victuals going that way often 
etl°ugh ; I have seen my sister, Mary Simms, 
P.arrying them. That was in the June and 
uv before the last. 
Cross-examined by Mr. Ewing. 
Those men that staid in the woods were 
there for a week or more, and they went 
away in the night; Ido not know where to. 
I noticed them up at the house seven or eight 
times during that week, and never saw them 
there at any other time. Ido not know the 
names of any but Andrew Gwynn. Ido not 
know of any white people that saw these men 
but Dr. Mudd and his wife, and two colored 
women, Rachel Spencer and Mary Simms. 1 
did not stay about the house; but when there 
was company I had to go up on account of 
the milking, and that was how I happened 
Cross-examined by Me. Ewing. 
Nobody but Dr. Mudd and myself were 
Present when he told me he was going to send 
lue to Richmond; he told me so up stairs. 
Sylvester Eglent (colored.) 
For the Prosecution.—May 25. 
I used to live about a quarter of a mile 
rpm the house of Dr. Samuel Mudd; 1 lived 
his father. 
to see them 172 
THE CONSPIRACY TRIAL. 
Milo Simms (colored.) 
For the Prosecution.—May 25, 
I remember some five or six men being 
there at one time last summer; I think they 
were dressed in black and blue. Some of 
them slept in the pines near Dr. Mudd’s 
spring. They got their victuals from his 
house; Dr. Mudd took them out himself 
sometimes. The. men would come up to the 
house sometimes, and then I have heard that 
the boys had to go to the door and watch to 
see if any body was coming. I only remem- 
ber the names of Andrew Gwynn and Walter 
Bowie. There was a young-looking man 
among them once; I do not know his name; 
he was not very tall, but slender and fair. 
I heard Dr. Mudd tell one of his men that 
he was going to send him down to Rich- 
mond; I don’t know what he was to do 
there. 
I was a slave of Dr. Samuel Mudd, and 
lived with him. There he is, [pointing to the 
prisoner, Dr. Mudd.] I left hie house on the 
Friday before last Christmas. The last sum- 
mer I was there, I saw two or three men there, 
that sometimes staid in the house and some- 
times out by the spring, up among the bushes. 
They had on plaid gray clothes, and one had 
stripes and brass buttons on. I saw their 
bed among the bushes; it was fixed under a 
pine tree; rails were laid at the head and 
blankets spread out. They got their victuals 
from Dr. Samuel Mudd’s; sometimes he car- 
ried them out himself, and sometimes my 
sister carried them. She would lay them 
down at the spring, and John Surratt or Billy 
Simms took them away. I heard John Sur- 
ratt called by that name in the house; Dr. 
Samuel Mudd’s wife called him so in Dr. 
Mudd's presence. He was a spare man, slim, 
pale face, light hair, and no whiskers. When 
he was in the house, Dr. Mudd told his son and 
some of the children to stay out of doors and 
watch, and if anybody was coming to tell him. 
Last year, about tobacco-planting time, I 
heard Ben Gardiner tell Dr. Samuel Mudd, 
in Beantown, that Abe Lincoln was a God 
damned old son of a bitch, and ought to 
have been dead long ago; and Dr. Mudd 
said that was much of his mind. 
Cross-examined by Mr. Stone. 
Those men that were at Dr. Mudd’s last 
summer came all together, staid about a 
week, and went away together. Their horses 
were in the stable. I saw them two or three 
times that week, but I don’t remember see- 
ing them before or after. Albion Brooke 
was there at that time; he used to go with 
them ; they were always together. 
William Marshall (colored.) 
For the Prosecution.—May 25. 
I was a slave until the year 1863, when I 
got away from home. I belonged to Mr. 
Willie Jameston. Of late I have lived near 
Dr. Samuel Mudd; I see him here now, 
[pointing to the accused, Dr. Mudd.] I 
know Benjamin Gardiner, one of his neigh- 
bors; he was my wife’s master. 
Q. State whether you heard any conversa- 
tion between Benjamin Gardiner and Dr. 
Samuel A. Mudd about the rebels, and their 
battle with the Union forces on the Rappa- 
hannock. 
Mr. Ewing objected to the question on the 
ground heretofore stated by him with refer- 
ence to similar questions. 
The Commission overruled the objection. 
A. Yes, sir; I did. On Saturday, soon 
after the battle at the Rappahannock, I hap- 
pened to be home. I had every other Sat- 
urday. My wife being sick, the Doctor had 
been to see her, and when he came out Mr. 
Gardiner met him at the corner of the house, 
and said to him, “We gave them hell down 
on the Rappahannock; ” and the Doctor said 
“Yes, we did.” Then he said, “Damned it 
Stonewall ain’t the best part of the devil; X 
don’t know what to compare him to." 
Q. Who said that he was the best part of 
the devil. 
A. Benjamin Gardiner. The Doctor said 
Stonewall was quite a smart one. Then 
Benjamin Gardiner said, “Now he has gone 
around up in Maryland, and he is going to 
cross over on the Point of Rocks some- 
where”—he did say at that time, but I really 
I worked in the field, but sometimes was 
at the house to take the horses from the men 
who came there. I reckon lam about four- 
teen years old. I do not know whether I 
would know Mr. Surratt now; I knew him 
last summer. He was not shown to me by 
any one. Dr. Samuel Mudd came out to me 
and said, “Take Mr. Surratt’s horse to the 
stable and feed him.” He staid all night 
that time. I only saw him there two or three 
times. Mr. Billy Simms, Mr. Perry, and a 
man named Charley something, I forget what, 
came with him. Beantown is about three or 
four miles from the house; 1 had been there 
with Dr. Mudd for some meat when I heard 
that talk between him and Ben Gardiner. It 
was not two years ago, it was last summer; 
there were some more gentlemen present, 
but I did not know them. 
Cross-examined by Mr. Stone. 
X have never seen Andrew Gwynn with 
Surratt at Dr. Mudd s house; I have seen 
them at Dr. Mudd s father s house, with Jerry 
Dyer and Dr. Blanford. I saw them all there 
last yea n tobacco-planting time. 
Rachel Spencer (colored.) 
For the Prosecution.—May 25. 
I was the slave of Dr. Samuel Mudd. I 
see him among the prisoners there, [pointing 
to the accused, Samuel A. Mudd.] I left his 
house in January last. TESTIMONY CONCERNING SAMUEL A. MUDD. 
173 
oiget now, where he was going to cross at 
{|le Point of Rocks—“and I would not be 
jle surprised if very soon from this”— 
le stated at what time, but I forget at what 
,ength of time he said—“he will be down 
e^e and take the capital of Washington, 
I Uc* Boon have old Lincoln burned up in his 
Ouse; ” and Dr. Mudd said he would not be 
e. least surprised; he made no objection 
Q. You thought it was a mere joke at the 
time, from the way he said it? 
A. He was laughing at the time, or some- 
thing like it. I know Dr. Mudd; we went to 
school together, and when he was a boy he 
was full of fun and jokes. 
I spoke of what Dr. Mudd had said to 
almost everybody I saw, but everybody 
laughed at the idea of such a thing. I told 
Mr. Lemuel Watson, a good Union man, of 
this conversation before the assassination, 
and I also wrote to Colonel Holland, Provost 
Marshal of the Fifth Congressional District 
of Maryland; but I never received an answer 
from him. I had written to him several 
times before, but had never received an an- 
swer and I concluded that my letter must have 
been miscarried. I mailed the letter at Horse- 
head, and directed it to Ellicott Mills. I 
mentioned the conversation I had with Dr. 
Mudd, after the assassination, to my brother, 
Dr. M. C. Thomas, and Mr. Peter Wood, and 
to several others in Bryantown, when they 
were looking for Booth. 
I am positive that nothing was said be- 
tween Dr. Mudd and myself about exempting 
drafted men, nor had we been speaking of 
desertions from the rebel army or from the 
Union army, and that the conversation re- 
lated is substantially all that occurred. 
' Two or three weeks after this conversation, 
but before the assassination, I believe, I men- 
tioned it to Mr. Downing. He said he did 
not hear it, and he said, “Well, if that be the 
case, I am glad I was not in there.” I 
thought if he had heard it he would not have 
said any thing about it. This conversation 
with Mr. Downing occurred when I met him 
on the road leading from his house to Horse- 
head. Mr. Downing said it was only a joke 
of Dr. Mudd’s; that he was always running 
on his joking ways. When Mr. Downing 
returned to the room, Dr. Mudd did not say 
to him that I had been calling the Southern 
array “our army.” 
For the Prosecution.—May 18. 
Daniel J. Thomas. 
. lam acquainted with Dr. Mudd. About 
ago, some time in the latter part 
■w March, I had a conversation with Dr. 
. add at John S. Downing’s, who lives close 
me and about a mile and a quarter from 
Jrr- Mudd’B. We were engaged in conversa- 
-1011 about the politics of the day. I made 
g remark to Dr. Mudd that the war would 
°on be over; that South Carolina was taken, 
.j I thought Richmond would soon be, and 
iat we would soon have peace. He then 
.. 'u that Abraham Lincoln was an aboli- 
louist, and that the whole Cabinet were 
°h; that he thought the South would never 
e subjugated by abolition doctrine, and he 
J°ut on to state that the President, Cabinet, 
|nd other Union men in the State of Mary- 
°ud would be killed in six or seven weeks. 
Cross-examined by Mr. Stone. 
~ Mr. Downing was at home when we had 
a*ls conversation, though I believe he was out 
to i 8 Pme this portion of the conversation 
or he had gone out to the kitchen, 
Mt° the wood-pile, or somewhere else. After 
tl)S relUrn> I asked him if, after having taken 
l^.le oath of allegiance, he would consider it 
fading. That was all that occurred after Mr. 
°wning returned. I did not remain there 
than half an hour or three-quarters of 
ji? "°ur; that is the only time I have met Dr. 
.at Mr. Downing’s this year. From Dr. 
add’s conversation he did not seem to be 
Vvj ln") but it is impossible for me to say 
jjMther or not he was earnest in what he said. 
jne aid not look as if he was angry or speak 
mabce. I can not judge whether a man is 
earnest or not from the language he uses; 
tall- sh°nld think a man was in earnest to 
q °£.^e President being assassinated. 
. Did you think at the time that he was 
n earnest? 
'Vo i 8*r‘ not any such thing 
j> ever come to pass. I thought the 
a Bs’dent was well guarded, and that it was 
MBense on his part saying so. I 
Senfe that the man had no more 
} Dr. Mudd first said it, I thought 
he Tneard P, but after a day or two I thought 
aq Cei’tainly could not have meant it; but 
itWI President wa« killed, and after hear- 
renii lat B°oth was at his house, I thought he 
eal]y meant it. 
Mr. Downing was out of the room long 
enough to get some wood, and, to the best of 
my recollection, he brought in some. We 
had no further conversation after he came in, 
only I said, “You are a man who took the 
oath; do you consider it binding ?” He said, 
“No;” he did not consider it binding; if a 
man was compelled to take an oath, he did 
not consider it binding. I told him nobody 
was going to kill him; it was not compulsory 
for him to take the oath. He said he thought 
it was compulsion. 
After Mr. Downing came in, Dr. Mudd did 
not say another word. I just got up and 
asked Mr. Downing one or two questions; if 
he had taken the oath, and he said he had 
taken the oath, but that he was no more loyal 
than he was before; that he always was a, loyal 
man; that his feeling was for State rights; 
Cross-examined by Mr. Ewing. 174 
THE CONSPIRACY TRIAL. 
but that he did not consider that oath bind- 
ing upon any person. 
you summoned to prove it.” They said, “ Ko, 
we did not hear you then.” Said I, “ Will 
you give me a piece of paper to show that I 
mentioned it to you before the assassination ? 
“No,” they said, they did not hear it; because 
they were afraid I would have them sum* 
moned. 
Before that I had said to Dr. Mudd that 
he, having taken the oath, ought not to say 
such things about the President. He said 
he did not consider the oath worth a chew 
of tobacco. It was in consequence of such 
expressions, and knowing that Mr. Downing 
had been a justice of the peace, that I wanted 
to know if he considered the oath binding. I 
said nothing to Mr. Downing about my being 
a marshal or deputy marshal, or about my 
having a commission from General Wallace, 
or of having received any letters from him. 
I told my brother of the conversation I 
had had with Dr. Mudd at Church or before 
Church. I told Mr. Watson when he was at 
my mother’s one day. When I mentioned it 
to him, he laughed heartily; after that I 
could not help laughing. He said, “Dr. 
Mudd only did that to scare you. Every- 
body knows that such a thing is never going 
to come to pass.” 
Q. What did you ask for a paper for ? 
A. To certify that I had said such a thing 
before the arrest of Dr. Mudd. 
I certainly did not say to Eli J. Watson, 
on the Ist of June, before meeting these gen- 
tlemen, that I wanted him to certify that 1 
had been the cause of the. arrest of Dr. Mudd, 
or that I had given any information which 
led to his arrest, and for which I was entitled 
to $25,000, for I never did give any informa- 
tion which led to the arrest of Dr. Mudd. 
Dr. Mudd was arrested before I knew it. 1 
never thought of such a thing as being enti- 
tled to a reward. I looked upon Colonel 
Baker’s men saying it as a joke at the time. 
I never looked for or expected such a thing, 
and more than that, I never would have a 
reward. 
When I was on the stand before, Mr- 
Stone wanted to know if I had mentioned 
the conversation with Dr. Mudd to any one 
before the assassination. When these men 
told me that I had mentioned this conversa- 
tion to them before the assassination, I then 
asked them if they would sign a paper to 
show the Court that I had mentioned it be- 
fore. That was my object in asking them to 
sign, and that is the only paper I asked them 
to sign. 
William A. Evans. 
Recalled for the Prosecution.—June 6. 
I was at William Watson’s door-yard, near 
Horsehead, on the. Ist of June, with John 
R. Richardson, Benjamin J. Naylor, George 
Lynch, Lemuel Watson, and William Wat- 
son, when James W. Richards, the magis- 
trate, rode up. I did not state to Mr. Richard# 
that I had been asking any of these gentle- 
man for a certificate to the fact that I was 
the first to give information which led to the 
arrest of Dr. Samuel Mudd, and that if they 
would give me a certificate I should be en- 
titled to the reward of $10,000; but what I 
did say was, that I had been told in Wash- 
ington, by some of Colonel Baker’s men, that 
I was entitled to so much reward if Dr. 
Mudd was convicted. But I said that I never 
expected or looked for a cent, but that I 
would be very glad to receive the reward if 
it were so. I knew these fellows said it in a 
joke, and I told it as a joke. I did not tell 
Mr. Richards that I had been saying that I 
was the person who gave the information that 
led to the arrest of Dr. Mudd. As it had 
been said that if I had told anybody before 
the assassination, I would be entitled to a 
certain part of the reward if Dr. Samuel 
Mudd was convicted, I inquired of them if 
they thought I would be entitled to it; but 
I never did ask them for a certificate of the 
fact that I had given the information. I 
told them that I had mentioned it to some 
persons before and to some since the assas- 
sination. Ido not myself remember whether 
it was before or after the assassination. 
Q. And you did not ask either of the gen- 
tlemen I have named for a certificate of the 
fact that you were the first person who gave 
the information which led to Dr. Samuel 
Mudd’s arrest. 
For the Prosecution.—June 5. 
About the Ist or 2d of March last—cer- 
tainly before inauguration day—l saw Dr* 
Samuel Mudd, with whom I have a slight ac- 
quaintance, drive past me as I was driving to 
the city in the morning. He passed me, 1 
think, about eight miles from the city. He 
had a fiery horse, and as I wished to take 
my time, I let him drive past me, but I fol- 
lowed him up to the city, never losing sight 
of him. 
Cross-examined by Mr. Ewing. 
I have seen Dr. Mudd at different times 
for the last fifteen years, though I never was 
introduced to him. I have, I think, met Dr* 
Mudd at different places in the city, and at 
the National Hotel. Last winter I saw him 
go into the house of Mrs. Surratt on H Street; 
I could not say positively where the house 
is; it may be between Ninth and Tenth 
Streets, or between Eighth and Ninth Streets; 
somewhere along there. I asked a police- 
man, and a lady who was on the sidewalk? 
whose house it was, and was told it was 
Mrs. Surratt’s. I had seen rebels going m 
there—Judson Jarboe and others—and * 
A. Never. I just said to them, “You can 
eay I mentioned it before the assassination; 
you can give me a certificate, and I will have 
wished to know who lived there. It was a 
brick house, of perhaps two stories and TESTIMONY CONCERNING SAMUEL A. MUDD. 
175 
and is, I think, between the Patent 
Dffice and the President’s house, and is on 
the right-hand side going toward the Capitol. 
jJthe witness, at the request of the counsel, described 
•JiT8* Surratt’s house and neighborhood, but did it some- 
hat indefinitely.] 
I was riding down the street, going to see 
the Rev. J. G. Butler, of the Southern Church, 
and at the same time call in at the Union 
-trayer Meeting. There were members of 
different Churches assembled there, but I 
not name any but Ulysses Ward that 
d saw there. On the same day I saw Mrs. 
Pressy and Miss Pumphrey at their 
douses, and I saw them also at different 
tunes during the winter. 
I keep a journal of the visits I make, bap- 
tisms, deaths, etc., but I did not put Dr. 
Mudd’s name in that, and I could not refer 
t° this journal because it would be impossible 
’°r me to get possession of my books now. 
'vas then moderator of the Presbytery of 
the District of Columbia, and our books are 
Jjot allowed to be taken out of the churches, 
.he Rev. Henry Highland Garnett, colored, 
18 pastor of that Church now, and the journal 
my baptisms, marriages, and deaths is in 
118 possession, but if a hundred such journals 
'Vere here, they would have no effect in fixing 
he date when I saw Dr. Mudd go into Mrs. 
house. I visited other families that 
aay, but I can not remember their names 
n°vv- I am so confused at present that I can 
a°t recollect. I have been so confused since 
he death of President Lincoln that I really 
times am bordering on insanity almost. I 
never got such a shock in my life. 
„ I was in my buggy when I passed Mrs. 
1 nrratt’s house. Dr. Mudd had on dark- 
colored clothes, I believe, with some kind of 
ni'k-brown overcoat, and a dark slouch hat 
Q- Now state how it is that you are enabled 
■P hx the date from the Ist to the 3d of 
harch as being the day on which you saw 
r- Mudd riding into town. 
■A- I hold a position in the Post-office De- 
Partment, and I was making arrangements 
of >otne UP the inauguration on the 4th 
March; and I was coming up very early 
n those mornings to do extra work, in order 
o be present at the inauguration. Dr. Mudd 
love on past me. My horse got scared at 
le time, and was very near throwing me 
ut. J remarked, as he passed by, how rude 
e was in almost knocking his wheel against 
buggy; and I came home and told my 
. 1 e I was very near being thrown out. I 
a'o only one leg, and it is difficult for me 
if fkeUlonS- not get out of my buggy 
[bo horse ran away. 
ki When did you commence this extra 
ork, so as to be enabled to attend the in- 
duration ? 
Several days before the inauguration. 
j' Ihree or four days before? 
.A. About the latter part of February. I 
Wa}Ts like to discharge my duty, I have a 
certain amount of work to do, and I want to 
do it. 
Mr. Ewing. We do not want your per* 
sonal history. 
Witness. You seem to be so precise, I 
want to give you every thing connected 
with it. 
Mr. Ewing. We are not so precise as to 
your personal history. 
Witness. A little of it will not do you 
any harm. 
Mr. Ewing. Ido not think it will do any 
good in this case. 
Witness. We are all free and equal men, 
and can talk as we please. 
Mr. Ewing. If the Court wishes this ex- 
amination continued perpetually, this witness 
may be indulged in his lucubrations as to his 
history and answers to every thing except the 
questions that I propose. I ask the Court to 
restrain him to enable me to get through the 
examination. 
The President. The witness has been told 
once that he must reply to the questions. 
Witness. I have answered every question 
that he has asked me, to the best of my 
ability. 
The President. We do not want any 
thing else but answers to the questions. 
Witness. Very well, I will answer them. 
The President. If you do not do as you 
are directed, we will try 
Witness. And make me do it. 
The President. Yes, sir. 
Witness. Dr. Mudd drove a two-seated 
carriage; it is what is termed a rockaway. 
When I saw Dr. Mudd going into Mrs. 
Surratt’s house, Mr. Judson C. Jarboe was 
coming out I saw him shaking hands with 
a lady at the door as Mudd was going in. I 
took the lady to be Miss Surratt from her 
likeness to her mother. Jarboe had mur- 
dered one of our citizens, and I wanted to 
know who lived at the house he was visiting. 
I can not say when last I saw Dr. Mudd 
before the time I have referred to; he passed 
often on the road during last winter. I think 
I once saw him coming up with Herold, 
[pointing to the accused David E. Herold.] 
It might have been a year ago. 
Cross-examined by Mr. Clampitt. 
It might have been about 11 o’clock when 
I saw Jarboe come out of the house as Mudd 
was going in. 
Q. Did you not say that you were on your 
way to a prayer meeting at the time? 
A. No, sir; I was on my way to see Dr. 
Butler. I said I was on my way to visit 
some families, and then in that neighborhood 
to go to prayer meeting. Being lame, I take 
pains to arrange my journeys so as not to go 
over the same ground again. 
I am a minister now, and have been for 
fifteen years. I hold a secret commission 
Cross-examined by Mr. Aiken. THE CONSPIRACY TRIAL. 
under the Government to arrest deserters 
and disloyalists wherever I find them. lam 
a detective. I wish to discharge my duty 
toward the Government to the best of my 
ability, but have never received one cent for 
any duty of that kind. 
[This witness was exceedingly discursive, and his exam- 
ination was consequently very lengthy. The above narra- 
tion contains all the material facts testified to.] 
son I supposed was the Doctor I saw about 
a quarter of 4 o’clock. I am personally 
acquainted with Dr. Mudd, and have been so 
for two years and five months. 
Frank Bloyce (colored.) 
For the Prosecution.—May 20. 
John H. Ward. 
I live in Charles County, Maryland, about 
half a mile from Bryantown. I was in Bry- 
antown on Saturday evening after the murder 
of the President, and saw Dr. Samuel Mudd 
there between 3 and 4 o’clock. I was in 
the store buying something when Dr. Mudd 
came in. 
For the Prosecution.—May 20. 
I live in the suburbs of Bryantown, Mary- 
land. On Saturday, the 15th of April, I 
went to the village as soon as I had finished 
my dinner, and was there at about 1 o’clock. 
As soon as I arrived, I observed that the 
military were in town with Lieutenant Dana, 
and that there was great excitement among 
the people as well as the military. I went 
home, expecting that the soldiers would 
search the houses. Soon afterward a negro 
came up and said the President had been 
assassinated. I immediately left home and 
went again to the village. There I heard 
of the assassination. I also heard that the 
assassin’s name was Booth. It was spoken 
of by everybody at Bryantown; first by the 
military, and then by the citizens, and it was 
spread about that Booth was the assassin. I 
heard this, I suppose, between 1 and 2 o’clock. 
The village was put under martial law, 
and many of the people began to be excited 
about getting home, and made application to 
the commanding officer to let them go, but 
he refused to do so. I went home. 
Cross-examined by Mr. Ewing. 
I left Bryantown before night. I do not 
know what time Dr. Mudd left. Before 
night the place was guarded, and I heard 
that the President had been assassinated. 
Mrs. Eleanor Bloyce (colored.) 
For the Prosecution.—May 19. 
I know the prisoner, Dr. Mudd; he lives 
about four miles from Bryantown, where I 
live. I saw him on the Isth of April last, 
riding into Bryantown late in the afternoon. 
There was a gentleman with him when he 
passed. I do not know that they went into 
town together ; they were together until they 
were out of my sight. It was but a short 
time until Dr. Mudd returned. When he 
came back the gentleman was not with him. 
About eight or ten minutes after I saw him 
I went into town myself. On arriving there 
I found the soldiers from Washington, and 
then I heard of the murder of the President; 
that he was shot on Friday night at the 
theater. I did not hear who shot him. 
I think I saw Dr. Samuel Mudd there, but 
the excitement was so great that I can not 
say positively that I did. 
Cross-examined by Mr. Ewing. 
I could not tell precisely the time 1 left 
Bryantown, the second time I went up, but 
I suppose it was between 2 and 8 o’clock. I 
did not hear that the President had been 
assassinated the first time before I left Bry- 
antown; the first intimation I had of it was 
by the darkey. 
Cross-examined by Mr. Stone. 
When Dr. Mudd passed the first time, I saw 
a gentleman with him; when he returned, I 
did not see the gentleman with him. I was too 
far from the road to know what kind of look- 
ing gentleman he was. I reckon I live about 
a quarter of a mile from the road. I went to 
Bryantown in a very short time after he 
passed my house. Ido not think Dr. Mudd 
staid in Bryantown a quarter of an hour, 
but I do not know, as I have not any thing 
to tell by; it was a dark, drizzly, foggy 
evening, getting late. 
I could not tell whether it was an old or 
young gentleman with the Doctor, he ap- 
peared to be riding a bay horse; I think the 
Doctor was riding a dark-gray horse, but I 
did not take much notice. They were riding 
side by side at a tolerable gait, not faster 
than persons usually ride in the country. 
I live on the right of the road that leads 
up to Dr. Mudd’s. There, is no road that 
turns out between my house and Bryantown, 
and the man that was with Dr. Mudd was 
obliged to go through Bryantown, or come 
back the same way as he went. I was not 
“Boose” was the name of the assassin, as 
spoken by the soldiers who were not familiar 
with language; they could not say Booth. 
By Mr. Ewing. 
Those who spoke audibly, told me that his 
name was Booth, and those who seemed to 
have an amalgamation of the languages 
called it “ Boose." 
The darkey who told me that the Presi- 
dent was assassinated was Charles Bloyce, 
a brother to the one who has just testified. 
When he told me that the President had been 
assassinated, _ I immediately left home, and 
went to the village, where I found it a current 
report. He did not tell nie who did it. 
My house, I suppose, is four or five miles 
from Dr. Mudd’s. I could not state posi- 
tively that it was Dr. Mudd I saw; the per- TESTIMONY CONCERNING SAMUEL A. MUDD. 
177 
the door all the time. I happened to be 
landing at the door when Dr. Mudd passed 
ar)d the gentleman with him, and when he 
alone. 
see Mr. Booth. I told him tnat Booth’s 
room was probably on the floor above, the 
number I did not know. My room having 
thus been entered by a person apparently 
excited, I left my writing and followed the 
person partly through the hall. As he went 
down the flight of stairs to the story below, 
he turned and gave a look at me. It was 
his hasty apology and hasty departure that 
made me follow him. On entering the court- 
room this morning, I pointed out to the Hon. 
Horatio King the three prisoners I had seen 
at the National Hotel—Dr. Mudd, Atzerodt, 
and O’Laughlin. When I pointed them out 
I did not know their names. 
Mrs. Becky Briscoe (colored.) 
For the Prosecution.—May 19. 
I live at Mr. John McPherson’s, about a 
garter of a mile from Bryantown. I know 
Y’- Samuel Mudd. On Saturday, the day 
,ter the President was murdered, about 3 
® clock, as I was standing in the kitchen- 
ll°or, I saw the Doctor riding into town with 
a strange gentleman. The gentleman went 
°ward the bridge, and the doctor kept on 
0 Bryantown, and this gentleman came back 
a?ain. He kept on down the road to the 
®'vainp, when I saw him again. He staid at 
yC swamp till the Doctor came back, in 
ycout half an hour, I reckon. The bridge is 
ln sight of the town, about half a mile off. 
Went to town a very little while after the 
~°ctor came back. I there heard of the mur- 
der of the President, but I did not hear until 
v° or three days after that the man who 
<]' led him was named Booth. 
[See testimony of Marcus P. Norton, page 149.] 
I recognize the person, Samuel A. Mudd, 
as the man who entered my, room on that 
occasion. It was either he or a man exactly 
like him. lam enabled to fix the date when 
he entered my room, first by the fact of its 
being immediately before the inauguration, 
also that it was on the morning of the day 
on which I was preparing my papers to argue 
a motion, pending before the Supreme Court, 
in the case of John Stainthrop and Stephen 
C. Quinn against Wallis Hollister. I remem- 
ber the motion was argued on the day the 
person I speak of entered my room. He 
had on a black coat. His hat, which he 
held in his hand, was, I think, a black one, 
but not a high-crowned hat. 
Cross-examined by Mr. Stone. 
The swamp is on the other side of the 
/.0.Use, just below the barn. Dr. Mudd and 
hs man went along together, and the latter 
6t°pped at the bridge and came back again, 
atld went as far as the swamp. I was down 
1,1 the branch getting willows for Dr. Mar- 
all, but not in the same branch the gen- 
,JetUan was in, but I could see over into that 
Ijh'anch. He was sitting there on the horse. 
saw him again going up the road with Dr. 
Samuel Mudd. 1 think both of them were 
?u hay horses. They passed about 3 o’clock 
111 the afternoon. A boy who was cutting 
'v°°d at the wood-pile said, “There’s a 
grange man going with Dr. Sam ; I do n’t 
'Uow who he is.” 
1 started for Bryantown when Dr. Mudd 
came back. The soldiers were in Bryantown 
I Gri I got there. I told my mother, who 
:!as just testified, that day of having seen 
man with Dr. Mudd, and the next day 
also told Baker Johnson, Mr. Henry John- 
°ni and Maria Kirby about it. 
My impression is that it was after I heard 
the conversation between Booth and Atze- 
Cross-examined by Mr. Ewing. 
rodt that Dr. Mudd entered my room, and I 
have no doubt it was on the 3d of March. 
I occupied room No. 77 in the National 
Hotel at the time. Dr. Mudd was dressed in 
black; he had on a black coat, no overcoat, 
I think, and his hat, which he had in his 
hand, was black; I think it was a hat some- 
thing like that, [pointing to the black silk 
hat of the President on the table,] but not 
so high. 
By the Court. 
When Dr. Mudd entered my room he 
seemed somewhat excited, or perhaps in a 
hurry rather. He said he had made a mis- 
take the room, and apologized in that 
way. The room I then occupied was No. 
77. I had perhaps ten days before been re- 
moved from room No. 120. 
For the Prosecution.—June 3. 
Assistant Judge Advocate Burnett. 
. I was in in this city, stopping at the Na- 
°ual Hotel, from about the 10th of January 
i° 10th of March last. While there I 
pew J. Wilkes Booth by sight, having seen 
Ua act several times at the theater, 
o 1 Saw the accused, Samuel A. Mudd, under 
j, f Allowing circumstances: A person hast- 
-31 entered my room, on the morning of the 
of March, I think. He appeared some- 
exclfo3, made an apology, and said that 
had made a mistake; that he wanted to 
Marcus P. Norton. 
See also the testimony of 
Louis J. Weichmann pages 113,118 
Lieut. Alexander Lovett page 87 
Lieutenant D. D. Dana “ 88. 
William Williams “ 88. 
Simon Gavacan “ 89. 
Joshua Lloyd ll 90. 
Thomas L. Gardiner. “ 71. 
Miss Anna E. Surratt “ 130. 
Miss Honora Fitzpatrick “ 132 178 
THE CONSPIRACY TRIAL. 
DEFENSE OF SAMUEL A. MUDD. 
John C. Thompson. 
For the Defense.—May 26. 
eonally, but am not intimately acquainted 
with him, or with his affairs. Ido not know 
that Dr. Mudd owns lands, or whether he 
lives upon land that belongs to his rather; 
but I know that his father is an extensive 
land-holder, and I told Mr. Booth that per- 
haps he might be able to purchase land 
from him. I saw the signature of the letter 
of introduction Booth brought; it was Mar- 
tin, I believe; the first name I forget. Booth 
did not buy any lands in that neighborhood, 
to my knowledge. 
By Mr. Stone 
I reside in Charles County, Maryland. I 
had a slight acquaintance with a man named 
Booth; I was introduced to him by Dr. 
Queen, my father-in-law, about the latter 
part of October last, or perhaps in Novem- 
ber. He was brought to Dr. Queen’s house 
by his son Joseph. None of the family, I 
believe, had ever seen or heard of him 
before; I know that I had not. He brought 
a letter of introduction to Dr. Queen from 
some one in Montreal, of the name of Mar- 
tin, I think, who stated that this man Booth 
wanted to see the county. Booth’s object 
in visiting the county was to purchase lands; 
he told me so himself, and made various 
inquiries of me respecting the price of land 
there, and about the roads in Charles County. 
I told him that land varied in price from $5 
to $5O per acre; poor land being worth only 
about $5, while land with improvements, or 
on a river, would be worth $5O; but I could 
not give him much information in regard to 
these matters, and referred him to Henry 
Mudd, Dr. Mudd’s father, a large land-owner. 
He also inquired of me if there were any 
horses for sale in that neighborhood. I told 
him that I did not know of any, for the 
Government had been purchasing, and many 
of the neighbors had been taking their 
horses to Washington to sell. Booth told 
me, on the evening of his arrival at Dr. 
Queen’s, that he had made some specula- 
tions or was a share-holder in some oil lands 
in Pennsylvania; and as well as I remem- 
ber, he told me that he had made a good 
deal of money out of it, and I did not know 
but that he came down there for the purpose 
of investing. 
On the_ next morning, Sunday, I accom- 
panied him and Dr. Queen to Church at 
I happened to see Dr. Samuel 
A. Mudd in front of the Church before 
entering, and spoke to him, and introduced 
Mr. Booth to him. Mr. Booth staid at Dr. 
Queen’s that night and the next day. About 
the middle of the December following, if my 
memory serves me, Mr. Booth came down a 
second time to Dr. Queen’s; he staid one 
night and left early next morning. I never 
saw him but on these two occasions, and do 
not know whither he went when he left Dr. 
Queen’s. 
Dr. William T. Bowman. 
For the Defense.—May 27. 
By Mr. Ewing. 
I reside at Bryantown, Charles County, 
Maryland. Some time in December last X 
met J. Wilkes Booth at Church, near Bry- 
antown. I was told it was Booth, the trage- 
dian. A few days afterward I saw him 
again in Bryantown. After speaking to one 
or two other persons, he asked me if I knew 
any person who had any land to sell. I told 
him I had a tract which I should like to 
dispose of, and took him to the window and 
pointed out the place to him. I told him 
the extent and price, etc. He asked me if I 
had any horses to sell. I told him I had 
several I would sell. He then said, “ I will 
be down in a couple of weeks and look at 
your land.” 
I have heard Dr. MAdd say he would like 
to sell his land. Last summer,'when he 
could get no hands, he said he would sell- 
I asked him what he expected to do in case 
he sold his land; he said he thought of 
going into business in Benedict, on the Pa- 
tuxent River; it is in an easterly direction 
from Bryantown, and is our usual port for 
Charles County. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
Some four or five days after Booth was 
there, I saw Dr. Mudd. I told him I thought 
I should now sell my land. He asked me to 
whom I expected to sell. I told him there 
was a man by the name of Booth, who said 
he was coming down to look at it, when he 
said, “ That fellow promised to buy mine." 
By Mr. Stone. 
Cross-examined by Assistant Judge Advocate 
Burnett. 
The distance from Bryantown to the Pft' 
tuxent is ten miles. Matthias Point is the 
nearest crossing on the Potomac from BrJ' 
an town, and that is from fifteen to sixteen 
miles. It is about fifteen miles from Br?' 
antown to Pope’s Creek, which is oppo®lte 
I live about seven or eight miles from Dr. 
Samuel A. Mudd. I know the Doctor per- DEFENSE OF SAMUEL A. MUDD. 
179 
Matthias Point, on the Potomac, and about 
three miles and a half from there to Dr. 
Mudd's. Mr. Henry L. Mudd, the father of 
Dr. Samuel Mudd, owns a considerable 
amount of land in that neighborhood. 
obtained from Dr. Mudd’s house and from 
mine; most of it, I think, from Dr. Mudd’s. 
Our meals were brought us by Dr. Mudd. 
The Doctor used to bring down a basket con- 
taining bread, meat, biscuit, and ham, and the 
colored girl, Mary Simms, I think, brought 
a pot of coffee. 
There is a large swamp between his house 
and mine. The first night we were on the 
other side of the swamp, after that we came 
within one hundred and fifty or two hun- 
dred yards of Mudd’s house. The party con- 
sisted of Benjamin Gwynn, Andrew Gwynn, 
and myself There was at the time a 
general stampede and panic in the com- 
munity. A good many left their homes, and 
went to their friends’ houses, or from place 
to place. 
When we were in the pines, I think Mr. 
Gwynn’s horses were left at Dr. Mudd’s, and 
were fed by the boys there; Milo Simms 
would be likely to attend to them. I re- 
member telling the children to keep a look 
out, and if any one came to let me know. 
We were all dressed in citizen’s clothes. 
Gross-examined by Assistant Judge Advocate 
Burnett. 
I live three miles and a half from Dr. 
Mudd. Dr. Mudd is understood to own the 
land he lives on, as other people own their 
land, but I do not know of my own know- 
ledge that it belongs to him. 
For the Defense.—May 27. 
Jeremiah Dyer. 
I have been living in Baltimore for two 
years; before that I lived from my childhood 
within half a mile of Dr. Samuel Mudd. I 
know Sylvester Eglent, who is a servant of 
Dr. Mudd’s father; I also know Frank Eglent, 
Dick Washington, and Luke Washington. I 
never heard any conversation in which Dr. 
Mudd said he would send Sylvester Eglent 
and his brother Frank Eglent to Richmond. 
Such a conversation could not have taken 
place in August, as I left that country on the 
Ist of August for Baltimore, where I re- 
gained until October. 1 then heard that 
some thirty or forty of the hands had left, 
and I went down to hire other hands to se- 
cure the crop. I heard, when I got down 
there, that a man by the name of Turner 
had started a report that he was going to 
catch all the negroes in that neighborhood 
and send them away. 1 never heard Dr. 
Mudd say any thing about sending off his 
hands to Richmond. I never met Dr. Mudd 
m company with Walter Bowie at his father’s 
house. I know Milo Simms, Melvina Wash- 
lrigton, Elzee Eglent, and Mary Simms; they 
Were all, I think, servants of Dr. Mudd’s 
house in 1861. 
I know Andrew Gwynn very well. Since 
1861 he has been in the rebel army. About 
he Ist of September, 1861, I was in the 
Neighborhood of Dr. Mudd’s house for about 
a week. We were knocking about in the 
pines and around there. It was about the 
fhne Colonel Dwight’s regiment was passing 
through, and there was a perfect panic in 
the neighborhood; the report was that every- 
body was to be arrested. A great many were 
arrested. Mr. Gwynn and his brother came 
Oown in a fright, stating that they had been 
ln the house to arrest them, or had been in- 
formed they were on their way there. I also 
Received notice that I was to be arrested. 
The two Gwynns came down then; I met 
them there at Dr. Mudd’s or my house, I do 
Not know which; the farms are adjoining 
Dor several nights we slept in the pines be- 
tween his house and mine. That situation 
Was a little inconvenient, and we moved over 
*Nd lay, I think, one or two nights near his 
BPring. We had some bed-clothing there, 
Alvin Brook, William Mudd, Vincent 
Miidd, and Albert Mudd might have come 
there while we were there, but I do not dis- 
tinctly remember. 
I have known Daniel J. Thomas since he 
was a boy, and I know his reputation for 
veracity in that neighborhood is such that 
very few men there have any confidence in 
him. His reputation is so bad that I would 
not believe him under oath. 
I have known Dr. Mudd since he was a 
boy. I have never heard the slightest thing 
against him. He has always been regarded 
as a good citizen; he has a good reputation 
for peace, order, and good citizenship. I have 
always considered him a kind and humane 
master. I never knew of any thing to the 
contrary, except his shooting his servant, 
which he told me of the same day it happened. 
Cross-examined by the Judge Advocate. 
I have never heard Thomas charged with 
having sworn falsely. He is a noisy, talk- 
ative man, but is unquestionably loyal. I 
can not say that I have ever heard a man 
of known loyalty speak of Mr. Thomas as 
a man they would not believe under oath. 
I am not aware that I have been guilty of 
any disloyalty toward the Government; I 
certainly never wanted to see two Govern- 
ments here, and I think I have desired that 
the Government of the United States might 
succeed in its endeavors to suppress the re- 
bellion, and I have persuaded young men 
from going on the other side. 
I was a member of a military organiza- 
tion in 1861, the object of which was, I be- 
lieve, to stand by the State of Maryland in 
the event of its taking ground against the 
Government of the United States. 
Q. At the time of which you speak, the 
fall of 1861, was the subject of the Legis- 180 
THE CONSPIRACY TRIAL. 
lature of Maryland passing an ordinance of 
secession much discussed among you? 
A. I do not know; I probably heard the 
subject spoken of very often, but I do not 
know that it was discussed to any extent. I 
may have heard it spoken of in crowds or 
congregations, but so far as conversing with 
any particular person on that subject is con- 
cerned, I have no knowledge of it. 
Q. Did you not suppose that the organi- 
zation of which you were a member was at 
that time regarded as disloyal by the Govern- 
ment, and hence feared arrest? 
A. I hardly know how to answer that 
question. That was in the incipiency of the 
thing, and it was hardly time for men to re- 
flect and give their minds room to see what 
would be the result of rebellion and civil 
war; it was in the start, when every thing 
was wild excitement and enthusiasm; and of 
course I can hardly answer that question. 
I do not know that I particularly rejoiced 
at the success of the rebels at the first battle 
of Bull Eun. I might have been like a good 
many others at that time; I suppose my 
sympathies were with the rebels. When 
Eichmond was taken, my sympathies were 
on the side of the Government; I wanted 
to see the war stopped. I believe the United 
States were pursuing the right course, except 
in emancipating the slaves; I thought that 
was wrong. 
longed was not regarded as a disloyal organ- 
ization in 1859; we never drilled after the 
breaking out of the war. 
Recalled for the Defense.—May 27. 
I know John H. Surratt; I have seen him 
on his father’s place, at Surrattsville. This 
photograph of him [the one in evidence] is, 
I think, a good likeness. I have not seen 
him for a year and a half or two years. 
By Me. Stone. 
Dr. Mudd does not live on any of the 
direct roads leading from Washington to the 
Potomac. A person leaving Washington, in- 
tending to strike the Potomac above Pope’s 
Creek or Upper Cedar Point Neck, would go 
out of his way seven or eight miles to pass 
Dr. Mudd’s. A person starting from here to 
strike the Potomac at Port Tobacco, would 
be nearest Dr. Mudd’s at Troy, where the 
main road crosses. That is seven or eight 
miles from Dr. Mudd’s place; so that a per- 
son would go out of his way sixteen miles to 
call at Dr. Mudd’s, and b}7 the nearest road 
it would be ten or twelve miles. Dr. Mudd’s 
house is considerably nearer the Patuxent 
than the Potomac. All the shipping from 
his farm is done on the Patuxent. I think 
Pope’s Creek on this side of the Potomac is 
nearly opposite Matthias Point, in Virginia. 
By Mr. Ewing. 
Recalled for the Defense.—June 30. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
1 have not seen a great deal of Mr. Thomas 
for the past two or three years; my estimate 
of his reputation for truth and veracity is 
based upon my knowledge of that reputation 
for several years back. I know he has not 
borne a good reputation for truth and veracity 
in that neighborhood since he was a boy. I 
1 have heard him spoken of as one who 
would tattle a great deal, and tell stories, and 
say a great many things that were not true. 
The military company of which I have 
spoken was organized, I think, in 1859, un- 
der the authority of Governor Hicks. On 
the 22d of February, 1860, we were up here 
in Washington, at the inauguration of the 
statue. 
In September, 1861, I accompanied Benja- 
min Gwynn and Andrew Gwynn to Virginia. 
I think we remained in Eichmond four weeks; 
I was sick there for two weeks. We sup- 
posed we were to be arrested, and we went to 
Eichmond to avoid it. We were in the pines 
at Dr. Mudd’s four or five days before we left. 
I belonged to a cavalry company, but I can 
not say that it was hostile to the Govern- 
ment and Administration of the United 
States. I suppose, if Maryland had passed 
the ordinance of secession, in all probability 
that company would have been in the rebel 
army, but I can not say that it was an organ- 
ization to support Maryland in so doing. I 
am not aware that I publicly proclaimed 
myself in favor of the secession of Mary- 
land; I may have done so, but I do not now 
recollect. I have not been over the lines 
since the time I have referred to. 
By the Court. 
i 
Our company broke up immediately on the 
breaking out of the war, and a great many 
left and joined the rebel army. I think it 
was regarded by the Government as a disloyal 
organization at the breaking out of the war. 
Mr. Thomas was, I think, a candidate for 
a seat in the House of Delegates of Mary- 
land a year or two ago. 
I have been at Dr. Mudd’s several times 
during the past two or three years. In going 
backward and forward from Baltimore, 1 gen- 
erally make Dr. Mudd’s my head-quarters. 
By Mr. Ewing. 
By Mr. Ewing. 
I do not think Thomas was nominated; I 
saw his name in the newspaper, and I saw 
him at the polls on the day of the election; 
he was then very confident of his election. 
The military organization to which I be- 
lam brother-in-law to Dr. Mudd. I have 
two or three sisters in that neighborhood, 
and Igo to see them all. When I returned 
from Virginia I took the oath of allegiance, 
and I have never, to my knowledge, vio- 
lated it. DEFENSE OF SAMUEL A. MUDD. 
181 
Alvin J. Brook. 
Q. From her general character among the 
servants in the neighborhood for telling the 
truth, would you believe her on oath ? 
A. No, sir. 
Q. How did Hr. Mudd treat his servants ? 
For the Defense.—May 27. 
I have been living at Calvert College, near 
Windsor, Maryland, since September last; 
before that I worked for Hr. Samuel Mudd. 
I went there in January, 1864. While living 
at Hr. Mudd’s I never saw Captain or Lieu- 
tenant Perry, or Captain White, from Ten- 
nessee. I know Mr. Benjamin Gwynn and 
Andrew Gwynn, but I did not see either of 
them at Hr. Mudd’s. I know John H. Sur- 
i'att; I saw him in Prince George’s County 
last August. While at Hr. Mudd’s I never 
saw nor have I any knowledge of those per- 
sons sleeping in the woods at Hr. Mudd’s; 
I never saw any evidence that they did. I 
Was in the stable morning, noon, and night, 
but I never saw any strange horses there. 
While living at Hr. Mudd’s, I took my meals 
and slept in the house. 
In 1861 I was living at Jerry Hyer’s, which 
is just across the swamp from Hr. Mudd’s 
place. I know of persons sleeping in the 
woods in 1861, the first year of the war. I 
know of Jerry Hyer and Benjamin Gwynn 
dodging about there in the woods. I have 
not seen Andrew Gwynn since then. 
By Mr. Ewing. 
A. He treated them pretty well. 
Q. How did he treat you ? 
A. He treated me first-rate. I had no fault 
to find with him. 
[Exhibiting a photograph of John H. Surratt.] 
I do not know him; I never saw him. 
Cross-examined, by the Judge Advocate. 
I have known Mary Simms ever since she 
was a small girl. Others on the place think 
of Mary Simms as I do. I was not on the 
place when Hr. Mudd shot one of his serv- 
ants. I knew him, but have not seen him 
since the second year of the war. 
[The witness was directed to look at the-accused, David 
E. Herold.] 
I never saw him. • I do not know any of 
the prisoners, excepting Hr. Samuel Mudd. 
I was home on Saturday, the day the 
President was killed, when two men called 
at Hr. Mudd’s. I took their horses. I got a 
glimpse of one of them as he was standing 
in the door, just as the day was breaking. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
Cross-examined iy Assistant Judge Advocate 
Burnett. 
Two stray horses came there the day after 
the assassination; I put them in the stable, 
and fed them. One was a bay, and the other 
was a large roan. They came there just 
about daybreak. At noon the bay was gone, 
and Hr, Mudd’s gray one. I led them out. 
Q. Hid the little man on the end of the 
seat there fHeroldl ride the bay one, or the 
Hoctor ? 
t Photograph of John H. Surratt exhibited to the wit- 
ness.] 
I know that picture. It is John H. Sur- 
ratt. I saw him about the middle of August 
last, about sixteen miles from Hr. Mudd’s. 
No one was at Hr. Mudd’s while I was there, 
but the neighbors round, William A. Mudd, 
Albert Mudd, and Constantine Mudd. 1 
knew all who came there; there were no 
strangers. I never saw Booth. 
A. I do not know; I never saw him on a 
horse. 
Q. You know you took out the bay one 
and Hr. Mudd’s gray? 
A. Yes, sir. 
Ido not know where they went. When 
I brought out the horses, I went to the field, 
and did not come back till sundown, and 
both horses, the bay and the roan, were then 
gone. Hr. Mudd has only two servants now, 
myself and Baptist Washington, who is a 
carpenter. 
I get $l3O a year wages. Ido not know 
that 1 shall get any thing for this extra job. 
No one has promised me any thing for 
coming here, or said any thing about it. I 
do not know about any arms being brought 
to Hr. Mudd’s at any time, nor was any thing 
said that I know about Rachel Spencer bury- 
ing any arms for Hr. Mudd. 
Frank Washington (colored.) 
For the Defense.—May 27. 
By Mr. Stone. 
1 lived the whole of last year at Hr. Samuel 
Mudd’s. I was his plowman; lam working 
fhere still. I was there every day, except 
Sundays and holidays, and I was in the 
stable night and morning, and at 12 o’clock. 
I was often at the spring. I took my meals 
111 the kitchen of Hr. Mudd’s house. 
I know Mr. Andrew Gwynn and Mr. Benja- 
min Gwynn by sight. It has been four years 
sbice I saw Mr. Andrew Gwynn. I never 
®aw any one camped out in the woods at Hr. 
Mudd’s. I never saw any one there called 
“kptain Perry or Lieutenant Perry, or Captain 
bite, and I have never seen any strange 
borses in the stable. I know Mary Simms. 
Q- What do the servants there in the 
Neighborhood think of her character for tell- 
,ng the truth? 
A. She was never known to tell the truth. 
For the Defense.—May 27. 
By Mr. Stone. 
I worked for Hr. Samuel Mudd last year. 
I put up a room between his house and the 
Baptist Washington (colored.) 182 
THE CONSPIRACY TRIAL. 
kitchen. I worked there from either Janu- 
ary or February until August, and then came 
to Washington, and staid here about a month, 
when I went back to Dr. Mudd and staid 
there until Christmas. I never heard of 
anybody being camped about the spring, or 
sleeping in the woods at Dr. Mudd’s last 
year. I used to be down at the spring pretty 
often, but I did not see anybody thex-e. I 
do not know Captain Ben. Gwynn or An- 
drew Gwynn, and I never saw or heard of 
Captain White or Captain Perry being at 
Dr. Mudd’s; nor did I ever know of any 
horses belonging to strangers being in the 
stable. I did most of my work, sawing-out 
and framing, at the stable. I was at the 
stable every day while I was at work, except- 
ing Sundays and holidays. 
I know Mary Simms, the colored girl, that 
lived at Dr. Mudd’s. Nobody that knew her 
put much confidence in her. Max-y Simms 
minded the children, and waited on the table 
sometimes. 
About the ]atter part of August, 1861, I 
was with my brother, Andrew J. Gwynn, 
Mr. Jerry Dyer, and Alvin Brook, at Dr. 
Mudd’s place. About that time General 
Sickles came over into Maryland, ax-resting 
almost everybody. I was told I was to be 
arrested, and I went out of the neighborhood 
awhile to avoid it. I went down into Charles 
County; staid about among friends there for 
a week or so, as almost everybody else was 
doing. There was a good deal of running 
about that time. 
Q. Go on and tell all about it. 
Assistant Judge Advocate Bingham ob- 
jected. What occun-ed in 1861 was not in 
issue. 
Mr. Ewing said that the prosecution had 
called four or five witnesses to prove that 
several persons, among whom was the wit- 
ness now on the stand, had been concealed 
in the neighborhood of Dr. Mudd’s house for 
a week, and that their meals were brought 
to them by him or his servants, and had 
attempted to show that those persons were in 
the Confederate service, and that Dr. Mudd 
was guilty of treason in assisting them to 
secrete themselves, and had stated that that 
occurrence took place last year or the year 
before. To prove by this witness and others 
that no such thing occurred last year or the 
year before, might not be regarded as a 
complete answer to the allegation, and hence 
it was proposed now to show that the trans- 
action referred to took place in 1861, at the 
beginning of the war, at a time of general 
terror in the community, and that some of 
the persons, alleged to have been concealed 
there, were not there. To withhold from the 
accused the right to prove this would be 
denying to him a most legitimate line of 
defense. 
Q. How did Dr. Mudd treat his servants? 
A. He always treated his servants very 
well, so far as I knew. 
Q. How did he treat you? 
A. He treated me very well. I was always 
very well satisfied with the accommodations 
he gave me when I was there. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I did not belong to Dr. Mudd, but was hired 
out to him. I was the slave of Mrs. Lydia 
Dyer, originally of the family of Jerry Dyer. 
[Exhibiting to the witness a photograph of John H. Sur- 
ratt.] 
Ido not know that man; I never saw him 
at Dr. Mudd’s that I know. 
Mas. Mary Jane Simms. 
For the Defense.—May 27. 
Assistant Judge Advocate Bingham replied, 
that the Government had introduced no tes- 
timony in regard to any such transaction in 
1861; and hence the testimony now pro- 
posed to be introduced was irrelevant and 
immaterial. If the witness should swear 
falsely as to that, it would not be legal 
perjury, because it was a matter not in is- 
sue. The witness could be inquired of as to 
the time when it was stated he had been 
there, but not as to what occurred in 1861. 
The Commission sustained the objection. 
Q. Where did you and the party who were 
with you near Dr. Mudd’s, sleep? 
A. We slept in the pines near the spring. 
We had some counterpanes which were fur- 
nished by Dr. Mudd, who brought our meals. 
We were there in the pines four or five days. 
While we were there we often went to Dr. 
Mudd’s house; almost every day, I think. 
Our horses, though I do not know positively, 
were, I suppose, attended to by Dr. Mudd’s 
servant. I have not been in Dr. Mudd's 
house or near his place since about the 6th 
of November, 1861. 
Some time from the sth to the 10th of 
I lived with Dr. Samuel Mudd during the 
year 1864, except when I was at my sister’s 
visiting. I never staid over two or three 
weeks at my sisters. 
I know Captain Bennett Gwynn and Mr. 
Andrew Gwynn. Mr. John H. Surratt I 
have seen since. I saw none of those per- 
sons at Dr. Mudd’s last year; none of them 
were in the woods and fed from the house 
that I saw or heard of. I visited my sister 
last March twelve months, and was at Dr. 
Mudd's pretty much all the spring, summer, 
and fall. 
Bennett F. Gwynn. 
For the Defense.—May 20. 
By Mr. Ewing. 
My name is Bennett F. Gwynn. I am 
sometimes called Ben. Gwynn. Andrew and 
George Gwynn are my brothers. Of Captain 
White from Tennessee, Captain Perry, or 
Lieutenant Perry, I know nothing. I never 
heard of such persons. DEFENSE OF SAMUEL A. MUDD. 
November, 1861, I cams, up to Washington 
to give myself up, as I was tired of being 
away from home. When I came here, they 
said there were no charges filed against me; 
so I took the oath and went home. 
My brother, Andrew Gwynn, has been 
South, I understand, since August, 1861. He 
resided some eight or ten miles from my 
place. He returned once, I understood, last 
winter, but I did not see him, and did not 
know it. I have been living in Prince 
George’s County since 1861. 
I know John H. Surratt. At the time we 
Were in the pines, he was, I believe, at St. 
Charles College. 
tain White, or a Capta.it. or Lieutenant Perry, 
about Dr. Mudd’s premises. I did not see 
Mr. Andrew Gwynn about his premises last 
year; I have not seen him since he left for 
the South. I never saw any person staying 
out in the woods, at Dr. Samuel Mudd’s, any 
time last year. I remember seeing Mr. Ben- 
nett Gwynn on his horse, talking with the 
Doctor. T understood Mr. Gwynn had been 
scouting. That was in the fall of the first 
year of the war. 
Charles Bloycb (colored.) 
For the Defense.—June 3. 
By Mr. Ewing. 
Cross-examined by the Judge Advocate. 
The parties who were arrested in 1861 
Vere mostly members of volunteer military 
Aimpanies, commissioned by Governor Hicks. 
I was captain of a cavalry company down 
there. It was called the Home Guard, and 
Was for the purpose of protection in the 
Neighborhood There was at that time a 
great deal of dissatisfaction among the blacks, 
and those in the neighborhood thought it 
Would be a good plan to organize, and com- 
panies were organized all through the coun- 
ties. I petitioned Governor Hicks, and he 
gave me a commission. 
I know the prisoner, Dr. Samuel A. Mudd; 
I was about his house Saturday nights, and 
some parts of Saturday and Sunday, all last 
year, except from the 10th of April to the 
20th of May, when I went out to haul seine. 
I commenced going to Dr. Mudd’s on the 
12th day after Christmas, the same day that 
Julia Ann Bloyce, my wife, went, and was 
there every Saturday night and all day Sun- 
day, except when I went to Church. I 
did not see Ben. or Andrew Gwynn at Dr. 
Mudd’s when the war commenced, about four 
years ago; I saw them passing along by Mr. 
Dyer’s. I neither saw nor heard any thing 
of Watt Bowie, John H. Surratt, Captain 
White of Tennessee, Captain Perry, Lieu- 
tenant Perry, or Booth at Dr. Mudd’s while I 
was there; and I do not know of any rebel 
officers or soldiers being there. I never saw 
anybody at his house dressed in any kind of 
uniform. 
Q. Was it not understood that these were 
State organizations, and intended to stand by 
toe State in any disloyal position it might 
take against the Government? 
A. That was my impression of them. 
Q. And you were a captain of one of those 
companies ? 
A. Yes, sir. 
' Q. You felt, therefore, that it was likely 
vOu would be arrested ? 
The colored folks there always laughed at 
Mary Simms; they said she told such lies 
they could not believe her. They said the 
same of Milo Simms. I thought he was a 
liar, for he used to tell me lies sometimes. I 
call Dr. Samuel Mudd a first-rate man to his 
servants; I never saw him whip any of them, 
nor heard of his whipping them. They did 
pretty much as they pleased, as far as I saw. 
I never heard a word of his sending or threat- 
ening to send any of his servants to Rich- 
mond. 
A. I do not know that I did from that. 
Some of the members of my company were 
arrested, and I understood there was an 
°rder for my arrest, and I left. 
Q. You slept there in the pines for the 
Sole purpose of escaping that arrest? 
A. Yes, sir. Dr. Mudd knew why we were 
hiding in the pines, and why he was feeding 
a® there. 
By Mr. Ewing. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
The company of which I was captain was 
?rganized in Prince George’s County, I think, 
the winter of 1860. I think we com- 
Njeneed getting it up before the election of 
Mr. Lincoln. Dr. Mudd was, I think, a 
•aember of a company organized in Bryan- 
to\vn, but I do not know it of my own 
knowledge. 
Q. Did you ever hear any thing about his 
shooting any of his servants ? 
A. I did hear that. 
Q. Do you think that is first-rate business? 
-A. I do not know about that. 
William A. Mudd. 
IMPEACHMENT OF DAN’L J. THOMAS. 
For the Defense.—May 30. 
By Mr. Ewing. 
For the Defense.—May 29. 
By Mr. Ewing. 
John H. Downing. 
I live about a mile and a quarter or a 
•frtoe and a half from Dr. Samuel Mudd. I 
**®ver saw any person by the name of Cap- 
I live near Mount Pleasant, in Charles 
County, Md. I am very well acquainted 184 
THE CONSPIRACY TRIAL. 
with the accused, Samuel A. Mudd, and also 
with Daniel J. Thomas, both of whom were 
raised right by me. 
Some time this spring, between the Ist and 
the 15th of March, I think, Daniel Thomas 
was at my house, and while there Dr. Mudd 
came in, and staid about half an hour. Dr. 
Mudd did not, in conversation at that time, say 
that Abraham Lincoln was an abolitionist, and 
that the whole Cabinet were such, or that he 
thought the South would never be subjugated 
under abolition doctrines, or that the Presi- 
dent, and all the Cabinet, and every Union 
man in the State of Maryland would be killed 
in six or seven weeks. No such words were 
spoken in the house to my knowledge, and I 
staid there all the time. After I had been 
sitting there half an hour, I got up and 
walked to the piazza, and Dr. Mudd followed 
me immediately, and told me his business; 
that he had come to collect a little doctor’s 
bill, and then went directly home. 
Mudd compared Thomas to a jack, because 
he said he was appointed a Deputy Provost 
Marshal under Colonel Miller; and said, “I 
think, Daniel, I am much better educated than 
you are, and I do not think I am capable 
of filling that office myself, and I do not 
think you are.” I was irritated when he 
called Thomas a jack, as it was in my house; 
I then got up, and Dr. Mudd followed me to 
the door; he was not half a second behind 
me. If Mudd called Thomas an abolitionist 
as well as a jack, I did not hear it. When 
Mudd called Thomas a jack, he might have 
been mad at the idea of his being a Deputy 
Provost Marshal. 
By Mr. Ewing. 
It was cold weather at the time, and we 
sat close by the fire, Thomas between me 
and Mudd, and I heard every word of the 
conversation that took place. 
Dr. Mudd and Thomas could have had no 
conversation at that time but what I heard; 
I was close to them, Thomas sitting between 
me and Dr. Mudd, and if they had whispered 
I should have heard it. The President’s 
name was not mentioned during Dr. Mudd’s 
stay, and I do not recollect that Thomas 
mentioned it while he was at my house, and 
he had been there two or three hours before 
Dr. Mudd came, and remained fully an hour 
after he left. Nor was any reference made to 
any member of the Cabinet, nor to killing 
anybody; I am sure I should have remem- 
bered it if a word of the kind had been men- 
tioned. Daniel Thomas and I meet each 
other very frequently, but I never heard him 
mention a word of the kind to me any time, 
neither before the assassination nor since. 
Dr. John C. Thomas. 
For the Defense.—May 26 
By Mr. Stone. 
I reside in Woodville, Prince George's 
County, Md., and have been a practicing 
physician for nineteen years. lam a brother 
of Daniel Thomas, who has testified here. 
On the Sunday morning after Dr. Mudd’s 
arrest, my brother came to Woodville Church; 
and as he was just from Bryantown the day 
before, we asked him the news. He was full 
of news of the arrest of Dr. Mudd, and the 
boot having been found with him, etc., and 
then during the conversation he spoke of 
what Dr. Mudd had told him a few weeks 
before, in relation to the assassination of the 
President. Mr. Sullivan Wood and several 
other gentlemen were present. He had never 
mentioned the subject to me before that time, 
and I am certain that in that same conver- 
sation he spoke of Booth’s boot being found 
in Dr. Mudd’s house. 
I do not recollect Dr. Mudd’s saying to me 
on that occasion that he did not consider the 
oath of allegiance worth a chew of tobacco; 
to my knowledge nothing of the kind was 
said. I can not recollect all the conversa- 
tion; but they commenced talking about de- 
tectives, and Daniel Thomas told Dr. Mudd 
that he was appointed detective, and spoke 
of several others—Jerry Mudd, Dr. George 
Mudd, Joe Padgett, I think, and perhaps one 
of the Hawkinses, who were also detectives ; 
but he said he would never catch anybody; 
that he would go to their houses because it 
was his duty, but he would never catch any- 
body ; that he was not bound to catch them. 
I have attended my brother professionally 
in some serious attacks. About six years 
ago he had a very serious paralytic attack—• 
partial paralysis of the face and part of the 
body. He labored under considerable nervous 
depression for some time before he recovered. 
He was mentally affected from it. His mind 
was not exactly right for a long time, and I 
am under the impression that it is not now 
at all times; and on these occasions he is 
credulous and very talkative. He is very 
apt to tell every thing he hears, and believe 
every thing he hears. Ido not pretend to 
say that he would tell things that he did not 
hear, or make up things; but he is very 
talkative. 
His reason may be somewhat affected, and 
his memory also, when these attacks come 
on. He has fainting spells, and is confined 
to his bed; but when he is up, and in the 
enjoyment of good health, he seems to be 
Cross-examined Assistant Judge Advocate 
Bingham. 
Dr. Mudd and Thomas were talking all 
that half hour; their talk was pretty much 
about detectives; that is all I recollect of it. 
I believe it took Thomas pretty much a whole 
half hour to say that he was a detective, and 
did not catch anybody; he was telling a 
whole parcel of foolish things. I had no 
conversation, none at all; Dr. Mudd and 
Thomas only were talking. I believe Dr. DEFENSE OF SAMUEL A. MUDD. 
185 
rational. These attacks come on at no par- 
ticular time. When they do come on, he 
labors under great nervous depression, and 
bus to be stimulated materially sometimes. 
pe has not had an attack now for some time; 
118 health has been better. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
When I rode up, Mr. Lemuel Watson re- 
marked to me, “You are a justice of the 
peace; lam glad you have come; I want you 
to try a case here. Daniel says he is entitled 
to so much reward, and I want you to say 
what you think of it.” Ido not remember 
what reply I made to this. Mr. Thomas 
stated that he had applied to Mr. Watson and 
Mr. Naylor for a certificate to the effect that 
he had informed them concerning Dr. Mudd’s 
arrest, and that, if he could get such a certifi- 
cate, he would be entitled to a portion of the 
reward. We told him that we thought he 
was entitled to $20,000, by way of a joke. 
Both William Watson and myself told him 
this. I remarked to him that 1 did not think 
$lO,OOO was enough, and I thought he would 
better take $20,000. Thomas said he would 
not want me to swear to a lie for him to get 
$lO,OOO. I understood Thomas pretended to 
Mr. William Watson that he had told him 
of the arrest of Dr. Mudd. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
It was on the Sunday after the soldiers 
ere at Bryantown that my brother told 
1116 that Dr. Mudd had said that Lincoln, 
and the whole Cabinet, and all the Union 
men of Maryland would be killed in a few 
;veeks; that was the first I heard any thing 
ahout it. 
By the Court. 
My brother seemed to be as rational on that 
Sunday as I ever saw him; he was not at all 
excited, and I think he was quite capable of 
filing the truth on that day. I had no doubt 
'n my mind at that time that Dr. Mudd had 
®aid this, though I thought he might probably 
aave said it in joke. At first I thought my 
brother was jesting, and told him that if it was 
a°t true he should not say so, and he said it was 
Certainly true; that Dr. Mudd had made the 
statement in Bryantown; and 1 supposed it 
''’as so. Ido not suppose my brother would 
6vtrear to any thing that was not true. 
By Mr. Ewing. 
I have always been a loyal man, and a 
hearty supporter of the measures of the Gov- 
ernment for the suppression of the rebellion; 
I voted for Lincoln and Johnson. 
In 1861 I met Mr. Thomas on my way 
from teaching school. He said that he was 
going to join the Southern army, and that he 
intended to come back, when Beauregard 
would cross, and hang a man by the name of 
Thomas B. Smith. Thomas was not a loyal 
man at the beginning of the war. 
LMr. Ewing offered the following in evidence:! 
James W. Richards. 
For the Defense.—June 6. 
r, I live near Horsehead, Prince George’s 
bounty, Md. On the Ist of dune last I met 
J. Thomas, in company with John 
p Richardson, Benjamin J. Naylor, George 
■*jynch, Lemuel Watson, and William Watson, 
at the door-yard of Mr. William Watson, 
jlear Horsehead. Mr. Thomas said that he 
.ad asked Mr. William Watson and Mr. Ben- 
jamin J. Naylor for a certificate, stating that 
le Was entitled to the reward, or a portion of 
be reward, that was offered for the arrest of 
i„°°fh and his accomplices; and he thought, 
be could get a certificate from them to that 
he would be entitled to a portion of the 
eward in the event of Dr. Mudd’s being 
as he (Mudd) was considered one 
rp Rooth’s accomplices. The reward, Mr. 
lomas said, was $10,000; he stated that the 
ertiflcate was to certify that he informed 
*em concerning Dr. Mudd’s arrest. I. do 
, °t think he wanted a certificate stating that 
■rj Was the cause of Dr. Mudd’s being arrested. 
sa'd, if Dr. Mudd was convicted, he was 
atitled to a portion of the reward. 
1 have known Daniel J. Thomas for the 
Past five years; his reputation in the corn- 
el ?nRy for veracity is very bad. In any 
a^lng in which he had a prejudice, or where 
~ J monev was at stake, I would not believe 
under oath. 
[official.] 
War Department, 1 
Washington, April 20, 1805. J 
One Hundred Thousand Dollars Reward. 
The murderer of our late beloved President, 
Abraham Lincoln, is still at large. Fifty 
thousand dollars reward will be paid by this 
department for his apprehension, in addition 
to any rewards offered by municipal authori- 
ties or state executives. Twenty-five thousand 
dollars reward will be paid for the apprehen- 
sion of G. A. Atzerodt, sometimes called 
“ Port Tobacco,” one of Booth’s accomplices. 
Twenty-five thousand dollars reward will be 
paid for the apprehension of David E. Herold, 
another of Booth’s accomplices. Liberal re- 
wards will be paid for any information that 
shall conduce to the arrest of either of the 
above-named criminals or their accomplices. 
All persons harboring or screening the said 
persons, or either of them, or aiding or assist- 
ing their concealment or escape, will be 
treated as accomplices in the murder of the 
President and the attempted assassination of 
the Secretary of State, and shall be subject 
to trial before a military commission, and the 186 
THE CONSPIRACY TRIAL. 
punishment of death. Let the stain of inno- 
cent blood be removed from the land by the 
arrest and punishment of the murderers. 
All good citizens are exhorted to aid public 
justice on this occasion. Every man should 
consider his own conscience charged with 
this solemn duty, and rest neither night nor 
day until it be accomplished. 
EDWIN M. STANTON, 
falsely, though by your doing so it would give 
me $20,000.” That is what I understood him 
to say. 
Mr. Richards did not offer to take a false 
oath. He was joking; lam confident of 
that. Mr. Richards is a true Union man. 
jßy Mr. Ewing. 
Secretary of War. 
By Assistant Judge Advocate Bingham. 
Q. Do you not consider that Daniel J. 
Thomas is entitled to belief on his oath ? 
A. I have no reasons bearing on my mind 
to offer to the Court why I would not; there- 
fore, I must say, I would. 
Q. Would you believe him on his oath? 
A. I would. 
William J. Watson. 
For the Defense.—June 9. 
By Mr. Ewing. 
I live in the Eighth Election District, 
Prince George’s County, Maryland. I am 
acquainted, though not intimately, with Dan- 
iel J. Thomas. I was in my door yard, near 
Horsehead, on the Ist of June, with John R. 
Richardson, Benjamin Naylor, George Lynch, 
Lemuel Watson, and Daniel J. Thomas. On 
that occasion, Daniel J. Thomas said, if my 
memory serves me right, that if Dr. Mudd 
was convicted upon his testimony, he would 
then have given conclusive evidence that he 
gave information that led to the detection of 
the conspirators. 
He said he thought his portion of the re- 
ward ought to be $lO,OOO, and he asked me 
if I would not, as the best loyal man in 
Prince George’s County, give him a certifi- 
cate of how much I thought he ought to be 
entitled to. 
Q. He has as good a reputation for truth 
as most of his neighbors down there ? 
A. I should not think he had as good a 
reputation for truth as most of the neighbors. 
Mr. Ewing objected to this course of ex- 
amination as improper. It was not legiti- 
mate cross-examination. The witness had 
been subpenaed by the Government, and, at 
the consent of the Judge Advocate, was 
called by the accused as to a single point, 
with the understanding that he should be 
treated as a witness for the accused only to 
that one point. 
The Judge Advocate (while not yielding 
the point that the line of examination pur- 
sued was improper) stated that he would 
agree now to take this witness as one for the 
prosecution; and the witness was accordingly 
examined for the prosecution in rebuttal. 
Gross-examined by Assistant Judge Advocate 
Bingham. 
By Assistant Judge Advocate Bingham. 
I told him I did not think he was entitled 
to any portion of the reward, and would give 
him no certificate. I then appealed to his 
conscience in the most powerful manner I 
could, and asked him if he believed he was 
entitled to the reward? I did this three 
times, but he waived the question every time 
by saying that Daniel Hawkins said he was 
entitled to it. He did not say that Daniel 
Hawkins had told him, but that he had told 
somebody else so. Thomas then asked Mr. 
Benjamin J. Naylor, I think, if he did' not 
mention to him and to Arthur D. Gibson, 
before the killing of the President, the lan- 
guage that Dr. Mudd had used to him. Mr. 
Naylor said that he had never done it before 
or after. 
I was not much acquainted with Daniel 
J. Thomas till 1863. He lives in Charles 
County, and lin Prince George’s. Ido not 
know what kind of a reputation he bore in 
Charles County, but in my neighborhood they 
spoke evil of him. They say he tells a good 
many lies, but I think people tell him as 
many lies as he tells them. Though some 
speak well of him, people generally say that 
his reputation for truthfulness is bad. 
Q. I ask you your opinion, whether you 
consider, from all you hear of his reputation 
there, that his character for truth is such 
that he is entitled to be believed on oath ? 
A. I believe that he is; because if I was 
to come here and say he was not qualified, 
I should have to say that half the men 
around there are not qualified. 
When I was appealing to his conscience 
in regard to the matter, Mr. James Richards, 
a magistrate in the neighborhood, rode up, 
and ray brother, Joseph L. Watson, or Lem- 
uel Watson as he is called, appealed to him, 
saying, “There is a contest going on here 
between Billy and Daniel; you are a magis- 
trate, and I want you to decide it between 
them.” Mr. Richards said, “ Lem, let us say 
that he is entitled to $20,000 of the reward.” 
Mr. Thomas then said, “No, sir, I would 
not have either of you gentlemen swear 
Q. Are you able to say that you know what 
Mr. Thomas’s general reputation is, in the 
community in which he lives, for truth? 
A. I think I have stated that it is not good 
for truth in speaking; but I think he lies 
more in self-praise, to make the.people think 
a great deal of him, than in any other way- 
I have never heard of Mr. Thomas telling a 
lie that would make a difference between man 
By Mr. Ewing. DEFENSE OF SAMUEL A. MUDD. 
187 
b ?*an- have known of no quarrels to 
e. kicked up in my neighborhood about any 
, ]llg Mr. Thomas has told from one man 
Another. 
a 9- Do you know whether Mr. Thomas was 
lQyal man in the beginning of the war? 
a p I do not know. He was represented 
fe°r t0 me ’ kut 1 suppose if he had been, his 
e*ings would have been coerced by the 
by whom }ie was surrounded. 
] Do you know who he supported at the 
election for President ? 
r I do not know; but he electioneered 
°r George B. McClellan. 
Cross-examined by the Judge Advocate. 
I never heard gentlemen speak of Mr. 
Thomas testifying in a court of justice, and 
I do not mean to say that Mr. Thomas, when 
he is on his oath in court, is not to be be- 
lieved. 
John L. Tuknek. 
For the Defense.—June 9. 
By Mb. Ewing. 
I live in the lower part Prince George’s 
County, near Magruder’s Ferry, on the Pa- 
tuxent River, six or seven miles from Dr. 
Mudd’s. I have a slight acquaintance with 
Daniel J. Thomas. He is not regarded as a 
truthful man by any means in that neigh- 
borhood. From his general reputation, I 
could not believe him under oath, where he 
was much interested. 
John C. Holland. 
For the Defense.—June 8. 
By Me. Ewing. 
, I hold the position of Provost Marshal of 
e draft for the Fifth Congressional District 
j. Maryland. I know Daniel J. Thomas 
°ui the fact that he was a drafted man, 
d T pvtiminprl liim at. Ttpnprlipl rilior-loa 
Mr: Thomas has been loyal part of the 
time since the war commenced, but I can 
not say that he has been so all the time. He 
I examined him at Benedict, Charles has been loyal for the last year or two, but 
°nnty. I never received a letter from him Ido not know how he stood at the begin- 
I 1 which the name of Dr. Mudd was men- 
nor any letter stating that the Presi- 
wn.t, or any member of his Cabinet, or any 
b njon man in the State of Maryland would 
t>e billed. I received a letter from him dated 
e e')rnary 9, 1865, but it contained no refer- 
. Ce whatever, direct or indirect, to this sub- 
nor to >r' Samuel -A- Mudd. Mr. 
itu)°ma8’ believe, was commissioned as an 
dependent detective; that is, commissioned 
by me to arrest drafted men that did 
g .reP°rt and deserters, receiving as compen- 
l'°n the reward allowed by law. He was not 
~ er pay from the Government. Such com- 
'ssions were given to any one who applied. 
ning of the war. 
Dr. George D. Mudd has been considered 
a loyal man throughout the whole war. I 
have always been a loyal man and a sup- 
porter of the Government. I voted for George 
B. McClellan for President, because I con- 
sidered him as good a loyal man and as 
good a Union man as Mr. Lincoln; and as 
he said that if he were elected the war would 
only last a few months, I voted for him on 
that ground. 
I know Dr. Sam Mudd. I have known 
him since he was a boy. His reputation for 
peace, order, and good citizenship has been 
very good. I have always considered him a 
good, peaceable, and quiet citizen, as much 
so as any man we have among us. I never 
knew him do any thing in aid of the rebel- 
lion. 
Or 
oss-examined by Assistant Judge Advocate 
Burnett. 
q letter contained a reference to Dr. 
j*eorge Mudd, with whom I am acquainted, 
aJ1 none whatever to Dr. Samuel Mudd; I 
1 Uot acquainted with him. 
Polk Deakins. 
For the Defense.—June 9. 
By Me. Ewing. 
Dichaed Edward Skinner (colored.) 
For the Defense.—June 27. 
anf Ve Charles County, Md. lam the serv- 
j Mrs. Thomas, the mother of Daniel 
ye whom I have known for thirty 
aiU i know what is thought of him in the 
dolTlm^nity *or telling the truth, and he 
tj 68 rj t bear a good reputation among gen- 
a 1 have always been living with him, 
p . ~ have heard gentlemen say they would 
Iq believe him under oath. I do not like 
v ®ay that I would not believe him when he 
® under oath. 
°uu 'b>an^ J- Thomas was not a loyal man 
he 1 6 leaking out of the war; since then 
he h33 Sonietiraes been loyal, and then again 
as not been so; just changeable like. 
I live near Gallant Green, Charles County, 
Md. I have been acquainted with Daniel J. 
Thomas ever since 1 can remember. His 
reputation in the community for truth-telling 
is very bad; and if he had any inducement 
to speak other than the truth, I would not 
believe him under oath. 
In 1861, Mr. Thomas said he was going 
over into Virginia, and he tried to persuade 
me to go, but I did not. 
Jeremiah T. Mudd. 
Recalled for the Defense.—May 27. 
By Mr. Ewing. 
I am acquainted with Daniel J. Thomas, 
and know his reputation in the neighborhood 188 
THE CONSPIRACY TRIAL. 
in which he lives; for truth and veracity it 
is bad; and I do not think I could believe 
him under oath. 
ing the first twelve or eighteen months of 
the war, he was looked upon as a great 
friend of the South; helping as far as hiS 
ability went. He was not looked upon as 
able to help anybody, but his conversations 
were all that way. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I base my opinion, as to his general repu- 
tation, on my knowledge of him, and on his 
reputation in the neighborhood. He is known 
to go riding about the country, telling things 
that are marvelous and miraculous. I may 
safely say I have heard as many as ten or 
a dozen persons speak of his bad reputation for 
truth and veracity. Among others, I have 
heard Dr. George Mudd and Mr. Gardiner. 
I have never heard any one say that Thomas 
had ever sworn falsely in any court. 
For the Defense.—June 8. 
By Mr. Ewing. 
John H. Baden. 
I live in Anacostia District, Prince George s 
County, Md. I know the reputation Daniel 
J. Thomas bears for truth and veracity; he 
is accounted a very untruthful man; I be- 
lieve few place any confidence in what he 
says. From the knowledge 1 have of his 
reputation for veracity I would not believe 
him under oath. 
By Mr. Stone. 
Thomas represents himself as a detective, 
acting under the orders of Colonel Holland; 
whether such is the fact I do not know. 
I have never heard him charged with 
swearing falsely. I have heard him tell a 
great deal that was not true, but I never 
heard him swear to it. 
Cross-examined by the Judge Advocate. 
Lemuel L. Ormb. 
For the Defense.—June 6, 
By Mr. Ewing. 
Q. From your knowledge of human char- 
acter, do you not think there are many men 
who talk idly and extravagantly, and some- 
times untruthfully, who would nevertheless) 
when under the obligations of an oath, speak 
the truth? 
I am acquainted with Daniel J. Thomas ; 
I knew him first when he was not more than 
thirteen or fourteen years of age. He is 
looked upon in the community in which he 
lives as a man that hardly ever tells the 
truth; his reputation for veracity is very bad. 
I never heard him tell any thing of any 
length, without betraying himself in a story 
before he got through; and I have scarcely 
heard of a man in the neighborhood that 
would believe any thing he might tell. If 
he had the least prejudice against a person, 
I could not believe him under oath. 
A. Ido not know, sir. Ido not place any 
confidence myself in what I hear him say- 
I have nothing against Mr. Thomas; I have 
known him a good while, but I do not put 
any confidence in what I hear him say. 
Q. That is not an answer to my question- 
Do I understand you to hold that a man who 
will sometimes speak untruthfully, will neces- 
sarily swear to an untruth in a court of jus- 
tice? Is that your judgment of human char* 
acter and conduct? 
Cross-examined by Assistant Judge Advocate 
Bingham. 
If he had a prejudice, and was under oath, 
I should hardly believe him any how. 
A. Not all. 
Eli J. Watson. 
For the Defense.—June 8. 
By Mr. Ewing. 
To the best of my knowledge and belief, 
I have been loyal to the Government during 
this rebellion. I have never done any thing 
to oppose the efforts of the Government in 
suppressing the rebellion; I have always 
wished that the Union might be sustained, 
and that the Government might not be 
broken up, and have always so expressed 
myself. I had no idea of the South ever 
forcing the North to go to them; and so far 
as the Union is concerned, I always expected 
that, if maintained, it would be by the North. 
By the Judge Advocate. 
I reside in the Eighth Election District, 
Prince. George’s County, Md. I have known 
Daniel J. Thomas ever since he was a boy- 
I know his reputation for truth and veracity 
in the neighborhood in which he lives, and it 
is very bad. From that general reputation) 
and my knowledge of his character, I would 
not believe him under oath. 
I saw Mr. Thomas on my farm on the lgt 
of June; he said he had been a witness 
against Dr. Mudd, and that Joshua S. Nay' 
lor had sworn to put down his oath; he als° 
said that if his oath was sustained, he eX' 
pected a portion of the reward that the U°v' 
eminent was to give for Booth. 
Q. And that Joshua S. Naylor had sworu 
to put down his oath; what do you undei" 
stand by that? 
By Mr. Ewing. 
If words testify any thing, Mr. Thomas 
has not been a loyal man since the begin- 
ning of the war. In the fall of 1861, for a 
distance of two miles, he talked to me, and 
advised me to go South with him. He may 
have changed his sentiments since, but dur- DEFENSE OF SAMUEL A. MUDD. 
189 
Assistant Judge Advocate Bingham objected 
0 the question, and it was waived. 
Daniel W. Hawkins. 
For the Defense.—June 9. 
By Mr. Ewing. 
Joshua S. Naylor. 
lam by profession a lawyer. I live about 
four miles and a half from Bryantown, in 
Charles County. I have known Mr. Daniel 
J. Thomas from ten to fifteen years. His 
general reputation in the community for 
truth and veracity is not very good. If I 
were a juror or a judge, I should think it 
very unsafe to convict on his evidence. I 
should have very serious doubts about his 
oath. 
I am very well acquainted with Dr. George 
Mudd; and I can say that I do not know a 
more loyal man than he in the State of 
Maryland. My attitude toward the Govern- 
ment during the war has been strictly loyal; 
and I have been a supporter of the Govern- 
ment in its war measures from the com- 
mencement of the rebellion. 
For the Defense.—May 30. 
By Me. Ewing. 
■p ? reside in the Eighth Election District, 
pDn.ce George’s County, Md. I have known 
aniel J. Thomas since he was a boy. His 
reputation for truth and veracity in 
neighborhood is bad, and such that 1 
°uid not believe him under oath. His rep- 
*tion is that he never tells the truth if a lie 
pV answer his purpose better; and, though 
i J? hard to say it of any man, I could not 
eheve him under oath. 
GVoss-examined by the Judge Advocate. 
j I can not say that he is reputed to be a 
al and an honest man in his neighbor- 
ed. As his loyalty, he is sometimes 
e thing and sometimes another, just as 
he prospects of the different parties seem to 
i 6 going. During the latter part of the re- 
e‘hon, he has pretended to be a warm sup- 
rter of the Government, and he may have 
eeo sincere; but, from what others have told 
e e> he said to them he was not during the 
I y part of the rebellion. 
c never heard him speak under oath, and 
not say that I have ever heard him 
Qarged with swearing falsely. 
Joseph Waters. 
For the Defense.—May 9. 
I live at Gallant Green, Charles County, 
Maryland. 1 have known Daniel J. Thomas 
from childhood. His general reputation in 
the community for truth and veracity is very 
bad; and from my knowledge of his repu- 
tation I do not think I could believe him 
under oath. 
By Me. Ewing. 
jj, have been a supporter of the Govern- 
aT)d the Administration of the United 
stnteS at; times and under all circum- 
u fes. Dr. George Mudd I have heard 
Pc,°^en as a g°°d Union man, and a sup- 
lter of the Government in the war against 
rebellion 
By Mr. Ewing. 
I have known Dr. Mudd from childhood. 
His reputation as a citizen has been very 
good, as far as 1 know. I have never known 
any thing against him. I have not been in 
any way engaged in aiding the rebellion, 
but have been a loyal man throughout the 
war. 
Frank Ward. 
John Waters. 
For the Defense.—May 9. 
For the Defense.—May 9. 
By Mr. Ewing. 
I live at Horsehead, Prince George’s 
County, Maryland. I have known Daniel J. 
Thomas ever since he was a boy. His repu- 
tation for veracity in the community is pretty 
bad. I can not say that Mr. Thomas has 
been a loyal man throughout the war. He 
is first one thing and then another; some- 
times Union and sometimes disloyal. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
By Mr. Ewing. 
hav *7® *n Charles County, Maryland. I 
p0ne °een loyal to the Union, and a sup- 
°f °f the Government in the prosecution 
hoy known Daniel J. Thomas from a 
has rePutation for truth and veracity 
gen n°iteen ver7 good; I think the people 
jerally regard him as not very truthful. 
artl acquainted with the prisoner, Dr. 
Mudd; his reputation in the com- 
Pe„ as a citizen, has been very good. 
J*rore the arrest of Dr. Mudd, I think I saw 
Offe . homas with a hand-bill in his hand, 
singriri§ a reward for the arrest of the assas- 
°r t^e'r accomplices. That, I believe, 
of tlon the Tuesday after the assassination 
the President. 
I voted for McClellan. Ido not recollect 
whether I voted for Harris for Congress or 
not; I certainly did not rejoice at the suc- 
cess of the rebels at the first battle of Bull 
Run. 
By Assistant Judge Advocate Burnett. 
I have heard many persons speak in refer- 
ence to the reputation of Mr. Thomas, but I 190 
THE CONSPIRACY TRIAL. 
can not recoil ect-exactly what they said. I 
live about five miles from Mr. Thomas. 
In that view, it is of great consequence to 
the accused to be able to show that he cam 6 
here on business unconnected with Booth, for 
the purpose of rebutting the presumption or 
inference unfavorable to him which might be 
drawn from the fact of his having met Booth 
here. That alleged meeting with Booth has 
been put in evidence as part of the res gesia 
of the conspiracy; on any other ground, 
would have been irrelevant and inadmissible. 
We have a right to show that Dr. Mudd came 
to the city that time for other purposes; 'ye 
have a right to show the acts that he did, if1 
order to establish that his visit was a legiti' 
mate business visit to Washington. There- 
fore it is that we ask who took the things 
down; and we expect to show that he ar- 
ranged, before starting from home, to have 
the things which he was coming here to pur- 
chase hauled down, and that therefore he 
came here on legitimate business. 
Assistant Judge Advocate Bingham. If 
the gentleman had shown that this man was 
with Booth on that day, I could see some- 
thing in his argument; but as it is, it does 
not amount to any thing. 
Mr. Ewing. But I assure you we expeejl 
to follow this up by testimony which wi" 
conclusively establish that he could not have 
been with Booth upon any other day between 
that day and the assassination of the Presi- 
dent. 
By Mr. Ewing. 
My knowledge of his reputation was oh- 
tained before this trial commenced. 
IN WASHINGTON, December 23, 1864. 
Jeremiah T. Mudd. 
For the Defense.—May 26. 
By Mr. Ewing. 
I reside in Charles County, Maryland, 
about a mile and a half from Dr. Samuel 
A. Mudd. Dr. Mudd and myself went to 
Washington together on the morning of the 
23d of December last. I recollect the date 
distinctly, because we got home on the 24th, 
Christmas eve. It was a little in the night 
when we arrived in Washington; we put up 
our horses near the Navy Yard, and went 
to the Pennsylvania House, registering our 
names for lodgings. We went to a restau- 
rant on the avenue, now Dubant’s, I think, 
for supper, and staid there possibly an hour. 
We then went to Brown’s Hotel, and aftei’- 
ward to the National Hotel, and there was a 
tremendous crowd there, and we got separated. 
I met a friend at the National, conversed 
with him a short time, then went down the 
avenue and visited some clothing stores, and 
returned to the Pennsylvania House. Dr. 
Mudd came in there shortly after me, and 
we went to bed. There was no one with 
him when I first saw him, as he came 
through the folding doors to the room where 
I was; but there may have been some few 
persons in the adjoining room from which 
he came. 
Assistant Judge Advocate Bingham. They 
undertake to prove by this witness that he 
could not have been with Booth then; this 
five-minute operation is introduced for that 
purpose, as I understand. But now, in order 
to make out something, for some purpose 1 
can not comprehend, they propose to prove 
that this man bought crockery or something 
that day in town, and got somebody to haul 
it home. That has nothing in the world to do 
with this case. The amount of it all is, that 
we have introduced testimony here to prove 
this man’s association with Booth in Wash- 
ington, in another month, at the National 
Hotel. If they can disprove that, well and 
good; but it does not tend to disprove it, and 
does not tend to throw any light on the sub- 
ject, to show that, in December, (another 
time altogether than that stated by our wit- 
ness for the meeting of Booth and Mudd, 
which the Court will remember was about 
the middle of January,) Mudd bought cer- 
tain things, and hired somebody to take them 
home. All that has nothing to do with the 
case. 
The next morning I went with Dr. Mudd 
to purchase a cooking stove, and then we 
separated, he to make some little purchases 
for himself, and I to buy some clothing, etc.; 
but we saw each other repeatedly, every 
ten or fifteen minutes, till about 1 o’clock. 
Then we went together down to the Navy 
Yard for our horses, and left the city about 
3 o’clock. 
Q. Do you know who took the articles 
which he bought down to his home? 
Assistant Judge Advocate Bingham. I 
object to any inquiry about the articles he 
bought, or who took them. It is of no con- 
sequence. 
Mr. Ewing. May it please the Court, it is of 
a very great deal of consequence. The prose- 
cution has attempted to prove by one witness 
a meeting between Booth and Dr. Mudd, and 
an introduction of Booth to Surratt by Dr. 
Mudd, here in Washington. We expect to 
be able to show to the Court conclusively, 
that if there was any such meeting, it must 
have been at this visit to the city of Dr. 
Mudd about which we are now inquiring. 
The Commission overruled the objection. 
Witness. 1 took a portion of them my* 
self. The stove was to have been taken dowu 
by Mr. Lucas, who had come to the mark6 
to sell a load of poultry, and was then in 
market with his wagon. His taking t*l® 
stove depended upon his selling his poultry' 
it was a dull market, and Dr. Mudd and 
went three times to see if he had sold out, 8° 
that he could take it. DEFENSE OF SAMUEL A. MUDD. 
191 
-1 tave known Dr. Mudd from early youth. 
His general character for peace, order, and 
§ood citizenship in the neighborhood in 
he resides is exemplary; he has al- 
ways been amiable and estimable, a good 
Neighbor, honest and correct. I never in all 
*Uy life heard any thing to the contrary. I 
-'ink him humane and kind to his servants; 
have lived very close to him all my life; 
he is so regarded universally, I believe. He 
(jid not work them hard either; at least they 
hid not do a great deal of work. 
I remember Booth being in that county; 
/ ®aw him at Church at Bryantown in the 
latter part of November or early in Decem- 
ber last. I noticed a stranger there, and 
lnquired who he was, and was told that his 
nanie was Booth, a great tragedian. From 
the description of him, and from his photo- 
Sraph, I am satisfied it was the same man. 
t only know what I heard others say about 
his business there—the common talk. 
Q. What vvas the common talk? 
pie by winch the ascertainment of truth is 
sought, can be received. I wish to state 
most distinctly to the Court that I desire 
the utmost latitude of inquiry indulged in, 
and that every thing shall be introduced 
which tends in any manner to illustrate the 
defense which is made for these prisoners. I 
wish no technical objection, and shall never 
make one, and, if made, I trust it will never 
be sustained by this Court. 
The Commission sustained the objection. 
I really do not know Dr. Mudd’s reputa- 
tion for loyalty to the Government of the 
United States during this war. I have my- 
self heard him say that he did not desire 
to see two Governments here. I have never 
known of any disloyal act of his, and never 
heard of any. I never, that lam aware of, 
heard any disloyal sentiments expressed by 
him. I have heard him express sentiments 
opposed to the policy of the Administration. 
I do not know that he has been open and 
undisguised in his opposition to the endeav- 
ors of the Government to suppress the re- 
bellion. For the past two or three years 
our people have had no disposition to talk 
about the rebellion or the war. For a long 
time I would seldom talk about it with any 
one; and would not send to the post-office 
lor my papers perhaps for a week, and then 
would not read them—just look over them 
on Sunday. I never heard Dr. Mudd say 
that the State of Maryland had been false to 
her duty in not going with other States in 
the rebellion against the Government; and 
I never saw Confederate soldiers at his 
house. I did hear of his shooting one of his 
servants, and do not doubt that it was true. 
I heard it was only a flesh wound. I do 
not know that the boy is lame still; I do 
not think I have seen him since. 
Cross-examined by the Judge Advocate. 
Assistant Judge Advocate Bingham. The 
Witness need not state what the common talk 
"’as. It is not competent evidence to under- 
lake to prove common talk about a party 
not on trial here. 
Mr. Ewing. May it please the Court, I 
know it is the object of the Government to 
Slve the accused here liberal opportunities 
presenting their defense. lam sure the 
'fudge Advocate does not intend, by drawing 
‘he reins of the rules of evidence tight, to 
B''ut out testimony which might fairly go to 
relieve the accused of the accusations made 
against them. I think it is better, not only 
°r them, but for the Government, whose 
Majesty has been violated, and whose law 
are about to enforce, that there should 
he liberality in allowing these parties to pre- 
®|ut whatever defense they have to offer. 
™"e wish to show that Booth was in that 
county ostensibly, according to the common 
Understanding of the neighborhood, for the 
Purpose of selecting and investing in lands. 
'l’e introduce this as explanatory of his 
Meeting with Dr. Mudd, whose family, as we 
xpect to show, were large land-holders, and 
anxious to dispose of their lands, and 1 trust 
1° the liberality of the Court to allow us to 
Prove it. 
Phe Judge Advocate. I wish certainly the 
Utmost liberality in the introduction of the 
of the defense here, and I hope the 
y'urt will maintain it. If lat any time fall 
®hort myself of maintaining that spirit, I 
just the Court will do it. I think, however, 
*u this case there is no principle of evidence 
hat will admit the mere talk of a neighbor- 
lo°d. Any fact which any witness knows, 
ending to show for what purpose Booth was 
'ere, no matter what that fact may be, is 
admissible; but a mere idle rumor, of which 
y°u can not take hold, on which you can 
not cross-question, in regard to which you 
Can not speak, it seems to me, on no princi- 
By Mr. Ewing. 
I heard that the servant who was shot 
was obstreperous; that he had been ordered 
to do something which he refused to do, and 
started to go away; that the Doctor had his 
shot-gun with him, and he thought he would 
shoot him to frighten him, and make him 
stop and come back. The Doctor told me 
so himself. I believe he shot the boy some- 
where in the leg. 
I have heard Dr. Mudd make use of ex- 
pressions in opposition to the policy of the 
Administration, hut only in reference to the 
emancipation policy. He was a large slave- 
owner—and his father—too, and I suppose did 
not want to lose his property; this 1 sup- 
pose to be the cause of his uncompromising 
opposition to the emancipation policy of the 
Government. I never in my life heard a 
violent expression from him; it is not in his 
character; nor did he ever indulge in violent 
denunciations of the Government. 192 
THE CONSPIRACY TRIAL. 
Recalled for the Defense.—May 27. 
and the name of Dr. Samuel A. Mudd does 
not appear on it for the month of January. 
I have never, to my knowledge, seen the 
accused, Samuel A. Mudd, before. He may 
have stopped at the house and I not know 
him, but his name would certainly be on the 
register; for no one is allowed to stop one 
night without registering his name. Persons 
often come in to take a meal, and pay when 
they go out, and do not register their names. 
I find the name “ Samuel A. Mudd ” entered 
under date of December 23, 1864, and also 
“ J. T. Mudd;” they both occupied the same 
room. 
I have seen the handwriting of Dr. Samuel 
A. Mudd frequently, and am acquainted 
with it. 
By Mr. Ewing. 
[Exhibiting to the witness the register of the Pennsyl- 
vania House, heretofore produced.] 
I recognize his handwriting on the page 
open before irife; it is dated Friday, December 
23, 1864. The book is the Pennsylvania 
House register, with which I am very famil- 
iar, having repeatedly registered my name in 
it for years past. We went into the hotel 
together, and I registered ray name two 
names above his. 1 do not know at what 
hotel Dr. Mudd was in the habit of stopping 
when he went to Washington. He had 
some relatives there, and I frequently heard 
of his staying the night with them. I never 
was in Washington with him before. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I do not know who slept with Atzerodt at 
the Pennsylvania House on the night of the 
President’s assassination ; I was in bed that 
night. The next morning I saw the name 
of “Samuel Thomas” entered on the book; 
further than that I do not know. It was 
the rule of the house that the porter was 
never to allow a person to go to bed without 
registering his name; and I have never 
known the rule to be violated. The register 
does not show how long Dr. Mudd remained 
at the house in December; the cash-book 
would show that. 
[By request of Mr. Ewing, the witness retired to exam- 
ine the register of the Pennsylvania House for the name 
of Dr. Mudd after December 23d.] 
J. H. Montgomery. 
For the Defense.—May 29. 
By Mr. Ewing. 
I am acquainted with the prisoner, Dr. 
Samuel A. Mudd. On the 22d of last De- 
cember, I think, the Thursday morning 
before Christmas, he asked me if I could 
bring a stove from Washington for him. I 
told him that Lucas, who hucksters for me 
and drives my wagon, could bring it down. 
Lucas went up on Wednesday, and was to 
come down on Thursday, but he did not 
come till Friday, and returned the same day. 
I have examined the register from the last 
entry of Dr. Mudd’s name on the 23d of 
December, 1864, up to this month, May, and 
his name does not appear at all. 
Francis Lucas. 
Julia Ann Bloyce (colored.) 
For the Defense.—May 20 
By Mr. Ewing. 
For the Defense.—May 26, 
I am a huckster, and live about two miles 
from Bryantown, Maryland. On Christmas 
eve last, Dr. Mudd came to me in market 
and asked me to take a stove down for him; 
I promised to do so, if I could. He came 
to me two or three times to tell me not to 
forget it; and I finally told him it was out 
of my power to take it. 
By Mr. Stone. 
I went to live at Dr. Sam Mudd’s on the 
day they call Twelfth Day after the Christ- 
mas before last, and left two days before this 
last Christmas. I used to cook, and wash, 
and iron, clean up the house, and sometimes 
wait on the table. I never saw Andrew 
Gwynn, nor any Confederate officers or sol- 
diers about Dr. Mudd’s house, and never saw 
a man called Surratt there, nor heard the 
name mentioned. 
[A photograph of John H. Surratt exhibited to the wit- 
ness.] 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I suppose it was about 9 or 10 o’clock on 
Christmas eve that he came to ask me to 
haul the stove. 
I have never seen that man at Dr. Mudd’s. 
I have seen Ben. Gwynn, but I did not see 
him at Dr. Mudd’s last year. I did not hear 
his name nor Andrew Gwynn’s mentioned. 
Dr. Mudd was very kind to us all. I lived 
with him a year, and he treated me very 
kindly; never gave me a cross word, nor any 
of the rest that I know of. I did not hear of 
his whipping Mary Simms; he never struck 
her nor any of the others a lick, through 
the whole year. I believe she left because 
Mrs. Mudd told her not to go out walking 
one Sunday evening; but she would, and the 
Samuel McAllister. 
For the Defense.—May 26. 
By Mr. Stone. 
I have been a clerk at the Pennsylvania 
House in this city since the 2d of December 
last. 
[Submitting to the witness an hotel register.] 
That is the register of the Pennsylvania 
House. I have examined it very carefully, DEFENSE OF SAMUEL A. MUDD. 
193 
next morning Mrs. Mudd gave her about 
three licks with a little switch, but the switch 
small, and I don’t believe the licks could 
have hurt her. The general opinion of Mary 
hamms among the colored people is, that 
®he is not a very great truth-teller. I know 
Bhe is not, because she told lies on me. The 
c°lored folks think the same of Milo Simms 
as of Mary; if he got angry with you, he 
*ould tell a lie on you to get satisfaction. 
I never heard Hr. Mudd say any thing 
a§ainst the Government or Mr. Lincoln. 
On the day I left, two days before Christ- 
mas, Hr. Mudd went away early in the morn- 
IPg, and his wife told me he was gone to 
v' ashington to get a cooking stove. Since I 
left Hr. Mudd’s, I have been living in Bryan- 
t°wn with Mr. Ward. 
selves except during the night. Mr. Andrew 
Gwynn was an intimate friend of ours, very 
fond of music, and he spent two evenings 
with us at my father’s. He left that year, and 
I have not seen him since, nor have I heard 
of his being at my brother’s. I never heard 
of a Captain Perry, or Lieutenant Perry, or 
of any Confederate soldiers being about my 
brother’s house. My father’s house is about 
thirty or thirty-two miles from Washington. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I think I heard of Booth being at my 
brother’s in the early part of last November. 
I do not know personally that my brother 
was at home on the Ist of March; I did not 
see him at all on that day. Ido not know 
the officer wrho enrolled the names of those 
in our neighborhood subject to the draft, nor 
did I say any thing at all to the enrolling 
officers as they passed by, or were at my 
father’s house. 
WHEREABOUTS, March 1-5. 
For the Defense.—June 5. 
By Mr. Ewing. 
Fannie Mudd. 
By Mr. Ewing. 
I know that it was the Ist of March that 
my sister was taken sick, because it was Ash 
Wednesday, and it is customary with Catho- 
lics to go to church that day, if possible, to 
prepare for the penitential season of Lent, 
and we were Catholics, and were particularly 
anxious to go to church. My sister attempted 
to rise that morning, but was not able; and a 
second time attempted, but was obliged to re- 
main at home. 
, l>r. Samuel A. Mudd, the accused, is my 
brother. I know of my brother’s where- 
abouts from the Ist to the 4th of March last. 
the Ist of March my sister was taken 
Blck, and on the morning of the 2d my father 
®er*t to her room early to know how she 
|e’f She sent him word that she felt very 
P?dly, and was afraid she had the small-pox. 
father immediately dressed, and went for 
Jpy brother, and he came there with my 
ather and took breakfast with us. On the 
ph nay brother came in between 11 and 12 
-,0 see my sister, and took dinner with us. 
A 8 he had not his medical case with him, 
having come in from the barn, where he had 
been stripping tobacco, he went home for it, 
a.nd came back with the medicine for my 
Bl®ter. On the 4th he came to dinner again, 
ar>don the sth, Sunday, he was at my father’s 
|h the evening, in company with Hr. Blan- 
°rd, my brother-in-law. 
1 did not see my brother on the Ist of 
larch, but I am pretty sure he was at home. 
am confident my brother was not absent 
pom home at any time between the Ist and 
,th of March. We live very near, about 
'alf a mile distant, and we go backward and 
°r'vard sometimes twice a day. 
, 1 was in the habit of visiting my brother’s 
'ou8e very frequently last summer, and the 
V'u1 Iner Previ°us- I never saw or heard of 
°hn H. Surratt being there. I heard of 
I °°fb being there once, probably in Novem- 
er> but I did not see him. Since this trial 
°mmenced, I have heard that he was there 
twice. ’ 
j. I Ivnew of three gentlemen, Mr. Jerry 
,J'er; Andrew Gwynn, and Bennett Gwynn, 
j e*|P’Pg in the pines near my brother s house, 
lo61; I do not think they secreted them- 
I did not meet Booth when he was at Bryan- 
town, but I saw him in church; he sat in Hr. 
Queen’s pew, with his family. 
Mrs. Emily Mudd. 
For the Defense.—June 5. 
By Mr. Ewing. 
I live at the house of Mr. Henry L. Mudd, 
the father of the prisoner, Samuel A. Mudd. 
On Thursday, the 2d of March, Hr. Samuel 
Mudd was summoned very early in the 
morning to see his sister, who was sick, and 
again on the next day. the 3d. He came 
over about 12 o’clock that day and dined 
with us, and finding his sister much worse, 
he came over again in the evening and 
brought her some medicine. He was there 
again on Saturday to see her, and took din- 
ner again; and I think he was there on 
Saturday afternoon. I am positive of the 
dates from the fact that the Ist of March, 
when the prisoner’s sister was sick, was Ash 
Wednesday, and she could not go to church. 
I am sure that Hr. Samuel Mudd was not 
from home at any time between the Ist and 
the sth of March; he was attending his sick 
sister, and was not absent from home at all. 
I know Andrew Gwynn, but have not seen 
him since the fall of *IB6O. He was in the 
habit of visiting the house of Hr. Mudd’s 
father before that, but has not, to my knowl- 194 
THE CONSPIRACY TRIAL. 
edge, been there, 'or at the house of Di. 
Samuel A. Mudd, since 1861, I never knew 
John H. Surratt, or Lieutenant Perry, or 
Captain Perry, and never heard of their being 
at the house of Samuel A. Mudd; nor have 
I ever known or heard of parties of Con- 
federate officers or soldiers being about Dr. 
Samuel Mudd’s house, and I have been in 
the habit of going to his house very frequently 
since 1861. I saw Dr. Mudd on his way home 
from Bryan town on the Saturday afternoon 
after the assassination of the President; no 
one was with him. 
colored folks about mere gave ber a bad 
name as a story-teller. Dr. Mudd treated me 
very well; I have no fault to find with him. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
Dr. Mudd took breakfast at home on 
Thursday, and he was there all day when 
we were cutting brush; he was on one side 
of the path, and we were on the other. I 
know he was at home to breakfast, dinner, 
and supper on Thursday. 
Cross-examined Assistant Judge Advocate 
Bingham. 
Q. Are you certain that Dr. Mudd took 
breakfast at his house on the day after Ash 
Wednesday ? 
Assistant Judge Advocate Bingham objected 
to the question as not proper re-examination. 
The cross-examination'had been confined to 
matters brought out on the examination in 
chief, and therefore this kind of re-examina- 
tion was not proper. 
Mr. Ewing desired to put the question in 
order to explain a seeming contradiction, and 
have the matter fully understood. 
The Commission sustained the objection. 
By Mr. Ewing. 
I saw him going by the road by his house 
toward Bryantown, 1 expect, between 1 and 
2 o’clock; perhaps a little earlier; and I saw 
him coming back perhaps about 4; but I am 
not positive as to the time. On the 2d of 
March, he came to his father’s very early, 
before breakfast; I do not know what time 
he left; I was sick and did not see him any 
more; on Friday I did not see him until 
noon, at dinner. I did not see him at all on 
Wednesday, the Ist of March, and do not 
know of myself whether he was abroad or 
at home on that day, nor do I know whether 
he was at home or abroad after he left his 
sister early in the morning of the 2d, until 
the next day at noon. 
Frank Washington (colored.) 
Recalled for the Defense.—June 5. 
It is a little better than twelve months 
since I went to live at Dr. Mudd’s house. I 
was there last March, and I know that on 
the Ist, which was Ash Wednesday, he was 
out working with me on the tobacco bed 
from morning until night; the next day he 
was about the tobacco bed in the morning 
and afternoon. On Friday he went to the 
bed again, but it commenced raining. He 
then went to the barn to -strip tobacco, and 
he staid in the barn until 12 o’clock, when 
he went to his father’s. On Saturday it 
rained pretty hard, and he kept the house all 
day until pretty late in the evening, when 
he rode up to the post-office at Beantown. 
On Sunday he went to church. 
On Ash Wednesday night, and every other 
night, Dr. Mudd was at home; Dr. Mudd 
was also at home Tuesday, the last day of 
February, and I saw him on Sunday night, 
the sth; he was at home. 
Betty Washington (colored.) 
Recalled for the Defense.—June 5 
By Mr. Ewing. 
I went to live at Dr. Samuel A. Mudd’s 
house the week after Christmas, and was 
there in March last; I know that on the 
Ist of March, Ash Wednesday, Dr. Mudd 
was down at the tobacco bed, getting it 
ready to sow; he was there until about dinner 
time, and he and Mr. Blanford came in to 
dinner together. He was out all that after- 
noon, but was at home at night. I saw him 
the next morning, Thursday, at breakfast 
time, and we cut brush all that dav, and he 
was there working with us all day’; he laid 
the brush off for us to dig up. On Friday, he 
was stripping tobacco in the barn. I saw him 
on Friday morning, but not at noon ; he went 
from the barn over to his father’s to dinner, 
and came back after we had been to supper. 
I saw him on Saturday at breakfast, and 
after dinner he went to the post-office at 
Beantown, and came back at night. On 
Sunday he went to church, and came home 
Sunday night. 
The bed that he was fixing on the 
Ist of March is down close to Mr. Sylvester 
Mudd’s. I was working on the bed with him. 
I never heard of John H. Surratt while I 
lived at Dr. Mudd’s. If I had heard talk 
of his name, I should know it. I know Mary 
Simms who used to live at Dr. Mudd’s; all the 
Cross-examined, by Assistant Judge Advocate 
Bingham. 
I always got up before Dr. Mudd, and I 
saw him go out of the house early on Thurs- 
day morning; I was working with him all 
that day. He ate his breakfast before I had 
mine, and he ate his dinner and supper at 
home. 
For the Defense.—June 5. 
By Mr. Ewing. 
John F. Davis. 
I live in Prince George’s County, Md., about 
mile from the line of Charles County. * DEFENSE OF SAMUEL A. MUDD. 
195 
know that Dr. Samuel Mudd was at home on 
the 3d of March, for I went down to see him, 
and carried him half a dozen small perch, 
t saw him at his house, within five miles of 
kryantown, at about 10 o’clock on Friday 
Corning, the 3d day of March. 
' On the 2d of March he was at my father’s 
| house before breakfast, having come to see 
imy sister, who was sick. I saw him again 
I that day at 4 o’clock. On the 3d of March 
! he was sent for about 10 o’clock, and the boy 
found him in the barn stripping tobacco. He 
came about half-past 11 o’clock, remained to 
dinner, and left about 2 o’clock; I am very 
positive of this. In the afternoon of the 
same day he came again, and brought some 
medicine. I saw him again that evening 
when I went over to his house to fetch some 
medicine. On the 4th of March he was 
again at my father’s house to see my sister. 
On the sth of March I saw him at church, 
and he dined at our house. The distance 
from my father’s house to the Navy Yard 
bridge at Washington is from twenty-seven 
to thirty miles. 
My brother has not owned a carriage of 
any description since I have known him. My 
father does not own any buggy; he owns a 
large two-horse, close carriage, holding four 
persons inside, two on the driver’s seat, and a 
large seat behind. It is as large as any of 
the city hacks, and very heavy. 
Recalled for the Defense.—June 5. 
Thomas Davis. 
By Mr. Ewing. 
Since the 9th of January I have been living 
at Dr. Samuel Mudd’s. I recollect that he 
Was at home on the Ist of March, because I 
sick, and he came into my room to see 
file. He told me he could not give me any 
ftieat on that day because it was Ash Wednes- 
day, the beginning of Lent. He came up to 
see me twice on that day, in the forenoon and 
afternoon, and on the 2d of March he came 
to see me twice, morning and evening. On 
the 3d I saw him three times, and on the 4th 
and sth he came to see me as usual, in the 
forenoon and afternoon of each day. 
Oross-examined by Assistant Judge Advocate 
Bingham. 
I was sick and confined to ray bed at Dr. 
Mudd’s only once last winter; I was taken 
ejck on the 22d of February, and remained 
Bick and confined to the house until about 
the 15th of March; this is the same sickness 
that I swore to before the Court a week ago. 
Cross-examined Judge Advocate 
Bingham. 
I distinctly remember my brother being at 
my father’s house on the 3d of March. I 
was at the barn stripping tobacco, and when 
I came to my dinner my brother came in im- 
mediately afterward, and he asked for some 
water to wash his hands; I noticed they were 
covered with the gum of tobacco. My sister 
was taken sick on the Ist of March, Ash 
Wednesday; I remember I went to church 
on that day. 
By Mr. Ewing. 
Dr. Mudd was up to see me every day dur- 
>ng the whole of that time, and generally 
twice a day. Dr. Mudd did not own a two- 
horse buggy or rockaway while I lived there; 
he had no buggy at all. 
By Assistant Judge Advocate Bingham. 
He had his father’s carriage once on the 
17th of April. Ido not know what he had 
I was sick; I was not out to see. 
Dr. J. H. Blanford. 
For the Defense.—June 6. 
By Mr. Ewing. 
I saw Dr. Mudd at his house on the Ist of 
March, and I saw him at church on the sth. 
Dr. Mudd’s father does not own a buggy or 
rockaway. His carriage is a large, close 
family carriage; four seats inside and two 
outside. 
His father’s carriage is a two-horse one. 
It is a close carriage; not a very heavy one. 
There is one seat inside, and one outside for 
the driver; I think it has a window in each 
aide, and opens at the side with a door. 
By Assistant Judge Advocate Bingham. 
It has curtains. I said it was a rockaway, 
hut I spoke of it first as a “ carriage; ” I never 
heard it called a rockaway. 
By Mr. Ewing. 
Miss Mary Mudd. 
For the Defense.—June 9. 
By Mr. Ewing. 
On Ash Wednesday, the Ist of March, I 
was making preparations to go to church, 
when I was taken very sick. The sickness 
passed off, and I grew better; but on the 2d 
of March my father sent for Dr. Samuel 
Mudd, my brother, and brought him over. 
My father found him in bed. He remained 
with us till 7 o’clock, and then returned to 
his own house. 
Henry L. Mudd, Jr. 
For the Defense.—June 6. 
By Mr. Ewing. 
Of the whereabouts of my brother, Samuel 
A- Mudd, from the Ist to the sth of March, 
I can state that on the Ist of March I did not 
8e« him, though he certainly was at home. 
On Friday morning, the 3d of March, 
there was an eruption on my face, and my 
mother, who was much frightened, sent a 196 
THE CONSPIRACY TRIAL. 
small colored boy over for my brother, who 
sent back word that he would be there to 
dinner. He came between 11 and 12 o’clock 
and dined with us. Having come from the 
barn where he was stripping tobacco all day, 
he brought no medicine. I remember he 
came directly into my room and washed the 
tobacco gum off his hands. He left at 2 
o’clock, and returned at 4, bringing with him 
some medicine. On the same day my brother 
Henry, late in the evening, went over and 
returned with more medicine. On the 4th, 
Saturday, my brother came to see me, and 
dined with us. On the sth, Sunday, he was 
at our house in the evening. On Monday, 
the 6th, he came to see me again; also on 
Tuesday, the 7th, and on Wednesday I was 
able to leave my room and did not need his 
attention any more. 
During this time, on one of the days, a 
negro woman on the place was taken very 
sick of typhoid pneumonia. My brother 
saw her every day until the 23d of March. 
That day I remember very well, because we 
had a tornado, and his barn was blown 
down. After that, during the whole of the 
month, I saw him every two or three days, 
or heard of him. 
My brother first went to St. John’s Col- 
lege in 1849, and he was there in 1850. In 
1851 he went to Georgetown College. He 
was not at home in the months of October, 
November, and December of 1850, or Janu- 
ary, 1851. He never spent any holiday at 
home except the summer vacation. 
IN WASHINGTON, March 23, 1865. 
Recalled for the Defense.—May 29. 
Thomas L. Gardiner. 
By Mr. Ewing. 
On the 23d of March last, Dr. Samuel A. 
Mudd (the accused) and myself came to 
Washington together. We left home about 
8 or 9 o’clock in the morning, and came up 
to attend the sale of Government condemned 
horses, which we were told would take place 
on Friday; but when we got to Mr. Mar- 
tin’s, we heard that the day of sale had 
been changed to Tuesday, and we were dis- 
appointed in attending it. 
Dr. Mudd said he wanted to go over in 
town; so we left our horses at Mr. Martin’s, 
where we had dined, walked across the 
bridge and up to the Navy Yard gate; then 
we took a street-car and came up on the 
avenue. We went to Mr. Young’s carriage 
factory, where Dr. Mudd looked at some 
wagons, and then around to one or two liv- 
ery-stables, where Dr. Mudd looked at some 
second-hand wagons. From there we went 
round on the island to Mr. Alexander Clark’s. 
Not finding him at home, we went down to 
his store, staid there with him till dark, and 
he closed his store, when we returned to his 
house, and took tea with him. After tea, 
Mr. Clark, Dr. Mudd, and myself went to 
Dr. Allen’s, remained two or three hours, 
then returned to Mr. Clark’s, and staid all 
night—Dr. Mudd and myself sleeping to- 
gether. After breakfast next morning, we 
accompanied Mr. Clark to his store, and 
then went to the Capitol and looked at some 
of the paintings. After this, we took a 
street-car, returned to Mr. Martin’s and or- 
dered our dinner, after which we got our 
horses and returned home. We were not 
separated at all during the whole time; we 
were not out of one another’s sight, I am 
confident, from the time we left Mr. Martin’s 
till we returned. We saw nothing of Booth 
while there, nor did we go to the National 
Hotel. 
I recollect the contest in our Congressional 
district, in which Calvert and Harris were the 
rival candidates. Mr. Hanis was running 
as a peace candidate; I do not know that 
he was termed a secessionist. Calvert, I un- 
derstood was the unconditional Union candi- 
date. I can not say whom Dr. Mudd sup- 
ported at that election. I did not see his 
ticket, but from a conversation I had with 
I have been in the habit of seeing my 
brother every day or so, because my mother’s 
health is delicate, and he comes in frequently 
to see her. 
I know of my brother going to Washing- 
ton on the 23d of March, in company with 
Lewellyn Gardiner. I remember his being 
at a party at Mr. George Henry Gardiner’s 
in January, but I do not remember the date. 
His wife and Mrs. Simms, who boards in 
the family, were also there.' They remained 
until daybreak. A short time after that, he 
came with my brother Henry to Giesboro to 
buy some horses. Those are the only occa- 
sions I know of his being away from home 
between the 23d of December and the 23d of 
March, and I never heard of his being ab- 
sent on any other occasion. 
My brother never owned a buggy or car- 
riage. My brother has for the past year 
worn a drab slouch hat. I have never seen 
him wear a black hat for a year. 
I know Andrew Gwynn. I understand he 
has been in the Confederate service since 
1861. I never knew or heard of any Con- 
federate officers, or soldiers, or citizen Con- 
federates, stopping at my brother’s house. 
I saw Booth in Dr. Queen’s pew at church 
last fall or winter. It was the visit when 
he purchased the horse of Mr. Gardiner. I 
do not know of Booth having been at my 
brother’s at that visit. I only heard of it; I 
did not hear of his staying there over night. 
I never heard of a second visit until since 
this trial commenced. Mr. Gardiner does 
not live more than half a mile, I think, 
from my brother’s. Bryantown is on the 
road between Dr. Queen’s and Mr. Gardiner’s. 
My brother’s house is also on that road. 197 
him, I supposed he would support Mr. Cal- 
y®rt. I understood him to say that he thought 
would be better to elect Mr. Calvert. 
DEFENSE OF SAMUEL A. MUDD. 
Mudd and Mr. Gardiner went to my house 
with me; I gave them a bed-room, and they 
remained together in my house, and went 
away together the next morning. I have not 
seen Hr. Mudd on any other occasion this 
year until yesterday. 
I do not know either J. Wilkes Booth, 
John H. Surratt, or Mr. Weichman. No 
one bearing either of those names was in 
company with Hr. Mudd, Mr. Gardiner, and 
myself at Hr. Allen’s, at my house, or any 
where else. Hr. Mudd was not out of my 
sight that night from the time he came into 
the store until he went into his room to bed. 
There were no strangers about my house in 
the morning, and there was no one in com- 
pany with Hr. Mudd and Mr. Gardiner when 
they left. They came to my house on the 
day on which a severe storm had occurred, 
by which a negro boy was killed. I fix the 
time of their visit by this, for we were talk- 
ing about it at Hr. Allen’s. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I understood that Calvert was publicly re- 
puted to be a stronger Union man than 
Harris. 
•By Assistant Judge Advocate Burnett. 
I do not know that there were three can- 
didates in the field; that Colonel John C. Hol- 
land was the unconditional Union candidate in 
that district, and the others both peace can- 
didates. I know that Colonel Holland was 
a. candidate when Harris was elected the last 
time. 
Hr. Charles Allen. 
For the Defense.—June 6. 
By Mr. Ewing. 
I am acquainted with the prisoner, Samuel 
Mudd. The last time I saw him was at 
My office in this city, On the evening of the 
of March last. He came there in com- 
pany with Mr. H. A. Clark and Mr. Gar- 
Hiner; the latter gentleman I had never seen 
before. I was introduced to him on that 
evening; Ido not know his first name. I 
Understood that he lived in the same section 
°f the country that Hr. Mudd lived in. They 
Came in about 8 o’clock, and remained till be- 
tween 12 and 1 o’clock at night. There 
''’ere several other gentlemen in my office, to 
?}'om Mr. Clark introduced Hr. Mudd and 
Mr. Gardiner. I can fix the date of that 
visit from the fact that a tornado had swept 
uver the city that day, unroofing one or two 
houses, and killing a negro man; and this 
''’as spoken of by us in the evening; by ref- 
erence to the newspapers I find that it was 
.he 23d. I had seen Hr. Mudd once before, 
’h the early part of 1864, when Mr. Clark 
hmt introduced him to me. Those are the 
°hly two occasions on which I have seen him. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I knew all who were at Hr. Allen’s on 
that evening, but I can not recall them. I 
spend the evening there often, and am pretty 
much acquainted with the gentlemen that 
visit there, but I can not state positively the 
names of the ten or a dozen that were there, 
that evening 
AT GIESBORO ON APRIL 11. 
For the Defense.—May 29. 
By Mr. Ewing. 
Henry L. Mudd, Jr. 
I live about three miles from Bryantown, 
and about three-fourths of a mile from my 
brother, Samuel A. Mudd; I have lived there 
all my life. On the 10th of last April, I think 
it was, my brother, Samuel A. Mudd, and 
myself left home together and went to Blan- 
ford’s, ten miles from Washington. We staid 
there all night, and the next morning Hr. 
Blanford, Hr. Mudd, and myself went to 
Giesboro to buy condemned Government 
horses. Hr. Blanford left us about half-past 
10 o’clock, and went to Washington. We 
remained till about 1 o’clock, and finding no 
horses that suited us, I proposed to Hr. Mudd 
to go down to Mr. Martin’s, near the bridge, 
and get some dinner, which we did. Hr. 
Blanford came in just as we had dined, and 
we all three returned home. Hr. Mudd and 
myself were not separated five minutes during 
that visit. We did not cross the Eastern 
Branch, or come into Washington or the Navy 
Yard, nor did I see any thing of John Wilkes 
Booth during that visit. I know of but two 
other visits to Washington made by my 
brother, Samuel A. Mudd, during last winter 
and spring; the first on the 23d or 24th of 
Henry A. Clark. 
For the Defense.—June 6. 
By Mr. Ewing. 
/ H the latter part of last March, Hr. Mudd 
accused) and Mr. Gardiner, a neighbor 
guis, came to my store in this city, between 
i and 7 o’clock in the evening, and went 
Jc.h'e with me, and took tea at my house. 
J ter tea we went around to Hr. Allen’s office, 
ud spent the evening there, in company with 
a niUmber of other gentlemen. Mr. Emerson 
ud Mr. Veighmyer were there. Mr. Gar- 
u>er and Hr. Morgan were there for a few 
Mutes, and I think Ethan Allen, but am 
tj°t positive; and perhaps Mr. Bowman of 
j^e Bank of Washington; there were per- 
tw*38 ten or a dozen. We remained till be- 
een 12 and 1 o’clock, playing cards. Hr. 198 
THE CONSPIRACY TRIAL. 
December, in company with Jerry Mudd, and 
the second visit with Thomas L. Gardiner, 
about the 23d of March. With the exception 
of those visits to Washington, and when he 
went to Giesboro with me, my brother has 
been at home, and I saw him nearly every 
day, at least four times a week, at home and 
at church. A part of last year I was at 
college; I came home about the 29th of 
June 
3 and 4 o’clock, T am not positive, and they 
all three left together. They said they were 
going to Giesboro Point to buy horses. I 
have no means of fixing the date of this visit 
except from my book, which is at home; but 
I think it was the 4th of April. Neither 
Dr. Mudd nor Dr. Blanford was there, to my 
knowledge, between that time and the assas- 
sination of the President. 
1 do not know of any Confederate soldiers 
or other persons having been about my 
brother’s house since ray return from college, 
nor did I ever see or hear of John H. Surratt 
being there. My father is a large land-owner 
in the county, and the farm which my brother, 
the prisoner, holds is between four and five 
hundred acres. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I did not register Dr. Mudd’s name at all; 
but a man by the name of Stewart was there 
that day, and his name was registered; so 
that the book will show the date. 
Recalled for the Defense.—May 30. 
Cross-examined by Assistant Judge Advocate 
Burnett. 
Since I was upon the stand yesterday I 
have referred to my register, and Rnd that it 
was Jerry Mudd that was at my house on 
the 4th of April. It must have been on 
the 11th of April that Dr. Samuel Mudd, 
his brother Henry, and Dr. Blanford were 
there; 1 know it from the fact that, when 
they had been gone about half an hour, 
Joshua S. Naylor and Lemuel Orme (whose 
names are registered on that day) drove up 
and asked if there was anybody up from 
Charles County, and I told them that Dr. 
Mudd and his brother had just left. 
I saw Dr. Mudd and Jerry Mudd in market 
in Washington on the 24th of December last. 
Dr. Mudd helped me to sell some turkeys; 
it was a dull market, and he said he thought 
he could do better than I was doing ; so he 
stood at the stand while I went round the 
market, but when I came back I do not think 
he had sold one. He \vas at my stand twice 
that day. He inquired of Lucas if he could 
carry a stove down for him, and Lucas’s 
reply was that, if he sold his poultry, he 
would; if not, he would have to take it over 
to me; but he did not sell his poultry, and 
the stove was not moved that day. 
Dr. Mudd was at my house on the 23d of 
March; his name was registered on that day. 
He and Mr. Gardiner came together before 
dinner. They left their horses there, and 
took them away the next day after dinner. I 
do not know where they went; I only know 
they went across the river. 
Mr. Ewing. I now propose to ask the wit- 
ness, what statement was made by the ac- 
cused to him, as to the purpose of his visit. 
Inasmuch as the visit has to be explained, I 
think, under the rules of evidence, that state- 
ment is clearly admissible. There are plenty 
of authorities for it. 
Assistant Judge Advocate Bingham. I 
undertake to Say that there is not any au- 
thority in the world for it, because that is not 
in issue. 
Mr. Ewing. It is in issue whether he met 
Booth in January. 
Assistant Judge Advocate Bingham. Not 
By Mr. Ewing. 
My father gave that farm to my brother. 
He has no deed for it, but he can get one 
any time he wants it. I suppose he is a tenant 
of my father’s. 
By Me, Ewing. 
I always understood that my father set 
apart that farm for ray brother; it is known 
as ray brother’s farm, and goes by that name. 
I know also that six years ago my father 
bought the land on which Mr. John F. Hardy 
now lives for my brother, Dr. Samuel Mudd. 
The house was burned down, and a small 
one built, which did not suit my brother, 
and he sold the farm to Mr. Hardy, making 
the agreement, and selling and receiving the 
proceeds, although my father held the title. 
Recalled for the Defense.—May 31. 
By Mr. Ewing. 
I did not say in my previous examination 
that my brother was a tenant, if that means 
that he pays rent. I keep my father’s ac- 
counts, and I know very well that my brother 
has never paid the first cent of rent for the 
farm since he has been on it, nor any of the 
produce of the farm; it was treated as my 
brother’s farm in every respect. 
Robert F. Martin. 
For the Defense.—May 29. 
By Mr. Ewing. 
I am acquainted with the prisoner, Dr. 
Samuel A. Mudd, with his brother, Henry L. 
Mudd, and Dr. Blanford. Dr. Mudd was at 
my house, on the 23d of March last, with 
Mr. Lewellyn Gardiner; they took dinner, and 
left their horses, then went over the river, 
returned next day to dinner, and got their 
horses. He was at my house again in April, 
in company with his brother, Henry Mudd. 
They had their horse put away, and took 
dinner. 
Dr. Blanford joined them, perhaps between DEFENSE OF SAMUEL A. MUDD. 
199 
ln March. This is in relation to a visit of 
the 23d of March. 
Mr. Ewing. It is in issue whether Hr. 
Mudd met Booth in Washington. We are 
n°t confined as to any particular day when 
the meeting may have occurred. We want 
to show that he could not have met Booth 
from the 23d of Hecemher down to the time 
°f the assassination of the President; and, in 
order to show that, we prove his presence at 
home during all that period, except the visit 
to Giesboro, and the one night he went to 
the party; and we follow it by proof as to 
w_hat the visits were for, and as to what he 
who was with him, and where he went. 
Aqw, as a part of the proof, to show the pur- 
pose of the visits to Washington, his declara- 
tions as to the purpose of the visit made at 
the time of making the visit are admissible, 
Under the rules of evidence. I will read to 
the Court an authority on that subject, from 
■2 Russell on Crimes, p. 750: “Generally 
speaking, declarations accompanying acts are 
admissible in evidence as showing the nature, 
character, and objects of such acts. Thus, 
"’here a person enters into land in order to 
take advantage of a forfeiture to foreclose a 
mortgage, to defeat a disseizin, or the like, 
°r changes his actual residence, or is upon 
a journey, or leaves his home, or returns 
thither, .... his declarations made at 
the time of the transaction, and expressive 
°f its character, motive, or object, are re- 
garded as verbal acts, indicating a present 
Purpose and intention, and are therefore ad- 
mitted in proof like any other material acts.” 
the authority is exactly in point. The fact 
ut the journey is legitimately given in evi- 
dence by us; and so the object of the journey 
m legitimate; and, in connection with the ob- 
ject of the journey, his declarations as to its 
Purpose are admissible. 
Assistant Judge Advocate Bingham. The 
great trouble is that the gentleman does not 
fead enough. I would yield the point if he 
c°uld show in the book from which he has 
fead, or in any other book, an authority say- 
lng that proof of the kind now offered was 
admissible, when the point to which it re- 
lated was not in issue. The rule on the sub- 
let is, that if the prosecution prove the 
declarations and acts of the accused, he may 
prove all that he said on those occasions, as 
Part of the res gesice; but there is no such 
hing in the text jie rea(j) or in any other, as 
'at a man may prove what he said at an- 
other time and place not involved in the 
ISSUe, and about which there has been no 
Proof offered by the prosecution. The gen- 
ian says he wants to prove what the 
Prisoner said, as to the object of this jour- 
in order to show that he was not coming 
u see Booth. I suppose, if on the 23d of 
March, he said he was not hunting Booth, 
they prove that, and if, when he got 
back home he said he did not see Booth, 
land they prove that, it would be proof of 
that fact. What authority is there for say- 
ing that that can be done? There is no book 
in the world that says so. The text read by 
the gentleman does not mean any such thing. 
If the gentleman can show me a text which 
says that a defendant may prove an act that 
has not been put in issue by the accusation, 
about which no proof has been offered by 
the prosecution, and prove all he said on that 
occasion, I shall yield. The same book from 
which the gentleman read lays down the law, 
that the party shall not introduce his own 
declarations on his own motion. The text 
is, page 750 : “ Hearsay evidence of a fact is 
not admissible;” and it goes on to say, “there 
are, however, certain instances, which it will 
be the object of this section to point out, 
where hearsay evidence is admissible.” But 
when ? “ When hearsay is introduced, not 
as a medium of proof in order to establish a 
distinct fact, but as being in itself a part of 
the transaction in question.” 
Now, is this transaction in question ? How 
is the fact whether Hr. Mudd came to Wash- 
ington on the 23d of March or not in ques- 
tion ? Is it so on the charge and specifi- 
cation ? Not at all. Is it so by any proof 
offered by the prosecution ? Not at all. Our 
proof is, that in January he was here, and 
had an interview with Booth, and he is not 
to disprove that by his mere declarations ; 
and this testimony is offered for no other 
purpose whatever. It is not to explain any 
transaction, because there is no transaction 
calling for explanation. The fact that he 
came here on the 23d of March is not in 
evidence against him—it is not a matter of 
accusation against him—it is not in ques- 
tion ; and therefore I say the declarations 
of that date proposed to be offered in evi- 
dence are his declarations, offered in evidence 
on his own motion, for no purpose except to 
disprove the testimony offered against him 
by the prosecution; that- he had an interview 
with Booth in January; and there is no text 
of any law-book any where that says he can 
make evidence in that way by his own decla- 
rations. 
The Commission sustained the objection. 
Witness. My hotel is about one hundred 
yards from the Navy Yard bridge, Eastern 
Branch bridge, and persons going from Bry- 
antown to Washington pass by it. 1 have a 
post-office there. I have not seen Hr. Mudd 
at my house, on his way to or from Washing- 
ton, since the 24th of Hecember, except on 
those two occasions. I do not recollect his 
stopping there on Hecember 24th, but I saw 
him in market. I attend market pretty reg- 
ularly, and am not at home much. I sup- 
pose I would recollect if he had stopped there 
at any other time; I can not say positively 
whether I have heard of his being there, or 
not. I kept no record of persons coming to 
my house until the 20th of February. 200 
THE CONSPIRACY TRIAL. 
Dr. J. H. Blanford. 
24th. I remember the date because the barn 
was blown down while he was away, and 
the 25th was a holiday. 
I do not know John H. Surratt, nor John 
Wilkes Booth; I never heard their names 
mentioned, nor the name of David E. Herold. 
For the Defense.—May 29. 
By Mr. Ewing. 
I live about twelve miles from this city, in 
Prince George’s County, Maryland. 
On the 11th of April last, I accompanied 
Dr. Samuel A. Mudd and his brother, Henry 
L. Mudd, to Giesboro, to attend a Govern- 
ment sale of horses. We arrived there some 
time before the hour of sale, and I remained 
with Dr. Mudd till after 12 o’clock, examin- 
ing horses. They were very inferior, and Dr. 
Mudd did not purchase any. Having busi- 
ness in Washington, I left Dr. Mudd about 
half-past 12; arranging to meet him at 3 
o’clock, at Mr. Martin’s, near the bridge. I 
was with Dr. Mudd all the time till half-past 
12. I went to Washington, and got back to 
Mr. Martin’s about half-past 2, and found 
Dr. Mudd there, waiting for me. In about 
fifteen minutes, probably, we started toward 
home, and rode together to the road leading 
to my house, when I went home, and he 
continued his journey. 
His brother was with him when I left him 
at Giesboro, and was with him at Mr. Mar- 
tin’s when I returned. Mr. Martin’s place 
is on the other side of the Eastern Branch, 
right in the forks of the road leading to 
Giesboro and the stage road leading down 
through the counties, and is not more than 
fifty or one hundred yards from the bridge. 
It is a mile and a half, or probably two miles, 
from the National Hotel, Washington. 
During the last eighteen months, I have 
several times heard Dr. Mudd speak, in gen- 
eral terms, of being dissatisfied with his 
place, and that he would sell if an advant- 
ageous offer were made to him; but I have 
no knowledge of his making a direct offer to 
sell his farm. 
[A likeness of John Wilkes Booth was shown to the wit- 
ness.] 
I never saw that man at Dr. Mudd's while 
I was living there. I was ill for more than 
three weeks while I was there, and Dr. Mudd 
attended me. I took my meals up stairs 
then, but when I was well I took them with 
the family, except when late on account of 
feeding the horses, or doing other things; 
then I took them by myself. I saw Dr. 
Mudd every day during all the while I lived 
there, except the times I have mentioned, 
when he was absent. 
I was at home on Saturday, the 15th of 
April, and saw two horses there, and heard 
that two men were there; but I did not see 
them; I was working in the field. The men 
left, as near as I can say, between 3 and 4 
o’clock in the afternoon. I was there also 
on the following Friday, at work on the 
farm. Some soldiers came to the house on 
that day, and wanted to see Dr. Mudd. He 
Was at his father’s, and I went for him. I 
told him some soldiers were at the house and 
they wanted to see him, and he came along 
with me directly. He said nothing to me 
then about a boot, nor 1 to him. He came 
with me as far as the barn, and I went into 
the field, and he and Mr. Hardy went on 
toward the house. I never heard Dr. Mudd 
express any disloyal sentiments. 
By Mr. Ewing. 
I did not take breakfast with the family 
on the day after the President’s assassina- 
tion; I was attending to the horses, and was 
not ready when the horn was blown ; nor did 
I take dinner with them that day. All I 
knew about the two men having been there, 
was that one of them had a broken leg, and 
one had been to meals, and the other had not. 
MUDD’S ABSENCE FROM HOME. 
Thomas Davis. 
For the Defense.—May 29. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
By Mr. Stone. 
That was what I understood about them; 
I did not see the men. When I came back 
to the house, about 4 o’clock, the horses 
were gone, and as I did not hear of the men 
being there after that, I supposed they were 
gone. 
I have lived at Dr. Samuel Mudd’s since 
the 9th of January last, working on his 
farm. I have been on the plantation all the 
time, with the exception of one night some 
time in January. Dr. Mudd has been absent 
from home only three nights during that 
time; one night at a party at George Henry 
Gardiner’s, and the other times in Washing- 
ton. It was on the 26th of January that he 
went to Mr. Gardiner’s; his family accom- 
panied him, and they returned a little after 
sunrise. The next time he was from home 
was on the 23d of March, when he went to 
Washington with Mr. Lewellyn Gardiner to 
buy some horses. They came back on the 
I saw Dr. Mudd and his wife start to go 
to Mr. George Henry Gardiner’s on the night 
of the party; they walked in that direction. 
Mr. Gardiner lives about three-fourths of a 
mile from Dr. Mudd’s. 
By Mr. Ewing. 
]Exhibiting to the witness a photograph of John H. 
Surratt.] 
I never saw that man at Dr. Mudd’s; I 
saw him at his own home about five years DEFENSE OF SAMUEL A. MUDD. 
201 
ago. I have not seen him since the 9th of 
January, when I went to live at Dr. Mudd’s. 
between the time when he went to Giesboro 
and the next time when he was away all 
night; but I can not come at it exactly. 
Betty Washington (colored.) 
For the Defense.—May 27. 
By Mr. Stone. 
AT BRYANTOWN, April 15, 16. 
I went to live at Dr. Samuel Mudd’s, as 
Jjear as I can tell, on the Monday after 
.hristmas, and have been living there ever 
I wras a slave before the emancipa- 
l°n in Maryland, and belonged to Mrs. 
Middleton. I have not been away 
rorn Dr. Mudd’s house a single night since 
I went to live there. Dr. Mudd has not been 
a'vay frora home at night but three times 
hat I can recollect, but I can not, say in 
what month. 
The first time, he and his wife went to a 
Party at Mr. George Henry. Gardiner’s ; they 
Went about sundown, and came back late at 
ai§ht; Ido not know what time. The next 
'trie was when he went to Giesboro with 
||ls brother, Mr. Henry Mudd, to buy some 
lorses. He started in the morning, and 
e hack, I think, next day. I can not 
hink what month it was, but it was since 
he last Christmas. The last time he went 
0 Washington, he started in the morning, 
came back the next day at night. I 
'd not see any one leave the house with 
vTITb but I heard that Mr. Gardiner went to 
Washington with him. Ido not know who 
back with him. I think it was in the 
part of the month that he went there. 
was away, in all, two whole nights and 
a Part of a night. 
vjT did not see the two men that were at Dr. 
Todd’s lately—Booth and Herold; I saw one 
, them, the small one. I was standing at 
'e kitchen window, and just saw a glimpse 
W him, going in the direction of the swamp, 
did not see any one with him. In three 
four minutes after this Dr. Mudd came 
.? the door, and asked if they had gone for 
■jJe Woman to clean up the house. Mrs. 
udd had started off a little girl for a 
1 °oian to come and clean, as the gentlemen 
ad gone. 
d never saw the small man before, and I 
*d not see the large man at all. 
Photograph of J. Wilkes Booth was shown to the 
lf ever I saw that man at Dr. Mudd’s, I 
t)° n recollect; I never saw anybody like 
lat picture that I can recollect. 
n 
oSs'examined by Assistant Judge Advocate 
Bingham. 
George Booz (colored.) 
For the Defense.—May 27. 
I live with Mr. Henry L. Mudd. I am 
attending to his lower place, next to Bryan- 
town, above the road, about half a mile from 
Mr. John McPherson’s. 
On Easter Saturday, the 15th of April, I 
saw Dr. Mudd at my house. I also saw him 
on the road coming up from toward Bryan- 
town and going toward home. The main 
road from Bryantown, up to the swamps, 
goes right through my place. You can go 
from Bryantown to Dr. Mudd’s either by con- 
tinuing along the main road, or through 
the plantation path. As Dr. Mudd came 
from Bryantown he passed through my place 
by the by-road. I did not see anyperson 
with him, either walking or riding. I had 
been in the swamp looking for my hogs. I 
had been below, and had crossed the main 
road, and met Dr. Mudd coming up from 
Bryantown; I spoke to him. That was be- 
tween 3 and 4 o’clock in the afternoon. I did 
not see any one, or pass any one on either road. 
1 did not see any person on horseback stand- 
ing in the swamp, nor any person at all. If 
anybody had been standing in the road, I 
think I should have seen him, as I passed 
from the big swamp across the main road up 
to my house, and as I came up to the hill. 
I also passed near the little swamp, and could 
have seen if any one had been there. 
Dr. Mudd was riding at his usual pace. 
He very frequently, in going to or coming 
from Bryantown, would pass through our 
place, and I would see him. Dr. Mudd, on 
this occasion, on the Saturday, stopped and 
spoke a few words, and asked me where I 
had been, and then kept on. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
When we met, Dr. Mudd was going toward 
his home. He did not ask me if 1 had seen 
anybody, nor did he say any thing about 
Bryantown. He was riding a bay filly; it 
was his own horse; I know it well. As I 
was not looking out for anybody, a person 
might dismount and I not notice him. Some 
of the bushes there are as tall as a man’s 
head, or taller. 
n°k know where Giesboro is. All 
isat I know about Dr. Mudd’s going there 
f > that he told me he went there, and so did 
w'8 wife. Mr. Henry Mudd, his brother, 
there to go with him, and they started 
to buy horses; but he missed the 
and could not buy any. 
fnink there was a week, or two wreeks, 
I met Dr. Mudd on the by-road leading 
through our farm on the day after the assas- 
sination. I crossed the road just opposite my 
house, and about three hundred yards from 
the big elm on the side furthest from Bryan- 
Recalled for the Defense.—June 7. 202 
THE CONSPIRACY TRIAL. 
town. Where I crossed the road, I reckon I 
can see a quarter of a mile in each direction; 
that is, from and toward Bryantown—a plain, 
full view. There was no horseman on the 
road that I saw. If there had been any one 
going along the road with Dr. Mudd, and he 
kept on the main road, away from Bryan- 
town, when Dr. Mudd turned up through this 
by-road, I think I should have seen him; 
there was nothing to prevent it. 
If anybody had been traveling with Dr. 
Mudd, and kept on the main road when Dr. 
Mudd turned in at the gate, he would have 
been pretty nearly at or near the point where 
and when I crossed the main road, and had 
he been there I must have seen him. 
Leonard S. Roby. 
For the Defense.—June. 3. 
I was in Bryantown on the Saturday after 
the assassination of the President, about 3 
o’clock in the afternoon, and I staid there 
until night. Before getting to Bryantown, I 
met a gentleman on the road, who told me 
of the assassination, but he professed not to 
believe it. When I got near Bryantown, I 
found soldiers stationed two or three hun- 
dred yards from the village. I made inquiries 
of them, and learned that such was the fact, 
and that somebody that belonged to the thea- 
ter was the assassin ; but, though I conversed 
with several, none of them could give me 
his name. I was not in Bean’s store that 
day. 
Susan Stewart. 
For the Defense.—June 3. 
I also asked several persons, citizens as 
well as soldiers, and it was not till a few 
minutes before I left in the evening that I 
received the information as to who was the 
assassin, from Dr. George Mudd. 
I live at Mr. John Morris’s, about a mile 
from Bryantown, and not more than a quarter 
of a mile from George Booz’s. I live on the 
little cut-off road, leading through the farm. 
I saw Dr. Samuel Mudd, the prisoner, on 
Easter Saturday, about 3 or 4 o’clock. He 
was about fifty yards from the road, inside 
of the place at which I live. When I saw 
him, he was just at the corner of the barn, 
going up toward Mr. Morris’s house, rid- 
ing very slowly by himself. I saw no one 
with him. It was cloudy and misty, and I 
think raining a little. Standing at my door, 
from which I saw Dr. Mudd, I can see a 
quarter of a mile or more of the main road. 
1 can see from the swamp clear up to the 
tree called big elm. I did not see Dr. Mudd 
when he came out of the main'road. I did 
not take particular notice of the main road, 
but I could have seen very easily if there had 
been anybody on the main road. 
I saw George Booz meet Dr. Mudd that 
day after he had passed our house. 
I know Daniel J. Thomas, and the repu- 
tation he bears for truth and veracity in the 
neighborhood in which he lives. It is such 
that I would not believe him under oath. 
Cross-examined by Assistant Judge AdtocatE 
Burnett. 
I have known Mr. Thomas from boyhood. 
My attitude toward the Government during 
this rebellion has, I believe, been that of a 
loyal citizen. 1 have given no assistance or 
counsel to the enemy in any way, shape, 
or manner. There are some acts of the Ad- 
ministration I may have spoken of not so 
pleasantly, but nothing more; but I do not 
think 1 have said any thing against the 
Government in its efforts to put down the 
rebellion. 
1 know the man Boyle who murdered 
Captain Watkins, but I never harbored him 
at my house. 1 have only seen him once or 
twice. He came to my house the morning 
after our general election, with some ten or 
a dozen or fifteen. I live not far from the 
road, and many call after the election. After 
the general election, on their route home- 
ward, a party called, and Boyle was among 
them. 1 did not know him at that time. 
They staid but a short time. When I heard 
his name, I had a reason not to want him 
there, and I was not so particular in my 
treatment toward those with him, and they 
left after an hour or two, and I have not 
seen him since. 
By Assistant Judge Advocate Bingham. 
Dr. Mudd, when I first saw him, was 
opposite the barn, which is not more than 
fifty yards from the main road. He was 
coming up toward our house, but I can not 
say whether he was coming from the direc- 
tion of Bryantown or not. 
Primus Johnson (colored.) 
For the Defense.—June 3. 
I saw Dr. Samuel Mudd coming from 
Bryantown by Mr. Booz’s on the Saturday 
after the President was killed, about 3 o’clock, 
or a little after. I also saw him when he 
was going to Bryantown; he was riding by 
himself. There was a man followed Master 
Samuel, going toward Bryantown, and this 
man came back by himself, and he came 
back before Dr. Samuel Mudd, I reckon, 
about half an hour. Mr. Booz’s is about 
two miles from Bryantown, and is on the 
road between Dr. Mudd’s and Bryantown. 
By Mr. Ewing. 
In what I said of Daniel J. Thomas, I 
referred to his reputation before the war as 
well as since. It appears to me he is a 
kind of man who will imagine things, and 
then bring himself to believe they are facts, 
and, believing them, then assert and stand 
to them to the last that they are facts, and 
swear to them. DEFENSE OF SAMUEL A. MUDD. 
203 
De. Joseph Blanford. 
Q. What was the conversation ? 
A. I remarked to him that there was very 
bad news. “Yes,” said he, “I am sorry to 
hear it.” 
For the Defense.—June 3. 
By Me. Ewing. 
Assistant Judge Advocate Bingham ob- 
jected to the witness stating the conversation 
between him and Dr. Mudd; but, inasmuch 
as the witness had already partly answered 
the question, he would allow the answer to 
stand as far as it had gone. 
I am acquainted with the routes from 
Washington through Surrattsville to Bryan- 
|°Wn, and through Surrattsville to Port To- 
bacco and Pope’s Creek. I have traveled 
these routes several times; lam also famil- 
lar with the road from Dr. Mudd’s to Bry- 
antown. 
By Mr. Ewing. 
jjA ronghly-drawn map of the locality was offered in evi- 
pnce, from which it appeared, by the explanation of the 
, Uness, that that portion of the road between the elm- 
v, e and the swamp, nearly half a mile in length, is visi- 
“ie from the houses of Booz and Murray, and the whole 
rn “ • roa(l that branches off from the main road, and 
lining by Murray and Booz’s houses, is entirely visible 
rom those houses.] 
-% Assistant Judge Advocate Bingham. 
Q. What else did Dr. Mudd say in regard 
to the assassination of the President? 
Assistant Judge Advocate Bingham ob- 
jected to the question, and the Commission 
sustained the objection. 
Q. It was from the conversation you had 
with Dr. Mudd in regard to the assassination 
of the President that you are enabled to fix 
that as the day when he made the purchase 
of calico ? 
A. That led me to believe it was the day, 
because I remember his remarks. 
Two weeks ago I made special inspection 
these roads, to ascertain what portion of 
'■be roads was visible from the houses occu- 
pied by Booz and Murray. 
I know where the colored people named 
Bloyce live. The cluster of trees round the 
bouses would obstruct the view of this road, 
b think. Ido not think a person could see 
ariy distance from these houses. 
The distance from the Eastern Branch 
bridge to Surrattsville is about ten miles; 
from Surrattsville to Bryantown is sixteen 
miles; from Bryantowm to Port Tobacco it 
is thirteen miles and a half. 
By Mr. Ewing. 
Gross-examined by Assistant Judge Advocate 
Bingham. 
Prom the bridge, as indicated on the map, 
to Bryantown, is not more than a quarter 
a mile, and you can look down the road 
rigbt into the main street of the town. A 
Person coming from the bridge to Dr. Mudd’s 
bouse would have to pass along the main 
£oad by the big elm, or else by the cut-off 
by John Murray’s house. 
I can not state positively when I first 
heard that it was Booth who had assassin- 
ated the President. I also heard that he had 
been traced within three miles and a half 
of Bryantown, but I can not say when I 
first heard it; I certainly did not hear it on 
Saturday. I think it was Dr. George Mudd 
that told me on Saturday night that Booth 
was the murderer. 
E. D. R. Bean. 
lam a merchant at Bryantown. On the 
bay following the assassination, I believe it 
'vas, Dr. Samuel Mudd bought some goods 
at my store. I sold him some calicoes; this 
the only thing that I particularly remem- 
ber. When I first heard that day that the 
b Resident was assassinated, I asked by 
Whom, and my impression is that they said 
j was by Boyle, the man who is said to 
'ave killed Captain Watkins, and who had 
le reputation in that neighborhood of being 
a desperado. 
I can not state positively whether I heard 
bat day that it was Booth or not. Soldiers 
ere in and out of the store that day, and 
V?e assassination was the topic of general 
aiscussion. 
Q- Did you have a conversation with the 
Prisoner, Samuel A. Mudd, that day, as to 
be assassination of the President? 
The day I sold him the calico I had 
s°me conversation with him, and that cir- 
cumstance leads me to think it was the day 
heard of the assassination. 
For the Defense.—June 3. 
John Acton. 
For the Defense.—June 5. 
By Mr. Ewing. 
I live about three miles from Bryantown, 
and about a mile and a quarter from Dr. 
Samuel Mudd’s, on the road from his house 
to Bryantown. On the day after the Presi- 
dent was killed, I saw Dr. Mudd riding 
toward Bryantown on a gray horse. He was 
alone when I first saw him, but there was a 
man overtaking him. In about three-quar- 
ters of an hour I saw the man come back. 
I was about fifty yards from the road when 
I saw the man returning; and I was there 
for an hour, more or less, afterward, but did 
not see Dr. Mudd return toward his house. 
I could not help seeing him if he had passed 
along the road. 
Cross-examined by Assistant Judge Advocate 
Bingham, 
When I first saw Dr. Mudd and the man, 
they were a little way apart, and the next 204 
THE CONSPIRACY TRIAL. 
thing I saw the man get up to him. I heard 
no conversation between them. I did not 
know the man, nor did I notice him much; 
I noticed the horse more; he rode a bay 
horse. I can not swear that that man 
[pointing to the accused, David E. Herold] 
is the one; he looks more like him than 
any of the other prisoners, but I can not say 
that he is the man. It was about 3 or 4 
o'clock in the afternoon that I saw him 
come back alone, on the same road that he 
had gone down on, not more than an hour 
before, at most, on the road leading to Dr. 
Mudd’s house. I did not see Dr. Mudd any 
more that evening. 
2 o’clock till about 6, and heard the talk 
about the assassination. It was the general 
topic; but I did not hear who was the assas- 
sin. 1 do not recollect that I made any I°' 
quiries about it. On Monday morning I first 
heard that it was Booth. 
I saw Lieutenant Dana at the hotel in 
Bryantown, on Monday morning, about 8 
o’clock, in conversation with Dr. George 
Mudd. There were some three or four per- 
sons in the room. Dr. George Mudd’s repu- 
tation as a Union man is as good as any 
man’s. 
The reputation of Daniel J. Thomas for 
truth and veracity, in the neighborhood in 
which he lives, is very bad. I know that 
people generally think that he is not a truth- 
telling man. 
I am acquainted with the prisoner, Dr. 
Samuel A. Mudd, and with his general char- 
acter, as a man of peace, order, and good 
citizenship. He is considered a very good 
man, peaceable, and a good citizen. 
Mason L. McPherson. 
For the Defense.—June 5. 
By Mb. Ewing. 
I live within three-fourths of a mile of 
Bryantown. About 2 o’clock on the day 
after the assassination of the President I 
went to Bryantown, and was there till 7 or 8 
o’clock in the evening. I did not hear any 
one say that afternoon who had assassinated 
the President. I heard that Boyle had mur- 
dered the Secretary of State—John Boyle, 
the guerrilla, that had passed through there 
several times, and had killed Captain Wat- 
kins. I made inquiries of some of the sol- 
diers, but they could not tell me who had 
killed the President. I asked right smart 
of people, citizens as well as soldiers, but 
they did not know. I was in Bean’s store a 
short time, and heard the talk there, but 
nobody mentioned the name of the assassin. 
There were a good many people in town 
that day. On Sunday I heard who the sup- 
posed murderer was. 
On Monday morning, between 8 and 9 
o’clock, I guess, I saw Lieutenant Dana in 
the hotel at Bryantown, in conversation with 
Dr. George Mudd. They were sitting off to 
themselves. 
Cross-examined by the Judge Advocate. 
I do not recollect whether or not I have 
ever heard Daniel Thomas charged with 
having sworn falsely in any case; I have 
heard him spoken of as rather a bad man, 
and not apt to speak the truth. 
Q. Do I understand you to say, under the 
oath you have taken, and with the knowl- 
edge which you have of Mr. Thomas, and 
of his life and character, that you would 
not believe him when speaking under oath 
before a court ? 
A. I can not say. 
I do not think I have ever heard of 
Thomas being a witness before this trial. 
By Mr. Ewing. 
Peter Trotter. 
For the Defense.—June 5. 
By Mr. Ewing. 
I am very well acquainted with Dr. George 
Mudd's. reputation in the community as a 
Union man. He is as good a Union man 
as any in the United States. 
From general report, I know the reputa- 
tion of Daniel J. Thomas. His reputation 
for truth and veracity in the community 
where he lives is not very good. 
I am a blacksmith, and live in Bryantown. 
I was there on Saturday, the day after the 
President was killed. I heard the subject 
of his murder talked of a good deal. There 
were a good many soldiers there, some 
twenty-four or twenty-five; they were around 
my shop the whole afternoon. I inquired 
of some soldiers if they knew who killed 
the President, and they said they did not 
know. They mentioned Boyle as the one 
that had assassinated the Secretary. 
I am acquainted with Daniel J. Thomas; 
have known him for eight years. His repu- 
tation for veracity in the community where 
he lives is not very good. From my knowl- 
edge of his reputation I would believe him 
under oath in some cases; in others I would 
not. It would depend upon what it was 
about. Ido not think I would believe him 
on his Oath, and very few in our community 
would. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I am confident that it was on Mondav 
morning that Lieutenant Dana had this talk 
with Dr. George Mudd. 
For the Defense.—June 5. 
John McPherson. 
By Mr. Ewing 
I was at Bryantown on Saturday, the day 
after the assassination of the President, from DEFENSE OF SAMUEL A. MUDD. 
205 
Gross-examined by the Judge Advocate. 
much talk about the assassination. Some 
of the citizens coming in heard that soldiers 
were there, and that martial law was to be 
proclaimed, and returned to their homes. I 
first heard of the assassination from the 
soldiers. I asked them who had killed the 
President, and they said they did not know. 
I did not hear of any one, supposed to be 
the assassin, being tracked to near Bryan- 
town. 
Latterly I have been loyal to the Govern- 
nier\t, and desired that it should succeed in 
Putting down the rebellion. At first I may 
lav’e thought a good deal of the rebels, but 
Uot for the last eighteen months. 
?dr, Thomas is very unpopular in that 
neighborhood; I never heard him speak 
about his loyalty, in any shape or 
lorrn; I have seen him both ways. Often, 
"’hen we would hear at Bryantown of some 
Breat feat that was done, he would some- 
Uues think one way and sometimes another. 
* never heard him speak in favor of the 
and never, at any time, have I 
Uiown him to be at all unfriendly to the 
Government, or have any sympathy with the 
reoellion. 
Before the last eighteen months, I thought 
a good deal, but never did any thing un- 
Uendly to the Government; I never spoke 
lauch about my feelings. Ido not know 
“‘at I should have thought better of Mr. 
. nomas if he had been of mywwar}r of think- 
lag- I have never taken the oath of allo- 
wance. About three weeks ago I went to 
ake it, but the Captain had no blanks. 
I never engaged in blockade-running, and 
llever crossed the military lines without a 
Permit. If Mr. Thomas was under oath in 
? court of justice, I would believe him if I 
Uevv he was speaking the truth. If he was 
against the rebels, and I had to 
, ~v upon him, I do not know that I could 
riDg myself to believe him. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I heard that the soldiers were in pursuit 
of the President’s assassin. 
Maecellus Gaediner. 
For the Defense.—May 30. 
By Mr. Ewing. 
I have heard Dr. Samuel Mudd, on several 
occasions during the past two years, state 
that he wanted to sell out. 
I was at Reves’s Church in our neighbor- 
hood on Easter Sunday, the 16th of April, 
following the murder of the President. The 
assassination was known and generally talked 
of; but it is my impression that the name 
of the assassin was not known. 1 saw Dr. 
Samuel Mudd there at church. 
Q. State whether you heard Dr. Mudd say 
any thing as to how he regarded the act of 
assassination. 
Assistant Judge Advocate Bingham. I 
object to introducing Dr. Mudd’s declarations. 
Mr. Ewing. I have brought that before 
the Court again for the purpose of doing 
what I failed to do yesterday, calling the 
attention of the Court specially to the char- 
acter of the declarations that I expect to 
prove. 
By the Court. 
i I am a Scotchman, a British subject, and 
ave never been naturalized. I have used 
rights of a citizen, and have voted. The 
rst vote I gave was for Buchanan; after- 
"ard I did not vote except for local officers 
the county. I have not voted for three 
ears. I do not know why I did not vote 
the adoption of the new constitution of 
Hyland. 
Assistant Judge Advocate Burnett. It is 
the rule of military courts, when the counsel 
states what he expects to prove by a witness, 
that the witness should withdraw, so that he 
may not be instructed by the remarks. 
By Mr. Ewing. 
■ Thomas’s reputation for veracity was 
",Ust the same before the war as now. In 
rle early part of the war he had not the 
imputation of being a loyal man; lam sure 
e Was not. I came to this country twelve 
eara ago; am thirty-four years of age. 
[The witness retired from the stand and the court- 
room.] 
Mr. Ewing. I expect to prove that Dr. 
Mudd spoke of the assassination as an atro- 
cious and revolting crime, and a terrible 
calamity to the country; and that he spoke 
of it generally among his neighbors at the 
church in that way. I again call the atten- 
tion of the Court to the principle upon which 
I claim that it is applicable; and that is, 
that Dr. Mudd is charged with concealment 
of the fact of those men having been there— 
a concealment extending through Sunday— 
and that his declarations, showing his feeling 
with reference to the crime during the time 
that they allege him to have been acting as 
accessory to it, are admissible. 
The Commission sustained the objection 
of the Judge Advocate. 
John I. Langley. 
For the Defense.—June 5. 
By Me. Ewing. 
Sat Was Bryantown two or three times on 
aturday, the 15th of April; it was sundown 
w len I last left. I heard that the President 
8 as. assassinated, but did not hear who as- 
d„ SlQated him. I did not hear that till Mon- 
-oryry 'Uorning. There were not many citizens 
mauy soldiers in the town, nor was there 206 
THE CONSPIRACY TRIAL. 
Dr. George D. Mudd. 
For the Defense.—May 29. 
By Mr. Ewing. 
I more clearly admissible than this. It ac- 
companies, or is connected with, acts-which 
they have shown of the preceding day, and 
of subsequent days; it is a part of the very 
gist of the acta and omissions by which he 
is sought to be implicated here, and to refuse 
to allow him to show that he informed the 
Government, through one of its most loyal 
friends, of the presence of these men in his 
house, and his suspicions in regard to them, 
would be to strip him of a complete and ad- 
missible defense. On the subject of such ac- 
tions—for this statement was an act—l read 
an authority from Russell on Crimes, vol. 2, 
p. 750: “When hearsay is introduced, not as 
a medium of proof, in order to establish a 
distinct fact, but as being in itself a part of 
the transaction in question, it is then admis- 
sible; for to exclude it might be to exclude 
the only evidence of which the nature of the 
case is capable. Thus, in Lord George Gor- 
don’s case, on a prosecution for high treason, 
it was held that the cry of the mob might be 
received in evidence as part of the transac- 
tion. (21 How. St. Tr. 535) And, generally 
speaking, declarations accompanying acts are 
admissible in evidence as showing the na- 
ture, character, and objects of such acts. 
Thus, when a person enters into land in 
order to take advantage of a forfeiture, to 
foreclose a mortgage, to defeat a disseizin, or 
the like, or changes his actual residence, or 
is upon a journey, or leaves his home, or 
returns thither, or remains abroad, or se- 
cretes himself, or, in fine, does any other 
act material to be understood, his declara- 
tions made at the time of the transaction, 
and expre'ssive of its character, motive, or 
object, are regarded as verbal acts indi- 
cating a present purpose and intention, and 
are therefore admitted in proof, like any 
other material facts. They are part of the 
res gestce.” 
In a note to this section, the learned Amer- 
ican editor of the work, Judge Sharswood, 
gives the following, among other decisions, 
in this country: “27ms, the declarations of 
the prisoner may be admitted, to account for his 
silence when that silence would operate against 
him. The United States v. Craig, 4 Wash. C. 
C. Rep. 729.” That is just the case here. 
“ Whenever the conduct of a person at a given 
time becomes the subject of inquiry, his expres- 
sions, as constituting a part of his conduct 
and indicating his intention, can not be re- 
jected as irrelevant, but are admissible as 
part of the res gestae. Tenney v. Evans, id 
New Hamp. 353.” 
It is to explain his silence up to the time 
of his making the communication to Dr- 
George Mudd, and to rebut the evidence of 
detective Lloyd as to his concealment, on the 
Tuesday following, of the fact that these two 
men had ever been at his house, that I pro- 
pose to introduce that statement in evidence. 
I am a practitioner of medicine in the 
village of Bryantown, Charles County, Md. 
Dr. Samuel A. Mudd was a student of medi- 
cine under me for many years. His father 
and ray father were first-cousins. I know 
his reputation in that neighborhood for peace, 
order, and good citizenship, and I know of 
none whose reputation is better. As a mas- 
ter, I have always considered him a humane 
man to his servants, as well as to others. 
He always, to my knowledge, clothed and 
fed his servants well, and treated them kindly, 
as far as I know. 
I was at Bryantown the Saturday, the 
15th, when the news of the assassination of 
the President reached there, and remained 
there all the evening. Lieutenant Dana, on 
whom I called for information, told me that 
the party who had attempted the assassina- 
tion of Secretary Seward was named Boyle, 
and claimed him to be the same party who 
assassinated Captain Watkins of Anne Arun- 
del County, and that the party who assas- 
sinated the President was supposed to be a 
man by the name of Booth, but that he 
thought he had not yet got out of Washing- 
ton. Boyle, who was known in our region 
of country, and had been there three or four 
weeks before, was a noted desperado and 
guerrilla. 
I was at church on Sunday, the 16th; it was 
then known that the President had been 
assassinated, but no one, to my knowledge, 
supposed that Booth had crossed the river; 
this at least was my impression; I did not 
make much inquiry relative to it. I saw Dr. 
Samuel Mudd at church. On returning home 
he overtook me, and I rode with him as far 
as his house. 
Q. State whether he said any thing to you 
about any persons having been at his house? 
The Judge Advocate. You need not an- 
swer that question. The Government has not 
introduced the declarations of the prisoner, 
Dr. Mudd, at that time. 
Mr. Ewing. I propose to offer that state- 
ment for the purpose of showing that Dr. 
George Mudd, a resident of Bryantown, and 
who 1 will prove is a man of unquestiona- 
ble loyalty, was informed by the prisoner at 
the bar that there were two suspicious per- 
sons at his house on Saturday morning; he 
told him of the circumstances of their coming 
there; expressed to him a desire that he 
should inform the military authorities, if he 
thought it advisable, of the fact of their 
having been there; stated to him that he 
wished him to take it direct to the mili- 
tary authorities, and not tell it at large 
about the streets, lest the parties or their 
friends might assassinate him for the dis- 
closure. 
1 can imagine no declaration of a prisoner 
This statement was made before he could 
have known that any suspicions were directed DEFENSE OF SAMUEL A. MUDD. 
207 
Against him. It was an act done during the 
une of that silence and alleged concealment, 
reason of which they seek to implicate 
mm as an accessory before and after the fact 
I? the assassination. That conversation with 
r- George Mudd accounts for the silence; 
hat conversation broke the silence. If the 
act of his having been silent is to be urged 
Against him, may not the fact that he broke 
he silence, and communicated all the facts 
the military authorities, be introduced in 
h® oehalf? I hope the Judge Advocate and 
.he Court will mark the fact that we do not 
Introduce this for the purpose of showing 
that what Dr. Mudd then said was true. We 
r° not introduce it for the purpose of explain- 
!ng any thing as to the presence of these men 
the house, or the acts they did there; we 
lntroduce it simply to show that he commu- 
nicated, as well as he could, to the military 
Authorities the fact of their presence, and at 
he same time gave the explanation of his 
Caution then and his silence before. No 
Authority could be more direct upon this 
burnt than the authority in United States v. 
"ra}9, 4 Washington Circuit Court Reports, 
"jUch is briefly stated in the note to Russell, 
'yhich I before read; “Thus, the declara- 
lons of a prisoner may be admitted to 
Account for his silence, where that silence 
w°uld operate against him.” 
The Judge Advocate. If the Court please, 
he principle here is almost too well settled 
obe the subject of discussion. While it is 
c°Urpetent for the Government to give in evi- 
uence declarations of a prisoner on trial, his 
c°ufessions, it is not competent for him to 
,° ; that is perfectly clear. But when 
jese confessions are introduced, he has a 
pght to insist that the whole of them shall 
.. given. Now, we have offered no declara- 
lous in evidence which were made by the 
Prisoner at the bar on Sunday, the day spoken 
01 by the witness. The ground, then, on 
Uch it is sought to introduce them is, 
'ut they are part of the res gestce. The res 
Pest® at that moment had been completed. 
b° res gestce in which he was involved, and 
bich is the subject of arraignment on the 
Purt of the Government, had closed the day 
cfore. That consisted in his having received 
nd entertained these men, and sent them on 
eir way rejoicing, having fed them, having 
j leg of the one whose leg was broken, 
Uiving comforted and strengthened and en- 
°uraged them, as far as his hospitality and 
Professional skill could do, to proceed on their 
PUrney. That is the res gestce, the transac- 
g*.0'.1 0n which the Government arraigns him, 
dnd that was complete at 4 o’clock on Satur- 
ay evening. Nowt, on a subsequent day, on 
Unday, after carefully reviewing his own con- 
j he proposes to introduce a line of dec- 
ration on his part, nearly twenty-four 
purs afterward, by which he seeks to relieve 
imself tjie imputation which the law at- 
-0 *6B to his previous conduct, which has 
been tbe subject of tbe testimony before this 
Court. I say it is not competent for him to 
do so; it is not competent for him to declare 
the motives by which his previous action 
was governed, because we have no means of 
reaching those motives; we have introduced 
no testimony in regard to them, and we have 
no means of doing so. The great principle 
which says that a criminal shall not manu- 
facture testimony for his own exculpation, 
intervenes and forbids that this Court shall 
hear that testimony. Any act of the pris- 
oner he may introduce, because in regard to 
that we ourselves can introduce testimony, 
but declarations which may have been framed 
upon careful review of his own conduct, solely 
for the purpose of his vindication against 
the accusation which he must have seen 
would arise from that conduct, can not be 
heard upon any principle of testimony what- 
ever. 
Mr. Ewing. The Judge Advocate says 
that the transaction was wholly closed. Not 
so. The charge here is a charge of conceal- 
ment, among others, and the concealment, as 
they have sought to prove it, was a conceal- 
ment not only of their presence while they 
were in the house, but a concealment, ex- 
tending until Tuesday or Friday, of the fact 
of their having been there. Two of the 
witnesses for the prosecution who went there 
on Tuesday—two out of the four—said, upon 
their examination in chief, that Dr. Mudd de- 
nied that two men had been at his house. 
That was part of the testimony for the pros- 
ecution. It was not irrelevant testimony; 
it was legitimately applicable to this charge 
of concealment, which is made in broad and 
general terms, and which applies as well to 
his concealing them while they were there as 
to his concealing their course after they left, 
and the fact that they had been there. In 
support of that charge of concealment, as I 
said before, they have introduced testimony 
that he denied on Tuesday that they had 
been there, and now they propose to exclude 
us from proving that he informed the Gov- 
ernment on Sunday that they had been there. 
It would be most unjust to exclude it, and 
contrary to the authorities which I have 
cited, one of which is explicitly and clearly 
in point. 
The Judge Advocate. If the gentleman 
will frame his question so as to bring out 
simply the conduct of the party in the act he 
did, 1 shall not object; but I must object to 
his declarations. 
Mr. Ewing. The question has been asked. 
I can not prove how lie informed the Gov- 
ernment without proving the words he used. 
If the witness were the Judge Advocate 
General, I could not prove that Dr. Mudd 
had informed him of their presence there 
without proving what he said to him. 
Assistant Judge Advocate Burnett. The 
question could certainly be asked, “ Did Dr. 
Samuel A. Mudd direct you to go to the 208 
THE CONSPIRACY TRIAL. 
authorities, and inform them that these 
parties had been there?” 
Mr. Ewing. I claim more than that; I 
claim the whole statement. 
tion to any other military authorities of the 
facts stated to you by Dr. Samuel A. Mudd? 
A. Yes, sir. After that, I was sent for to 
my house, I think, on Tuesday afternoon. 
There were four detectives, who asked me to 
go up in a room with them. They there 
questioned me ver3r particularly relative to 
this atfair. I stated to them what 1 have 
already stated here; and upon my inability 
to answer all their questions, they ordered 
their carriage and asked me to direct them 
the way to Dr. Samuel Mudd’s house, d 
accordingly went with them to Dr. Samuel 
Mudd’s house. Dr. Samuel Mudd was not 
in the house. I was outside of the door, and 
saw him coming, and told him, as he entered 
the house, that the detectives had come there 
for the purpose of ascertaining the particulars 
relative to that matter which he had spoken 
to me about, and that I had made the state- 
ment to the military authorities which he 
had made to me on Sunday, and that they 
were up there for the purpose of making 
special inquiry in reference to it. I had 
already stated to the detectives that I felt 
confident the Doctor would state the matter 
just as I had stated it to them, and would 
not and did not stay in there during their 
examination. 
The Commission sustained the objection of 
the Judge Advocate. 
By Mr. Ewing. 
Q. State whether you communicated to the 
military authorities in Bryantown the fact 
of any suspicious persons having been at 
the house of Dr. Samuel A. Mudd on Satur- 
day. 
A. I did to Lieutenant Dana, who was the 
principal in command of the military there 
at that time. 
Q. When did you communicate it to him ? 
A. I think it was on Monday morning. 
Q. What statement did you make to him ? 
A. I stated to him that Dr. Samuel A. 
Mudd had informed me that two suspicious 
parties came to his house a little before day- 
break on Saturday morning; and that one 
of them had, as he said, a broken leg, which 
Dr. Samuel Mudd bandaged; that they were 
laboring under some degree of excitement— 
more so, he thought, than should arise from 
a broken leg; that these parties stated that 
they came from Bryantown, and were inquir- 
ing the way to the Rev. Dr. Wilmer’s; that 
while there one of them called for a razor 
and shaved himself, thereby altering his ap- 
pearance; that he improvised a crutch or 
crutches for the broken-legged man, and 
that they went in the direction of Parson 
Wilmer’s. 
Q. Can you name the officers that went 
with you? 
A. Lieutenant Lovett, John Lloyd, Gavacan, 
an Irishman, and Williams was the fourth. 
After their conversation with Dr. Samuel 
Mudd, I think just before they got into their 
conveyance, they asked me if 1 could direct 
them the way to Parson Wilmer’s. It was 
then nearly night. I told them I certainly 
would, and turning to Dr. Samuel Mudd, 
who was standing outside the door, I asked 
him what was the best road to Parson Wh- 
iner’s, which he told me, and also stated that 
there was a bad bridge on that way, which 
I remember very well. 
Before we got to the main road leading to 
Bryantown, these officers concluded, in con- 
sequence, it seems, of my stating to them that 
it was very little out of the way, to go back 
by Bryantown to Parson Wilmer’s—to go 
that way, being a much better road, as I 
thought. Nothing, to my knowledge, was 
said by either of those officers about Dr- 
Samuel Mudd having denied that the two 
men had been at his house. 
Q. Did you have any conversation with 
Dr. Samuel Mudd at the church, or hear 
his conversation, as to what he knew of the 
assassination ? 
I also told the officer that Dr. Samuel 
Mudd went from his house with the younger 
of the two men to try and procure a carriage 
to take them away from his house; that he 
went down the road toward Bryantown and 
failed to get one, and that they left his house 
on horseback. I told him that one bone of 
the man’s leg was broken, said by him to 
have been by a fall from his horse. All this 
information I received from Dr. Samuel 
A. Mudd. 
When I was leaving Dr. Samuel Mudd, I 
told him I would mention the matter to the 
military authorities at Bryantown, to see what 
could be made of it. He told me he would be 
glad if I would ; but that, if I could make the 
arrangements, he would much prefer that he 
be sent for, and that he would give every in- 
formation in his power relative to it; that, 
if it became a matter of publicity, he feared 
for his life, on account of guerrillas that 
might be infesting the neighborhood. 
Q. By whose authority did you make the 
communication to him ? 
A. The mentioning of that matter to me, 
or any other matter bearing on an assassina- 
tion, particularly such an assassination as 
the country and the world now mourn, was 
my warrant and authority from him, or any- 
body else who knew me. 
Q. Did you make any other communica- 
A. No, sir; I heard—• 
Assistant Judge Advocate Bingham. You 
need not state any thing you heard him say 
there. 
Mr. Ewing. I think it admissible, as ex- 
planatory of the conduct of the accused 
during the very .time of the occurrence ot 
the offenses charged—because, as I said be- 
fore, one of the offenses charged is conceal' DEFENSE OF SAMUEL A. MUDD. 
209 
ment, which relates beyond that Sunday—as 
showing his frame of mind, his information, 
ms conduct. 
Assistant Judge Advocate Bingham. If 
the Court please, that is not the point here. 
Supposing the declaration to be that he did 
not know any thing about them; the gentle- 
man claims here to prove, on his own motion, 
the declarations of Dr. Mudd on Sunday at 
Church. If we had introduced any declara- 
tions of Dr. Mudd at that time and place, I 
ndmit the well-known rule of law is that 
whatever he said, and all that he said at 
that time, is admissible on his motion ; what 
've did not give, he would have a right to 
give; but I deny that there is any authority 
tor introducing testimony of this sort as to 
ms declarations at that time about this trans- 
action. That is the question now. The 
gentleman read a while ago from a text that 
everybody is familiar with, which has rela- 
tion to the declarations of third persons not 
parties to the record. There is not one single 
in that text which he read which sustains 
aay position he assumes here in regard to 
this matter. I desire to read the rule that 
does apply in regard to the prisoner on trial 
and his declarations—Wharton’s American 
Criminal Law, vol. 1., p. 358, sec. 699: “De- 
clarations made by a prisoner in his own 
favor, unless part of the res gestce, are not 
admissible for the defense. Thus, on an in- 
dictment for larceny, the defendant can not 
give in evidence his declarations, at the time 
°f the arrest, of his claims of ownership in 
the property taken; and on an indictment 
againsf a prisoner for having in his posses- 
sion coining tools, with intent to use them, 
he can not give in evidence his declaration 
to an artificer, at the time he employed him 
f° make such instruments, as to the purpose 
for which he wished them made. One in- 
dicted for murder can not give in evidence 
bis own conversations had after going half 
a mile from the place of murder; and so, 
too, when a prisoner, in conversation with a 
witness, admitted the existence of a particular 
fact, which tended strongly to establish his 
guilt, but coupled it with an explanation 
'vhich, if true, would exculpate him, it was 
held that the accused could not show that 
ae had made the same statement and expla- 
bation to others.” 
. So it goes on all the way through. That 
18 the law in regard to the matter. The 
[pan’s declarations at the time he committed 
hat murder, being a part of the transaction, 
Were admissible; but after he had gone half 
a mile they were inadmissible. Here is a 
Party charged with harboring, concealing, 
abd comforting a man, knowing him to be 
me murderer of the President of the United 
fates. What he said in connection with 
“he fact of his harboring and concealing 
him at the time to these parties, he has a 
[|ght to prove, because we have brought out 
mat evidence ourselves. If he said any thing 
in addition to what we have proved, he has 
a right to bring it out. Everybody knows 
that. But we have introduced no evidence 
whatever of what he said on Sunday at 
church. If we had introduced any evidence 
of that sort, I admit that, on the principles 
I have before stated, the accused would have 
a right to give in evidence all that he said 
at that time and place; but we have not 
offered any such evidence. If he is allowed 
to introduce his declarations on Sunday 
in regard to that transaction, and all that 
he said then—because the question implies 
that the witness is to tell all he did say— 
then he is to be allowed to introduce every 
declaration he may have made from that 
Sunday to ,this day, to everybody, and- at 
every place; and, as I have before stated to 
the Court, on that subject, the law has 
hedged itself about so that criminals shall 
not make evidence, at their pleasure, in their 
own behalf, and adduce it in court to excul- 
pate themselves from crime. If there were 
such a rule as that, there would be an end 
to the administration of justice, provided the 
courts should give credence to such testi- 
mony. 
Mr. Ewing. I wish to call the attention 
of the Court specially to the fact that the 
declaration as to which I am now inquiring 
was made during the time of the alleged 
commission of the offense of concealment. 
The offense of concealment, as charged, and 
as attempted to be sustained by the proof on 
the part of the Government, was a conceal- 
ment after the fact of the persons having been 
there, and of the route which they took; in 
other words, a concealment after their de- 
parture as well as during their stay. Ac- 
cording to the theory of the prosecution, he 
was committing that offense during all the 
time, from Saturday till the following Tues- 
day; and I say his declarations at the time 
of the alleged commission of the offense are 
admissible. The declaration now inquired 
about was on Sunday, showing his knowl- 
edge and frame of mind with reference to the 
assassination, and therefore I think it ad- 
missible. I assure the Court that I do not 
wish to take up its time by pressing upon 
it irrelevant or inadmissible testimony; and 
if I seem pertinacious, it is only because I 
think we have a right to show what is here 
offered, I ask the decision of the Court on 
the objection. 
The Commission sustained the objection 
of the Judge Advocate. 
Witness. I am acquainted with Daniel 
J. Thomas. His reputation for veracity has 
been bad ever since I have known him, and 
I have known him since he was a boy. 
From my knowledge of his character for 
veracity, I would not, if he had a motive to 
misstate facts, believe him under oath. I 
consider him an insane man. 
I have seen him manifest a sufficiently ab- 
normal condition of mind as would confer in 210 
THE CONSPIRACY TRIAL. 
the courts irresponsibility for a criminal act. 
He is not always so insane as this, however. 
There seem to have been exacerbations and 
remissions in his manifestations of insanity. 
Sometimes I have met him when he was not 
in a more disordered condition of mind than 
would indicate eccentricity. 
sons who were in sympathy with the South. 
I have generally considered him as very tem- 
perate in his discussions and expressions 
relative to the war. He has contended for 
the right or legality of secession, but has 
generally spoken temperately, never using 
abusive or opprobrious epithets toward the 
heads of the Government. In saying that 
he was very temperate in this regard, I must 
add, if I may be allowed, that he was very 
much more so than many of the citizens of 
benighted Charles County, in Southern Mary- 
land. 
By the Court. 
Q. What is the form of insanity under 
which Mr. Thomas labors? 
A. There is no specific form that I know of, 
except at times a peculiar excitement and in- 
ability to appreciate matters and things as 
other people do. It is not dementia; it is not 
a monomania; it is not what is called aber- 
ration of mind. There are certain forms of 
insanity which exacerbate and remit, and are 
known by no specific name as any particular 
form of insanity. 
Q. Do you think the form of insanity under 
which he is laboring would lead him to im- 
agine that he heard a conversation, for in- 
stance, that he never did hear ? 
A. I have seen him in a mood of mind 
when I would not doubt but that he would 
be so insane. 
Q. Were there not certain local military or- 
ganizations in that neighborhood in the early 
part of the war? What was their object? 
A. There was an organization at Port To- 
bacco, the object of which, I think, was 
treasonable. I think it probable, but I am 
not satisfied of that; that was my impression 
at the time, though it was said it was for the 
purpose of quelling insurrections, etc., in the 
neighborhood. It may have been so. I 
have regarded Dr. Samuel Mudd, for several 
months prior to the fall of Richmond and the 
surrender of the rebel army of Lee, as taking 
a very handsome prospective view of the 
downfall of the rebellion. I remember ad- 
ministering an oath to him last year, and 
was forcibly impressed with the respect and 
reverence with which he took the oath, mak- 
ing a decided contrast from many others to 
whom I administered the oath on that occa- 
sion; and, so far as 1 know, he has abided 
the provisions of that oath. 
Q. Would he fancy that he heard some- 
thing said that was not said? 
A. Yes, sir; I have known him to labor 
under the most decided delusions and hallu- 
cinations. 
Q. Have you known him to narrate things 
which might have occurred, and which he 
might have heard, that to your knowledge 
were purely imaginary, and that he never did 
hear? 
By Mr. Ewikg. 
A. Yes, sir, oftentimes. 
Q. How long have you entertained the 
opinion that Mr. Thomas was not of sound 
mind? 
I administered the oath to Dr. Samuel 
Mudd, if I remember rightly, when the sense 
of the people was taken relative to the calling 
of a convention to frame a new constitution 
for the State of Maryland, in June or July 
of last year—l do not remember—or it may 
have been earlier. I was improvised by two 
of the judges as the chief judge of the elec- 
tion that day, in the absence of the judge. 
I think I administered the oath to some two 
hundred that day. From and after that time, 
if not before, he has spoken of the downfall 
of the rebellion as being assured. 
A. I went to a family school in our neigh- 
borhood with Mr. Thomas when he was a 
small boy. I was his senior, perhaps, four or 
five years. There was something very ec- 
centric and amusing about him at that time, 
different from other boys, and he was a source 
of amusement in the way of eccentricity to 
his schoolmates. Seven or eight years ago, 
or perhaps longer than that, his insane 
condition of mind seemed to manifest itself 
in the estimation of almost everybody in 
our neighborhood. The common expression 
was that Dan Thomas was crazy. I have 
entertained that opinion for seven or eight 
years, and expressed it over and over again 
before the war. I have not known of his 
being objected to as a witness before a court 
of justice, on the ground that he was not of 
sound mind, and I have known him to testify 
under oath on one occasion. 
With respect to the reputation of Samuel 
Mudd for loyalty, from my association with 
him, I have to consider him as sympathizing 
with the South. I never knew, however, of 
any disloyal or treasonable act of his, nor did 
I ever know of his harboring rebels or per- 
Recalled for the Defense.—June 9. 
The Judge Advocate. This witness is 
recalled by the defense to prove what was 
rejected the other day by the Court on .ob- 
jection—the declarations made by the pris- 
oner, Dr. Mudd, on Sunday at church, in 
regard to the two suspicious men having 
Wfeen at his house. Although I think that 
the admission of such statement to be irreg- 
ular, yet wishing that the Court shall have 
the benefit of every thing which can possibly 
aid it in arriving at a correct conclusion, I 
am willing that the statements of the pris- 
oner, made the day after these men had left 
his house, shall be heard, and taken for what 
they are worth. DEFENSE OF SAMUEL A. MUDD. 
211 
Witness. I had very little conversation 
with Dr. Mudd at church. He remarked 
that he regarded the assassination of the 
President, to use his own expression, as a 
dost damnable act. He overtook me on the 
road after church, and stated to me that two 
suspicious persons had been at his house; 
that they came there on Saturday morning a 
little while before daybreak; that one of 
them had a broken leg, or a broken bone in 
the leg, which he bandaged; that they got 
while there something to eat; that they 
Seemed laboring under some degree, or prob- 
ably quite a degree, of excitement—more ex- 
citement than probably should necessarily 
result from the injury received; that they 
said they came from Bryantown, and were in- 
quiring the way to Parson Wilmer’s; that 
while there one of them called for a razor, and 
shaved himself; I do not remember whether 
be said shaved his whiskers or moustache, 
hut altered somewhat, or probably materially 
altered, his features; he did not say which it 
Was that had shaved himself; that he him- 
self, in company with the younger one, or 
the smaller one of the two, went down the 
road toward Bryantown, in search of a vehicle 
to take them away from his house; that he 
arranged or had fixed for them a crutch or 
crutches (I do not remember which) for the 
broken-legged man; and that they went away 
from his house, on horseback, in the direc- 
tion of Parson Wilmer’s. Ido not think he 
stated what time thev went. 
service commenced, which usually begins 
about 10 o’clock. 
Q. Will you state whether or not Dr. 
Samuel Mudd there mentioned any thing 
about two suspicious persons having been at 
his house on Saturday morning? 
Assistant Judge Advocate Binoham. I 
object to Dr. Mudd giving his declarations, 
what he said on Sunday morning at church. 
Mr. Ewing. It is like the evidence of his 
informing Dr. George Mudd of the presence 
of those suspicious persons at his house, 
which the Court refused to allow to be given 
in evidence; and which, for the reasons that 
I then very fully stated, I then thought, and 
still think, a most important item of testi- 
mony, and one most clearly admissible. 
Assistant Judge Advocate Bingham. I 
have heretofore stated to the Court the 
ground of the objection. It is this: that it 
is the declaration of the prisoner himself, at 
a time and place about which the prosecu- 
tion has given no evidence at all ; to-wit, his 
declarations on Sunday at church. 
Mr. Ewing. But it is during the alleged 
commission of the crime of concealment, and 
it is evidence of his having broken that si- 
lence, for which they propose to convict him 
of complicity in the crime. 
Assistant Judge Advocate Bingham. There 
is no allegation of time in the charge or speci- 
fication that is important. The matter of 
time becomes important by the evidence, and 
the evidence of the prosecution has not gone 
to any thing he said or did on Sunday. 
Mr. Ewing. But the evidence of the prose- 
cution has gone, with one witness, to the fact 
of his having, as late as Tuesday, concealed 
the fact of the presence of two suspicious 
persons a£ his house. 
Assistant Judge Advocate Bingham. The 
evidence has gone to Tuesday as to what he 
said. 
. When I was about leaving him, he turning 
|nto his house, I told him that 1 would state 
*£ to the military authorities, and see if any 
thing could be made of it. He told me that he 
be glad if I would, or that he particu- 
larly wished me to do it; but he would much 
Prefer if I could make the arrangement for 
him to be sent for, and he would give every 
information in his power relative to the mat- 
tor; that, if suspicions were warrantable, he 
feared for his life on account of guerrillas 
that were, or might be, in the neighbor- 
hood. 
This was about half-past 11 o’clock in the 
ferenoon, and when I parted with him, I was 
w*thin fifty yards of his house. 
As I left Dr. Samuel Mudd, I went toward 
■bryantown. I dined at his father’s house 
that day, and on my way toward Bryantown 
stopped to see a patient, and it was night- 
nll Before I got to the village of Bryantown. 
’'bat Dr. Samuel Mudd had told me I com- 
municated to the military authorities at Bry- 
nntown next morning. 
Assistant Judge Advocate Burnett. As 
to his misstating the facts— 
Mr. Ewing. As to his concealing the fact 
and denying it. 
Assistant Judge Advocate Bingham. As 
to what he said ; and all he said on Tuesday 
at that time and place of course is admissi- 
ble ; but that is not Sunday. 
The Commission sustained the objection. 
Recalled for the Defense.—June 9. 
The Judge Advocate. This witness is 
here to prove the declarations made at church 
by the prisoner, Dr. Mudd, on the Sunday 
after the assassination. The statement is al- 
lowed for the reason stated with respect to 
the testimony of the previous witness. 
Benjamin Gardiner. 
For the Defense.—June 5. 
By Mr. Ewing. 
s 1 saw Dr. Samuel Mudd at church on the 
unday after the assassination. I saw him 
h conversation with his neighbors before the 
I had heard on Saturday evening of the 
assassination, but it was in such a way that 
I did not believe it. As I got to church on 
Sunday morning, I saw the people collected 
together in the church-yard talking in appar- 
By Mr. Ewing. 212 
THE CONSPIRACY TRIAL. 
ently earnest conversation. It turned out to 
be about the assassination of the President. 
As I advanced toward the church, I happened 
to go where Dr. Samuel Mudd was. I walked 
up to where he was, and spoke to him, and 
he spoke to me. I asked him if it was a fact 
that the President had been assassinated. 
Pie then turned around to me from the crowd 
and said, “Yes, such seems to be the fact; ” 
and he added, “Sir, we ought to immediately 
raise a home guard, and to hunt up all sus- 
picious persons passing through our section 
of country and arrest them, and deliver them 
up to the proper authorities; for there were 
two suspicious persons at my house yester- 
day morning ” I paid no particular atten- 
tion to what he said about suspicious per- 
sons, because since the war commenced we 
have always had in our neighborhood de- 
serted soldiers constantly, and detectives and 
soldiers of the United States, and we could 
hardly tell who they were. 
Whether Dr. Mudd said any thing further 
about the assassination or not, I can not tell. 
Everybody was talking about it until church 
commenced, and I can not tell whether he 
said any thing more, or if what I heard was 
said by others. 
met Dr. George Mudd just at the end of his 
kitchen. 
Q. State what Dr. George Mudd told Dr. 
Samuel Mudd. 
Assistant Judge Advocate Bingham. I ob- 
ject to the question. 
Mr. Ewing. May it please the Court, one 
of those four officers who testified, contra- 
dicting the others, it is true, stated that Dr. 
Samuel Mudd, on that visit, denied that there 
had been any persons at his house on Satur- 
day morning. We have proved, in a round- 
about sort of a way, owing to the objections 
that were made, (but still it is proved,) that 
Dr. Samuel Mudd informed Dr. George Mudd, 
on Sunday, that there were two suspicious 
persons at his house on Saturday morning, 
and requested him to communicate the fact 
to the military authorities, and have him sent 
for, if necessary, to give further information on 
the subject. One, or perhaps more, of those 
persons who went with Lieutenant Lovett 
spoke of the fact of Dr. George Mudd having 
a short conversation with Dr. Samuel Mudd 
outside the door, before Dr. Samuel Mudd 
saw the officer and the detectives. I wish to 
prove by this witness that Dr..George Mudd’s 
whole conversation with Dr. Samuel Mudd 
was, that, in pursuance of the information 
which Dr. Samuel Mudd had given him on 
Sunday, and of his request, he had commu- 
nicated the facts that Dr. Samuel Mudd 
stated to him to this officer and the detec- 
tives, and that they had come for the purpose 
of questioning him upon the subject. The 
purpose of this evidence is twofold : first, to 
show that Dr. Samuel Mudd knew that these 
parties had been acquainted by Dr. George 
Mudd with the circumstance of those two 
suspicious persons having been at Dr. Samuel 
Mudd’s house on Saturday morning, for the 
purpose of showing that he could not, after 
that, as a rational man, have gone into the 
room and denied that there were two persons 
in his house on Saturday morning; second, 
to show that the conversation was not one 
that was in any manner objectionable, but, 
on the contrary, in strict pursuance of the 
request of Dr. Samuel Mudd, and that that 
was all there was of it. It is true, it is a 
conversation of Dr. George Mudd with the 
accused. I do not wish to prove any thing 
the accused said; I wish to prove merely 
what Dr. George Mudd stated to him, to 
show the information he had as to the pur- 
pose of this visit, and as to the knowledge 
of the visitors with reference to those per- 
sons, before he entered the room to have his 
conversation with them. 
Assistant Judge Advocate Bingham. The 
witness is asked to state what a third person 
told the prisoner at the bar, and that I object 
to as utterly incompetent. 
The Commission sustained the objection./ 
Witness. Dr. Samuel Mudd did not betray 
the least unwillingness to go to the house to 
see the officer, or manifest any alarm. 
Daniel E. Monroe. 
For the Defense.—June 10. 
On Sunday, the 16th of April, I heard at 
Bryantown, from Mr. William Henry Moore, 
that the man who had assassinated the Presi- 
dent was Edwin Booth. Mr. Moore had come 
from Bryantown that morning. It was about 
10 o’clock in the morning that I heard this. 
Mr. Philip A. Lasser and Mr. Warren were 
present when Mr. Moore told me. I think 
he said he heard it from the soldiers. It was 
some time afterward that I heard the assas- 
sins had been traced near Bryantown. 
I know Daniel J. Thomas by reputation. 
The neighbors generally think he is very un- 
truthful. This is not the opinion of one 
party, but of the community generally. From 
that reputation I could not believe him under 
oath. 
I approved of the efforts of the Federal 
Government in its suppression of the rebel- 
lion under the Constitution as it formerly 
stood. I did not approve of the manner in 
which slavery was abolished. In the last 
Presidential election I used my influence in 
favor of Lincoln and Johnson. 
John F. Dayis. 
Recalled for the Defense.—June 6. 
I was at Dr. Samuel Mudd’s house on the 
Tuesday following the assassination of the 
President. I went into the field and informed 
him that Lieutenant Lovett and a party of 
soldiers were at his house, and had come to 
see him. When I came up to the house I 
met Dr. George Mudd. Dr. Samuel Mudd DEFENSE OF SAMUEL A. MUDD. 
213 
John F. Hardy. 
Key. Charles H. Stonestreet. 
For the Defense.—May 29. 
Recalled for the Defense.—June 10. 
By Mr. Ewing. 
In the year 1850, I was the President of 
Frederick College, in Frederick City, Mary- 
land, and the accused, Samuel A. Mudd, 
was a pupil there. I have recently seen the 
book, kept by myself, in which his name is 
entered. At the close of 1850, in December, 
I think, I was transferred to Georgetown 
College, and I am under the impression that 
he was there when I left. 
At Frederick College we had one princi- 
pal vacation, commencing in July and con- 
tinuing during August; other vacations were 
only for a few days, during which those 
pupils that resided at a distance of a hun- 
dred miles or so from College did not go 
home. 
By Mr. Ewing. 
I live in Charles County, about two miles 
and a half from Bryantown. I was with Dr. 
Samuel Mudd on Friday, a week after the 
assassination of the President; we dined to- 
gether at his father’s. While there a mes- 
senger came for Dr. Samuel Mudd to go 
to his house. I went with him, and met 
there Lieutenant Lovett in Dr. Mudd’s yard. 
Dr. Mudd introduced Lieutenant Lovett to 
me. When we got into the house, Dr. Mudd 
told the Lieutenant that there was a boot 
there, and asked him if he wanted it. Lieu- 
tenant Lovett said he did. No inquiry had 
been addressed to him about the boot, or 
any thing said in my hearing about it before 
that. Dr. Mudd’s wife said that she had 
found the boot under the bed, in dusting up 
the room a day or two after the men left. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
There were no holidays in the fall, and 
only a few days recess at Christmas. I can 
not say certainly that Dr. Mudd was there 
in December. It was the rule not to go 
away during the temporary vacation, and 
pupils could not go without the authority of 
the President. 
By Assistant Judge Advocate Burnett. 
There was no word said about searching 
the house before Dr. Mudd spoke of the 
boot When we got to the house, I counted 
twenty-eight horses belonging to the soldiers. 
I do not know what had occurred in the 
bouse before we got there. I think it was 
Mr. Davis who sent for Dr. Mudd while at 
bis father’s. 
L. A. Gobright. 
By Mr. Ewing. 
For the Defense.—June 10. 
By Mr. Ewing. 
Dr. Mudd himself gave the boot to the 
officer. Ido not think Dr. Mudd had any 
conversation with anybody before the fact of 
the boot being there was mentioned to the 
officer. 
I am telegraphic correspondent of the As- 
sociated Press. I was at Ford’s Theater on 
the night of the 14th of April, after the 
assassination of the President, and heard 
some persons say positively that it was J, 
Wilkes Booth who was the assassin, while 
others said they knew J. Wilkes Booth, and 
that the man who jumped upon the stage 
and made his exit differed somewhat in ap- 
pearance from Booth. So far as I could 
ascertain, there did not seem to be any cer- 
tainty at that time, and I was not thoroughly 
satisfied in my own mind that night as to 
who was the assassin. 
Jane Herold 
Recalled for the Defense.—June 9. 
By Mr. Ewing. 
I live on Eighth Street, east, in this city, 
not a hundred yards from the Navy Yard 
Sate, and about a quarter of a mile from 
fbe Navy Yard bridge. I have lived there 
eighteen years. It is not on the direct route 
from the city to the bridge, but it is on one 
that is very much used. 
I am not acquainted with the prisoner, 
Dr. Samuel A. Mudd; I never heard him 
ePoken of in our house, nor by my brother. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
I was not perfectly satisfied that night 
that it was J. Wilkes Booth who had killed 
the President. It was telegraphed over the 
country that he was the assassin, but not by 
me; I could tell by whom, if necessary. 
I saw the official bulletin the next 
morning, I came to the conclusion that J. 
Wilkes Booth was the man. 
Mrs. Mary E. Nelson. 
For the Defense.—June 9. 
David E. Herold, one of the accused, is 
brother. I never heard him speak of 
Dr. Samuel A. Mudd, and never heard the 
name mentioned in the family until his 
arrest 
By Mr. Ewing. 
James Judson Jarboe. 
For the Defense.—June 7. 
I live in Prince George’s County. I am 
usually called Judson Jarboe. I and my 214 
THE CONSPIRACY TRIAL. 
brother, William Jarboe, are tbe only adults 
of that name in Prince George’s County. I 
do not know and never saw Dr. Samuel 
Mudd before his arrest. I saw Mrs. Surratt 
some time in April, since her arrest; I had 
not seen her before that for two or three 
years. I have never been at her house on 
II Street, nor have I ever met her daughter 
at any house in Washington. 
I have known Mr. Evans for several 
years; he used to live in my neighborhood, 
and attend a Methodist Church there; I used 
to see him passing. I have not seen him 
for a year or two, certainly, till two or three 
weeks before my arrest. I was standing at 
the corner of Ninth and G Streets, when 
Mr. Evans passed by me, walking. I had 
not seen him before, I think, for a year or 
two. 
A. 0, no, sir; I could not expect that. 
Q. Did you want it, whether you expected 
it or not ? Did you want this rebellion—this 
Southern Confederacy, if you please—to tri- 
umph ? 
Mr. Ewing. I will state to the witness 
that he has the privilege of declining to an- 
swer. Ido not care about interfering further 
than that. What I called him to, was one 
single question of fact. 
Assistant Judge Advocate Bingham. I have 
already stated to the witness that if he thinks 
his answer to any question will criminate 
him, he can say so, and decline to answer. 
The Judge Advocate. I do not think a 
mere wish is such criminality as should be 
protected from exposure. 
Mr. Ewing. I think this a species of in- 
quisition, which counsel ought not to indulge 
in. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
The Judge Advocate. Loyalty is a ques- 
tion of feeling and conviction, as well as of 
action. 
I know John H. Surratt, but have not 
met him very often. I met him on Seventh 
Street, in this city, I believe, some time in 
March last. It was at the restaurant nearly 
opposite Odd Fellows Hall. There were 
several gentlemen with Surratt. I just spoke 
to him, passed the time of day, and passed 
on. I do not know the persons who were 
with him. I do not know John Wilkes 
Booth. I have seen David E. Herold; I 
recognize him among the prisoners. He 
was not with Surratt when I saw him at 
the restaurant. I have not, to my knowl- 
edge, met Surratt since. Before that I passed 
Surratt on the road some time last fall; he 
was riding alone. 
I was arrested on the 15th of April. I 
do not know that I have been charged with 
any disloyal conduct down in Maryland, 
.nor do 1 know for what I was arrested. On 
the night I was arrested, I was asked some 
questions by Major Wooster, at Fort Baker, 
I think. He asked me about a man by the 
name of Boyle, and if I had not harbored 
him. I told him I had not. Boyle, he said, 
was charged with assassination and horse- 
stealing. I think he said Boyle had killed 
a Captain Watkins. 
I knew Boyle when he was a boy, but I 
have not seen him for four years. I know 
he was not harbored on my premises. 
Q. How have you stood yourself in rela- 
tion to this rebellion since it broke out? 
A. I do not exactly understand you. 
Q. Have you made any declarations against 
the Government of your country since this 
rebellion broke out ? 
A. No, sir. 
Q. Have you in any glorification 
down in Prince George’s County, Maryland, 
over rebel victories ? 
Assistant Judge Advocate Bingham. If the 
witness thinks it will criminate him to make 
a full and complete answer, he can say so. 
If he does not think it will criminate him, 
he must answer the question. 
Witness. I hardly know what would 
criminate me here. 
Q. I should like to know whether it is your 
opinion that the Southern Confederation was 
criminal or not? 
A. I do not know much about it. 
Q. Have you not expressed yourself that 
it was all right? 
A. What was all right? 
Q. The Southern Confederacy and the re- 
bellion ? 
A. I do not think that I did. 
Q. Did you not think that? 
A. I think a good many things. 
Q. State whether you made an assault upon 
a man at the election about four years ago, 
and what you did to him. 
A. Are you going to try me for that? 
Q. No; but I ask you the question? 
A. I have been tried for that same offense 
twice. 
Q. State whether you made an attack, 
about four years ago, at the time of the elec- 
tion, on a Union man down there, and killed 
him. 
A. There was a pretty smart attack made 
upon me. 
Q. What became of the man? 
A. It would be very hard for me to tell 
Q. Was he killed or not at the time? 
A. I understood that he was. 
Q. Do you not know who did it? 
A, No, I do not know exactly who did it. 
Q. Do you know whether you had a hand 
in killing him? 
A. I do not know. I have answered all 
the questions so often that— 
A. No, sir. 
Q. Have you wished for the success of the 
rebellion ? DEFENSE OF SAMUEL A. MUDD. 
215 
Q. You can answer that question or let 
)t alone. If you say you can not answer 
it without criminating yourself, you need 
not. 
questions, and snapping him up when he 
started to answer, and undertaking to present 
to the Court the impression from his answers 
that he was a felon, and then not allowing 
the witness to state that he was tried for the 
offense alleged against him, in a high court 
of the country, and was acquitted. That is 
not fair. And, more than that, the gentle- 
man is certainly wrong. He drew out of the 
witness, on cross-examination, the fact that 
he was tried. Now, I want to know where 
he was tried. I want to know whether there 
was a solemn inquiry into it; and whether 
he was tried in a high court. 
Assistant Judge Advocate Bingham. 
Whether I badgered the witness or the wit- 
ness badgered me and justice both, is a ques- 
tion that will appear by the record. The 
point I make is, that I never asked this wit- 
ness a question tvhether he was tried. 
Mr. Ewing. You drew it out. 
A. I have answered that several times. 
Q. You have not answered me yet. 
A. I have answered these questions before 
other courts; I have been asked these ques- 
tions over and over. 
Q. Did you kill him, or did somebody else 
kill him ? 
A. I can not tell you whether some one, 
else did it. 
Q. Did you have a hand in it? 
No answer. 
Q. Where was it that this man was killed? 
A. 1 understood that he was killed at the 
election. 
Q. Do you not know the man was killed ? 
Were you not there? 
No answer. 
Q. What was the man’s name that was 
killed ? 
Assistant Judge Advocate Bingham. I did 
not draw it out of him. What I tried to 
draw out of him was legitimate; but as the 
gentleman chooses to arraign me here— 
Mr. Ewing. I take that back. 
No answer. 
Assistant Judge Advocate Bingham. I 
shall not insist on an answer. If you do not 
wish to answer, you need not answer. It is 
your privilege to decline or do so. 
Assistant Judge Advocate Bingham. lam 
glad of it. Holding myself as the humblest 
man here, I beg leave to say, in vindication 
of my conduct, that there is not a law book 
on evidence fit to be brought into a court of 
justice, which does not say that I had the 
right to ask him whether he had been guilty 
of murder; and I am not going to let this 
witness go away from this court with the 
impression that I have invaded any right of 
his. I had a right to ask him whether he 
was guilty of murder, and he had a right, as 
I told him, to refuse to answer it if he saw 
fit. Now, what I say to the Court is, that 
he never answered my questions. 
Mr. Ewing. You did not ask him whether 
he was guilty of murder. 
Assistant Judge Advocate Bingham. I 
asked him whether he killed a man, and 
whether he had any thing to do with it. 
Mr. Ewing. That is not necessarily mur- 
der. 
Q. Have you any statement you wish to 
ttiake in regard to the difficulty about which 
the Judge Advocate has been questioning 
you? If you have any thing to say to the 
Court, say it. 
A. Well, I do not know. If the Judge 
Wants to know all the particulars about 
it— 
By Mr. Ewing. 
Assistant Judge Advocate Bingham. Ido 
not insist on knowing any more. You have 
declined to answer, as is your right. 
Witness. I have answered these questions 
before, and have been tried for that thing by 
°ur courts. 
Mr. Ewing. What was the result ? 
Assistant Judge Advocate Bingham. You 
need not state. 
Witness. I was acquitted. • 
Assistant Judge Advocate Bingham. I 
object to all that. 
Mr. Ewing. You have been going into the 
Question whether he was tried or not, and I 
agk him the question in what court he was 
tried. 
Assistant Judge Advocate Bingham. The 
gentleman has made an issue with me. I 
deny his assertion. 
Mr. Ewing. The witness can state in what 
c°urt he was tried. 
Assistant Judge Advocate Bingham. He 
Can not state where. I did not ask him in 
what court he was tried. He chose not to 
answer my questions, and that was all. 
Mr. Ewing. If the Court please, I think 
tbe character of the cross-examination of 
“ds witness has been most extraordinary, 
Catching the witness, badgering him with 
Assistant Judge Advocate Bingham. If I 
may ask whether he was guilty of murder, I 
may ask him whether he killed a man. 
Mr. Ewing. You did notask him whether 
he had committed murder. 
Assistant Judge Advocate Bingham. The 
greater includes the less. 
Mr. Ewing. But you asked the less. 
Assistant Judge Advocate Bingham. What 
I say is that the law authorized me to ask 
squarely whether he was guilty of murder, 
and he is not to go out of court with the 
impression that I have invaded any rights of 
his. I never asked him about any trials. 
He did not answer my questions. He had a 
right not to answer them, but I never asked 
him about trials at all. He never stated 
whether he had killed the man; he did not 
even state whether he had a hand in killing 216 
THE CONSPIRACY TRIAL. 
the man, and ne would not tell me whether 
the man was killed at all or not. Now, in 
that stage of the case, upon that record, the 
gentleman proposes to prove by parol evi- 
dence what appears on record. The man 
has not admitted yet that anybody was killed; 
and if nobody was killed, how could he be 
tried ? Then, in the next place, if he was 
tried, how are you going to prove it by pa- 
rol ? We have not the benefit of any testi- 
mony on the subject. The truth is, Ido the 
witness the justice to say that he has not an- 
swered my question at all. He has not stated 
tnat the man was killed; he has stated that 
he understood he was killed. He would 
not state that he himself had a hand in it, 
and he would not state that he knows the 
man’s name. That is the way it stands, and 
I object to any thing further about it. 
Mr. Ewing. He has stated that he was 
tried, and I now ask him in what court? 
Assistant Judge Advocate Bingham. I did 
not ask him if he was tried. 
Q. What were you tried for? Were you 
tried for murder? 
A. Well, if I understand the case aright, 1 
do not think— 
Q. Were you charged in that case with the 
murder of a Union man? 
A. 1 do not know whether he was a Union 
man or not. 
Q. Was he called a Union man? 
A. That I do not know. 
Q. But you were tried for murder 
No answer. 
Q. In what county ? 
A. Prince George’s. 
Q. When? 
A. I do not recollect exactly when it was. 
Q. Since this rebellion broke out ? 
A. Yes, I think it was somewhere about 
the first of the war. 
Henry Burden. 
For the Defense.—June. 8. 
By Mr. Doster. 
Mr. Ewing. He stated that he was tried, 
and now I ask simply, in what court ? Ido 
not ask the result of the investigation. 
Assistant Judge Advocate Bingham. If 
there was nobody killed, there was nobody 
hurt, I reckon. 
Q. In what court were you tried ? 
A. In Prince George’s County Court. 
Q. Were you, during last spring, winter, or 
fall, in any house on H Street, in the city 
of Washington? 
A. Ido not recollect. Ido not think I was 
in any house on H Street, though. 
I know Marcus P. Norton, who testified 
here to-day. His general reputation for ve- 
racity in Troy, New York, is very bad, and I 
would not believe him under oath. 
Cross-examined by the Judge Advocate. 
I live in Troy, and hold some valuable 
patents for the manufacture of horseshoes, 
etc. I have had legal controversies about 
these patents, and Mr. Norton was engaged 
as counsel by one of the parties opposed to 
me in those suits. I have not formed my 
opinion of him from his conduct in conduct- 
ing those suits; I did not know him prior to 
his engaging in those controversies. When 
I say that Mr. Norton is not to be believed 
under oath, I think I am expressing what 
the people of Troy generally think. I derived 
my knowledge of his character from testi- 
mony taken to impeach him in a case tried 
in Troy. 
Q. Have you any acquaintances living on 
H Street? 
A. No, sir, none at all, that I know of. 
Q. Have you any acquaintances living on 
H Street, between Sixth and Seventh ? 
A. I do not think I have. 
Q. Do you know in what part of the city 
Mrs. Surratt lives ? 
A. I do not. I never saw her house in 
my life. I do not know any thing about 
Mrs. Surratt’s residence. 
By Judge Advocate Bingham. 
By Assistant Judge Advocate Bingham. 
Q. You say you were tried in a court. 
What were you tried for ? 
No answer. 
A large array of witnesses were called, most 
of whom I knew, to impeach Mr. Norton. 
I did not hear the witnesses testify, but I have 
seen them. 
Q. Do you know what you were tried 
for ? 
A. I suppose I was tried for what you 
stated awhile ago. 
Assistant Judge Advocate Bingham. No, 
sir; I did not state it at all. 
Witness. You said I killed a man. 
Assistant Judge Advocate Bingham. No, 
I did not. \ 
Witness. You asked me if I did not. 
Assistant Judge Advocate Bingham. I 
asked you if you did, and you did not answer 
the question. Now I ask you for what you 
were tried? 
It is the general opinion of the people of 
Troy that Mr. Norton is not to be believed. 
By Mr. Doster. 
D. W. Middleton. 
I am clerk of the Supreme Court of the 
United States. Mr. Marcus P. Norton ar- 
gued a motion in the Supreme Court in the 
case of Willis Hamiston v. John Stainthrop, 
et al., on the 3d of March. 1864. 
For the Defense.—June 6. 
A, I was tried in that case. 
[The entry from the court records was read by the wit- 
ness.] DEFENSE OF SAMUEL A. MUDD. 
217 
Judge A. B. Olin. 
For the Defense.—June 9. 
By Mr. Doster. 
friends, continued through a series of years, 
under the influence of excited legal contro- 
versies in which this witness was involved 
against him, afford to your mind some ex- 
planation of the reputation which you say 
exists ? 
1 resided in the city of Troy, New York, 
bout twenty years prior to my coming to 
■J?18 city, two years ago. I knew Marcus P. 
°rton, a lawyer of that city. Judging by 
bat people say of him in respect to his char- 
ter for veracity, I should say his reputation 
as bad, and where his interests, or passions, 
r prejudices were enlisted, I would not rely 
uP°n his testimony under oath. 
Mr. Poster. I object to that question. 
The Judge Advocate. I wish to get at the 
grounds of the witness’s opinion, and I think 
this is a legitimate mode of reaching it. 
Mr. Poster. Judge Olin can scarcely be 
brought here as an expert as to the character 
of the testimony of Mr. Burden. It is not 
material to the issue what Mr. Burden said. 
Cross-examined by the Judge Advocate. 
~ The opinion I express has been formed 
, 0lD the speech of those who have been 
r°ught into contact with him; generally 
Persons against whom he has been employed 
•8 counsel or attorney, or parties litigating 
b patent suits that he had been connected 
*Uh. 
~Q- State whether you have knowledge of 
be fact that that particular class of suits, 
Probably more than others, excites bitter per- 
-B°Oal animosity ? 
■A- All the knowledge I have of them 
,bostly arises since the commencement of my 
bties here as a judge of this Pistrict. I had 
|Uformly refused to take employment in that 
,lnd of cases, though I had opportunity to 
0 so, and I had very little knowledge of those 
i btroversies, except incidentally, until I came 
j.erc> where appeals are frequently brought 
oln the Commissioner of Patents to the 
°brt of which I am a member, and I have 
enough of them to know that they are 
..bout as bitter as any controversies in law 
bbt I have any knowledge of. 
Q- Are not the parties and counsel in these 
a§es extremely censorious in the tone of 
bbbversation about each other? 
1 have seen instances of that kind, 
know Mr. Burden, of Troy, very well. 
v*-r. Marcus P. Norton has been employed as 
jbunsel in opposition to him in patent cases. 
, r- Burden is a very wealthy man. He has 
several very warmly contested suits. 
ae of them is known all over the country— 
j suit in reference to the spike machine, 
jj? invention for making hook-headed spikes. 
1 18 controversy with Corning & Co. has 
een pending now before Chancellor Wal- 
°rth for ten or twelve years, taking testi- 
°ny ju reference to the damages that he 
gained. I believe he has not got through 
V?I 1 it. He has had several other very 
bfbiiy contested suits of the same kind. 
Of l n°t the conversation of a man 
nis fortune and influence, and of his 
The Judge Advocate. It is not an im- 
peachment of Mr. Burden; it is an explana- 
tion. 
Mr. Poster. It is evidently brought here 
to contradict and invalidate the testimony of 
Mr. Burden. There can be no other object. 
The Judge Advocate. I can not take the 
opinion of Judge Olin without the privilege 
of looking at the foundation for that opinion, 
and the question is directed but to that ob- 
ject. 
The Commission overruled the objection. 
Witness. Yes, undoubtedly it would. Mr. 
Burden is a man of wealth, high social posi- 
tion, and many friends, and he usually speaks 
his mind freely. 
Mr. Norton’s reputation, I believe, was 
very questionable before he had any contro- 
versy or connection with Mr. Burden. Mr. 
Norton is not considered one of the leading 
lawyers of Troy, and is not classed among 
lawyers of any considerable attainments, as 
far as I know. He is, I understand, an in- 
genious and excellent mechanic, and is prob- 
ably very efficient in cases of the description 
in which he is usually employed. 
Mr. Ewing, by the consent of the Judge 
Advocate, presented the following agreement 
entered into between him and the Judge 
Advocate: 
“ It is admitted by the prosecution that 
John F. Watson, John R. Richardson, and 
Thomas B. Smith, loyal citizens, will testify 
that they are acquainted with the reputation 
of Paniel J. Thomas where he lives, and 
that it is bad; and that, from their knowl- 
edge of it, they would not believe him on 
oath. And, further, that John R. Richard- 
son above named will testify that Paniel J. 
Thomas (the witness for the prosecution) 
made the statement on the Ist of June (the 
National Fast Pay,) as sworn to by William 
J. Watson before the Court this day. And 
the prosecution agree that this statement be 
put upon record, and received and weighed 
by the Court as though said witnesses had 
actually so testified before it.” 218 
THE CONSPIRACY TRIAL. 
TESTIMONY IN REBUTTAL 
John F. Hardy. 
were some chestnut-trees, which Dr. Mudd 
had ordered me to fell and cut up into rail 9 
for him. 
For the Prosecution.—June 8. 
I can not recall the dates on which I saM 
Booth in the county. I do not remember 
any dates at all. I think the two visits were 
about a month apart, perhaps a little mor® 
or less, and the first visit I think must have 
been some time in November. It strikes 
that Booth’s visits were before Christmas. * 
saw him twice on his second visit; on Sun- 
day at church, and on Monday evening * 
met him riding by himself on the road lead' 
ing straight to Horsehead. 
When Dr. Mudd mentioned the news he 
had got at Bryan town, he seemed to be 
somewhat excited, but not more so than the 
people of the county generally when they 
first heard it. When I first heard it, I could 
hardly believe it. I could hardly express ®y 
feelings when I heard it; I felt very singular. 
He seemed to feel sincerely sorry. Ido not 
think he staid ten minutes. 
From the position in which we were, I 
could not notice whether any one rode with 
him along the main road; there was a 
bunch of pines on an elevated spot, just 
above where we were standing, from which 
the road goes, and then makes a turn, so that 
I could not sec. I heard of no one being 
with him. 
I live about two and a half or three miles 
from Dr. Mudd, the prisoner at the bar. On 
Saturday evening, the day after the assassin- 
ation, just before sundown, I saw Dr. Mudd 
within a few hundred yards of my house. 
He said that there was terrible news; that 
the President and Mr. Seward and his son 
had been assassinated the evening before. 
Something was said in that connection about 
Boyle (the man who is said to have killed 
Captain Watkins) assassinating Mr. Seward. 
I remember that Booth’s name was men- 
tioned in the same connection, and I asked 
him if it was the man who had been down 
there, and was represented as Booth. His 
reply was that he did not know whether it 
was that man or some of his brothers; he 
understood that he had some brothers. That 
ended the conversation, except that he said 
it was one of the most terrible calamities that 
could have befallen the country at this time. 
Q. Did you say that it was understood or 
said that Booth was the assassin of the 
President? 
A. There was some such remark as that 
made, but I do not exactly remember the 
remark. 
He said nothing to me in that conversa- 
tion about two strangers having called at his 
house, and remaining there all day. 
When I asked if it was Booth that had 
been down there, I referred to the stranger 
that I had seen at church some time before 
last Christmas, perhaps in November, whose 
name I was told was Booth. I saw him 
outside the church; I do not know whether 
he went into church. I saw him at the same 
place some time afterward, and asked if it 
was the same man, and the answer was 
“Yes.” I do not remember whether Dr. 
Mudd was there on either occasion. 
I know where Esquire George Gardiner 
lives very well; he is the gentleman that \9 
saicl to have sold a horse to Booth. It 19 
the nearer road from Bryantown to Esquire 
Gardiner’s to go by Dr. Mudd’s house, which 
is a little off the main road, than to go by 
the main road. 
By Assistant Judge Advocate Bingham. 
Dr. Mudd did not tell me how or from 
whom he had obtained the information that 
the President had been assassinated the 
evening before; he simply said he had heard 
it at Bryantown. 
Cross-examined by Mr. Ewing. 
I do not think I asked Dr. Mudd what 
was the news; he told me there was bad 
news in the country. He said that he had 
been to Bryantown and got the news there. 
I had not heard a word of it before. Dr. 
Mudd seemed to be in earnest when he 
spoke of this being a terrible calamity, and 
I do honestly think he felt the sorrow 
he expressed. The conversation took place 
about two hundred yards from my door, and 
my house is two and a half miles walking 
distance, or three miles horseback, from Dr. 
Mudd’s. Dr. Mudd came to see me about 
some rail lumber, about which I had spoken 
to him some time early in the winter; they 
For the Prosecution.—June 8. 
Francis R Farrell. 
I live near Bryantown, and am very well 
acquainted with Dr. Samuel A. Mudd. H-e 
came to my house on Easter Saturday even- 
ing last, the day following the assassination 
of the President, as near as I can judge, be- 
tween 4 and 5 o’clock. My house is about 
midway between Dr. Mudd’s and Bryantown , 
he came from the road leading to Bryantown, 
and turned into the road that leads to my 
house. I do not know whether he w»9 
coming from Bryantown, and did not learn 
it from his conversation. TESTIMONY IN REBUTTAL. 
219 
Q- While he was at your house, was the 
®sassination of the President a subject of 
between him and yourself? 
v-: Yes, sir, he told it there. 
Mr. Ewing. I object. 
, jhe Judge Advocate. The gentleman 
jjeets to our giving the statements of Dr. 
|Wd in evidence, I suppose. 
Mr. Ewing. I object to it on the ground 
h is not rebutting evidence. 
The Judge Advocate. I could offer it on 
■‘other and distinct ground; that it is, so far 
« understand it, a confession on the part 
the prisoner—which is at all times com- 
fetent evidence—and that it has come to our 
since the commencement of this 
lah and since the close of our testimony 
tr point. On that ground alone, I think 
e, Court, in the exercise of a sound dis- 
jWtion, would allow it to be introduced; but 
think also it is strictly rebutting testimony 
\ *or ie defense, 
j. Mr. Ewing. I will state to the Court that, 
this testimony is admitted, it will be indis- 
fensable to the rights of the accused to have 
jne or more witnesses from that neighbor- 
ed who have not already been subpenaed. 
the Commission overruled the objection. 
~ Witness. Mr. Hardy and myself were in 
house when Dr. Mudd came there, and 
~ r- Hardy went out and had some talk with 
‘e Hoctor; I do not know what. Directly 
er he went out, he called out to me that 
® was assassinated, and also Sevv- 
and his son, I think. Then I called out 
oJvhere Dr. Mudd and Mr. Hardy were, and 
ked if it was so; I understood the Doctor 
Bay it was. 
p _ asked the question who assassinated the 
u le®ident, and the Doctor replied and said, 
uian by the name of Booth.” Mr. Hardy 
j en asked him if it was the Booth that was 
there last fall. The Doctor said that 
J5 did not know whether it was or not; that 
Were three or four men of the name 
booth, and he did not know whether it 
as that one or not; he said that if it was 
6 °ue, he knew him. That was all he 
about it, excepting that he said he 
afi Very sorry that this thing had occurred— 
B°rry. 
He did not give any particulars ef the 
and made no allusion to two 
ae? having been at his house that morning 
ovc during the day. I don’t think he staid 
fifteen minutes. I can not say which 
r bo turned when he got on to the main 
'vl • a^er he left I neither did I see from 
tl/i Waf l)e came when he turned into 
e lane leading to my house. 
that could have happened. That was the 
only reason he gave why he was sorry, ac- 
cording to my recollection. He said it would 
make it a great deal worse for the country; 
I am not certain, but I think he said it 
would be a great deal worse than while the 
war was going on. From his appearance, I 
think he was entirely in earnest in express- 
ing his sorrow for the crime. 
I do not know whether any one was with 
Dr. Mudd on the main road; I can not see 
any part of it from my house, but there 
was no one with him in the road lead- 
ing down to my house, after he left the main 
road. 
Dr. Mudd came to see Mr. Hardy about 
getting some rail timber, so he said; but 
he did not get any; Mr. Hardy had let Mr. 
Sylvester Mudd have the timber. I can not 
be sure about the time when Dr. Mudd came 
there; it was cloudy and I could not see the 
sun; it might have been as late as 5 o’clock; 
it seemed a short time after he left till it 
was dark, not more than a couple of hours, 
any how. 
Jacob Shavor. 
For the Prosecution.—June 12. 
Since the summer of 1858, I have known 
Marcus P. Norton quite intimately. We 
have both lived in Troy. He has been em- 
ployed by the firm of Charles Eddy & Co., 
of which I am a member, for six years, as 
patent lawyer. He has had, and is still 
getting, practice in Troy. I know that his 
reputation, as a man of integrity and truth, 
is good there; and from my knowledge of 
his reputation, his conduct, and character, I 
would fully believe him under oath. In the 
early part of 1863, an attempt was made to 
impeach Mr. Norton’s credibility as a wit- 
ness, but it was unsuccessful, and it was so 
regarded by the public and by myself. 
Cross-examined by Mr. Doster. 
Mr. Norton’s reputation for veracity among 
the business men of Troy generally is good. 
I do know that an unsuccessful attempt to 
impeach him was made; but I do not know 
that eighty men in Troy swore that he could 
not be believed; others in Troy know that, 
as you yourself know. 
We employed Mr. Norton in the Stanley 
case, and in a number of others; we have 
more or less every year. In an individual 
case of my own, I employed another lawyer, 
and Mr. Norton was a witness. It was an 
important case, and it was in this case that 
an attempt was made to impeach Mr. Nor- 
ton’s testimony. 
Q. And if this man’s testimony had been 
successfully impeached, you would have lost 
the case, would you not? , 
Assistant Judge Advocate Bingham ob- 
jected to the question, and it was waived. 
Gross-examined by Mr. Ewing. 
v M was Mr. John F. Hardy that was in my 
®a‘d8e w^en Hr. Mudd came. Dr. Mudd 
ki]r at *le bought at this time that the 
llng of the President was the worst thing 220 
THE CONSPIRACY TRIAL. 
Willis Hamiston. 
petent for me to corroborate the statement 
which Mr. Norton made before the assas* 
sination of the President, and before there 
had arisen any possible motive for the fabn* 
cation of this testimony, to show that that 
statement was substantially the same, as far 
as it went, as that which he has now made 
before the Court in regard to the call tbe 
prisoner, Mudd, made at his room, asking 
for Booth. I think it is competent to su3' 
tain him, assisted as he has been by testi' 
mony for the defense. 
The Commission overruled the objection. 
Witness. I recollect perfectly that b® 
mentioned at the time that some person bad 
come into the room very abruptly, so much 
so as to alarm his sister-in-law, who wras in 
an adjoining room; I do not remember 
whom he said the person inquired. I tiling 
he told me this some time in March, but I 
can not state positively, nor can I state ore* 
cisely when this entrance was made. 
For the Prosecution.—June 12. 
I reside in Troy, and have known Marcus 
P. Norton for nine or ten years, intimately 
for six. His reputation for truth and integ- 
rity, as far as my knowledge extends, is good, 
and I would believe him under oath or not. 
He was engaged in two patent cases for me, 
and is extensively employed in patent cases 
in the United States Courts. 
Mr. Norton is not employed as a witness 
in my individual case; he is my lawyer. 
There is considerable money involved in it. 
Cross-examined by Mr. Poster. 
Hon. Horatio King. 
For the Prosecution.—June 12. 
I reside in Washington City, and have 
been an Assistant Postmaster-General and 
Postmaster-General. While living here, I 
have made the acquaintance of Marcus P. 
Norton, of Troy; I have known him quite 
intimately for eight or ten years. Before I 
left the Pepartment I saw him very fre- 
quently, once or twice a year, perhaps oft- 
ener; but since I left the department 1 have 
had business with him, and have seen him 
oftener, and known more of him, than be- 
fore. I have always regarded him as scru- 
Eulously honest and correct. So far as his 
usiness with me is concerned, I never dealt 
with a more truthful man, or one more par- 
ticular to keep his engagements; and from 
my knowledge of him and his character, I 
would most unhesitatingly and fully believe 
him under oath. 
Mr. Norton did not, that I remember, men' 
tion his having overheard a conversation 
between Booth and Atzerodt while he wao 
there; he first alluded to it in a letter b® 
wrote to me on the 15th of May. 
By Mr. Poster. 
By Assistant Judge Advocate Burnett. 
Q. [Submitting to the witness a letter.] d 9 
that the letter to which you refer ? 
A. It is. It was received by me, I pi’6' 
sume, on the 17th of May. It bears my it>' 
dorsement. The letter is dated Troy, Ne'lj 
York, May 15, 1865, addressed to me, and 
signed “ Marcus P. Norton.” 
Mr. Poster. I object to the reading oI 
the letter. 
Assistant Judge Advocate Burnett. [T° 
the witness.] Read the passage of it which 
relates to the matter of which you are 
speaking. 
Witness. It is: “I believe Johnson vrao 
poisoned on the evening of March 3d, or the 
morning of March 4th, last. I know o» 
some things which took place at the 
tional Hotel last winter, between Booth and 
strangers to me, which, since the death o* 
our good President, have thrown me int® 
alarm and suspicion, and about which I wm 
talk with you when I see you.” 
Cross-examined by Mr. Poster. 
I have never lived in Troy, and do not 
know Mr. Norton’s reputation there. I know 
nothing of his reputation for veracity except 
as I came in contact with him here. My 
business with him was in reference to patent 
post-rating and canceling stamps. I know 
nothing of him beyond that here, but I knew 
him quite intimately. I never heard any 
one here speak otherwise than favorably of 
him. I never heard that his character for 
veracity was impeached until the present 
time. 
By the Judge Advocate. 
By Mr. Poster. 
I think that is the first intimation I had 
I saw Mr. Norton frequently in March 
last; I used to meet him nearly every day 
while he was here last winter. 
of it; I do not remember Mr. Norton’s men' 
tioning that conversation to me before. -1 
met him nearly every day last winter. 
Q. State whether or not, in any of those 
conversations, he mentioned to you the sin- 
gular manner in which some person had 
called at his room, asking for 'Booth. 
Mr. Poster. I object to that question, 
because it is not material to the point in 
issue. Besides, it has not been brought out 
on the cross-examination. 
The Judge Advocate. It is entirely com- 
By Mr. Ewing. 
Mr. Norton was here at the inauguration i 
I procured tickets for him and his friend 
to go into the Capitol, and my impression 
is that he did not leave the city until 
eral days afterward. I know that I saw 
after the inauguration, because he spoke ° TESTIMONY CONCERNING MICHAEL o’IAUGHLIN. 
221 
t]6 In? grateful to me for having procured 
tickets for him. I should say it was 
j ,°ut the time of the inauguration, though 
'ave no means of fixing the date, that Mr. 
°rton mentioned to me the fact of a per- 
n entering his room. It was the abrupt 
ajmer of the person that excited his sus- 
j n8) and it alarmed his sister very much. 
• “ink he said she was unwilling to remain 
the room alone after that. 
Itv ° remember his stating the time, but 
at K c^rcumstance occurred just about 
. the time he told me, because I was in free 
ercourse with him nearly every day while 
e 'vas here. , I do not remember that he 
|aye me any description of the man, or that 
i e Mentioned his inquiring after anybody; I 
he told me that he followed the man. 
e expected the man to go up stairs, but in- 
ead of that he went down stairs, and he fol- 
,'ved him; he did not say how far, whether 
Jvn to the office or not. Ido not remember 
lether Mr. Norton spoke of having any 
Ol>versation with the man, but my impres- 
-011 is that he said the man made some ex- 
Se for his abrupt entrance. 
that his reputation as a man of truth and in- 
tegrity is good, and from this knowledge of 
his character I would have no hesitation in 
believing him under oath. 
Cross-examined by Me. Dostee. 
I know by rumor only of one or two cases 
of attempted impeachment of Mr. Norton, 
but they were failures. Mr. Norton has a 
large business at Troy, and is employed by 
first-class houses. 
For the Prosecution.—June 9. 
Silas H. Hodges. 
I reside in Washington, and hold the ap- 
pointment of examiner-in-chief in the Patent 
Office. I resided for twenty years at Rutland, 
Yt. I have known Marcus P. Norton for at 
least eleven years. Some years ago Mr. Nor- 
ton moved to Troy, and I do not know how 
he stands there so well as I do at Rutland. 
Until within the last two or three years I 
never heard any thing against his reputation, 
and what I have heard has grown out of liti- 
gations in which he has been engaged. Out- 
side of these litigations, I never heard hia 
veracity questioned. 
For the Prosecution.—June 9. 
By the Judge Advocate. 
f *W known Marcus P. Norton intimately 
twelve or fifteen years; I knew him first 
rj, Bchool in Vermont, and subsequently at 
rf°y, New York. From my long personal 
cTiaintance with him, I am enabled to state 
William Wheelee. 
I do not know that I can recall any inci- 
dents in which I have heard any person speak 
of Mr. Marcus Norton as a man distinguished 
for veracity. It is about five years since I 
left Rutland, and I have known him per- 
sonally ever since. 
Cross-examined by Mb. Dostee. 
TESTIMONY CONCERNING MICHAEL O’LADGHLIN. 
William Wallace. 
Assistant Judge Advocate Bingham ob- 
jected to the question. The brother-in-law 
is not the prisoner. The proposition is to 
show a declaration of the prisoner on his 
own motion, and at another time and place; 
it is the declaration of a third person, and I 
object. 
Mr. Cox. The object is to show that the 
prisoner voluntary surrendered himself by 
sending for the officer. The evidence offered 
on the part of the prosecution was designed 
to show that O’Laughlin was avoiding the 
arrest. In cross-examination, I desire to show 
that the arrest was made at the instance of 
the brother-in-law; and I propose to follow 
that hereafter, by proof that the prisoner 
himself sent his brother-in-law to communi- 
cate his whereabouts to the officer. I think 
that is legitimate on cross-examination. 
For the Prosecution.—May 9. 
On the 17th of April, I arrested the pris- 
eri O’Laughlin, at the house of a family 
Bailey, on High Street, Baltimore, 
Was n°t his boarding-house. I asked 
in L le was there instead of at his board- 
tow °Use; that when he arrived in 
l*0n Saturday he was told that the officers 
aw een looking for him, and that he went 
to a friend of his on Saturday and Sun- 
t0 J n’ght. When he was arrested, he seemed 
Understand what it was for, and did not 
anJ questions about it. 
Cross-examined by Me. Cox 
Bencl the brother-in-law of the prisoner 
a ‘or you or go for you to arrest him ? 222 
THE CONSPIRACY TRIAL. 
Assistant Judge Advocate Bingham. It is 
not cross-examination; it is new matter al- 
together. We have not offered any evidence 
of what the prisoner said to his brother-in- 
law; this witness’s testimony was as to what 
the prisoner said to him. 
Mr. Cox. It is not the declaration of 
a fact that I offer, but of an act done by 
the brother-in-law, on which the officer 
acted. 
men here [pointing to the accused, Michael 
O’Laughlin and Samuel Arnold] who had 
rooms at my house. lam not positive, but 
I think it was on the 10th of February last 
they came. John Wilkes Booth came verv 
often to see the prisoners, O’Laughlin and 
Arnold, but did not, as a general thing, r0" 
main very long. I was told by Arnold, when 
I inquired, that the gentleman’s name was 
John Wilkes Booth. Sometimes Booth would 
call when they were out; sometimes he called 
two or three times before they returned. Hc 
generally appeared very anxious for their re- 
turn. Sometimes, when he found them out, 
he requested, that if they returned before he 
called again, that they would come to the 
stable. Or he sometimes left a note, going 
into their room to write it. Booth, who fre- 
quently came in a carriage, would sometimes 
inquire for one, sometimes the other, but 
I think he more frequently inquired fpr 
O’Laughlin. The only arms I ever saw iu 
their rooms was a pistol; this I saw only 
once. 
The Commission overruled the objection. 
Witness. lam well acquainted with Mr. 
Maulsby. He was recommended to me on 
Sunday evening as a good Union man, one in 
whom I could put implicit confidence. He 
knew I was looking for O’Laughlin. I told 
him I wished him to assist me in getting him. 
He said he would do all he could to assist me. 
On Monday morning he came and told me 
that, if I would go with him, he thought he 
could find O’Laughlin, and I went with him 
to the house where we found him. 
O’Laughlin, I think, said that when he got 
to his brother-in-law’s house, on Saturday 
afternoon, he heard that the detectives had 
been there. He said he knew nothing of 
the assassination whatever, and could account 
for his whereabouts during all the time of his 
stay in Washington by the parties who were 
with him. 
[Photograph of Booth exhibited to the ■witness.] 
I recognize that as a likeness of Booth, but 
I should not call it a good one. 1 think him 
a better looking man than this is. The last 
time Booth played here, about the 18th Cft 
20th of March last, when he played Pescara 
I expressed a desire to see him, and Mr- 
O’Laughlin gave me complimentary tickets. 
A man used sometimes to call to see thenb 
and 1 think he passed one night with them, 
by his leaving the room very early one morn- 
ing. I never heard his name. He was not 
what you would call a gentleman in appear- 
ance, but a very respectable-looking mechanic- 
His skin was hardened like that of a man 
who had been exposed to the weather, an® 
he had sandy whiskers. I do not see him 
among the prisoners. 
Arnold and O’Laughlin said they were m 
the oil business, but they did not say that 
they were connected with Booth in it. Let- 
ters occasionally came for them, but not a 
great many. The letters were sometimes ad- 
dressed to one, sometimes to the other. Ar- 
nold and O’Laughlin left ray house, I think, 
on the Monday following the Saturday <>n 
which Booth played at the theater; about 
the 20th of March. 
Marshal James L. McPhail. 
For the Prosecution.—May 22. 
Michael O’Laughlin, the prisoner, came 
into our lines about the time of the battles 
of Antietam and South Mountain. He came 
in at Martinsburg, I think, about September, 
1863. He stated to me that he had taken 
the oath of allegiance at Martinsburg. I 
found in the records of my office, this morn- 
ing, the oath of allegiance of one Michael 
O’Laughlin, dated Baltimore, June 16, 1863, 
and signed Michael O’Laughlin, and is, I be- 
lieve, in the handwriting of the prisoner. I 
have seen a great deal of his handwriting 
within the last two or three weeks, and have 
no doubt the signature is his. 
When O’Laughlin was first brought to my 
office, he stated that he had not reported; he 
afterward sent for me to correct that error, 
and to say that he had reported at Martins- 
burg when he came into our lines, and had 
there taken the oath of allegiance. 
By the Court. 
Cross-examined by Mr. Cox. 
I only know of O’Laughlin being in the 
rebel service from his own declarations. Mr. 
O’Laughlin’s family have resided in Balti- 
more as long as I can remember. I have 
known them, I suppose, for thirty years. 
I think these gentlemen had been at wf 
house two or three weeks when they said 
they were in the oil business. When theX 
left, 1 understood they were going to Pennsyl' 
vania. Nothing was said by them at anX 
time about having abandoned the oil bus1' 
ness. They did not stay a great deal in theft 
room, and they were sometimes out all 
I can not say whether Mr. Booth’s visit9 
were more frequent during February °r 
March. He was a constant visitor. I never 
heard any of their conversations. 
Mrs. Mary Van Tine. 
For the Prosecution.—May 15. 
I reside at No. 420 D Street, in this city, 
and keep rooms to rent 1 see two gentle- TESTIMONY CONCERNING MICHAEL o’LAUGHLIN. 
223 
Billy Williams (colored.) 
For the Prosecution.—May 15. 
> J know the prisoner, Mr. O’Laughlin, and 
know Mr. Arnold by sight. 
jr*11 March last I was going by Barn urn’s 
°tel, when Mr. J. Wilkes Booth, the actor, 
tab16 own the stePs a°d asked me if I would 
*te two letters for him. He told me there 
°ne or O’Laughlin, and the other he 
n 1(1 I was to take to the number that was on 
He did not tell me who it was for. There 
j • 8 a colored fellow with me, and I asked 
c ta to look at it and see what it was, as I 
f'o a 
jj .Mr. O’Laughlin, and the other was for Ar- 
£ I took one to Mr. O’Laughlin at the 
a‘timore Theater, and one I carried to Mr. 
] n°ld. As 1 was in a hurry, I gave it to a 
y who was at the door, and she said she 
send it up to him. I saw O’Laughlin 
j the theater, and gave him his letter there. 
“Mr. O’Laughlin, here is a letter Mr. 
°oth gave to me,” and I handed it to him. 
(Jox. I must object to the whole of 
q>18 evidence of the delivery of this note to 
gq a?Shlin, and I desire, if the objection is 
stained, that it be struck out of the record, 
fHe Judge Advocate. If the Court please, 
oj.ls simply going to establish the intimacy 
these men, their close personal relations 
j, each other, as evidenced by their cor- 
-BPondence; and I think, in that point of 
B 's clearly competent. We have pre- 
ted them as visiting each other constantly. 
el1°W-VVe are following them to Baltimore, and 
owing them as corresponding with each 
constantly. Both facts go to establish 
tjj tebmacy which is in accordance with the 
e°ry t|Je prosecution_ which is, that they 
e co-conspirators. We do not offer the con- 
cq8 of the letter; simply the fact of their 
Responding with each other. 
Mr. Cox. I object to any evidence of the 
ats of Booth himself. The act of sending 
W*°ne an individual, no matter what may 
6 contents of that note, would be no 
against that individual, unless the 
hin!eUts, were accepted and acted upon by 
ijj • The mere fact of intimacy alone is an 
°cent fact on the part of the accused, and 
fit)irefore is not evidence, I think, of a con- 
pi ra°y- I therefore object to it, in the first 
fe *je> a 8 an act of Booth to which the de- 
He] n°t a Party at He could not 
of re.ceiving a letter from Booth. The act 
receiving a letter was an entirely innocent 
te{A object, furthermore, that even if it 
Pro 8 Bhow intimacy, it does not tend to 
f'ow6 l^le SuiH of the party of the charge 
Tl nia<^e against him. 
ile Court overruled the objection. 
the months. It might have been the middle 
of March or toward the end. Mr. O’Laugh- 
lin’s letter I took round to the Holliday 
Street Theater; it was in the afternoon, and 
I found him in the dress-circle. I know Mr. 
O’Laughlin right smart. 
When Mr. Booth gave me the letters, he 
said that one was to go up to Fayette Street, 
above Hart, and I asked a lady at the door, 
and she read the direction to me. I asked 
Mr. Booth how his mother was, and he said 
very well; and he said he was going away 
to New York at half-past 3 o’clock. 
Cross-examined by Mr. Ewing. 
John Hapman. 
For the Prosecution.—May 18. 
[Submitting to the witness a telegraphic dispatch.] 
I have seen that dispatch before. It reads: 
To M. O'Laughlin, Esq., No. 57 North Exeter 
Street, Baltimore, Md. 
Don’t fear to neglect your business. You 
had better come at once. 
Washington, March 13, 1854. 
[Signed] J. BOOTH. 
[The original of the foregoing dispatch was offered in evi- 
dence.] 
This dispatch was sent by telegraph from 
this city to O’Laughlin, March 13,1865. We 
used the old printed forms of the year before, 
which accounts for the date being 1864. I 
knew J. Wilkes Booth, and saw him write 
that message. 
Q. Can you say whether this is a question 
or a command, “Don’t you fear to neglect 
your business ? ” 
Assistant Judge Advocate Bingham ob- 
jected to the question. The writing must be 
its own interpreter. 
The Commission sustained the objection. 
Cross-examined by Mr. Cox. 
Edward C. Stewart. 
For the Prosecution.—May 18. 
I am a telegraph operator at the Metro- 
politan Hotel in this city. 
[A telegraphic dispatch was handed to the witness.] 
I sent this dispatch myself over the wires 
to Baltimore; it is; 
To M. O' Laughlin, Esq., 57 North Exeter 
Street, Baltimore, Md. 
Get word to Sam, Come on, with or with- 
out him, Wednesday morning. We sell that 
day sure. Don’t fail. 
J. WILKES BOOTH. 
Washington, March 27, 1864, 
Cross-examined by Mr. Cox. 
it was in March that I took the 
because I heard Tom Johnson say it 
March. I never took much notice of 
[The dispatch was offered in evidence.] 
I did not know the man who gave it to 
me; he wrote it and asked me to send it. I 
think I should know him if I were to see 
his photograph. 224 
THE CONSPIRACY TRIAL. 
[The photograph of Booth shown to the witness.] 
That is the gentleman who sent it. The 
true date of the telegram is March 27, 1865, 
not 1864. 
there were four of us in company. Mr. Ar* 
nold was not, to my knowledge, on the car®- 
When we arrived in this city, O’Laughhn 
asked me to walk with him as far as the N®' 
tional Hotel. He did not take a room there. 
I do not know that he made inquiries 
Booth at the desk, nor did I see him associ' 
ating with Booth. We stopped that night at 
the Metropolitan Hotel. On Friday I was 
with O’Laughlin the greater part of the day- 
When we got up, we went down and took 
breakfast at Welch’s (Welcker’s) on the ave- 
nue. After that, all four of us came up the 
avenue in company. When passing the Na- 
tional Hotel, about 9 o’clock, I think, 1 
stopped to go back to the water-closet. Whe» 
I came out, Mr. Henderson, one of the conl' 
pany, was sitting down. As I was going out, 
be called me back, and told me to wait f°r 
O’Laughlin, who was gone up stairs to see 
Booth. We waited, I judge, about three- 
quarters of an hour, but as he did not coin6 
down, we went out without him. In about 
an hour after that, when we were at a res- 
taurant on the avenue, between Third and 
Four-and-a-half Streets, O’Laughlin came iu- 
O’Laughlin, Henderson, and myself hud 
supper at Welch's, and the last time I sa"' 
O’Laughlin that night was at a restaurant, 
going out with Mr. Fuller. It was pretty 
late, but whether it was before or after tb® 
assassination I can not say. O’Laughllll 
had been there for supper. We had been 
drinking considerably. The name of tbe 
present proprietor of the restaurant, I believe, 
is Lichau. I think, though I would not b® 
certain, that O’Laughlin remained there untn 
after the assassination. However, I distinctly 
remember seeing him go out in company 
with Mr. Fuller. Mr. Fuller used to be 
employed by O’Laughlin’s brother in tin® 
city. 
O’Laughlin returned to Baltimore with ib® 
next day, Saturday, by the 3 or half-past 
o’clock afternoon train. After we arrived in 
Baltimore, on going down to his house, v',e 
met his brother-in-law on the way. D® 
told Mr. O’Laughlin that there had been 
parties there that morning looking for hilll- 
- went into the house, and asked 
me if I would remain there for awhile; aftef 
that he invited me to come in. I went i°, 
and sat in the parlor, while he went up stall® 
to see his mother; be remained a few mi°' 
utes, and then came down and said he 
not going to stay home that night. I can 
say that he appeared to manifest any excd®' 
ment, except when he heard that there vyer® 
parties after him because of his known intl' 
macy with Booth, having been acquaints 
with him, and in the habit of going with hu11’ 
and from being supposed to be 
with him in the oil business 
Cross-examined by Mr. Cox. 
This paper does not show that the dis- 
patch was sent last March, it is dated 1864, 
but that was because we used last year’s 
blanks. I remember sending this very mes- 
sage this year; it was given to me by the 
gentleman whose photograph has been shown 
to me. 
By the Court. 
I have been an operator at the Metropolitan 
Hotel about ten months. I was not there in 
March, 1864. 
Samuel Streett. 
For the Prosecution.—May 15. 
I have known the prisoner, Michael o’- 
Laughlin, from his youth. About the Ist of 
April last, I saw him in this city, conversing 
with John Wilkes Booth. They were con- 
ferring together in a confidential manner on 
the stoop of a house, on the right-hand side 
of the avenue going toward the Treasury 
Department; I do not know what house it 
was. There were three of them in company; 
Booth appeared to be the speaker of the 
party, and the third person was an attentive 
listener. I addressed O’Laughlin first, having 
known him more familiarly than I did Booth. 
O’Laughlin called me to one side, and told 
me that Booth was busily engaged with his 
friend, or was talking privately. They were 
conversing in a low tone. The third party, 
as near as I remember, had curly hair; he 
had on a slouch hat, and seemed to be in a 
stooping position, as though talking to Booth 
in a low tone, or attentively listening to 
Booth’s conversation. [Looking at the pris- 
oners.] I can not swear that the man is 
here. 
Cross-examined by Mr. Cox. 
The house at which I saw Booth and 
O’Laughlin conversing was, I believe, on the 
avenue between Ninth and Eleventh Streets; 
I am not certain about the date, but I think 
it was nigh on to April. When O’Laughlin 
made the remark that Booth was engaged 
with his friend, it is likely that I asked 
O’Laughlin to propose to Mr. Booth to take a 
drink, and O’Laughlin’s remark, that Booth 
was engaged with a friend, might have been 
in reply to my invitation. 
For the Prosecution.—May 15. 
Bernard T. Early. 
I am acquainted with the prisoner, O’- 
Laughlin, and slightly with Mr. Arnold. I 
came down to this city from Baltimore on the 
Thursday before the assassination—the night 
of the illumination—with Mr. O’Laughlin; 
Cross-examined by Mr. Cox. 
I came down to Washington with 
Henderson, who is, I believe, a Lieutenant i TESTIMONY CONCERNING MICHAEL o’IAUGHLIN. 
225 
United States navy, Edward Murphy, 
V Laughlin, and myself. I was invited down 
b3r Mr. Henderson. He came to the store 
aher me that afternoon, and asked me to 
c°me down, with the intention of having a 
§°od time, and to see the illumination. I 
J?ard Mr. Murphy say that he invited them. 
fj:r- O’Laughlin came to the store with Mr. 
Henderson, and Henderson invited me to go 
along with them. We slept at the Metro- 
politan Hotel on Thursday night, Hender- 
®oni Smith, and myself slept together in a 
turee-bedded room, and O’Laughlin, whose 
Parue came last as we signed our names, 
ad a room to himself. It was on the same 
ooor as that on which we slept, and the 
B®cond or third door from our room. It was 
aoout 2 o’clock on Friday morhing when we 
to bed. In the morning I rapped at 
J- Laughlin’s door; I peeped in at the key- 
hole, and saw that he was in the room and 
aBleep, and I woke him up. 
1 do not know for what purpose O’Laugh- 
called to see Booth. After waiting, I sup- 
P^sc, three-quarters of an hour at the National 
Hotel, during which time we had some cards 
'Hltten by a card-writer, we sent up some 
£ards to Mr. Booth’s room for O’Laughlin, 
*at he might take it as a hint, and come 
°wu, for we were tired of waiting. The 
®ards were returned with the message that 
acre was nobody in the room. We left the 
j.ards with the clerk at the desk. O’Laugh- 
,,n took a stroll round the city with us, and 
*ea four of us had dinner at Welch’s; Ido 
know the hour; it was between 12 apd 2. 
Rer dinner we took another stroll. Whether 
Laughlin was with me or not I can not 
jTjL We had been drinking pretty freely, 
.of us. Between 4 and 5 O’Laughlin went 
yh me to a friend’s house to pay a visit to 
lady. J was not well acquainted with the 
fir®ets, and I asked him to go with me to 
Jir'a the place. The lady invited us to din- 
r- She took our hats, and we had to stay. 
e had a second dinner there, and left, I 
Ppose, about 6 o’clock. We returned to- 
other to the Lichau House, and were found 
there by Murphy and Henderson. We staid 
until about 7 or 8, and then went to 
rich’s and had supper. We were there 
p len the procession of the Navy Yard men 
.ssed up the avenue. That was perhaps 
ba Teen ® and 0 o’clock. After that I went 
Iw *° Lichau House, and sat there until 
be to Led. O’Laughlin was there the 
X Part of the evening. I was there when 
jj eard of the assassination. It was, I be- 
Un e’ lO o’clock when I saw O’Laugh- 
-6a §° out with Mr. Fuller, but I could not 
can "^ I saw him there when the news 
jole °r n°L Mr. Henderson was in the bar- 
th’ Lelieve, but Mr. Murphy had left us 
■yy,e avenue previous to that. 
oUf . uwe came down on Thursday, it was 
I tention to go back on Friday; at least 
ucrstood so. I guess it was the liquor 
we had aboard that kept us. We did start 
to return by the 11 o clock Saturday morning 
train. We went as far as the depot, and Mr. 
Henderson got the tickets. O’Laughlin 
wanted to go, and I said to Mr. Henderson, 
“If you press Mike, he will stay until the 
afternoon.” So we all concluded to stay 
until the next train, at 3 o’clock in the after- 
noon. 
Q. During this visit did you see any thing 
in Mr. O’Laughlin that betrayed a knowledge 
of any thing desperate which was to take 
place ? 
Assistant Judge Advocate Bingham object- 
ing to the question, it was varied as fol- 
lows: 
Q. During this visit, state what his conduct 
was. 
A. His conduct was the same as I usually 
saw him—jovial and jolly as any of the rest 
of the crowd. 
Q. In good spirits ? 
A. Yes, sir; he was particularly so coming 
down in the cars with us that Thursday even- 
ing. 
Q. No nervousness ? 
A. No, sir. 
When O’Laughlin got to Baltimore and 
went to his house, he went up stairs, I sup- 
pose, to see his mother. On returning he said 
he would not stay at home that night. The 
remark he made was, that he would not like 
to be arrested in the house; that it would be 
the death of his mother. I told O’Laughlin 
that I thought it best for him to stay at home 
until the parties who were looking for him 
came again; but he said no, it would be the 
death of his mother if he was taken in the 
house. 
Re-examined by the Judge Advocate. 
We, all four of us, returned to the Metro- 
politan Hotel between 1 and 2 o’clock, I sup- 
pose, when we went to bed; that is, on Friday 
morning. After having supper on the Thurs- 
day evening, we went to see the illumination, 
and walked a considerable distance up the 
avenue. After returning, we went, at the 
invitation of Mr. Henderson, to the Canter- 
bury Music Hall. O’Laughlin was not sep- 
arated from us during that night. 
For the Prosecution.—May 15. 
James B. Henderson. 
I am acquainted with the prisoner, Mr. 
O’Laughlin. I saw him in this city on 
Thursday and Friday, the 13th and 14th of 
April. Ido not know whether he visited J. 
Wilkes Booth on either of those days, but he 
told me on Friday that he was to see him 
that morning. 
He only told me he was to see Booth, but 
did not say what for. I can not tell exactly 
whether he said he had an engagement. 
Cross-examined by Mr. Cox. 226 
THE CONSPIRACY TRIAL. 
David Stantok. 
beard that he has now; I see no change, 
with the exception of that caused by the 
want of shaving. 
For the Prosecution.—May 16. 
I have seen that man with the black 
moustache before, [pointing to the accused, 
Michael O’Laughlin.] I saw him on the 
13th of April, the night before the assassina- 
tion, at the house of the Secretary of War. 
I saw him pass in the door, and take a po- 
sition on one side of the hall. I asked him 
what his business was, and he asked me 
where the Secretary was, and I told him he 
was standing on the steps. He said nothing 
further, but remained there some minutes, 
until finally I requested him to go out. He 
followed me out as far as the gate on the 
left-hand side of the house, and that was 
the last I saw of him. He did not ask for 
any one else besides the Secretary, nor did 
he . explain why he was there. At first I 
supposed he was intoxicated, but I found 
out, after having some conversation with 
him, that he was not. 
General Grant was in the parlor. He 
and the Secretary were being serenaded. 
O’Laughlin could see General Grant from 
his position. He did not inquire for any 
one but the Secretary, and after I pointed 
him out he did not go to him, and did not 
tell me what his business was. I did not 
see him go away from the house; there was 
such a crowd there. That was, I presume, 
about half-past 10 o’clock. 
Major Kilbtjrn Knox. 
I was at the house of the Secretary of 
War, in this city, on the evening of the 13th 
of April last, and saw there a man whom I 
recognize among the prisoners. There be is, 
[pointing to the accused, Michael O'Laugb- 
-1 in.] I left, the War Department at 10 
o’clock, after the illumination there was 
over, and walked up to the Secretary’s house. 
There was a band playing at the house, and 
on the steps were General Grant, Mrs. Grant, 
the Secretary, General Barnes and his wife, 
Mr. Knapp and his wife, Miss Lucy Stan- 
ton, and two or three small children. I was 
standing on the upper steps, talking to Mrs. 
Grant and the General. Some fireworks 
were being set off in the square opposite, 
and I stepped down a little to allow the 
children to see them. I got down on the 
step, I think, next to the last one, leaning 
against the railing, and this man [O’Laugb- 
lin] came up to me, after I had been there 
ten minutes probably, and said, “Is Stanton 
in ?” Said I, “ I suppose you mean the 
Secretary?” lie said, “Yes.” I think he 
made the remark, “I am a lawyer in town-, 
I know him very well.” I was under the 
impression he was under the influence of 
liquor. I told him I did not think he could 
see him then, and he walked to the other 
side of the steps, and stood there probably 
five minutes. I still staid there, I suppose, 
for about five minutes, and he walked ever 
to me and said, “Is Mr. Stanton in?” and 
then said, “ Excuse me, I thought you were 
the officer on duty here.” Said I, “ There 
no officer on duty here.” He then walked 
on to the other side of the steps, and walked 
inside of the hall, the alcove, and stood on 
the inside step. I saw him standing there, 
and I walked over to Mr. David Stan toll 
and said, “ Do you know that man ?” dd® 
said he did not. I said to him, “ He says he 
knows the Secretary very well, but he 
under the influence of liquor, and you ha 
better bring him out.” Mr. David Stant°d 
walked up to him, talked to him a few mO' 
ments, and then took him down the step9- 
He went off, and I did not notice him againj 
He did not say any thing about Genera 
Grant. By that time, I think, the Genera 
had gone into the parlor. 
I think the Secretary stood on the step 
outside, and this man stood behind the 
retary, and from where he stood he cop 
see into the parlor. On the left-hand 91 
of the hall, going in, is the library; on t 
other side is the parlor door. He stood 
the side next to the library, and in that p®® 
tion he could have looked into the pay* ' 
and seen who was in there, through the d° 
For the Prosecution—May 16. 
Cross-examined by Mr. Cox. 
That was the first time I ever saw this 
man, and I did not see him again until I 
saw him on the Monitor as a prisoner, on 
the day on which Booth’s body was taken 
away from the vessel. I can not be sure as 
to the exact time when I first saw the man; 
the fireworks commenced at about 9 o’clock, 
and lasted about an hour and a half, and it 
was after they were over. He was dressed 
in a suit of black; dress-coat, vest and 
pants, and his hat, which was a black slouch 
hat, I think, he had in his hand. The 
hall was very well lit up; the parlor, where 
General Grant was sitting, was also lit up, 
and I was directly in front of him when I 
addressed him. 
He was inside of the door, about ten feet, 
standing next to the library door. He .was 
about five feet four inches in bight When 
I saw him on the Monitor he stood up, but I 
had an indistinct view of him there, as it 
was dark. I thought the man was intoxi- 
cated, from the way he came into the house. 
I inquired, before I went to him, of differ- 
ent members of the family, if they knew 
him. Finding they did not know him, I 
addressed him, and requested him to go out, 
which he did, going after me. There were 
a good many people about. The Secretary 
of War and Major Knox were on the door- 
steps, and this man had got behind them. 
He had, I think, the same moustache and TESTIMONY CONCERNING MICHAEL o’IAUGHLIN. 
227 
The whole house was lighted up, and I feel 
pretty certain that the prisoner, O’Laughlin, 
18 the man I saw. 
the Secretary’s room. To my knowledge I 
had never seen the man before that evening. 
The next time I saw him was last Sunday 
week, in prison, in this building. I came 
down here with Major Eckert and Major 
Knox. I did not know what I was coming 
for; but when I was inside the room, and 
looking round, I saw that man, and I 
thought to myself, “I see the object of my 
coming down.” 
The first time I saw him it was very light, 
and he had on a dark suit of clothes, with a 
heavy moustache, black, and an imperial, 
and the way I took so much notice of him 
was, while I was speaking to him he was 
standing a little lower down, and I was 
looking right in his face. 
He wore a dark slouch hat, a little low, 
and dark dress-coat and dark pantaloons. I 
should judge him to be about five feet four 
or five inches. There was a crowd about 
the house, come to serenade the Secretary; 
four or five bands were there. The Secre- 
tary was in the parlor with General Grant; 
they had noGcome out then; there was no- 
body on the steps but me. Both doors were 
open, the front door and another door like 
the front entry, and the gas was fully lit all 
around. 
Cross-examined by Me. Cox. 
I do not recollect whether it was moon- 
light or dark that evening. There was a 
great crowd round the Secretary’s house, and 
close up to the steps. I did not notice the 
until he walked up on the steps and 
Bpoke to me, and after he went out again I 
saw him no more. I did not go inside the 
hall while he was there. Secretary Stanton 
yas on the left-hand side of the steps, talk- 
lag to Mrs. Grant, and the man went up on 
the right-hand side past them, and went in 
and took a place on the left-hand side. He 
had on a black slouch hat, a black frock- 
coat, and black pants; as to his vest I can 
not say. That was while the fifeworks were 
going on. I had never seen the man before. 
I have seen him once since in this prison; I 
came here a week ago last Sunday for the 
Purpose of identifying him. 
Mr. John C. Hatter. 
1 recognize that man, sitting back there, 
[pointing to the prisoner, O’Laughlin.] He 
?8 the man I saw at Secretary Stanton’s 
house at about 9 o'clock, or after, on the 
aight of the illumination, the 13th of April. 
. 1 was standing on the steps looking at the 
Rumination, and this man [O’Laughlin] 
approached me, and asked me if General 
was in. I told him he was. He said 
he wished to see him. Said I, “ This is no 
°ecasion for you to see him. If you wish 
*° see him, step out on the pavement, or on 
*he stone where the carriage stops, and you 
can see him,” That was all that occurred 
between us. He did not attempt to go into 
the house. When he spoke to me, he left 
the steps and walked away toward the tree- 
hex, talking as he went, but I did not under- 
-Bfand what he was saying. He seemed to 
Reflect over something, and came back; then 
h® walked off, and I did not see him any 
Hiore. The house was illuminated, and it 
pretty light outside, too. 
For the Prosecution.—May 16. 
Marcus P. Norton. 
For the Prosecution.—June 3. 
From about the 10th of January until 
about the 10th of March. I was stopping at 
the National Hotel in this city. I knew J. 
Wilkes Booth, having seen him several times 
at the theater. I saw the prisoners, George 
A. Atzerodt and Michael O’Laughlin, at the 
National Hotel prior to the inauguration of 
President Lincoln, in company with Booth. 
I saw Atzerodt twice, and O’Laughlin four 
or five times, I believe, in conversation with 
him. 
When I saw O’Laughlin talking with Booth 
at the National Hotel, he was in the presence 
of other people, and in the hall, but there 
was no one else in company with them. I 
heard no portion of the conversation. It 
was during the two months I was there, but 
I can not fix the precise date. 
See also testimony of 
Marcus P. Norton page 177 
Eaton G. Horner “ 234 
Cross-examined by Mr. Cox. 
Cross-examined by Mr. Cox 
I am a sergeant in the Adjutant-General’s 
Bervice, at the War Department, on duty at 228 
THE CONSPIRACY TRIAL. 
DEFENSE OF MICHAEL O’LAUGHLIN. 
Recalled for the Defense.—May 25. 
By Mr. Cox. 
Bernard J. Early. 
followed him. One of the party bought 
tickets to go back into the ball. We did 
not stay there more than about an hour; we 
got tired of the affair and came out. We 
then went up the avenue, stopped at several 
places, and went into the Metropolitan Hotel, 
between 1 and 2 o’clock. We went out 
again for about five minutes, and returned at 
about the hour of 2, when we went up stairs 
to bed. Mr. O’Laughlin was with us all 
that night. 
I do not know where Mr. Stanton’s resi- 
dence is; but I know the situation of the 
Treasury Building. 
Q. Mr. Stanton’s house is six squares 
north of that, and one square east; I ask 
you if it is possible that Mr. O’Laughlin 
could have been at Mr. Stanton’s at 9 
o’clock, or at any time between that and 11 
o’clock. 
We left Baltimore on Thursday, the 13th 
of April, by the half-past 3 o'clock train, and 
arrived here about half-past 5. After leaving 
the cars, we went along the avenue to a 
restaurant kept by Lichau, I think it is 
called Rullman’s Hotel. We remained there 
but a short time. Mr. Henderson went into 
the barber’s shop to get shaved; while he 
was in there, Mr. O’Laughlin asked me to 
walk down as far as the National Hotel with 
him. I did so; when there, he walked up 
to the desk and inquired for some person, 
and told me to wait; he would detain me 
only a few minutes. I told him that I did 
not like to wait; that I did not want to miss 
the rest of the party. He said he would 
not detain me more than ten or fifteen 
minutes, and left me standing in the front 
door. He then went in, and returned again 
in from three to five minutes. Henderson 
had not got through with his shaving by the 
time we got back. We all four then walked 
up the avenue, I guess as far as Eleventh 
Street; then returned, and went into Welch’s 
dining-saloon for supper. This saloon is 
over Wall & Stevens’. We left there about 
half-past 7, and returned to Rullman’s Hotel, 
and proceeded from there down as far as the 
corner of Third Street, where O’Laughlin 
and Murphy left Henderson and me, saying 
they were going around to see Mr. Hoffman, 
who was sick, and who lived on B Street. 
They returned in ten or fifteen minutes with 
Mr. Daniel Loughran. All five of us then 
started up the avenue to see the illumina- 
tion. About Seventh Street, one of the party 
complained of having sore feet, and said he 
would not go any further. Seeing a notice 
of the Canterbury Music Hall performances, 
we all went there, and got in about at the end 
of the first piece. It was then getting on 
for 9 o’clock. We remained there till 10 
o’clock, when we proceeded to the Metropoli- 
tan Hotel, and from there down to Lichau’s 
or Rullman’s Hotel, reaching there about 
half-past 10. O’Laughlin was with us all 
the time. We remained at the hotel about 
an hour, 1 suppose. As we were there on 
the steps, Mr. Grille! passed by with a lady, 
and spoke to Mr. O’Laughlin. We left there 
with Mr. Giles, one of the men of the. house, 
and went down as far as Second Street. I 
believe Mr. O’Laughlin is acquainted at the 
saloons on the corner of B Street and Second. 
There was a dance or some thing going on 
there. He took the lead over there and we 
Assistant Judge Advocate Binoham ob- 
jected to the question, and it was waived. 
Witness. On Friday night, O’Laughlin 
was in Rullman’s Hotel from about supper 
time until he went out with Mr. Fuller. We 
had supper at Welch’s at about 8 o’clock, 
and I suppose we staid there from about 
three-quarters of an hour to an hour. From 
Welch’s we went to Rullman’s. Whether 
Mr. O’Laughlin went out with Mr. Fuller 
before or after the assassination I can not 
say, but I distinctly remember his going out 
with him. 
Mr. O’Laughlin had on a dahlia coat— 
something of a frock—a double-breasted vest, 
and pantaloons of the same material—a 
Scotch plaid, purple and green. I mad® 
these things for him. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
On Friday evening, about 10 o’clock, I 
suppose, we were all under the influence of 
liquor. We might have drank as many 
as ten times; it was mostly ale, though, that 
Mr. O’Laughlin and myself drank. I hardly 
ever saw him drink liquor. I was not 
separated from O’Laughlin until he went out 
from Rullman’s Hotel. That was about W 
o’clock, or a little after. I next saw binl 
again on Saturday morning. RullmanS 
Hotel is between Third and Four-and-a-hab 
Streets. i 
By Mr. Cox. 
I have very seldom, if ever, seen O’Laugh' 
lin drink whisky. I have never seen hiol 
intoxicated but twice. I have known hi'o 
slightly for about four years, and intimately 
for the last ten months. DEFENSE OF MICHAEL o’LAUGHLIN. 
229 
Edward Murphy. 
For the Defense.—May 25, 
Henderson, who wanted to see a lady friend 
of his that night, and the whole party staid 
on that account. I remember Mr. Grillet 
joined us on the steps of the Rullman Hotel 
on Thursday night. 
I reside in Baltimore. On the 13th of 
v-Pril last, in company with James B. Hen- 
derson, who proposed the trip, Michael 
O Laughlin, and Barney Early, I came to 
Washington. We arrived here about 5 in 
he afternoon. From the depot we went to 
Rullman’s, had a drink or two, and started 
cjr the Metropolitan. We went to several 
Places; took supper at Welch’s, somewhere 
about 8 o’clock. We were there about half 
an hour, and then came down to Rullman’s 
again. There we met, I think, John Lough- 
and took a walk up the street to see 
he illumination of the Treasury, and stopped 
®h the corner of Ninth Street and the avenue. 
Wfter standing debating there some time, we 
ent to the Canterbury Music Hall, staid 
'-here some time, walked down to the Metro- 
politan Hotel, and then came back to Rull- 
'han’s. It was about a quarter to 10 when 
got into Rullman’s. O’Laughlin was 
us all the time. Then we went up to 
Rlatz’s and back again. That brought us 
j° about half-past 11 or 12. We then started 
hown to Riddle’s, on the corner of B and, 
second Street, where we staid until half-past 
h- or 1; from there we went to Dubant’s, on 
‘he corner of Sixth and the avenue, wdiere 
took a hack, and went to the corner of 
\enth and the avenue. There is an all- 
tllglit house there, and we went in and got 
some refreshments. I suppose it was about 
lalf.past 1 when we were there. It was 
aPout 2 o’clock when we got to the Metro- 
P°}itan and registered our names. Before 
By M. Cox. 
Recalled for the Defense.—May 25. 
I saw O’Laughlin in Baltimore on the 
Sunday after the assassination, and he told 
me that the officers were in search of him, 
and that he was going to surrender himself 
on the Monday following. 
By Me. Cox. 
James B. Henderson 
Recalled for the Defense.—June 12. 
By Mr. Cox 
I am an Ensign in the United States Navy. 
I have been acquainted with the prisoner, 
Michael O’Laughlin, for about six years. I 
proposed to him that we should come to 
Washington on Thursday, the 13th of April, 
and we left Baltimore at 3:30 on that after- 
noon, arriving in this city between 5 and 6, 
I judge. On our arrival, we came up the 
avenue, and stopped at the Lichau House, 
or Rullman’s Hotel. I went into the barber’s 
shop adjoining to get shaved, and O’Laugh- 
lin went up the street in the mean time, but 
he returned before I had finished shaving, 
and, with the exception of that, he was not 
out of my company the whole evening until 
bedtime. I went up the avenue to look at 
the illumination. We did not go up as far 
as Ninth Street. We stopped at the corner 
of Seventh, and then went back to the Can- 
terbury Music Hall. We reached there 
l°lng to bed, we went across the street to 
ugon’s and got a drink. It made it about 
alt-pagt 2 when we got to bed. Michael 
Taughlin was with us all the time from 
eaving the cars until we all went to bed, 
S*cept that when we first came down, while 
Henderson was being shaved. O’Laughlin 
nd Early left us for about five minutes and 
ent as far as the National Hotel. They 
ere back before Henderson was shaved; i 
about 9 o’clock; after staying there perhaps 
three-quarters of an hour, we returned to 
Rullman’s Hotel. We got there between 10 
and 11, and staid about half an hour there. 
I retired for the night, at the Metropolitan 
Hotel, at between 1 and 2 o’clock in the 
morning. 
The avenue was very much crowded. It 
was almost impossible for a person to get 
along, and we did not go further west than a 
morning. 
The avenue was very much crowded. It 
was almost impossible for a person to get 
along, and we did not go further west than a 
- VC*V/I\ UCiViC J.JLCIJUCIOUU UttO vvi j 
ei"e not gone more than five or six minutes, 
o think I know where the house of Mr. 
Q’ant°n, the Secretary of War, is, and 
Laughlin was no nearer to it that night 
)atl the corner of Ninth and the avenue, 
g -t \vag with him all day Friday and up to 
jr° clock that night, when I went to the 
a Hropditau Hotel, and did not see him 
j§am until Saturday morning. On Saturday 
in^88 from 9 o’clock in the morn- 
g till we went to the depot to go to Balti- 
ore. i noj. know Gf the assassination 
8a ,°’clock Saturday morning. I never 
tli'V 'Laughlin in better spirits in my life 
8tatl was during this trip. When we 
rted from Baltimore, it was our intention 
in UP .on Friday afternoon, but we staid 
Washington at the solicitation of Mr. 
little beyond Seventh Street, on Thursday 
evening; O’Laughlin was not any where in 
the neighborhood of Franklin Square—Mr. 
Stanton’s; he was with me all the time, except 
when I was being shaved. I do not know 
certainly whether he slept at the Metropolitan 
that night; I saw him in his room, and was 
there the next morning when they called him. 
On the Friday afternoon he left me in com- 
pany with Mr. Early, I think, but I met him 
again in the evening at Rullman’s Hotel. He 
was there with me until 10 o’clock I should 
think, and then he went out with a man 
named Fuller. He was there when the 
news of the President’s assassination came. 
Our party had arranged to return to Balti- 
more on Friday morning, but I proposed to 
them to stay until Friday evening. 230 
THE CONSPIRACY TRIAL. 
Cross-examined by the Judge Advocate. 
home to supper. O’Laughlin and Murphy 
came to my boarding-house, and we met 
Henderson and Early in front of Adams’ Ex- 
press Office, on Pennsylvania Avenue; that 
was about 8 o’clock. After we joined them, 
we went into Platz’s Restaurant, and from 
there to Rullman’s Hotel. From Eullman’s 
we went up to the corner of Pennsylvania 
Avenue and Ninth; it was about 9 o'clock 
then, for I looked at my watch. We then 
went into the Canterbury, staid there until 
10 or perhaps half-past; from there we went 
to the Metropolitan Hotel, and then to Rull- 
man’s, reaching there probably at halfpast 
10; perhaps a little earlier or later. Michael 
O’Laughlin was with me from the time we 
joined Henderson and Early until we went 
down to Rullman’s Hotel. 
I do not know the name of the street on 
which Mr. Stanton resides, but I have been 
shown the house. It was impossible for 
O’Laughlin to have been there on the even- 
ing of Thursday, the 13th of April, for I was 
with him the whole evening. There was a 
good deal of free drinking that night by our 
party, and it was continued until a late 
hour. It would be impossible for me to say 
how many drinks we had; I should think 
not more than ten. They were mostly taken 
at hotels and restaurants on the avenue. One 
of the party was drunk—Mr. Early—but the 
others were sober enough, I think, to be con- 
scious of each other’s movements, or presence, 
or absence. 
O’Laughlin left me but for a short time 
on our arrival in Washington, while I got 
shaved, and told me he had been to see Booth. 
That was between 5 and 6 o’clock. I knew 
of his going to see Booth the next morning 
at the National Hotel, and I went there to 
call for him, but found he had left. On going 
back to Rullman’s, I found he was there, 
and he said he had been to the National 
Hotel, but Booth was out. I do not know 
of any other attempt on his part to see 
Booth, nor do I know his object in seeking 
that interview. 
I do not know where Mr. Stanton’s house 
is, but I know where Franklin Square is, 
and I know that O’Laughlin could not have 
been up there during that time. Mr. Grillet 
joined us at Rullman’s at about half-past 10, 
and I was with them until after 12 o’clock. 
O’Laughlin was there all that time. 
I saw them the next evening, I judge, be- 
tween 7 and 8, at Rullman’s Hotel; 1 was 
there until perhaps half-past 9. I do not 
know that they went to Welcker’s; 1 heard 
them speaking about going to supper, but 
where they went I do not know, nor do X 
know whether O’Laughlin went to supper. 
I did not miss him from the time I went 
there until about half-past 9, when I went 
home, and saw him no more that night. 
P’Laughlin wore a plaid vest and pants; the 
pants he wears now look like the ones. I 
think he had on a black slouch hat. 
O’Laughlin did not say any thing to me 
about Booth owing him money, and that he 
wanted to get some from him. He only told 
me that he had been to see him; he did not 
say whether he had seen him or not; and on 
Friday he said that Le had been to see him, 
and he was not a! nome. 
By Mr. Cox. 
By the Court. 
We occupied different seats at the Canter- 
bury play-house; two of us sat on one seat, 
and the other two sat right behind. 1 saw 
them there all the time, and we all left to- 
gether. 
By Mr. Cox. 
By the Judge Advocate. 
I had no particular reason for not return- 
ing to Baltimore on Friday; I wanted to stay 
a little while myself, and asked the others 
to stay. O’Laughlin himself had not spoken 
of staying over. It was on the Wednesday 
that we arranged to come to Washington on 
the Thursday; I proposed that we should all 
come down on that day. I do not remem- 
ber that O’Laughlin made any suggestions 
about it; I think I asked him to comedown. 
I had been on terms of intimate association 
with him for only about a week previous to 
that. 
O’Laughlin seemed very lively. The re- 
mark was made that they had come down 
from Baltimore to see the illumination and 
have a good time. Ido not think he was in- 
toxicated on Thursday evening; he was lively 
and merry, but I can not say he was tight 
or drunk. 
George Grillet. 
For the Defense.—May 25. 
By Mr. Cox. 
For the Defense.—May 25. 
Daniel Loughran. 
By Mr. Cox. 
I reside in Washington, and am solicitor 
for the New York Cracker Bakery, 96 Louis- 
iana Avenue. I have known the accused, 
Michael O’Laughlin, one or two years. X 
saw him on the steps of Rullman’s Hotel, 
between 10 and half-past 10, on the night of 
Thursday, the 13th of April, and he bowed 
to me. Lieutenant Henderson and Edward 
Murphy were with him, and Henry Purdy, 
I reside in this city. I have known the 
accused, Michael O Laughlin, for eighteen or 
twenty months. On Thursday evening, the 
13th of April, at about a quarter past 7, I 
saw him in front of Rullman’s Hotel, on 
Pennsylvania Avenue, in company with Lieu- 
tenant Henderson, Edward Murphy, and Ber- 
nard Early. I did not join them then; I went DEFENSE OF MICHAEL O’LAUGHLIN. 
231 
superintendent of the house, was on the 
porch, I believe. After I had escorted home 
|he lady that was with me, I returned to the 
house and joined the party, and did not leave 
them until between 12 and 1 o’clock. I saw 
0 Laughlin the next morning, and then not 
Until 8 o’clock at night; I staid with them 
Until between 11 and 12. I was at the Lichau 
House or Rullman’s Hotel when I heard 
the news of the President’s assassination. 
0 Laughlin was there at the time. I did not 
uotice how he behaved when he heard of the 
Ussassination. He left shortly after the news 
came that the President was killed; he and 
a man named Fuller left together. On that 
evening 1 know he had on a Scotch plaid vest 
Und pants; I can not swear positively to the 
c°at, but he had a habit of wearing a sack- 
coat. 
John H. Fuller. 
For the Defense.—May 25 
I am engaged in business in this city. I 
have known the accused, Michael O’Laugh- 
lin, for twelve or fourteen years. On Friday, 
the 14th of April, I saw him at Rullman’s 
on the avenue between 7 and 8 o’clock, and 
again between 10 and 11. He and I were 
both there when the news of the President’s 
assassination was brought in, and we left 
there together to go to the Franklin House, 
where I was stopping. He staid all night 
with me, and got up about 8 o’clock next 
morning, and went with me to New Jersey 
Avenue, and then to the Lichau House, and 
there I parted with him; he joining his other 
friends there. When he heard of the Presi- 
dent’s assassination, he did not show any 
fright, nor did he say any thing about Booth ; 
he said he was sorry for it; that it was an 
awful thing. 
By Mb. Cox. 
Henry E. Purdy. 
For the Defense.—May 25. 
By Mr. Cox. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
. I am superintendent of Rullman’s Hotel 
111 this city. I saw the accused, Michael 
O’Laughlin, at about half-past 10 on the 
fright of Thursday, the 13th of April, with 
George Grillet, Loughran, Murphy, and Early; 
■i do not know where they came from. I was 
Principally in the kitchen and the dining- 
room, and walking around; in the bar only 
°ocasionally. Whenever I was in the bar 
they were there, until a few minutes after 12 
0 clock, when I closed up, and they went out 
at the side door. lam confident thatO’Laugh- 
Ln was with them when they came there at 
about half-past 10; 1 have known him about 
Hree months. I saw them again on Friday 
the same place. 
I was standing in front of the door when 
heard of the assassination, and I went in 
afrd told them what I had just heard from 
a cavalry sergeant; that the President had 
frfren assassinated, and that Booth was the 
One wh*o had done it. They were all stand- 
Jng together drinking. O’Laughlin was right 
frl the end of the bar, and he was the one I 
frret spoke to when I went in. 
When I went in he seemed surprised, and 
6a,id he had been in Booth’s company very 
®ftcn, and people might think he had some- 
Hing to do with it. Ido not remember when 
tj1® individually left that night, but it was after 
" when the whole party was gone. He has 
Hnid at my house when he has come down to 
lne city. 
O’Laughlin was stopping at anefther hotel, 
but I invited him to go with me that night; 
he used to go down there with me at times 
to stay. Ido not know where he stopped on 
Thursday night. 
By Mr. Cox. 
He used to reside in Washington; his 
brother was in business here. 
John R. Giles. 
For the Defense.—June 3, 
I am bar-tender at No. 456 Pennsylva- 
nia Avenue, late Rullraan’s Hotel. I have 
known the accused, Michael O’Laughlin, 
about four months. He was at 
our place on the evening of Thursday, the 
13th of April, with Barney Early, Murphy, 
Lieutenant Henderson, Purdy, and several 
others. He was there early in the evening, 
and again about 10 o’clock, and staid till 
after 11. I joined them when they went out, 
and was with them until 1 o’clock. They 
were there again on Friday evening, nearly 
all the evening. The news of the assassina- 
tion came in, I think, between half-past 9 
and 10; and O’Laughlin was there at that 
time. He afterward went out with Mr. Ful- 
ler. The Lichau House is on Louisiana 
Avenue, between Four-and-a-half and Sixth 
Streets, and the Canterbury Music Hall is 
next door. 
By Mb. Cox. 
Sometimes he would come down pretty 
°ften in a week, and sometimes I would not 
6(re him for two weeks. On the Thursday 
*frght he had dark clothes on; he generally 
dark clothes. I did not take particular 
fr°tice of his dress, and can not say whether 
1 was the same as that he now wears. 
By the Court. 
Cross-examined by Assistant Judge Advocate 
Bingham. 
It might have been after 10 o’clock that 
the news of the President’s assassination 
was brought in—l can not say exactly. 232 
THE CONSPIRACY TRIAL. 
O’Laughlln was at our house on Friday 
evening from 7or 8 o’clock till 11. He was 
out on the pavement, and in and out drink- 
ing, but was not away from the house. 
stated yesterday, in regard to a similar ques- 
tion, in which he had been sustained by the 
Court, that if such a rule as that were 
adopted and acted upon by courts, all that 
a guilty man would have to do, after he had 
committed a great crime, would be to pour 
his statements into the ears of all honest 
people that he met up to the time of his ar- 
rest, and then prove those statements on his 
trial. The law says that he shall not do any 
such thing, and I object to it on that ac- 
count. 
For the Defense.—May 26. 
P. H. Matjlsby. 
By Mr. Cox. 
I am a clerk with Eaton Bros. & Co., of 
Baltimore, and am brother-in-law to the 
accused, Michael O'Laughlin. O’Laughlin, 
I believe, came from the South to Baltimore 
in August, 1862. He came home somewhat 
sick. He then went with his brother, who 
was in the produce and feed business, and 
remained with him until the fall of 1863. 
His brother then sold the business, but 
Michael O’Laughlin remained here and re- 
ceived orders, which his brother supplied 
from Baltimore. O’Laughlin was here off 
and on from that period up to the 14th of 
March. 
Mr. Cox stated that he desired to prove 
by this witness, that the prisoner, Michael 
O’Laughlin, was informed that the officers 
had been in pursuit of him; that he in- 
formed the witness that he had an engage- 
ment on Saturday night, but would commu- 
nicate with him the next day ; that on Mon- 
day he did send for him to come to him, and 
authorized him to procure an officer, and 
put himself in his custody, declaring all the 
time his entire innocence of any complicity 
with this affair. • 
I knew J. Wilkes Booth intimately. Mrs. 
Booth owns the property in which the 
O’Laughlin family resides, and Mrs. Booth 
lived opposite for four years. The boys, 
Michael and William, were schoolmates of 
J. Wilkes Booth. To my knowledge, their 
intimacy has continued for twelve years. 
After leaving Washington, the home of 
Michael O’Laughlin was with me, at 57 
North Exeter Street. From the 18th of 
March to the 13th of April he was with me, 
and from the 30th of March to the 12th of 
April, I can speak positively as to his being 
with me at Baltimore. I know he was at 
home on the 7th of March, and remained 
at home some days. I know of his being 
sent to Washington by his brother on the 
13th of March, and on the 14th his brother 
telegraphed him here respecting a car-load 
of hay. 
[A telegraphic dispatch relating to the hay was read and 
put in evidence.] 
The Judge Advocate said the witness 
should be instructed that he is not to give 
the declarations of the prisoner, but simply 
his acts, in evidence. 
Q. You say you informed him on Satur- 
day afternoon that the officers had been in 
search of him ? 
Q. Did he protest his innocence ? 
Assistant Judge Advocate Bingham ob- 
jected to the question. There was no au- 
thority in the world for such a question as 
that; it was a burlesque upon judicial pro- 
ceedings. 
Mr. Cox insisted on the question. If a 
party flees and avoids arrest, it would cer- 
tainly be receivable for the prosecution; but 
if he candidly comes forward and says, “ I 
am not guilty, and I offer myself for investi- 
gation and trial,” it should equally be re- 
ceivable for the defense. 
A. 1 did. 
He returned to Baltimore on the following 
Saturday, and from that time he remained 
at home till he came to Washington on the 
13th of April. In February, I could not 
state positively as to his being at home. He 
was at home on the 7th and on the 14th, 
and my impression is that he was then home 
for a couple of weeks. 
Q. At what time did he arrive at home 
after the assassination ? 
The Judge Advocate stated that that was 
hot the rule of law. The Government could 
give the declarations of the accused in evi- 
dence, but it did not follow from that that 
the prisoner could. 
Mr. Cox replied that where it was a part 
of his conduct, he could. He could not 
prove his innocence by declaring himself sot 
but where it was a part of his conduct it 
was receivable upon the question of how far 
he was conscious of guilt. 
The Commission sustained the objection. 
Witness. On Monday morning Michael 
O’Laughlin authorized me to procure an 
officer, and voluntarily surrendered himself 
I have known O’Laughlin for about twelve 
years. 
A. He came up on Saturday evening; I 
saw him about 7 o’clock. 
Q. Had the officers been to the house then 
in search of him ? 
A. They had. 
Q. Did "you inform him of that? 
A. I did. 
Q. Then what took place? 
A. He told me that— 
Assistant Judge Advocate Bingham ob- 
jected to the accused giving his own declara- 
tions in evidence, for the reason that he had 
Q. State his disposition and character; 
whether he is violent and bad-hearted, or, 
on the contrary, amiable, raild-tempered, etc. 
A. As a boy, he was always a very timid 
boy. From my observation of twelve yeara» DEFENSE OF MICHAEL o’IAUGHLIN. 
233 
I believe him to be the last one who would 
bave any thing— 
Assistant Judge Advocate Burnett. What 
3'ou believe is not evidence. 
Mr. Cox. I meant to ask the witness 
from his knowledge of the accused, 
be believes him capable of being engaged in 
a,ly tiling of this sort. 
. Assistant Judge Advocate Bingham. I ob- 
ject to his swearing to conclusions. He 
cun state tWe general, character of the ac- 
cused, but he can not swear to conclusions, 
b bis is a matter exclusively for the Court. 
Witness. I was merely about to speak of 
bis capability, judging from my observation 
his disposition. 
Assistant Judge Advocate Bingham. You 
Can state his disposition. 
. Q. State what his disposition is as to amia- 
bflity, peacefulness, etc. 
A. I have always regarded him as an 
auiiable boy. 
Q. Was he violent on political questions? 
A. I never recollect having seen, him in a 
Passion in my life. On political questions 
be has never been violent. I have never 
beard him express any opinion, except in a 
very moderate way, on the issues of the 
limes. 
tion of the Court, whether the accused, with 
that consciousness of innocence which would 
govern a man who was innocent, did really 
act in accordance with that consciousness, 
by voluntarily submitting himself to the 
officers of justice, professing his willingness 
to submit to an investigation. If the flight, 
which the prosecution have attempted to 
prove, was evidence of guilt, certainly it was 
competent for the defendant to meet that 
evidence by proof, on the contrary, that 
there was no flight, no evasion, but a volun- 
tary submission to the officers of the law, 
with a view of having the merits of the case 
fairly tried. 
The Judge Advocate said that the witness 
might be asked if he did it himself, or if he 
did it by the prisoner’s authority. 
Q. State whether you surrendered the ac- 
cused into the custody of an officer by the 
authority of the accused himself. 
A. I did, sir, most certainly. 
On Saturday evening, at 7 o’clock, I met 
Mr. O’Laughlin and Mr. Early together, just 
as they returned from Washington. On 
Sunday morning Mr Wallace and other 
officers came to our house in search of 
O’Laughlin. I believe officers had been there 
on Saturday, though I had not seen them. 
On Monday I was sent for by Michael. I 
went for a hack, and called for Mr. Wallace, 
who was not then aware of O’Laughlin’s 
whereabouts. I went into the house, Mr. 
Wallace remaining in the hack, and Michael 
came out, and I introduced him to Mr. Wal- 
lace and Mr. James S. Allison. There was 
nothing, I believe, said from that time till 
we reached the Marshal’s office. 
Q. There has been some testimony by Mr. 
'Wallace about his arrest of the accused. I 
"’ould like you to state the facts in regard 
that alleged arrest, and what Mr. Wallace 
bad to do with it. In the first place, I will 
Squire whether Michael had authorized you 
go for an officer ? 
Assistant Judge Advocate Bingham. That 
b object to. 
Mr. Cox. Then I will ask the witness 
he went for an officer, and whom 
be procured. 
A. The facts in the case are simply these: 
'’hen I met Michael I suggested to him— 
Assistant Judge Advocate Bingham. You 
aeed not state any thing that you said to 
Michael. 
Q State what you did after leaving him 
011 Monday morning. 
A. On Monday morning he sent for me 
ar*d said— 
Assistant Judge Advocate Bingham. You 
Deed not state what he said. 
Q- What did you do in consequence of 
"'bat he said to you ? 
. Assistant Judge Advocate Bingham ob- 
Jected. The question assumes that the ac- 
cUaed told the witness something, and the 
"’Aness was asked to swear that, in consc- 
ience of what the accused told him, he did 
®°Diething else. The counsel had no right 
0 assume any thing here as proof that was 
a°t proof; and more especially had he no 
j.Sbt to assume as proved what was incapa- 
l. of being proved—the declarations of his 
client. 
Mr. Cox replied that the whole object of 
e inquiry was to ascertain, for the satisfac- 
Q. 1 ask you to state, further, whether he 
offered to inform you where he could be 
found that night, if wanted. 
Assistant Judge Advocate Bingham ob- 
jected to the question, and the Commission 
sustained the objection. 
Q. Did you know Booth intimately ? 
A. Yes, sir. 
Q. State whether he was a man of pleas- 
ing address. 
Assistant Judge Advocate Bingham. I 
object to all that. 
Mr. Cox. What I desire to show to the 
Court, and what all the counsel desire, is to 
have some evidence as to the character of 
this man, John Wilkes Booth. There is 
nothing in the case yet to reflect any light 
at all on that question. If any of these ac- 
cused should be found guilty of association 
with him in this serious crime, Booth’s in- 
fluence upon them, whatever it may have 
been, would not affect the question of their 
innocence, but it is a consideration, which 
goes in mitigation of their guilt, that Booth 
was a man who naturally acquired a great 
ascendency over young men with whom he 
associated, and could warp them from the 
right by means of his control over them. 
My desire is to introduce some evidence on 234 
THE CONSPIRACY TRIAL. 
that subject, and it is the desire of all the 
counsel for the defense. The question which 
I propound to the witness is a preliminary 
question, designed to introduce that sub- 
ject. „ * 
The Judge Advocate. It does not miti- 
gate the assassination at all, that it was per- 
formed by a man of fascinating address and 
pleasing manners. 
Mr. Cox. No, but it mitigates the act of 
the other parties that they were acting under 
his influence. 
The Judge Advocate. Not at all. 
The Commission sustained the objection. 
TESTIMONY CONCERNING SAMUEL ARNOLD. 
Eaton Gf. Hoeneb. 
(under the guidance and advice of the learned 
Judge Advocate) and the facts of the case, 
will discard entirely from the record all evi- 
dence which is clearly inadmissible, and 
which ought not to be weighed adversely to 
a prisoner, because it is impossible for any 
man, in the nature of things, to discard from 
his consideration and prevent his judgment 
from being biased by evidence which is once 
submitted to him, and which may be in its 
nature adverse to the prisoner, although it 
may be incompetent and illegal evidence. 
Mr. Ewing. The Judge Advocate, in the 
charges and by the evidence, has sought to 
associate him with the conspiracy, and one of 
the links of the association is the arms there. 
Therefore it seemed to me that any statement 
he made at that time and place, with refer- 
ence to his connection with the conspiracy, 
is legitimate. If the Court will allow me, I 
will read a short paragraph from Roscoe’s 
Criminal Evidence, page 53: 
“ Where a confession by one prisoner is 
given in evidence which implicates the other 
prisoners by name, a doubt arises as to the 
propriety of suffering those names to be men- 
tioned to the jury. On one circuit the prac- 
tice has been to omit their names, (jFletcher's 
Case, 4 C. & P. 250,) but it has been ruled 
by Littledale, J., in several cases, that the 
names must be given. Where it was objected, 
on behalf of a prisoner whose name was thus 
introduced, that the witness ought to be di- 
rected to omit his name, and merely say 
another person, Littledale, J., said, ‘The 
witness must mention the name. He is to 
tell us what the prisoner said, and if he left 
out the name he would not do so. He did 
not say another person, and the witness must 
give us the conversation just as it occurred; 
but I shall tell the jury that it is not evidence 
against the other prisoner.’, {llearne s Case, 
4 C & P. 215; Clewes Case, Id. 255>” 
That paragraph evidently contemplates 
only confessions introduced by the prosecu- 
tion; but if the course of the examination has 
been such as to make it the right of a prisoner 
to introduce a confession or statement, made at 
a particular moment, on his own behalf, he 
has just as much right to introduce the com 
On the morning of the 17th of April, Mr. 
Voltaire Randall and myself arrested the 
prisoner, Samuel Arnold, at Fortress Monroe. 
We took him in the back room of the store, 
where he slept. We there searched his per- 
son and his carpet-bag, in which we found a 
pistol, something like a Colt’s. He said he 
had left another pistol and a knife at his 
father’s, at Hookstown. 
For the Prosecution.—May 18. 
Cross-examined by Mr. Ewing. 
Arnold made a statement verbally to us at 
Fortress Monroe. Before we left Baltimore, 
a letter was given to us by his father to give 
him when we should arrest him. We handed- 
him the letter, and he read it, I inquired of 
him if he was going to do as they asked him 
to do, and he said that he was. He then gave 
us a statement and the names of certain men 
connected with a plan for the abduction of 
Abraham Lincoln. 
Mr. Stone. I object to the declarations of 
one of the accused against others of the ac- 
cused, made perhaps to throw the responsi- 
bility oft" his o\Yn shoulders on that of the 
others. 
Mr. Ewing. The confession of one of the 
accused in a conspiracy or alleged conspiracy, 
after the conspiracy has been either executed 
or abandoned, is not admissible—that is, will 
not be considered by the Court in weighing 
the question of the guilt or innocence of 
those who are associated with him in the 
charge; but that is a rule of law which 
should not be so applied as to cut off one of 
the accused from giving in evidence any state- 
ment which he made, accompanying such an 
incident as his confession of the possession of 
arms. 
Me. Stone. I take it, that is not the rule 
which governs courts-martial, as it certainly 
does not govern any other courts in the con- 
sideration of evidence. Whatever is not com- 
petent evidence is not allowed to go to a jury 
at all; it is excluded from their consideration 
entirely; and I take it for granted that this 
Court, having to determine both the law TESTIMONY CONCERNING SAMUEL ARNOLD. 
235 
Session, even though there be others associated 
Wlth him in the charge, as the prosecution 
have, if it saw fit to do so. 
The President, after consultation with the 
Members of the Commission, announced that 
the objection was overruled. 
The question was repeated to the witness. 
Witness. About three weeks previous to 
Arnold’s going to Fortress Monroe, he said he 
'yas at a meeting held at the Lichau House, 
°a Pennsylvania Avenue, between Sixth and 
Tour-and-a-half Streets. J. Wilkes Booth, 
Michael O’Laughlin, George A. Atzerodt, 
John H. Surratt, and a man with the alias 
°f Moseby, and another, a small man, whose 
fiame I could not recollect, were there. I 
a§ked him if he ever corresponded with Booth. 
At first he denied, but on my mentioning the 
letter that had been found in Booth’s trunk, 
Mailed at Huntstown, he admitted that he 
'vrote that letter. In the same conversation 
lie told me about the pistol and knife at his 
father’s farm. We imprisoned him till even- 
lng, when we brought him to Baltimore. 
an exchange of prisoners, or something like 
that. I asked him what he was to do in it, 
what his part was; I think he said he was 
to catch the President when he was thrown 
out of the •ox at the theater. 
On my asking Arnold where he got the 
arms, he said that Booth furnished the arms 
for all the men. Arnold said he asked Booth 
what he should do with the arms; Booth 
told him to take them and do any thing with 
them; sell them if he chose. There was a 
knife and a pistol at his father’s, and a pistol 
he brought with him to Fortress Monroe to 
sell; that is the one we got in his carpet-bag. 
By Mr. Cox. 
From what Arnold said, I do not think 
that the meeting to which he referred was 
the first meeting. He said that at that 
meeting there were some new men that he 
had not seen before. He said that after dis- 
cussing the scheme, he came to the con- 
clusion that it was impracticable; that was 
the word he used. I understood him that 
he individually abandoned the scheme at that 
time, but I did not understand that the 
scheme was abandoned by the party, but that 
he considered that plan or mode of kidnap- 
ping the President as impracticable, and 
wished to withdraw from having any thing 
further to do with it. This meeting, 1 under- 
stood Arnold to say, was a week or two, it 
might have been two or three weeks, before 
he went to Fortress Monroe. There was no 
rope found in Arnold’s sack. 
In that conversation, Arnold said that 
Booth had letters of introduction to Dr. 
Hudd and Dr. Queen, but he said he did not 
know from whom Booth got the letters. On 
Arriving in Baltimore, we took Arnold to 
Marshal McPhail’s office. At the meeting 
at which Arnold and others were present an 
angry discussion took place. Booth, he said, 
Sot angry at something he said. Arnold said 
that if the thing was not done that week that 
be was there, he would withdraw. Booth 
got angry at this, and said that he ought to 
be shot for expressing himself in that way, 
M he had said enough for Booth to shoot 
aim, or words to that effect, when Arnold 
Said that two could play at that game. 
Arnold said that he withdrew at that time, 
aad on the Ist of April occupied a position 
at Fortress Monroe with Mr. W. Wharton. 
He did not state, or I do not remember, 
the precise date of the meeting, and I do not 
know whether he said he had seen Booth 
Bince or not. 
Q. But he stated that he had nothing more 
*-° do with the conspiracy? 
Assistant Judge Advocate Bingham objected 
*° the question. 
Witness. Arnold said that he would with- 
draw, or would have no connection with the 
business, if it was not done that week, on 
Booth said something to the effect 
hat he would be justified in shooting him 
°r expressing himself in that way. Ido not 
reMember that he said after that that he would 
withdraw. He said that after that he did have 
Nothing more to do with the conspiracy, but ac- 
pepted a position under Mr. Wharton. He said 
tJle purpose of the parties in this conspiracy, 
bp to the time he withdrew, was to abduct or 
Mdnap the President, and take him South, for 
bbe purpose of making this Government have 
Cross-examined by Mr. Ewing. 
Voltaire Randall. 
For the Prosecution.—May 25. 
I know the prisoner, Samuel Arnold. 
When we arrested him, I examined his 
carpet-sack, and found in it some letters, 
papers, clothing, a revolver, and some car 
tridges. 
[Submitting to the witness a revolver.] 
This is the same revolver; the number is 
164,557. I made a memorandum of it at 
the time, and this is the same. It was loaded 
then and is now. It is a Colt’s navy pistol. 
[The pistol was offered in evidence.] 
I arrested Arnold at the storehouse of John 
W. Wharton, near Fortress Monroe. I be- 
lieve the place is called Old Point; it was 
not in the fort. 
Cross-examined by Mr. Ewing. 
Lieutenant William H. Terry 
I am attached to Colonel Ingraham’s office 
in this city. On the night after the assassin- 
ation, Mr. William Eaton, who has testified 
in this case, and who took charge of the 
trunk of J. Wilkes Booth, placed in my 
hands the papers found among Booth’s 
effects. 
For the Prosecution.—May 18. 236 
THE CONSPIRACY TRIAL. 
[A letter was handed the witness.] 
William McPhail. 
That is one of the papers, and it was in 
that envelope. Colonel Taylor marked the 
envelope “ Important,” and signed his initials 
to it. • 
For the Prosecution.—May 18. 
[The letter was read as follows: J 
I am acquainted with the handwriting of 
Samuel Arnold. 
Hookstown, Balto. Co.,] 
March 27, 1865. J 
[Exhibiting to the witness the letter signed “ Sam.”] 
That has somewhat the appearance of his 
handwriting, though I think it is rather 
heavier in some parts of it. I should say it 
was his handwriting. 
Dear John: Was business so important 
that you could not remain in Balto. till I 
saw you? I came in as soon as I could, 
but found you had gone to W—n. 1 called 
also to see Mike, but learned from his mother 
he had gone out with you, and had not re- 
turned. I concluded, therefore, he had gone 
with you. How inconsiderate you have been ! 
When I left you, you stated we would not 
meet in a month or so. Therefore, I made 
application for employment, an answer to 
which I shall receive during the week. I 
told my parents I had ceased with you. Can 
I, then, under existing circumstances, come 
as you request? You know full well that 
the G—t suspicions something is going on 
there; therefore, the undertaking is becom- 
ing more complicated. Why not, for the 
present, desist, for various reasons, which, if 
you look into, you can readily see, without 
my making any mention thereof. You, nor 
any one, can censure me for my present 
course. You have been its cause, for how 
can I now come after telling them I had left 
you ? Suspicion rests upon me now from my 
whole family, and even parties in the county. 
I will be compelled to leave home any how, 
and how soon I care not. None, no not one, 
were more in favor of the enterprise than 
myself, and to-day would be there, had you 
not done as you have—by this I mean, man- 
ner of proceeding. I am, as you well know, 
in need. I am, you may say, in rags, 
whereas to-day I ought to be well clothed. 
I do not feel right stalking about with means, 
and more from appearances a beggar. I feel 
my dependence; but even all this would and 
was forgotten, for I was one with you. Time 
more propitious will arrive yet. Do not act 
rashly or in haste. I would prefer your first 
query, “go and see how it will be taken 
at R d, and ere long I shall be better 
prepared to again be with you. I dislike 
writing; would sooner verbally make known 
my views; yet your non-writing causes me 
thus to proceed. 
Do not in anger peruse this. Weigh all I 
have said, and, as a rational man and a, friend., 
you can not censure or upbraid my con- 
duct. I sincerely trust this, nor aught else 
that shall or may occur, will ever be an 
obstacle to obliterate our former friendship 
and attachment. Write me to Balto., as I 
expect to be in about Wednesday or Thurs- 
day, or, if you can possibly come on, I will 
Tuesday meet you in Balto., at B . Ever 
1 subscribe myself, 
Your friend, SAM. 
Cross-examined by Me. Ewing. 
I became acquainted with his handwriting 
from having a confession of his placed in 
my hands. It was a paper purporting to 
state all he knew in regard to this affair. It 
was written in the back room of Marshal 
James McPhail’s office, No. 4 Fayette Street, 
Baltimore. The paper was handed by me to 
the Marshal, and I was informed that the 
officers delivered it to the Secretary of War 
For the Prosecution.—May 25. 
By the Judge Adtocate. 
Geokge R. Magee. 
Q. State to the Court whether you know 
the prisoner at the bar, Samuel Arnold. 
A. I do. 
Q. State to the Court whether or not he 
has been in the military service of the rebels. 
Mr. Ewing. I. object to that question. 
Arnold is here on trial for having been en- 
gaged in a conspiracy to do certain things, 
and it is not competent for the Government 
to show (if such be,the fact) that before he 
entered into the conspiracy he was in the 
military service of the Confederate States. 
He is not on trial for that. He is on trial 
for offenses defined clearly in the charge and 
specification, and it seems to me it is not 
competent to aggravate the offense of which 
he is charged, and of which they seek to 
prove him guilty, by proving that he has 
been unfaithful to the Government in other 
respects and at other times, and it can be 
introduced for no other purpose than that 
of aggravating his alleged offenses in connec- 
tion with this conspiracy. That course of 
testimony would be, in effect, to allow the 
prosecution to initiate testimony as to the 
previous character of the accused; and that is 
a right that is reserved to the accused, and is 
never allowed to the prosecution. It would 
do more than that; it would allow them to 
do what the accused is not allowed on his 
own behalf on the point of character—that 
is, to show acts wholly unconnected with the 
crimes with which he is charged, from which 
his previous character may be inferred. 
The Judge Advocate. I think the testi- 
mony in this case has proved, what I believe 
history sufficiently attests, how kindred to 
each other are the crimes of treason against 
a nation and the assassination of its chief 
magistrate. I think of those crimes the 
[The letter was put in evidence.] TESTIMONY CONCERNING SAMUEL ARNOLD. 
237 
°ne seems to be, if not the necessary conse- 
quence, certainly a logical sequence from 
“he other. The murder of the President of 
‘he United States, as alleged and shown, was 
pre-eminently a political assassination. Dis- 
loyalty to the Government was its sole in- 
spiration. When, therefore, we shall show, 
the part of the accused, acts of intense 
disloyalty, bearing arms in the field against 
‘hat Government, we show with him the 
Presence of an animus toward the Govern- 
ment which relieves this accusation of much, 
“ not all, of its improbability. And this 
course of proof is constantly resorted to in 
criminal courts. Ido not regard it as in the 
slightest degree a departure from the usages 
the profession in the administration of 
Public justice. The purpose is to show that 
‘he prisoner, in his mind and course of life, 
‘vas prepared for the commission of this 
Crune; that the tendencies of his life, as 
evidenced by open and overt acts, lead and 
P°mt to this crime, if not as a necessary, 
certainly as a most probable result, and it is 
that view, and that only, that the testi- 
mony is offered. 
Mr. Ewing. Can the learned Judge Ad- 
vocate produce authority to sustain his posi- 
tion ? 
ground on which it is put—l state the au- 
thority in words—is that on a criminal trial, 
where the intent is in issue, other acts of the 
prisoner not in issue may be proved against 
him by the prosecution, in order to show 
that intent. The cases are very numerous. 
Mr. Ewing. Just refer to the allegation. 
Assistant Judge Advocate Bingham. The 
gentleman asks me to refer to the allegation. 
I will. The charge is, “ Maliciously, unlaw- 
fully, and traitorously, and in aid of the ex- 
isting armed rebellion against the United 
States of America, on or before the 6th day 
of March, A. D. 1865, combining, confed- 
erating, and conspiring together,” with the 
persons named in the charge, “ and others 
unknown, to kill and murder, within the 
Military Department of Washington, and 
within the fortified and intrenched lines 
thereof, Abraham Lincoln,” etc. Combining, 
confederating, and conferring together “in 
aid of the existing armed rebellion against 
the United States of America,” is the allega- 
tion ; that is the intent. 
Mr. Ewing. It is an allegation of fact, and 
not of intent. 
Assistant Judge Advocate Bingham. I un- 
derstand the gentleman, but I assert that the 
words there used, “in aid of the existing armed 
rebellion against the United States of Amer- 
ica,” are words of intent; the formality of an 
indictment is simply departed from. If the 
charge had followed the common-law form, it 
would have read, “ With intent to aid the 
existing armed rebellion against the United 
States, the parties did then and there agree, 
combine, and confederate together, to kill and 
murder the President of the United States.” 
These words are not the express terms used, 
but they are by necessary implication im- 
plied; it is nothing but an allegation of in- 
tent, and never was any thing else. It is no 
part of the body of the charge beyond the 
allegation of intent. 
Then comes the specification in regard to 
the prisoner, Arnold. The first clause of the 
specification is that the various persons here 
on trial, “and others unknown, citizens of 
the United States aforesaid, and who were 
then engaged in armed rebellion against the 
United States of America, within the limits 
thereof, did, in aid of said armed rebellion, 
on or before the 6th day of March, A. D. 
1865, and on divers other days and times 
between that day and the 15th day of April, 
A. D. 1865, combine, confederate, and con- 
spire together, at Washington City, within 
the Military Department of Washington, and 
within the intrenched fortifications and mili- 
tary lines of the said United States, there 
being, unlawfully, maliciously, and traitor- 
ously to kill and murder Abraham Lincoln,” 
etc., . . . “ and, by the means aforesaid, 
to aid and comfort the insurgents engaged 
in armed rebellion against the said United 
States as aforesaid.” Is not that the same 
as saying, “ designing and intending thereby 
. Assistant Judge Advocate Bingham. There 
18 abundance of authority to sustain the 
Position. In Roscoe there is express au- 
thority. The book is not here now, but as 
to® gentleman calls for authority, I will state 
h°w, and pledge myself to bring the book 
mto the court-room, that Roscoe’s Criminal 
-Evidence, about page 85 or 89, contains the 
Express text in the body of it, that when the 
111 tent with which a thing is done is in issue, 
other acts of the prisoner not in issue, to 
Prove that intent, mav be given in evidence, 
ar'd that is exactly the point that is made 
here by the Judge Advocate General. It is 
hot the point contemplated by the counsel, 
ar>d) putting it on the ground on which he 
PlJts it, nobody contends for it. It is alleged 
111 this charge and specification that this 
Party engaged in this conspiracy to murder 
the President of the United States, to mur- 
the Secretary of State, to murder the 
Vice-President, and to murder Lieutenant- 
general Grant, the commander of the armies 
\h the field under the direction of the Presi- 
dent, with intent to aid the rebellion against 
he United States. The intent is put in issue 
hore by the charge and specification against 
a ' these prisoners, and the attempt now 
made is to establish that intent by proving 
? By proving that this man himself 
as part of the rebellion; that he was in it. 
Undertake to say that there is no authority 
is fit to be read in a court of justice 
any where that can be brought against it. 
h may remark, in this connection, that the 
general rules of evidence which obtain in 
ae courts of the common law, are always 
ec°gnized by the military courts. The 238 
THE CONSPIRACY TRIAL. 
to aid and comfort the insurgents engaged in 
armed rebellion against the United States?” 
There is the specification, and I should like 
to know how an intent could be laid any 
more strongly than that, or more formally 
than that. It is an allegation of intent, and 
I say the question stands on authority. 
Mr, Ewing. If the Court will allow me, 
I will refer to an authority enunciating the 
great principle which I claim : 
“Evidence will not be admitted on the 
part of the prosecution to show the bad char- 
acter of the accused, unless he has called 
witnesses in support of his character, and 
even then the prosecution can not examine 
as to particular act.” (Benet on Military 
Law and Courts-martial, p. 287.) 
That is the general principle of law, which 
is, doubtless, familiar to the Court; but the 
learned gentleman seeks to take this case 
out of the general principle, upon the argu- 
ment that it is alleged in the charge that 
the crimes for which the accused is being 
tried, were done with the intent of aiding 
the rebellion. Now, if, by the practice of 
military courts, the allegation that these 
crimes were committed with intent to aid 
the rebellion, were a necessary allegation, 
the Court should reject the testimony now 
offered on the ground of irrelevancy. The 
acts charged are acts of conspiracy to mur- 
der the President, the heads of Government, 
and the leader of the armies of the United 
States during the existence-of the rebellion; 
and proof of these acts would be conclusive 
as to the intent to aid the rebellion ; and 
that evidence of intent would not be in the 
least aided by proof of service in the Con- 
federate army prior to and unconnected with 
the acts of conspiracy. 
But the allegation of intent here is an 
unnecessary allegation. The crimes charged 
are the crimes of murder and attempted as- 
sassination, and it is unnecessary to go fur- 
ther, and allege that they were done with 
the intent to aid the rebellion. 
mitted some other crime, would prejudice 
his cause materially; and it is to avoid that 
result that this wholesome rule of law has 
been established. 
That the assassination of the President 
grew out of the spirit of the rebellion, and 
was one of its monstrous developments, is 
most true; but the prisoners who are hero 
on trial, are to be tried on evidence admis- 
sible under the rules of law, and the accused 
was not called upon to show here whether 
or not, a year or eighteen months before this 
alleged conspiracy was begun, he committed 
the crime of having taken up arms against 
his Government. He is not on trial for 
that, and I think it is unjust to prejudice 
his case by hearing and recording evidence 
of it, if such evidence can, in fact, be pro- 
duced. 
I refer the Court, in further support of my 
objection, to Wharton’s Criminal Law, vol. 1, 
p. 297, and Roscoe’s Criminal Evidence, p. 76. 
Assistant Judge Advocate Bingham. I 
have no desire to delay the Court; but I am 
very anxious to make good what I said, and 
to vindicate the proposition of the Judge 
Advocate General. My proposition was, that 
when the intent with which a thing was done 
is put in issue, other acts of the prisoner not 
in issue on the trial, of the same character, 
may be given in evidence to prove that in- 
tent. Now I propose to read from the book 
which the gentleman himself has read; but 
he did not read quite far enough : 
“Knowledge and intent, when material, 
must be shown by the prosecution.” (Whar- 
ton’s American Criminal Law, p. 3U9, sec. 
631.) 
It becomes material here, because it is 
alleged as to the conspirators that they con- 
spired with the intent to aid this rebellion, 
both in the charge and in the specification; 
not that they rhurdered with that intent, but 
conspired to murder with that intent, to aid 
the rebellion. The language of this author 
(Wharton) is, “Knowledge and intent, when 
material, must be shown by the prosecution. 
It is impossible, it is true, in most cases, to 
make them out by direct evidence, unless 
they have been confessed, but may be gath- 
ered from the conduct of the party as shown 
in proof; and when the tendency of his ac- 
tions is direct and manifest, he must always 
be presumed to have designed the result 
when he acted,” 
If, to support this unnecessary allegation 
as to intent, the Court should admit evidence 
which would be inadmissible in the civil 
courts in a trial on an indictment for the 
crimes here charged, it would, I think, vio- 
late the law of evidence, because the prose- 
cution has seen fit to disregard the rules of 
pleading. The law of evidence is—and it 
applies to cases of conspiracy as to all other 
criminal cases—that the prosecution can 
show no criminal acts, not part of the res 
gestae of the offenses charged, unless the 
offenses charged consist of acts which are 
not in obviously unlawful, and 
from the commission of which, therefore, 
the evil intent can not be presumed—such 
as uttering forged instruments, or counterfeit 
money, or receiving stolen goods. 
Before any jury, or almost any body of 
men, proof that a person charged with one 
crime, and on trial, had before that com- 
As to guilty knowledge, on the same page 
of the book, the author says: 
“The law in this respect seems to be, that 
evidence of other acts, or conduct of a sim- 
ilar character, even although involving sub- 
stantive crimes, is admissible to prove guilty 
knowledge,” even although it shows other 
crimes not involved before the Court. 
the very next page the same author says : _ 
“ The same evidence is generally admissi- 
ble to prove intent as to show guilty know!' 
edge.” TESTIMONY CONCERNING SAMUEL ARNOLD. 
239 
That is to say, other acts, although in- 
volving substantive crime, may be admitted. 
On the point the gentleman made, the writer 
poncludes on that question by saying, “That 
the crime itself is committed, the intent 
is necessarily presumed by the law.” To be 
6nre it is. But there are two allegations 
here. One is a conspiracy— 
Mr. Ewing. To murder the President. 
represented its standard in the councils. 
That is exactly why it is german. 
The Commission overruled the objection. 
Witness.—l can not state positively of 
my own knowledge that the accused, Samuel 
Arnold, has been in the military service of 
the rebellion. I have seen him in Richmond 
with the rebel uniform on ; whether it was 
the uniform of a private soldier or an officer, 
I can not remember. This was in the year 
1862. 
Assistant Judge Advocate Bingham. A 
conspiracy, with intent to aid the rebellion, 
to murder the President; and then there is 
the murdering of the President in aid of the 
rebellion, in pursuance of the conspiracy. 
Now, we are trying to prove the intent with 
which they entered into this conspiracy, and 
executed it. This book, in answer to that 
suggestion of the gentleman, says; 
“A defendant’s conduct during the res 
ffestcß, as his manner at the time of passing 
the note, or his having passed by several 
names, is also admissible for the same pur- 
pose; but the intent, the guilty knowledge, 
must be brought directly home to the de- 
fendant; but in no case can evidence tend- 
ing to show it be admitted, until the corpus 
delicti is first clearly shown.” What then? 
Then it may be. 
Mr. Ewing. That is the res gestae. 
Assistant Judge Advocate Bingham. No, 
us to the intent. What becomes of the ob- 
jection now ? The body of the crime has 
been proved according to the practice of the 
common law, as a general thing, and the 
°nly exception that I know of, of any note, is 
the exception made at common law in cases 
of conspiracy, which the gentleman will re- 
member is written in the text of Starkie. 
Then what next? In order to prove the 
ffitent, you may have other acts of the 
prisoner, although they involve substantive 
crime; and the same text and section of 
Wharton goes on to say: 
“On the charge of sending a threatening 
letter, prior and subsequent letters from the 
Person to the party threatening may be given 
ffi evidence, as explanatory of the meaning 
aud intent of the particular letter upon which 
the indictment is framed.” What do you say 
to that? 
Mr. Ewing. I say it does not apply at all. 
Assistant Judge Advocate Bingham. I 
Bay it does apply; that sending prior and 
Bubsequent letters is a distinctive crime, for 
yhich he might also be indicted, and enter- 
*ug into this is a distinctive crime, for which 
|he party may be also arraigned; but when 
he entered it, he entered into it to aid it, did 
he not? 
Mr. Ewing. He did not enter into that 
t° assassinate the President. 
Assistant Judge Advocate Bingham. Yes, 
he entered into it to assassinate the Presi- 
dent; and everybody else that entered into 
“he rebellion, entered it to assassinate every- 
body that represented this Government, that 
either followed the standard in the field, or 
Cross-examined by Mr. Evving. 
I would not say positively that it was not 
in 1861 I saw him. I know he had been 
ill, but I can not state the year positively. I 
saw him several times; it was since the re- 
bellion. 
jßecalled for the Prosecution.—May 18. 
[Exhibiting the “ Sam ” letter to the witness.] 
James L. McPhail. 
I think that letter is in the handwriting 
of Samuel Arnold; the direction, “ J. Wilkes 
Booth,” I should also think is his. I am 
acquainted with the handwriting of the 
prisoner, from having received a letter of his 
from his father, dated the 12th of April, 
from Fortress Monroe, the writing of which 
looks similar to that of this letter signed 
“ Sam.” 
Littleton P. D. Newman. 
For the Prosecution.—May 18. 
I know the accused, Samuel Arnold. On 
the 9th, 10th, or 12th of September, Mr. 
Arnold had been helping us to thrash wheat 
at a neighbor’s, and during that time there 
was a letter brought to him. In that letter 
there was either a twenty or a fifty-dollar 
note; I am not positive which. He read 
the letter, and remarked that he was flush 
of money, or something to that effect. After 
having read the letter, he handed it to me, 
and 1 read some half a dozen lines, possi- 
bly—not more. I did not understand it; it 
was very ambiguous in its language; and I 
handed it back to him, and asked him 
what it meant. He remarked that some- 
thing big would take place one of these 
days, or be seen in the paper, or something 
to that effect. That was about all that oc- 
curred. 
I do not remember that I saw the signa- 
ture to the letter; if I did, I do not remem- 
ber what it was. 
The Judge Advocate here announced that 
the testimony on the part of the Government 
had closed. 
See testimony of 
William E. Cleaver page 71 
Mrs. Mary Van Tine “ 222 
Billy Williams “ 223 
Edward C. Stewart “ 223 240 
THE CONSPIRACY TRIAL. 
DEFENSE OF SAMUEL ARNOLD. 
William S. Arnold. 
I do not know where my brother wag be- 
tween supper and bedtime on the next Satur- 
day; I went out and left him at home, and 
be was in bed when I came back. On the 
following day he went back to Hookstown, 
and returned to Baltimore on the Tuesday 
or Wednesday. He gave those arms to me 
on the Ist of April, when he went to For- 
tress Monroe. He had had them out in 
the country from the day he went there, the 
21st. The pistol was loaded when it was 
given to me. 
[The pistol found in Arnold’s bag at Fortress Monroe 
shown to the witness.] 
For the Defense.—May 31. 
By Mr. Ewing. 
I am brother to the prisoner, Samuel 
Arnold, and reside at Hookstown, Baltimore 
County, Md. From the 21st of March up 
to Saturday, the 25th, my brother was with 
me in the country, at Hookstown. 
We went into Baltimore on Saturday even- 
ing, the 25th, and returned to the country 
again on Sunday, the 26th. We came again 
into town either on Tuesday or Wednesday. 
I went to the country again, and came in 
on Friday night. He went out with me on 
the Ist of April, and in the afternoon he 
went to Fortress Monroe. 
That is not the pistol my brother gave to 
me; he gave me the pistol and knife by 
themselves. They were not in the valise. I 
did not give them to anybody, but I remem- 
ber my father coming to the desk where they 
were placed, getting them, and taking them 
to Baltimore. It was a large-sized pistol, 
something like the one just shown me. 
As 1 was coming into Baltimore on the 
21st, I saw him in the coach going to Hooks- 
town. From the 21st to the 25th, I saw him 
every day, and he slept with me every night. 
We arrived in Baltimore on the 25th, be- 
tween 5 and 6 o’clock. I saw my brother 
at supper at my father’s, and when I went 
to bed, between 9 and 10 o’clock, he was in 
bed. When we got up the next morning, I 
went down to the Government bakery, left 
him at home, told him I would be back in 
about half an hour, and we would go out in 
the country together. When I came back 
he was home, and between 9 and 10 o’clock 
that morning we (started for the country. 
He staid there until the 28th or 29th, and I 
saw him every day and every night. It was 
on either a Tuesday or a Wednesday that 
he left, about 8 o’clock. I saw him next on 
Friday, when I came in from the country to 
my father’s; my brother was there to sup- 
per. He was at home at my father’s on 
that night. I did not sleep with him; my 
brother did; and I slept in the same room. 
The next day, Saturday, I took him out in 
the country. We started about 8 o’clock, and 
came in between 12 and 1 at noon. In the 
afternoon, between 3 and 4, he left for For- 
tress Monroe. That was on the Ist of 
April. I am certain about these dates. 
Hookstown is about six miles from Balti- 
more. 
By Mr. Ewing. 
On the 20th of March, I saw my brother 
shoot off two rounds out of the pistol, at the 
chickens; then he went into the house and 
reloaded it. I was at the door, and did not 
see him reload it. 
Frank Arnold. 
For the Defense.—May 31. 
By Mr. Ewing. 
The accused, Samuel Arnold, is my brother. 
I generally reside at my father’s in Balti 
more. I saw my brother on the 30th and 
31st of March last; Thursday and Friday. 
On the Friday morning I gave him a letter, 
which came for him from Mr. Wharton, in 
reference to his application for a situation, 
telling him to come down, and he went down 
on Saturday afternoon, the Ist of April, on 
the Norfolk boat, at about half-past 4. Cap- 
tain Moffatt of the Eighth Maryland took a 
state-room with him. 
By Assistant Judge Advocate Bingham. 
My brother had made application for em- 
ployment to Mr. Wharton, but I do not know 
the date. 
Cross-examined by Assistant Judge Advocate 
Burnett. 
Jacob Smith. 
I can fix the date of the 21st as being 
the day on which I saw my brother in the 
coach going to Hookstown, as I was going 
to Baltimore, because on that day Mr. 
Buffington, of the Three-mile House, had a 
sale of farming utensils, and Mr. Ditch had 
a sale the day before, at which I bought 
some things, and entered them in my book. 
For the Defense.—May 31 
By Mr. Ewing. 
I live in Hookstown, Baltimore County, 
Md.; about half a mile from the residence 
of William S. Arnold, brother of the prisoner, 
Samuel Arnold., Our farms join. From the 
20th to the 22d of March last, up to near the DEFENSE OF SAMUEL ARNOLD. 
241 
as near as I can get at it, I saw the 
Prisoner, Samuel Arnold, nearly every day; 
B°metimes three or four times a day. 
C'ross-examined by Assistant Judge Advocate 
Burnett. 
seen the prisoner, Samuel Arnold, there; he 
was a clerk—chief-clerk, I believe—in the 
same establishment. He came there on a 
Sunday morning, some time in the latter part 
of March or the Ist of April, and remained 
there about two weeks, up to the time of 
his arrest. I saw him every day during that 
time. 
I can not be sure whether it was the 20th 
°r 22d that I saw him. I do not think it 
'V£is the 23d or 19th. I have no particular 
leason for fixing the date; only an indistinct 
of it. It is just about the same 
'Vlth the 30th; I kept no note of it, 
Minnie Pole. 
For the Defense.—June 7. 
By Mr. Ewing. 
I reside in Baltimore. I am acquainted 
with the prisoner, Samuel Arnold. I saw 
him in that city on the 20th, 27th and 28th 
of April. On the 20th, I saw him in an 
omnibus, going to Hookstown; and on the 
28th, I saw him at our house on his way to 
Baltimore. I have not seen him since, until 
now. 
I was over at his brother’s place several 
■Hies during that period. I used to go there 
Tor marketing stuff to take to the city; and 
A Used to go right in the field and get it. It 
only on those occasions that I saw him 
otl his brother’s place, and coming over. 
Charles B. Hall. 
Eaton G. Horner. 
For the Defense.—June 6. 
By Mr. Ewing. 
For the Defense.—June 2. 
By Mr. Ewing. 
■p, For the past two months I have been at 
Stress Monroe, as clerk to Mr. Wharton, 
» Sutler there. His store is outside of the 
jktifieation, at what is called “Old Point.” 
"j Sot acquainted with the prisoner, Samuel 
at Mr. Wharton’s store. He came 
|*cre the latter part of March, or Ist of 
j Pril. He was employed by Air. Wharton 
® Assist him in book-keeping. I think he 
, ,aid there two weeks and one day. I saw 
mi every day, but not all the time, 
tv/ 'yas engaged in another place part of 
pe time. Mr. Wharton has the contract for 
urtress Monroe. I was engaged there from 
Pout 7 o’clock until 2. 1 had business then 
'1 the lower store; and at about 5 o’clock I 
W°uld return. 
t can not say positively, but I think it 
Jas about the Ist of March that he made 
jle application in writing for employment. 
Only know of one letter from him, the 
cne 1 answered, telling him to come, and he 
uuie in about a week. Major Stevens, a 
°Vernnient officer, has Arnold’s letter. 
Wnold staid at the lower store and slept at 
r- Wharton’s. I saw him every night. 
The facts stated to me by the accused, 
Samuel Arnold, to which I have testified, 
were communicated to me by Arnold at 
Fortress Monroe. He did not speak of any 
thing that occurred on the boat. The con- 
fession of Samuel Arnold, referred to by 
William McPhail was written in. Marshal 
McPbail’s office. 
John W. Wharton. 
For the Defense.—June 7. 
I live in the city of Baltimore; my place 
of business is at Fortress Monroe, outside. 
The prisoner, Samuel Arnold, was in my 
employ from the 2d of April to the 17th, 
when he was arrested. He was employed 
by the week as a clerk. I was absent about 
three days during that time, but I have rea- 
son to believe he was there all the time or 
I should have been told of his absence. He 
was employed by me in consequence of a 
letter received by me from his father; also 
one from himself. 
Q. In that letter did he make any reference 
to the business in which he had theretofore 
been engaged? 
Assistant _ Judge Advocate Bingham re- 
plied, that if the letter were here, it would 
be utterly inadmissible in regard to any 
thing contained in it about his former pur- 
suits or whereabouts, and doings of any sort, 
for the simple reason that a party could 
not, either in writing or orally, make evi- 
dence at his pleasure, to bar the doors of 
justice against the power of the Government, 
which he is charged to have offended. Here- 
tofore, testimony had been admitted as to the 
contents of the letter, so far as to show that 
Arnold had applied to the witness for em- 
ployment. That had been admitted, because 
By Mr. Ewing. 
r°Ss-examined by Assistant Judge Advocate 
Bingham. 
i I Was not at all acquainted with him 
r ore he came there. He opened the cor- 
vj. P°ndence himself, as far as I know, in 
iUarch ]a8t. 
George Craig. 
For the Defense.—May 31. 
By Mr. Ewing. 
have lived at Old Point during the past 
Uionths, and have been employed as 
esffian in Mr. Wharton’s store. I have 242 
THE CONSPIRACY TRIAL. 
latitude of examination which had been in- 
dulged in on the part of the prosecution, this 
proof might fairly be admitted. 
The Judge Advocate. We have estab- 
lished that intimacy clearly in their associa- 
tion in Washington. We are simply follow- 
ing them to Baltimore, and showing that 
there they were in correspondence with each 
other. It is a fact of the same order, and 
although it may not have the same force 
with the other fact, its tendency certainly 19 
in the same direction. We do not offer the 
contents of the letter; we offer the fact of 
their correspondence with each other. 
The Court sustained the objection. 
it seemed perhaps to be fair to the accused 
without doing injustice to the Government. 
He had the benefit of that application, hut 
the proposition now made was entirely inad- 
missible. 
Mr. Ewing stated that it had been proved 
that the letter in question was taken from 
the store of the witness by Major Smith, an 
officer of the United States, at the time of 
Arnold’s arrest; the Judge Advocate had 
been requested some days since to produce 
the letter, and he had been unable to find 
it; so that if the letter itself would be ad- 
missible in evidence, it was now competent 
to prove its contents by parol. It was a 
declaration by the prisoner, Arnold, at the 
time of his application to the witness, as to 
his having abandoned the business in which 
he had formerly been engaged. Under the 
Each of the counsel for the accused here 
announced, on behalf of his client, that the 
defense was closed. 
Tuesday, May 16, 1865. 
would be sufficient. The evidence of the 
last witnesses examined yesterday will prob- 
ably be published in the Intelligencer t°" 
morrow. 
DISCUSSION ON THE DAILY READING OF THE 
RECORD. 
The President. One of the members of 
the Court has moved that the reading of the 
record be dispensed with, inasmuch as the 
counsel on the part of the prisoners are fur- 
nished with an official copy of the record, 
and have an opportunity of examining it 
during the intervals between the meetings of 
the Court, and can object to any thing that 
is incorrect, when they come into Court, if 
they find any inaccuracies. 
Colonel Tompkins. Besides, it is very ac- 
curately published in the morning papers. 
Mr. Ewing. If the Court will allow me, I 
will state that the reporters are not able to 
furnish us immediately with an official copy 
of the record; it is always behindhand a day 
or so; but inasmuch as the record is pub- 
lished quite accurately in the Intelligencer, 
from the notes of the reporters, if the Court 
will allow us the privilege at any time, even 
though it be not the day after the examina- 
tion of a witness, in case we discover an 
error, to ask that the witness be recalled, it 
would be satisfactory, so far as I am con- 
cerned. If this arrangement is made, it will 
be necessary for the Judge Advocate to de- 
tain witnesses for, say, two days after their 
examination, so that we may have time to 
read the testimony as published in the paper, 
or as furnished us by the reporters. We 
have not yet been furnished with the last of 
yesterday’s proceedings, nor has that portion 
been published in the paper. 
The President. I should think a deten- 
tion of one day would be ample. 
Mr. Ewing. If the witnesses who were 
examined yesterday were detained until after 
the Court meets to-morrow, I think that 
The President. Has the Judge Advocate 
any objection to that arrangement? 
The Judge Advocate. Ido not wish to 
embarrass the Court, certainly, by any sug- 
gestions of mine. lam as anxious for tbe 
dispatch of business as anybody can be; but 
if this precedent is now established, it wm 
be, I think, not only the first one which ha9 
been set in the military service, but the fir9t 
in the civil service, I never, in my whole 
life, have been in connection with any court, 
the proceedings of which were not read over 
in the hearing of the court itself, befor® 
they‘were declared by the court to be accu- 
rate and complete. Although I have aS 
much confidence in the accuracy of our re- 
porters as anybody can have, I think 1 
would be a dangerous example to set, and I 
would rather see it in any case that ha- 
arisen in the military service of the country 
than in this, where there are so many l've9 
at stake, and where it is so vastly important, 
not only that there should be strict accu- 
racy, but that the country should feel assure1 
that it ds so, and that all the precaution8 
necessary to secure that result, have been 
resorted to. If it shall be known herealtcb 
in connection with this trial, that the C 
departed from the usages of the service, an 
did not even have its own record read ov® ’ 
but trusted simply to the reporters for 
curacy, it might go very far to shake tn 
confidence of the country in the accuracy 0 
these reports, and would certainly leave a 
opening for criticism. g 
General Foster. I think the readme 
should be proceeded with every morning } 
the purpose of correction, if any correctio- 
' should be necessary. m’cullough’s affidavit. 
243 
The President. lam very much inclined, 
after hearing the opinion of the Judge Ad- 
vocate General, to change my first impression 
011 the subject, and I will vote against the 
Proposition, though I thought favorably of it 
at first. 
The motion was then withdrawn, and the 
record was read and approved. 
relevant to the issue. But if any opponent 
witness be asked questions on cross-examin- 
ation which are not relevant to*the issue— 
which, as we shall hereafter see, may be 
done, (p. 146)—the answer must be taken, 
and he can not be contradicted by other ev- 
idence. Spenceley v. DeWillott, 7 East. 108; 
R. v. Yewin, 2 Camp., 638, where a witness 
was asked whether he had not been charged 
with robbing the prisoner, his master, which 
he denied, and Lawrence, J., refused to allow 
him to be contradicted on this point.” (Ros- 
coe’s Criminal Evidence, p. 87.) 
The Court sustained the objection. 
Thursday, June 8, 1865, 
Mr. Aiken proposed to offer in evidence a 
telegraphic dispatch from Montreal, Canada, 
c°ntaining an affidavit of John McCullough, 
before the Vice-Consul of the United 
States in Montreal, for the purpose of con- 
tradicting a statement made by Louis Jt 
Deichmann, a witness for the prosecution, 
that he had seen McCullough at Booth’s 
r°om in the National Hotel on the 2d day 
°f April last. 
. Assistant Judge Advocate Bingham ob- 
Jected to the introduction of the paper. It 
'vas a wholly immaterial question whether 
McCullough ever met Weichmann or not. 
Mr. Aiken claimed that it was competent 
*-° disprove any statement made by Weich- 
which was not true. Mr. Weichmann 
aad sworn to certain statements which were 
in this sworn affidavit of Mr. 
McCullough. If he was mistaken in such 
matters, might he not also be mistaken 
111 the greater matter of the guilt or inno- 
Ce«ce of some of the accused. 
Assistant Judge Advocate Bingham replied 
aat this was an illegal mode of attacking a 
lf, on cross-examination, a witness 
18 asked an immaterial question, his answer 
c°bc!udes the party asking the question. 
The Judge Advocate proposed to read to 
tlle Court an authority on this point, as it 
"’as raised so often, and might be again; 
ar>d he wished the authority borne in mind, 
nainely: 
‘ Irrelevant questions will not be allowed 
be put to a witness on cross-examination, 
although they relate to facts opened by the 
?"ber party, but not proved in evidence. 
0r can a witness be cross-examined as to 
j'ay facts which, if admitted, would be col- 
ateral and wholly irrelevant to the matters 
jn. issue, for the purpose of contradicting 
by other evidence, and in this manner 
0 discredit his testimony. And if the wit- 
ess answers such an irrelevant question 
afore it is disallowed or withdrawn, evidence 
,an not afterward be admitted to contradict 
testimony on the collateral matter.” 
p. 307.) 
ti Judge Advocate Bingham stated 
e the same position was sustained by Ros- 
ioes Criminal Evidence, p. 87, from which 
euread the following extract: 
Evidence to contradict the opponent wit- 
esses.-—This may always be given on poijts 
June 8, 1865. 
Mr. Ewing offered in evidence, on the part 
of the defense, a copy of General Orders 
No. 26, War Department, Adjutant-General’s 
Office, Washington, February 2, 1863, as fol- 
lows : 
War Department, ) 
Adjutant-General’s Office, 5- 
Washington, .February 2, 1863.1 
General Orders No. 26. 
The district of country north of the Poto- 
mac River, from Piscataway Creek to An- 
napolis Junction and the mouth of the 
Monocacy, and south by Goose Creek and 
Bull Run Mountain to of the 
Occoquan, will constitute the Department of 
Washington, and troops in that department 
will constitute the Twenty-second Army Corps, 
to be commanded by Major-General Heintzel- 
man. 
By order of the Secretary of War. 
L. THOMAS, 
Adjutant-General. 
Mr. Ewing, with the consent of the Judge 
Advocate, offered as evidence of the same 
validity, as if the same fact were testified to 
by Mr. John McCullough, the actor, on the 
stand, the following telegraphic dispatch: 
Montreal, June 2, 1865. 
To John T Ford, National Hotel: 
I left Washington on Monday evening, 
March 26th, and have not been there since. 
You can have my testimony before American 
Consul here, if requisite. 
John McCullough. 
The Judge Advocate offered in evidence, 
for the prosecution, the proclamation of the 
President of the United States, for the in- 
formation and government of the army and 
all concerned, dated September 25, 1862, with 
accompanying certificate of the Secretary of 
War, dated May 30, 1865. 
[See Appendix, page 419.] 
The Judge Advocate also offered in evi- 
dence, for the prosecution, General Orders 
No. 100, Adjutant-General’s Office, Washing- 
ton, April 24, 1863, containing “Instructions 244 
THE CONSPIRACY TRIAL. 
for the government of the armies of the 
United States in the field,” prepared by 
Francis Leiber, LL.D., and revised by a 
Board of Officers, of which Major-General 
E. A. Hitchcock was president. 
Abraham Lincoln, on the 15th of April) 
18G5 ? 
A. Yes, sir. 
Assistant Judge Advocate Bingham offered 
in evidence a certified copy, under the seal 
of the Department of State, of the oath of 
office of Andrew Johnson, as President of 
the United States, before the Chief-Justice, 
on the 15th day of April, 1865. 
Also a duly certified copy of the resolu- 
tion of the Senate, dated March 5, 1861, con- 
senting to the appointment, and advising the 
same, of William H. Seward as Secretary of 
State of the United States; and, also, a duly 
certified copy of the commission of William 
H. Seward as Secretary of State of the United 
States, dated March 5, 1861, signed by Abra- 
ham Lincoln, President of the United States, 
and attested by J. S. Black, Secretary of 
State, under the seal of the, United States. 
[See Appendix, page 410.1 
June 12, 1865. 
Assistant Judge Advocate Bingham offered 
in evidence certified copies of the journals 
of the joint sessions of the Senate and the 
House of Representatives on the 2d Wednes- 
day of February, 1861, and the 2d Wednes- 
day of February, 1865 (certified to be correct 
copies by the Clerk of the House of Repre- 
sentatives, under the seal of that House,) 
showing that Abraham Lincoln and Hannibal 
Hamlin were elected President and Vice- 
President of the United States, for the term 
of four years, commencing on the 4th day 
of March, 1861, and that Abraham Lincoln 
and Andrew Johnson were elected President 
June 14, 1865. 
and Vice-President of the United States, for 
the term of four years, commencing on the 
4th day of March, 1865. 
Mr. Ewing. On behalf of Mr. Stone and 
myself, who are jointly counsel for Dr. Sam- 
uel A. Mudd, and who separately represent 
other of the defendants, I ask leave to say 
to the Court, that the arguments in defense 
of those of the prisoners we represent, can 
not be made in such manner as to give eff' 
cient aid to the Court in its investigation of 
the questions arising under the charge and 
specification preferred, unless the said charge 
and specification are relieved of ambiguity 
by an opening statement from the Judge 
Advocate, indicating the offense or offenses, 
for the commission of which he may claim 
those of the accused whom we represent 
should severally be convicted, and the laws 
creating such offense or offenses, and pTe' 
scribing the penalties thereof. In support of 
this suggestion we submit the following rea- 
sons : 
[Votes for President and Vice-President of the United 
States for the constitutional term, commencing on the 
4th day of March, 1861. 
Number of States 33 
Number of Electoral Votes 303 
Abraham Lincoln, for President 180 
John 0. Breckinridge, for President 72 
John Bell, of Tennessee, for President 39 
Stephen A. Douglas, for President 12 
Hannibal Hamlin, for Vice-President 180 
Joseph Lane, for Vice-President 72 
Edward Everett, for Vice-President 39 
Herschol V. Johnson, for Vice-President 12 
Votes for President and Vice-President of the United 
States for the constitutional term, commencing on the 
■lth day of March, 1865. 
Number of States (Kansas, West Virginia, and 
Nevada being added since 1361) 36 
Number of Electoral Votes (Virginia, North Caro- 
lina, South Carolina, Georgia, Tennessee, Louis- 
iana, Mississippi, Alabama, Arkansas, Florida, 
and Texas not voting; 233 
Abraham Lincoln, for President 212 
George B. McClellan, for President 21 
Andrew Johnson, for Vico President 212 
George H. Pendleton, for Vice-President 21 
Certified to as being a correct extract from tbe Journal 
of the Senate of the United States of 13tb February, 1861, 
and Bth February, 1866, respectively. 
(Signed,) JOHN W. FORNEY.] 
I There is but one charge, inform, against 
the accused; but, in fact, there seem to be 
four charges, each alleging the commission 
of a separate and distinct offense, as follows • 
1. Maliciously, unlawfully, and in aid of 
the existing armed rebellion against the 
United States of America, combining, confed- 
erating. and conspiring to kill and murder, 
within tbe military department of Washing- 
ton, and within the defenses of the city, 
Abraham Lincoln, late, and at the time oi 
conspiring, President of the United States, 
and Commander-in-chief of the army mid 
navy thereof; Andrew Johnson, then Vice- 
President of the United States; William 34- 
Seward, Secretary of State; and Ulysses “• 
Grant, Lieutenant-General of the army, etc- 
2. In pursuance of said malicious, 
ful, and traitorous conspiracy, maliciously) 
unlawfully, and traitorously murdering tbe 
said Abraham Lincoln, President, etc. 
3. Maliciously, unlawfully, and traitof' 
Brigadier-General E. D. Townsend. 
Recalled for the Prosecution. 
Q. Do you know the fact that Abraham 
Lincoln acted as President of the United 
States from and after the 4th of March, 1861, 
until the 15th of April, 1865, when he died ? 
A. Yes, sir; I had frequent official inter- 
course with him as President of the United 
States during that time. 
Q. Do you know the fact that Hannibal 
Hamlin acted as Vice-President during the 
four years preceding the 4th day of March, 
1865 ? 
A. Yes, sir. 
Q. And that afterward Andrew Johnson 
acted as Vice-President until the death of DISCUSSION, 
ously assaulting, with intent to kill and mur- 
(l®ri the said William H. Seward, Secretary 
State, etc. 
4. Lying in wait with intent maliciously, 
and traitorously to kill and mur- 
4er the said Andrew Johnson, then Vice- 
president of the United States, and Ulysses 
Grant, Lieutenant-General, etc. 
The offenses enumerated, as aforesaid, in 
said charge, are separate and distinct, 
and we, therefore, ask that the Judge Adve- 
ne should state, in regard to those of the 
accused whom we represent, of which of said 
°ftenses, under the evidence, he claims they 
shonl(j each be convicted. 
11. We further respectfully say we are not 
Advised of the law creating and defining 
?ertain of said offenses, as the same are laid 
the said charge, and therefore ask that 
\e Judge Advocate specify the la\y cre- 
?llng said offenses, or the code or system of 
a'vs in which the same may be found, that 
may be able to present the case of such 
°I He accused as we represent, in a manner 
Gmducive to the ends of justice, and there- 
°re more satisfactory to the Court. 
The crime of murder—assault with intent 
0 kill and murder, conspiracy to murder, 
ari(l conspiracy in aid of the rebellion—are 
understood and accurately defined by 
\e common or statute law, and for the co in- 
vasion of those crimes just and appropriate 
paalties have been prescribed; but no laws 
<io\vn to us define the crime of “ traitor- 
Usly” Imirdering, or of “ traitorously ” as- 
pulting with intent to kill and murder, or 
lying in wait “traitorously” to kill and 
t r4er- If the last-named offenses, designa- 
. r and described in the charge, are created 
"Ves by some code of laws unknown to us, 
' "4 penalties are prescribed for their com- 
mission by such code, it is respectfully sub- 
mitted that to advise us of what that code 
h before we are called upon to present our 
r£utnents, could certainly not defeat, and 
“Vght materially promote the ends of justice, 
r, 141. We further respectfully state, that the 
tjonsfitution of the United States provides 
in all criminal prosecutions the accused 
(. aH be entitled to be informed of the na- 
:le and cause of the accusations against 
letn. That several of the offenses cha/ged 
hu-’ are crimes defined by the Consti- 
10** or the laws, offenses in the trial of 
f lch rules of evidence are applicable, dif- 
j.u]ent in important respects from the general 
lj 68 °f criminal evidence. And the accused 
F| Te the right now (as they have had the 
at all prior stages of this trial) to 
e for which of the offenses each is sev- 
Uj v held, so that counsel and the Court 
,know what part of the evidence pre- 
°f t) aSainst all is applicable to the cases 
stjt accused severally. And that the con- 
jU('‘tlonal guaranty above referred to, in our 
natpment, entitles the accused to such desig- 
0n °f the specific charges on which it 
may be claimed each should be convicted, as 
well as to an indication of the code of laws 
by which the last three of the offenses as 
charged are defined, and their punishments 
provided. 
The Judge Advocate. If the Court please, 
when I recall the character of the pleadings 
in this case, the complete distinctness of the 
charge and of the specification, I confess 
myself somewhat surprised at the appeal 
which is now made to the Government on 
behalf of the counsel for the prisoners. Cer- 
tainly, if I were to go over the ground again, 
either orally or by writing, I could not make 
known to the counsel with more certainty, 
or with more appropriateness or terseness of 
language, than has been already employed in 
these pleadings, the precise offenses with 
which the prisoners are charged, on which 
they have been arraigned, in -reference to 
which the entire range of inquiry has been 
directed, and upon which the judgment of 
this Court is finally asked. 
The general allegation is a conspiracy; 
and certainly the gentleman would not ask 
me to expound to him the law of conspir- 
acy, nor to bring from the library here the 
books which treat upon it. As a profes- 
sional gentleman of eminence, he is entirely 
familiar with the range of the authorities on 
that general subject. 
The pleadings proceed, after averring this 
conspiracy, (in which it is alleged all these 
prisoners participated,) to set forth clearly 
and specifically the part which it is believed 
and alleged each one of them took in the 
execution of that conspiracy. 
The investigation here has carefully fol- 
lowed the line of allegation. We have 
sought, in every instance, to show, as far as 
the testimony would enable the Government 
to do, that these parties, in the execution of 
the conspiracy, performed precisely the acts 
which it was charged they had performed. 
Now, it can not be possible, in view of 
these allegations, and in view of the proofs 
which have been sifted again and again, in 
the presence of the gentleman and those as- 
sociated with him, that he can have any 
doubt, or can feel any embarrassment as to 
the precise measure and manner of crimin- 
ality which is charged upon these parties, 
and upon which the judgment of this Court 
is invoked. They are all alleged to have 
participated in the general conspiracy, and in 
the execution of that conspiracy, so far as 
the assassination of the President is con- 
cerned; and then the particular parts which 
each one performed therein afterward, either 
in execution or in the attempt to execute, 
are set forth. It is for the Court to de- 
termine how far the proof sustains these 
allegations; but it can not be that the gen- 
tleman is left with any doubt to embarrass 
him as to the precise ground on which the 
judgment of this Court is asked in reference 
to each of these parties. 246 
THE CONSPIRACY TRIAL. 
Then, as to the law applicable to this 
case; that is a matter of which the counsel 
are expected to take notice. We have no 
special statute to which we can point him. 
We have the great principles of jurispru- 
dence, which regulate this trial, with which 
he is familiar, with which all men belonging 
to his profession are expected and held to be 
familiar. I do not suppose we shall intro- 
duce a solitary authority which will in any 
manner surprise the gentleman, or with which 
he is not already perfectly conversant. If I 
had any such, I should certainly gladly pro- 
duce it for his inspection and consideration 
in advance. But I decline making a formal 
opening on the part of the Government. It 
is not necessary. It is not in accordance 
with the practice of military courts, and in' 
this case I have not felt that I was at all 
required to depart from the usage on that 
subject. This investigation has been con- 
ducted in the frankest and most open man- 
ner, and the gentleman is just as familiar as 
the Judge Advocates, who represent the 
Government, are with all the facts of this 
case, on which these parties are sought to be 
charged. As to the legal inferences which 
result from those facts, he must be expected 
also to be advised. 
distinct crimes—to-wit: conspiracy, murder, 
assault and battery with intent to kill, and 
lying in wait—or whether they are charged 
simply with one crime—conspiracy. And 
after the same deliberate consideration of 
the charge and specification, I am utterly 
unable to know in what code or system of 
laws the crimes of “ traitorously murdering, 
“traitorously lying in wait,” “traitorously 
assaulting with intent to kill,” are defined, 
and their punishments provided. I should 
like an answer to the question, how many 
distinct crimes are the accused charged with, 
and what are those crimes? I can not tell, 
from the charge and specification with cer- 
tainty. 
Assistant Judge Advocate Bingham. I 
understood you to say there were four. 
Mr. Ewing. It seems to me so, but I should 
like to know whether I am right in that. 
The Judge Advocate. I stated, in the 
brief remarks I submitted, that 1 regarded 
them all as charged with conspiring to assas- 
sinate the President of the United States, 
and the various members of the Government 
named in the pleadings; and they are further 
charged with having executed that conspir- 
acy, so far as the assassination of the Pres- 
ident was concerned, and the attempt to 
assassinate the Secretary of State, and to 
have attempted its execution, so far as con- 
cerns the lying in wait and other matters, 
which are distinctly set forth as indicating 
the individual action of each of these con- 
spirators in connection with the general pro- 
gramme of crime as charged, all being i'l 
pursuance of the conspiracy, all alleged to 
be in aid of the rebellion, and therefore 
properly charged as 11 traitorously ” done, as 
well as feloniously done. 
Assistant Judge Advocate Bingham. d 
have no hesitation, if the Judge Advocate 
General will excuse me in making this re- 
mark to Mr. Ewing, not at all under the 
belief that by it I shall do any thing more 
than to suggest to him what he already 
knows, that the act of any one of the par" 
ties to a conspiracy in its execution, is the 
act of every party to that conspiracy; a,ld 
therefore the charge and specification that 
the President was murdered in pursuance ot 
it hy the hand of Booth, is a direct and un- 
equivocal charge that he was murdered by 
every one of the parties to this conspiracy, 
naming the defendants by name. We rely 
for the support of that part of this case upon 
the general and accepted rules of the com' 
mon law, as declared in our own courts, a 9 
well as in other courts where the comm011 
law obtains. * 
Mr. Ewing. I understand that law o__ 
conspiracy perfectly well, but I want to 
new again my inquiry, whether these pcysolv 
are charged with the crime of conspiracy 
alone, and that these acta of murdering, a 
saulting, and lying in wait, were merely a° 
done in execution of that conspiracy—- 
Mr. Ewing. I see no answer in the state- 
ment of the learned Judge Advocate to the 
request that I have made. I understand 
from the Judge Advocate that the only 
crime charged against these parties is con- 
spiracy. Am I right? 
The Judge Advocate. A conspiracy, as 
alleged, to murder the President of the United 
States, and the members of the Government 
mentioned, and the execution of that con- 
spiracy as far as it went, and the attempt to 
execute it as far as alleged. 
Mr. Ewing. But I ask what crimes are 
charged? I should like to have them enu- 
merated. 
The Judge Advocate. I confess that my 
knowledge of language does not afford me 
any more distinct designations than those 
which I have employed in these pleadings. 
General Kautz. It seems to me this ap- 
plication should have been made when the 
charge and specification were first read. 
Assistant Judge Advocate Burnett. If 
the pleadings were not sufficiently distinct, 
that was the time when a request should 
have been made to correct them. 
Mr. Ewing The application is certainly 
pertinent now, and it would, of course, have 
been pertinent at the beginning. I did not 
see the charge and specification until after 
my clients had pleaded; nor did I get a seat 
in the court-room until evidence was being 
introduced. I have devoted a great deal of 
time to the study of this charge and specifi- 
cation, and the statement which 1 have pre- 
sented is presented in entire good faith, for 
the purpose of learning whether my clients 
are charged with, and being tried for, four FINDINGS AND SENTENCES. 
247 
Assistant Judge Advocate Bingham. And 
'lot crimes? 
Mr. Ewing. Or whether they are charged 
with four distinct crimes in this one charge? 
Assistant Judge Advocate Bingham. I 
auswer the gentleman again, that where par- 
ses are indicted for a conspiracy, and the 
e*ecution thereof, it is but one crime at the 
common law, and that, upon all authority, 
a§ many overt acts in the execution of that 
Conspiracy as they are guilty of, may be laid 
111 the same count; and I rest it upon the 
authority of Hale, and Foster, and Hawkins. 
Mr. Ewing. It is, then, I understand, one 
Crime with which they are charged. 
Assistant Judge Advocate Bingham. One 
crime all round, with various parts per- 
formed. 
to open the case, responding to the questions 
which he has propounded. 
Mr. Ewing. That is my application. 
The Commission overruled the application. 
[Omitted from page 133.] 
Henry Hawkins (colored.) 
jFor the Defense.—June 13. 
By Me. Aiken. 
I have lived at Surrattsville about eleven 
years. I was formerly a slave of Mrs. Sur- 
ratt. She always treated me kindly, and she 
was very good to all her servants. I remem- 
ber the Government horses breaking away 
from Giesboro, and that seven of them came 
to Mrs. Surratt’s stable; they were there for 
a fortnight or more, and then the Government 
sent for them. Ido not know that Mrs. Sur- 
ratt had a receipt for them, but I know that 
she bought hay and grain to feed them with. 
I have never heard Mrs. Surratt talk in 
favor of the South; never heard any expres- 
sions, loyal or disloyal, from her while I was 
there. She has often fed Union soldiers that 
passed her house, and always gave them the 
best she had; and I do not think she took 
any pay for it; she took none that I know of, 
I do not know much about Mrs. Surratt’s 
eyesight being bad, but I heard she could not 
see some time back, and that she had to wear 
specs. 
Mr. Ewing. The crime of conspiracy. 
Assistant Judge Advocate Bingham. It is 
the crime of murder as well. It is not simply 
inspiring, but executing the conspiracy 
treasonably and in aid of the rebellion. 
Mr. Ewing. I should like an answer to 
question, if it is to be given : How many 
distinct crimes are my clients charged with 
aud being tried for ? I can not tell. 
Assistant Judge Advocate Bingham. We 
have told you, it is all one transaction. 
The Judge Advocate. It may be my mis- 
fortune, but I think it is not my fault, if 
the gentleman has not already the answer 
'Much he seeks. I can not give him a better 
One. 
. Mr. Ewing. Inasmuch as I get no answer 
'otelligible to me in response to that question, 
h question of the utmost gravity, a question 
deeply affecting the lives and liberties of 
those whom I represent, I now respectfully 
hsk an answer to the other branch of the 
'nquiry: By what code or system of laws is 
the crime of “traitorously” murdering, or 
traitorously” assaulting with intent to kill, 
0r “traitorously” lying in wait, defined? 
The Judge Advocate. I think the com- 
mon law of war will reach that case. This 
13 a crime which has been committed in the 
Jtt'dst of a great civil ivar, in the capital of 
country, in the camp of the Commander- 
'"'diief of our armies, and if the common 
,aw of war can not be enforced against crim- 
es of that character, then I think such a 
c°de is in vain in the world. 
Mr. Ewing. Do you base it, then, only on 
he law of nations? 
The Judge Advocate. The common law 
°i war. 
Mr. Ewing. Is that all the answer to the 
Question ? 
j The Judge Advocate. It is the one which 
Regard as perfectly appropriate to give. 
Mr. Ewing. I am as much in the dark 
ow ag to ag i wag ;n reference to the 
'her inquiry. 
General Wallace. I understand Mr. Ewing 
P. niake an application that the Court shall 
lfect the Judge Advocate or his assistants 
Couet-Room, Washington, D. C., I 
June 29, 1865, 10 o’clock A. M. J 
The Commission met, with closed doors, 
pursuant to adjournment. 
All the members present; also the Judge 
Advocate and the Assistant Judge Advocates. 
The Commission then proceeded to deliber- 
ate upon the evidence adduced in the case 
of each of the accused. 
Pending the deliberation, at 6 o’clock P. 
M., the Commission adjourned to meet again, 
with closed doors, on Friday, June 30, at 10 
o’clock, A. M. 
Court-Room, Washington, D.C.,1 
June 30,1865,10 o’clock A. M. J 
The Commission met, with closed doors, 
pursuant to adjournment. 
All the members present; also the Judge 
Advocate and the Assistant Judge Advocates. 
The Commission then proceeded to deliber- 
ate upon the evidence adduced in the case 
of each of the accused. 
After mature consideration of the evidence 
adduced in the case of the accused, David 
E. Herold, the Commission find the said 
accused— 
David E. Herold. 
Of the Specification Guilty. 
Except “combining, confederating and con- 248 
THE CONSPIRACY TRIAL. 
spiring with Edward Spangleras to which 
O’Laughlin,” and except as to “combining) 
confederating, and conspiring with Edward 
part thereof. Not Guilty. 
Of the Charge., Guilty. 
Spangler;” of this Not Guilty. 
Except the words of the charge, “combining, 
confederating, and conspiring with Edward 
Except as to “combining, confederating, and 
Of the Charge Guilty. 
Spangler;” as to which part of the charge, 
Not Guilty. 
conspiring with Edward Spangler;” of this 
Not Guilty. 
him, the said David E. Herold, to be hanged 
And the Commission do, therefore, sentence 
And the Commission do, therefore, sentence 
her, the said Mary E. Surratt, to be hanged by 
by the neck until he be dead, at such time 
and place as the President of the United 
the neck until she be dead, at such time and 
place as the President of the United States 
States shall direct; two-thirds of the Com- 
mission concurring therein. 
shall direct; two-thirds of the members of 
the Commission concurring therein. / 
George A. Atzbrodt. 
Michael O’Laughlin. 
adduced in the case of the accused George 
After mature consideration of the evidence 
After mature consideration of the evidence 
adduced in the case of the accused, Michael 
A. Atzerodt, the Commission find the said 
accused— 
O’Laughlin, the Commission find the said 
accused— 
Except “ combining, confederating, and con- 
Of the Specification Guilty. 
Of the Specification Guilty. 
Except the words thereof, “And in the fur- 
spiring with Edward Spangler;” of this 
Not Guilty. 
ther prosecution of the conspiracy aforesaid, 
and of its murderous and treasonable pur- 
Except “combining, confederating, and con- 
Of the Charge Guilty. 
poses aforesaid, on the nights of the 13th and 
i . o # j 
14th of April, 1865, at Washington City, and 
spiring with Edward Spangler;” of this 
Not Guilty. 
within the military department and military 
lines aforesaid, the said Michael O’Laughlin 
him, the said George A. Atzerodt, to be 
And the Commission do, therefore, sentence 
did there and then lie in wait for Ulvsses S. 
Grant, then Lieutenant-General and Com- 
hanged by the neck until he be dead, at such 
thne and place as the President of the United 
mander of the armies of the United States, 
with intent then and there to kill and mur- 
der the said Ulysses S. Grant;” of said 
States shall direct; two-thirds of the Com- 
mission concurring therein. 
words Not Guilty; and except “combining, 
confederating, and conspiring with Edward 
Lewis Payne. 
Spangler;” of this Not Guilty. 
Of the Charge Guilty. 
adduced in the case of the accused, Lewis 
After mature consideration of the evidence 
Except “combining, confederating, and con- 
Payne, the Commission find the said ac- 
cused— 
spiring with Edward Spangler;” of this 
Not Gun/rY. 
Except “ combining, confederating, and con- 
Of the Specification Guilty. 
The Commission do, therefore, sentence the 
said Michael O’Laughlin to be imprisoned 
at hard labor for life, at such place as the 
spiring with Edward Spangler;” of this 
Not Guilty. 
President shall direct. 
Of the Charge Guilty. 
Edward Spangler. 
Except “combining, confederating, and con- 
spiring with Edward Spangler; ” of this 
Not Guilty. 
After mature consideration of the evidence 
adduced in the case of the accused, Edward 
And the Commission do, therefore, sen- 
Spangler, the Commission find the said ac- 
cused— 
tencehim, the said Lewis Payne, to be hanged 
by the neck until he be dead, at such time 
and place as the President of the United 
Of the Specification Not Guilty. 
Except as to the words, “ the said Edward 
States shall direct; two-thirds of the Corn- 
mission concurring therein. 
Spangler, on said 14th day of April, A. D- 
1865, at about the same hour of that day, as 
aforesaid, within said military department 
and the military lines aforesaid, did aid and 
Mrs. Mary E. Surratt. 
abet him (meaning John Wilkes Booth) in 
adduced in the case of the accused, Mary E. 
After mature consideration of the evidence 
making his escape after the said Abraham- 
Lincoln had been murdered in manner afore- 
Surratt, the Commission find the said ac- 
said;” and of these words Guilty. 
Of the Charge Not Guilty. 
cused— 
Of the Specification.... Guilty. 
But of having feloniously and traitorously 
Except as to “ receiving, sustaining, harboring, 
and concealing Samuel Arnold and Michael 
aided and abetted John Wilkes Booth m 
making his escape after having killed and president’s approval. 
249 
’Riirdered Abraham Lincoln, President of 
United States, he, the said Edward 
Spangler, at the time of aiding and abetting 
as aforesaid, well knowing that the said 
Lincoln, President as aforesaid, 
had been murdered by the said John Wilkes 
Booth, as aforesaid Guilty. 
ing persons were tried, and, after mature con- 
sideration of evidence adduced in their cases, 
were found and sentenced as hereinafter 
stated, as follows. 
[Here follow the findings and sentences in the case of 
David E. Herold, George A. Atzerodt, Lewis Payne, and 
Mary E. Surratt.] 
The Commission do, therefore, sentence the 
®aid Edward Spangler to be imprisoned at 
hard labor for six years, at such place as the 
shall direct. 
And whereas, the President of the United 
States has approved the foregoing sentences, 
in the following order, to wit: 
The foregoing sentences in the cases of 
David E. Herold, G. A. Atzerodt, Lewis 
Payne, and Mary E. Surratt, are hereby ap- 
proved ; and it is ordered, that the sentences 
in the cases of David E. Herold, G. A. Atze- 
rodt, Lewis Payne, and Mary E. Surratt, be 
carried into execution by the proper military 
authority, under the direction of the Secre- 
tary of War, on the 7th day of July, 1865, 
between the hours of 10 o’clock, A. M., and 
2 o’clock, P. M., of that day. 
(Signed) ANDREW JOHNSON, 
President. 
Executive Mansion, July 5, 1565. 
Samuel Arnold. 
After mature consideration of the evidence 
hdduced in the case of the accused, Samuel 
Arnold, the Commission find the said ac- 
cused— 
Of the Specification Guilty. 
Except “ combining, confederating, and con- 
-Bpiring with Edward Spangler;” of this 
Not Guilty. 
Of the Charge Guilty. 
Except “ combining, confederating, and con- 
epiring with Edward Spangler;” of this 
Not Guilty. 
Therefore, you are hereby commanded to 
cause the foregoing sentences in the cases of 
David E. Herold, G. A. Atzerodt, Lewis 
Payne, and Mary E. Surratt, to he duly ex- 
ecuted, in accordance with the President’s 
order. 
The Commission do, therefore, sentence the 
Baid Samuel Arnold to imprisonment at hard 
labor for life, at such place as the President 
eball direct. 
By command of the President of the 
United States. 
Samuel A. Mudd. 
E. D. TOWNSEND, 
Assistant Adjutant-General. 
After mature consideration of the evidence 
adduced in the case of the accused, Samuel 
A. Mudd, the Commission find the said ac- 
cused— 
president’s approval of the findings and 
SENTENCES. 
Except “combining, confederating, and con- 
spiring with Edward Spangler;” of this Not 
. Uxlty; and excepting “receiving, entertain- 
ing, and harboring and concealing said Lewis 
Bayne, John IT. Surratt, Michael O’Laugh- 
ab George A. Atzerodt, Mary E. Surratt, and 
Samuel Arnold;” of this Not Guilty. 
Of the Charge.. Guilty. 
Except “combining, confederating and cou- 
ching with Edward Spangler,” of this 
Not Guilty. 
Of the Specification Guilty. 
Executive Mansion, July 5,1865. 
The foregoing sentences in the cases of 
David E. Herold, G. A. Atzerodt, Lewis 
Payne, Michael O’Laughlin, Edward Span- 
gler, Samuel Arnold, Mary E. Surratt, and 
Samuel A. Mudd, are hereby approved, and 
it is ordered that the sentences of said David 
E. Herold, G. A. Atzerodt, Lewis Payne, and 
Mary E. Surratt be carried into execution 
by the proper military authority, under the 
direction of the Secretary of War, on the 7th 
day of July, 1865, between the hours of 10 
o’clock, A. M., and 2 o’clock, P. M., of that 
day. It was further ordered, that the prison- 
ers, Samuel Arnold, Samuel A. Mudd, Ed- 
ward Spangler, and Michael O’Laughlin be 
confined at hard labor in the Penitentiary 
at Albany, New York, during the period 
designated in their respective sentences. 
ANDREW JOHNSON, 
President. 
The Commission do, therefore, sentence the 
?a,d Samuel A. Mudd to be imprisoned at 
‘ard labor for life, at such place as the Pres- 
et shall direct. 
VAr Department, Adjutant-General’s Office, \ 
rt, Washington, July 5, 1865. J 
0 Major-General W. iS. Hancock, United 
States Volunteers, commanding the Middle 
Military Division, Washington, D. C.: 
Whereas, By the Military Commission ap- 
in paragraph 4, Special Orders No, 
1L dated War Department, Adjutant-Gen- 
y’Rl’s Office, Washington. May 6, 1865, and 
g which Major-General David Hunter, United 
otates Yolu nteers, wras President, the follow- 
The executive order, dated July 5, 1865, 
approving the sentences in the cases of 
Samuel Arnold, Samuel A. Mudd, Edward 
Spangler, and Michael O’Laughlin is nereoy 
modified, so as to direct that the said Arnold, 
Executive Mansion, July 15, 1865. 250 
THE CONSPIRACY TRIAL. 
Mudd, Spangler, and O’Laughlin, be confined 
at hard labor in the military prison at Dry 
Tortugas, Florida, during the period desig- 
nated in their respective sentences. 
The Adjutant-General of the army is di- 
rected to issue orders for the said prisoners 
to be transported to the Dry Tortugas, and 
to be confined there accordingly. 
ANDREW JOHNSON, 
President. 
APPLICATION FOR WRIT OF HABEAS CORPUS IN BEHALF OF 
MARY E. 
SURRATT 
To the Hon. Andrew Wylie, one of the Justices of 
the Supreme Court of the District of Columbia: 
The petition of Mary E. Surratt, by her coun- 
sel, F. A, Aiken and John W. Clampitt, most 
respectfully represents unto your Honor, that on 
or about, the 17th day of April, A. D. 1865, your 
petitioner was arrested by the military authori- 
ties of the United States, under the charge of 
complicity with the murder of Abraham Lin- 
coln, late President of the United States, and 
has ever since that time been and is now con- 
fined on said charge, under and by virtue of the 
said military power of the United States, and is 
in the special custody of Major-General W. S. 
Hancock, commanding Middle Military Divi- 
sion; that since her said arrest your petitioner 
has been tried, against her solemn protest, by a 
Military Commission, unlawfully and without 
warrant, convened by the Secretary of War, as 
will appear from paragraph 9, Special Orders, 
No. 211, dated War Department, Adjutant-Gen- 
eral’s Office, Washington, May the 6th, 1865, 
and by said Commission, notwithstanding her 
formal plea to the jurisdiction of the said Com- 
mission, is now unlawfully and unjustifiably 
detained in custody and sentenced to be hanged 
on to-morrow, July 7th, 1865, between the hours 
of 10 A. M. and 2P. M.; your petitioner shows 
unto your Honor that at the time of the com- 
mission of the said offense she was a private 
citizen of the United States, and in no manner 
connected with the military authority of the 
same, and that said offense was committed 
within the District of Columbia, said District 
being at the time within the lines of the armies 
of the United States, and not enemy’s territory, 
or under the control of a military commander 
for the trial of civil causes. But, on the con- 
trary, your petitioner alleges that the said crime 
was an offense simply against the peace of the 
United States, properly and solely cognizable 
under the Constitution and laws of the United 
States, by the Criminal Court of this District, 
and which said court was and is now open for 
the trial of such crimes and offenses. Where- 
fore, inasmuch as the said crime was only an 
offense against the peace of the United ■ States, 
and not an act of war; inasmuch as your peti- 
tioner was a private citizen of the same, and 
not subject to military jurisdiction, or in any 
wise amenable to military law; inasmuch as 
said District was the peaceful territory of the 
United States, and that all crimes committed 
within such territory are, under the Constitu- 
tion and laws of the United States, to he tried 
only before its criminal tribunals, with the right 
of public trial by jury; inasmuch as said Com- 
Washington, I). 0., July 7, 1865. 
mission was a Military Commission, organized 
and governed by the laws of military court- 
martial, and unlawfully convened without war- 
rant or authority, and when she had not the 
right of public trial by jury as guaranteed to 
her by the Constitution and laws of the United 
States, that, therefore, her detention and sen- 
tence are so without warrant against positive 
law and unjustifiable: wherefore she prays your 
Honor to grant unto her the United States’ most 
gracious writ of habeas corpus, commanding the 
said Major-General W. 8. Hancock to produce 
before your Honor the body of your said peti- 
tioner, with the cause and day of her said de- 
tention, to abide, etc., and she will ever pray. 
MARY E. SURRATT. 
By Frederick A. Aiken, John W. ClampitT. 
Indorsed.—Let the writ issue as prayed, returnable be- 
fore the Criminal Court of the District of Columbia, no'V 
sitting1, at the hour of 10 o’clock A. M,, this 7th day of 
July, 1865. ANDREW WYLIE, 
A Justice of the Supreme Court of the District of Columbia. 
July 7th, 1865. 
At half-past 11 o’clock on the morning of the 
7th of July, Major-General Hancock, accompa- 
nied by Attorney-General Speed, appeared be- 
fore Judge Wylie in obedience to the writ, and 
made the following return: 
Head-quaetees Middle Military Division, 1 
Washington, D. C., July 7, 1865. J 
To Son. Andrew Wylie, Justice of the Supreme 
Court of the District of Columbia ; 
I hereby acknowledge the service of the writ 
hereto attached and return the same, and respect- 
fully say that the body of Mary E. Surratt is in 
my possession, under and by virtue of an order 
of Andrew Johnson, President of the United 
States and Commander-in-chief of the Army and 
Navy, lor the purposes in said order expressed, a 
copy of which is hereto attached and made part 
of this return; and that I do not produce said 
body by reason of the order of the President of 
the United States, indorsed upon said writ, to 
which reference is hereby respectfully made, 
dated July 7th, 1865. W. S. HANCOCK, 
Maj.- Gen. U. S. Fo/.5., Commanding Middle Div. 
The President’s Indorsement. 
Executive Office, July 7, 1865, 10 A. M. 
To Major- General W. S. Hancock, Commander, etcJ 
I, Andrew Johnson, President of the United 
States, do hereby declare that the writ of habeas 
corpus has been heretofore suspended in such 
cases as this, and I do hereby especially suspend 
this writ, and direct that you proceed to execute 
the order heretofore given upon the judgment oj 
the Military Commission, and you will give th1-3 
order in return to the writ. 
ANDREW JOHNSON, President• 
The Court ruled that it yielded to the suspen' 
sion of the writ of habeas corpus by the Preside*1 
of the United States. 
The sentences were duly carried into execution- ARGUMEMT 
JURISDICTION OF THE MILITARY COMMISSION, 
ON THE 
BY 
REVERDY JOHNSON, 
Of Counsel for Mrs, 
!. Surratt. 
■JTr. President and Gentlemen of the Commission: 
give all needed efficiency to the office. The con- 
vention that formed the Constitution, and the 
people who adopted it, considered those powers 
sufficient, and granted no others. In the minds 
of both (and subsequent history has served to 
strengthen the impression) danger to liberty was 
no more to be dreaded from the Executive than 
from any other department of the Government. 
So far, therefore, from meaning to extend its 
powers beyond what was deemed necessary to 
the wholesome operation of the Government, 
they were studious to place them beyond the 
reach of abuse. With this view, before entering 
“on the execution of his office,” the President is 
required to take an oath “faithfully” to dis- 
charge its duties, and to the best of his “ ability 
preserve, protect, and defend the Constitution of 
the United States.” He is also liable to “be re- 
moved from office on impeachment for and con- 
viction of treason, bribery, or other high crimes 
and misdemeanors.” If he violates the Consti- 
tution ; if he fails to preserve it; and, above all, 
if he usurps powers not granted, he is false to 
his official oath, and liable to bo indicted and 
convicted, and to be impeached. For such an 
offense his removal from office is the necessary 
consequence. In such a contingency, “ he shall 
be removed” is the command of the Constitu- 
tion. What stronger evidence could there be 
that his powers, ail of them, in peace and in 
war, are only such as the Constitution confers ? 
But if this was not evident from the instrument 
itself, the character of the men who composed 
the Convention, and the spirit of the American 
people at that period, would prove it. Hatred of 
a monarchy, made the more intense by the con- 
duct of the njonarch from whose government 
they had recently separated, and a deep-seated 
love of constitutional liberty, made the more 
keen and active by the sacrifices which had il- 
lustrated their revolutionary career, constituted 
them a people who could never be induced to 
delegate any executive authority not so carefully 
restricted and guarded as to render its abuse or 
usurpation almost impossible. If these observa- 
tions are well founded—and I suppose they will 
not be denied—it follows that an executive act 
beyond executive authority can furnish no de- 
fense against the legal consequences of what is 
done under it. I have said that the question of 
jurisdiction is ever open. It may be raised by 
Has the Commission jurisdiction of the cases 
before it, is the question which I propose to dis- 
cuss. That question, in all courts, civil, crim- 
lr»al, and military, must be considered and an- 
swered affirmatively before judgment can bo 
Pronounced. And it must be answered cor- 
rectly, or the judgment pronounced is void. 
Ever an interesting and vital inquiry, it is of 
engrossing interest and of awful importance 
"ffien error may lead to the unauthorized taking 
°f human life. In such a case, the court called 
,upon to render, and the officer who is to approve 
its judgment and have it executed, have a con- 
Cern peculiar to themselves. As to each, a re- 
sponsibility is involved which, however consci- 
eQtiously and firmly met, is calculated and can- 
not fail to awaken great solicitude and induce 
the most mature consideration. The nature of 
he duty is such that even honest error affords 
110 impunity. The legal personal consequences, 
eTen in a case of honest, mistaken judgment, 
CaQ not be avoided. That this is no exaggera- 
tion, the Commission will, I think, be satisfied 
before I shall have concluded. I refer to it now, 
aiHl shall again, with no view to shake your 
firmness. Such an attempt would be alike dis- 
courteous and unprofitable. Every member com- 
prising the Commission will, I am sure, meet all 
the responsibility that belongs to it as becomes 
gentlemen and soldiers. I therefore repeat that 
“W sole object in adverting to it is to obtain a 
''’ell considered and matured judgment. So far 
Ere question of jurisdiction has not been dis- 
cussed. The pleas which specially present it, 
as soon as filed, were overruled. But that will 
a°t, because properly it should not, prevent your 
considering it with the deliberation that its 
grave nature demands. And it is for you to 
•Techie it, and at this time for you alone. The com- 
mission you are acting under of itself does not 
and could not decide it. If unauthorized it is a 
mere nullity—the usurpation of a power not 
Rested in the Executive, and conferring no au- 
bority whatever upon you. To hold otherwise 
"muld be to make the' Executive the exclusive 
aml conclusive judge of its own powers, and 
that would be to make that department omnipo- 
pQt. The powers of the President under the 
bonstitution are great, and amply sufficient to 
251 252 
ARGUMENT OF REYERDY JOHNSON. 
counsel at any stage of the trial, and if it is not, 
the Court not only may, hut is hound to notice 
it. Unless jurisdiction then exists, the authority 
to try does not exist, and whatever is done is 
“ coram non judice,” and utterly void. This doc- 
trine is as applicable to military as to other 
courts. 
generalissimo of the whole kingdom, has this 
sole power, though Parliament has frequently 
interposed and regulated for itself. But with 
us, it was thought safest to give the entire power 
to Congress, “ since otherwise summary and 
severe punishments might be inflicted at the 
mere will of the Executive.” 3 Story's Com., 
sect. 1192. No member of the Convention, or 
any commentator on the Constitution since, has 
intimated that even this Congressional power 
could be applied to citizens not belonging to the 
army or navy. In respect, too, to the latter 
class, the power was conferred exclusively on 
Congress to prevent that class being made the 
object of abuse by the Executive—to guard them 
especially from “summary and severe punish- 
ments ” inflicted by mere Executive will. ’The 
existence of such a power being vital to disci- 
pline, it was necessary to provide for it. But no 
member suggested that it should be or could be 
made to apply to citizens not in the military 
service, or be given to any other department, in 
whole or in part, than Congress. Citizens not 
belonging to the army or navy were not made 
liable to military law, or under any circum- 
stances to be deprived of any of the guaranties 
of personal liberty provided by the Constitution. 
Independent of the consideration that the very 
nature of the Government is inconsistent with 
such a pretension, the power is conferred upon 
Congress in terms that exclude all who do not 
belong to “ the land and naval forces.” It is a 
rule of interpretation coeval with its existence, 
that the Government, in no department of it, 
possesses powers not granted by express delega- 
tion or necessarily to be implied from those that 
are granted. This would be the rale incident to 
the very nature of the Constitution, but to place 
it beyond doubt, and to make it an imperative 
rule, the 10th amendment declares that “ the 
powers not delegated to the United States by 
the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or 
to the people.” The power given to Congress, 
“is to make rules for the government and regu- 
lation of the land and naval forces.” No arti- 
fice of ingenuity can make these words include 
those who do not belong to the army and navy; 
and they are therefore to be construed to exclude 
all others, as if negative words to that effect had 
been added. And this is not only the obvious 
meaning of the terms, considered by themselves, 
but is demonstrable from other provisions of the 
Constitution. So jealous were our ancestors of 
ungranted power, and so vigilant to protect the 
citizen against it, that they were unwilling to 
leave him to the safeguards which a proper 
construction of the Constitution, as originally 
adopted, furnished. In this they resolved that 
nothing should be left in doubt. They de- 
termined, therefore, not only to guard him against 
executive and judicial, but against Congressional 
abuse. With that view, they adopted the fifth 
constitutional amendment, which declares that 
“ no person shall be held to answer for a capital 
or otherwise infamous crime, unless on a pre- 
sentment or indictment of a grand jury, except 
in cases arising in the land or naval forces, or in 
the militia when in actioe service in time oj war or 
public danger.” This exception is designed to 
O’Brien tells us that the question may he 
raised by demurrer if the facts charged do not 
constitute an offense, or if they do, not an of- 
fense cognizable by a military court, or that it 
may be raised by a special plea, or under the 
general one of not guilty. O'Brien, 2-18. 
DeHart says; The court “is the judge of its 
own competency at any stage of its proceedings, 
and is bound to notice questions of jurisdiction 
whenever raised.” DeHart 111. 
The question then being always open, and its 
proper decision essential to the validity of its 
judgment, the Commission must decide before 
pronouncing such judgment whether it has juris- 
diction over these parties and the crimes im- 
puted to them. That a tribunal like this has no 
jurisdiction over other than military offenses, is 
believed to be self-evident. That offenses defined 
and punished by the civil law, and whose trial 
is provided for by the same law, are not the sub- 
jects of military jurisdiction, is of course true. 
A military, as contradistinguished from a civil 
offense, must therefore bo made to appear, and 
when it is, it must also appear that the military 
law provides for its trial and punishment by a 
military tribunal. If that law does not furnish 
a mode of trial, or affix a punishment, the case 
is unprovided for, and, as far as the military 
power is concerned, is to go unpunished. But 
as either the civil, common, or statute law em- 
braces every species of offense that the United 
States, or the States have deemed it necessary to 
punish, in all such cases the civil courts are 
clothed with every necessary jurisdiction. In a 
military court, if the charge does not state a 
“ crime provided for generally or specifically by 
any of the articles of war,” the prisoner must 
be discharged. O' Brien, p. 235. Nor is it suffi- 
cient that the charge is of a crime known to the 
military law. The offender, when he commits it, 
must be subject to such law, or he is not subject 
to military jurisdiction. The general law has 
“ supreme and undisputed jurisdiction over all. 
The military law puts forth no such pretensions ; 
it aims solely to enforce on the soldier the addi- 
tional duties he has assumed. It constitutes tri- 
bunals for the trial of breaches of military duty 
only." O'Brien, 26, 27. “The one code (the 
civil) embraces all citizens, whether soldiers or 
not; the other (the military) has no jurisdiction 
over any citizen as such.” Ibid. 
The provisions of the Constitution clearly 
maintain the same doctrine. The Executive has 
no authority “ to declare war, to raise and sup- 
port armies, to provide and maintain a navy,” 
or to make “rules for the government and regu- 
lation ” of either force. These powers are ex- 
clusively in Congress. An army can not be 
raised or have law for its government and regu- 
lation except as Congress shall provide. This 
power of Congress to govern and regulate the 
army and navy, was granted by the convention 
without objection. In England, the King, as the THE CONSPIRACY TRIAL. 
253 
leave in force, not to enlarge the power vested 
111 Congress by the original Constitution, “ to 
riake rules for the government and regulation 
the land and naval forces.” “The land or 
Haval forces ” are the terms used in both, have 
ri>e same meaning, and until lately, have been 
‘Supposed by every commentator and judge, to 
Exclude from military jurisdiction offenses com- 
mitted by citizens not belonging to such forces. 
Kent, in a note to his 1 Corns., p. 841, states, 
and with accuracy, that “military and naval 
primes, and offenses committed while the party 
Is attached to and under the immediate author- 
hy of the army and navy of the United States 
aud in actual service, are not cognizable under 
rile common law jurisdiction of the civil courts 
°f the United States.” According to this great 
authority every other class of persons and every 
other species of offense, are within the juris- 
diction of the civil courts, and entitled to the 
Protection of the proceeding by presentment 
0r indictment, and a public trial in such a 
Oourt. If the constitutional amendment has 
Uot that effect, if it does not secure that pro- 
jection to all who do not belong to the army 
°r navy, then the provisions in the sixth 
amendment are equally inoperative. They, 
“in all criminal prosecutions,” give the ac- 
cused a right to a speedy and public trial; a 
right to be informed of the nature and cause 
°f the accusation, to be confronted with the 
"fitnesses against him, to compulsory process 
f°r his witnesses, and the assistance of counsel, 
fhe exception in the 6th amendment of cases 
arising in the land or naval forces applies by 
"ocessary implication, at least in part, to this. 
f° construe this as not containing the ex- 
ception would defeat the purpose of the ex- 
ception ; for the provisions of the 6th amend- 
ment, unless they are subject to the exceptions 
of the sth, would be inconsistent with the Bth. 
fhe 6th is therefore to be construed as if it in 
'pords contained the exception. It is submitted 
fhat this is evident. The consequence is, that 
ri the exception can be made to include those 
"'ho, in the language of Kent, are not, when 
ihe offense was committed, “attached to and 
Under the immediate authority of the army or 
**avy, and in actual service,” the securities 
designed for other citizens by the 6th article 
are wholly nugatory. If a military commis- 
p°n, created by the mere authority of the 
can deprive a citizen of the benefit 
°f the guaranties secured by the sth amend- 
it can deprive him of those secured by 
fhe 6th. It may deny him the right to a “ speedy 
a"d public trial,” information “ of the nature 
and cause of the accusation,” of the right “to 
”e confronted with the witnesses against him,” 
°f compulsory process for his witnesses,” and 
2,f “the assistance of counsel for his defense.” 
afit this can be done no one has as yet main- 
ained; no opinion, however latitudinarian, of 
executive power, of the effect of public neces- 
sity, 
in war or in peace, to enlarge its sphere, 
and authorize a disregard of its limitations; 
a° one, however convinced he may be of the 
P°licy of protecting accusing witnesses from a 
Public examination, under the idea that their 
ustimony can not otherwise be obtained, and 
that crime may consequently go unpunished, 
has to this time been found to go to that extent. 
Certainly, no writer has ever maintained such 
a doctrine. Argument to refute it, is unneces- 
sary. It refutes itself. For-, if sound, the 6th 
amendment, which our fathers thought so vital 
to individual liberty when assailed by govern- 
mental prosecution, is but a dead letter, totally 
inefficient for its purpose whenever the Govern- 
ment shall deem it proper to try a citizen by a 
military commission. Against such a doctrine 
the very instincts of freemen revolt. It has no 
foundation but in the principle of unrestrained, 
tyrannic power, and passive obedience. If it 
be well founded, then are we indeed a nation 
of slaves, and not of freemen. If the Executive 
can legally decide whether a citizen is to enjoy 
the guaranties of liberty afforded by the Con- 
stitution, what are we but slaves? If the Presi- 
dent, or any of his subordinates, upon any pre- 
tence whatever, can deprive a citizen of such 
guaranties, liberty with us, however loved, is 
not enjoyed. But the Constitution is not so 
fatally defective. It is subject to no such re- 
proach. In war and in peace, it is equally po- 
tential for the promotion of the general welfare, 
and as involved in and necessary to such wel- 
fare, for the protection of the individual citizen. 
Certainly, until this rebellion, this has been the 
proud and cherished conviction of the country. 
And it is to this conviction and the assurance 
that it could never be shaken that our past 
prosperity is to be referred. God forbid that 
mere power, dependent for its exercise on Ex- 
ecutive will (a condition destructive of political 
happiness), shall ever be substituted in its 
place. Should that unfortunately ever occur, un- 
less it was soon corrected by the authority of the 
people, the objects of our Revolutionary strug- 
gle, the sacrifices of our ancestors, and the de- 
sign of the Constitution will all have been in 
vain. 
I proceed now to examine with somewhat of 
particularity the grounds on which I am in- 
formed your jurisdiction is maintained. 
Ist. That it is an incident of the war power. 
I. That power, whatever be its extent, is ex- 
clusively in Congress. War can only be de- 
clared by that body. With its origin the 
President has no concern whatever. Armies, 
when necessary, can only be raised by the 
same body. Not a soldier, without its author- 
ity, can be brought into service by the Execu- 
tive. He is as impotent to that end as a pri- 
vate citizen. And armies, too, when raised 
by Congressional authority, can only be gov- 
erned and regulated by “ rules ” prescribed 
by the same authority The Executive pos- 
sesses no power over the soldier except such 
as Congress may, by legislation, confer upon 
him. If, then, it was true that the creation of 
a military commission like the present is in- 
cidental to the war power, it must be author- 
ized by the department to which that power 
belongs, and not by the Executive, to whom 
no portion of it belongs. And if it be said to 
be involved in the power “to make rules for 
the government and regulation of the land 
and naval forces,” the result is the same. It 254 
ARGUMENT OE REYERDY JOHNSON. 
must be done by Congress, to whom that power 
also exclusively belongs, and not by the Ex- 
ecutive. Has Congress, then, under either 
power, authorized such a commission as this 
to try such cases as these ? It is confidently 
asserted that it has not. If it has, let the 
statute be produced. It is certainly not done 
by that of the 10th of April, 1806, “ establish- 
ing articles for the government of the armies 
of the United States.” No military courts are 
there mentioned or provided for but courts- 
martial and courts of inquiry. And their 
mode of appointment and organization, and 
of proceeding, and the authority vested in 
them are also prescribed. Military commis- 
sions are not only not authorized, but are not 
even alluded to. And, consequently, the par- 
ties, whoever these may be, who, under that 
act, can be tried by courts-martial or courts 
of inquiry, are not made subject to trial by a 
military commission. Nor is such a tribunal 
mentioned in any prior statute, or in any sub- 
sequent one, until those of the 17th of July, 
1862, and of the 3d of March, 1863. In the 
sth section of the first, the records of “ mili- 
tary commissions are to be returned for re- 
vision to the Judge Advocate General,” whose 
appointment it also provides for. But how 
such commissions are to be constituted, what 
powers they are to have, how their proceed- 
ings are to be conducted, or what cases and 
parties they are to try, is not provided for. 
In the 38th section of the second, they are 
mentioned as competent to try persons “lurk- 
ing or acting as spies.” The same absence in 
the particulars stated in respect to the first 
is true of this. And as regards this act of 
1863, this reflection forcibly presents itself. 
If military commissions can be created, and 
from their very nature possess jurisdiction to 
try all alleged military offenses (the ground 
on which your jurisdiction, it is said, in part 
rests), why was it necessary to give them the 
power, by express words, to try persons “lurk- 
ing or acting as spies ?” The military char- 
acter of such an offense could not have been 
doubted. What reason, then, can be suggested 
for conferring the power by express language 
than that without it it would not be possessed? 
Before these statutes a commission, called a 
military commission, had been issued by the 
Executive to Messrs. Davis, Holt and Camp- 
bell, to examine into certain military claims 
against the Western Department, and Con- 
gress, by its resolution of the 11th of March, 
1862 (No. 18), provided for the payment of its 
awards. Against a commission of that char- 
acter no objection can be made. It is but an- 
cillary to the auditing of demands upon the 
Government, and in no way interferes with 
any constitutional right of the citizen. But 
until this rebellion a military commission like 
the present, organized in a loyal State or Ter- 
ritory where the courts are open and their 
proceedings unobstructed, clothed with the 
jurisdiction attempted to be conferred upon 
you—a jurisdiction involving not only the 
liberty, but the lives of the parties on trial— 
it is confidently stated, is not to be found 
sanctioned, or the most remotely recognized, 
or even alluded to, by any writer on military 
law in England or the United States, or in 
any legislation of either country. It has its 
origin in the rebellion, and like the danger 
ous heresy of secession, out of which that 
sprung, nothing is more certain in my opin- 
ion than that, however pure the motives of its 
origin, it will be considered, as it is, an al- 
most equally dangerous heresy to constitu- 
tional liberty, and the rebellion ended, perish 
with the other, then and forever. But to pro- 
ceed ; such commissions were authorized by 
Lieutenant-General Scott in his Mexican cam- 
paign. When he obtained possession of the 
City of Mexico, he, on the 17th of September, 
1847, re-published, with additions, his order of 
the 19th of February preceding, declaring 
martial law. By this order, he authorized 
the trial of certain offenses by military com- 
missions, regulated their proceedings, and 
limited the punishments they might inflict. 
From their jurisdiction, however, he excepts 
cases “clearly cognizable by court-martial,” 
and in words limits the cases to be tried to 
such as are (I quote) “ not provided for in the 
act of Congress establishing rules and arti- 
cles for the government of the armies of the 
United States,” of the 10th of April, 1806. 
The second clause of the order mentions, 
among other offenses to be so tried, “assassi- 
nation, murder, poisoning;” and in the fourth 
(correctly, as I submit, with all respect for a 
contrary opinion), he states that “the rules 
and articles of war ” do not provide for the 
punishment of any one of the designated of- 
fenses, “ even when committed by individuals 
ot the army upon the persons or property of 
other individuals of the same, except in the 
very restricted case in the 9th of the articles.” 
The authority, too, for even this restricted 
commission—Scott—not more eminent as sol- 
dier than civilian—placed entirely upon the 
ground that the named offenses, if committed 
in a foreign country by American troops, 
could not be punished under any law of the 
United States then in force. “The Constitu- 
tion of the United States and the rules and 
articles of war,” he said, and said correctly, 
provided no court for their trial or punish- 
ment, “no matter by whom, or on whom” 
committed. Scott's Autobiography, 392. 
And he further tells us that even this order, 
so limited and so called for by the greatest 
public necessity, when handed to the then 
Secretary of War (Mr. Marcy) “for his ap- 
proval,” “a startle at the title (martial laW 
order) was the only comment he then, or ever, 
made ort the subject,” and that it was “ soon 
silently returned as too explosive for safe 
handling.” “ A little later (he adds), the At- 
torney-General (Mr. Cushing) called and 
asked for a copy, and the law officer of the 
Government, whose business it is to speak on 
all such matters, was stricken with legal dumb- 
ness," lb. How much more startled and 
more paralyzed would these great men have 
been had they been consulted on such a coni' 
mission as this!—a commission, not to sit H* 
another country, and to try offenses not pro- 
vided for by any law of the United States, THE CONSPIRACY TRIAL. 
255 
Civil or military, but in tlieir own country, 
a»d in a part of it where there are laws pro- 
viding for their trial and punishment, and 
civil courts clothed with ample powers for 
hoth, and in the daily and undisturbed exer- 
cise of their jurisdiction ; and where, if there 
should be an attempt at disturbance by a force 
ivhich they had not the power to control, they 
could invoke (and it would be his duty to af- 
ford it) the President to use the military 
power at his command, and which everybody 
knows to be ample for the purpose. 
If it be suggested that the civil courts and 
juries for this District could not safely be re- 
lied upon for the trial of these cases, because 
cither of incompetency, disloyalty or corrup- 
tion, it would be an unjust reflection upon the 
judges, upon the people, upon the Marshal, an 
appointee of the President, by whom the ju- 
ries are summoned, and upon our civil insti- 
tutions themselves—upon the very institu- 
tions on whose integrity and intelligence the 
safety of our property, liberty and lives, our 
aHcestors thought, could not only be safely 
rested, but would be safe nowhere else. If it 
be suggested that a secret trial, in whole or 
in part, as the Executive might deem expe- 
dient, could not be had before any other than 
a military tribunal, the answer is that the 
Constitution, “ in all criminal prosecutions,” 
gives the accused “the right” to a “public 
trial.” So abhorrent were private trials to 
pur ancestors, so fatal did they deem them to 
tudividual security, that they were thus de- 
nounced, and, as they no doubt thought, so 
guarded against as in all future time to be 
lf it be suggested that witnesses 
niay be unwilling to testify, the answer is 
fhat they may be compelled to appear and 
to testify. 
. But the suggestion, upon another ground, 
13 equally without force. It rests on the idea 
fhat the guilty only are ever brought to trial 
pdhat the only object of the Constitution and 
mws in this regard is to afibrd the means to 
establish alleged guilt; that accusation, how- 
cver made, is to be esteemed prima facie evi- 
dence of guilt, and that the Executive should 
he armed, without other restriction than his 
discretion, with all the appliances deemed 
~y him necessary to make the presumption 
from such evidence conclusive. Never urns 
fhere a more dangerous theory. The peril to 
citizen from a prosecution so conducted, 
a® illustrated in all history, is so great that 
he very elementary principles of constitu- 
-1()nal liberty, the spirit and letter of the Con- 
stitution itself repudiate it. 
II- Innocent parties, sometimes by private 
Malice, sometimes for a mere partisan pur- 
P°Se, sometimes from a supposed public policy, 
ave been made the subjects of criminal accu- 
History is full of such instances. 
Bow are such parties to be protected if a pub- 
trial, at the option of the Executive, can 
?e denied them, and a secret one, in whole, or 
ln. Part, substituted? If the names of the 
finesses, and their evidence, are not pub- 
Bshed, what obstacle does it not interpose to 
establish their innocence? The character of 
the witnesses against them may be all import- 
ant to that end. Kept in prison, with no 
means of consulting the outer world, how can 
they make the necessary inquiries? How can 
those who may know the witnesses be able to 
communicate with them on the subject? A 
trial so conducted, though it may not, as, 
no doubt, is the case in the present instance, 
be intended to procure the punishment of any 
but the guilty, it is obvious, subjects the inno- 
cent to great danger. It partakes more of the 
character of the Inquisition, which the en- 
lightened civilization of the age has driven 
almost wholly out of existence, than of a tri- 
bunal suited to a free people. In the palmiest 
days of that tribunal, kings, as well as 
stood abashed in its presence, and dreaded its 
power. The accused was never informed of 
the names of his accusers; heresy, suspected, 
was ample ground for arrest; accomplices and 
criminals were received as witnesses, and the 
whole trial was secret, and conducted in a 
chamber almost as silent as the grave. It was 
long since denounced by the civilized world, 
not because it might not at times punish the 
heretic (then, in violation of all rightful hu- 
man power, deemed a criminal), but because 
it was as likely to punish the innocent as the 
guilty. A public trial, therefore, by which the 
names of witnesses and the testimony are 
given, even in monarchical and despotic Gov- 
ernments, is now esteemed amply adequate to 
the punishment of guilt, and essential to the 
protection of innocence. Can it be that this 
is not true of us ? Can it be that a secret 
trial, wholly or partially, if the Executive so 
decides, is all that an American citizen is en- 
titled to ? Such a doctrine, if maintained by 
an English monarch, would shake his govern- 
ment to its very center, and, if persevered in, 
would lose him his crown. It will be no an- 
swer to these observations to say that this 
particular trial has been only in part a secret 
one, and that secrecy will never be resorted to, 
except for purposes of justice. The reply is) 
that the principle itself is inconsistent with 
American liberty, as recognized and secured 
by constitutional guaranties. It supposes 
that, whether these guaranties are to be en- 
joyed in the particular case, and to what ex- 
tent, is dependent on Executive will. The 
Constitution, in this regard, is designed to 
secure them in spite of such will. Its patri- 
otic authors intended to place the citizen, in 
this particular, wholly beyond the power, not 
only of the Executive, but of every depart- 
ment of the Government. They deemed the 
right to a public trial vital to the security of 
the citizen, and especially and absolutely 
necessary to his protection against Executive 
power. A public'trial of all criminal prose- 
cutions they, therefore, secured by general and 
unqualified terms. What would these great 
men have said, had they been asked so to qual- 
ify the terms as to warrant its refusal, under 
tiny circumstances, and make it dependent 
upon Executive discretion ? The member who 
made the inquiry would have been deemed by 
them a traitor to liberty, or insane. What 
j would they have said if told that, without 256 
ARGUMENT OF REVERDY JOHNSON. 
such qualification, the Executive would he able 
legally to impose it as incidental to Executive 
power? If not received with derision, it 
would have been indignantly rejected as an 
imputation upon those who, at any time there- 
after, should legally fill the office. 
111. Let me present the question in another 
view. If such a Commission as this, for the 
trial of cases like the present, can be legally 
constituted, can it be done by mere Executive 
authority ? 
1. You are a Court, and, if legally exist- 
ing, endowed with momentous power, the 
highest known to man, that of passing upon 
the liberty or life of the citizen. By the ex- 
press words of the Constitution an army can 
only be raised, and governed and regulated, 
by laws passed by Congress. In the exercise 
of the power to rule and govern it, the act be- 
fore referred to, of the 10th of April, 1806, es- 
tablishing the articles of war, was passed. 
That act provides only for courts-martial and 
courts of inquiry, and designates the cases to 
be tried before each, and the laws that are to 
govern the trial. Military commissions are 
not mentioned, and, of course, the act con- 
tains no provision for their government. 
Now, it is submitted, as perfectly clear, that 
the creation of a court, whether civil or mili- 
tary, is an exclusive legislative function, be- 
longing to the department upon which the 
legislative power is conferred. The jurisdic- 
tion of such a court, and the laws and regula- 
tions to guide and govern it, is. also exclu- 
sively legislative. What cases are to be tried 
fly it, how the judges are to be selected, and 
how qualified, what are to be the rules of evi- 
dence, and what punishments are to be in- 
flicted, all solely belong to the same depart- 
ment. The very element of constitutional 
liberty, recognized by all modern writers on 
government as essential to its security, and 
carefully incorporated into our Constitution, 
is a separation of the legislative, judicial, and 
executive powers. That this separation is 
made in our Constitution, no one will deny. 
Article Ist declares that “All legislative pow- 
ers herein granted shall be vested in a Con- 
gress.” Article 2d vests “the Executive 
power” in a President, and Article 3d, “the 
judicial power” in certain designated courts, 
and in courts to be thereafter constituted by 
Congress. There could not be a more careful 
segregation of the three powers. If, then, 
courts, their laws, modes of proceeding, and 
judgments, belong to legislation (and this, I 
suppose, will not be questioned), in the absence 
of legislation in regard to this Court, and its 
jurisdiction to try the present cases, it has for 
that purpose no legal existence or authority. 
The Executive, whose functions are altogether 
executive, can not confer it. The offenses to 
be tried by it, the laws to govern its proceed- 
ings, the punishment it may award, can not, 
for the same reason, be prescribed by the Ex- 
ecutive. These, as well as the mere constitu- 
tion of the Court, all exclusively belong to 
Congress. If it be contended that the Execu- 
tive has the powers in question, because by im- 
plication they are involved in the war power, 
or in the President’s constitutional function as 
commander-in-chief of the army, then this 
consequence would follow, that they would 
not be subject to Congressional control, as 
that department has no more right to interfere 
with the constitutional power of the Executive 
than that power has a right to interfere with 
that of Congress. If, by implication, the 
powers in question belong to the Executive, he 
may not only constitute and regulate military 
commissions, and prescribe the laws for their 
government, but all legislation upon the sub- 
ject by Congress would be usurpation. That 
the proposition leads to this result would seem 
to be clear, and, if it does, that result itself is 
so inconsistent with all previous legislation, 
and all executive practice, and so repugnant 
to every principle of constitutional liberty, 
that it demonstrates its utter unsoundness. 
Under the power given to Congress, “ to make 
rules for the government and regulation of the 
land” forces, they have, from time to time, up 
to and including the act of the 10th of April, 
1806, and since, enacted such rules as they 
deemed to be necessary, as well in war as in 
peace, and their authority to do so has never 
been denied. This power, too, to govern and 
regulate, from its very nature, is exclusive. 
Whatever is not done under it, is to be consid- 
ered as purposely omitted. The words used in 
the delegation of the power, “ govern and reg- 
ulate,” necessarily embrace the entire subject, 
and exclude all like authority in others. The 
end of such a power can not be attained, ex- 
cept through uniformity of government and 
regulation, and this is not to be attained if the 
power is in two hands. To be effective, there- 
fore, it must be in one, and the Constitution 
gives it to one—to Congress—in express 
terms, and nowhere intimates a purpose to be- 
stow it, or any portion of it, upon any other 
department. In the absence, then, of all men- 
tion of military commissions in the Constitu- 
tion, and in the presence of the sole authority 
it confers on Congress, by rules of its own en- 
acting, to govern and regulate the army, and, 
in the absence of all mention of such commis- 
sions in the act of the 10th of April, 1806, and 
of a single word in that act, or in any other, 
how can the power be considered as in the 
President? Further, upon what ground, other 
than those I have examined, can his authority 
be placed ? 
I. Is it that the constitutional guaranties 
referred to are designed only for a state of 
peace? There is not a syllable in the instru- 
ment that justifies, even plausibly, such a 
qualification. They are secured by the most 
general and comprehensive terms, Wholly iu' 
consistent with any restriction. They are, 
also, not only not confined to a condition of 
peace, but are more peculiarly necessary 
the security of personal liberty in war than iO 
peace. All history tells us that war, at times, 
maddens the people, frenzies government, and 
makes both regardless of constitutional Hr 3' 
itations of power. Individual safety, at such 
periods, is more in peril than at any other. 
Constitutional limitations and guaranties are, 
then, also absolutely necessary to the protoo- THE CONSPIRACY TRIAL. 
/ 
; not embrace the crimes charged against these 
| parties or the parties themselves. 
First. The charge is a traitorous conspiracy 
to take the lives of'the designated persons “in 
aid of the existing armed rebellion.” Second. 
That in the execution of the conspiracy, the 
actual murder of the late President, and the 
attempted murder of the Secretary of State, 
occurred. Throughout the charge and its spec- 
ification, the conspiracy and its attempted 
execution are alleged to have been traitorous. 
The accusation, therefore, is not one merely of 
murder, but of murder designed and in part 
accomplished, with traitorous purpose. If the 
charge is true, and the intent (which is made a 
I substantial part of it) be also true, then the 
crime is treason, and not simple murder. 
Treason against the United States, as defined 
by the Constitution, can “consist only in levy- 
ing war against them, or in adhering to their 
enemies, giving them aid and comfort.” 
11l Art. This definition not only tells us what 
treason is, but tells us that no other crime than 
the defined one shall be considered the offense. 
257 
of the Government itself. The maxim,;) 
Salus popUn guprema est lex,” is but fit for a ty-j ] 
ant s use. Under its pretense the grossest 
(°Ugs have been committed, the most awful I 
perpetrated, and every principle of i 
reedom violated, until, at last, worn down by 
“tiering, the people, in very despair, have i 
acffuiesced in a resulting despotism. The s 
aiety which liberty needs, and without which ( 
sickens and dies, is that which law, and not i 
,ere unlicensed human will, affords. The < 
. r)stotelian maxim, llSalus publica supremas est 1 
£ —“Let the public weal be under the pro- : 
®cUon of the law”—is the true and only safe 
axim. Nature, without law, would be chaos; 
p Vemment, without law, anarchy or despot-1 
Against both these last, in war and in 
eeace, the Constitution happily protects us. 
. U- If the power in question is claimed un- 
pGr the authority supposed to be given the 
in certain cases to suspend the writ 
(, habeas corpus and to declare martial law, 
. e claim is equally, if not more evidently, 
utl tenable. 
t- Because the first of these powers, if given 
the President at all, is given “when, in cases 
Rebellion or invasion,” he deems the public 
v ety requix-es it. I think he has this power, 
there are great and patriotic names who 
iq otherwise. But if he has it, or if it be 
hg Congress alone, it is entirely untrue that 
8a exerctse works any other result than the 
8j r>ensi°n of the writ—the temporary suspen- 
pan of the right of having the cause of ax-rest 
jessed upon at once by the civil judges. It 
8e 110 Way impairs or suspemds the other rights 
|)eG|lr,e,i to the accused. In what court he is to 
to K k°w ho to be tried, what evidence is 
ate*6 a(^mitted, axxd what judgment pi’onounced 
to be what the Constitution secui’es, and 
taws provide in similar cases, when there is 
of the writ. The purpose of the 
L 18 merely, without delay, to ascertain the 
polity 0f the arrest. If adjudged legal, the 
IQ1 7 is detained ; if illegal, discharged. But 
contingency, when lie is called to an- 
taq1' c’^minal accusation, and he is a civil- 
-Btit’ a- llot subject to the articles of war con- 
<Ctioually enacted by Congress, it must be 
tj.j ? by presentment or indictment, and his 
p' be had in a civil court, having, by State or 
CttrrfT'eSfd°rial legislation, jurisdiction over the 
an,,"' aml under laws govexming the tribunal 
too |*ehuing the punishment. The very fact, 
c°Ud- • exPl-ess power is given in a cex-tain 
t0) ltlon of things to suspend the writ referred 
(lpt),Tlh that no power is given to suspend or 
Übep* the other securities for personal 
Bive Provided by the Constitution, is conclu- 
to ? ®how that all of the latter were designed 
force “ iu cases of rebellion or inva- 
safety aS as *n a Btato of perfect peace and 
t have already referred to the act of 
tvfiatestablishing the articles of war, and said 
be admitted, that it provides for no 
court like this. But for argument’s 
be conceded that it does. And I 
v with becoming confidence and 
espect for a different opinion, that it does 
And the same section provides that “no person 
shall be convicted of treason, except on the tes- 
timony of two witnesses to the same overt act, 
or on confession in open court,” and gives to 
Congress the power to declare what its punish- 
ment shall be. The offense in the general is 
the same in England. In that country, at no 
period since its freedom became settled, has any 
other treason been recognized. During the 
pendency of this rebellion (never before), it has 
been alleged that there exists with us the offense 
of military treason, punishable by the laws of 
war. It is so stated in the instructions of Gen- 
eral Halleck to the then commanding officer in 
Tennessee, of the sth of March, 1868. Law- 
rence’s Wheaton, Suppt. p. 41. But Halleck 
confines it to acts committed against the army 
of a belligerent, when occupying the territory 
of the enemy. And he says what is certainly 
irue, if such an offense can be committed, that 
it “is broadly distinguished from the treason 
defined in the constitutional and statutory laws, 
and made punishable by the civil courts.” But 
the term military treason is not to be found in 
any English work or military order, or, before 
this i-ebellion, in any American authority. 
It has evidently been adopted during the 
rebellion as a doctrine of military law on the 
authority of continental writei’S in governments 
less free than those of England and the United 
States, and in which, because they ax*e less free, 
treason is made to consist of ceidain specific 
acts, and no others. But if Halleck is right, 
and all our prior practice, and that of England, 
from whom we derive ours, is to be abandoned, 
the cases before you are not cases of “military 
treason,” as he defines it. When the offense 
here alleged is stated to have occurred in this 
District, the United States were not and did 
not claim to be in its occupation as a belliger- 
ent, nor was it pretended that the people of 
this District were, in a belligerent sense, ene- 
mies. On the contrary, they were citizens 
entitled to every xfight of citizenship. Nor' 
were the parties on trial enemies. They were 
either citizens of the District, or of Maryland, 258 
ARGUMENT OF REVERDY JOHNSON. 
to the additional securities before adverted to. 
The great purpose of Magna Charta and the 
Constitution was (to quote Story again) ‘‘t° 
guard against a spirit of oppression and tyraU' 
ny on the part of rulers, and against a spirit 
of violence and vindictiveness on the part ot 
the people.” The appeal for safety can, unde? 
such circumstances, scarcely be made by inno' 
cence in any other manner than by the severe 
control of courts of justice, and by the firm and 
impartial verdict of a jury sworn to do right) 
and guided solely by legal evidence and a sense 
of duty. In such a course there is a double 
security against the prejudices of judges, wh° 
may partake of the wishes and opinions of the o°vj 
ernment, and against the passions of the multi' 
tude, who may demand their victim with 9 
clamorous precipitancy.” And Mr. Justice 
Blackstone, with the same deep sense of hs 
value, meets the prediction of a foreign write1") 
“that because Rome, Sparta, and Carthage havo 
lost their liberties, those of England in jimo 
must perish,” by reminding, him, “that Romp) 
Sparta, and Carthage, at the tine when then 
liberties were lost, were strangers to the trial W 
jury." 3 Bla., 379. That a right so valued, an 
esteemed by our fathers to be so necessary 
civil liberty, so important to the very existent 
of a free government, was designed by them 
be made to depend for its enjoyment upon * , 
war power, or upon any power intrusted to aD' 
department of bur Government, is a reflect!01 
on their intelligence and patriotism. 
IV. But to proceed: The articles of war, 
they provided for the punishment of the crim0 
on trial, and authorized such a court as thi-’ 
■do not include such parties as are now 
trial. And, until the rebellion, lam D° 
aware that a different construction was et0 
intimated. It is the exclusive fruit of the t0 
hellion. . . 
The title of the act is, “ An act for establi3 
ing rules and articles for the government 0 
the armies of the United States." 
The first section states “ the following sb® 
be the rules and articles by which the am 11" 
of the United States shall he governed," and ev°}- 
other section, except the 66th and 57th, are, i 
words, confined to persons belonging to 1 
army in some capacity or other. I und 
stand it to be held by some, that because su 
words are not used in the two sections ) 
ferred to, it was the design of Congress to 1 
elude persons who do not belong to the arJjqg 
In my judgment, this is a wholly unten9 .j 
construction; but if it was a correct ° 
would not justify the use sought to be m 
of it in this instance. It would not bri 
these parties for their alleged crime befo_ie.y 
military court known to the act; certfti 
not before a military commission—a court1 
known to the act. The offense charged 1 j 
traitorous conspiracy, and murder commit 
in pursuance of it. Neither offense, consp 
acy or murder, if indeed two are charg®9 
embraced by either the 56th or 67th art!^et" 
of the statute. The 56th prohibits the reb - 
ing “the enemy with money, victuals °r 
munition, or knowingly harboring and, 
tecting him.” Sophistry itself can not m 
and under the protection of the Constitution. 
The offense charged, then, being treason, it is 
treason as known to the Constitution and laws, 
and can only be tried and punished as they 
provide. To consider these parties belligerents, 
and their alleged offense military treason, is not 
only unwarranted by the authority of Halleck, 
but is in direct conflict with the Constitution 
and laws which the President and all of us are 
bound to support and defend. The offense, then, 
being treason, as known to the Constitution, its 
trial by a military court is clearly illegal. And 
this for obvious reasons. Under the Constitu- 
tion no conviction of such an offense can be had, 
“unless on the testimony of two witnesses to 
the same overt act, or on confession in open 
court.” And under the laws the parties are 
entitled to have “a copy of the indictment and 
a list of the jury and witnesses, with the names 
and places of abode of both, at least three en- 
tire days before the trial.” They also have the 
right to challenge peremptorily thirty-five of 
the jury, and to challenge for cause without 
limitation. And finally, unless the indictment 
shall be found by a grand jury within three 
years next after the treason done or committed, 
they shall not be prosecuted, tried or punished. 
Act 30 th April, 1790, 1 a tat. at large, 118, 119. 
Upon what possible ground, therefore, can this 
Commission possess the jurisdiction claimed for 
it? It is not alleged that it is subject to the 
provisions stated, and in its very nature it is 
impossible that it should be. The very safe- 
guards designed by the Constitution, if it has 
such jurisdiction, are wholly unavailing. Trial 
by jury in all cases, our English ancestors 
deemed (as Story correctly tells us), “the great 
bulwark of their civil and political liberties, 
and watched with an unceasing jealousy and 
solicitude.” It constituted one of the funda- 
mental articles of Magna Charta—“ Nullus liber 
homo capiatur nec imprisonetur aut exulet, aut 
aliquo modo, destruatur, etc.; nisi per legae judicium 
parium suorum, vel per legem terrea.” This great 
right the American colonists brought with them 
as their birth-right and inheritance. It landed 
with them at Jamestown and on the rock 
of Plymouth, and was equally prized by Cav- 
alier and Puritan; and ever since, to the 
breaking out of the rebellion, has been enjoyed 
and esteemed the protection and proud privi- 
lege of their posterity. At times, during the 
rebellion, it has been disregarded and denied. 
The momentous nature of the crisis, brought 
about by that stupendous crime, involving, as 
it did, the very life of the nation, has caused 
the people to tolerate such disregard and de- 
nial. But the crisis, thank God, has passed. 
The authority of the Government throughout 
our territorial limits is reinstated so firmly 
that reflecting men, here and elsewhere, are 
convinced that the danger has passed never to 
return. The result proves that the principles 
on which the Government rests have imparted 
to it a vitality that will cause it to endure for 
all time, in spite of foreign invasion or domes- 
tic insurrection; and one of those principles— 
the choicest one—is the right in cases of “crim- 
inal prosecutions to a speedy and public trial 
by an impartial jury,” and in cases of treason THE CONSPIRACY TRIAL. 
259 
J?e offenses in question, under this article. 
ae 57th prohibits only the “holding corre- 
Pondence with, or giving intelligence to the 
either directly or indirectly.” It is 
ylOally clear that the offenses in question are 
within this provision. But, in fact, the 
v° articles relied upon admit of no such con- 
ruction as is understood to he claimed. 
I/118 is thought to be obvious, not only from 
8 general character of the act, and of all the 
. Per articles it contains, but because the one 
. Mediately preceding, like all those preced- 
es and succeeding it, other than the sbth and 
includes only persons belonging to the 
Armies of the United States.” Its language 
“whosoever belonging to the armies of the 
, nUed States, employed in foreign parts,” shall 
(,° the act prohibited, shall suffer the pre- 
JcÜbed punishment. Now, it is a familiar 
jPte of interpretation, perfectly well settled, 
• sUch a case, that unless there be something 
the following sections that clearly shows a 
to make them more comprehensive 
their immediate predecessor, they are to 
ge construed as subject to the same limitation. 
0 far from there being in this instance, any 
Q, of a different purpose, the declared 
. Ject of the statute, as evidenced by its title, 
hrst section, and its general contents, are 
4 with any other construction. 
u when to this it is considered that the 
*«r exercised by Congress in passing the 
lute wag mereiy the constitutional one to 
oj. Pc rules for the government and regulation 
j Pc army, it is doing great injustice to that 
to suppose that in exercising it 
designed to legislate for any other class. 
10 6 therefore, in the 66th article, “ be- 
qo to armies of the United States,” 
a ptying the immediate preceding word, 
5? are applicable to the 56tli and 
‘‘wU aQd equally qualify the same word 
fiq i '°ever ” also used in each of them. And, 
aUt\lly, upon this point I am supported by the 
Q0 °rity of Lieutenant-General Scott. The 
mission have seen from my previous ref- 
aut°biography that he placed his 
ituj issue his martial law order, establish- 
Siq’ among other things, military commis- 
by 8 to try certain offenses in a foreign coun- 
tv0’ aP°u the ground that otherwise they 
unpunished, and his array become 
fier oradized. One of these offenses was mur- 
Ofi,en or attempted, and for such an 
VJ(je fie tells us that the articles of war pro- 
i!10 court fi°r fifieir trial and punish- 
’ no matter by whom or on whom com- 
4th pi And this opinion is repeated in the 
aaise of his order, as true of all the des- 
c ed offenses, “except in the very restricf- 
V *n the 9th of the article.” 
Uieg tfiere are other views which I submit to 
1 S°us attention of the Commission. 
thi8 ae mode of proceeding in a court like 
which has been pursued by the pros- 
with your approval, because deemed 
i6edin *ss 80 inconsistent with the pro- 
fiyest S8 of civil courts, as regulated for ages 
°hßtr^blisfied law, that the fact, I think, dem- 
es that persons not belonging to the 
(army can not be subjected to such a jurisdic- 
| tion. 1. The character of the pleadings. The 
offense charged is a conspiracy with persons 
I not Avithin the reach of the Court, and some 
] of them in a foreign country, to commit the 
alleged crime. To give you jurisdiction, the 
design of the accused and their co-conspira- 
tors is averred to have been to aid the rebel- 
lion, and to accomplish that end not only by 
the murder of the President and Lieutenant- 
General Grant, but of the Vice-President and 
Secretary of State. It is further averred that 
the President being murdered, the Vice-Presi- 
dent becoming thereby President, and as such, 
Commander-in-Chief, the purpose was to mur- 
der him; and as, in the contingency of the 
death of both, it Avould be the duty of the Sec- 
retary of State to cause an election to be held 
for President and Vice-President, he was to 
be murdered in order to prevent a “lawful 
election” of these officers; and that by all 
these means, “ aid and comfort ” were to be 
given “ the insurgents engaged in armed re- 
bellion against the United States,” and “ the 
subversion and overthrow of the Constitution 
and laws of the United States ” thereby 
effected. That such pleading as this Avould 
not be tolerated in a civil court, I suppose 
every lawyer will concede. It is argumenta- 
tive, and even in that character unsound. 
The continuance of our Government does not 
depend on the lives of any or of all of its pub- 
lic servants. As fact, or law, therefore, the 
pleading is fatally defective. The Govern- 
ment has an inherent power to preserve itself, 
which no conspiracy to murder, or murder, 
can in the slightest degree impair. And the 
result which we have just witnessed proves 
this, and shoAvs the folly of the madman and 
fiend by whose hands our late lamented Pres- 
ident fell. He, doubtless, thought that he had 
done a deed that would subvert the “ Consti- 
tution and laws.” We know that it has not 
had even a tendency to that result. Not a 
power of the Government Avas suspended; all 
progressed as before the dire catastrophe. A 
cherished and almost idolized citizen was 
snatched from us by the assassin’s arm, but 
there was no halt in the march of the Govern- 
ment. That continued in all its majesty 
wholly unimpeded. The only effect was to 
place the nation in tears, and drape it in 
mourning, and to awake the sympathy, and 
excite the indignation of the world. 
11. But this mode of pleading renders, it 
would seem, inapplicable, the rules of evi- 
dence knoAyn to the civil courts. It justifies, 
in the opinion of the Judge Advocate and the 
Court (or what has been done would not have 
been done), a latitude that no civil court 
would alloAV, as in the judgment of such a 
court the accused, however innocent, could 
not be supposed able to meet it. Proof has 
been received, not only of distinct offenses 
from those charged, but of such offenses com- 
mitted by others than the parties on trial. 
Even in regard to the party himself, other of- 
fenses alleged to have been previously com- 
mitted by him can not be proved. At one time 
a different practice prevailed in England, and 260 
ARGUMENT OF REVERDY JOHNSON. 
does now, it. is believed, in some of the Conti- 
nental governments. But since the days of 
Lord Holt (a name venerated by lawyers and 
all admirers of enlightened jurisprudence), it 
has not prevailed in England. In the case of 
Harrison, tried before that judge for murder, 
the counsel for the Government offered a wit- 
ness to prove some felonious design of the 
prisoner three years before. Holt indignantly 
exclaimed, “Hold! hold! what are you doing 
now ? How can he defend himself from 
charges of which he has no notice ? And how 
many issues are to be raised to perplex me 
and the jury? Away! away! that ought not 
to be—that is nothing to the matter.” 12 State 
Trials, 833-874. I refer to this case, not to as- 
sail what has been done in these cases contrary 
to this rule, because I am bound to infer that 
before such a commission as this the rule has 
no legal force. If, in a civil court, then, these 
parties would be entitled to the benefit of this 
rule, one never departed from in such courts, 
they would not have had proved against them 
crimes alleged to have been committed by oth- 
ers, and having no necessary or legal connec- 
tion with those charged. With the same view, 
and not denying the right of the Commission 
in the particular case lam about to refer to, 
but to show that the Constitution could not 
have designed to subject citizens to the prac- 
tice, I cite the same judge to prove that in a 
civil court those parties could not have been 
legally fettered during their trial. In the case 
of Cranbum, accused as implicated in the “as- 
sassination plot,” on trial before the same 
judge, Holt put an end to what Lord Campbell 
terms “ the revolting practice of trying prison- 
ers in fetters.” Hearing the clanking of 
chains, though no complaint was made to him, 
he said, “I should like to know why the pris- 
oner is brought in ironed.” “ Let them be in- 
stantly knocked off. When prisoners are tried 
they should stand at their ease.” 13 State 
Trials, 221, 2d Campbell, Lives Chief Justices, 
140. Finally, I deny the jurisdiction of the 
Commission, not only because neither Consti- 
tution or laws justify, but, on the contrary, re- 
pudiate it, but on the ground that all the ex- 
perience of the past is against it. Jefferson, 
ardent in the prosecution of Burr, and solicit- 
ous for his conviction, from a firm belief of his 
guilt, never suggested that he should be tried 
before 'any other than a civil court. And in 
that tipal, so ably presided over by Marshall, 
the prisoner was allowed to “ stand at his 
easewas granted every constitutional priv- 
ilege, and no evidence was permitted to be 
given against him but such as a civil court 
recognizes; and in that case, as in this, the 
overthrow of the Government was the alleged 
purpose, and yet it was not intimated in any 
quarter that he could be tried by a military 
tribunal. In England, too, the doctrine on 
which this prosecution is placed is unknown. 
Attempts were made to assassinate George the 
Third and the present Queen, and Mr. Perci- 
val, then Prime Minister, was assassinated as 
he entered the House of Commons. In the first 
two instances, the design was to murder the 
commander-in-chief of England’s army and 
T 
navy, in whom, too, the whole war powet 0 
the Government was also vested; in thelflSt’ 
a secretary, clothed with powers as great, 
least, as those that belong to our Secretary 
State; and yet, in each, the parties accuse 
were tried before a civil court, no one sugge® g 
ing any other. And during the period ot 
French Revolution, when its principles, _ 
principles they can be termed, were being 
culcated in England to an extent that 
the Government, and caused it to exert cveQ 
power it was thought to possess to frustia 
their effect, when the writ of habeas corpus w& 
suspended, and arrests and prosecutions 1 
sorted to almost without limit, no one suggeSj 
ed a trial, except in the civil courts. 
yet the apprehension of the Government- 
that the object of the alleged conspirators 
to subvert its authority, bring about its ov® 
throw, and subject the kingdom to the hon'O 
of the French Revolution, then shocking ' 
nations of the world. Hardy, Horne Too'’ 
and others, were tried by civil courts, _aJ^g 
their names are remembered for the princip* 
of freedom that were made triumphant maio ' 
through the efforts of “ that great genius, ‘_j 
the words of a modern English statesman (Ta j 
Russell), “whosesword and buckler 
justice and freedom during the disastrous P 
riod;” having “the tongue of Cicero and 1 
soul of Hampden, an invincible orator and 
undaunted patriot.” Erskine. _go 
As it was, these trials were conducted i» 
relentless a spirit, and, as it was thought, )vl. 
such disregard of the rights of the subje | 
that the administration of the day were 
able to withstand the torrent of the pe°P ejf 
indignation. What would have been t® 
fate, individually as well as politically, B 
cases had been tried before a military cof& 
sion, and life taken ? Can it be that in, .0J 
particular an American citizen is not enti 
to all the rights that belong to a British s 
ject? Can it be that with us Executive P°.jl 
at times casts into the shade and 
other power subordinate? An Anieii 
statesman, with a world-wide reputation, 
since gave answer to these inquiries. pi 
debate in the Senate of the United 
which he assailed what he deemed an unv 
ranted assumption of Executive poweL 
said, “the first object of a free people i® ii 
preservation of their liberties, and libel 
only to be maintained by constitution!1 
traints and just divisions of political P°' of 
“It does not trust the amiable Aveakues® ? 
human nature, and, therefore, will 110 
mit power to overstep its prescribed yk 
though benevolence, good intent, and 
otic intent come along with it.” 
added, “Mr. President, the contest 0 
has been to rescue liberty from the tJF 
Executive power.” “In the long ligt . o>li 
champions of human freedom there is n^oo% 
name dimmed by the reproach of 
ting the extension of Executive an , yin 
Thoughts so eloquently expressed apPe® 
subduing power to every patriotic heat 
demonstrate that Webster, if here, w ji) 
heard raising his mighty voice agains THE CONSPIRACY TRIAL. 
261 
Dsdiction of this Commission—a jurisdiction 
Placed upon Executive authority alone. But it 
as been urged that martial law warrants such 
commission, and that such law prevails here. 
be doctrine is believed to be alike indefensible 
dangerous. It is not, however, necessary 
0 , inquire whether martial law, if it did pre- 
would maintain your jurisdiction, as it 
°es not prevail. It has never been declared 
y any competent authority, and the civil courts 
'!e know are in the full and undisturbed exer- 
?lße of all their functions. We learn, and the 
act is doubtless true, that one of the parties, 
he very chief of the alleged conspiracy, has 
een indicted, and is about to be tried before 
olle of those courts. If he, the alleged head 
ahd front of the conspiracy, is to be and can 
e_ so tried, upon what ground of right, of 
aH'ness, or of policy can the parties who are 
.barged to have been his mere instruments be 
heprived of the same mode of trial? It may 
e said that in acting under this commission 
I°u are but conforming to an order of the 
Fesident, which you are bound to obey. Lot 
1316 examine this for a moment. If that order 
Merely authorizes you to investigate the cases 
ahd report the facts to him and not to pro- 
b°Unce a judgment, and is to that extent legal, 
ben it is because the President has the power 
Uaself, without, such a proceeding, to punish 
be crime, and has only invoked your assist- 
nUce to enable him to do it the more justly. 
aU this be so? Can it be that the life of a 
!?ltizen, however humble, be he soldier or not, 
Pends in ahy case on the mere will of the 
Resident? And yet it does, if the doctrine be 
and. What more dangerous one can be im- 
ABned? Crime is defined by law, and is to be 
led and punished under the law. What is 
Urder, treason, or conspiracy, and what is 
j omissible evidence to px-ove either, are all 
questions, and many of them, at times, 
of correct solution. What the facts 
6 may also present difficult inquiries. To 
PaSs upon the first, the Constitution provides 
k°urts consisting of judges selected for legal 
howledge, and made independent of Execu- 
j. power. Military judges are not so selec- 
tih anc* 80 ar b°m being independent, are 
solutely dependent on such power. To pass 
|.P0li the latter, it px-ovides juries as being not 
oj. to “partake of the wishes and opinions 
0 tlxe Government.” But if your function is 
7 to act as aids to the President, to enable 
,3IJ to exercise his function of punishment, 
cab US 38 un(ter no obligation by any law to 
U for such aid, he may punish upon his own 
|.Q assisted jxxdgment, and without even the 
i^I>rrx of a trial. In conclusion, then, gentle- 
ev t submit that your responsibility, what- 
be, for error, in a proceeding like 
aUtt °an bod no protection in Presidential 
bority. Whatever it be, it grows out of the 
t Vs> aod may, through the laws, be enforced. 
in the outset of these remarks that 
a responsibility in one contingency may be 
Ca first, the wish or hope that it would 
you to be wanting in a single particular 
"bat you may believe to be your duty, but 
to obtain your best and most matured judg- 
ment. The wish and hope disclaimed would be 
alike idle and discourteous; and I trust the 
Commission will do me the justice to believe 
that I am incapable of falling into either 
fault. 
Responsibility to persoxxal danger can never 
alarm soldiers who have faced, and will ever 
be willing in their country’s defense to face, 
death on the battle-field. But there is a re- 
sponsibility that every gentleman, be he soldier 
or citizen, will constantly hold before him, 
and make him ponder—responsibility to the 
Constitution and laws of his countx-y and an 
intelligexxt public opinion—and prevent his 
doing anything knowingly that can justly sub- 
ject him to the censure of either. I have said 
that your responsibility is great. If the com- 
mission under which you act is void and confers 
no authority, whatever you may do may in- 
volve the most sexfious personal liability. Cases 
have occurred that prove this. It is sufficient 
to refer to one. Joseph Wall, at the time the 
offense charged against him was committed, 
was Governor and commander of the garrison 
of Goree, a dependency of England, in Africa. 
The indictment was for the murder of Benja- 
min Armstrong, and the trial was had in Jan- 
uary, 1802, before a special court, consisting 
of Sir Archibald McDonald, Chief Baron of 
the Exchequer; Lawrence, of the King’s 
Bench, and Rocke, of the Common Pleas. The 
px-osecution was conducted by Law, then Attor- 
ney General, afterward Lord Ellenborough. 
The ci’ime was committed in 1782, and under a 
military order of the accused, and the sentence 
of a regimental court-martial. The defense 
relied upon was, that at the time the garrison 
was in a state of mutiny, and that the deceased 
took a prominent part in it; that, because of 
the mutiny, the order for the court-martial was 
made, and that the punishment which was in- 
flicted and said to have caxxsed the death, was 
under its sentence. The offense was purely a 
military one, and belonged to the jurisdiction 
of a military coxxrt, if the facts relied upon by 
the accused were true, and its judgment const!* 
tuted a valid defense. The court, howevei’, 
charged the jury, that if they found that there 
'was no mutiny to justify such a court-martial 
or its sentence, they were void, and furnished 
no defense whatever. The jury so finding, 
found the accused guilty, and lie was soon after 
executed. 28 St. Tr., 51, 178. The application 
of the principle of this case to the question I 
have considered is obvious. In that instance 
want of jurisdiction in the court-martial was 
held to be fatal to its judgment as a defense for 
the death that ensued under it. In this, if the 
Commission has no jurisdiction, its judgment 
for the same reason will be of no avail, either 
to Judges, Secretary of War, or President, if 
either shall be called to a responsibility for 
what may be done under it. Again, upon the 
point of jurisdiction, I beg leave to add that 
the opinion I have endeavored to maintain is 
believed to be the almost unanimous opinion 
of the profession, and certainly is of every 
judge or court wlxo has expi’essed any. 
In Maryland, where such commissions have 262 
ARGUMENT OF REVERDY JOHNSON. 
been and are held, the Judge of the Criminal 
Court of Baltimore recently made it a matter 
of special charge to the grand jury. Judge 
Bond told them: “It has come to my knowl- 
edge that here, where the United States Court, 
presided over by Chief Justice Chase, has al- 
ways been unimpeded, and where the Marshal 
of the United States, appointed by the Presi- 
dent, selects the jurors, irresponsible and un- 
lawful military commissions attempt to exercise 
criminal jurisdiction over citizens of this 
State, not in the military or naval service of 
the United States, nor in the militia, who are 
charged with oifenses either not known to the 
law, or with crimes for which the mode of trial 
and punishment are provided by statute in the 
courts of the land. That it is not done by the 
paramount authority of the United States, your 
attention is directed to article 5, of the Con- 
stitution of the United States, which says: ‘No 
person shall be held to answer for a capital or 
otherwise infamous crime, unless on a present- 
ment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in 
the militia when in actual service in time of 
war or public danger.’ ” Such persons exercising 
such unlawful jurisdiction are liable to indictment 
by you, as well as responsible in civil actions to the 
parties. In New York, Judge Peckham, of the 
Supreme Court of that State, and speaking for 
the whole bench, charged the grand jury as 
follows: 
“Grave doubts, to say the least, exist in th® 
minds of intelligent men as to the constit'1' 
tional right of the recent military cominis- 
sions at Washington to sit in judgment upo° 
the persons now on trial for their lives befor® 
that tribunal. Thoughtful men feel aggrieved 
that such a commission should be established 
in this free country, when the war is over, and 
when the common-law courts are open and 
accessible to administer justice, according 1° 
law, without fear or favor. 
“What remedy exists? None whatever, ex- 
cept through the power of public sentiment. 
“As citizens of this free country, having an 
interest in its prosperity and good name. W® 
may, as I desire to do, in all courtesy and 
kindness, and with all proper respect, express 
our disapprobation of this course in oUr 
rulers in Washington. 
“The unanimity with which the leading 
press of our land has condemned this mod® 
of trial, ought to be gratifying to every patriot- 
“ Every citizen is interested in the preserva- 
tion, in their purity, of the institutions of hi® 
country; and you, gentlemen, may make such 
presentment on this subject, if any, as youl 
judgment may dictate.” 
The reputation of both of these judges i® 
well and favorably known, and their authority 
is entitled to the greatest deference. 
Even in France, during the consulship 
Napoleon, the institution of a military com' 
mission for the trial of the Prince Due d’Eu- 
hien, for alleged conspiracy against his lif®» 
was, to the irreparable injury of his reputa- 
tion, ordered by Napoleon. The trial was had, 
and the Prince was at once convicted and ex- 
ecuted. It brought upon Napoleon the con' 
demnation of the world, and is one of th® 
blackest spots in his character. The case ot 
the Duke, says the eminent historian of th® 
Consulate and the Empire, furnished Napo' 
leon “a happy opportunity of saving his gl®l 
from a stain,” which he lost, and adds, with 
philosophic truth, that it was “ a deplorabl® 
consequence of violating the ordinary forms of 
justice," and further adds, “to defend sod9,1 
order by conforming to the strict rules and form3 
of justice, without allowing any feeling of r®' 
venge to operate, is the great lesson to h® 
drawn from these tragical events.” ThieTs 
History, etc., 4 vol., 318, 322. 
Upon the whole, then, I think I shall not h® 
considered obtrusive if I again invoke th® 
Court to weigh well all that I have thought i 
my duty to urge upon them. I feel the duty 
to be upon me as a citizen sworn to do what 
can to preserve the Constitution, and the pmo' 
ciples on which it reposes. As counsel of °°e 
of the parties, I should esteem myself disboU' 
ored if I attempted to rescue my client from 
proper trial for the offense charged again® 
her, by denying the jurisdiction of the Com- 
mission, upon grounds that I did not c°.n' 
scientiously believe to be sound. And, 
what I have done, I have nofc more had 111 
view the defense of Mrs. Surratt, than of th 
Constitution and the laws. In my view, 10 
this respect, her cause is the cause of evel 
citizen. And let it not be supposed that I a 
“ The Constitution of the United States, Ar- 
ticle 5, of the amendments, declares that ‘no 
person shall be held to answer for a capital or 
otherwise infamous crime, unless on present- 
ment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in 
the militia, when in actual service in time of 
war or public danger.’ 
“Article 6 declares that, ‘in all criminal 
prosecutions, the accused shall enjoy the right 
to a speedy and public trial.’ 
“Article 3, section 2, declares that ‘the trial 
of all crimes, except in cases of impeachment, 
shall be by jury,’ etc. 
“These provisions were made for occasions 
of great excitement, no matter from what 
cause, when passion, rather than reason, might 
prevail. 
“ In ordinary times, there would be no occa- 
sion for such guards, as there would be no dis- 
position to depart from the usual and estab- 
lished modes of trial. 
“A great crime has lately been committed 
that has shocked the civilized world. Every 
right-minded man desires the punishment of 
the criminals, but he desires that punishment 
to bp administered according to law, and 
through the judicial tribunals of the country. 
No star-chamber court, no secret inquisition, 
in this nineteenth century, can ever be made 
acceptable to the American mind. 
“If none but the guilty could be accused, 
then no trial could be necessary—-execution 
should follow accusation. 
“It is almost as necessary that the public 
should have undoubted faith in the purity 
of criminal justice, as it is that justice in 
fact be administered with integrity. THE CONSPIRACY TRIAL. 
Peking to secure impunity to any one who 
h'ay have been guilty of the horrid crimes of 
. night of the 14th of April. Over these the 
Cl.vil courts of this District have ample juris- 
diction, and will faithfully exercise it if the 
Cases are remitted to them, and guilt is le- 
gally established, and will surely award the 
Punishment known to the laws. God forbid 
that such crimes should go unpunished ! In 
the black catalogue of olfenses, these will for- 
mer be esteemed the darkest and deepest ever 
Committed by sinning man. And, in common 
the civilized world, do I wish that every 
tfigal punishment may be legally inflicted 
upon all who participated in them. 
A word more, gentlemen, and, thanking you 
t°i’ your kind attention, I shall have done. As 
Jr°u have discovered, I have not remarked on 
the evidence in the case of Mrs. Surratt, nor is 
|t my purpose; but it is proper that I refer to 
her case, in particular, for a single moment, 
■that a woman, well educated, and, as far as 
can judge from all her past life, as we have 
lt in evidence, a devout Christian, ever kind, 
affectionate and charitable, with no motive 
disclosed to us that could have caused a total 
change in her very nature, could have partici- 
pated in the crimes in question it is almost 
impossible to believe. Such a belief can only 
be foi-ced upon a reasonable, unsuspecting, 
unprejudiced mind, by direct and uncontra- 
dicted evidence, coming from pure and per- 
fectly unsuspected sources. Have we these? 
Is the evidence uncontradicted ? Are the two 
witnesses, Weichmann and Lloyd, pure and 
unsuspected? Of the particulars of their evi- 
dence I say nothing. They will be brought 
before you by my associates. But this con- 
clusion in regard to these witnesses must be, 
in the minds of the Court, and is certainly 
strongly impressed upon my own, that, if the 
facts which they themselves state as to their 
connection and intimacy with Booth and 
Payne are true, their knowledge of the pur- 
pose to commit the crimes, and their partici- 
pation in them, is much more satisfactorily 
established than the alleged knowledge and 
participation of Mrs. Surratt. As far, gentle- 
men, as I am concerned, her case is now in 
your hands. REYERDY JOHNSON. 
June 16, 1865. 
As associate counsel for Mrs. Mary E. Sur- 
ratt, we concur in the above. 
FREDERICK A. AIKEN, 
JOHN W. CLAMPITT ARGUMEMT 
ON THE PLEA TO THE 
JURISDICTION OF THE MILITARY COMMISSION, 
BY 
THOMAS EWING, Jr. 
June 23, 1865. 
crime, unless on a presentment or indictment 
of a grand jury, except in cases arising in the 
land or naval forces, or in the militia when in actual 
service in time of war or public danger. 
The presentment and indictment of a grand 
jury is a thing unknown and inconsistent 
with your commission. You have nothing of 
the kind. Neither you nor the law officer."'' 
who control your proceedings seem to have 
thought of any such thing. These defendants 
did not and do not belong to the “ land or nor 
val forces” of the United States—nor were 
they “ militia, in time of war or public danger, in 
actual service.” The Constitution, therefore, i® 
the article above cited, expressly says: You 
shall not hold them to answer to any of the cap- 
ital and infamous crimes with which they are 
charged. 
Is not a single, direct, constitutional prohi- 
bition, forbidding you to take jurisdiction in 
these cases, sufficient? If it be not, read the 
provision of the 3d section of the 3d article- 
It is as follows: 
May it please the Court: The first great ques- 
tion—a question that meets us at the thres- 
hold—is, do you, gentlemen, constitute a court, 
and have you jurisdiction, as a court, of the 
persons accused, and the crimes with which 
they are charged? If you have such jurisdic- 
tion, it must have been conferred by the Con- 
stitution, or some law consistent with it, and 
carrying out its provisions. 
1. The 6th article of the Constitution de- 
clares : 
“That the judicial power of the United 
States shall be vested in one Supreme Court, 
and in such inferior courts as Congress may, 
from time to time, ordain and establish; ” and 
that “ the judges of both Supreme and inferior 
courts shall hold their offices during good be- 
havior.” 
Under this provision of the Constitution, 
none but courts ordained or established by 
Congress can exercise judicial power, and 
those courts must be composed of judges who 
hold their offices during good behavior. They 
must be independent judges, free from the in- 
fluence of Executive power. Congress has not 
“ ordained and established ” you a court, or 
authorized you to call these parties before you 
and sit upon their trial, and you are not 
“ judges ” who hold your offices during good 
behavior. You are, therefore, no court under 
the Constitution, and have no jurisdiction in 
these cases, unless you obtain it from some 
other source, which overrules this constitu- 
tional provision. 
The President can not confer judicial power 
upon you, for he has it not. The executive, not 
the judicial, power of the United States is 
vested in him. His mandate, no matter to 
what man or body of men addressed, to try, 
and, if convicted, to sentence to death a citi- 
zen, not of the naval or military forces of the 
United States, carries with it no authority 
which could be pleaded in justification of the 
sentence. It were no better than the simple 
mandate to take A B, C D, E F, and G. H, and 
put them to deatk. 
2. The President, under the sth amendment 
to the Constitution, may constitute courts pur- 
suant to the Articles of War, but he can not 
give them jurisdiction over citizens. This ar- 
ticle provides that “ no person shall be held to 
answer for a capital or otherwise infamous 
“The trial of all crimes, except in cases of 
impeachment, shall be by jury." 
But lest this should not be enough, in their 
anxious care to provide against the abuses 
from which England had recently escaped, and 
which were still fresh in the memories of 
men—as the Star Chamber, the High Commis- 
sion Courts, and their attendant enormities— 
the framers of the Constitution further pro- 
vided, in the 6th amendment, that— 
“ln all criminal prosecutions the accused 
shall enjoy the right to a speedy and public 
trial by an impartial jury of the State and dis- 
trict wherein the crime shall have been com- 
mitted.” 
Now, whence, and what, is the authority 
which overrules these distinct constitutional 
prohibitions, and empowers you to hold these 
citizens to answer, despite the mandates of the 
Constitution forbidding you? 
Congress has not attempted to grant you the 
power; Congress could not grant it. A 
to that effect, against the constitutional prohi- 
bition, would be merely void. Congress has 
authorized the suspension of the writ of hd~ 
beas corpus, as the Constitution permits (Art. h 
Sec. 9); but the Constitution does not thereby 
permit the military to try, nor has Congress 
attempted to deliver over to the military f°J 
trial, judgment, and execution, American 
not in the land or naval forces or in the mUl' 
264 THE CONSPIRACY TRIAL. 
265 
*la in actual service, when accused of crime. 
Congress and the President, the law-making 
Power, were incompetent to this, and have not 
attempted it. Whence, then, comes the dis- 
pensation with the constitutional prohibi- 
tion ? Where and whence is the affirmative 
Brant of jurisdiction under which you pro- 
pose to try, and, if convicted, pass sentence 
upon these men, citizensof the United States— 
fi°t soldiers, not militia-men—but citizens, en- 
Saged in the ordinary avocations of life? I 
am not permitted to know. Congress has not 
la any form attempted to violate or impair the 
Constitution. They have suspended the writ 
°f habeas corpus; this goes to imprisonment— 
not trial, conviction, or punishment. This is 
the extreme limit to which the law-making 
Power is permitted to go, and it is only in 
Cases of strong necessity that this is permit- 
ted. Congress has repealed so much of the 
section of the act of September 24, 1739, 
as required that in all capital cases twelve 
Petit jurors should be summoned from the 
eounty in which the offense was committed 
Ipar. 221, sec. 102, repealed July 16, 1862, page 
sec. 22), but has preserved all other legal 
Provisions made in aid of the Constitution to 
Protect citizens from the oppression of unreg- 
ulated and unrestrained Executive power. 
Ine accused shall be tried upon an indictment 
°r presentment of a grand jury. If two or 
crimes of a like nature be charged, they 
be set forth in separate counts. (Act of 
February 26, 1853, sec. 117.) You may not 
compel an accused to answer to a loose story 
°r accusation of several crimes in one count. If 
Ihe crime charged be treason, which this paper 
aPproaches more nearly than anything else, 
Ihe accused shall have a copy of the indict- 
lllpn.t, and a list of the jury, and of all the 
fitnesses to be produced on the trial for prov- 
es the said indictment (mentioning the 
Qaines and places of abode of such witnesses 
aHd jurors), delivered unto him at least three 
entire days before he shall be tried for the 
Sade; and in other capital offenses, shall have 
®Uch copy of indictment and list of the jury 
two entire days, at least, before the trial. (Act 
of April 30, 1790, sec. 24, p. 221.) 
, Against this array of constitutional and 
leSal prohibition and regulation, I know of 
n°thing that can be adduced, except, perhaps, 
an Executive order authorizing, by direct man- 
ate or implication, the thing to be done which 
le Constitution forbids you to do. If you be 
Proceeding in obedience to such Executive 
andate, and if that give jurisdiction, still 
y°u proceed in a form and manner which the 
institution and law expressly forbid. If my 
j lents be charged with treason or murder (and 
conjecture they are charged with murder, at 
east), they must be proved to have been pres- 
S aiding in or actually commiting the overt act, or 
effed murder. For either of these the punish- 
v ent on conviction is death. The Judge Ad- 
°cate has been unable, in the cases of Arnold 
ad Mudd, to present any evidence remotely ap- 
Pr°aching that prescribed by the Constitution 
d the laws as the condition of conviction; 
d yet I am led to infer that he will claim a 
conviction of one or both of them on the 
proof presented. What is the profession, on 
this and on the other side of the Atlantic, to 
think of such administration of criminal ju- 
risprudence ?—for this, the first of our State 
trials, will be read with avidity everywhere. 
I ask the officers of the Government to think 
of this carefully now, lest two or three years 
hence they may not like to hear it named. 
But we may mistake the whole case as it pre- 
sents itself to the mind of the Judge Advocate. 
We are here as counsel for the accused, but are 
not allowed to know explicitly with what 
crime, defined by law, any one of them is charged, 
or what we are here to defend. No crime 
known to the law is legally charged in the 
paper which is here substituted for an in- 
dictment. In this paper three distinct crimes 
are strongly hinted at in a single charge, to 
each of which different rules of law and evi- 
dence are applicable, and different penalties 
are attached; and I had wished to know, so 
that I might shape the defense of my clients 
accordingly, for which alleged or intimated 
crime any one, or each, or all of them, are to 
be tried. The information has been denied us. 
The Judge Advocate puts these parties on 
trial, and refuses (in the most courteous terms) 
to advise their counsel on what law or author- 
ity he rests his claim to jurisdiction ; of what 
crime he intends to convict each or any of the 
defendants; in what laws the crimes are de- 
fined and their punishments prescribed ; or on 
what proof, out of the wild jungle of testi- 
mony, he intends to rest his claim to convic- 
tions. 
But it has been said, and will perhaps be 
said again, in support of this jurisdiction, 
that the necessities of war justify it—and 
“ silent leges inter arma.” So said the Roman 
orator when Rome had become a military des- 
potism, and ceased forever to have liberty, and 
when she retained law only as the gift or by 
the permission of the ruling despot. “ The 
law is silent amid arms.” Yes, it is so in a con- 
quered country, when the victorious genera] 
chooses to put the law to silence ; for he is an 
autocrat, and may, if he chooses, be a despot. 
But how extravagant is the pretense that a 
bold, and spirited, and patriotic people, be- 
cause they rise in their majesty and send forth 
conquering armies to rescue the republic, 
thereby forfeit all constitutional and legal pro- 
tection of life, liberty, and property ! 
Cases have often arisen, in which robber 
bands, whose vocation is piracy on the high 
seas, or promiscuous robbery and murder on 
land—hosies humani generis—may be lawfully 
put to the sword without quarter, in battle, or 
hung on the yard-arm, or otherwise put to 
death, when captured, according to the neces- 
sities of the case, without trial or other con- 
viction, except the knowledge of the command- 
ing general that they were taken flagrante hel- 
lo, and that they are pirates or land robbers. 
A military court may be called, but it is advisory 
merely ; the general acts, condemns, and exe- 
cutes. But the Constitution of the United 
States has nothing to do with this. It does 
not protect pirates or marauders Avho are ene- 266 
ARGUMENT OF THOMAS EWING, JR. 
mies of the human race; or spies, or even ene- 
mies taken in battle. It protects, not bellig- 
erent enemies, but only citizens and those 
persons not citizens who, in civil life, seek 
and claim its protection, or aliens who are en- 
gaged in its military or other service. The 
power of the commanding general over these 
classes is restrained only by the usages of war 
among civilized nations. But these defend- 
ants are not charged as spies or pirates, or 
armed and organized marauders, or enemies 
captured in war, or persons in the land or na- 
val service of the United States. They belong 
to none of these classes, over whom military 
discretion or martial law extends, unless they 
extend over and embrace all the people of the 
United States. 
man Senate, on the trial of Lentulus and his 
accomplices in Catiline’s conspiracy: 11 Abuses 
often grow from precedents good in principle ; but 
when the power falls into hands of men less en- 
lightened or less honest, a just and reasonable pre- 
cedent receives an application contrary to justice 
and reason.” It is to be remembered that crim- 
inal trials involving capital punishment were 
not then within the competency of the Roman 
Senate; and neither the Consul nor the Sen- 
ate, nor both of them, had the right to con- 
demn a Roman citizen without the concurrence 
of the people.® 
If you believe you possess the power of life 
and death over the citizens of the United 
States in States where the regular tribunals 
can be safely appealed to, still, for the sake of 
our common country and its cherished institu- 
tions, do not press that power too far. Our ju- 
dicial tribunals, at some future day, I have no 
doubt, will be again in the full exercise of 
their constituted powers, and may think, as a 
large proportion of the legal profession think 
now, that your jurisdiction in these cases is an 
unwarranted assumption ; and they may treat 
the judgment which you pronounce, and the 
sentence you cause to be executed, as your 
own unauthorized acts. 
But if the jurisdiction in this case exist, 
whether by law or by the power of arms, I re- 
gret that a Military Commission should be 
charged with the trial of these causes. The 
crimes are, as far as hinted at and written about 
in the charge and specifications, all cognizable 
in our civil courts. Those courts are open, un- 
obstructed, without a single impediment to 
the full and perfect administration of justice— 
ready and prompt, as they always are, to per- 
form the high duties which the well-known 
principles of law under the Constitution de- 
volve on them. What good reason can be 
given in a case like this, to a people jealous 
of their rights, for a resort here and now to 
military trials and military executions ? We 
are at the advent of a new, and I trust a suc- 
cessful, Administration. A taint such as 
this—namely, the needless violation of the 
constitutional rights of the citizen—ought not 
to be permitted to attach to and infect it. The 
jurisdiction of this Commission has to be 
sought dehors the Constitution, and against 
its express prohibition. It is, therefore, at 
least of doubtful validity. If that jurisdic- 
tion do not exist; if the doubt be resolved 
against it by our judicial tribunals, when the 
law shall again speak, the form of trial by 
this unauthorized Commission can not be 
pleaded in justification of the seizure of prop- 
erty or the arrest of person, much less the in- 
fliction of the death penalty. In that event, 
however fully the recorded evidence may sus- 
tain your findings, however moderate may 
seem your sentences, however favorable to the 
accused your rulings on the evidence, your 
sentence will be held inlaw no better than the 
rulings of Judge Lynch’s courts in the ad- 
ministration of lynch law. When the party 
now in power falls—as in the vicissitudes of 
things it must one day fall, and all the sooner 
for a reckless use of its present power—so it 
will be viewed by that party which succeeds 
it. This is to be expected, and, indeed, hoped; 
but if, unfortunately, this proceeding be then 
accepted and recorded as a precedent, we may 
have fastened on us a military despotism. If 
we concede that the exercise of jurisdiction 
claimed is now necessary, and for the best pos- 
sible object, before we consent that it stand as 
a precedent in our jurisprudence, we should 
recall to mind the statesmanlike and almost 
prophetic remarks of Julius Caesar, in the Ro- 
This assumption of jurisdiction, or this use 
of a legitimate jurisdiction, not created by law, 
and not known to the law or to legal men, has 
not for its sanction even the plea of necessity- 
It may be convenient. Conviction may be easier 
and more certain in this Military Commission 
than in our constitutional courts. Inexperi- 
enced as most of you are in judicial investi- 
gations, you can admit evidence which the 
courts would reject, and reject what they would 
admit, and you may convict and sentence on 
evidence which those courts would hold to be 
wholly insufficient. Means, too, may be re- 
sorted to by detectives, acting under promise 
or hope of reward, and operating on the fears 
or the cupidity of witnesses, to obtain and in- 
troduce evidence, which can not be detected 
and exposed in this military trial, but could 
be readily in the free, but guarded, course of 
investigation before our regular judicial tribu- 
nals. The Judge Advocate, with whom chiefly 
rests the fate of these citizens, is learned in 
the law, but from his position he can not be nn 
impartial judge, unless he be more than man- 
He is the prosecutor, in the most extended 
sense of the word. As in duty bound, befoi’O 
this Court was called, he received the reports 
of detectives, pre-examined the witnesses, pre- 
pared and officially signed the charges, and as 
principal counsel for the Government, con- 
trolled on the trial the presentation, admis- 
sion and rejection of evidence. In our courts 
of law, a lawyer who has heard his client s 
story, if transferred from the bar to the bench, 
may not sit in the trial of the cause, lest the 
ermine be sullied through the partiality 
counsel. This is no mere theoretical objec- 
tion—for the union of prosecutor and judge 
works practical injustice to the accused. The 
* Cicero, who was Consul, Cato, Silanus, and other 
of their associates in the Senate, were afterward tried fo 
the murder of the conspirators, convicted, and banished' THE CONSPIRACY TRIAL. 
267 
Judge Advocate controls the admission and 
rejection of evidence—knows what will aid 
and what will injure the case of the prosecu- 
tion, and inclines favorably to the one, and 
Unfavorably to the other. The defense is met 
with a bias of feeling and opinion on the part 
of the judge who controls the proceedings of 
the Court, and on whom, in great measure, the 
fate of the accused depends, which morals and 
law alike reject. Let it not be supposed I cen- 
sure or reflect on any one, for I do not. The 
tvrong suffered by the parties accused has its 
root in the vice of this system of trial, which 
I have endeavored to expose. 
Because our Chief, so venerated and be- 
loved (and no one venerated and loved him 
tuore than I), has fallen by the hand of a ruth- 
loss assassin, it ought not to follow that the 
Constitution and law should be violated in 
Punishing men suspected of having compassed 
Ids death, or that men not legally found guilty 
should be sacrificed in vengeance as vic- 
tims generally because of the crime. 
There may be a lurking feeling among 
Uien which tends to this harshness of ret- 
ribution, regardless of the innocence of 
those on whom vengeance may fall. Tending 
to this feeling, exciting or ministering to it, 
Wms the two days’ testimony which, without 
other apparent point or purpose, detailed the 
horrors of the Libby Prison; and the evidence 
that, in 1861, one of my clients took part in 
the rebellion; and the further testimony 
(which we showed was utterly fabulous) that 
another of my clients, in 1863 or 1864, enter- 
tained rebel officers and soldiers, and corres- 
ponded with rebels in Richmond. As if to 
say: “What matters it how we try, or whether 
we legally try at all, provided we convict and 
execute men win/ have been associated with, 
or in sympathy with, monsters such as those?” 
Homer makes Achilles immolate, at the fune- 
ral pyre of Patroclus, twelve Trojan captives, 
simply because they were Trojans, and because 
Patroclus had fallen by a Trojan hand. If 
that principle of judicial action be adopted 
here, it were surely not too much to sacrifice 
to the vianes of one so beloved and honored as 
our late Chief Magistrate a little lot of rebel 
sympathizers, because, like the assassin, some 
of them, at some time, participated in the re- 
bellion, or gave aid and comfort to rebels. 
If this course of reasoning do not develop the 
object of that strange testimony, I know not 
how to read it. Indeed, a position taken by 
the learned Assistant Judge Advocate, in dis- 
cussing my objection to the part of that evi- 
dence which relates to my clients, goes to 
this—and even beyond it—namely, that parti- 
cipation in the rebellion was participation in 
the assassination, and that the rebellion itself 
formed part of the conspiracy for which these 
men are on trial here. ARGUMEMT 
IN 
DEFENSE OF DAVID E. HEROLD. 
BY 
FREDERICK STOKE, ESQ. 
May it please the Court: 
commissions, according to a system of juris- 
prudence sometimes called the common law of 
war. In this changed condition of things, the 
militarjr commission supersedes the civil tri- 
bunal, and the common law of war supersedes 
the civil law; but the rules of the common law 
of war are as clearly defined as are those of 
the civil law, and the jurisdiction of the mili- 
tary commission is as accurately defined as the 
jurisdiction of the civil tribunal. The com- 
mon law of war determines the manner in 
which a military commission, charged with its 
administration, shall be organized, the mode in 
which proceedings before it shall be conducted, 
the rules by which it shall determine questions 
of evidence arising in the course of the trial, 
and the penalty to which it shall subject the 
accused upon conviction. 
By this law a military commission must be 
organized in the manner in which courts-mar- 
tial are organized, and its proceedings must 
conform to the manner of proceedings before 
courts-martial, and be conducted according to 
the rules prescribing the mode and manner of 
conducting proceedings before these tribunals. 
By the same common law of war, the juris- 
diction of a military commission as to.persons 
and offenses is also limited and defined. A 
military commission possesses no power to try 
a person in the army or navy of the United 
States for any offense provided for in the arti- 
cles of war. It has no jurisdiction in the case 
of a soldier charged with disobedience of or- 
ders, desertion, etc. Offenses of this nature, 
and committed by persons subject to military 
law, are expressly cognizable before the mili- 
tary courts created by that law, and known aS 
courts-martial. If, in time of peace, a soldier 
commit an offense against the civil law not 
provided for in the articles of war, he is sur- 
rendered up to the civil jurisdiction to be tried; 
and if he commit such an offense in time of 
war in a district subject to martial law, he will 
be tried by military commission, which, in such 
district, supersedes the civil courts in the ad- 
ministration of justice. It is, therefore, appa- 
rent that everything in the organization of the 
military commission, or in the manner of con- 
ducting proceedings before it, from the filing 
of the charges and specifications, down to the 
final decision of the court, and its jurisdiction 
as to persons, is not entirely within the dis- 
At the earnest request of the widowed mother 
and estimable sisters of the accused, I have 
consented to act as his counsel in the case now 
before the Court. 
It is a source of some embarrassment to the 
counsel for the accused that the Judge Advo- 
cate General has seen fit not to open this case 
with a brief statement of the law upon which 
this prosecution is founded. It would have 
been a great, and, as he thinks, proper assist- 
ance to the accused and his counsel to have 
known with more accuracy than is set out in 
the charge, the special offense for which he is 
arraigned. In the absence of such opening 
statement, the accused can only discuss the law 
on which he supposes the Judge Advocate to 
rely. 
While the counsel for the accused does not, 
and can not, concede the question of jurisdic- 
tion, it is not proposed by him to discuss the 
question of the jurisdiction of this Court over 
the accused in this case, except so far as may 
be necessary incidentally in discussing the 
effect of General Order No. 141. The question 
of the general jurisdiction he will leave in 
abler hands. 
But, supposing this Court should be entirely 
satisfied that they have jurisdiction, another, 
and, as the counsel for the accused thinks, a 
more important question arises; and that ques- 
tion is ; What is the law governing the several 
offenses with which the accused stands charged, 
and what is the law prescribing the punish- 
ment thereof? I shall first consider what is 
the law governing the case as to the crime and 
the punishment, upon the hypothesis that mar- 
tial law generally was in force in the District 
of Columbia on the 14th of April, 1865, and 
still so continues in force; and I shall, in the 
second place, consider whether martial law did, 
in fact, exist within the District of Columbia 
on the 14th of April, and does now exist, and 
to what extent.' 
In time of peace, the civil law is adminis- 
tered by civil tribunals, whose mode of pro- 
cedure and jurisdiction are clearly defined; in 
time of war, justice is administered in the ene- 
my’s country, occupied by the belligerent, and 
also in that part of the belligerent’s own coun- 
try which is under martial law, by military 
268 ARGUMENT OF FREDERICK STONE. 
269 
cretion of the Commander-in-Chief or of the 
Commission itself, but is subject to the estab- 
lished rules and principles of the common law 
of war, which calls it into existence, to admin- 
ister justice according to those rules and prin- 
ciples. 
What are these rules and principles ? They 
are clearly indicated in article 6 of General 
Order No. 100 (already in evidence in this 
case), which is as follows: 
“All civil and penal law shall continue to 
take its usual course in the enemy’s places and 
territories under martial law, unless inter- 
rupted or stopped by order of the occupying 
military power; but all functions of the hostile 
government—legislative, executive or adminis- 
trative—whether of a general, provincial or 
local character, cease under martial law, or con- 
tinue only with the sanction, or, if deemed 
necessary, the participation, of the occupier or 
invader.” 
cation of the principle lying at the foundation 
of the common law of war, and determining 
the system of jurisprudence known by that 
name, and it is this: That where, by virtue of 
the existence of martial law, the common law 
of war is required to be administered, the civil 
and penal law of the territory subject to mar- 
tial law becomes part of that common law of 
war, and, as such, is to be administered by 
military tribunals, under military modes of 
procedure, with the same effect in securing the 
rights of litigants and the punishment of crimes 
as if administered by civil tribunals, accord- 
ing to the modes provided and adopted in the 
civil courts. 
I do not mean to contend that the code of the 
common law of war is exclusively made up of 
the civil and penal law of the country which 
has become subject to martial law, but that the 
civil and penal law becomes a part of the com- 
mon law of Avar in all cases to which it is ap- 
plicable. Under martial law many acts become 
crimes which arc innoxious and innocent in 
time of peace and under the civil code, and 
which are not, therefore, provided against in 
the civil and penal law. 
In regard to the trial of persons arraigned 
for any of this class of crimes, the Commission 
must conform in its action, as nearly as may be, 
to the authenticated precedents of the common 
law of war, and administer justice with sound 
discretion; but in regard to the trial of persons 
arraigned for offenses created and recognized 
by the civil and penal law, the Commission 
must administer, as part of the common la w of 
war, the civil and penal law as it is written. 
The civil and penal law becomes part of the 
common law of war by the fact of the inaugu- 
ration of martial law. 
This order proves that, in the enemy’s coun- 
try, under martial law, the civil and penal 
law shall remain as the rule of conduct and law 
of the people, unless interrupted by express 
command. In the absence of any command 
interrupting the operation of the civil and 
penal law, what is the law over that portion of 
the enemy’s territory to which this order refers? 
Martial law certainly. prevails, because the 
territory referred to is described as territory 
under martial law. The civil and penal law 
of the country also prevails, because the order 
expressly declares that it shall continue. It is 
apparent, therefore, that two systems of juris- 
prudence prevail at the same time on the same 
territory; one, the system which martial law 
establishes, and known as the system of the 
common law of war, and the other, the system 
in force over the territory at the time of its 
conquest. But the latter system, although pre- 
vailing, can not be enforced, except by the con- 
queror, for the article further provides that all 
the “functions of the hostile government, 
legislative, executive or administrative, whether 
of a general, provincial or local character, 
cease under martial law, or continue only with 
the sanction, or if deemed necessary, the par- 
ticipation, of the occupier or invader.” 
Judicial power is one of the functions of 
government, and is specifically designated in 
the order by the word “administrative.’ All 
the functions of the government, including the 
administrative functions, must cease under 
uiartial law; but still, by the terms of the 
order, the civil and penal law shall continue 
and take its course, and be administered. By 
whom? By what tribunals? The civil courts 
can no longer exercise functions of their admin- 
istering the law, and military courts administer, 
not civil and penal law, but military law and 
the common law of war. Article 13 of the 
order referred to says: 
It is true the operation of this principle may 
be interrupted by order of the occupying mil- 
itary power, in the exercise of an authority 
derived from, and limited by, the military ne- 
cessity; but the right to interrupt the operation 
of the principle by special order, shows that the 
principle continues in force until the interrupt- 
ing order is pronmlgated. It may, however, 
be contended that a special order in such case 
is not necessary according to the laws of war, 
and would not be required except for the 
mandate ot section 6, above quoted from. If 
this is true, then the principle for which I have 
contended should be stated with a qualification, 
and the civil and penal law of the country sub- 
ject to martial law becomes a part of the com- 
mon law of war, except as to such parts thereof 
as military necessity requires should be sus- 
pended. Section 3 of General Order No. 100 
provides as follows: 
“Martial law in a hostile country consists in 
the suspension, by the occupying military au- 
thority, of the civil and criminal law, and of 
the domestic administration and government 
of the occupied place or territory, and the sub- 
stitution of military rule and force for the 
same, as well as in the dictation of general 
laws, as far as military necessity requires this 
suspension or dictation.” 
According, then, to this section of the order, 
the civil and penal law is suspended only as 
“Military jurisdiction is of two kinds; first, 
that which is conferred and defined by statute; 
second, that which is derived from the common 
law of war.” 
How, then, can a military jurisdiction ad- 
minister civil and penal law? There is but one 
solution to the difficulty, and it is in the appli- far as military necessity requires a suspen- 
sion. 
THE CONSPIRACY TRIAL. 
Tlie rule, therefore, is that the civil and penal 
law shall continue in force, and the exception 
is as to such parts thereof as military neces- 
sity may require to be suspended. This ne- 
cessity, as is well understood, is not a condition 
in which the suspension of the civil and penal 
law would be more convenient to the occupying 
military power, or would simply gratify the 
caprice of the commander, but a condition In 
which such suspension is imperatively de- 
manded to meet the exigencies of war, and 
absolutely required to conduct that war suc- 
cessfully. Military necessity is thus defined 
by section 14 of General Order No. 100; 
“Military necessity, as understood by mod- 
em civilized nations, consists in the necessity 
of those measures which are indispensable for 
securing the ends of the war, and which are 
lawful according to the modern law and usages 
of war.” 
own country in any case other than that re- 
ferred to in the article, to-wit: when face to face 
with the enemy, and to which condition this 
article would seem to limit the rightful exercise 
of that law. But conceding that it may prevail 
within the commander’s country, where hostile 
armies are not arrayed against each other on 
its soil, and war is not in actual progress, what, 
under such circumstances, is its effect in inter- 
rupting or suspending the civil and penal law ? 
I concede, for the purpose of this argument, 
that it establishes the common law of war as 
suspending the civil and penal law, that it sub- 
stitutes a military tribunal for civil courts and 
the summary process of military arrests for the 
ordinary mode and form of civil arrests; but, 
when the military court is convened and organ- 
ized, what law is it required to administer? 
The answer is obvious: it is to administer the 
common law of war. What part of the civil 
and penal law has been excluded from that 
common law of war and suspended under the 
force _ of a necessity making such suspen- 
sion indispensable for securing the ends of the 
war? 
lhat portion of the civil and penal law sus- 
pended in theenemy’s country subject to martial 
law, on the ground of military necessity, must, 
therefore, be such portions of said law as it is in- 
dispensable to suspend for securing the ends of 
the war, and which it is also lawful to suspend 
according to the modern law and usages of 
war. 
Sections 3 and 6, above quoted, of General 
Order No. 100, by their terms, refer only to the 
“enemy’s country,” but they indicate the effect 
of martial law upon the system of jurisprudence 
to be administered wherever martial law pre- 
vails. That effect will be greater or less in 
modifying or suspending the civil and penal 
laws of the various territories that may be sub- 
ject to martial law, according to the measure of 
the necessity existing in each. 
Section 6 of General Order No. 100 provides 
as follows; 
“ Martial law should be less stringent in 
places and countries fully occupied and fairly 
conquered. Much greater severity may be ex- 
ercised in places or regions where active hos- 
tilities exist, or are expected, and must be pre- 
pared for. Its most complete sway is allowed 
even in the commander’s own country, when 
face to face with the enemy, because of the ab- 
solute necessities of the case, and of the para- 
mount duty to defend the country against in- 
vasion.” 
• It is apparent, therefore, that the effect of 
martial law in modifying and changing the 
civil and penal code, or the civil administration 
of the distxict or territory in which it prevails, 
depends upon the military necessity growing 
out of the condition of things existing in such 
territory or district. Andif in anyportionof the 
conquered and occupied territory of the enemy 
the civil and penal law is allowed to continue - 
certainly in such portions of the commander’s 
own country as may be declared subject to mar- 
tial law, the civil and penal law should not i 
be interrupted, unless some extraordinary and 1 
overwhelming necessity arises to justify it. j 
I will not enter into the inquiry suggested by ( 
section 6, quoted above, as to whether or not i 
martial law can prevail in the commander’s i 
• This Commission is sitting not only in the 
? commander’s own country, but in the capital of 
that country. Before it met, the last hostile 
gun of the war had been fired, a thousand miles 
away. During its session 200,000 veterans 
have returned from the field, and passed in re- 
view in sight of the windows of this court-room, 
their faces homeward turned, their swords 
sheathed, their work accomplished. No enemy 
now remains in arms against the Government 
of the country ; but the war is over, and peace 
restored. Again, I ask, what military neces- 
sity renders a suspension of the civil and penal 
law of the United States, in the capital of the 
United States indispensable for securinp- the 
ends of war? h 
The second inquiry which I propose to make 
before this Commission, is, whether martial law 
did exist on the 14th of April, 1865, in the city 
of Washington, and if so, to what extent, and 
whether it does now exist ? The only evidence 
before the Commission of the existence of mar- 
tial law in the city of Washington, on the 14th 
of April last, is the proclamation of the Presi- 
dentofthe United States, issued in September, 
1862. That proclamation is in these words: 
“ That during the existing insurrection, and 
as a necessary measure for suppressing the 
same, all rebels and insurgents, their aiders 
and abettors, within the United States, and all 
persons discouraging volunteer enlistments, 
resisting militia drafts, or guilty of any dis- 
loyal practice, affording aid and comfort to 
rebels against the authority of the United 
States, shall be subject to martial law, and lia- 
ble to trial and punishment by courts-martial 
or military commission.” 
It appears clearly, from General Order No. 
100, that martial law is not, if I may use such 
an expression, an unbending code; that it can 
be made, in the discretion of the commander, 
more or less stringent, as the exigencies of the 
case may require. It also is apparent, from 
the same General Order, that martial law in 
the commander’s own country, must exist by ARGUMENT OP FREDERICK STONE. 
virtue of some proclamation or announcement. 
To what extent, then, does it appear that mar- 
Gal law was declared by the proclamation of 
the President of September, 1862, and which is 
Sometimes designated as General Order No. 
Hi ? The President of the United States, if 
he had the right to issue the proclamation at 
aU, had the right to limit its duration and the 
persons to whom it should apply. In the exer- 
cise of this constitutional right, the President 
Jid both; he limited the time of existence of 
Partial lAw, as well as the persons to whom it 
is applied. By the terms of that order declar- 
mg martial law, the existence of that martial 
law is made to depend entirely on the existence 
°f the rebellion. It required no order to annul 
cc revoke it; it carried, if I may use such an 
expression, its own death-warrant upon its face. 
‘‘Luring the existing insurrection, and as a 
necessary measure for its suppression,” per- 
sons guilty of affording aid and comfort to the 
rebels are liable to be tried by courts-martial 
°r military commission. Had the President 
of the United States intended that the crime 
°f aiding the insurgents by giving to them aid 
and comfort, which occurred during the rebel- 
lion, should be punished after the rebellion had 
ceased, apt words were at hand so to express 
Lie order; but the order is not so expressed; 
both the crime and the punishment are made 
to depend upon the existence of the rebellion. 
That order, too, only touches a particular 
class of crimes. It does not touch the crime 
of murder, of an assault with intent to kill, 
of aiding or abetting in a murder, or aiding 
or abetting the escape of a murderer from jus- 
tice, or of a conspiracy to murder. The same 
facts make the crime, and the same punish- 
ment follows conviction, and the same mode of 
Punishment exists after the issue of that order 
as did before. 
General Order No. 141 is still in force, and 
that they derive their power and authority to 
hear and determine these cases by virtue of 
that general order, still the fact remains that 
they have only the power under that order to 
try the naked crime of aiding and abetting the 
rebellion. 
The charge in this case consists of several 
distinct and separate offenses embodied in one 
charge. The parties accused are charged with 
a conspiracy in aid of the rebellion, with mur- 
der, with assault with intent to kill, and with 
lying in wait. It is extremely doubtful from 
the language of the charge and the specifica- 
tion, under which of the following crimes the 
accused, Herold, is arraigned and now on his 
trial, viz.: 
I. Whether he is on trial for the crime of 
conspiracy to overthrow the Government of the 
United States, as punishable by the act of the 
Congress of the United States, as passed the 31st 
of July, 1861; or, 
11. Whether he is on his trial for giving aid 
and comfort to the existing rebellion, as pun- 
ishable by the act of Congress passed the 17th 
of July, 1862; or, 
111. Whether he is on trial for aiding and 
abetting the murder of Abraham Lincoln, Pres- 
ident of the United States. 
His counsel well understands the legal defi- 
nition of the three crimes above mentioned, 
but does not understand that either to the com- 
mon law or to the law of war is known any 
one offense comprised of the three crimes men- 
tioned in this charge. He knows of no one 
crime of a conspiracy to murder and an actual 
murder, all in aid of the rebellion, distinct and 
separate from the well-known and defined 
crimes of murder, of conspiracy in aid of the 
rebellion, or of giving aid and comfort to the 
rebellion as defined by the acts of Congress. 
It is extremely doubtful, from the language of 
this charge, whether the murder of the Presi- 
dent of the United States is not referred to as 
the mere means by which the conspirators gave 
aid and comfort to the rebellion—whether it 
was not merely the overt act by which the 
crime of aiding the rebellion was completed. 
If the crime of aiding and abetting the re- 
bellion, as laid in the charge and specification, 
is only laid as the inducement to the crime of 
murder, then the crime as laid in the charge 
and specification does not come within the terms 
of the proclamation of September, 1862. It is 
the actual crime, and not the motives which in- 
duced it, that confers the jurisdiction. In the 
first general specification of the charge we find 
the following words used: “ And by the means 
aforesaid” (referring to the murder of the 
President, Vice-President, the Secretary of 
State, and the Lieutenant-General), “ to aid and 
comfort the insurgents in armed rebellion 
against the United States as aforesaid, and 
thereby to aid in the subversion and overthrow 
of the Constitution and laws of the United 
States.” In that sentence the murder of the 
President of the United States and the rest of 
the crimes aforesaid are merely spoken of as 
the means, and not as the end. 
Loyal civil courts in the city of Washington 
have been constantly, since the issue of that 
Proclamation, in session, with full and ample 
Power and authority to try the crimes of mur- 
der, of conspiracy to murder, of assault with 
Jutent to kill and murder, and of aiding and 
abetting in the escape of a murderer. The 
jurisdiction of the civil courts over all such 
crimes last above enumerated has been left 
Untouched and undisturbed by that order. 
There has been no hour since the issue of that 
proclamation that the Supreme Court of the 
Listrictof Columbia has not had full and ample 
powers to try every crime enumerated in the 
charge in this case. Upon the suppression of 
bLe rebellion, that proclamation expired, and 
became from that and continues to this hour a 
dead letter upon the statute book, and that 
martial law which it inaugurated can never 
again exist in the capital of the country until 
j-be Commander-in-Chief, in the exercise of 
bis constitutional powers, shall again declare it. 
. Hut supposing the pi’oclamation to be still 
force, supposing it to be as valid this day 
as it was on the day it was issued, still the fact 
rcmains that it only applies to one single class 
°f persons and to one single crime, and that 
crime is aiding and abetting the rebellion. 
-^nd if this Commission should conclude that 272 
THE CONSPIRACY TRIAL. 
The ambiguity in the charge and the first 
general specification is not relieved by the 
special specification against the accused, Her- 
old. The special specification against him uses 
these terms : 
out by himself, apart from Herold, and out of 
Herold’s sight and hearing, and handed him 
(Lloyd) two carbines. There is no evidence 
whatever in Lloyd’s testimony that Herold had 
the most remote knowledge that Surratt had 
given Lloyd the carbines. 
There is one other point which was given in 
evidence by the Government, and that is the 
testimony of the witness Taltavull, the restau- 
rant keeper, who deposes that one night, either 
Friday, the night of the assassination, or 
Thursday, the night before it, Herold came into 
his restaurant and asked if Booth had been 
there. 
' “And in further prosecution of the said un- 
lawful, murderous and traitorous conspiracy, 
and in pursuance thereof, and with the intent 
aforesaid,” etc. 
The special specification then goes on to 
charge Herold with two matters: first, with aid- 
ing and abetting in the murder of the President 
of the United States; and second, with aiding 
and abetting Booth in his escape from justice 
after the murder. 
The language of the charge and of the gen- 
eral specification, as well as of the special 
specification, leaving it doubtful whether the 
accused is charged with all three or any one, it 
is necessary for his counsel to present his de- 
fenses to all three of the crimes mentioned in 
the charge and specification. 
Fifty people could probably be convicted if 
facts like these were sufficient to convict; but 
they do not give, either separately or collec- 
tively, the slightest evidence that this boy Her- 
old ever conspired with Booth and others in 
aid of the rebellion, and for the overthrow of 
the Government of the United States. They 
show nothing that might not have occurred to 
any one, perfectly consistent with the most per- 
fect innocence. The term “confidential com- 
munication” is the witness’ (Weichmann’s) 
own construction. He meant only to say that 
the three were talking together—that after leav- 
ing the theater, where they had been, the three 
stopped and went into a restaurant, and that, 
he found them there talking together near a 
stove. So much for the conspiracy. 
In the special specification there are two 
things charged. The first is the murder of the 
President of the United States; the second, 
aiding and abetting Booth in his escape from 
justice after the murder. An accessory after 
the fact is thus defined: “An accessory after 
the fact is one who, when knowing a felony to 
have been committed by another, receives, re- 
lieves, comforts or assists the felon.” There 
is no reasonable doubt, from the evidence in 
this case, that the accused, Herold, was guilty 
of aiding and abetting Booth in his escape 
from justice. It is not the object of the coun- 
sel for the accused either to misrepresent the 
law (which would be useless in the presence 
of the able and learned Judge Advocates who 
are conducting this case on the part of the 
Government), or to attempt to misrepresent the 
facts that have been disclosed in the evidence, 
which would be equally useless before this 
Court. Of the fact that this boy, Herold, was 
an aider and abettor in the escape of Booth, 
there is no rational or reasonable doubt. He 
was clearly guilty of that crime, and must 
abide by its consequences. But the accused, 
by his counsel, altogether denies that he was 
guilty of the murder of Abraham Lincoln, 
President of the United States, or that he aided 
and abetted in the murder of Abraham Lin- 
coln, President of the United States, as set 
forth in the specification and the charge. 
Herold is charged in the charge with the 
murder of the President. It is shown, as clearly 
as the sun shines, that he did not do the murder 
with his own hands, that he did not strike the 
mortal blow; and the only question that can 
arise under the charge and specification, and 
the evidence, in this cause, is whether he was 
such an aider and abettor as would make him 
First, as to the crime of conspiracy. What 
evidence is there of the accused, Herold, having 
conspired to murder the President, or to aid the 
rebellion and overthrow the Constitution and 
laws of the United States? The evidence upon 
that point consists of but very few facts. 
The first that it is necessary to notice is the 
testimony of Weichmann, who says that he saw 
Herold once at Mrs. Surratt’s house since he 
went there to board, which was in November, 
1864. It is hardly possible that this Commis- 
sion will take a single visit of a young man to 
a house, where there were both young men and 
young ladies, as evidence of complicity in a 
conspiracy of so grave and heinous a character, 
especially as the same witness deposes that 
Herold was a previous acquaintance of the Sur- 
ratts, as he had seen him before they moved to 
town, down in the country, at a serenade there' 
some eighteen months before. 
The same witness (Weichmann) also deposes 
that once in the winter of 1865, he, Holahan, 
Atzerodt, and this boy Herold went to the thea- 
ater to see Booth play; that, on leaving the 
theater and going down the street, he (the wit- 
ness, Weichmann) and Holahan going in ad- 
vance, they found that they had outwalked the 
other three of the party; that the witness( Weich- 
mann) returned, and found Booth, Atzerodt, 
and Herold in a restaurant, and, to use his ex- 
pression, “in close conversation near a stove,” 
and upon his going in they invited him to take 
a drink. If the fact of two persons going to a 
theater to see a popular play, and leaving that 
theater with the addition of a third, and stop- 
ping at a restaurant and taking a drink, or stand- 
ing all three as (in the witness’ opinion) in 
confidential conversation, is an evidence of con- 
spiracy, probably half of the population of Wash- 
ington city during the winter could be convicted 
on the same testimony. 
The only other testimony is that of John M. 
Lloyd, who deposes that John Surratt and At- 
zerodt, some weeks before the assassination, 
passed his house, and that on their return Her- 
old was with them, Herold being in a buggy 
alone ; that they stopped at his house and took 
drinks; that John Surratt took him (Lloyd) ARGUMENT OF FREDERICK STONE. 
tjlUaljy guilty with the party who did strike 
(.le blow; and in order to arrive at a satisfac- 
. ry conclusion whether he did so aid and abet 
g the murder of the President of the United 
ates, it is necessary to examine what will 
an aider and abettor. 
b . n aider and abettor, termed in the law a 
fficipal in the second degree, is thus defined: 
1 Principals in the second degree are those 
Cn ° are Present aiding and abetting at the 
of the fact. To constitute princi- 
« ls m the second degree there must be, in the 
aim P^ace) a participation in the act committed, 
och in the second place, presence, either 
tllal or constructive, at the time of its com- 
. ssion,” Wharton's American Criminal Law, 
lJdiii°n, § 116. 
e„ .at is that “actual or constructive” pres- 
is thus explained in the same book, § 124: 
a 'lt is not necessary that the party should be 
tr UaHy present, an ear or eye-witness of the 
faction. He is, in construction of law, 
y esent aiding and abetting if, with the inten- 
l 0 11 giving assistance, he be near enough 
afford it should the occasion arise.” 
jaJN°w, did the accused, in the language of the 
participate in the act? Did he strike the 
victim the fatal blow? Did he point 
a°ld the weapon? Did he open the door of 
accursed box? Did he bar that outer door? 
jj a he clear the passage of the theater? Did 
BI°P or attempt to stop pursuit? Was he 
aeil in the theater at the time the fatal deed 
a 8 done? To all these questions the evidence 
distinctly and emphatically, no. 
pr. 8 to the second branch of the definition of a 
in the second degree, was he con- 
actively present? He was not actually 
Co®Sent, as we have seen above. Was he, then, 
la present? That is to say, in the 
last quoted from AVharton, was he, 
‘‘a a iQtention of giving assistance,” 
ear enough to afford it, should the occasion 
J0J8e • ’ What says the evidence on this point? 
Jj n Fletcher, the only witness who mentions 
tt r°ld at all on the 14th of April, 1865, says 
ten saw Herold at twenty-five minutes past 
slo ? cl°ck that night* riding on horseback, 
lioti ’ on Pennsylvania avenue, near Willard’s 
tow ’ Colning from the direction of George- 
dton ’ that his horse seemed to be somewhat, 
C* *not very, tired, and gave evidences of 
tesi'n® been ridden. The main portion of the 
i<l '|n°ny places the assassination of the Pres- 
to at fifteen minutes after ten o’clock. That 
Ci'ow?SaBsination took place in the midst of a 
Pute theater, there is no controversy or dis- 
’ 
cu' what possible assistance could the ac- 
t’oy., have rendered to a murder committed in 
®lowl8 theater about the time that he was riding 
down the middle of Pennsylvania av- 
theat Pving man saw Herold nearer Ford’s 
Plet(Ar) on that fatal night, than the witness, 
.hpr. Every circumstance attending that 
*lll act has been minutely detailed to this 
1W by witnesses who were present. What 
ha,ye e assistance could the accused, Herold, 
that Rendered to the murderer ? The only time 
ae Was seen on that night, and about the 
time of tlie murder, he was fully half a mile 
from the scene of the dreadful tragedy. 
In order to convict him of being near enough 
to give aid, should the occasion arise, the Court 
must be satisfied of the nature of the aid that 
he was able to give. What aid could he have 
possibly given? Was he near enough to hand 
Booth another pistol in case the first missed 
fire? Was he near enough to prevent assist- 
ance being given to the lamented President in 
case the first shot did not take etfect? Was he 
in a situation to give the murderer any aid in 
his escape from the theater? As far as this 
testimony discloses, Herold was entirely un- 
armed. Can the Court conceive any possible 
assistance that, under these circumstances, he, 
on the outside of the theater, in the middle of 
the principal street of Washington, half a mile 
fi’om the theater, about the time the murder was 
committed, could have given Booth in the mur- 
der, or even in his escape? 
To constitute an aider and abettor, the ac- 
cused must have been in a situation to render 
aid. Booth might have supposed him to be in 
a situation, the accused might have supposed 
himself even to be in a situation to render aid; 
but it is not sufficient, unless the Court are sat- 
isfied, from the evidence brought before them, 
that he was actually and positively in a situa- 
tion where he could have rendered aid in the 
commission of the act; and, in support of this 
position, I refer to 9 Pickering's Reports p. 
496; 
“To be present aiding and abetting the com- 
mission of a felony, the abettor must be in a 
situation where he may actually aid the perpe- 
trator. It is not enough that he is at a place 
appointed, where the perpetrator erroneously 
supposes he might render aid.” 
But it may be argued that the accused said 
to Jett, a witness produced from the State of 
Virginia, “We are the assassinators of the 
President.” If the Court will examine, they 
will find that this declaration was qualified 
one moment after it was made; that, pointing 
to Booth, the accused said, “ Yonder is the as- 
sassinator.” Herold is on trial for his acts, 
and not for his words. It is shown conclu- 
sively, in this case, that Booth, and not Her- 
old, assassinated the President. If Jett heard 
accurately the words used by Herold, taken 
in connection with the facts disclosed to this 
Court, they only disclosed to Jett the charac- 
ter of the party. Declarations are only a 
means to arrive at the true character of acts. 
They must be taken in connection with the 
facts of every case ; and it is clear, from every 
particle of testimony in this case, that Herold 
was not the “assassinator” of the President; 
and even if he used the words as repeated by 
Jett, the meaning is clear enough; he meant 
to designate and point out to Jett, the witness, 
the character of the party that he was with. 
But it may be urged that the flight of Herold 
is evidence of his guilt. It is true that flight, 
unexplained, is always regarded as evidence 
ot guilt, but not conclusive evidence. 
“ By the common law, flight was regarded so 
strong a presumption of guilt, that, in cases 
of treason and felony, it carried forfeiture of 274 
THE CONSPIRACY TRIAL. 
the person’s goods, whether he was found 
guilty or acquitted. These several acts, in all 
their modifications, are indicative Of fear, 
which, however, may spring from causes very 
different from that of conscious guilt. Mr. 
Justice Abbott, on the trial of Donnall for the 
murder of Mrs. Downing, observed, in his 
charge to the jury, that a person, however con- 
scious of innocence, might not have the cour- 
age to stand a trial, but might, though inno- 
cent, think it best to consult his safety by 
flight.” Wharton, 4th ed., sec. 714. 
But what guilt in this case is the flight of 
Herold evidence of ? He is found with Booth, 
and his flight in this case is not only evidence, 
but constitutes the guilt that he has acknowl- 
edged; it constitutes the guilt of his aiding in 
the escape of Booth, but no more. It by no 
means follows, because he aided Booth to escape, 
that he aided him to kill the President. It is 
bad reasoning to conclude that because he was 
guilty of one crime he was guilty of others. 
But it may be asked, why did he leave in 
the dead hour of the night with a murderer ? A 
slight glance at the relative character of the two 
men may explain this difficulty. John Wilkes 
Booth, as appears from all the evidence in this 
case, was a man of determined and resolute 
will, of pleasing, fascinating manners, and 
one who exercised great influence and control 
over the lower orders of men with whom he 
was brought in contact. He was a man of 
means, quite a prominent actor, fine in per- 
sonal appearance and manners, and an adept 
in athletic and manly exercises. All the force 
of his mind, all his means, and his time in the 
winter of 1865, were devoted to get agents to 
aid in his desperate enterprise. In his search 
he met with Herold, then out of employment, 
and he at once marked him for his own. 
better humanity, and this little remnant o* 
better nature urged-Booth to make that dcC, 
laration while it was yet time to do so. 
did he mean by that declaration ? Not Dia, 
Herold was not guilty of the act of aiding 
assisting him (Booth) to escape; but what & 
did mean, and what he tried to convey, w'aJ 
that Herold was guiltless of the stain of bl°° 
being upon his hands, either as an accessed 
before the fact to the murder of the Preside*1 > 
or as an aider and abettor in that murdex-> a 
any other deed of violence. That is what 
meant. . 
lUCrtlX t. « 
I should mention here, what I might 
properly, perhaps, have mentioned in anotwq 
place, that I think it has been made clear H’o,j 
the testimony, that Dr. Merritt, who salj 
Herold was in Canada between the 15th all 
20th of February last, was manifestly mistake11' 
Merritt was positive as to the location of 1 
time, and if he did not see him there durlllj 
that time, he did not see him at all. He d f 
not profess to have been introduced to him, ® 
to have had conversation with him, nor w»s , 
pointed out to him, as Merritt says, by nall1®’ 
but the sum of his testimony is, that betw® 
the 15th and 20th of February last, a man"* 
pointed out to him whose name was Harris0’ ’ 
and who, he thinks, was the prisoner Hero 
It appears, from the testimony of his little s* 
ter, as well as that of Mrs. Jenkins, that He 
old was at home on the 15th of February I 
appears conclusively, from the testimony 
Mrs. Potts, that he was at home, as she Pal. 
him some money and took his receipt, on 1 
18th of February; and it appears equally caII 
clusively from the testimony of Captain h 
monds, an officer in the navy, that he WaS, 
home on the 20th of the same month, shoV1* 
clearly that Herold was not in Canada; .. 
Dr. Merritt was mistaken; it was some °il 
man; more than probable Surratt, who 
called very frequently by his middle name 
Harrison. { 
It has been intimated by one of the 
Judge Advocates that “ where parties a*’6 -e, 
dieted for a conspiracy and the execution tbel , 
of, it is but one crime at the common law; a 
that, upon all authority, as many overt acts 
the execution of that conspiracy as they 
guilty of may be laid in the same count. 
this doctrine the accused can not assent- 
crime of conspiracy is thus defined by Mr- p 
geant Talfourd; j. 
“The offense of conspiracy consists, acc / 
ing to all authorities, not in the accompliß’>h jjj 
of any unlawful or injurious purpose, no* 
any one act moving toward that purpose, b*l fIJ. 
the actual concert and agreement of tigv°g 
more persons to effect something, which, jjjg 
so concerted and agreed, the law regards as 
object of an indictable conspiracy.” Per Pa* 
J., 2 Barnewall and Alder son, 205. _ 
If this decision is correct—and of lts 
rectness I think there can be no 
crime of conspiracy becomes complete up°>J1 0t 
concert and agreement. The overt act jS 
essential to the completion of the crime. 
In Wharton’s American Criminal Law, s 
Who is Herold, and what does the testimony 
disclose him to be ? A weak, cowardly, fool- 
ish, miserable boy. On this point there is no 
conflict. Dr. McKim, who probably knew him 
best, and in whose employ he had been, de- 
clares that his mind wras that of a boy of 
eleven years of age, although his age actually 
was about 22—not naturally vicious, but weak, 
light, trifling, easily persuaded, good tempered, 
ready to laugh and applaud, and ready to do 
the bidding of those around him. Such a boy 
was only wax in the hands of a man like Booth. 
But though Booth exercised unlimited con- 
trol over this miserable boy, body and soul, he 
found him unfit for deeds of blood and vio- 
lence; he was cowardly; he was too weak and 
trifling ; but still he could be made useful. He 
knew some of the roads through Lower Mary- 
land, and Booth persuaded him to act as guide, 
foot-boy, companion. This accounts for their 
companionship. 
There is one piece of evidence introduced by 
the Government that should be weighed by the 
Commission. It is the declaration of Booth, 
made at the time of his capture; “I declare, 
before my Maker, that this man is innocent.” 
Booth knew well enough, at the time he made 
that declaration, that his hours, if not his min- 
utes, were numbered. In natures the most de- 
praved, there seems to be left some spark of a 
2,835, the law is thus set out; ARGUMENT OE FREDERICK STONE. 
275 
“It is usual to set out the overt acts, that is 
, S;iJ, those acts which may have been done 
by any one or more of the conspirators in pui'- 
®aance of the conspiracy, and in order to effect 
tbe common pi*ose of it; but this is not requi- 
re, if the indictment charge what is in itself 
au unlawful conspiracy. The offense is com- 
plete on the consummation of the conspiracy, 
aRd the overt acts, though it is proper to set 
them forth, may be either regarded as matters 
aggravation, or discharged as surplusage.” 
It seems to me clear from these authorities 
laat the conspiracy to commit a crime, and the 
actual commission of that crime, are nowhere 
Regarded in the eye of the law as constituting 
but one offense. They do, in fact, constitute 
l*o separate and distinct offenses, and the party 
|bay be indicted for them both, or for either of 
'bena separately. The prevailing doctrine in 
Jbis country is, that where the conspiracy is 
to commit a felony, if the felony is afterward 
bouamitted, the conspiracy merges in the felony, 
Conspiracy being regarded by all the writers 
a 8 a misdemeanor merely. 
, Again, if upon a conspiracy being entered 
*bto to commit murder, the murder is after- 
ward actually committed by one of the conspir- 
ators, it is not a conclusion of law that the 
Murder is committed also by the other co-con- 
apirators. 
Another principle here comes in. To the 
CrUne of murder, there may be principals and 
accessories before and after the fact. A co- 
b°Uspirator may be an accessory before the 
act, but it does not follow, because he is a co- 
nspirator, that he is an accessory before the 
act. What is an accessory before the fact, is 
bus defined: 
“An accessory before the fact, is one who, 
bough absent at the time of the commission 
* the felony, doth yet procure, counsel, com- 
mand, or abet another to commit such felony.” 
Now, where is the evidence that Herold pro- 
pped, counseled, commanded, or abetted Booth 
assassinate the President of the United 
states.? 
I beg leave again to refer the Court to the 
®Se of the Commonwealth vs. Knapp, 9 Picker- 
ln Reports, 518: 
“The fact of the conspiracy being proved 
.gainst the person is to be weighed as evidence 
the case having a tendency to prove that 
c Prisoner aided, but it is notin itself to be 
as a legal presumption of his having 
bled unless disproved by him. It is a ques- 
.°b of evidence for the consideration of the 
Jury.” 
Should, then, the Court determine that Her- 
old was one of the conspirators, it is not to he 
taken of itself as any conclusive evidence that 
he aided or abetted in any manner the murder. 
This case is being tried by the rules of ev- 
idence as known to the common law and the 
general principles of that law applicable to 
criminal cases. I beg leave to call the atten- 
tion of the Court to one of the most important 
and most thoroughly established rules of the 
common law in the investigation of all crimes, 
and that rule is this: That whenever upon an} 
question there should arise in the minds of the 
investigating tribunal any reasonable doubt, 
the accused should have the benefit of that 
doubt. This rule has met with the unqualified 
approbation of every judge in England and 
America whose name adorns the judicial his- 
tory of either country. While I do not con- 
tend that the Court should for a moment ex- 
amine the record for the purpose of raising 
capricious doubts, still, whenever the record 
does present a case of reasonable doubt, I in- 
sist that the accused shall have the benefit of 
that doubt. Apply this principle to the main 
charge in this case : Can the Court say, from 
the evidence before them, that, on the night of 
the 14th of April, 1865, the accused, Herold, 
was in a situation where he could render aid 
in the actual murder of the President ? Taking 
into consideration the mode and manner of 
the execution of that murder, and Herold’s 
position from the time of its commission, it 
seems to me that it is almost, if not quite, clear 
that he was not in a situation where he could 
render such aid. Can the Court say, beyond 
a reasonable doubt, then, that he was an ac- 
cessory before the fact? Can they say that 
Herold did procure, counsel, command, or abet 
Booth to kill and murder the President of the 
United States? If so, what word or deed of 
Herold’s can they point to in this record that 
does amount to procuring, counseling, com- 
manding or abetting? There is clearly rone. 
The feeble aid that he could render to any en- 
terprise was rendered in accompanying and 
aiding Booth in his flight, and nothing beyond. 
That of itself is a grave crime, and carries with 
it its appropriate punishment. 
I beg leave to conclude this defense with a 
quotation from Benet on Military Law and 
Courts-martial; 
“ Where the punishments for particular of- 
fenses are not fixed by law, but left discretion- 
ary with the courts, the above mandate of the 
Constitution must be strictly kept in view, 
and benign influence of a mandate from 
a still higher law ought not to be ignored, that 
justice should be tempered with mercy.” 
DAVID E. HAROLD. ARGUMENT 
IN 
DEFENSE OF EDWARD SPANGLER, 
BY 
THOMAS EWIHG, Jr. 
liquor more than he should have done—diS' 
posed to drink at times—not so as to mak® 
him vicious, but more to unfit him to work. 
Q. Is he a quarrelsome man ? 
A. I never knew him to be but in one quar- 
rel since he has been in my employ, and that 
was through drink. 
Q. Was he faithful in attending to his du- 
ties ? 
Mr. President and Gentlemen of the Commission: 
In presenting to you this morning the case 
of the accused, Edward Spangler, I shall con- 
fine myself to a discussion of the evidence, 
leaving whatever I may see fit to say on the 
question of jurisdiction, and on the character 
of the charges and specifications to the occa- 
sion when my argument in the case of Mudd 
is presented. 
Preliminary to a consideration of the spe- 
cific items of testimony against Edward Spang- 
ler, I will briefly refer to and ask considera- 
tion of the evidence as to his character, his 
occupation, his relations to Booth, and Booth’s 
habits of resorting to the theater and frater- 
nizing with its employees. 
John T. Ford says, on his cross-examina- 
tion : 
A. Very; a good, efficient drudge; always 
willing to do anything; I never found him un- 
willing. 
Q. Was he a man that was trusted with the 
confidence of others? 
A. I should think not to any extent. He had 
no self-respect. He was not one who had many 
associates. He usually slept in the theater—"a 
man who rarely slept in a bed. 
Q. A harmless man ? 
A. Very harmless—always esteemed so, >■ 
think, by all the company around the theater! 
often the subject of sport and fun; but never, 
except on one occasion, did I know him to be 
engaged in a quarrel. 
Q. How was he as to politics? Was he a 
man of intense feeling? 
A. I never knew anything of his politicBl 
sentiments in this city. In Baltimore he wa® 
known to be a member of the American Order- 
I never heard an expression of political sent1' 
ment from him. 
Q. [By Mr. Ewing.] State what were the du- 
ties of the accused, Edward Spangler, on the 
stage. 
A. Spangler was employed as a stage hand, 
frequently misrepresented as the stage car- 
penter of the theater. He was a laborer to as- 
sist in the shoving of scenery into its place, 
and removing it within the groves, as the ne- 
cessity of the play required. These were his 
duties at night, and during the day to assist in 
doing the rough carpenter work incidental to 
plays to be produced. 
Q. State his relations to Booth, as far as you 
have known them to be together at all. 
A. He seemed to have a great admiration for 
Booth. I have noticed that, in my business on 
the stage with the stage manager. Booth was 
a peculiarly fascinating man, and controlled 
ihe lower class of people, such as Spangler 
belonged to, I suppose, more than ordinary 
men would—a man who excelled in all manly 
sports. 
And on his second examination, Ford says: 
Q. How long have you known the accused, 
Edward Spangler? 
A. Nearly four years, I think. 
Q. Was he in your employ through that 
time ? • 
A. Most of that time. 
Q. State what his character is for peace, 
good nature and kindness. 
A. He was always regarded as a very good- 
natured, kind, willing man. His only fault 
was occasionally participating, in drinking 
Gifford says [cross-examination]: 
Q. What were his relations with Booth? 
A. Nothing that I know of, further than 
friendly. Everybody about the house 'vaS 
friendly with him. 
Q. With Booth? . 
A. Yes, sir, actors and all; they were al 
friendly with him. He had such a very 
way that it made every person like him. ** 
was a good-natured and jovial kind of mB,o' 
The people about the house, as far as I kno'v> 
all liked him. 
Q. Was he much in the habit of frequently 
the theater ? 
A. Sometimes I have seen him there for . 
week, and then he would go off, and I worn 
not see him for a couple of weeks. Then h 
would come again for a week, perhaps, and a 
ter that I would not see him for a couple 0 
weeks or ten days, or something of that sor • 
When the house was open, he had free acce 
all through the house. 
276 ARGUMENT OF THOMAS EWING, JR. 
277 
Q. Day and night? 
, A. Yes, sir; except when the house was 
,°cked up and the watchman was there ; he 
aad no access to it then. 
Q- Was not Spangler a sort of a drudge for 
Booth? 
and he (G.) paid it over to Booth. This item 
is at least as good against Gifford and “Pea- 
nuts ” as against Spangler, and amounts to 
nothing against either. 
3. There was found in Spangler’s carpet- 
sack, at his boarding-house, on the 17th of 
April (the day of his arrest), rope 81 feet long, 
some letter paper, and a shirt-collar. (Rosch.) 
The rope was offered in evidence ; the letter 
paper and shirt collar were not. The rope was 
just like forty or fifty others used about the 
theater as “border ropes,” and to “haul up 
lumber to the top dressing rooms, because the 
stairs are so narrow the timber can not be got 
up that way.” (Garland). “The border ropes 
are seventy to eighty feet long—not less than 
80 feet.” (Lamb.) “They are of just the same 
material, texture and size as this.” (Garland, 
Lamb, Ray bold.) “We used such ropes as this 
at the time of the Treasury Guards’ ball, to 
stretch from the lobby to the wings, to hang on 
it the colors of different nations.” (Raybold.) 
“This rope has evidently been in use.” (Car- 
land, Lamb, Raybold). “Sometimes we use 
them, and a great many of them, and then 
again we have to take them down, and they lie 
up there on the scene loft until we need them 
again.” (Raybold). From the evidence, it ap- 
pears probable Spangler stowed away this rope 
to use on his frequent fishing excursions as a 
crab line. Gifford says; 
Q. State whether you know anything of the 
accused, Edward Spangler, being accustomed 
to crabbing and other fishing during the re- 
cesses of his engagement. 
A. I never saw him at it; but I have known 
him to tell me that he went crabbing—that he 
would go down to the Neck on Saturday night, 
and stay until Monday morning, and come 
home on Monday morning. I have never seen 
him at it myself; but I know that is what he 
told me, and I have seen others who said the 
same thing—that they had been crabbing to- 
gether. 
Q. [Exhibiting to the witness the rope]. 
Will you state whether that rope is such a one 
as might be used in that sport? 
A. They have a line something of this sort, 
and small lines tied on to it about that dis- 
tance [three feet], with pieces of meat attached, 
and as they go along they trail it along. I 
have seen them at it, although I have never 
done anything at it myself. They pull up the 
crabs as they go along, and let the line go 
down, and dip them up out of the boat. 
And John T. Ford says: 
Q. State whether or not you know anything 
of the prisoner, Spangler, having been in the 
habit of going to Baltimore, and for what, dur- 
ing the spring. 
A. I know that he had lived in Baltimore, 
and buried his wife there some eight or ten 
months, or probably a year ago, while in my 
employ, and that he considered Baltimore his 
home, and usually spent the summer months, 
during the vacation of the theater, there, chiefly 
in crabbing and fishing. He tvas a great fisher 
and crabber. I know nothing positive of my 
own knowledge as to that. I only heard that, 
and we used to plague him about it. 
, A. He appeared so; he used to go down and 
him to hitch his horse up, and such things, 
: told; I have seen him once or twice hitch- 
lQg the horse up myself. 
It is to be remarked here, that a stable a few 
ards from the back of the theater, and from 
doors of the negro women, Mrs. Turner and 
Anderson, was used by Booth for his 
horses and buggy, from early in January until, 
tae assassination, and Burroughs and Span- 
|ter, employed at the theater, attended to the 
arudgery at the stable. 
. Burroughs (“Peanuts”) says [cross-exam- 
lhation]: 
Q. Was not Spangler in the habit of bridling, 
aQd sadling, and hitching up Booth’s horse? 
_A. When I was not there he used to hitch 
aßn up. 
Q. Was he not in the habit of holding him, 
°°> when you were not about? 
j. A. Yes, sir; and he used to feed him when 
not about. 
/While calling the attention of the Court to 
he evidence as to the relations existing be- 
/?een Spangler and Booth, I desire it also to 
?Tai-k the fact that in the great volume of tes- 
-11:Uony as to the letters, conversations, meet- 
associations, acts done, and things said 
hich have been adduced as evidence in these 
/Bes, there is not the slightest indication that 
ever met Booth except in and around 
„ae theater, that he ever got a note or a message 
°m him, or ever saw or heard of any one of 
persons suspected to have been associated 
Bh Booth, in either the conspiracy to capture 
ir that to assassinate the President and the 
eads of the Government. 
, Now, in the light of the above-recited evi- 
i erice, lam certain there is nothing shown to 
, ave been said or done by anybody prior to 
moment of assassination—outside of the 
j6Btitaony of Sergeant Joseph M. Dye and 
°hn p_ Sleickman—tending at all to show that 
Pangler had any intimation of Booth’s guilty 
i^ll’POSe, or was in any way, even innocently, 
e s(jru.mental in effecting it. Let us briefly 
the several items of evidence of acts 
and things said prior to the conversation 
Sul narrated by Sleickman, and con- 
ation with him noticed by Sergeant Dye, 
s< lcß have been adduced here as evidences of 
Tangier's guilt. 
g • He repaired Booth’s stable, in January, 
to rr°uf=hs says. What of that? He was a 
a carPenter, and a drudge at the theater, 
d IB® stable was near at hand. The inci- 
-2 is unworthy of further notice or comment. 
da ‘ sold Booth’s horse and buggy several 
ket el°re the assassination, at the horse mar- 
0r at a livery stable. (Burroughs’.) The 
aj.,6 witness says he prepared them for sale, 
tke_ Went with Spangler, and that Gifford sent 
r6e .to make the sale. And Gifford says he 
6lTed, and J. R. Ford receipted for the money, 278 
THE CONSPIRACY TRIAL. 
Q. [Exhibiting to witness the coil of rope 
found in a carpet-sack at the house where Spang- 
ler took his meals.] Look at that rope, and 
see whether or not it might be used for any 
such purpose, and in what, way. 
A. I suppose that could be used as a crab 
line, though it is rather short for that purpose. 
I have seen some as short used. I have read 
that the length of this is eighty feet, but I do 
not know from its appearance. 
Q. This is such a rope as you have seen 
used by amateurs in that sport? 
A. Yes, sir; I have seen such ropes. I fre- 
quently go fishing in the summer. 
While it is unquestionably true that, so far 
as the evidence goes, Spangler may have got 
this rope for some purpose other than that 
suggested, it is also true that there are many 
other uses for which we can more readily 
imagine he got it than for the assassination 
plot. In the devilish scheme of that conspiracy 
I can imagine no use for a rope eighty feet 
long. It could not have been provided for 
lariats, for there was then no grass; nor for 
halters, for it would make a half score. If, 
however, it had been provided for any purpose 
connected with the conspiracy, it would have 
been kept at the theater, or the stable, and 
not off at a remote boarding house. It is 
easier to imagine him frugal enough to provide 
for his home, in Baltimore, a clothes line or a 
bed cord, than foolish enough to provide for 
the assassin’s scheme an article so unnecessary 
as an eighty-foot rope. My only embarrass- 
ment in this point of the case arises from a 
failure to show that he fairly got title to the 
rope; but in this embarrassment I find conso- 
lation in reflecting that I am not called on to 
show what he meant to do with the shirt collar 
and the letter paper—which would have been 
a much more difficult task. 
A. No, sir. Spangler said it would be a 
nice place to sleep in after the partition was 
down. That is all I recollect. 
Judge Advocate omitted to ask his witness 
(Jake Eitterspack) as to this conversation, so 
that it rests on the evidence of “ Peanuts 
only. Ido not think it goes a great way to- 
ward establishing Spangler’s connection with 
the conspiracy, or calls for special comment- 
But I will present a set-otf to this exhibition 
of ill feeling toward the President by Spangle") 
at being called away from his work on the stagB 
to do an extra job in fixing the box, by bIS 
equally strong exhibition of good feeling, when, 
as the President entered the theater, “he 
clapped his hands and stamped his feet, and 
seemed as pleased as anybody to sec the Pres- 
ident come in.” (James.) 
5. Burroughs further says, between five and 
six o’clock Friday evening, Booth came with 
his horse to the stable and called for Spangle1’ 
and wanted a halter. That Spangler sent 
Ritterspack up stairs for one; that MaddoS 
was there with them, and Spangler wanted to 
take the bridle and saddle otf, but Booth would 
not let him, but that he (Spangler) did after' 
ward take them off. The fact that Booth wanted 
the saddle and bridle lefton, and Spangle1, 
wanted to take them off, and did subsequently do 
it, indicates that Spangler had, up to that tini®) 
no intimation of Booth’s need of the horse that 
night. 
6. have no doubt that the actual and thß 
apparent preparations in and about the Pres- 
ident’s box for the assassination, more than all 
other circumstances combined, led the Govern- 
ment to arrest Spangler and put him on trial 
as a conspirator. They were sufficient to direct 
suspicion against him and to justify his arrest, 
for in them they appeared to the casual observer 
the hand of a mechanic in aid of Booth® 
plan. But the evidence has wholly cleared the 
defendant of that suspicion. These actual and 
apparent preparations were: 
1. A quarter of an inch hole bored through 
the door of box 7, which was the closed doo1 
when the two boxes, 7 and 8, were thrown int° 
one for the President’s party. This hole 
bored with a gimlet, and enlarged on the out' 
side with a penknife. (Plant, Ferguson, Olin-/ 
A gimlet was found in Booth’s room, after h® 
fled, about the size of the hole, but it was l°s 
or mislaid, and, therefore, could not be fitted t° 
the hole. Booth occupied box 7 one night, abou 
two weeks before the assassination. (Ray' 
bold.) “He secured box No. 7 three or f°ur 
times during the season before the assassina] 
tion, but I can not say whether he occupied itol 
not.” “Sometimes he would use it and soiu®' 
times he would not.” “He always engaged tha 
box.” (H. Clay Ford.) The fact that B°°| 
apparently brought the gimlet, bored the hot ? 
and carried the gimlet to his room again, leav® 
this item of testimony not only of no 
against Spangler, but of great significance 111 
his favor. For, if Booth had a confidant aiu 
confederate in this rough carpenter, the v’or 
would have been done by Spangler, or, at lea® - 
with Spangler’s tools. 
2. The hole in the plastering, two by tbr® 
4. Two boxes had always been thrown into 
one when the President came to the theater on 
several former occasions during the season. 
(H. Clay Ford). Except while taking out the 
partition, Spangler was not in the box as it was 
being prepared and decorated. (H. Clay Ford). 
But Burroughs says: 
Q. AVhat was he doing? 
A. Harry Ford told me to go in with Spang- 
ler and take out the partition of the box, as the 
President and General Grant were coming there. 
I then went after Spangler. 
Q. Do you remember whether, while Spang- 
ler was doing that, he said anything in re- 
gard to the President? 
A. He made remarks and laughed. 
Q. What were they? 
A. He said, “ Damn the President and Gen- 
eral Grant.” 
Q. While damning the President, or after 
damning him, did he say anything else? 
A. I said to him, “ What are you damning 
the man for—a man that has never done any 
harm to you?” He said he ought to be cursed 
when he got so many men killed. I stayed 
there until they took the partition out, and sat 
down in the box. 
Q. Did you observe what else they did in the 
box? ARGUMENT OE THOMAS EWING, JR. 
279 
1 Uchos, into which the brace rested which fast- 
eHecl the outer door leading from the dress-cir- 
c‘e into the little passage from which the doors 
°Pen into the private boxes. This hole was cut 
''■dh a penknife, apparently, from the scratches 
?°Wn the wall. (Rathbone.) It was not cut 
111 to the brick, but about an inch, or an inch 
aHd a-half, into the plaster. It would take ten 
fifteen minutes to do it with a penknife. (Gif- 
°rd.) That passage was pretty dark, even 
fi’lien the door is opened. (H. Clay Ford.) If 
Hone with a knife, even with the door opened, 
jt Would make no noise sufficient to attract at- 
ention. (Gifford.) This item, like the last, 
Jffids in Spangler’s favor, and not against him. 
*or a carpenter, with tools at hand, would have 
the hole with a chisel, rather than with a 
Peoknife. The chips which fell from whittling 
side of the gimlet-hole, and the plastering 
rom the hole in the wall, were not on the floor 
|)ext morning. (Judge Olin.) This indicates 
Hat the work was done in advance, or on some 
of the occasions when Booth occupied box 
(> opposite the door of which the hole in the 
Was cut. 
, 3. A penknife was found in the President’s 
next morning. This was used on Friday 
Afternoon by Harry Ford, in cutting the strings 
,° Go up the flags and the picture of Washing- 
,°H) and was left by him accidentally in the 
b°s. (H. Clay Ford.) 
d. The screws which fastened the keepers 
j the locks on the doors of 7 and 8, were go 
°ose that the doors coidd be easily pushed open, 
Jen when locked. (Judge Olin.) The theory 
■J the prosecution was that the screws were 
J'awn py Spangler, in advance, in aid of 
eotfi’s plan. Raybold says that several weeks 
Store assassination, he burst open the door 
t box 8 to admit Mr. Merrick, and that after 
Hat the lock was not repaired and wouldn’t 
a®ten tne door; but Merrick says it was the 
°°r of box 7. This conflict of evidence is of 
0 consequence, however, because O’Bryon, the 
UsW, says: 
I.A. In pox g the keeper was wrenched off, 
>r°ken off in some way; I do not know how. 
b’as absent one evening; I was at home sick, 
, H*! when I came again I found that it was 
J‘°ken off, but the door itself was pretty tight 
, ibe tup, and I never thought of speaking 
bout it. All I had to do was to close the door, 
fid the door itself would shut tight, and I do 
know that I ever said anything about it. 
Q. When did you first notice that the keeper 
ike door of box 8 was broken? 
P A. On the first occasion that I went into the 
fi* afterward; I can not tell when that 
fi’as. ’ 
into the passage, which separates the two hoses 
from the wall, had a lock upon it? 
A. No, sir, it had no lock. 
And Plant, an expert, unconnected with the 
theater, who, a few days ago, examined the 
keepers of both boxes, says: 
A. I examined the keepers on boxes 7 and 8. 
To all appearances they had both been forced. 
The woodwork in box 8 is shivered and splin- 
tered by the screws. In box 7 I could pull the 
screw with my thumb and finger; the tap was 
gone clear to the point. I could force it back 
with my thumb. In box 4, which is directly 
under box 8, the keeper is gone entirely. 
Q. State whether or not, according to your 
professional opinion, the keepers of the locks 
in boxes 7 and 8 were made loose by an instru- 
ment, or by force applied to the outside of the 
doors? 
A. I should judge by force. 
Q. Is there any appearance of an instrument 
having been used to draw the screws in either 
of those boxes? 
A. I could see no such evidence. 
5. A square pine stick, about four feet 
long, and beveled at one end, with which the 
outer door was braced, was picked up in the 
box that night. (Jaquette.) Through the bev- 
eled end are driven two lath nails, bent at the 
ends, which Gifford, the carpenter, says might 
have been put there to hold that end against the 
door, but which obviously were not put there 
for any such purpose, as they were wholly un- 
necessary for that purpose, and were not driven 
into the door. In the other end are two large 
nails, which, he says, could have been of no use 
to hold the butt end in the hole. The stick had 
evidently been prepared for some other use. It 
is doubtful whether it was the stick that Booth 
used, as it was found, not in the passage, but 
in the box (Jacquette); and Major Rathbone 
says: “I found the door barred by a heavy 
piece of plank;” and “My impression was, it 
was a different piece of wood.” Whether this 
is in fact the bar is of no apparent importance. 
The members of the Court have observed that 
the wall forms with the door, when shut, an 
acute angle, and are doubtless satisfied that a 
strong stick or piece of plank, anywhere from 
three to five feet long, would answer well to bar 
the door. But if this was the bar, it was not 
prepared by Spangler for the purpose, for he, a 
carpenter, would not have driven the nails in 
the butt end. 
These three acts of preparation—the boring 
the hole in the door, the cutting the hole in the 
plaster, and providing the brace—were acts of 
mere drudgery, which, if Spangler had been a 
conspirator, Booth would naturally have called 
on him to do; and the fact that Booth certainly 
did one, and probably did the others, and the 
presumption that Spangler did neither, tend 
strongly to the conclusion that he was not in 
the plot when these preparations were made. 
Ritterspack, in his last examination, said 
that just before he and Spangler went home to 
supper, on the day of the assassination, and 
about six o’clock in the evening, they were at 
work together on the stage, and saw a stranger 
in the dress circle smoking a cigar. He called 
Jk Was it before the assassination? 
n 0h yes, sir, some time. 
About how long before? 
A- That I could not say. 
de . door was used when the Presi- 
fiiial party was occupying the two boxes? 
The door of box 8 
0. How was it generally left after the party 
fiiered? 
A AT 
• Always open. 
Do you know whether the door leading 280 
THE CONSPIRACY TRIAL. 
Spangler’s attention to him, but he said “he 
had no charge on that side of the theater, and 
no right to order the man out.” That presently 
the stranger entered one of the lower private 
boxes opposite the President’s box, when Spang- 
ler said something, in consequence of which 
the man left. The Assistant Judge Advocate 
objected to the witness saying what it was 
Spangler said to the stranger to make him leave. 
Doubtless this man was there inspecting the 
President’s box for Booth, and possibly cutting 
the hole in the wall, and bringing in the bar. 
Had Spangler been in the conspiracy, would 
Booth have needed the services of this inspector 
and assistant? 
place, very near, close to each other, on the op- 
posite side of the stage. 
Q. That is, on the left-hand side of the stage 
looking to the audience? 
A. Yes, sir; and the same side that the 
President’s box was on. 
Q. Did Mr. Sleickman go over to the door ? 
A. I did not see him go over there. 
Q. Did you see Spangler go over? 
A. Yes, sir; because I went right behind 
him, pretty close. 
Q. Did you see Spangler go out of the door? 
A. Yes, sir. 
Q. Did you see Booth then come in? 
A. I did. 
Q. How long was it after Spangler went out 
before Booth came in? 
A. About a minute, or a minute and a-half-" 
not longer than that. 
Q. How far were you from the door? 
A. I was about half-way between the back 
door and the green-room—about eighteen or 
twenty feet, I suppose. 
Q. Did you hear any conversation between 
Spangler and Booth? 
A. I did not. 
Q. Did you hear anything to indicate that 
there was conversation going on between them? 
A. No, sir. 
Q. Did Booth meet Spangler inside of the 
door? 
We now come to the consideration of the tes- 
timony of Sleickman, referred to above. 
Q. Do you know J. Wilkes Booth? 
A. Yes, sir. 
Q. Did you or not see him on that night, and 
if so, at what hour and under what circum- 
stances ? 
A. I saw him about nine o’clock, I guess it 
was. He came up on a horse and came in a 
little back door to the theater. Ned Spangler 
was standing there by one of the wings, and 
Booth said to him, “ Ned, you will help me all 
you can, won’t you ?” and Ned said, “ Oh, yes.” 
Q. I understand you to say that as Booth 
came up to the door with his horse, he said 
that? 
A. When he came in the door after he got off 
the horse. 
A. He was standing at the door; he was c<o 
the outside. The door was about half open 
when Spangler went out. 
Q. Would you have seen any person who fol- 
lowed Spangler, and went out, too? 
A. Yes, sir; I think I should have seen any 
one. 
Q. How long was that before the President 
was shot? 
A. I should Judge it to be about an hour and 
a-half. 
Q. Did you observe the horse afterward, by 
whom it was held? 
Q. And you did not see Sleickman? 
A. I did not. 
Q. When Booth came in, what did he do? 
A. He went under the stage to the oppo' 
site side, and he went out the side door. 
Q. How do you know that he went out of th1' 
side door? 
A. Because I went under the stage and 
crossed to the opposite side myself. 
Q. Did you go under with Booth ? 
A. Yes, sir; I went under with him. 
It may be suggested that the conversation 
between Booth and Spangler occurred at som® 
time during the play, prior to the time when 
Booth rode up to the back door and called f°r 
Spangler to hold his horse. But, if that be 
claimed, I assert that the evidence shows cop' 
clusively that Booth came to the door with 
horse hut once that night during the play. An® 
•in support of that assertion I here refer tb® 
Court to each item of evidence (except that o» 
Sleickman and Debonay, the conflicting 
nesses), as to Booth entering the theater by tbe 
back door during the performance. 
1. John Miles, colored, whose place was 
the flies, from which he could see out of lb 
window down into the alley by the door, sayB ■ 
Q. Did you see J. Wilkes Booth there? 
A. I saw him when he came there. 
Q. What hour did he come? Tell us all y°u 
saw. , 
A. He came there, I think, between nine an 
Q. You did not see Booth any more? 
A. I just got a glimpse of him as he was 
going out the first entrance on the right-hand 
side. 
A. I did not. 
Q-. What hour was that when you saw him 
going out of the first entrance? 
A. About half-past ten o’clock, I think. That 
was after he shot the President. 
Q. How close were you to Booth and Spang- 
ler when Booth said those words to him on en- 
tering the theater, from the door? 
A. About as far as I am from you. [A dis- 
tance of about eight feet.] 
Q. How far was Spangler from him? 
A. Spangler was standing as close to him as 
the gentleman next to you is to you. [About 
three feet.] 
Q. He spoke, then, in a loud voice? 
A. Yes, sir. 
Q. Could he have seen you from where he 
was standing? 
A. Oh, yes. 
Now this evidence is flatly contradicted by 
the evidence of J. L. Debonay, the “responsi- 
ble utility ” man. 
In his second examination he says: 
Q. Did you see anything of Mr. Sleickman 
when Booth said he wanted Spangler to hold 
bis horse, and you went over for Spangler? 
A. They were both standing at the same ARGUMENT OF THOMAS EWING, JR. 
281 
ten o’clock, and he brought a horse from the 
stable and came to the back door and called 
“Ned Spangler” three times out of the theater. 
Ned Spangler went across the stage to him. 
After that I did not see what became of Booth, 
and never noticed him any more until I heard 
the pistol go off. 
Cross-examined by Mr. Ewing; 
Q. Was the play going on when Booth rode 
up and called for Spangler? 
A. They had just closed a scene, and were 
getting ready to take off that scene at the time 
he called for Spangler. Spangler was at the 
second groove then, and pushed a scene across. 
Booth called him three times. 
very low voice to this Maddox, and I saw 
Maddox reach out his hand and take the horse; 
but where “Ned” went I can not tell; this 
Booth went on into the theater. 
Cross-examined by Mr. Ewing : 
Q. How far is your house from the back 
door of the theater? 
A. My front door fronts to the back of the 
theater; it comes out into the open alley, 
which leads up to the door; there is another 
house between mine and the theater; the two 
houses are adjoining, and my house stands as 
far from the door of the theater as from here 
to the post. [About twenty-two feet.] I think 
it would allow that space for the two houses. 
4. Mary Jane Anderson. 
Q. Does your house adjoin that of Mrs. 
Turner, who has just testified? 
A. Yes, sir; my house and her’s are adjoin- 
ing. He came up to the theater door, this gen- 
tleman did, with the horse by the bridle. He 
pushed the door open, and said something in 
a low tone, and then in a loud voice he called 
“Ned,” four times. There was a colored man 
up at the window, and he said: “Mr. Ned, 
Mr. Booth calls you.” That is the way I came 
to know it was Mr. Booth. It was dark, and 
I could not see his face. When Mr. Ned came, 
Booth said to him, in a low tone, “Tell Maddox 
to come here.” Then Mr. Ned went back, and 
Maddox came out. 
Q. Where were you then ? 
A. Up on the flies, about three and one-half 
stories from the stage. 
Q. Do you know who held the horse ? 
A. John Peanuts held him; he was lying on 
a bench, holding the horse, when I noticed 
him. I was at the window pretty nearly all 
the time from the time Booth brought the horse 
Until he went away. Every time I looked out 
the window, John Peanuts was lying on the 
bench holding the horse. I did not see any one 
else hold him. 
2. Joseph Burroughs (“Peanuts”) says: 
Q. Did you see him on the afternoon of the 
14th of April ? 
A. I saw him when he brought his horse to 
tfle stable, between five and six o’clock. 
Q. Did you see him again at a later hour 
that evening ? 
A. I saw him on the stage that night. 
Q. Did you or not see him when he came 
tvith his horse, between nine and ten o’clock 
that night? 
A. No, sir; I did not see him when he came 
up the alley with his horse. 
Q. Did you see the horse at the door ? 
A. I saw him when Spangler called me out 
there to hold the horse. 
Q. How long was it from the time that Booth 
rode up there until the people said he had shot 
the President? 
A. I suppose it was about an hour—not 
quite an hour—from the time he came up there 
to the time they said the President was shot. I 
think it was almost an hour, but I do not think 
it was quite an hour. 
These six witnesses (including Sleickman 
and Debonay) are all who have testified to 
Booth’s coming to, or entering, the back door 
of the theater that night. Every one of them, 
except Sleickman and Burroughs, refers to his 
calling loudly several times for Spangler. Bur- 
roughs, who was too remote from the door to 
hear Booth calling for Spangler, fixes it as 
being the same time, by saying that he heard 
Debonay repeat Booth’s call for Spangler; and 
Sleickman says it was when Booth came up 
with his horse to the back door that he saw him 
and heard him talk to Spangler. If Booth had 
previously, during the play, come up the alley 
to the back door with his horse, Mrs. Turner, 
Mrs. Anderson and John Miles, from their po- 
sitions adjacent to and overlooking that part 
of the paved alley, would certainly have seen 
or heard, and noticed him or the horse; and if 
Booth had entered the theater previously during 
the play, and stopped by the scenes to talk 
to Spangler, surely some one else, on that 
small, thronged stage, would have seen or heard 
him. It would have been, of itself, a trifling 
incident; but on the day following the assas- 
sination, when it was established that Booth 
was the murderer, I venture to say there was 
not a man or woman in the city of Washing- 
ton, who ever saw Booth, who did not recall 
when and where he or she saw the assassin 
last. And, therefore, I feel safe in asserting 
Q. Did you see Booth when he came there 
tvith his horse? 
A. No, sir; I did not see him. 
Q. Did you hear him call for Ned Spangler? 
A. No, sir; I heard Debonay calling Ned, 
that Booth wanted him. 
3. Mary Ann Turner (colored) says: 
Q. Did you know John Wilkes Booth? 
A. I knew him when I saw him. 
Q. Will you state what you saw of him on 
the afternoon of the 14th of April last ? 
A. That afternoon I saw him, I think, to the 
of my recollection, between three and four 
standing in the back door of Ford’s 
with a lady by his side; I did not take 
atlJ particular notice of him at that time, but I 
turned from the door, and I saw no more ot 
him until, to the best of my recollection, be- 
tween seven and eight, or near about eight, 
a clock that night, when he brought a horse up 
0 the back door, and opened the door, and 
for a man by the name of “Ned” three 
to the best of my recollection, not more 
than three times; this “Ned” came to him, 
and I heard him say to “Ned,” in a low voice, 
"Tell Maddox to come here.” I then saw 
Maddox come; he (Booth) said something in a 282 
THE CONSPIRACY TRIAL. 
that, had he rode up to the hack door and 
gone into the theater at any other time that 
night than the one time fixed by the concur- 
rent testimony of so many witnesses, we would 
hare learned it in this investigation ; for every 
step the villain took about the theater that 
night is recounted in the evidence before us. 
If, then, he was there but once, what cre- 
dence can be given to Sleickman’s evidence as 
to Booth s statement to Spangler and the reply? 
I claim that the evidence overthrows it. If 
the issue as to it were to be settled by a con- 
sideration only of Sleickman’s evidence with 
the flatly contradictory evidence of Debonay, I 
might reasonably claim an even balance of tes- 
timony, as the two witnesses were apparently 
equally credible. But Debonay’s evidence is 
consistent with, and supported by, the other 
evidence of the case, and Sleickman’s is not. 
For, if Sleickman’s statement be true, some 
other man, not disclosed by the proof, must 
have held Booth’s horse while this colloquy was 
going on in the theater. Mrs. Turner, in her 
Confused statement, says, in substance, that 
after Booth came up, Spangler first held the 
horse a few minutes, and from that time it was 
held by the same man who held him at the 
time of the assassination, to-wit, Burroughs, 
whom she mistook for Maddox, one of the wit- 
nesses for the prosecution. She testifies the 
horse was held all the time, and if any one 
else had held him, surely he would not have 
escaped the vigilant and incessant search of 
the Government. 
so as to allow free exit for the crowd who 
sprang on the stage to follow and catch the 
assassin, and himself run for water for the 
President? His whole conduct before and after 
the shot was fired shows that if that remark 
was in fact made to him by Booth, he was 
wholly ignorant of its imputed meaning. 
I here desire to call attention of the Court 
to a fact in the evidence which, to my mind, 
conclusively shows that if Booth did in fact say 
that to Spanglei’, and get that reply, still 
Spangler neither knew Booth’s criminal pur- 
pose nor was a party to its execution. That 
fact is, that Booth knocked “Peanuts” down as 
he took the horse from him, and fled. Now, I 
assert that if the evidence shows that Booth 
intended for Spangler, or assigned to him any 
part to perform in the conspiracy, it was to 
hold his horse in the alley at the back door, 
and nothing else whatever. That Spangler failed 
to do that, but stuck to his duties on the stage, 
is evidence drawn from his conduct that he was 
no party willing to aid and abet the crime. 
That Booth knocked the horse holder down is 
evidence equally conclusive from his conduct 
that Spangler was not intrusted with the 
secret of the crime to be committed, nor relied 
on to knowingly aid and abet it. For he, in 
all probability, thought it was Spangler, and 
not “Peanuts,” who held his horse. He had, 
left him with Spangler, who did not call “Pea- 
nuts” to hold him until Booth had passed under 
the stage and out the side entrance (Debonay), 
to return on the stage no more until fleeing 
from his pursuers. As Booth fled he could not 
have seen Spangler on the stage; and the night 
was so dark he did not distinguish n Peanuts” 
from Spanglei’, both being of near the same 
hight and frame. It was so dark that Mrs. 
Simms and Mrs. Turner both took “Peanuts” 
for Maddox—a man less like him than Spang- 
ler is—though he was but a few yai’ds off, 
holding the horse an hour. And sui’ely Booth, 
rushing from the glare of the stage, into the 
blinding darkness of that night, wild with ex- 
citement and passion, would not scrutinize the 
features of his horse boy. He knocked “Pea- 
nuts” over, supposing him to be Spangler, thus 
showing a fear that Spangler would pursue 
him, and thus, in the midst of his own ci’inie, 
giving us convincing evidence of Spangler’s 
innocence. 
But grant Booth did say to Spangler, “Ned, 
you will help me all you can, won’t you? ” and 
Ned replied, “Oh, yes,” all said in a loud 
tone, and in sight and hearing of Sleickman. 
If there were preceding incidents in prpof 
showing Spangler’s knowledge of Booth’s guilty 
purpose, this alleged colloquy might be regarded 
as a link in a chain of evidence against him. 
But of itself, unaccompanied with the slightest 
evidence or ground pf presumption of Spang- 
ler’s previous knowledge of Booth’s purpose, 
and followed (as we will see in this discussion 
of the evidence), by not the slightest act, or 
arrangement, or apparent intent of co-opera- 
tion in the crime, or the escape, it should, I 
think, be treated by the Court (if it be thought 
to have occurred), as on Spangler’s part noth- 
ing but the unwitting response of a drudge to 
a remark of one he looked up to as a superior, 
whom he was accustomed to serve, and of which 
he knew not the special intent. Had he known 
Booth’s purpose, and meant to aid his escape, 
would he not have got a substitute to shove 
the scenes, and been in the passage, or at the 
door, ready to help baffle the pursuers? Or 
would he not, at least, when he heard the pis- 
tol fired, have crossed to the passage and 
opened the door which Withers, and Ritterspack, 
and Stewart say was shut when Booth reached 
it? Is it possible he would have stood motion- 
less (as Ritterspack and James say he did), re- 
mote from the passage and the door, and thus 
leave Booth to the hazard of his flight, un- 
aided? Would he, as Debonay says he did, 
instead of following Booth to see him off, have 
shoved back the scene behind which he stood, 
The other item of evidence tending to show 
that Spangler knew of Booth’s purpose and 
was consenting, advising, or aiding to accom- 
plish it, is the testimony of Sergeant Jos. M- 
Dye, which I will now consider. He says he 
saw a roughly-dressed man standing on the 
J ' o w 
pavement, just outside the door of the theater, 
from twenty-five or thirty minutes past nine, 
till ten minutes past ten, by the time of the 
theater clock. That Booth frequently whis- 
pered to this man during that time, and that 
just as the call was made by Booth’s other and 
unknown companion, at ten minutes past ten, 
from the clock in the theater hall, Booth whis- 
pered to this roughly-dressed man and entered 
the theater. The roughly-dressed man was not 
seen to leave by the Sei’geant, who himself 
at that time left and went with a fi’iend to a. ARGUMENT OF THOMAS EWING, JR. 
283 
grocery around the corner, where in fifteen 
minutes, or less, news came that the President 
tvas shot. He could describe no article of the 
roughly-dressed man’s clothing, but a black 
slouch hat, thought him five feet eight or nine 
inches high, heavily built, and dressed in worn 
clothes. He recollects distinctly, and asserts 
most postively, that this man wore a heavy black 
Mustache. He did not recollect the color of his eyes, 
His hair, or any of his clothes, nor knew whether 
he wore an overcoat. He says (pointing to 
Spangler), “If that man had a mustache, it 
h'ould be lust the appearance of the face ex- 
actly.” 
It is fortunate for the accused that this wit- 
ness states with certainty three circumstances, 
by means of which the theory that this man 
mas Spangler has been completely over- 
thrown. 
I was in front, I think, to the best of my knowl- 
edge.' 
Q. All the time? 
A. No, sir; not all the time. I would walk 
in, and may be stay five or ten minutes, and 
then walk out again. 
Q. State whether or not you saw the prisoner, 
Spangler, at any time during that play, in front 
of the theater. 
A. I did not see him in front of the theater. 
We have not only this negative evidence of 
persons who were in front of the theater, or in 
the passage during the time named by Sergeant 
Dye, but we have also further negative evi- 
dence on the same point in the fact that Spang- 
ler is shown, by many witnesses, not to have 
been missed from his place that night, and 
that his duties on the stage were such as to re- 
quire his constant pi’esence at his post, and 
make an absence of three-quarters of an hour 
impossible, without marring the play and at- 
tracting attention of employees and actors to 
the fact of his absence. On this point John T. 
Ford, the proprietor of the theater, says: 
Q. State whether or not his duties were such 
as to require his presence upon the stage dur- 
ing the whole of the play. 
A. Strictly so. His absence for a moment 
might imperil the success of the play, and 
cause dissatisfaction to the audience. It is very 
important to the effect of a play that the scenery 
should be well attemded to in all its changes; 
and he is absolutely important there every mo- 
ment from the time the curtain rises until it 
falls. There are intervals, it is true, but he can 
not judge how long or how brief a scene may be. 
Q. What were his duties in the intervals be- 
tween the scenes ? 
1. He says (six times in the course of his 
evidence) that the man he saw had a mustache, 
and said also it was black and heavy. 
Miles, Sleickman, Burroughs, Maddox and 
Gifford, witnesses for the prosecution, who all 
saw Spangler during the play, said he wore no 
Mustache then, and they never saw him wear one. 
Maddox saw him in his place three or four 
minutes before the assassination, and then he 
none. Buckingham, Withers, and Fergu- 
son, witnesses for prosecution, and Goen- 
tber, Harry Ford, and others, for defense, who 
saw him daily, say they never saw him wear- 
Jag a mustache. If he had been in front of the 
theater that night for three-quarters of an hour, 
'Wearing a heavy black mustache, red-headed as 
he is, no one can doubt that many of the em- 
ployees and habitues of the theater who knew 
him would have noticed his grotesque disguise, 
and having their attention drawn to the sub- 
ject by the daily publication of testimony on 
Phis point, would have offered themselves as 
witnesses against him. 
2. Sergeant Dye also says, this man re- 
gained on the pavement just at the front en- 
hance of the theater constantly from twenty- 
five or thirty minutes past nine until ten min- 
utes past ten by the theater clock, including a 
Part of the second act, the whole interval be- 
tween the second and third acts, and that part 
the third act before ten minutes past ten— 
he speaks of the “rush” coming down to 
H'ink after he had been there some time, and 
some time before he left. 
If the man had been Spangler, Buckingham, 
the door-keeper, who was at the ticket win- 
dow all the evening, would in all probability 
have noticed him; or Maddox, who was in front 
hf and in the ticket office during the evening, 
cut neither saw him. During all the interval 
between the acts, before he held Booth’s horse, 
~)hrroughs (Peanuts) was in front of the thea- 
■fhi but did not see him. Sleickman was in 
front ten or fifteen minutes belore the close of 
he second act, and he did not see him there; 
hordid Debonay, who was on the pavement front 
five minutes before the assassination. 
Gifford, on cross-examination, says : 
Q- You were in front of the theater during 
he performance of the second act? 
fr- During the performance of the second act 
A. To be prepared for the next change; to 
be ready at his scene; to remain on the side 
where the stage carpenter had assigned him as 
his post of duty. Emergencies often arise 
during an act that require extra service of a 
stage hand. 
But, though the negative evidence above re- 
ferred to would, in my opinion, be quite suffi- 
cient to relieve Spangler of the suspicion of be- 
ing the person seen by Sergeant Dye, fortunately 
an alibi is shown conclusively by the concurrent 
testimony of many witnesses for the prosecu- 
tion and the defense, which testimony shows, 
beyond all doubt, that he was not only not in 
front ot the theater in consultation with Booth, 
but was, throughout the play, until the fatal 
shot, at his post on the side opposite and most 
remote from the passage and the door by which 
the murderer escaped—on that part of the 
stage where, from his position, he would be 
least able to aid the villain’s flight. 
John Miles (colored) says he saw Booth ride 
up to the back door about three-quarters of an 
hour before the President was shot, and heard 
him call Spangler three times: and that he 
looked doAvn from the “flies,” and saw Spang- 
gler in his place, shoving a scene across on the 
second groove. Debonay says; 
When Booth rode up he came to the alley door 
and called for Spangler; he called me first; but 
whether he came on a horse or not, I do not 
know. He said to me, “Tell Spangler to come 284 
THE CONSPIRACY TRIAL. 
to the door and hold my horse.” I did not see 
a horse, though. 
Q. What did you do? 
A. I went over to where Mr. Spangler was, 
on the left hand side, at his post, and called 
him from his post. Said I, “Mr. Booth wants 
you to hold his horse.” He then went to the 
door, went outside, and was there about a 
minute, and Mr. Booth came in. He asked me 
if he could get across the stage. I told him no, 
the dairy scene was on; that he would have to 
go under the stage, and come upon the other 
side. About the time that he got upon the other 
side, Spangler called to me, “ Tell Peanut John 
to come here and hold this horse; I have not 
time; Mr Gifford is out in the front of the the- 
ater, and all the responsibility of the scenes lies 
on me. ” I went on the other side and called 
John, and John went there and held the horse, and 
Spangler came in and returned to his post again. 
Q. Did you see Spangler any more that 
evening ? 
A. I did, three or four times that evening. 
Q. Where? 
A. I think that was about three or four 
minutes; it could not have been longer than 
that before, but I will not say positively. 
Ritterspack says: 
Q. Where were you standing when you heard 
the pistol fired? 
A. In the center of the stage. 
Q. Where was Spangler then ? 
A. He was at the same place, just about 
ready to shove off the scenes, and I was stand- 
ing there and listening to the play. 
Q. Which was nearest the door, you or 
Spangler? 
A. I was. 
Henry M. James says: 
Q. State your position and the position of 
Edward Spangler, if you know what it was, at 
that time. 
A. I was standing ready to draw olf the flat, 
and Mr. Spangler was standing opposite to 
me on the stage at the time it happened. 
Q. You heard the shot fired? 
A. Yes, sir. 
Q. From the position you were in, you could 
not then see the President’s box ? 
A. On the stage. 
Q. In his proper position? 
A. Yes, sir. 
Q. At what time during the play? 
A. I could not say, for certain, what times. 
It was between and during the acts. 
Q. Did you see him about the time the shot 
was fired ? 
A. I could not. There was a flat between me 
and the President. 
Q. From the position Spangler was in, could 
he see it? 
A. No sir. 
A. I saw him about two minutes before that, 
I think. 
Q. Could he see the front part of the stage 
on which Booth jumped? 
A. No sir. He was standing behind the 
scene. 
Q. Where was he then? 
A. He was on the same side I was on—the 
Q. On which side of the center of the stage? 
On the side toward that on which the President’s 
box was? 
same side as the President’s box. 
Maddox says: 
Q. Where was Spangler’s position on the 
stage? 
A. His position was on the left-hand side of 
the stage. 
Q. The same side that the President’s box 
was on? 
A. Mr. Spangler was on the side toward 
the President’s box. 
Q. Had you seen him previously during the 
play? 
A. I had often seen him every time there 
was anything to do there; I did not notice him 
any other time, only when the scenes had to be 
changed I saw him there at his post. 
On cross-examination, Gifford says : 
Q. State at what times during the perform- 
ance you were on the stage that night? 
A. I was on the stage until the curtain went 
up at each act. When the curtain was down I 
would go around on to the stage, to see that 
everything was right, and then go out again- 
Q. State at what times during that evening; 
when you came on the stage between the acts, 
you saw Mr. Spangler. 
A. I could not state the time. I should 
judge the last time I saw him was at about 
half-past nine o’clock. 
Q. State wdietheryou saw him each time T°u 
came on the stage. A. Yes, sir; I saw him 
each time. 
Q. He was your subordinate, I believe • 
A. Yes, sir. Thus we have Miles and De' 
bonay, who saw him at his place when Booth 
called for him; Debonay, who saw him in hig 
proper place three or four times after that, before 
the assassination, “between and during the 
scenes; ” Maddox, who saw him “pretty nearly 
every scene; ” Ritterspack and James, who saW 
him “ where he ought to be to do the work hehat 
A. Yes, sir; he has always been on that side 
since I have been about the theater. 
Q. Did you see Spangler that night? 
A. Yes, sir, I did. 
Q. State at what times you saw him, and 
where he was during the performance. 
A. I saw him pretty nearly every scene. If 
he had not been there I should certainly have 
missed him. I do not recollect of seeing him 
away from the flats at all. He may have been 
away, but I can not saj^. 
Q. Where were you at the moment the Pres- 
ident was assassinated? 
A. I was in the first entrance, left hand. 
Q. That is the side the President’s box is on ? 
A. Yes, sir. 
Q. Did you see Spangler very shortly before 
that? 
A. Yes, sir, I think I did. I saw him stand- 
ing at his wing when I crossed the stage with 
the will, while the second scene of the third act 
was on. 
Q. You saw him in his place, then ? 
A. Yes, sir. 
Q. How long was that before the President 
was assassinated? ARGUMENT OF THOMAS EWING, JR. 
285 
to do, behind the scenes ready to shove his flat, at 
tbe moment the shot was fired;” James, who 
during the play, “had often seen him, every 
Cme there was anything to do there; ” and 
Gilford, who was on the stage between each i 
act, and each time saw him subordinate there, 
once, twenty minutes before the assassination. 
If any member of this Court should be called 
°n two months hence to prove his presence here 
during any hour of this day’s session, he could 
hardly bring as much positive evidence, or 
toore or better negative evidence of the fact, 
than has been presented here to show that 
Spangler was on the stage throughout the hour 
Preceding the assassination. Either the pos- 
ttive or the negative evidence on this point 
taken alone shows beyond a possibility of doubt 
that it was not Spangler whom Sergeant Dye 
saw in front of the theater from half-past nine 
till ten minutes past ten that night. 
I do not mean at all to discredit Sergeant 
Bye’s testimony as to seeing a man in front of 
the theater that night in consultation with 
Booth, or as to that man resembling Spangler. 
Greenawalt says a man, who called himself 
Thomas, came to the Pennsylvania House at 
two o’clock that night and stayed until morning, 
resembled Spangler “somewhat; ” but that 
he had darker hair, cut down half over his ears, 
of heavy body, wore a black heavy mus- 
tache, and “his beard came front, and was cut 
down from the mustache up ; but it was either 
that way or whiskers all round. I know he 
had whiskers in front. ”He describes him too, 
as wearing a black, worn slouch hat, such as 
Sergeant Dye describes the man in consulta- 
tion with Booth to have had, being the only 
artlcle of clothing either Greenawalt or Dyede- 
-Bcribcs. It is highly probable both saw the 
sanie man. That Spangler is not the man 
Greenawalt saw is certain from his description 
°f his person, and also from the fact that 
Spangler slept in the carpenter shop adjoining 
the theater that night. (Garland.) 
I have thus presented to the Court all the 
evidence taken before it on both sides, which 
111 any way illustrates the acts done and words 
®Poken up to the moment of the assassination, 
having any relation to the accused. I will now 
Proceed to discuss the evidence as to his conduct 
hom that moment to his arrest, on the 17 th 
°f April. 
Colonel Stewart says that he pursued Booth 
through the passage which passes between the 
§reen and dressing rooms and the stage, and got 
twenty feet of the back door at the end of 
passage, when Booth dashed out, and 
he door slammed shut; that he reached the door 
|*ext after Booth, and opened it and rushed out; 
hat in the passage he passed several actors 
?nd actresses, who were greatly agitated; that 
lastantly after the door slammed shut he saw 
a man within three feet of the door, who 
®e6rned composed, and was turning from the 
d°or toward him; “that that man resembled 
“Pangler more than he did any of the other 
Prisoners; Spangler makes the impression of 
lhat man’s visage as I caught it as I was going 
Mong very rapidly.” 
Q- And you swear now simply to a mere im- 
pression, hardly a fixed opinion, as to his being 
the person? 
A. I do not undertake to swear positively 
that that person sitting there was the person 
I saw. I do say that I saw a person there, 
and I see no person among these prisoners who 
calls to mind the appearance of that person ex- 
cept the one I have indicated, and that one, lam 
told, is Mr. Spangler. 
Q. I wish to know how strongly you are of 
opinion, or under the impression, that that was 
probably the man, or whether you are under 
that impression? 
A. I am decided in my opinion that the 
person now referred to resembles the person I 
saw there. 
Colonel Stewart further says that he thinks 
the person had some beard, but not heavy enough 
to attract marked attention, and was in a 
position where he might have shut the door. 
But the Court will recollect that the person de- 
scribed was turning in just the opposite way 
from that in which a man’s body would nat- 
urally be turned by the act of slamming the 
door. 
This testimony is of not much value on this 
point: 
1. Because Captain Stewart does not recog- 
nize the prisoner as the man, and because he 
describes the person he saw as having beard, 
which the prisoner had not. 
2. Because he could not, in the nature of 
things, recognize the stranger he so hurriedly 
saw, were he to see him again. 
8. Because Ritterspack says he saw Booth 
open the door and shut it, and that he was 
then the first who opened the door after Booth, 
and he left it open, and that a very large man 
(Capt. Stewart) followed him. The evidence of 
Ritterspack, on this point, is strengthened by 
that Of Ferguson and Smith, who testify that 
Booth ran off the stage before Stewart got on it, 
and that Stewart turned and looked up at the 
President’s box before pursuing Booth. 
4. Because Ritterspack says Spangler was 
on the other side of the stage, near the center, 
behind the scenes, when the shot was fired, 
and did not go to the door, James’ testimony 
strengthens Ritterspack’s on this point. Both 
were in view of Spangler when the shot was 
fired, and between him and the door, and he 
could not have gone to it without their seeing 
him go. Neither saw him move. 
2. Ritterspack says when the” shot was fired 
Spangler was standing behind the scene wait- 
ing the time to shove in, and he was between 
him and the door, listening to the play. That 
he could not tell what had happened, for neither 
he nor Spangler could see the President’s box, 
nor the front of the stage, where they stood. 
That some cried “ Stop that man 1 ” That after he 
rushed out and returned, Spangler was stand- 
ing in the same place, and “looked the same as 
if he was crying, a kind of scared.” He then 
hit me on the face with the back of his hand, 
and he said, “ Don’t say which way he went. ” 1 
asked him what he meant by slapping me in 
the mouth, and he said, “For God’s sake, 
thus up, and that was the last he said.” 
Gifford, to whom Ritterspack says he told 286 
THE CONSPIRACY TRIAL. 
this at Carroll Prison, says he only told him he 
had forgotten to tell something in his first ex- 
amination, and that he (Gifford) certainly would 
have recollected this had it been told him. 
Garland, to whom Ritterspack said he told it on 
the night of the assassination, says he told 
him that he said to Spangler, as Booth ran along 
the passage, “That’s Mr. Booth, ” and Spangler- 
slapped him and said, “You don’t know who it 
is—it may be Mr. Booth, or it may be some 
one else.” Lamb, to whom, Ritterspack said he 
told it next day, says he told him substantially 
the same he told Garland the night before, and 
says that Ritterspack was grumbling at Spang- 
ler for slapping him. All three of these wit- 
nesses assert most positively that Ritterspack 
did not represent Spangler as saying, “ Don’t 
say which way he went.” 
At the time Ritterspack told these gentlemen 
of the conversation with Spangler, the theater 
had been taken possession of by the military 
authorities, and general suspicion directed to 
the employees, under the belief that Booth had 
accomplices among them. Each employee was 
doubtless scanning the reported conduct of his 
fellows, and especially that of Burroughs and 
Spangler, Booth’s horse holders. Ritterspack’s 
statement was one they would be likely to 
weigh and recollect. If Garland and Lamb 
recollect aright what Ritterspack told them, 
there can be no question but that his statement 
of the conversation, made on the witness stand, 
is incorrect. For if the conversation did occur 
between him and the accused, he would recol- 
lect and tell it more exactly that night and 
next day than he would after undergoing a 
month’s confinement, and alarm, and detective 
discipline, in Carroll Prison. 
The evidence of Dabonay, in his second ex- 
amination, tends strongly to show that Spang- 
ler had shoved his scene back and got on the 
front of the stage before Ritterspack could have 
returned and held the reported conversation. 
He says: 
Q. State to the Court again where you were 
standing when the shot was fired in the thea- 
ter on the night of the 14th of April. 
A. I was standing on the left-hand side, first 
entrance. 
rest. There was a cry for water, and I started 
to the green-room, and he started the same 
way. About half a dozen of us went to get 
some water to carry it to the private box. 
Q. How far did Spangler go after the water? 
Did he go into the green-room ? 
A. We all went into the green-room; about 
half a dozen of us went into the green-room. 
By that time the stage was full of people. 
Maddox says he saw Booth just as he left 
the stage, and that he then “ run on the stage 
and heard the call for water.” 
This evidence of Debonay and Maddox, and 
the statements of Garland and Lamb, and the 
strong improbability of Spangler’s standing* 
still amid the great commotion, render it nearly 
certain that Spangler was not in his place be- 
hind the scene when Ritterspack returned; 
and that if anything was said between them* 
it was as stated by Ritterspack to Garland and 
Lamb. If that be so, of what significance were 
Spangler’s acts or words? He was not in posi- 
tion to see Booth when he jumped on the stage, and 
and ran off, for the scene was between them. He 
heard nothing but the shot, followed by the 
cry, “ Stop that man,” as the assassin, bending 
forward, hatless, fled through the bewildered 
crowd in the narrow passage opposite. HoW 
would he know it was Booth instantly, when 
Booth’s name had not then been called (Ritter- 
spack) and when men who knew Booth well, 
and saw him leap on the stage and face the 
audience in the glare of the foot-lights, shout- 
ing “Sic Semper Tyrannis /” before he fled, did 
not recognize him ? (Gobright) And if he did 
recognize Booth, how could he know what had 
been done ? And what could be more natural 
or apparently innocent than his telling Ritter- 
spack, who cried, “That’s Mr. Booth I “Shut 
up, you don’t know who it is. It may be Mr- 
Booth and may be some one else 1” 
But even if Ritterspack’s last statement be 
true (which I think it clearly is not), and 
Spangler was still standing behind the scene, 
and said, “ Shut up, don’t say which way he 
went!” “For God’s sake, shut up,” he only 
knew that Booth had fled, and was being pur- 
sued. He had seen nothing, and was stunned 
by the clamor and excitement. He, probably, 
did not think that Booth had committed crime, 
or know what crime had been committed, or 
how Booth was connected in it. It was a stu- 
pid, ineffective exclamation—for Ritterspack 
was not then pursuing Booth, but dozens of 
others were. 
But whatever view we take of Ritterspack 3 
evidence, Captain Stewart’s faint recognition of 
Spangler as the man he met at the door, fall 3 
to the ground, for Withers, who knows Spang- 
ler well, and saw Booth open and shut the 
door, did not sec Spangler there, and front 
Spangler’s position when the shot was fired, 
as sworn to by both Ritterspack and James, 
who were both between him and the door, and 
who did not notice him move, it is certain he 
was not at the door when Stewart ran down 
the passage. 
3. After the assassination, John Miles (col- 
ored) came down from the flies, three storie3 
above the stage, and met Spangler and severa 
Q. You mean the side the President’s box 
was on? 
A. Yes, sir. 
Q. How long was it after you saw Mr. Stew- 
art run out after Booth, before you saw the 
accused, Edward Spangler; and where did you 
see him, and what did you see him do? 
A. The first time I saw him he was moving 
his scene, I think. They shoved the scene back 
to give the whole of the stage to the people who 
came on. I do not know who assisted him. 
Q. How long was that after Mr. Stewart had 
left the stage? 
A. I guess it was about a minute and a-half, 
or two minutes. 
Q. Was it long enough for Mr. Stewart to 
have got out of the back door ? 
A. I think he had just about time to get to the 
hack door before they shoved the scenes. 
Q. What did Spangler do then ? 
A. He came in front on the stage, with the ARGUMENT OF THOMAS EWING, JR. 
287 
others at the back door, “ and I asked him 
who it was that held the horse, and he told me 
to 1 hush, not to say nothing,’ and I did not say 
anything more, though I knew who it was, be- 
cause I saw the boy (Peanuts) holding the 
horse. He said ‘hush don’t say anything to 
me,’ or ‘hush don’t say anything about it.’” 
Mary Jane Anderson (colored) says that a 
short time after Booth had gone, she went to the 
door of the theater, where some people were 
standing, and said to Mr. Spangler-, “That gen- 
tleman (Booth) called you, and he said ‘no he 
did not— he did not call me, ’ and I said ‘ he 
did call you, ’ and I kept on saying so. With 
that he walked down the alley.” It was prob- 
ably not fear of the authorities, but of the 
infuriated people, which led Spangler to this 
effort to conceal the fact that Booth called him, 
and that he took the horse. It is as consistent 
with the theory of his innocence as of his guilt, 
and therefore amounts to nothing. 
4. Garland says Spangler usually slept in 
the theater—that on Friday night he slept in 
the carpenter shop, which is part of the thea- 
ter building. Lamb says he was in the theater 
all day Saturday, and saw Spangler there 
through the day. Car-land says Spangler slept 
in his room Saturday night, adjoining the thea- 
ter, saying there was talk of burning the thea- 
ter, and he was “ afraid to stay in it alone, as 
he was a heavy sleeper;” and that he was ar- 
rested there that night and discharged Sunday 
morning. Sunday afternoon he saw him again, 
near the theater, and went with him visiting 
some friends; and thei-e, hearing that he was 
to be arrested again, he (Spangler) went to the 
Detective Police office, and learned it was not so. 
During this time he had no money. He was 
arrested Monday, and up to that time was at 
his meals, as usual, at a boarding house where 
he had taken them for five or six months 
(Boigi, Goenther), and where his carpet-sack 
remained, with the rope in it. During these 
three days and nights there is not a word or 
act of Spangler’s shown in evidence which 
does not indicate a consciousness of innocence. 
I also proposed to show that from its con- 
struction an escape could be more readily made 
from the private boxes of Ford’s Theater, than 
from those of the other principal theaters here; 
but the Judge Advocate again objected, and his 
objection was sustained. 
It is fit I should advert to these rulings of the 
Court, to show it that if Chester’s evidence is 
without explanation, it is so by reason of its 
own rulings. Ido not feel, however, that, as it 
stands, that evidence is of weight against the 
accused. It is rather in his favor, for the only 
thing Chester said Booth wanted him to do is a 
thing which Spangler could easily have done, 
without of itself attracting suspicion, and 
which would have greatly aided Booth’s es- 
cape, but which Booth did for himself—open- 
ing the back door after the shot w-as fired. 
It has been generally thought that Booth 
could not have accomplished the crime and 
then escape without one or more accomplices 
employed about the theater. I feel safe in say- 
ing not only that it does not appear he had one, 
but also that it does appear he did not need one. 
1. Booth was an actor of some distinction, 
who had played at Ford’s, and had, through 
professional courtesy, as well as his engaging 
manners, free access to the theater at all hours 
and by every entrance, when it was open. He 
had, therefore, abundant opportunities to make 
his preparations about the President’s box, un- 
observed and unaided. 
2. The leap from the box needed no rehearsal. 
It is one which any man of good strength and 
action could make with safety. Had it not 
been—apparently through a providence of God 
—that the villain’s spur caught in the folds of 
one of our country’s battle flags, which adorned 
the box, he would have made the leap with ease. 
John T. Ford says: 
Q. State to the Court whether, from your 
knowledge of Booth, the leap from the box upon 
the stage would be a difficult one. 
A. By no means, I think. He excelled in 
everything of that kind. He had a reputa- 
tion for being a great gymnast. He introduced, 
in some Shakesperian plays, some of the most 
extraordinary and outrageous leaps, deemed so 
by the critics and condemned by the press at 
the time. 
There are several circumstances and general 
considerations I will now present to the Court 
Remotely affecting the case of the accused, and 
'with it the question of the probable complicity 
pf any of the men connected with the theater 
in the horrid crime of the conspiracy. 
It will be recollected that Chester, the New 
York actor, says that in the latter part of De- 
cember, or early in January, Booth solicited 
Mm to engage in a scheme to capture the Presi- 
dent, and said he proposed to do it at Ford’s 
Theater, which the President frequently visited, 
and that he wanted him to open the back door 
at a preconcerted signal, “and that it must be 
s°me one connected or acquainted with that 
who could take part in it.” I offered to 
show that by the “ some one connected or famil- 
*ar with Ford’s Theater,” was meant Chester 
himself, by showing Booth’s repeated solicita- 
tions to Ford, in January and February, to 
employ that actor, but the Judge Advocate ob- 
jected, and the objection was sustained. That 
however, is clearly deducible from 
Chester’s own statement. 
3. The passage leading to the alley door, by 
which Booth escaped, was always kept clear of 
furniture and other obstructions during the 
play. Hess, Gifford, Maddox, James, Ford and 
others testify, most emphatically, to that. C. 
D. Hess, the manager of Grover’s Theater, a 
rival of Ford’s, says: 
Q. State whether or not it is customary in 
theaters to keep the passage-way between the 
scenes and the green-room and the dressing 
room clear. 
A. Yes, sir; that is a point of excellence in 
a stage carpenter. If he keeps a clean stage 
and his scenes well put away, the passage as 
clear as possible, we look upon him as a care- 
ful man. 
And John T. Ford says: 
Q. Then I understand the prisoner, Spangler, 
would not be charged with the duty of keeping 
the passage-way in order? 288 
THE CONSPIRACY TRIAL. 
A. That was no duty of his, unless specially 
assigned to him by the stage carpenter; he was 
subordinate entirely to tho stage carpenter. 
Q. Now state whether or not that passage- 
way is generally obstructed in any way. 
A. It should never be obstructed. My posi- 
tive orders are to keep it always clear and in 
the best order. It is the passage-way used by 
all the parties coming from the dressing rooms. 
Where a play was performed like the American 
Cousin, the ladies were in full dress, and it was 
absolutely necessary that there should be no 
obstruction there, in order that the play should 
be properly performed. Coming from the dress- 
ing rooms and the green-room of the theater, 
every one had to use that passage. 
I have no doubt that Booth, knowing the 
passage would be clear, was confident that, 
with his bowie-knife drawn, he would meet 
with no resistance from the unarmed men and 
women who might flock from the green-room in 
wonder and amazement at the shot and shouts. 
If so, he would not have wanted or provided 
any help, except some one to hold his horse, 
which “Peanuts” did, and some one to open the 
door for him and shut it on his pursuers, which 
nobody did but himself. 
4. C. D. Hess, the manager of Grover’s Thea- 
ter, says; 
him yes, I would illuminate to a certain extent 
that night, but that the next night would be my 
great night of the illumination, that being the 
celebration of the fall of Sumter. He asked 
me the question—my impression is, his words 
were, “Ho you intend,” or “Are you going to 
invite the President?” I think my reply was, 
“Yes, that reminds me I must send that invita- 
tion.” I had it in my mind for several days to 
invite the Presidential party down on that 
night—on the night of the 14th. 
Q. Was there anything marked in Booth’s 
manner in making the inquiry of you? 
A. It struck me as rather peculiar, his enter- 
ing in the manner that he did; he must have 
observed that we were busy, and it was not 
usual for him to come in and take a seat unless 
he was invited. He did upon that occasion, and 
made such a point of it that we were both con- 
siderably surprised. He pushed the matter so 
far that I got up and put the manuscript away 
and entered into conversation with him. 
It is probable from this that Booth would 
have attempted the assassination of the Presi- 
dent in Grover’s Theater, had he gone there in- 
stead of to Ford’s on that fatal night; and it 
tends to show that he had no accomplices at 
either theater. 
I have now presented to the Court every point 
in the evidence which seems to me may, by any 
possibility, be relied on as indicating guilty 
knowledge of or participation by Spangler in 
the conspiracy, or any of its crimes. From 
the natural partiality of a counsel to his client, 
I may not have noticed all that bears against 
him, or presented it in its true light, but I have 
earnestly sought, in this discussion, to show all 
that is of weight for or against him, extenu- 
ating nothing. I can see in the evidence no 
ground for such suspicion as would, in the 
civil courts, lead a grand jury to present him 
for trial, and believe that, so far from his 
guilt being established beyond a reasonable 
doubt, a review of the evidence will leave, in 
few candid minds, a reasonable doubt'of hiß 
innocence. 
Q. State whether you were in the habit of 
seeing John Wilkes Booth during the last sea- 
son before the assassination of the President. 
A. Yes, sir, very frequently. 
Q. State whether he ever made any inquiry 
of you in regard to the President’s attending 
your theater. 
A. He did make such an inquiry. 
Q. When? 
A. On the day before the assassination. 
Q. State the circumstances under which the 
inquiry was made. 
A. He came into the office some time during 
the afternoon, I think, of Thursday, interrupted 
me and the prompter of the theater in reading 
a manuscript, seated himself in a chair, and 
entered into conversation on the subject of the 
illumination. There was to be a general illu- 
mination of the city on Thursday night, and he 
asked me if I intended to illuminate. I told 
EDWARD SPANGLER. 
By his Counsel. -A_ IR, G- XJ HVi; E IST T 
IN DEFENSE OF MRS. MARY E. SURRATT, 
BY 
FREDERICK A. AIKEK, ESQ. 
Of Counsel for Mrs. Surratt. 
r' President and Gentlemen of the Commission ; 
is r awYer as as I*l® soldier, there 
an equally pleasant duty—an equally im- 
freratiye command. That duty is to shelter 
°m injustice and wrong the innocent, to pro- 
ai®t .It® weak from oppression, and to rally at 
, times and on all occasions, when necessity 
®Qiands it, to the special defense of those 
haOrU na*'ure> custom, or circumstance may 
i Ve placed in dependence upon our strength, 
a°r and cherishing regard. That command 
aun.na^eS and reac^es class from the same 
fr a°ritative and omnipotent source. It comes 
ija 111 a Superior, whose right to command none 
thi C question, and none dare to disobey. In 
b’H C,° there is nothing of that lex talionis 
to Vi nearlY wo thousand years ago nailed 
cross its Divine Author, 
therefore, aU things whatsoever ye would 
ti,e 111611 should do to you, do ye even so unto 
q i for this is the law and the prophets.” 
filled has not only Siven us Hfc, hut He has 
des- world with everything to make life 
and when we sit down to determine 
all(1tahing away of that which we did not give, 
st . 'vhich, when once taken, we can not re- 
ta0 e> tr® consider a subject the most solemn and 
aftcl ?ntous within the range of human thought 
p human action. 
impressed with the innocence of 
caseC • nt’ we enter upon this last duty in her 
Wlth the heartfelt prayer that her honor- 
havi judges may enjoy the satisfaction of not 
"S a single doubt left on their minds in 
ki01l lnS her an acquittal, either as to the testi- 
Cqjj affectingher, or by the surrounding cir- 
lances of the case. 
pres e hrst point that naturally arises in the 
lhat n^at,lon of the defense of our client, is 
concerns the plea that has been 
tfy i to the jurisdiction of this Commission to 
aky P^ea whlch by no means implies 
iftten. lnS against the intelligence, fairness, or 
of the brilliant and distinguished 
**tei>eiS who compose the Court, but which 
trip, y touches the question of the right of this 
under the authority by which it is 
ehend branch of her case is left to 
V upon the argument already submitted 
7'lenlue Seni?r counsel, the grande decus colu- 
e °f his profession, and which is exhaust- 
ive of the subject on which it treats. There- 
fore, in proceeding to the discussion of the 
merits of the case against her, the jurisdiction 
of the Court, for the sake of argument, may be 
taken as conceded. 
But, if it be granted that the jurisdiction is 
complete, the next preliminary inquiry natu- 
rally is as to the principles of evidence by 
which the great mass of accumulated facts is 
to be analyzed and weighed in the scales of 
justice and made to bias the minds of her 
judges; and it may be here laid down as a 
concessum in the case that we are here in this 
forum, constrained and concluded by the same 
process, in this regard, that would bind and 
control us in any other Court of civil origin, 
having jurisdiction over a crime such as is 
here charged. For it is asserted in all the 
books that courts-martial must proceed, so far 
as the acceptance and the analysis of evidence 
is concerned, upon precisely those reasonable 
rules of evidence which time and experience, 
ah aniico, surviving many ages of judicial wis- 
dom, have unalterably fixed as unerring guides 
in the administration of the criminal law. 
Upon this conceded proposition it is unneces- 
sary to consume time by the multiplication of 
references. We are content with two brief 
citations from works of acknowledged author- 
ity. 
In Greenleaf it is laid down, uthat courts- 
martial are bound, in general, to observe the 
rules of the law of evidence by which the 
courts of ciiminal jurisdiction are governed.” 
3 Greenleaf sec. 487. 
This covers all the great general principles of 
evidence, the points of difierence being wholly 
as to minor matters. 
And it is also affirmed in Benet, “ that it 
has been laid down as an indisputable princi- 
ple, that whenever a legislative act erects a 
new jurisdiction, without prescribing any par- 
ticular rules of evidence to it, the common 
law will supply its own rules, from which it 
will not allow such newly-erected Court to 
depart. The rules of evidence, then, that ob- 
tain in the criminal courts of the country, 
must be the guides for the courts-martial; the 
end sought for being the truth, these rules 
laid down for the attainment of that end, must 
be intrinsically the same in both cases. These 
rules constitute the law of evidence, and in- 
289 THE CONSPIRACY TRIAL. 
volve the quality, admissibility, and effect of 
evidence and its application to the purposes 
of truth.” Benet, pp. 226, 227. 
Therefore, all the facts that tend against the 
accused, and all those that make for her, are 
to be weighed and are to operate upon her con- 
viction or acquittal precisely as they would in 
a court of law. If they present a case such 
as would there convict her, she may be found 
guilty here; and if, on the other hand, the 
rules of law upon these facts would raise any 
presumption or create any doubt, or force any 
conclusions that would acquit her in a court 
of law, then she must be discharged, upon the 
same principles, by this Commission. This is 
a point which, in our judgment, we can not too 
strongly impress upon the minds of her judges. 
The extraordinary character of the crime; 
the assassination that removed from us the 
President of the United States, makes it most 
desirable that the findings of this tribunal 
shall be so well founded in reason as to satisfy 
and secure public confidence and approval; 
for many of the most material objects of this 
prosecution, and some of the most important 
ends of justice, will be defeated and frustrated 
if convictions or acquittals, and more espe- 
cially the former, shall be adjudged upon 
grounds that are notoriously insufficient. 
Such a course of action would have a ten- 
dency to draw sympathy and support to the 
parties thus adjudged guilty, and would rob 
the result of this investigation of the whole- 
some support of professional and public opin- 
ion. The jurisdiction of the Commission, for 
example, is a matter that has already provoked 
considerable criticism and much warm disap- 
proval; but in the case of persons clearly found 
to be guilty, the public mind would easily over- 
look any doubts that might exist as to the 
regularity of the Court in the just sentence 
that would overtake acknowledged criminals. 
Thus, if Booth himself and a party of men 
clearly proved, by ocular evidence or confes- 
sion, to have aided him, were here tried and con- 
demned, and, as a consequence, executed, not 
much stress, we think, would be laid by many 
upon the irregularity of the mode by which 
they should reach that just death which all 
good citizens would affirm to be their deserts. 
But the case is far different when it affects per- 
sons who are only suspected, or against whom 
the evidence is weak and imperfect; for if citi- 
zens may be arraigned and convicted for so 
grievous an offense as this upon insufficient 
evidence, every one will feel his own personal 
safety involved, and the tendency would be to 
intensify public feeling against the whole pro- 
cess of the trial. It would be felt and argued 
that they had been condemned upon evidence 
that would not have convicted them in a civil 
court, and that they had been deprived, there- 
fore, of the advantages which they would have 
had for their defense. Reproach and con- 
tumely upon the Government would be the 
natural result, and the first occasion would 
arise in all our history for such demonstrations 
as would be sure to follow the condemnation of 
mere citizens, and particularly of a woman, 
upon evidence on which an acquittal would fol- 
low in a civil court. It is, therefore, not only 
a matter of the highest concern to the accused 
themselves as a question of personal and pri- 
vate right, but also of great importance upon 
considerations of general public utility and 
policy, that the results of this trial, as affecting 
each of the accused, among them Mrs. Surratt, 
shall be rigidly held within the bounds and 
limitations that would control in the premises, 
if the parties were on trial in a civil court 
upon an indictment equivalent to the charges 
and specifications here. Conceding, as we have 
said, the jurisdiction for the purposes of this 
branch of tlie argument, we hold to the princi- 
ple first enunciated as the one great, all-import- 
ant, and controlling rule that is to guide the 
Commission in the findings they are now about 
to make. In order to apply this principle to 
the case of our client, we do not propose to 
range through the general rules of evidence 
with a view to seeing how they square with the 
facts as proven against her. In the examina- 
tion of the evidence in detail, many of these 
must from necessity be briefly alluded to ; but 
there is only one of them to which we propose 
in this place to advert specifically, and that 
the principle that may be justly said to lie at 
the foundation of all the criminal law—a prin- 
ciple so just, that it seems to have sprung fro*® 
the brain of Wisdom herself, and so undoubted 
and universal as to stand upon the recognition 
of all the times and all the mighty intellects 
through and by which the common law hft9 
been built up. We allude, of course, to that 
principle which declares that “ every man l 9 
held to be innocent until he shall be proven 
guilty ”—a principle so natural that it 
fastened itself upon the common reason ot 
mankind, and been immcmorially adopted as fl 
cardinal doctrine in all courts of justi®6 
worthy of the name. It is by reason of thl 
great, underlying legal tenet that we are 
possession of the rule of law, administered b7 
all of the courts, which, in mere technical CK 
pression, may be termed “the presumption 0 
innocence in favor of the accused.” And it1 
from hence that we derive that further appli®3 
tion of the general principle, which has a* 
become a rule of law and of universal appli® 
tion wherever the common law is respect® 
(and with which we have more particularly 
deal), by which it is affirmed, in common blll 
guage, that in any prosecution for crime v 
ACCUSED MUST BE ACQUITTED WHERE THERE A* 
REASONABLE DOUBT OF HIS GUILT.” We hal'd;I 
think it necessary to adduce authorities for t'hj 
position before any tribunal. In a pl' 
court we certainly should waive the citatioIJJ 
for the principle as stated would be assu 0 
by any civil judge, and would, indeed, be 
starting point for any investigation whate)' 
Though a maxim so common and conceded, 
fortified by the authority of all the great li£ 
of the law. Before reference, however, is 0{ 
to them, we wish to impress upon the min” 
the Court another and important rule which 
shall have occasion to refer to: jg 
“ The evidence in support of a conspira 
generally circumstantialßussell onCrirnß>i 
2, § 698. ARGUMENT OF FREDERICK A. AIKEN. 
291 
In regard to circumstantial evidence, all the 
best and ablest writers, ancient and modern, 
agree in treating it as wholly inferior in 
Cogency, force, and effect, to direct evidence. 
And now for the rule which must guide the 
Jnry in all cases of reasonable doubt: 
‘‘ If evidence leave reasonable ground for 
noubt, the conclusion can not be morally cer- 
*ain, however great may be the preponderance 
°f probability in its favor.” Wills on Circum- 
sMntial Evidence. Law Library, vol. 41. 
“ The burden of proof in every criminal 
°a.se is on the Government to prove all the ma- 
larial allegations in the indictment; and if, on 
*ne whole evidence, the jury have a reasonable 
”°nbt whether the defendant is guilty of the 
®rnne charged, they are bound to acquit him. 
M the evidence leads to a reasonable doubt, 
hat doubt will avail in favor of the prisoner.” 
Greenleaf sec 34—Note. 
Perhaps one of the best and clearest defini- 
.lons of the meaning of a “reasonable doubt” 
Is found in an opinion given in Dr. Webster’s 
Casa by the learned and accurate Chief-Justice 
Massachusetts. He said: 
The evidence must establish the truth of 
he fact to a reasonable and moral certainty ; a 
c®rtainty that convinces and directs the under- 
fading, and satisfies the reason and judgment 
* those who are bound to act conscientiously 
JJPon it.” Commonwealth vs. Webster. 5 Cush.. 
820. 
. Par back in the early history of English 
htfisprudence we find that it was considered 
. fliost serious abuse of the common law “ that 
pStices and their officers, who kill people by 
ise judgment, be not destroyed as other mur- 
ders, which King Alfred to be done, 
ip0 caused forty-four justices in one year to 
p“ hanged for their false judgment. He hanged 
fbume because he judged Harpin to die, 
“ereas the jury were in doubt of their verdict; 
in doubtful cases we ought rather to save 
ari to condemn.” 
fhe spirit of the Roman law partook of the 
« hie care and caution in the condemnation of 
fe charged with crime. The maxim was : 
„ Latins est, impuniium relinqui fecinus nocentis, 
3 innocentem damnare'' 
fa jhat there may be no mistake concerning the 
by fhat this Commission is bound as a jury 
c these rules, the same as juries in civil 
we again quote from Benet: 
hia • *S *n the province of the Court (Court- 
biif lai) to decide all questions on the admissi- 
y of evidence. Whether there is any 
hut 6nCe *s a question f°r the Court as judges, 
tj0 whether the evidence is sufficient is a ques- 
ts r Court as jury to determine, and 
bjjj.rule applies to the admissibility of every 
jo °f evidence, written as well as oral.” 
•3- Pp. 225, 226. 
pije,ese citations may be indefinitely multi- 
way ’jJor this principle is as true in the law as 
cout acfc *n fhe exact sciences. It is not 
SUf5e-nded> indeed, that any degree of doubt is 
teagClent to acquit, but the doubt must be of a 
nature, so as to overset the moral 
of guilt; a mere possibility of inno- 
e not suffice, for, upon human testi- 
mony, no case is free from possible innocence. 
Even the most direct evidence of crime may 
possibly be mistaken. But the doubt required 
by the law must be so consonant with reason 
as, in analogous circumstances, would affect the 
action of a reasonable creature concerning his 
own affairs. We may make the nature of such a 
doubt clearer to the Court by alluding to a very 
common rule in the application of the general 
principle in certain cases, and the rule will 
readily appeal to the judgment of the Court as 
a remarkable and singularly beautiful example 
of the inexorable logic with which the law ap- 
plies its own unfailing reason. . 
Thus, in cases of conspiracy, and some others, 
where many persons are charged with joint 
crime, and where the evidence against most of 
them must, of necessity, be circumstantial, the 
plea of “reasonable doubt” becomes peculiarly 
valuable to the separate accused, and the mode 
in which it is held it can best be applied is the 
test whether the facts as proved, circumstantial, 
as supposed, can be made to consist just as 
reasonably with a theory that is essentially dif- 
ferent from the theory of guilt. 
If, therefore, in the development of the whole 
facts of a conspiracy, all the particular facts 
against a particular person can be taken apart 
and shown to support a reasonable theory that 
excludes the theory of guilt, it can not be de- 
nied that the moral proof of the latter is so 
shaken as to admit the rule concerning the pre- 
sumption of innocence. For surely no man 
should be made to suffer because certain facts 
are proved against him, which are consistent 
with guilt, when it can be shown that they are 
also, and more reasonably, consistent with in- 
nocence. And, as touching the conspiracy 
here charged, we suppose there arc hundreds 
of innocent persons, acquaintances of the 
actual assassin, against whom, on the social 
rule of “noscitur a sociis,” mercifully set aside 
in law, many facts might be elicited that would 
corroborate a suspicion of participation in his 
crime; but it. would be monstrous that they 
should suffer from that theory when the same 
facts are rationally explainable on other the- 
ories. 
The distinguished Assistant Judge Advocate, 
Mr. Bingham, who has brought to the aid of 
the prosecution, in this trial, such ready and 
trenchant astuteness in the law, has laid the 
following down as an invariable rule, and it 
will pass into the books as such; 
“A party who conspires to do a crime may 
approach the most upright man in the world, 
with whom he had been, before the criminality 
was known to the world, on terms of intimacy, 
and whose position in the world was such that he 
might he on terms of intimacy with reputable gentle- 
men. It is the misfortune of a man that is ap- 
proached in that way; it is not his crime, and it 
is not colorably his crime either.” 
This rule of construction, we humbly submit, 
in connection with the question of doubt, has a 
direct and most weighty bearing upon the case 
of our client. Some indication of the mode in 
which we propose to apply it may be properly 
stated here. Now, in all the evidence, there is 
not a shadow of direct and positive proof which 292 
THE CONSPIRACY TRIAL. 
connects Mrs. Surratt with a participation in 
this conspiracy alleged, or with any knowledge 
of it. Indeed, considering the active part she 
is charged with taking, and the natural com- 
municativeness of her sex, the case is most 
singularly and wonderfully barren of even cir- 
cumstantial facts concerning her. But all there 
is, is circumstantial. Nothing is proved against 
her, except some few detached facts and cir- 
cumstances, lying around the outer circle of 
the alleged conspiracy, and by no means neces- 
sarily connected with guilty intent or guilty 
knowledge. 
It becomes our duty to see; 
traitorous conspiracy aforesaid, and with intent 
to aid, abet and assist them in the execution 
thereof, and in escaping from justice after the 
murder of the said Abraham Lincoln, as afore- 
said.” 
The first striking fact proved is her acquaint- 
ance with J. Wilkes Booth—that he was an oc- 
casional visitor at her house. From the evidence, 
if it is to be relied on, it distinctly appears 
that this acquaintance commenced the latter 
part of last January, in the vicinage of three 
months only before the assassination of the 
President, and, with slight interruptions, f 
was continued down to the day of the assassi- 
nation of the President. Whether he was first 
invited to the house and introduced to the fam- 
ily by Weichmann, John H. Surratt, or some 
other person, the evidence does not disclose- 
When asked by the Judge Advocate “whom di 
he call to see,” the witness, Weichmann, re- 
sponded, “He generally called for Mr. Surratt--'- 
John H. Surratt—and, in the absence of Joh» 
H. Surratt, he would call for Mrs. Surratt.” 
Before calling the attention of the Commis- 
sion to the next evidence of importance 
Mrs. Surratt, we desire to refresh the recollec- 
tion of the Court as to the time and manner, 
and by whom, according to the testimony 0 
Lloyd, the carbines were first brought to his 
(Lloyd’s) house. 
From the official record the following 1 
taken; 
Q. Will you state whether or not, some n’ 
or six weeks before the assassination of the 
President, any, or all of these men, about whom 
I have inquired, came to your house? 
A. They were there. 
Q. All three together? 
A. Yes; John H. Surratt, Herold and Atz 
rodt were there together. i 
Q. What did they bring to your house, aD 
what did they do there? 
A. When they drove up there, in the m°r 
ing, John H. Surratt and Atzerodt came 
they went from my house, and went toward 
8., a post-office kept about five miles belo 
there. They had not been gone more than 1m 
an hour when they returned with Herold; th , 
the three were together—Herold, Surratt a 
1. What these facts are. 
2. The character of the evidence in support 
of them, and of the witnesses by whom they 
are said to be proven. And, 
3. Whether they are consistent with a rea- 
sonable theory by which guilt is excluded. 
We assume, of course, as a matter that does 
not require argument, that she has committed 
no crime at all, even if these facts be proved, 
unless there is the necessary express or implied 
criminal intent, for guilty knowledge and guilty 
intent are the constituent elements, the princi- 
ples of all crime. The intent and malice, too, 
in her case must be express, for the facts proved 
against her, taken in themselves, are entirely 
and perfectly innocent, and are not such as 
give rise to a necessary implication of malice. 
This will not be denied. Thus, when one com- 
mits a violent homicide, the law will presume 
thv requisite malice; but when one only de- 
livers a message, which is an innocent act in 
itself, the guilty knowledge, malice and intent, 
that are absolutely necessary to make it crim- 
inal, must be expressly proven before any 
criminal consequences can attach to it. And, 
to quote, “Knowledge and intent, when ma- 
terial, must be shown by the prosecutor.” 
Wharton's American Criminal Law, sec. 681. The 
intent to do a criminal act, as defined by 
Bouvier, implies and means a pre-conceived 
purpose and resolve, and determination to 
commit the crime alleged. To quote again: 
“But the intent or guilty knowledge must be 
brought directly home to the defendant.” Whar- 
ton s American Criminal Law, sec. 635. When an 
act, in itself indifferent, becomes criminal, if 
done with a particular intent, then the intent 
must be proved and found.” 3 Greenleaf sec. 
Atzerodt. 
Q. What did they bring to your house? 
A. I saw nothing until they all three 
into the bar-room. I noticed one of the b 
gies—the one I supposed Herold was 
went down in—standing at the front gate. 
three of them, when they came into the 
room, drank, I think, and then John 
called me into the front parlor, and on the s 
were two carbines, with ammmunition. I 1 
he told me they were carbines. 
Q. Anything beside the carbines and 
munition ? vey- 
A. There was a rope and also a xnon 
wrench. 
In the light of these principles, let us ex- 
amine the evidence as it affects Mrs. Surratt. 
1. What are the acts she has done? The speci- 
fication against her, in the general charge, is as 
follows: 
“And in further prosecution of the said con- 
spiracy, Mary E. Surratt did, at Washington 
city, and within the military department and 
military lines aforesaid, on or before the 6th 
day of March, A. D. 1865, and on divers other 
days and times between that day and the 20th 
day of April, A. D. 1865, receive, entertain, 
harbor and conceal, aid and assist the said John 
Wilkes Booth, David E. Herold, Lewis Payne, 
John H. Surratt, Michael O’Laughlin, George 
A. Atzerodt, Samuel Arnold, and their confed- 
erates, with knowledge of the murderous and 
Q. How long a rope ? -g]jt 
A. I can not tell. It was in a coil—«- r 
smart bundle—probably sixteen or tw 
feet. 
Q. Were those articles left at your n c&fe 
A. Yes, sir; Surratt asked me to take ARGUMENT OF FREDERICK A. AIKEN. 
293 
of them, to conceal the carbines. I told him 
•here was no place there to conceal them, and 
I did not wish to keep such things in the house. 
Q. You say that he asked y6u to conceal 
•hose articles for him? 
is the second item of importance against Mrs. 
Surratt, and in support of the specification 
against her. The third and last fact that makes 
against her in the minds of the Court, is the 
one narrated by Major H. W. Smith, a witness 
for the prosecution, who states that while at 
the house of Mrs. Surratt, on the night of the 
17th of April, assisting in making the arrest 
of its inmates, the prisoner, Payne, came in. 
He (Smith) stepped to the door of the parlor 
and said : “Mrs. Surratt, will you step here a 
minute?” As Mrs. Surratt came forward, he 
asked her the question, “Do you know this 
man?” She replied, quoting the witness’ lan- 
guage, “ Before God, sir, I do not know this 
man, and I have never Seen him.” An addi- 
tion to this is found in the testimony of the 
same witness, as he was drawn out by the 
Judge Advocate. The witness repeats the 
language of Mrs. Surratt, “Before God, Ido 
not know this man, and have never seen him, 
and did not hire him to dig a gutter for me.” 
The fact of the photographs and card of the 
State arms of Virginia have ceased to be of the 
slightest importance, since the explanations 
given in evidence concerning them, and need 
not be alluded to. If there is any doubt as to 
whom they all belonged, reference to the testi- 
mony of Misses Surratt and Fitzpatrick will 
settle it. 
A. Yes, sir; he asked me to conceal them, 
f fold him there was no place to conceal them. 
He then carried me into a room that 1 had 
•'■ever been in, which was just immediately 
übove the store room, as it were in the back 
building of the house. I had never been in 
•bat room previous to that time. He showed 
toe where I could put them, underneath the 
Joists of the house—the joists of the second 
boor of the main building. This little unfin- 
tohed room will admit of anything between 
the joists. 
Q. Were they put in that place? 
A. They were put in there according to his 
directions. 
Q. Were they concealed in that condition? 
A. Yes, sir; I put them in there. I stated 
•o Colonel Wells through mistake, that Surratt 
Put them there ; but I put them in there myself, 
f carried the arms up myself. 
Q. How much ammunition was there ? 
A. One cartridge-box. 
Q. For what purpose, and for how long, did 
be ask you to keep these articles ? 
A. lam very positive that he said he would 
call for them in a few days. He said he just 
"’anted them to stay for a few days and he 
"tould call for them. 
It also appears in evidence against Mrs. 
if the testimony is to be relied on, that 
oli the Tuesday previous to the murder of the 
president, the 11th of April, she met John M. 
bloyd, a witness for the prosecution, at Union- 
*°Wn, when the following took place: 
Question by the Judge Advocate: 
Q. Did she say anything to you in regard 
those carbines ? 
These three circumstances constitute the part 
played by the accused, Mary E. Surratt, in this 
great conspiracy. They are the acts she has 
done. They are all that two months of patient 
and unwearying investigation, and the most, 
thorough search for evidence that was probably 
ever made, has been able to develop against 
her. The acquaintance with Booth, the mes- 
sage to Lloyd, the non-recognition of Payne, 
constitute the sum total of her receiving, enter- 
taining, harboring, and concealing, aiding, 
and assisting those named as conspirators and 
their confederates, with knowledge of the mur- 
derous and traitorous conspiracy, and with 
intent to aid, abet, and assist them in the execu- 
tion thereof, and in escaping from justice. 
The acts she has done, in and of themselves, 
are perfectly innocent. Of themselves they con- 
stitute no crime. They are what you or I, or 
any ot us might have done. She received and 
entertained Booth, the assassin, and so did a 
hundred others. She may have delivered a 
message to Lloyd—so have a hundred others. 
She might have said she did not know Payne— 
and who within the sound of my voice can say 
that they know him now? They are ordinary 
and commonplace transactions, such as occur 
every day and to almost everybody. But as all 
the case against her must consist in the guilty 
intent that will be attempted to be connected 
with these facts, we now propose to show that 
they are not so clearly proven as to free them 
from great doubt, and, therefore, we will inquire. 
2d. How are these acts proven ? Soldi/ by 
the testimony of Louis J. Weichmann and John 
M. Lloyd. Here let us state that we have no 
malice toward either of them, but if in the 
analysis of their evidence we should seem to 
be severe, it is that error and duplicity may be 
exposed, and innocence protected. 
A. When she first broached the subject to 
toe, I did not know what she had reference to; 
Jben she came out plainer, and I am quite pos- 
•tive she asked me about the “shooting irons.” 
urn quite positive about that, but not alto- 
gether positive. I think she named “shooting 
’tons,” or something to call my attention to 
bose things, for I had almost forgotten about 
toeir being there. I told her that they were hid 
a"toy far back—that I was afraid the house 
"°uld be searched, and they were shoved far 
ack. She told me to get them out ready; they 
'‘°uld be wanted soon. 
Q- Was her question to you first, whether 
l *ey were still there, or what was it? 
A. Really, I can not recollect the first ques- 
lon she put to me. I could not do it to save 
life. 
On the afternoon of the 14th of April, at 
ab°ut half-past five, Lloyd again met Mrs. Sur- 
:att, at Surrattsville, at which time, according 
0 his version, she met him by the wood-pile, 
the house, and told him-to have those 
i tooting irons ready that night, there would 
some parties calling for them, and that she 
"ave him something wrapped in a piece of 
and asked him to get two bottles of 
•usky ready also. This message to Mr. Lloyd 294 
THE CONSPIRACY TRIAL. 
We may start out with the proposition that a I 
body of men, banded together for the consum- 
mation of an unlawful act against the Govern- 
ment, naturally would not disclose their purpose 
and hold suspicious consultations concerning it 
in the presence continually of an innocent 
party. In the light of this fair presumption, 
let us look at the acts of Weichmann, as dis- 
closed by his own testimony. Perhaps the most 
singular and astonishing fact that is made to 
appear is his omnipresence and co-action with 
those declared to be conspirators, and his pro- 
fessed and declared knowledge of all their plans 
and purposes. His acquaintance with John H. 
Surratt commenced in the fall of 1859, at St. 
Charles College, Maryland. In January, 1863, 
he renewed his acquaintance with him in this 
city. On the Ist of November, 1864, he took 
board and lodgings with Mrs. Surratt, at her 
house, No. 541 H street, in this city. If this tes- 
timony be correct, he was introduced to Booth 
on the 15th day of January, 1865. At this first, 
very first meeting, he was invited to Booth’s 
room, at the National, where he drank wine and 
took cigars at Booth’s expense. After consulta- 
tion about something in an outer passage be- 
tween Booth and the party alleged to be with 
him by Weichmann, they all came into the room, 
and for the first time business was proceeded 
with in his presence. After that he met Booth 
in Mrs. Surratt’s parlor and in his own room, 
and had conversations with him. As near as 
Weichmann recollects, about three weeks after 
his introduction, he met the prisoner, Atzerodt, 
at Mrs. Surratt’s. (How Atzerodt was received 
at the house will be referred to.) About the 
time that Booth played Pescara, in the “Apos- 
tate,” at Ford’s theater, Weichmann attended 
the theater in company with Surratt and At- 
zerodt. At the theater they were joined by 
Herold. John T. Holahan, a gentleman not 
suspected of complicity in the great tragedy, 
also joined the company at the theater. After 
the play was over, Surratt, Holahan and him- 
self went as far as the corner of Tenth and E 
streets, when Surratt, noticing that Atzerodt 
and Herold were not with them, sent Weichmann 
back for them. He found them in a restaurant 
near by, in conversation with Booth, by whose 
invitation Weichmann took a drink. After that 
the entire party went to Kloman’s, on Seventh 
street, and had some oysters. The party there 
separated, Surratt, Weichmann and Holahan 
going home. In the month of March last the 
prisoner, Payne, according to Weichmann, went 
to Mrs. Surratt’s house and inquired for John H. 
Surratt. “I myself,” says Weichmann, “went 
to open the door, and he inquired for Mr. Sur- 
ratt. I told him Mr. Surratt was not at home, 
but I would introduce him to the family, and 
did introduce him to Mrs. Surratt—under the 
name of Wood.” What more? By Weich- 
mann’s request Payne remained in the house all 
night. He had supper served to him in the 
privacy of Weichmann’s own room. More than 
that,'Weichmann went down into the kitchen 
and got the supper and carried it up to him 
himself, and as nearly as he recollects, it was 
about eight weeks previous to the assassination. 
Payne remained as Weichraann’s guest until the 
next morning, when he left in the early train 
for Baltimore. About three weeks after that 
Payne called again. Says Weichmann, “I 
again went to the door, and I again ushered 
him into the parlor;” but says he had forgotten 
his name, and only recollected that he had given 
the name of Wood on the former visit, when 
one of the ladies called Payne by that name. 
He who had served supper to Payne in his own 
room, and had spent a night with him, could not 
recollect for three weeks the common name of 
“Wood,” but recollects with such distinctness 
and particularity scenes and incidents of much 
greater age, and by which he is jeopardizing 
the lives of others. Payne remained that time 
about three days, representing himself to the 
family as a Baptist preacher; that he had been 
in prison in Baltimore about a week, and that 
he had taken the oath of allegiance and was 
going to become a good loyal citizen. To Mrs. 
Surratt this seemed eccentric, and she said “ he 
was a great looking Baptist preacher.” “They 
looked upon it as odd, and laughed at it.” It 
seems from Weichmann’s testimony that he 
again shared his room with Payne, and when 
returning from his office one day, and finding a 
false mustache on the table in his room, he took 
it and threw it into his toilet box, and after- 
ward with a box of paints, in his trunk, and 
the mustache was subsequently found in Welch- 
mann’s baggage. When Payne, according to 
Weichmann’s testimony, inquired, “Where is 
my mustache?” Weichmann said nothing, but 
“ thought it rather queer that a Baptist preacher 
should wear a mustache.” He says he did not 
want it about his room; “thought no honest 
person had any reason to wear a false mus- 
tache,” and as no uhonesi person"(?) should be 
in possession of it, he locked it up in his ov>n 
trunk. Weichmann professes throughout his 
testimony the greatest regard and friendship 
for Mrs. Surratt and her son. Why did he nob 
on this occasion, and while his suspicions were 
aroused—if he is an honest man, why did ho 
not go to Mrs. Surratt and communicate them 
atonce ? She, an innocent and guileless woman, 
not knowing what was occurring in her own 
house; he, the friend, coming into possession 
of important facts, and not making them known 
to her, the head of the household, but claiming 
now, since this overwhelming misfortune has 
fallen upon Mrs. Surratt, that, while reposing 
in the very bosom of the family as a friend and 
confidant, he was a spy and an informer! and 
that, we believe, is the best excuse the prosecu- 
tion is able to make for him. His account and 
explanation of this mustache would be treated 
with contemptuous ridicule in a civil court. ; 
But this is not all. Concede Weichmann S 
account of the mustache to be true, and it * 
was not enough to rouse his suspicions that at 
was not right, he states that, on the same day, 
he went to Surratt’s room and found Fay0® 
seated on the bed with Surratt, playing 
bowie-knives, and surrounded with revolt' 
ers and spurs. Miss Honora Fitzpatnc 
testifies that Weichmann was treated by Ml®,' 
Surratt “more like a son than a friend- 
Poor return for motherly care! Guilty know ' 
edge of and participation in crime or in W1 ARGUMENT OF FREDERICK A. AIKEN. 
295 
schemes for the capture of the President, would 
he a good excuse for not making all this known 
to Mrs. Surratt. In speaking of the spurs and 
pistols. Weichmann knew that there were just 
eight spurs, and two long navy revolvers. Bear 
in mind, we ask you, gentlemen of the 
Commission, that there is no evidence before 
you showing that Mrs. Surratt knew anything 
about these things. It seems farther on, about 
the 19th of March, that Weichmann went to the 
Herndon House with Surratt to engage a room. 
He says he afterward learned that it was for 
Payne, from Atzerodt, but contradicts himself 
in the same breath by stating that he inquired 
of Atzerodt if he was going to see Payne at the 
Herndon House. His intimate knowledge of 
Surratt’s movements between Richmond and 
Washington, fixing the dates of the trips with 
great exactitude; of Surratt’s bringing gold 
hack; of Surratt’s leaving on the evening of 
the 3d of April for Canada, spending his last 
moments here with Weichmann ; of Surratt’s 
telling Weichmann about his interviews with 
Davis and Benjamin in all this knowledge 
concerning himself, and associations with those I 
named as conspirators, he is no doubt truthful 
as far as his statements extend, but when he 
comes to apply some of this knowledge to others, 
he at once shakes all faith in his testimony 
bearing upon the accused. 
“Do you remember,” the question was asked 
him, “early in the month of April, of Mrs. Sur- 
ratt having sent for you and asking you to give 
Mr. Booth notice that she wished to see him?” 
Mann and Mrs. Surratt started for the country. 
All this comes out on his first examination 
in chief. The following is also told in his first 
cross-examination: Mrs. Surratt keeps a 
hoarding house in this city, and was in the 
habit of renting her rooms out, and that he was 
upon very intimate terms with Surratt; that 
they occupied the same room; that when he 
and Mrs. Surratt went to Surrattsville on the 
14th, she took two packages, one of papers, the 
contents of the other were not known. That 
persons have been in the habit of going to Mrs. 
Surratt's and staying a day or two; that At- 
zerodt stopped in the house only one night; that 
the first time Payne came to the house he was 
dressed genteelly, like a gentleman; that he 
heard both Mrs. Suri’att and her daughter say 
that they did not care about having Atzerodt 
brought to the house; and at the conclusion, in 
swearing as to Mrs. Surratt’s character, he said 
it was exemplary and lady-like in every par- 
ticular, and apparently, as far as he could judge, 
she was all the time, from the Ist of November 
up to the 14th of April, “ doing her duties to 
God and man.” It also distinctly appears that 
Weichmann never had any conversation with 
Mrs. Surratt touching any conspiracy. One 
thing is apparent to our minds, and it is forced 
upon us, as it must be upon every reasonable 
mind, that in order to have gained all this 
knowledge Weichmann must have been within 
the inner circle of the conspiracy. He knows 
too much for an innocent man, and the conclu- 
sion is perfectly irresistible that if Mrs. Surratt 
had knowledge of what was going on, and had 
been, with others, a particeps criminis in the 
great conspiracy, she would have certainly done 
more than she did or has been shown against 
her, and Weichmann would have known it. 
How does her non-recognition of Payne, her ac- 
quaintance with Booth, and the delivery of the 
message to Lloyd, compare with the long and 
startling array of facts proved against Welch- 
man n out of his own mouth? All the facts 
point strongly to him as a co-conspirator. 
Weichmann in his reply stated that she did ; 
that it was on the 2d of April, and that he found 
in Mr. Booth’s room John McCullough, theactor, 
when he delivered the message. One of two 
things to which he swears in this statement 
can not be true : 1. That he met John McCul- 
lough in Booth’s room, for we have McCullough’s 
Sworn statement that at that time he was not in 
the city of Washington, and if, when he delivered 
the message to Booth, McCullough was in the 
room, it could not have been on the 2d of April. 
“ St. Lawrence Hall, \ 
“Montreal, June 3, 1865. j 
Is there a word on record of conversation be- 
tween Booth and Mrs. Surratt? That they did 
converse together, we know; but if anything 
treasonable had passed between them, would 
not the quick ears of Weichmann have caught it, 
and would not he have recited it to this Court? 
When Weichmann went, on Tuesday, the 11th 
of April, to get Booth’s buggy, he was not asked 
by Mrs. Surratt to get ten dollars. It was prof- 
ferred by Booth, according to Weichmann, and 
he took it. If Mrs. Surratt ever got any money 
from Booth, she paid it back to him. It is not 
her character to be in any one’s debt. 
There was no intimacy with Booth, as Mrs. 
Surratt has proved, but only common acquaint- 
ance, and such as would warrant only occa- 
sional calls on Booth's part, and only intimacy 
would have excused Mrs. Surratt to herself in 
accepting such a favor, had it been made known 
to her. Moreover, Miss Surratt has attested to 
remarks of her brother, which prove that inti- 
macy of Booth with his sister and mother were 
not desirable to him. 
“ I am an actor by profession, at presentfulfill- 
ing an engagement at Mr. Buckland s theater, 
in this city. I arrived here on the 12th of 
May. I performed two engagements at Ford’s 
theater, in Washington, during the past winter, 
the last one closing on Saturday evening, 25th 
of March. I left Washington on Sunday even- 
ing, 26th March, and have not been there since. 
I have no recollection of meeting any person 
by the name of Weichmann. 
“John McCullough. 
“ Sworn to and subscribed before me, at the 
United States Consulate General’s in Montreal, 
this third day of June, A. D. 1865. 
“ C. H. POWERS, 
“ U. S. Vice Consul General.” 
If he can be so mistaken about those facts; 
may he not be in regard to the whole transac- 
tion? It is also proved by IJhichmann that be- 
fore Mrs, Surratt started for the country, on 
the 14th of April, Booth called ; that he re- 
trained three or four minutes, and then Weich- 
The preceding facts are proven by statements 
made by Weichmann during his first examina- 296 
THE CONSPIRACY TRIAL. 
tion. But, as though the Commission had not 
sufficiently exposed the character of one of its 
chief witnesses in the role of grand conspira- 
tor, Weichmann is re-called and farther attests 
to the genuineness of the following telegram; 
keeper, and others, corroborate the testimony 
as to his absolute inebriation—he attests that 
he positively remembers that Mrs. Surratt said 
to him: “Mr. Lloyd, I want you to have those 
shooting irons ready.” “ That persons would 
call for them.” “ That was the language she 
made use of, and she gave me this other thing 
to give to whoever called.’-' 
In connection with the fact that Lloyd can 
not swear positively that Mrs. Surratt men- 
tioned “ shooting irons” to him at Uniontown, 
bear in mind the fact that Weichmann sat in 
the buggy on the same seat with Mrs. Surratt, 
and he swears he heard nothing about “shoot- 
ing irons.” Would not the quick ears of Weioh- 
mann have heard the remark had it been made ? 
“New York, March 23d, 1865. To Weich- 
niann, Esq., 541 II street: Tell John telegraph 
number and street at once.” 
What additional proof of confidential rela- 
tions between Weichmann and Booth could the 
Court desire? If there was a conspiracy 
planned and maintained among the persons 
named in the indictment, Weichmann must have 
had entire knowledge of the same, else he had 
not been admitted to that degree of knowledge 
to which he testifies; and in such case, and in 
the alleged case of Mrs. Surratt’s complicity, 
Weichmann must have known the same by cir- 
cumstances strong enough to exclude doubt, 
and in comparison with which all present facts 
of accusation would sink into insignificance. 
We proceed to the notice and review of the 
second chief witness of the prosecution against 
Mrs. Surratt, John M. Lloyd. He testifies to 
the fact of a meeting with Mrs. Surratt at 
Uniontown on the 11th of April, 1865, and to 
a conversation having occurred between Mrs. 
Surratt and himself, in regard to which he 
states : “I am quite positive she asked me about 
the ‘shooting irons;’ lam quite positive about 
that, but not altogether positive; I think she 
named shooting irons, or something to call my 
attention to those things, for I had almost for- 
gotten about their being there.” Q. “Was her 
question to you first, whether they were there, 
or what was it?” A. “Really, lean not recol- 
lect the first question she put to me—l could 
not do it to save my life.” The question was 
asked Lloyd, “During this conversation, was 
the word carbine mentioned ?” He answered, 
“No.” “She finally came out, but can not be 
determined about it—that she said shooting 
irons—asked me in relation to them.” The 
question was then asked: “Can you swear, on 
your oath, that Mrs. Surratt mentioned the 
words ‘shooting irons’ to you at all?” A. “I 
am very positive she did.” Q. “ Are you cer- 
tain ? ” A. “I am very positive that she named 
shooting irons on both occasions. Not so pos- 
itive as to the first as I am about the last.” 
[Signed,] “J. BOOTH.” 
The gentlemen of the Commission will please 
recollect that these statements were rendered 
by a man addicted to excessive use of intoxi- 
cating liquors; that he was even inordinately 
drunk at the time referred to ; that he had vol- 
untarily complicated himself in the conceal- 
ment of the arms by J. H. Surratt and his 
friends; that he was in a state of maudlin ter- 
ror when arrested, and when forced to confess, 
that for two days he maintained denial of all 
knowledge that Booth and Herold had been at 
his house; and that at last, and in the condi- 
tion referred to, he was coerced by threats to 
confess, and in a weak and common effort to 
exculpate himself by the accusation of another, 
he proceeded to place blame upon Mrs. Surratt 
by statements of conversation already cited. 
Notwithstanding his utter denial of all knowl- 
edge of Booth and Herold having called at his 
house, it afterward appears, by his own testi- 
mony, that immediately Herold commanded 
him (Lloyd) “for God’s sake, make haste and 
get those things,” he comprehended what 
“things” were indicated, without definition, and 
brought forth both carbines and whisky. He 
testifies that J. H. Surratt had told him, when 
depositing the weapons in concealment in his 
house, that they would soon be called for, but 
did not instruct him, it seems, by whom they 
would be demanded. 
All facts connecting Lloyd with the case, tend 
to his implication and guilt, and to prove that 
he adopted the dernier resort of guilt—accusa- 
tion and inculpation of another. In case Lloyd 
were innocent and Mrs. Surratt the guilty co- 
adjutrix and messenger of the conspirators, 
Lloyd would have been able to cite so much 
more open and significant remarks and acts of 
Mrs. Surratt that he would not have been 
obliged to recall, in all perversion and weak- 
ness of uncertainty, so common and unmean- 
ing deeds and speech as his testimony includes. 
It is upon these considerations that we feel 
ourselves safe and reasonable in the position 
that there are facts and circumstances, both 
external and internal, connected with the tes- 
timony of Weichmann and Lloyd, which, if 
they do not destroy, do certainly greatly shake 
their credibility, and which, under the rule 
that will give Mrs. Surratt the benefit of all 
reasonable doubts, seem to forbid that she 
should be convicted upon the unsupported evi- 
dence of these two witnesses. But even admit- 
ting the facts to be proven as above recited, it 
Here comes in the plea of “ reasonable doubt.” 
If the witness himself is not absolutely posi- 
tive as to what occurred, and as to the conver- 
sation that took place, how can the jury assume 
to act upon it as they would upon a matter 
personally concerning themselves ? 
On this occasion of Mrs. Surratt’s visit to 
Uniontown, three days before the assassination, 
where she met Lloyd, and where this conver- 
sation occurred between them, at a time when 
Lloyd was, by presumption, sober and not in- 
toxicated, he declares definitely before the Com- 
mission that he is unable to recollect the con- 
versation, nor parts of it, with distinctness. 
But on the 14th of April, and at a time when, 
as testified by his sister-in-law, he was more 
than ordinarily affected by intoxicating drink 
—and Capt. Gwynn, James Lusby, Knott, bar- ARGUMENT OF FREDERICK A. AIKEN. 
297 
remains to be seen where is the guilty knowl- 
?c-ge of the contemplated assassination; and 
this us to the inquiry whether these 
*acts are not explainable so as to exclude guilt. 
Prom one of the most respected of legal au- 
thorities the following is taken: “Whenever, 
therefore, the evidence leaves it indifferent 
'vhich of several hypotheses is true, or merely 
establishes some finite probability in favor of 
°Ue hypothesis rather than another, such evi- 
dence can not amount to proof. The maxim of 
the law is that it is better that ninety-nine of- 
fenders should escape than that one innocent 
1,1 un should be condemned.” Star He on Evidence. 
The acts of Mrs. Surratt must have been ac- 
c°mpanied with a criminal intent in order to 
l!lake them criminal. If any one supposes 
that such intent existed, the supposition comes 
ahme from inference. If disloyal acts and 
c°nstant disloyal practices; if overt and open 
Action against the Government on her part had 
hcen shown down to the day of the murder of 
the President, it would do something toward 
establishing the inference of criminal intent. 
Gn the other hand, just the reverse is shown, 
the remarks here of the learned and honorable 
“Hdge Advocate are peculiarly appropriate to 
this branch of the discussion, and, with his 
Authority, we waive all others: 
“If the Court please, I will make a single 
Veffiark. I think the testimony in this case has 
proved, what I believe history sufficiently at- 
ests, how kindred to each other are the crimes 
treason against a nation and the assassina- 
loH of its Chief Magistrate. I think of those 
Cr'nies, tlie one seems to be, if not the neces- 
ary consequence, certainly a logical sequence 
the other. The murder of the President 
ot the United States, as alleged and shown, 
pre-eminently a political assassination, 
to the Government was its sole, its 
Ojdy 
inspiration. Wrhen, therefore, we shall 
I °'v, on the part of the accused, acts of in- 
eHse disloyalty, bearing arms in the field 
against that Government, we show, with him, 
le presence of an animus toward the Govern- 
jhffit which relieves this accusation of much, 
not all, of its improbability. And this 
°nrse of proof is constantly resorted to in 
Gminal courts. Ido not regard it as in the 
0 “Shtest degree a departure from the usages 
j. the profession in the administration of pub- 
° justice. The purpose is to show that the 
Usoner, in ids mind and course of life, was 
jjG'parecl for the commission of this crime; that 
tendencies of his life, as evidenced by open 
h | °vert acts, lead and point to this crime, if 
as a necessary, certainly as a most proba- 
om result, and it is with that view, and that 
y) that the testimony is offered.” 
Cqls there anything in Mrs. Surratt’s mind and 
for*ISe life to show that she was prepared 
Ue commission of this crime? The busi- 
o®8 transacted by Mrs. Surratt at Surrattsville, 
itl Ule Uth, clearly discloses her only purpose 
Pu the visit. Calvert’s letters, the 
hqs' °l' PaPers relating to the estate, the 
to'G>oss with Nothe, would be sufficiently clear 
Oth °st roiuds, when added to the fact that the 
Unknown package had been handed to 
Mrs. Offutt; that, while at Surrattsville, she 
made no inquiry for, or allusion to, Mr. Lloyd, 
and was ready to return to Washington when 
Lloyd drove up to the house. Does not this 
open wide the door for the admission of the plea 
of “reasonable doubt?” Had she really been 
engaged in assisting in the great crime, which 
makes an epoch in our country’s history, her 
only object and most anxious wish would have 
been to see Lloyd. It was no ruse to transact 
important business there to cover up what the 
uncharitable would call the real business. Cal- 
vert’s letter was received by her on the fore- 
noon of the 14th, and long before she saw 
Booth that day, or even before Booth knew that 
the President would be at the theater that 
night, Mrs. Surratt had disclosed her intention 
to go to Surrattsville, and had she been one 
moment earlier in her start, she would not have 
seen Booth at all. All these things furnish 
powerful presumptions in favor of the theory 
that, if she delivered the message at all, it was 
done innocently. 
In regard to the non-recognition of Payne, 
the third fact adduced by the prosecution 
against Mrs. Surratt, we incline to the opinion 
that, to all minds not fore-judging, the testi- 
mony of Miss A. E. Surratt, and various friends 
and servants of Mrs. Surratt, relative to phys- 
ical causes, might fully explain and account 
for such ocular remissness and failure. In 
times and on occasions of casual meeting of 
intimate acquaintances on the street, and of 
common need for domestic uses, the eyesight 
of Mrs. Surratt had proved treacherous and 
failing. How much more liable to fail her was 
her imperfect vision on an occasion of excite- 
ment and anxiety, like the night of her arrest 
and the disturbance of her household by mili- 
tary officers, and when the person with whom 
she was confronted was transfigured by a dis- 
guise which varied from the one in which she 
had previously met him, with all the wide dif- 
ference between a Baptist parson and an earth- 
soiled, uncouthly dressed digger of gutters? 
Anna E. Surratt, Emma Offutt, Eliza Holahan. 
Honora Fitzpatrick, Anna Ward, and a servant, 
attest all to the visual incapacity of Mrs. Sur- 
ratt, and the annoyance she experienced there- 
from, in passing friends without recognition in 
the daytime, and from inability to sew or read 
even on a dark day, as well as at night. The 
priests of her church, and gentlemen who have 
been friendly and neighborhood acquaintances 
of Mrs. Surratt for many years, bear witness 
to her untarnished name and discreet and 
Christian character, and absence of all impu- 
tation ot disloyalty, to her character for patri- 
otism. Friends and servants attest to her vol- 
untary and gratuitous beneficence to our soldiers 
stationed near her; and, “in charges for high 
treason, it is pertinent to inquire into the hu- 
manity of the prisoner toward those represent- 
ing the Government” is the maxim of the law; 
and, in addition, we invite your attention to 
the singular fact that of the two officers who 
bore testimony in this matter, one asserts that 
the hall, wherein Payne sat, was illuminated 
by a full head of gas; the other that the gas- 
light was purposely dimmed. The uncertainty of 298 
THE CONSPIRACY TRIAL. 
♦lie witness, who gave testimony relative to the 
coat of Payne, may also be recalled to your notice. 
Should not this valuable testimony of loyal 
and moral character shield a woman from ready 
belief, on the part of judges who judge her 
worthiness in every way, that within the few, 
few moments in which Booth detained Mrs. 
Surratt from her carriage, already waiting, 
when he approached> and entered the house, 
she became so converted to diabolical evil as to 
hail with ready assistance his terrible plot, 
which must have been framed (if it were com- 
plete in his intent at that hour, half-past two 
o’clock), since the hour of eleven that day? 
If any part of Lloyd’s statements is true, 
and Mrs. Surratt did verily bear to his or Mrs. 
Offutt’s hands the field-glass, enveloped in 
paper, by the evidence itself, we may believe 
she knew not the nature of the contents of the 
package; and, had she known, what evil could 
she, or any other, have attached to a commis- 
sion of so common a nature? No evidence of 
individual or personal intimacy with Booth has 
been adduced against Mrs. Surratt; no long 
and apparently confidential interviews; no in- 
dications of a private comprehension mutual 
between them; only the natural, and not fre- 
quent, custom on the part of Booth—as any 
other associate of her son might and doubtless 
did do—of inquiring through the mother, whom 
he would request to see, of the son who, he 
would learn, was absent from home. No one 
has been found who could declare any appear- 
ance of the nursing or mysteriously discussing 
of anything like conspiracy within the walls 
of Mrs. Surratt’s house. Even if the son of 
Mrs. Surratt, from the significancies of asso- 
ciations, is to be classed with the conspirators, 
if such body existed, it is monstrous to suppose 
that the son would weave a net of circumstan- 
cial evidences around the dwelling of his 
widowed mother, were he never so reckless ajjd 
sin-determined; and that they (the mother and 
the son) joined hands in such dreadful pact, is 
more monstrous still to be thought. 
A mother and son associate in crime ! and 
such a crime as this half of the civilized world 
never saw matched, in all its dreadful bearings ! 
Our judgments can have hardly recovered their 
unprejudiced poise since the shock of the late 
horrors, if we can contemplate with credulity 
such a picture, conjured by the unjust spirits 
of indiscriminate accusation and revenge. A 
crime which, in its public magnitude, added to 
its private misery, would have driven even the 
Atis-haunted heart of a Medici, a Borgia, or a 
Madame Bocarme to wild confession before its 
accomplishment, and daunted even that soul, of 
all the recorded world the most eager for nov- 
elty in license, and most unshrinking in sin— 
the indurated soul of Christina of Sweden ; 
such a crime as profoundest plotters within 
padded walls would scarcely dare whisper; 
the words forming the expression of which, 
spoken aloud in the upper air, would convert 
all listening boughs to aspens, and all glad 
sounds of nature to shuddering wails. And 
this made known, even surmised, to a woman I 
a mater familias, the good genius, the “placens 
uxor ” of a home where children had gathered all 
the influences of purity and the reminiscences 
of innocence, where Religion watched, and the 
Church was Minister and Teacher. 
Who—were circumstantial evidence strong 
and conclusive, such as only time and the sloW 
weaving fates could elucidate and deny—who 
will believe, when the mists of uncertainty 
which cloud the present shall have dissolved, 
that a woman born and bred in respectability 
and competence—a Christian mother, and * 
citizen who never offended the laws of civil 
propriety; whose unfailing attention to tho 
most sacred duties of life has won for her the 
name of “a proper Christian matron;” whose 
heart was ever warmed by charity; whose 
door unbarred to the poor, and whose Penates 
had never cause to veil their faces;—who will 
believe that she could so suddenly and so 
fully have learned the intricate arts 
sin ? A daughter of the South, her life asso- 
ciations confirming her natal predilections, her 
individual preferences inclined, without loglo 
or question, to the Southern people, but with no 
consciousness nor intent of disloyalty to her 
Government, and causing no exclusion from hot 
friendship and active favors of the people of 
the loyal North, nor repugnance in the diS' 
tribution among our Union soldiery of al 
needed comforts within her command, and oU 
all occasions, 
A strong but guileless-hearted woman, he* 
maternal solicitude would have been the flrS 
denouncer, even abrupt betrayer, of a plotted 
crime in which one companion of her son could 
have been implicated, had cognizance of such 
reached her. Her days would have been ag' 
onized and her nights sleepless, till she mig*1* 
have exposed and counteracted that spirit 
defiant hate which watched its moment of v»n' 
tage to wreak an immortal wrong—till s^e 
might have sought the intercession and ahs0' 
lution of the Church, her refuge, in behalf 0 
those she loved. The brains, which were bd > 
and crafty, and couchant enough to dare t*l 
world’s opprobrium in the conception of 
scheme which held as naught the lives of 
in highest places, never imparted it to the iJI 
telligence, nor sought the aid nor sympathy0 
any living woman, who had not, like La 
Macbeth, “unsexed herself”—not though s f 
were wise and discreet as Maria Theresa 
the Castilian Isabella. This woman knew 
not. This woman, who, on the morning PJ,g 
ceding that blackest day in our count!?! 
annals, knelt in the performance of h 
most sincere and sacred duty at the 
fessional, and received the mystic rite 
the Eucharist, knew it not. Not only "orol’£.)j 
she have rejected it with horror, but gU j 
proposition, presented by the guest who 
sat at her hearth as the friend and 
her son, upon whose arm and integrity 
widowed W’omanhood relied for solace und P {0 
tection, would have roused her maternal wi • 
some sure cunning which would have cou 
vened the crime and sheltered her son from u 
evil influences and miserable results of s 
companionship. ejo 
The mothers of Charles the IX and of 
could harbor, underneath their terrible siul ARGUMENT OF FREDERICK A. AIKEN. 
299 
Schemes for the violent and unshriven deaths, 
or the moral vitiation and decadence which 
Would painfully and gradually remove lives 
Sprung from their own, were they obstacles to 
their demoniac ambition. But they wrought 
their awful romances of crime in lands where 
the sun of supreme civilization, through a gor- 
geous evening of Syberitish luxury,was sinking, 
With red tents of revolution, into the night of 
diarchy and national caducity. In our own 
young nation, strong in its morality, energy, 
freedom, and simplicity, assassination can never 
be indigenous. Even among the desperadoes 
and imported lazzaroni of our largest cities, it is 
comparatively an infrequent cause of fear. 
The daughters of women to whom, in their 
yet preserved abodes, the noble mothers who 
adorned the days of our early independence 
are vividly remembered realities and not 
haunting shades—the descendants of earnest 
seekers for liberty, civil and religious, of rare 
races, grown great in heroic endurance, in 
purity which comes of trial borne, and in hope 
born of conscious right, whom the wheels of' 
Fortune sent hither to transmit such virtues— 
♦he descendants of these have no heart, no ear 
for the diabolisms born in hot-beds of tyranny 
and intolerance. No descendant of these, no 
Woman of this temperate land could have seen, 
much less joined, her son, descending the san- 
guinary and irrepassable paths of treason and 
murder, to ignominious death, or an expatriated 
and attainted life, worse than the punishing 
wheel and bloody pool of the poets’ hell. 
In our country, where reason and moderation 
8o easily quench the fires of insane hate, and 
Where “ La Vendetta ” is so easily overcome by 
the sublime grace of forgiveness, no woman 
could have been found so desperate as to sacri- 
fice all spiritual, temporal, and social good, 
self, offspring, fame, honor, and all the desiderata 
of life, and time, and immortality, to the com- 
mission, or even countenance, of such a deed 
°f horror as we have been compelled to con- 
template the two past months. 
In a Christian land, where all records and 
results of the world’s intellectual, civil and 
moral advancement mold the human heart and 
mind to highest impulses, the theory of old Hel- 
is more probable than desirable. 
The natures of all born in equal station are 
hot so widely varied as to present extremes of 
vice and goodness, but by the effects of rarest 
aud severest experience. Beautiful fairies and 
fcrrible gnomes do not stand by each infant’s 
cradle, sowing the nascent mind with tenderest 
graces or vilest errors. The slow attrition of 
vmious associations and law-defying indul- 
gences, or the sudden impetus of some terribly 
Multiplied and social disaster, must have worn 
aWay the susceptibility of conscience and self 
Aspect, or dashed the mind from the hight of 
fficse down to the deeps of despair and reckless- 
ness, before one of ordinary life could take coun- 
sel with violence and crime. In no such man- 
ner was the life of our client marked. It was 
ffie parallel of nearly all the competent masses; 
Surrounded by the scenes of her earliest recol- 
lections, independent in her condition, she was 
satisfied with the mundus of her daily pursuits, 
and the maintenance of her own and children’s 
status in society and her church. 
Remember your wives, mothers, sisters and 
gentle friends, whose graces, purity and careful 
affection ornament and cherish and strengthen 
your lives. Not widely different from their 
natures and spheres have been the nature and 
sphere of the woman who sits in the prisoner’s 
dock to-day, mourning with the heart of Alces- 
tis her children and her lot; by whose desolated 
hearthstone a solitary daughter wastes her un- 
comforted life away in tears and prayers and 
vigils for the dawn of hope; and this wretchedness 
and unpitied despair have closed like a shadow 
around one of earth’s common pictures of do- 
mestic peace and social comfort, by the one sole 
cause—suspicion fastened and fed upon the facts 
of acquaintance and mere fortuitous intercourse 
with that man in whose name so many miseries 
gather, the assassinator of the President. 
Since the days when Christian tuition first 
elevated womanhood to her present free, refined 
and refining position, man’s power and honor- 
ing regard have been the palladium of her sex. 
Let no stain of injustice, eager for a sacrifice 
to revenge, rest upon the reputation of the men 
of our country and time. 
This woman, who, widowed of her natural 
protectors; who, in helplessness and painfully 
severe imprisonment, in sickness and in grief 
ineffable, sues for justice and mercy from your 
hands, may leave a legacy of blessings, sweet 
as fruition-hastening showers, for those you 
love and care for, in return for the happiness 
of fame and home restored, though life be ab- 
breviated and darkened through this world by 
the miseries of this unmerited and woeful trial. 
But long and chilling is the shade which just 
retribution, slow creeping on with its upede 
claudo,” casts around the fate of him whose 
heart is merciless to his fellows bowed low in 
misfortune and exigence. 
Let all the fair womanhood of our land hail 
you with a paeon of joy that you have restored 
to her sex, in all its ranks, the aegis of impreg- 
nable legal justice which circumvallates and 
sanctifies the threshhold of home and the pri- 
vacy of home life against the rude irruptions 
of arbitrary and perhaps malice-born suspicion, 
with its fearful attendants of arrest and incar- 
ceration, which in this case have been sufficient 
to induce sickness of soul and body. 
Let not this first State tribunal in our coun- 
try's history, which involves a woman’s name, 
be blazoned before the world with the harsh 
tints of intolerance, which permits injustice. 
But as the benignant heart and kindly judging 
mind of the world-lamented victim of a crime 
which wound, in its ramifications of woe, around 
so many fates, would himself have counseled 
you, let the heralds of Peace and Charity, with 
their wool-bound staves, follow the fasces and 
axes of Judgment and Law, and without the 
sacrifice of any innocent Iphigenia, let the ship 
of State lanch with dignity of unstained sails 
into the unruffled sea of Union and Prosperity. 
MABY E. SURRATT. 
By FREDERICK A. AIKEN, of Counsel. 
BEVEBDY JOHNSON, 
JOHN W. CLAMPI'fT, Associate Counsel. J±. IR, G- XJ UVE IE UST T 
IN 
DEFENSE OF GEORGE A. ATZERODT. 
B T 
W. E. DOBTER, ESQ. 
May it please the Court: 
along D street, and turned up Tenth street. 
The testimony of Thomas L. Gardner, that the 
same dark bay one-eyed horse found near Camp 
Barry, was sold by his uncle, George Gardner, 
to Wilkes Booth. Testimony of John L. To trey, 
that the same horse was found at twelve and a- 
half A. M., Saturday, the 15th of April, near 
Camp Barry, about three-quarters of a mile 
east of the Capitol. The testimony of Wash- 
ington Briscoe, that on the evening of the 14th, 
between twelve and half-past twelve, the pris- 
oner got into the cars near the Navy Yard, and 
asked him three times to let him sleep in the 
store; that he was refused, and said he was 
going to the Kimmell House. The testimony 
of Greenawalt, again, that he came to the Kim- 
mell House at two P. M., and in company with a 
man by the name of Thomas, and hesitated to 
register his name, and went away in the morn- 
ing, about five, without paying his bill. Testi- 
mony of Lieutenant Kcim, that he slept in the 
same room with Atzerodt that night at the 
Kimmell House, and when Keim spoke of the 
assassination, he said “it was an awful affair,” 
and that on the Sunday before he saw a knife 
in his possession—“a large bowie-knife in a 
sheath ”—and that Atzerodt remarked, “ If one 
fails, I want the other.” Testimony of Wm* 
Clendenin, that he found a knife similar to the 
one seen by Keim, in F street, between Eighth 
and Ninth Streets, opposite the Patent Office, at 
six o’clock of the morning after the assassina- 
tion. Testimony of Robert Jones and John Lee, 
that Atzerodt took a room at the Kirkwood 
House, No. 126, and that in it, on the morning 
of the 15th, were found a coat containing a 
loaded pistol and a bowie-knife, and a hand- 
kerchief marked with the name of J. WilkeS 
Booth. Testimony of Provost Marshal McPhail, 
that Atzerodt confessed he threw his knit® 
away near the Herndon House; that he pawned 
his pistol at Caldwell’s store, at Georgetown, 
and borrowed ten dollars, and that the coat 
and arms at the Kirkwood House belonged to 
Herold. Testimony of Sergeant Gemmill, that 
he arrested Atzerodt near Germantown, and 
that he denied having left Washington re' 
cently, or having had anything to do with the 
assassination. Testimony of HeZekiah Metz, 
that on the Sunday following the assassination 
Atzerodt said at his house, “If the man had 
followed Gen. Grant that was to have follow®® 
him, he would have been killed.” To negatr?6 
this specification the defense has submitted th® 
The prisoner, George A. Atzerodt, is charged 
with the following specification; “And in 
further prosecution of said conspiracy, and its 
traitorous and murderous designs, the said 
George A. Atzerodt did, on the night of the 14th 
of April, A. I). 18G5, and about the same hour 
of the night aforesaid, within the military de- 
partment and military lines aforesaid, lie in 
wait for Andrew Johnson, then Vice-President 
of the United States aforesaid, with the intent, 
unlawfully and maliciously, to kill and murder 
him, the said Andrew Johnson.” In support 
of this specification the prosecution has sub- 
mitted the following testimony ; The testimony 
of Weichmann and Miss Surratt, that he was 
frequently seen in company with Booth at the 
house of Mrs. Surratt. The testimony of 
Greenawalt, that Atzerodt had interviews with 
Booth at the Kimmell House, and that the pris- 
oner once said, the Ist of April, “ Greenawalt, 
I am pretty near broke, though I have friends 
enough to give me as much money as will keep 
me all my life. I am going away one of these 
days, but I will return with as much money as 
will keep me all my lifetime.” The testimony 
of Marcus P. Norton, that he overheard him in 
conversation with Booth, in which it was said, 
about the evening of the 3d of March, that, 
“If the matter succeeded as well with Johnson 
as it did with old Buchanan, the party would be 
terribly sold;” and, also, that “The character 
of the witnesses would be such that nothing 
could be proved by them.” The testimony of 
Col. Nevins, that he was asked by the prisoner, 
between four and five of the afternoon of the 
12th of April, at the Kirkwood House, to point 
out Mr. Johnson while at dinner. The testi- 
mony of John Fletcher, that on or about April 
3d, the prisoner owned a horse and saddle, 
which he afterward said was sold in Montgom- 
ery county, and which was afterward found 
near Camp Barry Hospital, on the night of the 
14th of April. The testimony of Fletcher, also, 
that on the evening of the 14th, the prisoner 
got a dark bay mare at Naylor’s (which he had 
brought there in the morning), rode her away 
at half-past six, brought her back at eight, re- 
turned again at ten, ordered his mare, took a 
drink; said, “If this thing happens to-night, 
you will hear of a present; ” and of the mare, 
“ She is good on a retreat; ” that he then rode 
to the Kirkwood House, came out again, went 
300 ARGUMENT OF W. E. DOSTER. 
301 
following testimony: The testimony of Som- 
Ofset Leaman, that the prisoner said at the 
house of Mr. Metz, when asked whether Gen. 
Grant was killed, “No, I do not suppose he 
hilled probably by a man that got on the same 
train of cars that he did,” and that he never used 
the language imputed to him by Mr. Metz ; 
that he was confused, but that the daughter of 
Mr. Metz, to whom he was paying his ad- 
dresses, was showing him the cold shoulder on 
that day. The same confirmed by James E. 
Teaman. The testimony of James Keleher, pro- 
prietor of a livery stable, corner of Eighth 
and E streets, that Atzerodt hired a dark bay 
®iare from his stable at half-past two o’clock 
on the afternoon of the 14th, wrote his name 
!n a large hand, did not hesitate to put down 
his name, willingly gave references, told him 
he lived in Port Tobacco, and was a coachma- 
her by trade, and gave the names of John Cook 
and Stanley Higgins as references. Testimony 
of Samuel Smith, that the bay mare was re- 
turned about eleven o’clock on the evening of 
the 14th, very much in the same condition as 
when she went out: no foam on her. Samuel 
McAllister, that the prisoner rode up to the 
Himmell House about ten o’clock on the even- 
ing of the 14th, and called to the black boy to 
hold his mare. Samuel McAllister further re- 
cognizes the knife found opposite the Herndon 
House, and the new revolver pawned at Cald- 
well’s, as having been in the possession of Atze- 
rodt, but does not recognize the coat found at 
the Kii •kwood House, in Atzerodt’s room, nor 
any of its contents. Provost Marshal McPhail’s 
testimony, to show the coat and arms belonged 
to Herold. The testimony of Mrs. Naylor, to 
show that the handkerchief in the pocket of the 
coat in Atzerodt’s room was marked with the 
Bame of Herold’s sister. The testimony of 
Hartman Richter, that the prisoner came to his 
house in Montgomery county, Maryland, made 
Bo effort to escape, worked in the garden, and 
Went about among the neighbors. Testimony 
°f Somerset Leaman, that he is of respectable 
family, and visited the most respectable fami- 
lies in Montgomery county. Of Samuel Mc- 
Allister, again, that he was generally consid- 
ered a coward. Of Washington Briscoe, that 
he was a noted coward. Of Lewis C. Haw- 
hins, that he is a notorious coward. Of 
Henry Brawner, that he is a well-known cow- 
ard. Testimony of Governor Farwell, that he 
patne to the President’s room, at the Kirkwood, 
ißunediately after the assassination ; could have 
seen anybody lying in wait, but saw no one; 
remained there half an hour, but no one at- 
tempted to enter by violence’. Testimony of 
” 'illiam A. Browning, private secretary to Mr. 
Johnson, that the Vice-President was in his 
room from five for the balance of the evening. 
Testimony of Matthew J. Pope, that Atzerodt 
yas, on the 12th, about noon, at his stable, try- 
lng to sell a horse, and remained there until he 
off with John Barr. Testimony of John 
. arr, that he met Atzerodt on that day; knows 
Jf. Was on the 12th, because the same day, by 
Ms memorandum, he made two spring blocks. 
Testimony ot Henry Brawner and Lewis C. 
Hawkins, to show that, on the 8d of March he 
was at Port Tobacco. Testimony of Judge Olin 
and Henry Burden, that they do not believe 
Marcus P. Norton on oath. 
Now, the prisoner submits that the testimony 
adduced by the prosecution fails utterly to sup- 
port the specification, but corroborates his own 
statement in every particular. First, the spe- 
cification charges him with “lying in wait” for 
Andrew Johnson, the Vice-President of the 
United States, “within the military depart- 
ment and military lines aforesaid.” The evi- 
dence on this point of “lying in wait” is alto- 
gether circumstantial. Colonel Nevins says he 
inquired for President Johnson on the after- 
noon of the 12th, between four and five. This 
decrepit gentleman, sixty years of age, ac- 
knowledges that he never saw the prisoner af- 
ter that until the day he gave his testimony, 
about six weeks afterward, although he saw him 
but for a minute at the time of the conversa- 
tion, and describes him as looking exactly as he 
did then. Now, all the other witnesses say that 
Atzerodt is much thinner; all of them, even 
his most intimate friends, have had difficulty in 
recognizing him, and yet this peremptory old 
gentleman, with failing eyesight, says he looks 
just the same, although he saw him but for a 
moment, and then not again for six weeks. 
The testimony of this witness, besides the nat- 
ural anxiety of a Government officer to serve 
his Government, and of an old one to retrench 
his waning importance, is incredible on the 
face of it; but if it were not, it is absolutely 
contradicted, beyond a doubt, by the witnesses 
for the defense. Matthew Pope, a livery-stable 
keeper, near the Navy Yard, says a man came 
to his stable and tried to sell him a horse on 
the noon of the same day in April. He can not 
recognize the prisoner, neither can he give the 
date, only he knows that he left his umbrella, 
and that he went off with John Barr, and was 
there between four and five. John Barr, being 
called, very well remembers that the person 
who left his umbrella, and who rode off from 
Pope’s stable, was Atzerodt, who went home 
with him to supper; and he knows it was the 
day that he made two spring blocks for San- 
derson & Miller, and he sees by reference to 
his book that it was the 12th of April. 
The testimony of Col. Nevins must, therefore, 
fall to the ground; and while it is conceded 
that some one out of the multitude at the Kirk- 
wood may have asked the Colonel this common 
question, it is certain that this man was not 
Atzerodt, for at the given hour and day he was 
a mile from the house. The second point 
brought in support of this specification is the 
declaration of Marcus P. Norton, a lawyer, from 
Troy, New York, to the effect that he saw Atze- 
rodt in company with Booth, he thinks, on the 
evening of the 3d of March, at the National, 
and heard it said that, “If the matter succeeded 
as well with Johnson as it did with old Bu- 
chanan, the party would be terribly sold;” also 
the words, “The character of the witnesses 
would be such that nothing could be proved by 
them.” Now, the prisoner says that this testi- 
mony is a deliberate falsehood. To prove that 
on the 2d and 3d days of March he was not in 302 
THE CONSPIRACY TRIAL. 
Washington, he brought Henry Brawner, pro- 
prietor of the Brawner House, at Port Tobacco, 
who says he knows that about that time he was 
at home; and Lewis P. Hawkins confirms the 
declaration. Neither of these two is absolutely 
certain of the date, for in country towns people 
can seldom prove their exact whereabouts on a 
given day three months back. This alone would 
be sufficient to throw doubt on the statements 
of Norton. But there is other evidence that he 
was deliberately making testimony. He says 
that on the same day he saw Dr. Mudd asking 
for Booth. Dr. Mudd has shown that on that 
day he was not at the National Hotel, nor in 
Washington city. This ingenious fabricator of 
testimony (in whose mind the bad character of 
himself as witness seems to dominate, and who, 
therefore, appears to put his own thoughts into 
the mouths of others), chose the 3d of March, 
the day before the inauguration, to give his 
story the probability which arises from connect- 
ing conversation with a given place. He ap- 
pears, before he wove this fine perjury, to have 
omitted reading the testimony of Conover, who 
says the name of Andrew Johnson was not 
joined in the plot until after the inauguration, 
and that at that time the name of Mr. Hamlin 
was on the list; anil so he perpetrated an egre- 
gious blunder. And he seems to have forgot- 
ten how strange it would seem, if, after having 
heard these things at. the very time, eight years 
ago, when a plot was suspected to poison Mr. 
Buchanan, he should neither have suspected 
nor informed of such a plot, nor how curious 
an instance of memory that he should remem- 
ber words exactly for three months, and faces, 
although he is short-sighted, and yet remembers 
no others. As we might conclude from internal 
evidence, the man is a notable false witness. 
It is in evidence that he takes patent cases, 
and, if he can not win by argument, he takes 
the witness-box and swears them through. Mr. 
Henry Burden, an old, wealthy and honorable 
gentleman, swears he would not believe him 
under oath, and that his reputation for veracity 
is very bad. Justice Abraham B. Olin, of the 
Supreme Court of this District, formerly mem- 
ber of Congress from Troy, swears he has never 
had any ditference with Norton, but his reputa- 
tion for veracity is sufficiently bad, and he 
would not believe him under oath. It is true 
they have brought here three witnesses to 
bolster up this false character. One never 
knew him at all at Troy. The other knew him 
at Troy, but is a client who has the very case 
pending in which Norton’s testimony was at- 
tempted to be impeached. It is not likely, 
then, that he would swear away the character 
of his own witness. The third, Horatio King, 
knew him only in business relations at Wash- 
ington city. 
The internal evidence of Norton’s testimony, 
its falsity in the matter of Dr. Mudd, its proven 
falsity in the time of Atzerodt’s visit to the Na- 
tional, and his known reputation as a false 
witness, leaves no shadow of doubt that his tes- 
timony is the offspring of a desire to distinguish 
himself on the witness-stand, and that Atzerodt 
never met Booth at the National on the 3d of 
March, nor had the alleged conversation with 
him. The third strong point of the prosecution 
is, that Atzerodt left room No. 126, at the Kirk- 
wood House, taking the key along, and in his 
room was found a coat, containing a bowie- 
knife, a pistol, loaded, and handkerchiefs marked 
with the name of J. Wilkes Booth, together 
with notes on the Ontario Bank, in the name 
of Booth, and memoranda showing they once 
belonged to Booth. The coat and all its con- 
tents were disposed of by the prosecution itself- 
McPhail swears Atzerodt told him the coat and 
arms all belonged to Herold. The clerk at the 
Kirkwood swears somebody called for Atzerodt 
in the afternoon. It was Herold who visited 
Atzerodt, and left the coat in his room. One 
handkerchief is marked with the name of Mary 
E. Naylor, the sister of Herold. Another is 
marked “H,” the initial of Herold. But why 
did Atzerodt suffer this coat and arms to be in 
his room? Because he was in a plot to capture 
the President. In so far he was the colleague 
of Herold and Booth. No farther. Because, 
for this purpose, to capture the President, and 
to be used in defense, he carried the knife and 
pistol which McAllister used to keep for him—■ 
the same knife he threw away and the same 
pistol he pawned—and, therefore, he suffered 
Herold to leave his armor for the same reason 
he carried his own. But why did Atzerodt go 
away with the key and never come back? Be- 
cause he did not want to be arrested. Because 
he was not guilty of aiding in the assassina- 
tion of Mr. Lincoln. Because he was in the 
plot so far as to capture the President, and 
when he was ordered to kill the Vice-President 
and refused, he was unable to resolve either to 
inform the authorities, for fear of Booth, or to 
do the deed for fear of being hung; and so he 
just abandoned the room as he abandoned eve- 
rything else connected with the conspiracy. 
Had he been able to resolve to carry out his al- 
lotted duty, he would naturally have taken the 
coat of Herold and put it on, and used the 
aims. Had he been able to resolve to fly at 
once, he would have removed all traces of his 
participation. One reason of leaving without 
paying was because it appears he had no 
money, and the reason for leaving the coat was 
because it did not belong to him, and he had no 
reason to conceal what could not implicate him. 
But the main reason, we must admit, was that 
he was between two fires, which brought out 
his native irresolution, and so he cut the Gor- 
dian knot by running away. We shall see 
that he left the Kimmell House, without paying 
his bill, the next morning. It was for the same 
reason—he had no money until after he had 
pawned his pistol at Georgetown. 
The fourth point of the prosecution is that 
Atzerodt lodged in the same house with the 
Vice-President, and the relative situation of 
the rooms was favorable to assassination. Prob- 
ably five hundred people roomed at the Kirk- 
wood the same night, and had rooms which 
enabled the owners to command the room occu- 
pied by the Vice-President. The Vice-Presi- 
dent’s room is the first on the right-hand side, 
after reaching the landing of the second floor. 
It is a room which nobody can help passing, 
either going down or coming up. It is impossi- ARGUMENT OF W. B. DOSTER. 
303 
We to got a room lower than that in the house. 
That At zerodt, therefore, might, in passing, 
have entered it, is saying that everybody in 
the house might have done the same. But this 
Doom, No. 126, is about as remote from Mr. 
Johnson’s as possible. It is in a different 
ndng, and removed by many perplexing turns 
and four flights of stairs. It is very evident, 
at a moment’s inspection, that any one desirous 
°f lying in wait for the Vice-President could 
Dot well have missed his purpose farther, and 
that vrith that intent he would have sought, at 
least, a room on the same floor. But the actual 
fact is better than suppositions. Mr. Browning 
fells us that the Vice-President was in his 
Doom from five in the evening to ten at night, 
and that there were, therefore, six hours in 
'"'hich the deed could have been done. In all 
that time we have no evidence that Atzerodt 
"'as at the Kirkwood House, except the stale- 
Dient of Fletcher, the hostler at Naylor’s sta- 
bles, who says he followed Atzerodt, and saw 
him dismount at the Kirkwood, stay five min- 
ntes, and come out again. What was he doing 
there? He was taking a drink at the bar. It 
is impossible to show this. The barkeeper does 
Dot remember the faces of all who take a drink. 
If he was lying in wait, why did it take him 
but five minutes? But if he tried to kill Mr. 
Johnson, if he tried to get into his room, why 
is it not shown in evidence? If he was in any 
D'ay prevented from getting into his room, why 
was it not shown in evidence? Governor Far- 
rell, who went first to the Vice-President’s 
foom after the assassination, saw no one lying 
*n wait; he was not told by the President there 
had been anybody lying in wait; the lock had 
not been tampered with; no attempt whatever 
made; the Vice-President was in his room 
six hours, but at the very time when the Presi- 
dent was shot he was left undisturbed, even by 
a knock, in his room. And why? Because 
Atzerodt refused to go and kill him. Because 
Atzerodt, during the evening, kept up appear- 
ances, but backed out. Because the instrument 
yhich was to have assassinated the Vice-Pres- 
ident was either too conscientious or afraid to 
do it. During the whole half hour following 
no one attempted to kill him, no one was seen 
lying in wait. Why? Because there had been 
and there was no one lying in wait. He who 
to do it was somewhere else, getting drunk. 
A fifth point alleged in corroboration of his 
Snilt is, that, on his arrest by Sergeant Gem- 
nflU, he gave a false name, denied having left 
Washington recently, and said he had nothing 
fo do with the assassination. In the last state- 
ment he but told the truth. Assassination and 
murder were things for which he was not by 
nature intended, and he had nothing to do with 
As for giving a false name, it appears the 
Sergeant understood his name to be Atwood, 
and had been ordered to arrest Atwood, and 
Anally says he did not really understand the 
name, it was in German. Certainly he might 
®ay he had not left Washington recently. He 
knew that he had been in a plot to capture the 
president, and he knew that he had been a col- 
mague of the President’s murderer in another 
Sterne, and, of course, he was afraid to confess 
his part then and there. Any presumption of 
guilt that might arise from these circumstances 
is negatived by Richter, his cousin, at whose 
house he was staying. He tells us that he 
worked in the garden; saw the neighbors; made 
no attempt to escape, nor was he in an unusual 
frame of mind. He was, doubtless, in’ that 
frame of mind when one, who had been on the 
verge of being dragged into murder for gold, 
had fled from the temptation and been saved— 
a happy and a tranquil mood. Finally, that he 
stated to Metz, “Gen. Grant would have been 
killed, if the man had followed that was to have 
followed him,” is denied by the two brothers, 
Leaman, who state he said: “That Grant, if he 
was killed, must have been killed by somebody 
that got into the same car”—an innocent and 
most truthful proposition; and any remarks he 
made at that time about his “Having more 
trouble than he would ever get rid of,” even 
supposing the words had not reference to the 
love matters which immediately preceded it, 
are by no means so much a sign of guilt as the 
honest expression of fear, lest one who has 
been a colleague in a lesser crime may get into 
difficulty about a greater, of which he was in- 
nocent. 
The sixth point is, that Atzerodt said to 
Fletcher, on the evening of the 14th, after 10: 
“If this thing happens to-night you will hear 
of a present;” and also in reference to the 
mare: “She is good on a retreat;” and that the 
Sunday before he said to Lieut. Keim, at the 
Kimmell House, after finding his knife: “If 
one fails, I shall want the other.” On the first 
occasion both parties had been drinking, and 
Fletcher says he thought Atzerodt half drunk, 
while the other remark was made after each 
party had taken three cocktails. So that, even 
if we credit the drunken memories of the wit- 
nesses, we can not do more than ascribe it to 
pot valor, pointing to the possible desperate 
melee of an attempt to capture. 
All the evidence to prove that the prisoner 
was lying in wait to assassinate Mr. Johnson 
may be summed up thus: On the same evening 
that the President was assassinated he had a 
room at the same hotel as the Vice-President, 
in which were found arms and the name of the 
President’s murderer. He was before seen with 
the murderer, and used expressions indicating 
expectation of gold and the use of his arms, 
and afterward he fled the city, and said he had 
trouble on his mind. These circumstances are 
nothing by themselves. Any friend of Booth’s 
might have carried arms, stayed at the Kirk- 
wood, had Booth’s coat in his room, said he ex- 
pected to be rich, and afterward said he had 
troubles. These things might have naturally 
happened to John Ford, the manager of the 
theater; to Junius Brutus Booth; to any other 
friend of Booth’s, innocent of the plot as the 
babe unborn. These circumstances are only 
important if it is proved that the person who 
is involved in them either tried to murder 
Mr. Johnson or was prevented. That proven, 
the arms are the tools of murder, the coat the 
coat of an accomplice, the talk of gold an ex- 
pression of intention, the talk of trouble a con- 
fession of guilt. But if it is not shown that an 304 
THE CONSPIRACY TRIAL. 
attempt was made to murder, or that it was im- 
possible to attempt murder; and if, on the con- 
trary, it is shown that there was every 
opportunity for murder, and nothing in the 
world to prevent it, then these circumstances 
lose all their force, and we are bound to be- 
lieve that where there was every opportunity 
and no attempt, there was no intention and no 
lying in wail. 
Adopting the theory that Adzerodt intended 
to murder, and lying in wait to murder, 
we are met at every step with denials. Thus, 
if he was lying in wait, why did he not 
stay at the Kirkwood House during the even- 
ing? Why did nobody see him lie in wait? 
Why did he come out of the Kirkwood at about 
ten minutes after ten without having tried to 
attack the Vice-President? Why did he not 
enter the room? Why, at 10:20, was he drink- 
ing at the Kimmell House? Why, in short, was 
he riding about town instead of waiting outside 
the Vice-President’s room? There is only one 
theory that will make everything agree: At- 
zerodt backed out. He would have liked the 
money for capturing, but he did not like to be 
hung for murder. He never heard of murder 
before that evening at eight, or he would long 
before have hid himself. When he did hear it 
he had firmness enough to object. Coward con- 
science came to his rescue. But Booth threat- 
ened to kill, and he knew well enough he was the 
man to close the mouth of any one who troubled 
him. So he went off, driven like a poor frail 
being between irresolution and fear; took 
drinks, feigned to be doing his part, talked 
valiantly while the rum was in his throat, 
promised gloriously, galloped around fiercely, 
looked daggers, and when the hour struck did 
nothing and ran away. This, gentlemen, is the 
history in a small compass—venit, videt, fugit. 
He tried to become a hero, but he was only a 
coachmaker. 
heart, the pigeon-liver asserted itself, the 
prince was gone, and the habits of the tavern- 
brawler re-appeared. Nor was he a natural 
boaster. He was simply the Curius of the con- 
spiracy, who could neither keep his own secrets 
nor those of others; who was big with the por- 
tentous future, although he knew not what it 
was; who exchanged his wrath for a sudden 
prudence; and so as he imitated his prototype, 
“Repente glorians maria montesque policeri cccpit, 
so he afterward imitated him by pointing out 
Booth, and informing, under the promise ot 
mercy, upon his fellows. There is, then, no 
evidence whatever that he was “lying in wait 
to kill Mr. Johnson, with the intent, unlawfully 
and maliciously, to kill and murder him.' 
There is only one other clause of the specifica- 
tion that deserves notice—the allegation that 
the lying in wait was “about the same hour of 
the night,” viz.: Ten o’clock and fifteen min- 
utes, on the evening of the 14th of April. Let 
us see, again, where the prisoner was at this 
time, 10:15. Fletcher says he came to Naylor’s 
stable at ten. He then asked him whether be 
would have a drink. Fletcher said yes. They 
went down to Thirteen-and-a-half and E street, 
to the Union Hotel, and took a drink apiece; 
went back to the stable, and had some conver- 
sation about the mare. Meanwhile the boy had 
got the wrong horse, and had to go back and 
get the mare. Then they had some conversa- 
tion about Herold. Then he rode down E, past 
Thirteen-and-a-half street, and finally came to 
the Kirkwood House. Fletcher says that he rode 
so slowly that he kept up with him. Now, believ- 
ing what is improbable, that Fletcher did keep 
up with a man on horseback for three squares 
(for from Naylor’s to the corner of Thirteen- 
and-a-half and E streets is one square, to 
Twelfth and E two squares, and to Twelfth and 
Pennsylvania avenue three squares), we are 
further obliged to believe that, in fifteen min- 
utes, Atzerodt ordered a horse, walked two 
squares, waited for two drinks, paid for them, 
held two conversations, mounted, dismounted, 
had a horse changed, and, afterward, rode three 
squares so slowly that a hostler could follow 
him. It is not possible. At 10:15 Atzerodt 
was either not yet at the Kirkwood House, or 
else Mr. Fletcher made a mistake in his time- 
His course after this was as follows : Fletcher 
says he rode up D in the direction of Tenth; 
yet at this very time, about ten, McAllister 
says he came with his mare to the Kimmell 
House, “rode up to the door, and called the 
black boy out to hold his horse.” Now, the 
Kimmell is on C street, near Four-and-a-haU, 
and, of course, when he rode down D he went 
to the Kimmell. 
Look at the face of this impossible Brutus, 
and see whether you can see therein that 
he is— 
“ For dignity composed and high exploits.” 
Why, gentlemen, this hero, who, under the 
influence of cocktail courage, would capture 
Presidents and change the destinies of empires, 
is the same fleet-footed Quaker, famous in Port 
Tobacco for jumping out of windows in bar- 
room fights; an excellent leader—of a panic, 
this son of arms who buries his knife in a gut- 
ter and revolves his revolvers into a greenback. 
Well might it have been said to Booth ; 
“ O, Cassius, you are yoked to a lamb 
That carries auger as the flint bears fire; 
Who much enforced shows a hasty spark, 
And straight is cold again.” 
Thus we now know what he was doing at the 
time Payne was at Mr. Seward’s, and at the 
time Booth shot the President. He was riding 
round from bar-room to bar-room; and it ls; 
very plain he was now in liquor. He was halt 
tight when Fletcher saw him, and yet took an- 
other drink with him. He went to the Kirk- 
wood and took another drink ; he went to the 
Kimmell and took another. Certainly, of get' 
ting drunk, of riding from tavern to tavern, ot 
guzzling like a Falstaff, of having an inex- 
He has the courage of vanity and of folly. 
As long as he could be seen on intimate terms 
with Booth about hotels, it did his soul good to 
be so great a confederate; and as long as he 
could see a bold stroke by which he might sud- 
denly change the coachmaker into a prince, he 
was, doubtless, brave. But when he heard of 
murder, conceived to himself his going into the 
Vice-President’s room and stabbing him to th& ARGUMENT OF W. E. DOSTER. 
305 
thirst—of this he is guilty; but 
°T lying in wait for the President at 10:16, we 
are Paying him an undeserved compliment. 
. There is, therefore, no part of the specifica- 
U°n proven, but the immediate contrary. Dur- 
the whole of that evening, as far as the evi- 
c*ence throws any light on his conduct, instead 
lying in wait near the Vice-President to 
Murder him, he was standing over the different 
”ars, from the Union House to the Kimmell, 
'Mth the intent then and there, unlawfully and 
Maliciously, to make Atzerodt drunk. Thus 
Much of the specification. 
There is one suggestion I will answer before 
i leave the specification. Why, if he was so 
Cowardly, so halting, so irresolute a character, 
1(1 Booth employ him ? Booth employed him 
Mr an emergency which he was perfectly com- 
PMent to meet. In the plot of the capture, the 
Tart assigned to the prisoner was to furnish the 
■Mat to carry the party over the Potomac. For 
JMis his experience in a seaport town fitted him. 
ibis required no resolution and no courage. 
f.°r participation in the President’s assassina- 
Mn he could never have been intended. Booth, 
as these men all agree, as his own conduct 
®hows, was ambitious to carry off the glory of 
,bis thing. Payne says Booth remarked, he 
Wanted no botching with the President and 
J*en. Grant.” As for the rest, therefore, of the 
Cabinet, he probably had no concern; he was 
ar more interested in his own part than in 
others. When he, therefore, told Atzerodt to 
ake charge of the Vice-President, he must have 
a°Wn that the prisoner had not the courage, 
?a<i therefore did not care particularly whether 
e accomplished it or not, only so he himself 
M>uld attain the desired immortal infamy. He 
anted Atzerodt as the Charon, the ferryman 
i. The capture, and, after the failure, reserved 
Ua for greater things, the duties of Orcus, which 
e Was incompetent to perform. 
The charge is divisible into two separate and 
■batinct allegations. First, “ For maliciously, 
traitorously and in aid of the armed 
ebellion against the United States, combining, 
and conspiring with Booth, Sur- 
>att, Davis, etc., to kill and murder Abraham 
J?coln, General Grant, Andrew Johnson and 
A/Uiam H. Seward, on or before the 6th day of 
March.” 
e The substance of this allegation is, that as 
as the 6th of March there was a project 
g1 toot to kill the President and the heads of 
s,ate i and, to involve the prisoner, it must be 
yj °Vvu that as early as March 6th he was ad- 
is fM* of and agreed to it. Now, what evidence 
p here that there was a conspiracy to kill the 
esident as early as March the 6th? Chester, 
the ?ctor, says he knew of a plot to capture in 
ci. tatter end of February. Weichmann, the 
u ,lef witness for the prosecution, states that as 
IBtV,aS mt(tdle of March—about the 16th or 
thinks—about three weeks before the 
agination, John Surratt, Booth, Atzerodt 
aU 1 ?ayne) Took a ride into the country, armed, 
burned. What does this show, but that 
I* after the 6th of March it was the 
a/MTion of Booth to capture the President at 
Soldiers’ Home, and abduct him? Before 
and during the early part of March, Atzerodt 
was af Brawner’s Hotel, at Port Tobacco, and 
could have known nothing of it, even had the 
plot existed. As late as the 18th of March, as 
was shown in the cases of O’Laughlin and Ar- 
nold. there was a project to capture, from which 
they backed out. As late as the 18th of March 
Booth admits the sale of horses, the detection 
of parties, and fixes the time of the abandon- 
ment of the scheme. Payne said he never knew 
of any plot to assassinate until the evening of 
the 14th, at eight o’clock, at a meeting held at 
the Herndon House, while Atzerodt confirms it 
in all his confession, that the evening of the 
14th day of April was the first time he ever 
heard of a plot to kill the heads of State. The 
only evidence against this is the testimony of 
Norton, who declares that on the 3d of March, 
Booth and Atzerodt spoke as follows ; “If the 
matter succeeded as well with Johnson as it did 
with old Buchanan, the party would be terribly 
sold;” from which it might be inferred that on 
that date assassination was broached to Atze- 
rodt. Fortunately we know that this Norton is 
an egregious falsifier, as it was shown that nei- 
ther Atzerodt nor Dr. Mudd was in Washington 
that day, and he himself is proved not worthy 
of being believed on oath. 
The prisoner, therefore, can not be found 
guilty of the first member of the charge. 
The second member of the charge is, in sub- 
stance, as follows: “For, on the 14th of April, 
A. D. 1865, with John Wilkes Booth and John 
Surratt, maliciously, unlawfully and traitor- 
ously assaulting, with intent to kill and murder, 
William H. Seward, and lying in wait to kill and 
murder Vice-President Johnson and Gen. Grant.” 
This charges Atzerodt with being an accom- 
plice of Payne in the assault on Mr. Seward, and 
an accomplice of whoever was lying in wait for 
Gen. Grant and Vice-President Johnson. Now, 
it was proved beyond a shadow of doubt, under 
the specification, that Atzerodt himself Avas not 
lying in wait for President Johnson, nor was 
anybody else shoAvn to be lying in wait for 
him. Atzerodt is, therefore, neither principal 
nor accessory to the lying in wait for Vice- 
President Johnson. But was he not an accom- 
plice or accessory to Payne’s assault of Mr. 
Seward, or to Booth’s killing of the President? 
If so, he must have been accessory- either be- 
fore the fact or alter the tact. An accessory 
before the fact is “one who, being at the time 
of the crime committed, doth yet procure, coun- 
sel or command another to commit a crime.” 
Now, Avas Atzerodt the one who procured, coun- 
seled or commanded either Booth or Payne ? 
Certainly not. The position Atzerodt held was 
one of subordinate; he was the procured, the 
counseled, the commanded, as far as we can. 
judge of the different characters, as far as we 
know that Booth Avas the ringleader; as far as 
we know that in all the dealings Atzerodt was 
the slave, and Payne and Booth the masters. 
Was Atzerodt, then, accessory after the fact? 
There is greater plausibility of this, but no 
evidence. “An accessory after the fact may be 
where a person, knowing a felony to have been 
committed, receives, relieves, comforts or as- 
sists the felon.” Did Atzerodt in any way help THE CONSPIRACY TRIAL, 
Booth or Payne after the felony was committed ? 
No; he never saw either of them after the meet- 
ing at eight o’clock until he met Payne on the 
monitor. Instead of assisting them, he kept 
.getting drunk ; instead of helping them across 
the river, the sergeant says only two passed the 
bridge, viz.: Booth and Herold; instead of 
showing by his horse he had assisted, his horse 
came back just in the same condition as it went 
away, and that at eleven o’clock; instead of 
comforting or relieving them across the river, 
he went to Washington Briscoe, and finally to 
bed at the Kimmell House, instead of receiving; 
he first toldMcPhail and Wells Booth had gone 
in the direction of Bryantown, and confessed 
the whole affair, and had them all arrested. The 
assistance he has rendered the assault and mur- 
der is such neither of the principals has any 
occasion for gratitude; and, therefore, he can 
not be found guilty of being an accessory after 
the fact, neither helping Booth nor Payne. But 
the prosecution have laid great stress on a big 
bay horse, with large feet, and blind in one eye. 
They show that such a horse was found sad- 
dled (near Camp Barry), and without a rider, 
at twelve o’clock on the night of the assassi- 
nation. They show that this horse was brought 
to Naylor’s stable by Atzerodt and another 
man on the 3d of April, to be sold and kept 
there until the 12th of April; that on the 14th, 
Atzerodt came to the stable again and said he 
had sold the horse in Montgomery county; that 
Fletcher, the hostler, swears the horse, saddle 
and bridle Atzerodt said he sold, are the 
same found near Camp Barry. Well, what, 
if this. testimony be true, is the conclusion? 
One conclusion is, that Atzerodt told a lie; 
for how, if he sold this horse in Montgom- 
ery county on the 12th, comes he to Camp Barry 
on the 14th? Well, let us concede that Atze- 
rodt lied. We are not trying him for his ve- 
racity. He is not bound to tell every hostler 
how he disposes of his horses. But the second 
conclusion the prosecution draws is, that 
Payne rode this horse, and that Atzerodt fur- 
nished him the horse. Let us examine what 
ground there is for the conclusion. According 
to Fletcher, the horse when brought to Naylor’s 
in April did not belong to Atzerodt. He be- 
longed to the gentleman with him, who “left 
him in Atzerodt’s care to sell.” He was, there- 
fore, factor of the gentleman in the horse bus- 
iness, and took the horse away on the 12th. 
The negro who saw the horse Payne rode, says 
he was a “big bay, very stout.” But was this 
horse not belonging to some one else ? Was the 
horse found at Camp Barry ever ridden by 
Payne? The truth of the whole matter is this: 
The horse brought to Naylor’s was bought by 
Boothof Mr. Gardiner, living in Prince George’s 
county, in the latter part of last November, 
according to the evidence of Thomas Gardiner. 
On April 3d, Atzerodt went to Naylor’s with 
Booth, and was ordered to sell him there. The 
saddle and all belonged to Booth. It was the 
same big bay which Atzerodt, on the 12th, tried 
to sell to Matthew Pope, at the Navy Yard, for 
Booth. On the 12th, Atzerodt, not succeeding 
in selling him, returned him to Booth, and that 
is the last connection that Atzerodt ever had 
with the horse. He tried to sell, and could not, 
and so gave him back to Booth. Here ends the 
brokerage and the responsibility of Atzerodt. 
Whether Booth ever gave this horse to Payne, 
and where he kept him until that evening, are 
questions that Payne alone can answer. It is 
probable that this horse was kept for two days 
in the stable in the rear of Ford’s, and on that 
night given to Payne. But there is no evi- 
dence that Atzerodt gave Payne a horse over 
which he had ceased to have control, and which 
belonged to Booth. On the contrary, it is 
shown that Atzerodt was never seen in com- 
pany with that horse after the 12th, and never 
claimed to be the owner. Any inference ot 
complicity, therefore, drawn from this horse is 
turning horse-brokerage into murder. The 
prisoner, then, being neither guilty as accessory 
before nor after the fact, neither counseling nor 
aiding Payne and Booth before, nor assisting 
and .receiving Payne -and Booth after the fact, 
can not be found guilty of any branch of the 
charge. 
What is, then, the plain, unvarnished truth 
of Atzerodt’s part in this conspiracy ? I will 
briefly relate it. During the latter part of Feb- 
ruary, John Surratt and Booth wanted a man 
who understood boating, and could both get a 
boat and ferry a party over the Potomac on a 
capture. Surratt knew Atzerodt, and under 
the influence of great promises of a fortune, 
the prisoner consented to furnish the boat, and 
do the ferrying over. The plot was attempted 
the 18th of March, and failed. Booth, how- 
ever, kept his subordinates uninformed of hi 3 
plans,exceptit was understood that the President 
was to be captured. Meanwhile, everybody 
was waiting for Booth. On the 18th of March 
Atzerodt went to the Kimmell House. On the 
Ist of April he talked of future wealth. 0® 
the 6th he spoke to Lieut. Keim, over their liquor, 
of “ using one, if the other failed.” On the 
12th he stayed at the Kirkwood, and tried t0 
sell the bay horse at Pope’s. On the 14th Booth 
unfolded his plans at the Herndon House, and 
Atzerodt refused. # From the Herndon House he 
went to Oyster Bay and took drinks till ted- 
At ten he took a drink with Fletcher at tbe 
Union; at ten minutes after ten he tookadrinh 
at the Kirkwood ; at twenty minutes after ted 
he took a drink at the Kimmell House, and rode 
about the city. At eleven he returned his hors®! 
at twelve he was at the Navy Yard ; at two hc 
went to bed. Next morning at five he got dp 
and went to Georgetown, pawned his pistol, aW 
went to Mr. Metz’. On the 16th (Sunday) he 
took dinner at Metz’. On Sunday evening h° 
went to Hartman Richter’s. On the 19th hc 
was arrested. Thus ends this history, which’ 
under a greater hand, might have become 
tragedy, but with the prisoner has turned id 
a farce. 
Before I close, it is my duty to submit so# 
reflections as to the nature of the crime ad 
the nature of the penalty, in case you shod 
find him guilty, which I hold can not be dod 
under the evidence. This man is principal i 
an attempt to abduct the President of 4 
United States. He has assaulted no one; 
has sheltered no one that did assault. He ha ARGUMENT OF W. E. POSTER. 
307 
killed no one, nor has he sheltered anyone that 
did kill. You can, therefore, only find hiih 
guilty of a crime for which he is not on trial. 
If it be argued, that although the prisoner ran 
away, he intended to kill Mr. Johnson, the an- 
swer is, intention can only be inferred from 
acts. “Itis a universal rule that a man shall 
be taken to intend that which he does.” Hale, 
P. C., 229. And the converse of this is true, 
that a man shall not be taken to intend what 
he does not do. Exteriora acta indicant animis 
secreta. 8 Co., 146. And, therefore, as we know 
he ran away we are bound to infer that he 
had no intention of murder. If it be argued 
that, although neither guilty as accessory in 
felony nor principal in treason, he is yet 
guilty of the conspiring, which is the essence of 
the offense, the answer is, the conspiracy in 
■which he was engaged is not the conspiracy 
for which he is on trial; and that as soon as 
he knew of the latter he hastened to dissolve 
all connection with the conspirators. 
ing of the 14th of April I met Booth and Payne 
at the Herndon House, in this city, at eight 
o’clock. He (Booth) said he himself should 
murder Mr. Lincoln and General Grant, Payne 
should take Mr. Seward, and I should take Mr. 
Johnson. I told him I would not do it; that I 
had gone into the thing to capture, but I was 
not going to kill. He told me I was a fool; 
that I would be hung any how, and that it was 
death for every man that backed out; and so 
we parted. I wandered about the streets until 
about two o’clock in the morning, and then 
went to the Kimmell House, and from there 
pawned my pistol at Georgetown, and went to 
my cousin’s house, in Montgomery county, 
where I was arrested the 19th following. Af- 
ter I was arrested, I told Provost Marshal Wells 
and Provost Marshal McPhail the whole story ; 
also told it to Capt. Monroe, and Col. Wells told 
me if I pointed out the way Booth had gone I 
would be reprieved, and so I told him I thought 
he had gone down Charles county in order to 
cross the Potomac. The arms which were found 
in my room at the Kirkwood House, and a black 
coat, do not belong to me; neither were they 
left to be used by me. On the afternoon of the 
14th of April, Herold called to see me and left 
the coat there. It is his coat, and all in it be- 
longs to him, as you can see by the handker- 
chiefs, marked with his initial, and with the 
name of his sister, Mrs. Naylor. Now I will 
state how I passed the whole of the evening of 
the 14th of April. In the afternoon, at about 
two o’clock, I went to Keleher’s stable, on 
Eighth street, near D, and hired a dark bay 
mare and rode into the country for pleasure, 
and on my i-eturn put her up at Naylor’s sta- 
ble. The dark bay horse which I had kept at 
Naylor’s before, on about the 3d of April, be- 
longed to Booth ; also the saddle and bridle. I 
do not know what became of him. At about 
six in the evening, I went to Naylor’s again 
and took out the mare, rode out for an hour, 
and returned her to Naylor’s. It was then 
nearly eight, and I told him to keep the mare 
ready at ten o’clock, in order to return her to 
the man I hired her from. From there I went 
to the Herndon House. Booth sent a messen- 
ger to the “ Oyster Bay,” and I went. Booth 
wanted me to murder Mr. Johnson. I refused. 
I then went to the “ Oyster Bay,” on the Ave- 
nue, above Twelfth street, and whiled away the 
time until nearly ten. At ten I got the mare, 
and having taken a drink with the hostler, gal- 
loped about town, and went to the Kimmell 
House. From there I rode down to the depot, 
and returned my horse, riding up Pennsylva- 
nia Avenue to Keleher’s. From Keleher’s, I 
went down to the Navy Yard to get a room 
with Wash.Briscoe. He had none, and by the 
time I got back to the Kimmell House it was 
nearly two. The man Thomas was a stranger 
I met on the street. Next morning, as stated, 
I went to my cousin Richter’s, in Montgomery 
county. Geoege A. Atzeeodt. 
As for the punishment, supposing he could be 
found guilty of either the charge or the speci- 
fication, the offense, in either case would only 
be technical, and have damaged no one; and 
even supposing he were proven guilty of the 
charge and specification, he has already turned 
states-evidence to the Provost Marshal, and 
therefore his punishment would fall under the 
practice usual in the courts of justice, that one 
Who confesses has an equitable right to the len- 
iency of the coui't. His case, however, rests 
on no such slender ground. Instead of con- 
spiring to kill, he refused to kill; and instead 
of lying in wait to murder, he intoxicated him- 
self at the appointed hour, and next morning 
ran away. He is guilty solely of what he con- 
fesses—of conspiring to abduct the President— 
and of that can be found guilty only under a 
new indictment. 
I claim, therefore, at your hands an unqual- 
ified acquittal. That he did wrong in conspir- 
ing to capture, is admitted. That he should 
be punished for it whenever tried for it, is also 
admitted. But that he is innocent of both 
charge and specification, as now laid, is so 
transparent, that his acquittal will, I trust, be 
nrged by the Judge Advocate as a matter of 
form, if it were not also a matter of justice. 
STATEMENT BY GEORGE A. ATZERODT, 
Read by his counsel, W. E. Hosier, Esq. 
The prisoner, Atzerodt, submits the following 
statement to the Court: 
I am one of a party who agreed to capture 
Ihe President of the United States, but I am 
not one of a party to kill the President of the 
United States, or any member of the Cabinet, 
General Grant, or Vice-President Johnson. 
The first plot to capture failed; the second—to 
*lll—I broke away from the moment I heard 
of it. 
This is the way it came about; On the even- ARGUMENT 
IN 
DEFENSE OF LEWIS PAYNE, 
BY 
W. E. DOSTER, ESQ. 
May it please the Court; 
and two sons. He lived for some time in Worth 
and Stewart counties, Georgia, and in 1859 
moved to Florida. At the breaking out of the 
war, but four years ago, the prisoner was a lad 
of sixteen, engaged in superintending his 
father’s plantation and a number of slaves. 
We may safely presume that, occupied in the 
innocent pursuits of country life, he daily heard 
the precepts of the Gospel from his father; that, 
in the society of his sisters, the hardy life of a 
planter was softened by the charms of a refined 
and religious circle, and that, in the natural 
course of events, he would be to-day, as he was 
then, a farmer and an honest man. But, in 
1861, war broke out—war, the scourge and pes- 
tilence of the race. The signal, which spread 
like a fire, was not long in reaching Live Oak 
Station. His two brothers enlisted, and Lewis, 
though but sixteen, enlisted in Capt. Stuart’s 
company, in the Second Florida Infantry, com- 
manded by Col. Ward, and was ordered to 
Richmond. 
I. There are three things in the case of the 
prisoner, Payne, which are admitted beyond 
cavil or dispute: 
1. That he is the person who attempted to take 
the life of the Secretary of State. 
2. That he is not within the medical definition 
of insanity. 
3. That he believed what he did was right 
and justifiable. 
The question of his identity and the question 
of his sanity are, therefore, settled, and among 
the things of the past. The sole question that 
remains is, how far shall his convictions serve 
to mitigate his punishment? I use the word 
punishment deliberately, and with the conscious- 
ness that in so doing I admit that if he is a re- 
sponsible being he ought to be punished. And 
I say it, because I can not allow my duties as 
counsel to interfere with my convictions as a 
man so far as to make me blind to the worth of 
the life of a distinguished citizen, and the aw- 
ful consequences of an attempt to take it away. 
If, indeed, such an attempt be allowed to go with- 
out rebuke, then it seems to me the office is but a 
perilous exposure to violence; then the highest 
compensation for public services is the distinc- 
tion which follows assassination, and then our 
public servants are but pitiable and defenseless 
offerings to sedition. And surely, if any public 
servant deserved to be excepted from that fate, 
it was he, the illustrious and sagacious states- 
man, who, during a long life of arduous serv- 
ices, has steadfastly checked all manner of fac- 
tious and public discontent; who, in the darkest 
days of discord, has prophesied the triumph of 
concord, and who at all times has been more 
ready to apply antidotes than the knife to the 
nation’s wounds. How far, then, shall the con- 
viction of the prisoner that he was doing right 
go in extenuation of his offense ? That we may 
accurately, and as fully as the occasion de- 
mands, understand the convictions of the pris- 
oner, I invite your attention to a sketch of his life, 
the customs under which he was reared, and the 
education which he received. Lewis Thornton 
Powell is the son of the Rev. Geo. C. Powell, a Bap- 
tist minister, at present supposed to live at Live 
Oak Station, on the railroad between Jackson- 
ville and Tallahassee, in the State of Florida, 
and was born in Alabama in the year 1845. 
Besides himself, his father had six daughters 
Let us pause a moment in this narrative, and 
consider what, in the eyes of this Florida boy, 
was the meaning of war, and what the thoughts 
that drove him from a pleasant home to the field 
of arms. At another time I might picture to you 
the scene, but too familiar, of his taking leave; 
a mother, like the mothers of Northern boys, 
shedding tears, less bitter, because she was 
dedicating a son to her country ; sisters, whose 
sorrow, like the sorrow of the sisters of Northern 
boys, was alleviated with pride that they had a 
brother in the field; the father’s blessing; the 
knapsack filled with tributes of affection, to be 
fondled by distant bivouac fires, and the heavy 
sigh, drowned in the rolling of the drum. But this 
is not a stage for effect. We know this was 
mistaken pride and sorrow in a mistaken cause, 
though the object of them was a son and brother, 
and we must not consider them, though the boy 
was but sixteen when he launched on the terri- 
ble sea of civil war. 
In the State of Florida were two separate 
races—one white and the other black—of which 
the one was slave to the other, and Lewis be- 
longed to the race which was master. It was 
a custom of this State for masters to whip their 
slaves, sell them, kill them, and receive the con- 
stant homage which the oppressed offer to the 
powerful. It was the custom of this State to 
whip and burn men who preached against the 
custom. It was the custom to defend this instx- 
308 ARGUMENT OF W. E. DOSTER. 
309 
tution in meeting-houses, at political gather- 
ings, in family prayers. It was the custom to 
hunt fugitives with bloodhounds—even those 
■who tried to help them to freedom. 
In this custom the prisoner was bred ; educa- 
tion made it a second nature; politicians had 
taught him to find it in the Constitution, 
preachers had taught him to find it in the Bible, 
the laws taught him to regard it as property, 
habit had made it a very part of his being. In 
the eyes of the lad, the war meant to abolish 
this custom and upheave society fi’om its foun- 
dations. His inheritance was to be dissipated, 
his vassals equals, his laws invaded, his re- 
ligion confounded, his politics a heresy, his 
habits criminal. Hereafter, to strike a slave 
Was to be an assault, to sell one felony, to kill 
one murder. For this, then, the lad was going 
to fight—the defense of a social system. That was 
the reason. It was a traditional political pre- 
cept of the State in which the prisoner lived, 
that the State, like its elder sisters, had reserved 
the right of divorcing itself at pleasure from the 
Union, and that great as the duty of a citizen 
might be to the Union, his first duty was to 
Florida. Schoolmasters taught that the rela- 
tive rights of State and Nation had been left 
Unsettled; politicians taught that the local 
power was greater than the central, and in sup- 
port of it men were sent to Washington. The 
War, in the eyes of the boy, meant to reverse 
this, to subordinate the State to the Nation, the 
Governor to the President, Tallahassee to Wash- 
ington City. And,therefore,he was going to fight; 
to defend State rights. That was the second reason. 
It was a deep-seated conviction of the people 
in this State that their blood and breeding 
■Were better than the blood and breeding of 
Northerners ; that they had more courage, more 
military prowess, and were by nature superiors. 
This conviction the war threatened to over- 
throw, this boast the war was to vindicate, this 
superiority was, by the war, intended to be 
Proved. And this was the third reason he was 
going to fight—to show that he was a better man 
than Northerners. 
sailed, and a code that remembered friends and 
never forgave enemies. These, then, were the 
morals and instincts of the lad—it is right to 
kill negroes, right to kill abolitionists; it is 
only wrong to break promises, to forget a 
friend, or forgive an enemy ; and to do right 
is to be ready with bowie-knife and pistol. 
Now let me ask whether in the wide world 
there is another school in which the prisoner 
could so well have been trained for assassina- 
tion as in this slave aristocracy ? The stealth- 
iest Indian that ever shot from ambush was not 
so well instructed in the social use of his knife; 
the deadliest Gheber that ever strangled his 
victim had not the animosity which comes from 
power in danger of losing its slaves, nor the 
cheap regard for human life which comes from 
trading in and killing slaves. All the horrible 
accomplishments of assassination, which Ma- 
chiavel says are three—“ fierceness of nature, 
resolute undertakings, and having had one’s 
hands formerly in blood,” are his by religion, by 
politics, by law, by education, and by custom. 
And who is responsible for this training of the 
lad ? Standing, as we do to-day, at the end of 
a four years, war, having just heard again re- 
cited tales of prisoners starved, cities infected, 
cities burned, prisons undermined—things that 
seem unparalleled in the barbarity of all ages 
—and all by men who, four years ago, sat side 
by side with us, and seemed no different, we 
now know, what we never dreamt of, that this 
is the spirit of slavery, stripped of its disguise. 
In rebellion we now recognize the master never 
taught to obey; in arson of cities we see again 
the fagot and the stake; in Libby and Ander- 
sonville we see again the slave-pen; in cap- 
tures the bloodhound and the lash; in assassin- 
ation the social bowie-knife and pistol; and in 
this prisoner the legitimate moral offspring of 
slavery, State rights, chivalry, and delusion. 
But who is to blame that he, with five millions 
more, was so instructed, so demoralized, so ed- 
ucated to crime ? Is it his father and mother ? 
They found their precepts in the Bible; they 
gave their son but the customs they had them- 
selves inherited. Is it the society of Florida? 
It was a society that ruled this country until 
within four years, and occupied the seats of 
Government. Is it the laws of Florida ? They 
were but rescripts of the Constitution. Is it 
the Constitution? That is but the creation of 
our forefathers. Who, then, is responsible that 
slavery was allowed to train assassins? I 
answer, it is we; we, the American people; 
we who have cherished slavery, have compro- 
mised with it, have for a hundred years ex- 
tended it, have pandered to it, and have at last, 
thanks be to God, destroyed it. Let us, then, not 
shrink from our responsibility. If there be 
any Southerner here who has sought to foster 
slavery, he is in part fathgr of the assassin in 
this boy. If there be any Northerner here who 
has been content to live with slavery, he is also 
in part father of the assassin in this boy. If 
there be any American that has been content 
to be a citizen of a slaveholding republic, he is 
part father of the assassin in this boy. Nay, 
all of us—such as he is we have made him— 
the murderous, ferocious, and vindictive child 
There was a frantic delusion among these 
People that Northern men were usurping the 
Government, were coveting their plantations, 
longing to pillage their houses, ravage 
Umir fields, and reduce them to subjection. The 
war was to defend mother, sister, home, soil, 
aud honor, and beat back an insolent invader. 
This was the fourth reason—to repel invasion. 
These were, in the mind of this lad, the incentives 
war. Let us not pass unnoticed how he was 
Schooled in the instincts and morals of war. 
Under the code of slavery we know that the 
of a companion with a bowie-knife or 
111 a duel was an index of spirit; the torture of 
Negroes evidence of a commanding nature; 
Concubinage with negroes a delicate compliment 
wives; spending wealth earned by other 
in luxuriance, chivalric; gambling the 
®Weet reprieve for confinement to plantations, 
of morals had sprung up a code of 
honor—perhaps a false, but surely an exacting 
®md imperious code, that kept bowie-knives in 
~he belt and pistols in the pocket, and had no 
aesitation in using them when slavery was as- 310 
THE CONSPIRACY TRIAL. 
of by-gone American Constitution and laws. 
And what is to be the fate of our offspring ? 
Let us see. That it is criminal, let us reform 
it; that it is deluded, let us instruct it. But let 
us not destroy it, for therein we punish others 
for our own crimes. Let the great American 
people rather speak thus : “ For twenty years 
we have sent you to a wicked school, though we 
knew not the wickedness thereof, until our own 
child rebelled against us. Now we have torn 
down the school-house and driven out the mas- 
ter. Hereafter you shall be taught in a better 
school, and we will not destroy you, because 
you learnt but as instructed.” 
11. But there is another school before him— 
the school of war. At Richmond his regiment 
joined the army of Gen. Lee, and was joined to 
A. P. Hill’s corps; with it he shared the fate of 
the rebel army, passed through the Peninsular 
campaign, the battles of Chancellorsville and 
Antietam. Here ho heard that his two brothers 
were killed at Murfreesboro. Finally, on the 
3d of July, 1863, in the charge upon the Federal 
center, at Gettysburg, he was wounded, taken 
prisoner, and detailed as a nurse in Pennsyl- 
vania College Hospital. 
Let us pause again to consider the effect of 
two years’ campaigning as a private in the 
army of Gen. Lee upon the moral nature of the 
accused. He was one of that army who made 
trinkets and cups out of the bones of Union 
soldiers—an army where it was customary to 
starve prisoners by lingering agonies, which 
supplied jts wants by plundering the dead, 
which slew men after surrender, that was com- 
manded by officers who had violated their sacred 
oaths to the United States, and who taught their 
subordinates that such violation was justifiable; 
an army who were taught by Jackson that God 
wTas the champion of their cause; an army that 
held the enemy in quest of “booty and beauty;” 
an army which believed no means that helped 
the cause of Southern independence unjustifi- 
able, but glorious; an army who for two years 
explained victory by the righteousness of the 
cause—finally, an army that held the person and 
Cabinet of the President in holy execration. 
Surely he could not pass through these two ter- 
rible years without being in his moral nature 
the same as the army of which he formed a 
part. He is now eighteen, and the last two 
years have formed his character. He also ab- 
hors the President of the Yankees; he also be- 
lieves that victory comes because God is just; 
he also believes that nothing is bad so the South 
be free; he also regards a Federal as a ravisher 
and robber; he also prays with Jackson to God 
for the victory. He further believes in Heaven 
and General Lee; dresses himself in the clothes 
of Union dead; stands guard over starving pris- 
oners ; also has his cup carved out of some Fed- 
eral skull. Besides, he has learned the ordinary 
soldier’s lessons, to taste blood and like it; to 
brave death and care nothing for life;' to hope 
for letters and get none; to hope for the end of 
the war and see none; to find .n victory no 
more than the beginning of another march; to 
look for promotion and get none; to pass from 
death and danger to idleness and corruption; to 
ask for furloughs and get none, and finally, to 
despair, and hope for death to end his sufferings. 
The slave-driver has now become a butcher; 
the slaveholder a pillager; he who found divine 
authority to support slavery in sermons now 
finds it in action; he who was led by fanatical 
politicians is now led by fanatical generals; 
and he who had once only the instincts, has 
now the practice and habit of shedding North- 
ern blood. These two years of carnage and 
suffering, from sixteen to eighteen, when the 
character is mobile and pliable, and which he 
would have naturally spent at college among 
poets and mythologies and tutors, are spent on 
picket, with fierce veterans, in drunken quar- 
rels, with cards, with oaths, in delirious charges, 
amid shot and shell, amid moaning wounded 
and stinking dead, until, at eighteen, he has the 
experience of a Cambronne, the ferocity of an 
Attilla, and the cruelty of a Tartar. This, gen- 
tlemen, is the horrible demoralization of civil 
war. It makes loyalty a farce, justifies per- 
jury, dignifies murder, instills ferocity, scorns 
religion and enjoins assassination as a duty. 
And whose fault is it that he was so demoral- 
ized, and so educated in public vices, instead 
of public virtues, on the field of war ? Let us 
be just, and not shrink from the inquiry. Was 
it our forefathers who sowed the seed of discord 
in the charter of Union? If so, then let their 
memories pay the penalty; but spare the fruit 
which has involuntarily ripened in the heart 
of this boy. Was it the Southern leaders? 
Then let them pay the penalty; but spare their 
ignorant and misguided tool. Was it Generals 
Lee and Jackson and Hill, who were his imme- 
diate models and tutors in crime ? Then pun- 
ish them; but spare their pupil. Was it, per- 
haps, fanatical malcontents among Northern 
men who first lighted the torch of war ? Then 
extirpate them from the land; but spare the 
boy whose passions caught fire, and burnt until 
they consumed him. Rest, then, the responsi- 
bility of this war with whom it will—with the 
living or dead, with the vicissitudes of things or 
in the invisible plans of God—it is not with this 
plastic boy, who came into the world in the year 
of the annexation of Texas, has lived but four ad- 
ministrations, and is younger than the last com- 
promise with slavery. He is the moral product of 
the war, and belongs to them who first began it. 
Now, I hear it said, true, the boy has been a 
rebel soldier, and we can forgive him; but we 
can not forgive assassins. Let us, for a mo- 
ment, compare a rebel soldier with the prisoner, 
and see wherein they differ. The best rebel 
soldiers are native Southerners. So is he. The 
best rebel soldiers have for four years longed 
to capture Washington, and put its Government 
to the sword. So has he. The best rebel 
soldiers have fought on their own hook, after 
the fashion of the provincials during the Revo- 
lution, finding their own knives, their own 
horses, their own pistols. So has he. The best 
rebel soldiers have fired at Mr. Lincoln and 
Mr. Seward, have approached the city by stealth 
from Baltimore, and aimed to destroy the Gov- 
ernment by a sudden blow. So has he. The 
best rebel soldiers have picked off high officers 
of the Government—Kearney, Stevens, Baker, 
Wadsworth, Lyon, Sedgwick. So has he. ARGUMENT OF W. E. DOSTER. 
311 
What, then, has he done that every rebel 
soldier has not tried to do? Only this: he has 
ventured more; he has shown a higher courage, 
s- bitterer hate, and a more ready sacrifice; he 
has aimed at the head of a department, instead 
of the head of a corps; he has struck at the 
head of a nation, instead of at its limbs; he 
has struck in the day of his humiliation, when 
nothing was to be accomplished but revenge, 
snd when he believed he was killing an op- 
pressor. As Arnold Vinkelried was braver 
than all the combined legions of Switzerland, 
when he 
But I hear a student of history reply: True; 
but they must have been oppressors. Granted; 
but who is to be the judge? There can be no 
one but the assassin himself. It is he, and he 
only, who takes the risk of becoming a deliv- 
erer, or a foul and parricidal murderer. Let 
us, then, see what these people were, against 
whom he aimed his blow, and what they ap- 
peared to him. In truth, if you seek for char- 
acters in history, you will find none further 
removed from the oppressors than our late Presi- 
dent and the Secretary of State. The one was 
the great emancipator, the deliverer of a race 
from bondage, the great salvator, the deliverer 
of a nation from civil war. The other was the 
great pacificator, the savior from foreign war, 
the uniter of factions, the constant prophet and 
messenger of good will and peace. This is 
how they seemed to us; but such were they not 
in the eyes of this boy, or of five millions of 
his fellow-countrymen. To them, the one ap- 
peared a usurper of power, a violator of laws, 
a cruel jester, an invader, a destroyer of life, 
liberty and property; the other a cunning time- 
server, an adviser in oppression, and a slippery 
advocate of an irrepressible conflict. These 
Southern men had long borne power, and, in 
their obscurity, felt the envy for greatness 
which once cried: 
‘ Felt as though himself were he 
On whose sole arm hung victory;” 
as Leonidas, who threw himself in the gap of 
Thermopylae, was braver than all the Grecian 
hosts; as Mucins Seaevola was the bravest of 
the Roman youth when he approached Porsena 
with intent to assassinate, and said: “Ilostis 
ho stem occidere volui; ncc ad mortem minus anivii 
tst, quam fuit ad coedem. Et facere et pati fortia, 
Romanum est;” so was this youth braver than 
nil the rebel hosts when he came to offer up his 
life by killing the chief of the enemy. 
As Harmedius and Aristogeton were more 
careless of their lives than the rest of the 
Athenian youth when they killed Hippias and 
Hipparchus, as Brutus said on the market 
Place: “As I slew my best lover for the good of 
Home, I have the same dagger for myself when 
it shall please my country to need my death;” 
so was this boy more ready to offer up his life 
for what he believed to be the good of his coun- 
try. And as Gerard was the bitterest Catholic 
°f the Netherlands when he slew the Prince of 
Orange; Ravaillac the bitterest enemy of the 
Pro test ants when he slew Henry IV.; as Jacques | 
Olement wras the bitterest Catholic when he 
killed Henry III; as Orsini was the most bitter 
Italian when he tried to kill Louis Napoleon, 
So this boy, remembering his two slaughtered 
brothers, was the bitterest Southerner of all 
Hat defied the Government. 
Courage, then, martyrdom, inextinguishable 
kate for oppression, are his sins. Now, it 
courage be a crime, then have you and I, and 
Ml of us, who have braved death, been crim- 
inals? Then are the emblems of valor, which 
a grateful country has placed upon your shoul- 
(lers and breasts, but marks of crime. Is 
Readiness to be sacrificed for the common good 
a crime? Then are the millions of heroic youths, 
vko have left the plow and girded on the sword 
f°i* four years, but criminals; then is our ban- 
but the flag of crime; then are our battle- 
fields but loathsome scenes of general fratri- 
Cidal murder. Is, then, undying hatred tor 
What is believed to be oppression a crime? 
•j-fien was our Revolution but successful crime. 
Then were the struggles of Tyrol, of Hungary, 
Venice, of Greece, but unsuccessful crimes. 
Then was linon a traitor to Greece, Garibaldi 
a traitor to Austria, Kossuth a traitor to Aus- 
tria, Hofer a, traitor to Austria, and Washing- 
|°n a traitor to England. Mark, throughout 
“he history of the world, there is no lesson 
Hught in clearer language than that the noblest 
deed of men is to free the world of oppressors. 
“Ye gods! it doth amaze us, 
A man of such a feeble temper should 
So get the start of the majestic world 
And bear the palm alone.” 
* * * * v 
“ Why man, he doth bestride the narrow world 
Like a colossus, and we petty men 
Walk under his huge legs, and peep about 
To,find ourselves dishonorable graves.” 
This was his idea of Mr. Lincoln and Mr. 
Seward. This was what he heard in Florida, 
among the village politicians. This was what 
he read in the Richmond papers, in the orders 
of the generals, in the gossip of the camp-fire, 
in the letters that he got. from home. Every 
farmer by whose well he filled his canteen told 
him that; every Southern lass that waved her 
handkerchief toward him repeated it; his mother 
in mourning told it; every prisoner returned 
from Northern prisons told it; every wayside 
cripple but confirmed it. Lincoln, the op- 
pressor, was in the air, it was in the echo of the 
drum, it was in the whizzing of the shell, it 
came on every breeze that floated from the 
North. Wonderful was his error; strange, in- 
deed, is it that charity and liberty should be 
thus misconstrued. Let us, then, remember that 
if he was wrong he erred on the side of courage, 
on the side of self-sacrifice, and on the side of 
hatred to what he believed to be oppression; 
that he differs from the Southern army simply 
because he surpassed it in courage; that he 
differed from a patriot and a martyr, simply 
because he was mistaken in his duty. 
If, then, you praise men because they kill 
such as they believe oppressors, you must praise 
him; if you praise men who are ready to die 
for their country, you will praise him; and if 
you applaud those who show any courage su- 
perior to the rest of mankind you will applaud him. 
111. But there is a third school before him. 
From Gettysburg he was sent to West Building 312 
THE CONSPIRACY TRIAL. 
Hospital, Pratt street, Baltimore, and remained 
until October, 1863, when, seeing no hope of an 
exchange, he deserted for his regiment, and, 
walking through Winchester, met a regiment 
of cavalry at Fauquier. Not being able to get 
through our lines, he was joined to this arm of 
the service, and remained in that service until 
January 1,‘1865. On that day, as we see by 
the narrative of Mrs. Grant, he saved the lives 
of two Union soldiers. About the same time 
he, like many of the Southern soldiers, began 
to despair of the Confederacy, came to Alex- 
andria, sold his horse, gave his name as Payne, 
took the oath of allegiance as a refugee from 
Fauquier, went to Baltimore, took a room at the 
house of Mrs. Branson, the lady he had met at 
Gettysburg, and resolved to wait for the return 
of peace. Now, let us see what he learned in 
the third school. 
ward none, for the salvation of the State and 
for liberty. But the wail of woe and lamen- 
tation is not the less piercing ; the thirst for a 
dire, bitter and consuming revenge, is not the 
less keen. As the woes of Normandy brought 
Charlotte Corday to the chamber of Murat, as 
the humiliations of France brought Louvel to 
the side of the Duke de Berri, as the ravages 
in Thuringia brought Stapps to Napoleon at 
Schonbronn, so is the prisoner at the bar the 
messenger of Virginia’s sorrow and bitterness 
to the chamber of the Secretary of State. And 
how are we to meet those woes and bitterness 
and their deluded messenger? In anger? 
That were only to confess that we were wrong 
in inflicting them. No; rather let us say, 
“ What we have done was more in love than in 
hate. Let us forget the past. For your sor- 
rows there is sympathy—for your bitterness 
there is charity. From henceforward let there 
be peace, and let the great sacrifice which we 
have paid you make us forever even.” 
IV. But there is a fourth school before him—• 
the school of necessity. 
The rebel cavalry of Northern Virginia, as 
we now know, was considered, in the Southern 
army, the elite of their horsemen. Dismounted 
cavalrymen of the army of the Potomac were 
sent to Northern Virginia, re-mounted and 
then returned to their commands. In the spirit 
of war, however, they differed materially from 
the rest of the Southern forces. First, they 
came intimately in contact with the people of 
Loudon and Fauquier, who had suffered most 
from the war, and whose hatred of Northern 
troops was more bitter, so that they fought 
rather from personal hate, and in individual 
contests, than from political sentiments, and 
in battle. Accordingly, whatever edge of acri- 
mony was wanting in the temper of Powell he 
gained at the houses of ruined slaveholders in 
Leesburg, Aldie, Middleburg, and Upperville. 
It was also the custom of those soldiers, and 
esteemed honorable from their stand-point, to 
capture quartermasters and paymasters, lie 
in wait for bearers of dispatches and import- 
ant generals, and to make sudden attacks and 
hurried retreats. Accordingly, if he wanted a 
certain feline intrepidity in planning and es- 
caping—a capacity to approach by stealth, exe- 
cute with rapidity, and hurry off before his 
victims had recovered from their consterna- 
tion—we may well believe that he learned it in 
this third school. And who is responsible for 
the third school ? His Colonel? Then let him 
be punished. His Captain? He is now at lib- 
erty. General Lee? Then let him abide the 
consequences. Jefferson Davis, who commis- 
sioned them ? Then let the blow fall on him. 
This boy comes here with no marvellous spirit 
of fury, that we should wonder and say, where 
has he learnt all this? Where among men are 
savages formed like this? He comes here fresh 
from Northern Virginia, with all its sorrow and 
all its bitterness. On the tablets of his mem- 
ory are written curses of many a ruined mas- 
ter; in his ears are ringing the cries of women 
and children, and the moans of dying men. 
Before his eyes are visions of burning barns, 
ravaged fields, a people prostrate, humble, 
starving, homeless—a land once beautiful, now 
a barren waste, peopled by famine, disease, and 
ruin—and these have brought him here to seek 
a quick revenge. We know that we have doile 
these things righteously, with malice to- 
Arrived at Baltimore and having taken up 
his residence with Mrs. Branson, he looked 
around for something to do. He had no trade 
or profession. The period in which he would 
have learned one was spent in the army; and 
we know how abhorrent it was to men of the 
South to engage in manual labor; and as hi® 
hands attest, he has never engaged in any- 
Accordingly, in perplexity about his future—' 
for the little money he got for his horse was 
fast going—he whiled away the time in read- 
ing medical books and brooding in his cham- 
ber. While in this condition, unable to get 
home, unable to see how he was to live at Bal- 
timore, the fracas occurred by which he was 
arrested, brought before the Provost Marshal, 
and ordered north of Philadelphia. 
Picture to yourself the condition of this un- 
fortunate victim of Southern fanaticism, sud- 
denly again cast into the street and exiled from 
Baltimore, a stranger, sundered from his only 
friends, in a strange land. He thinks of hi® 
own home in far-off Florida, but between him 
and it are a thousand miles and a rebel army 
on whose rolls he is a deserter. He thinks of 
rejoining that army, but between him and it J® 
a Union army. He thinks of the unknown 
North into which he is banished, but his finger® 
refuse the spade; he thinks of a profession, but 
the very dream of one is now a mockery; h® 
thinks of going where no one knows him, but 
he fears that after all the curse of secession 
will follow him; he thinks of eluding the au- 
thorities and staying at Baltimore, but then 
he is afraid of compromising his friends, and 
leaves them. Everywhere the sky is dark- 
Among Northern men he is persecuted, for he 
is a rebel; among Southern men at Baltimore 
he is despised, for he is a recreant Southerner; 
among Southern men at home he is a by-word, 
for he is a deserter. The earth seems to rejec 
him, and God and man to be against him. 
Now, if there be any man in this Court who 
has ever wandered, penniless, houseless, friend- 
less, in that worst of solitudes, the streets o 
a strange city, with hunger at his stomach, an ARGUMENT OF W. E. DOSTER. 
313 
a great sense of wrong at his heart, in rags, 
and these very rags betraying him as a thing 
to be despised and spurned; afraid of meeting 
at every corner the peering eyes of a Govern- 
ment detective; too proud to beg, and, when 
hunger overcame pride, rejected with a frown, 
that man will understand how the prisoner 
felt in the beginning of March, 1865. If there 
he any man who has ever been hunted down by 
misery in his youth, and before much sorrow 
had made the burden easy, until he wondered 
why he was born, and hid his face in his hands, 
praying to God to end his pain forever, he also 
can understand how, in the fulness of suffering, 
he has been brother to the accused. 
Y. The education of our farmer’s boy is now 
complete. He has been in four schools. Slavery 
has taught him to wink at murder, the South- 
ern army has taught him to practice and justi- 
fy murder, cavalry warfare has taught him to 
love murder, necessity has taught him resolu- 
tion to murder. He needs no further 
education ; his four terms are complete, and he 
graduates an assassin! And of this college 
we, the re-united people of the United States, 
have been the stern tutors, guides and profess- 
ors. It needs now only that some one should 
employ him. 
I need not pursue this dolorous history fur- 
ther. You know the rest. If you did not know 
it, you could infer it from what has gone be- 
fore. That he should meet Booth at Barn urn’s 
Hotel, enter into his plans eagerly, and execute 
them willingly, are matters of course. That he 
should care nothing for money, but only for re- 
venge ; that he should hate the Lincoln Gov- 
ernment like a slaveholder ; that he should en- 
ter the house of a cabinet officer like a guer- 
rilla ; that he should try to murder, and justify 
his murder like a Southern soldier; that he 
should then give himself up willingly, as one 
who exchanges the penalties of assassination 
for suicide; that he should sit here like a 
statue, and smile as one who fears no earthly 
terrors, and should tell the doctors, calmly and 
stoically, that he only did what he thought was 
right—all these things are as certain to follow 
as use, education and employment necessity. 
Now, in considering the condition of Powell 
at this crisis, I do not ask you to believe he was 
insane. That is a declaration of mental dis- 
ease of which lam no judge. I only ask you 
to believe that he was human—a human being 
in the last stage of desperation, and obeying 
self-preservation, nature’s first law. It is ac- 
knowledged by all that the possession of reason 
only makes man responsible for crime. Now, 
there are two ways in which reason is van- 
quished. One is when the passions make war 
against reason and drive her from her throne, 
which is called insanity. Another is when the 
necessities of the body overcome th 6 suggestions 
of the mind, a state in which the reason is a 
helpless captive. And if you find that while 
his reason was so in captivity, he surrendered 
to temptation, I am sure you will set it to the 
credit, not of reason, but of the body, whose 
wants were imperious while there was yet no 
reason in it, in childhood, and which will agodii 
exist without reason after death. 
At the beginning of the war, Powell; one 
night, secured a pass and went to the theater at 
Richmond. It was the first play that Powell 
ever saw, and he was spellbound with that mag- 
ical influence wielded by the stage over such, 
to whom its tinsel is yet reality. But he was 
chiefly attracted by the voice and manner of 
one of the actors. He was a young man of 
about twenty-five, with large, lustrous eyes, a 
graceful form, features classical and regular as 
a statue, and a rich voice that lingered in the 
ears of those who heard him. Although only a 
private soldier, Powell considered himself the 
equal of any man, and after the play was over 
sought and gained an introduction to the actor. 
Well, indeed, had it been for him if some 
angel of mercy had on that day, as he wan- 
dered a hungry specter through the streets of 
Baltimore, with flashing eyes and disordered 
hair, stretched forth her hand and said: “Here 
is bread; take, eat, and live.” A loaf of bread 
might have saved him; a single word of kind- 
ness might have saved him; the gracious lick 
of a friendly dog might have saved the glow 
of a once generous heart from going out for- 
ever. We have all, my friends, had these turn- 
ing points in our lives, and we all reckon back 
to a time when we stood in the midst of gloom, 
and suddenly it was glorious day, for we found 
a plank and reached the shore. His Creator, 
in His inscrutable wisdom, thought it good there 
should be no ray of light, no beckoning hand, 
no hope for the prisoner. Perhaps it had been 
Better if he had dragged himself to the pier 
and ended his career in suicide. It was ordered 
that his very weakness should make him the 
Prey of a human devil. We can already fore- 
see the consequences. He is desperate, anxious 
for death, only he is a soldier, and he will not 
die ingloriously, after having faced death an 
hundred times. He is pursued by the Govern- 
ment in which he had confided, and for which 
he had deserted his own; pursued, tracked, fol- 
lowed like an outlaw among mankind. He 
■Will show that Northern Government that he is 
ffot a dog, and'that Southern Government that 
he is not a traitor; and give him but a chance, 
aud he will, with one stroke, pay off the scores 
he owes the abolitionists, restore himself in the 
eyes of his comrades in arms, and throw him- 
®elf into the arms of a pitiful eternity. 
And who is to blame that he was urged to 
desperation and consequent revenge ? I an- 
this civil war. The civil war took him 
fr°m the magnolias and orange groves ot Flor- 
-I(^a, and left him a waif upon the pavements of 
a Northern city. The civil war took the inde- 
pendent farmer from his fields, and left him a 
je§gar among strangers. The civil war took 
h‘m from honest pursuits and professions, and 
eft him to make his living without any other 
Accomplishments than dexterity in murder. 
A.ae civil war forbade him a home among 
Northern men, after it had taken him away 
*r°m his home in the South. The civil war 
e,a(}e him an outcast and a fugitive on the face 
01 the earth ; took the bread out of his mouth, 
Afid gave him the alternative of dying ob- 
Y'Uvely by his own hand, or notoriously by the 
enth of a public officer. 314 
THE CONSPIRACY TRIAL. 
Never were two natures thrown together so dif- 
ferent, yet so well calculated, the one to rule, 
the other to be ruled. The soldier was tall, 
awkwark, rough, frank, generous and illiterate. 
The actor was of delicate mold, polished, grace- 
ful, subtle, with a brilliant fancy, and an 
abundant stock of reading. Each was what 
the other was not, and each found in nxe other 
an admirer of the other’s qualities. The actor 
was pleased to have a follower so powerful in 
his muscles, and Powell was irresistibly drawn 
to follow a man so wondrously fascinating and 
intellectual. They saw enough of one another 
to form a close intimacy, and confirm the con- 
trol of the actor over Powell, and parted, not to 
meet for nearly four years. 
In the twilight of that memorable day in 
March, which I have described, Powell was 
dragging himself slowly along the street past 
Barnum’s Hotel—a poor creature overcome by 
destiny. Suddenly a familiar voice hailed him. 
Looking up the steps, he saw the face of the 
Richmond actor. The actor on his side ex- 
pressed astonishment to find Powell in such a 
plight—for the light in the eyes of a desperate 
man needs no translation—and in that distant 
city. Powell answered him in few words: 
“ Booth, I want bread—l am starving.” In or- 
dinary circumstances, I do not doubt but Booth 
would have said, come in and eat; but just now 
he was filled with a mighty scheme, for he had 
just been to Canada, and was lying in wait for 
agents. So he did not give him to eat; he did 
not tell him to go and die, but he seized with 
eagerness upon this poor man’s hunger to wind 
about him his accursed toils, saying, “I*will 
give you as much money as you want, but first 
you must swear to stick by me. It is in the 
oil business.” An empty stomach is not cap- 
tions of oaths, and Powell then swore that fa- 
tal oath, binding his soul as firmly to Booth as 
Faust to Mephistopheles, and went in and. 
feasted. Next morning Booth gave him money- 
enough to buy a change of clothing and keep 
him for a week. Powell now became anxious 
to know what plan it was that was to make 
him rich, bu.t Booth answered evasively that it 
was in the oil business. He knew well enough 
that he had to do with a desperate man, but he 
knew, also, that any proposition of a guilty 
character might as yet be rejected. He must 
get full control of this desperate tool, and instil 
into his nature all the subtle monomania of his 
own. Accordingly he proceeded to secure ev- 
ery thought and emotion of Powell. With a 
master pencil he painted before the eyes of this 
boy the injuries of the South and the guilt of 
her oppressors. He reminded him of devastated 
homes, negroes freed, women ravished, the 
graves of his brothers on a thousand hillsides. 
He reminded him that he was a traitor to the 
Southern cause, and that it was necessary he 
should regain the favor of his country. He 
pointed out to him his desperate condition—a 
fugitive from his friends, and an exile among! 
strangers. He touched him upon his pride, and i 
showed him how he was born a gentleman, and { 
ought to live as a gentleman. He touched upon I 
his helplessness, and showed him that there was 1 
no hope for him, in peace or war, in heaven or I 
earth, except by rendering a great service to 
the South. He touched upon his melancholy? 
and said if he must die, he should offer up his 
life in a manner that would bequeath his 
name as a blessing to posterity. Powell now 
awoke from the depth of despair to the highest 
pinnacle of agonized excitement. It was as if 
he had been breathing that subtle Eastern poi- 
son, wherein the victim sees swimming before 
his eyes a vision of more than celestial felicity) 
but far off and unattainable. What wonder he 
swam in dreams of delicious pain! Instead of 
that former melancholy, he felt an eager desire 
to live. Instead of that long torpor, he felt all 
the old wounds bleeding again, and burned to 
avenge the South. Instead of laboring like a 
negro, he saw a vague vision of rolling io 
boundless wealth. Instead of being cursed by 
his kinsmen, he was fired with zeal to be cher- 
ished as one of her chief martyrs. Instead of 
being the toy of fortune, he dx-eamed of being 
her conqueror. But yet he saw no avenue to 
all this, and, spell-bound as he was, turned to 
his tormentor, who held him as firmly as ever 
Genii did their fabled imps, for the explana- 
tion, for the means and quick road to happiness. 
Booth saw his victim was ready, and hastened 
to impart his mysterious plans. The first plan 
was to go to Washington, take a ride with con- 
federates, on horseback, to the Soldiers’ Home, 
capture the President, and deliver him to the 
Rebel authorities. This failed. The second 
plan was to kill the heads of the State—a plan 
first broached to Payne on the evening of the 
14th of April, at eight o’clock. 
Booth, on the evening of the 14th, at eight- 
o’clock, told him the hour had struck ; placed in 
his hands the knife, the revolver, and the bogus 
package of medicine; told him to do his duty? 
and gave him a horse, with directions to meet be- 
yond the Anaoosta bridge; and he went and did 
the deed. I have asked why he did it. His 
only answer is : “ Because I believed it my duty- 
VI. Now, let us not be deceived by the spe- 
cial name of assassination, and confound R 
with the conscientious killing of what is be- 
lieved to be an oppressor. When we x’ead ot 
assassination we involuntarily bring to mind 
examples of men hired by statesmen to make 
away with princes. There is the Italian pci’" 
turner, Roger!, of Catherine de Medici; there i® 
Orloff, of Catherine, and Alexander, of Russia! 
we think of the tools used by Tiberius, by 
Richard 111, Philip the 11, by Mary of Scotland? 
by Louis XI, and our minds are filled with aB' 
sociations with State murders accomplished by 
tigers in human shape killing for gold. 
But there is another type of assassination 
and of so-called assassins. That comes topasS 
when a fanatic, x-eligious or political, deem8 
it'his duty to offer up his life in exchange for tho 
life he believes to be a public enemy. This is In® 
Sand of Kot zebue, the Corday of Murat, the Coun 
Ankerstroem of Gustavos 111, the Brutus of Cso' 
sar, the Gerard of Orange, the Ravaillac ° 
Henry IV—men who may ally themselves tvd 
others, but who receive their orders immediately ? 
as they believe, from God himself. . , 
The first order kills for money, it is hii’e 
by princes, it would for money kill its eI3X ARGUMENT OF W. E. DOSTER. 
315 
ployers, it uses concealment, it is ashamed, it 
gtrikes in masks and dominoes, and when 
caught gives way to despair. Not so the sec- 
°ad order. It glories in its deed, it goes joy- 
fully to its own death, it has commandments 
from Heaven, it stabs without changing its 
jfrcss, it makes no effort to escape, it gladly de- 
fers itself up; on trial it is composed as on 
the eve of triumph, it justifies its crime, it 
jaakes no defense, and longs for death, saying, 
lu the words of Corday, “ To-morrow I hope to 
Brutus and the other patriots in Elysium.” 
It needs no argument to show to which class 
prisoner belongs. He did, indeed, consort 
'v>th others, but he lent his ear only, as one 
would say: 
subject of his duty—call him sane or insane— 
yet one who is responsible only to that God 
from whom he derives his commandments. Be- 
fore another tribunal, where all his previous 
life might be inquired into, and where time 
would be given for all this mystery to be un- 
raveled, I do not hesitate to say 1 could con- 
vince the judges beyond a doubt that he is no 
more responsible for what he has done to the 
laws of the United States than a Chinaman 
whom custom and religion give the right to 
strangle his daughters. You have not the 
time, and I must end the inquiry. But as you 
are sworn to try this man on your consciences, 
so I charge you to give him the benefit of his. 
Gentlemen, when I look at the prisoner, and 
see (as it has been my duty for four weeks to 
see) the calm composure with which he has 
gone through the horrors of this trial; the 
cheerful and firm fortitude with which he has 
listened to the evidence against him, and with 
which he has endured the gaze of the public, 
as well as the ignominy of fetters; the frank 
and honest way in which he speaks of his 
crime, as a thing revolting in itself, but due to 
a cause which he thinks holy ; and, more than 
all, the settled conviction, which robs the trial 
of all terrors, that he has but obeyed the voice 
of custom, education, and conscience; and the 
calm serenity with which he regards all pains 
that men can inflict upon him as contemptible, 
and part of his duty to endure, I can not help be- 
ing proud—though blood is on his hands—that 
such fortitude, unparalleled in history, is the 
growth of American soil; and I can not help 
wishing that throughout all the coming vicissi- 
tudes of life, in all perplexities and doubts, on 
all occasions of right and wrong, in all miscon- 
structions and trials, I may have so cheering, 
so brave, so earnest a conviction that I have 
done my duty. 
And what, is this duty? What is this doing 
right? Ask the Indian, as he returns to his 
wigwam, laden with the dripping scalps of the 
dispossessors of his soil, why he has done it, 
and he will answer you, with a flourish of his 
tomahawk and his face turned toward Heaven, 
that he is doing right—the Great Spirit has 
commanded it. Ask the Hindoo, as he disem- 
bowels some English officer by the Ganges, and 
riots in his blood, the reason of his crime, and 
he will tell you it is his duty, he is doing 
right—the Brahmins have decreed it. Consult 
the records of Vendee, and see why Charette 
and Gastou murdered the Republican soldiery 
in ambuscades and thickets, and you will find 
they entered, at the bar of the Parisian Court, 
Ihe plea that they were doing right; it was 
their duty. Now go through the devastated 
South; speak with a few of the five millions, 
and ask them why they have thirsted for and 
taken Northern blood in secret places, mur- 
dered stragglers, waylaid orderlies, and killed 
by stealth, and they will answer you, pointing 
to the charred remains of some ancestral home 
and some neighboring hill dotted with graves. 
Because it was our duty; because we felt bound 
in conscience to do it. 
“ What is that you would impart to me ? 
If it be aught toward the general good 
Pet honor in one eye and death in the other. 
And I will look on both indifferently ; 
Tor, let the gods so speed me, as X love 
The name of honor more than I fear death.” 
You have not shown that any gold has soiled 
bis motive. You have shown that he gained 
from others plans, made with them agreements 
°f time and place; but the motive, the spirit, 
fre self-sacrifice, the courage, the justification, 
fro longing for death is all his own. He alone 
Says he thought it was his duty. 
I say he is the fanatic, and not the hired 
frol; the soldier who derived his orders from 
conscience, and who, in the applause of that 
fribunal, smiles at all earthly trials. How else 
u° you explain his bearing? He smiles at all 
drat you can do against him. To him the clank- 
ltlg of these chains is the sweet music of his tri- 
Uniph. The efforts of the prosecution and its 
jdter witnesses to convict him are but the con- 
fr'mation of his glory. The power and majesty 
(d the Government brought upon his head seem 
■jH clear and pleasant praises of his deed. He 
dves in that land of imagination where it 
to him legions of the souls of Southern sol- 
ars wait to crown him as their chief com- 
mander. He sits here like a conqueror; for 
*°nr weeks he has held his head erect when all 
°thers have quailed; he meets the stare of cu- 
frosity as a king might face his subjects; he 
feeps his state even in his cell, and the very 
lepers, in admiration, acknowledge him their 
faster. Now, I know I dare not call him 
niad—the doctors have forbidden it. I might 
Say that if ever man fell within that definition 
Cl Chief-Justice Shaw of insanity, “A very 
jj°nimon instance is where a person fully be- 
\eves the act he is doing is done by the imme- 
,late command of God, and he acts under the 
. elusive but sincere belief that what he is do- 
is by command of a superior power, which 
mPersedes all human laws and the laws of na- 
this is the man. But the doctors have 
jUd jle jg no£ jnsanej an(j though ho fills the 
®§al definition he docs not fill the medical, and, 
. before, I can not hope that you will hold him 
frsane. 
jut I appeal from medical definitions and 
jlom legal definitions to your good sense, and 
ask you to explain for me the riddle of this 
i«an S concluct in any other way than that he 
a political fanatic; a monomaniac on the 
Let us not undervalue the force of conscience. 
It is man's sole director, his highest judge, his 316 
THE CONSPIRACY TRIAL. 
last resort. Without it he is but an erring wan- 
derer, tossed by every wind of passion, inter- 
est, and caprice. With it, his course is as cer- 
tain and regular as the stars. In labor it 
cheers him; in pleasure it restrains him; to all 
manner of good it prompts him; from all man- 
ner of evil it defends him. In peace it teaches 
him to labor; in war to fight; for religion it 
tells him to fear God; for his country it says, 
protect and defend it; for himself it says, thy 
country, thy home, thy friends fii’st, and thyself 
last. It is this spark of heavenly fire which 
has supported martyrs at the stake; which has 
sustained good men on the scaffold; which 
brought liberty and preserved it in this land 
for you and me and all of us. Let us, then, 
respect it, even when it speaks iu a voice which 
we can not understand. Let us honor it as 
the same voice which directs us, even when it 
directs others to a grievous fault. We are but 
men. The same God who created us all, may 
reconcile all that, and find in our difference 
but ignorance on the one side and ignorance 
on the other. And if we dare to judge the dic- 
tates of conscience, do we not arrogate to our- 
selves the prerogatives of the Sovereign Law- 
giver of the Universe, who gave the rule, 
“Judge not, that ye be not judged?” Therefore, 
considering that we have the limit set, and that 
we can not go beyond without becoming in 
turn transgressors, let us leave that cause with 
Him who measures the conduct of men by no 
standard of success, but by obedience to the 
invariable dictates of conscience. For us it is 
enough that we are weak judges of weak men. 
If we were beasts, unconscious of the sacred 
limits of right and wrong, we might excuse 
him; if we were Gods and superior to destiny, 
we might destroy him; but as we are men who 
know our duties, but also our weakness, often 
seek good but do evil, therefore let us do the 
work of man to man—punish and reform him. 
VII. Gentlemen, I have done with narrative 
and reflections. We now know that this Flor- 
ida boy is not a fiend, but an object rather of 
compassion. We now know that slavery made 
him immoral, that war made him a murderer, 
and that necessity, revenge, and delusion made 
him an assassin. We now know that in all 
regards he is like us, only, that he was taught 
to believe right what we were taught to believe 
wrong; and that if we had been taught in his 
school, we would be like him, and if he had been 
taught in ours, he would be like us. We know 
that, from his point of view, he justifies the 
murder of our Secretary of State; we know 
that, from our standpoint, we would gladly 
have seen, for four years, the death of the rebel 
Secretary of State. We know that we were on 
the side of the Government, because we were 
born North; we know that he was against it, 
because he was born South; and that had we 
been born South we would have been in his 
place, and had he been born North he would be 
incurs. We know, also, that all the enemy 
desired the death of the President, and that he 
surpassed them only in courage; and that if 
we forgive them Avho killed our brothers, 
we must, in consistency, forgive him who 
tried to kill Mr. Seward, because he thought 
Mr. Seward guilty of murdering his broth 
ers. 
We know, further, that this man desires to 
die, in order to gain the full crown of martyr- 
dom; and that, therefore, if we gratify him, he 
will triumph over us ; but if we spare him, 
will triumph over him. We know, also, that 
the public can gain nothing by his death from 
the example; for if he die as he lived, there 
will be more anxious to emulate his bravery; 
as Adam Luc, a deputy from Mentz, who, on 
the death of Corday, fired with admiration, 
wrote to the tribunal requesting to die liko 
Charlotte Corday, while the multitude exclaimed: 
“ She is greater than Brutus.” But if he i 3 
suffered to live, he will receive the worst pun- 
ishment—obscurity—and the public will have 
nothing to admire. Wo also know, and rvc 
can not consider it too much, that he has killed 
no man, and that if he be put to death we shall 
have the anomaly of the victim surviving the 
murderer; and that, under the laws, this man 
can be punished only for assault and battery 
with intent to kill, and, therefore, imprisoned' 
We know, also, that we are at the end of a civn 
war, a time when it is desirable there should 
be no farther mention or remembrance of ft’3" 
ternal strife. If we put this man to death, he 
will live forever in the hearts of his comrade®) 
and his memory will forever keep our brethren 
from us. If, moreover, we put him to death, rre 
will show that war is still in our hearts, and 
that we are only content to live with them be- 
cause we have subdued them. 
Finally, we know that if we let him live and 
teach him better, we show the whole world that 
this war was carried on to undeceive a deluded 
people and to maintain the supremacy of the 
laws, so that, now that the laws are supreme 
we may begin with reform; but if we put bn® 
to death we show only that we are vindictir0) 
and use our victory only to gratify our angor' 
Let him, then, live. His youth asks it, frater- 
nity asks it, the laws ask it, our own sins ask 
the public good demands it. Because you ft® 
I taught him the code of assassination 111 
slavery; because you and I brought about a 
civil war, which practiced him in assassina- 
tion and made him justify it; because you anc 
I spurned him from us when he sought refugo 
with us, and bade him destroy himself, ignobiy> 
by his own hand, or grandly, by assassination) 
because, in short, you and I have made tbl 
boy what he is, therefore, lest we who are realv 
ourselves guilty of this attempt atmmuredeJ’ 
should perpetrate a real murder, let him Ift'0’ 
if not for his sake, for our own. Take ft’0* 
the refugee his desperation, and you have t® 
cavalryman; take from the cavalryman 
hate, and you have the soldier of Hill; t{lv 
from the soldier his martial habits, and } ° 
have the slave-holder; take from the 
holder his slavery, and you hayp again { 
pure and simple child, who, four years ag ’ 
went singing in innocence over the land. j 
Before I close, one word from myself- 
have heretofore spoken of the prisoner a s 0 
counsel; I may also speak of him in my m 1 
acter as a man; and I can testify that in 
four weeks’ acquaintance I have had, heal111- ARGUMENT OF W. E. DOSTER. 
317 
him converse with freedom and explain all his 
Secret thoughts, in spite of the odious crime 
"’Uh which he is charged, I have formed an 
estimate of him little short of admiration, for 
his honesty of purpose, freedom from decep- 
hi°n and malice, and courageous resolution to 
ahide by the principles to which he was reared. 
* find in him none of that obstinacy which 
Perseveres in crime because it is committed, 
ahd hopes to secure admiration in a feigned 
Consistency. Neither is there about him a 
desire of notoriety, nor a cowardly eifort 
to screen himself from punishment; only one 
Prominent anxiety—that is, lest people should 
a hired assassin, or a brute; an aver- 
s'on to being made a public spectacle of, and 
a desire to be tried at the hands of his fellow- 
citizens. 
Altogether, I think we may safely apply 
to him, without spurious sympathy or exag- 
geration, the words which were said of Bru- 
tus— 
“ This was the noblest Roman of them all 
All the conspirators, save only he, 
Did that they did in envy of great Caesar ; 
He only, in a general honest thought, 
And common good to all, made one of them. 
His life was gentle, and the elements 
So mixed in him, that nature might stand up 
And say to all the world, “ This was a man /” 
I commit him, then, without hesitation, to 
your charge. You have fought on the same 
fields, and as you have never been wanting in 
mercy to the defeated, so I know you will not 
be wanting in mercy to him. You have all com- 
manded private soldiers, and as you could esti- 
mate the enthusiasm of your own men, so you 
will know how to estimate the enthusiasm of 
those who fought against you. The lives of all of 
you have shown that you were guided in all per- 
plexities by the stern and infallible dictates of 
conscience and duty, and I know that you will 
understand and weigh in your judgment of the 
prisoner, dictates and duties so kindred to your 
own. LEWIS PAYNE. ARG-UME2XTT 
LAW AND EVIDENCE IN THE CASE OF DR. SAI’L A. MUDD, 
ON THE 
BY 
THOMAS EWING, Jr. 
May it please the Court: If it be determined 
to take jurisdiction here, it then becomes a 
question vitally important to some of these 
parties—a question of life and death—whether 
you will punish only offenses created and 
declared by law, or whether you will make and 
declare the past acts of the accused to be 
crimes, which acts the law never heretofore 
declared criminal: attach to them the penalty 
of death, or such penalty as may seem meet to 
you; adapt the evidence to the crime and the 
crime to the evidence, and thus convict and 
punish. This) I greatly fear may be the pur- 
pose, especially since the Judge Advocate said, 
in reply to my inquiries, that he would expect 
to convict “ under the common law of war." This 
is a term unknown to our language—a quid- 
dity—wholly undefined and incapable of defi- 
nition. It is, in short, just what the Judge 
Advocate chooses to make of it. It may cre- 
ate a fictitious < rime, and attach to it arbitrary 
and extreme punishment, and who shall gain- 
say it ? The laws of war—namely, our Articles 
of War—and the habitual practice and mode 
of proceeding under them, are familiar to us 
all; but I know nothing, and never heard or 
read of a common law of war, as a code or 
system under which military courts or com- 
missions in this country can take and exercise 
jurisdiction not given them by express legal 
enactment or constitutional grant. But I still 
hope the law is to govern, and if it do, I feel 
that my clients are still safe. 
I will now proceed to show you, that on the 
part of one of my clients—Dr. Mudd—no 
crime known to the law, and for which it is 
pretended to prosecute, can possibly have been 
committed. Though not distinctly informed 
as to the offense for which the Judge Advocate 
claims conviction, I am safe in saying, that 
the testimony does not point to treason, and 
if he is being tried for treason, the proceed- 
ings for that crime are widely departed from. 
The prosecution appears to have been instituted 
and conducted under the proclamation of the 
Secretary of War, of April 20, 1865. This 
makes it a crime, punishable with death, to 
harbor or screen Booth, Atzerodt, or Herold, 
or to aid or assist them to escape. It makes it 
a crime to do a particular act, and punishes that 
crime with death. I suppose we must take this 
proclamation as law. Perhaps it is part of what 
the Judge Advocate means when he speaks of 
the “common law of war.” If this be so, my 
clients are still safe, if we be allowed to con* 
strue it as laws are construed by co rts of justice- 
But I will show, first, that Dr. Judd is not, 
and can r t possibly be, guilty of any offenge 
known to die law. 
1. Not f treason. The overt act attemptoo 
to be alhged is the murder of the President- 
The proof is conclusive, that at the time the 
tragedy was enacted Dr. Mudd was at his res- 
idence in the country, thirty miles from tb® 
place of the crime. Those who committed it 
are shown to have acted for themselves, not a3 
the instruments of Dr. Mudd. He, therefor0) 
can not be charged, according to Idw and upoo 
the evid nee, with the commission of this over 
act. Th re are not two witnesses to prove that 
he did ommit it, but abundant evidence to 
show negatively that he did not. 
Chief Justice Marshall, in delivering an 
opinion of the Court in Burr’s case, says- 
“ Those only who perform a part, and who at0 
leagued in the conspiracy, arc declared to l>o 
traitors. To complete the definition both cir- 
cumstances must concur. They must upcf' 
form a part'' which will furnish the overt act, 
and they must be leagued with the conspiracy- 
-4 Or., 474. 
Now, as to Dr. Mudd, there is no particle ot 
evidence tending to show that he was ever 
leagued with traitors in their treason ; that h0 
had ever, by himself, or by adhering to, an*: 
in connection with, others, levied war again 6 
the United States. It is contended that be 
joined in compassing the death of the Presi- 
dent (“ the King's death"). Foster, p. 149, speak- 
ing of the treason of compassing the king 8 
death, says: “From what has been said it f°t' 
loweth, that in every indictment for this spe' 
cies of treason, and indeed for levying 
and adhering to the king’s enemies, an oi>er 
act must be alleged and proved." 4 Or., 490. 
The only overt act laid in these chargoB 
against Mudd is the act of assassination, a 
which it is claimed he was 
present and participating. His presence, 
participation, or procurement, must hepr° 
by two witnesses, if the charge be treason ; an 
such presence, participation, or procuremoll ’ 
be the overt act. 
Chief Justice Marshall, in Burr’s case i^a.’ 
500), says : “ Collatex-al points, say the book j 
may be proved according to the course of 
common law; but is this a collateral P°*n g 
Is the fact without which the accused do 
318 ARGUMENT OF THOMAS EWING, JR. 
319 
not participate in the guilt of the assemblage, 
if they were guilty (or in any way in the guilty 
net of others), a collateral point? This can 
not be. The presence of the party, when 
presence is necessary, being part of the overt 
net, must be positively proved by two wit- 
nesses. No presumptive evidence, no facts 
from which presence may be conjectured or 
inferred, will satisfy the Constitution and the 
law. If procurement take the place of pres- 
ence, and become part of the overt act, then 
no presumptive evidence, no facts from which 
the procurement may be conjectured or in- 
ferred, can satisfy the Constitution and the 
law. The mind is not to be led to the conclu- 
sion that the individual was present by a 
train of conjectures or inferences, or of reason- 
ing. The fact itself must be proved by two wit- 
nesses, and must have been committed within 
the district.” 
not, after the date of the proclamation, see either 
of the parties named therein—dress the wound 
of Booth or point out the way to Heroid— 
and the proclamation relates to future acts, not 
to past. 
5. But of the common laiv of war, as distinct 
from the usages of Military Courts, in carry- 
ing out and executing the Articles of War, I 
know nothing, and on examining the hooks, I 
find nothing. All that is written down in 
books of law or authority I am, or ought to be, 
prepared to meet; but it were idle and vain to 
search for and combat a mere phantom of the 
imagination, without form and void. 
I now pass to a consideration of the evidence, 
which I think will fully satisfy the Court that 
Dr. Mudd is not guilty of treasonable conspir- 
acy, or of being an accomplice, before or after 
the fact, in the felonies committed. 
2. Not of murder. For the law is clear, 
that, in cases of treason, presence at the com- 
mission of the overt act is governed by the 
same principle as constructive presence in 
ordinary felonies, and has no other latitude, 
greater or less, except that in proof of trea- 
son two witnesses are necessary to the overt 
act, and one only in murder and other felonies. 
“A person is not constructively present at an 
overt act of treason, unless, he be aiding and 
abetting at the fact, or ready to do so, if neces- 
sary.” 4 Or., 492. Persons not sufficiently 
hear to give assistance are not principals. 
And although an act be committed in pursu- 
ance of a previous concerted plan, those who 
are not present, or so near as to be able to 
afford aid and assistance, at the time when the 
offense is committed, are not principals, but 
accessories before the fact. Wharton Am. Orim. 
Law, 112 to 127. 
It is, therefore, perfectly clear, upon the 
law as enacted by the Legislature and ex- 
pounded by jurists, that Dr. Mudd is not guilty 
of participating in the murder of the Presi- 
dent; that he was not actually or construct- 
ively present when the horrid deed was done, 
cither as a traitor, chargeable with it as an 
°vert act, or a conspirator, connected as a prin- 
cipal felon therewith. 
3. The only other crimes defined by law for 
lEe alleged commission, of which the Judge 
Advocate may, by possibility, claim the con- 
viction of the accused, are: Ist. The crime of 
treasonable conspiracy, which is defined by the 
% of 21st July, 1861, and made punishable 
”7 fine not exceeding $6,000, and imprison- 
ment not exceeding six years. 2d. The crime 
al being an accessory before, or after the fact to 
. e crimes of murder, and of assault with 
lrdent to kill. That the accused is not guilty 
either of these crimes, will be clearly shown 
111 the discussion of the evidence which follows. 
4. Admitting the Secretary’s proclamation 
to be law, it, of course, either supersedes Ol- 
efines the unknown something or nothing 
the Judge Advocate calls “ the common 
mw of war.” If so, it is a definite, existing 
and I can defend my clients against it; 
it is easy to show that Dr. Mudd is not 
fiuilty of violating that proclamation. He did 
The accused has been a practising physi- 
cian, residing five miles north of Bryantown, 
in Charles county, Maryland, on a farm of 
about five hundred acres, given to him by his 
father. His house is between twenty-seven 
and thirty miles from Washington, and four or 
five miles east of the road from Washington to 
Bryantown. It is shown by Dr. George Mudd, 
John L. Turner, John Waters, Joseph Waters, 
Thomas Davis, John McPherson, Lewellyn 
Gardiner, and other gentlemen of unimpeached 
and unquestionable loyalty, who are in full 
sympathy with the Government, that he is a 
man of most exemplary character—peaceable, 
kind, upright, and obedient to the laws. His 
family being slaveholders, he did not like the 
anti-slavery measures of the Government, but 
was always respectful and temperate in dis- 
cussing them, freely took the oath of alle- 
giance prescribed for voters (Dr. George 
Mudd), supported an Union candidate against 
Harris, the secession candidate, for Congress 
(T. L. Gardiner), and for more thap a year past 
regarded the rebellion a failure. (Dr. George 
Mudd.) He was never known or reported to 
have done an act or said a word in aid of the 
rebellion, or in countenance or support of the 
enemies of the Government. 
An effort was made, over all objections and 
in violation, I respectfully submit, of the plain- 
est rules of evidence, to blacken his character 
as a citizen, by showing that he was wont, 
after the war broke out, to threaten his slaves 
to send them to Richmond “ to build batteries.” 
But it will be seen hereafter, that all that part 
of the testimony of the same witnesses, which 
related to the presence of Surratt and of rebel 
officers at the house of the accused, was ut- 
terly false. And Dyer, in presence of whom 
Eglent says the threat was made to him, swears 
he was not in the country then, and no such 
threat was ever made in his presence. The 
other colored servants of the accused, Charles 
and Julia Bloyce, and Betty and Frank Wash- 
ington, say they never heard of such threats 
having been made; and J. T. Mudd and Dr. 
George Mudd, and his colored servants Charles 
and Julia Bloyce, and Betty and Frank Wash- 
ington, describe him as being remarkably 
easy, unexacting and kind to all about him— 
slaves and freemen. 320 
THE CONSPIRACY TRIAL. 
From this brief reference to the evidence of 
the character of the accused, I pass to a con- 
sideration of the testimony adduced to prove 
his connection with the conspiracy. 
And, first, as to his acquaintance with Booth. 
J. C. Thompson says, that early in November 
last Booth went to the house of witness’ father- 
in-law, Dr. William Queen, four or five miles 
south of Bryantown, and eight or ten from Dr. 
Mudd’s, and presented a letter of introduc- 
tion from a Mr. Martin, of Montreal, who said 
he wanted to see the county. It does not ap- 
pear who Martin was. Booth said his busi- 
ness was to invest in land and to buy horses. 
He went with Dr. Queen’s family to a church 
next day, in the neighborhood of Bryantown, 
and was there casually introduced, befoi’e ser- 
vice, by Thompson, to the accused. After 
service Booth returned to Queen’s house, and 
stayed until the next morning, when he left. 
While at Queen’s, he made inquiries of Thomp- 
son as to horses for sale, the price of lands, 
their qualities, the roads to Washington, 
and to the landings on the Potomac; and 
Thompson told him that the father of Dr. Sam- 
uel Mudd was a large landholder, and might 
sell part of his land. On Monday morning, 
after leaving Dr. Queen’s, Booth came by the 
house of the accused, who went with him to 
the house of George Gardiner, to look at some 
horses for sale. The accused lives about one- 
quarter of a mile from Gardiner’s (Mary 
Mudd, Thomas L. Gardiner), and on the most 
direct road to that place from Dr. Queen’s, 
through Bryantown. (Mary Mudd, Hardy.) 
There Booth bought the one-eyed saddle-horse 
which he kept here, and which Payne rode 
after the attempted assassination of Mr. Sew- 
ard. Mudd manifested no interest in the 
purchase, but after it was made Booth di- 
rected the horse to be sent to Montgomery’s 
Hotel, in Bryantown, and Booth and the ac- 
cused rode off together in the direction of the 
house of the accused, which was also the 
direction of Bryantown. Witness took the 
horse to Bryantown next morning, and deliv- 
ered him in person to Booth there. Witness 
says the horse was bought on Monday; but he 
thinks in the latter part of November; though 
he says he is “one of the worst hands in the 
world to keep dates.” 
Thompson further says, that after Booth’s 
first introduction and visit to Dr. Queen’s, 
“he came there again, and stayed all night, 
and left very early next morning. I think it 
was about the middle of December following 
his first visit there.” 
the neighborhood, after the purchase of the 
horse and before the assassination. 
2d. Mary Mudd says she saw Booth one 
Sunday in November at church, in Dr. Queen s 
pew, and with his family, and that she heard 
of his being at the house of her brother, the 
accused, on that visit, but did not hear that he 
stayed all night; and that on the same visit 
he bought the horse of Gardiner. She lives at 
her father’s, on the farm adjoining that ot 
accused, and was at his house two or three 
times a week, and saw him nearly every day 
on his visits to his mother, who was an invalid) 
and whose attending physician he was; and 
never sa*w or heard of Booth, except on that 
one occasion, before the assassination. 
3d. Fanny Mudd, sister of the accused, liv- 
ing with her father, testifies to the same effect. 
4th. Charles Bloyce was at the house of the 
accused Saturday and Sunday of each week 
of last year until Christmas Eve (except six 
weeks in April and May), and never saw 
or heard of Booth’s being there. 
sth. Betty Washington (colored) lived there 
from Monday after Christmas until now, and 
never saw or heard of Booth there before the 
assassination. 
6th. Thomas Davis lived there from 9th of 
January last. Same as above. 
Nor is there any evidence whatever of 
Booth’s having stayed all night with the accused 
on the visit when the horse was bought of 
Gardiner, or at any other time, except that of 
Col. Wells, who says, that after Mudd’s arrest, 
“he said, in answer to another question, that 
he met Booth sometime in November. I think 
he said he was introduced by Mr. Thompson, a 
son-in-law of Dr. Queen, to Booth. I think 
he said the introduction took place at the 
chapel or church on Sunday morning; that, 
after the introduction had passed between 
them, Thompson said, Booth wants to buy 
farming lands; and they had some little con- 
versation on the subject of lands, and then 
Booth asked the question, whether there were 
any desirable horses that could be bought m 
that neighborhood cheaply; that he mentioned 
the name of a neighbor of his who had sonic 
horses that were good travelers; and that he 
remained with him that night, I think, and the next 
morning purchased one of those horses.’’ Now, B 
will be recollected that Thompson says Booth 
stayed at Dr. Queen’s on that visit Saturday 
night and Sunday night, and Thomas L. Gar- 
diner says the horse was bought Monday morn' 
ing. So that, if Col. Wells is correct in 
recollecting what Mudd said, then Thompson 
must be wrong. It is more probable that 
Thompson is right, as to Booth’s having spent 
Sunday night at Queen’s. Thompson’s testi- 
mony is strengthened, too, by that of Mary 
Mudd, Fanny Mudd, and Charles Bloyce, who 
would, in all probability, have heard the fa° 
of Booth spending Sunday night at the house 
of the accused, had he done so; but they di 
did not hear it. 
It is here to be observed, that though th 
accused was not permitted to show, by Booth 
declarations here, that he was contemplating 
and negotiating purchases of lands in Charm 
There is 'nothing whatever to show that 
Mudd saw Booth on this second visit, or at any 
other time, in the country, prior to the assas- 
sination ; but a great deal of evidence that he 
never was at Mudd’s house, or in his immedi- 
ate neighborhood, prior to the assassination, 
except once, and on his first visit. I will refer 
to the several items of testimony on this 
point. 
Ist. Thomas L. Gardiner says he was back 
and forth at Mudd’s house, sometimes every 
day, and always two or three times a week, 
and never heard of Booth being there, or in THE CONSPIRACY TRIAL. 
321 
county, yet evidence was admitted as to his 
declarations made there to that effect. Dr. 
Bowman, of Bryantown, says that Booth nego- 
tiated with him, on one of these visits, for the 
purchase of his farm, and also talked of buy- 
ing horses. And a few days after witness 
had negotiated with Booth for the sale of his 
farm, he met Dr. Mudd, and spoke of the 
negotiation with Booth, and Mudd said, “ Why 
that fellow promised to buy my land.'' It is also 
shown by Dr. Blanford, Dr. Bowman, M. P. 
Gardiner, and Dyer, that Mudd, for a year 
past, wanted to sell his land, and quit farm- 
ing. 
This, then, is all that is shown of any meet- 
ing between Mudd and Booth in that country 
before the assassination—-a casual introduc- 
tion at church on Sunday in November—Booth 
going next morning to Mudd’s, talking of 
buying his farm, and riding with him a quar- 
ter of a mile to a neighbor’s to buy a horse, 
and their going off together toward Mudd’s 
and Bryantown, where the horse was deliv- 
ered to Booth next morning. 
We will nowr turn to consider the evidence 
as to the accused’s acquaintance with John H. 
Surratt. If he knew Surratt at all, the fact is 
not shown by, nor inferable from, the evi- 
dence. Miss Surratt was educated at Bryan- 
town, before the war, and her family lived at 
Surrattsville, and kept the hotel there (which 
is on the road from Dr. Mudd’s house to Wash- 
ington), until they removed, in October last, 
to a house on H street, in this city, where they 
have since resided. (Miss Surratt, Holahan, 
Deichmann). Dr. Mudd probably had met 
Surratt at the hotel at Surrattsville, or, before 
the war, at Bryantown, while his sister was at 
school; but it is not shown by credible testi- 
mony that he knew him at all. Let us exam- 
Jne the evidence on this point. 
Ist. Mary Simms, formerly Dr. Mudd’s slave, 
Bays that a man whom Dr. and Mrs. Mudd 
called Surratt was at Mudd’s house from almost 
every Saturday night until Monday night 
through the latter part of the winter, and 
through the spring and summer of last year 
bn til apples and peaches were ripe, when she 
Baiv him no more; and that on the last of No- 
vember she left Dr. Mudd’s house. That he 
never slept in the house, but took dinner there 
six or seven times. That Andrew Gwynn, Ben- 
Gwynn, Capt. Perry, Lieut. Perry, and 
Papt. White, of Tennessee, slept with Surratt 
Bi the pines near the spring, on bed-clothes 
ijii’nished from Dr. Mudd’s house, and that 
hey -were supplied by witness and by Dr. 
lodd with victuals from the house. That 
william Mudd, a neighbor, and Rachel Spen- 
?er> and Albin Brooke, members of Mudd’s 
household, used to see Surratt there then, 
says that the lieutenants and officers had 
epaulettes on their shoulders, gray breeches 
VJth yellow stripes, coat of same color and 
Rimming. Their horses were kept in Dr. 
Judd’s stable, by Milo Simms. 
2d. Milo Simms, brother of Mary, fourteen 
years old, formerly slave of Dr. Mudd, left 
here Friday before last Christmas. Saw two 
°r three men there last summer, who slept at the 
spring near Dr. Mudd’s house. Bedding 
taken from the house; meals carried by Mary 
Simms, generally, though they sometimes ate in 
the house, and they all slept at the spring, 
except one called John Surratt, who slept once 
in the house. Don’t say how long they 
stayed. It was in “planting tobacco time.” 
He attended their horses in Dr. Mudd’s stable. 
3d. Rachel Spencer, slave of Dr. Mudd and 
cook at his house, left him early in January, 
1865; saw five or six men around Dr. Mudd’s 
house last summer; slept in the pines near the 
house, and were furnished with meals from it. 
Were dressed in black and blue. Were there 
only a week, and never saw them there before or since. 
She heard no names of the men except Andrew 
Gwynn and Watt Bowie. That Alhin Brooke 
lived at Dr. Mudd’s then, and was with these 
men occasionally. 
4th. Elzee Eglen, formerly Dr. Mudd’s slave, 
left him 20th August, 1863; saw a party sleep- 
ing in the pines, by the spring, near the 
house, summer before last. Knew Andrew Gwynn, 
and he was one of them; did not recollect any 
other names. Mary Simms carried them meals, 
and Milo Simms attended the horses in Dr. 
Mudd’s stable. Some wore gray clothes with 
brass buttons, but without other marks—some 
black clothes. Did not say how many there 
were, nor how long they stayed. 
6th. Melvina Washington, formerly Dr. 
Mudd’s slave, left him October, 1863; saw 
party sleeping in the pines near the house 
summer before last; victuals furnished from the 
house. Party stayed there about a week, and 
then left. Some were dressed in gray, and 
some in short jackets with little peaks behind, 
with black buttons. She saw them seven or 
eight times during one week, and then they 
all left, and she never saw any of them at any 
other time except during that week. That An- 
drew Gwynn's name was the only one she 
beard; that Mary Simms used to tell her, when 
the men were there, the names of others, but 
she had forgotten them. 
That these five witnesses all refer to the 
same party of men and the same year is cer- 
tain, from the fact that Elzee Eglen says that 
Mary Simms carried the party he describes as 
being there in the summer of 1863, their 
victuals, and that Milo Simms kept their horses 
in the stable, and Melvina Washington says 
Mary Simms used to tell her the names of the 
party which she describes as being there in 
1863; and also from the fact that fill of them, 
except Milo Simms, named Andrew Gwynn as 
being one of the party. I will not waste the 
of the Court in pointing out to it in 
detail the discrepancies in their evidence 
apparent from the foregoing synopsis of their 
testimony; and therefore, only calling its 
attention to the fact that all of these wit- 
nesses were living with Dr. Mudd during and 
after the year 1861 (Dyer), down to the sev- 
eral dates given above, when they respectively 
left, I will proceed to show from the evidence 
what and when the occurrences really were 
about which they have testified. 
Ist. Ben. Gwynn (named by Mary Simnfl as 
one of the party) says : 322 
ARGUMENT OE THOMAS EWING, JR. 
Q. Will you state whether during last sum- 
mer, in company with Captain White, from Ten- 
nessee, Captain Perry, Lieut. Perry, Andrew 
Gwynn, and George Gwynn, or either of them, 
you were about Dr. Samuel A. Mudd’s house for 
. several days? A. I was not. Ido not know any 
of the parties named, and I never heard of them, 
except Andrew Gwynn and George Gwynn. 
Q. Were you with your brothers, Andrew 
Gwynn and George Gwynn, about Dr. Mudd’s 
house last year? A. No, sir. I have not been 
in Dr. Mudd’s house since about the first of 
November, 1861. I have not been on his 
place, or nearer his place than church, since 
about the 6th of November, 1861. 
Q. Where did you and the party who were 
with you near Dr. Mudd’s sleep? A. We slept 
in the pines near the spring. 
Q. How long were you there ? A. Four or 
five days. I left my neighborhood, and went 
down there and stayed around in the neigh- 
borhood—part of the time at his place, and part 
of the time elsewhere. He fed us there—gave 
us something to eat, and had some bed-cloth- 
ing brought out of the house. That was all. 
He further said, that the party was com- 
posed of his brother, Andrew Gwynn, and 
Jerry Dyer, who, on the breaking out of the 
war, were, like all the people of that section, 
panic-stricken, and apprehending arrest; that 
he came up to Washington on the 10th of No- 
vember, gave himself up, found there were no 
charges against him, took the oath, and went 
back home. That John H. Surratt, when this 
party were there, was at college, and witness 
never saw him in Charles county then or 
since. That his brother, Andrew Gwynn, went 
South in the fall of 1861, and was never, to 
his knowledge, back in that county but once 
since, and that was last winter sometime. He 
corrected his statement as to ivhen the party 
Avere there, and fixed it in August, 1861. 
2d. Jerry Dyer, brother-in-law of the ac- 
cused, testifies to the same as Ben. Gwynn. 
Says he and the two Gwynns Avere members 
of companies organized by authority of Gov- 
ernor Hicks for home protection in 1860; were 
present on parade in Washington at the inau- 
guration of a statue, on the 22d of February, 
1860. When the war broke out the companies 
were disbanded; many of the members going 
South, and many of those Avho remained in 
Charles county scattering about from rumors 
of arrests; that there was a general panic in 
the county then, and almost everybody was 
leaving home and “dodging about;” that 
while he and the two GAvynns slept in the 
pines these three or four days, Mary Simms car- 
ried them victuals from the house, and Milo 
Simms attended to thehorsesin Mudd’s stables; 
that they were dressed in citizens’ clothing; 
that Andrew Gwynn Avent South in the fall 
of 1861; witness never heard of his being back 
since; that Surratt Avas not there then, nor, 
so far as he knows, since. 
3d. William Mudd, a near neighbor of the 
accused, named by Mary Simms as having seen 
the party she describes, says he saw Benjamin 
Gwynn there in 1861, but suav none of the oth- 
ers, then or since. 
I 4th. Albin Brooke, referred to by Mary 
Simms and Rachel Spencer as having seen the 
party they describe (and by Mary Simms as 
having seen Surratt especially), says he knows 
Surratt, having met him in another county 
once, and kneAv Benjamin GAvynn and Andrew 
Gwynn, but that he never saw Surratt Avith 
any of the men named by Mary Simms at Dr. 
Mudd’s, nor heard of. his having ever been 
there; never heard of Andrew Gwynn being 
back from Virginia since 1861. That he lived 
at Dr. Mudd’s from the Ist of January to be- 
tween the Ist and the 15th of September of 
last year, and was at the stable morning, noon, 
and night, each day, and was about the spring 
daily; while there, never saw any strangers 
horses in the stable, nor any signs about the 
spring of persons sleeping there; but that, 
while living near Dr. Mudd’s, in the summer 
of 1861, he knew of Ben. and Andrew Gwynn 
and Dyer sleeping in the pines there. 
sth. Mrs. Mary Jane Simms boarded, or was 
a guest, at Dr. Mudd’s all last year, except 
through March; knew Andrew, Ben. and 
George Gwynn, and George Surratt. Never 
saw or heard of any of them there, nor of any 
of them sleeping in the pines. 
6th. Frank Washington (colored) lived at 
Dr. Mudd’s all lastyear; knew Andrew Gwynn 
by sight; never saw or heard of him or Sur- 
ratt (of whom a photograph was shown him)t 
or of any of the men named by Mary Simms, 
being there, or of any men being there in uni- 
form; at the stable three times daily, and of- 
ten at the spring, and saw no strange horses in 
the stable; saAV no signs of men sleeping about 
the spring. 
7th. Baptist Washington, carpenter, at work 
there putting up kitchen, etc., from February 
till Christmas last year, except the month oi 
August; same as above, except as to knowl- 
edge of Andrew GAvynn. (Photograph of Sur- 
ratt shown him.) 
Bth. Charles Boyce (colored), at Dr. Mudd’3 
through every Saturday and Sunday all la-8' 
year, except from 10th April to 20th May! 
same as Frank Washington, except as 1° 
knowing Andrew Gwynn. 
9th. Julia Ann Bloyce (colored cook), theJ’e 
from early in July to 23d December, 1864) 
same, substantially, as Frank Washingtoni 
knew Ben. and Andrew Gwynn, (Photograph 
of Surratt shown Avitness.) 
10th. Emily Mudd and Fanny Mudd live oU 
adjoining farm to Dr. Mudd, at his father’s; 
at his house almost daily for years ; kneAV 
the party in the pines in 1861, composed °* 
Dyer and the two Gwynns; kneAv Andrei 
Gwynn well; never heard of his being b&cy 
from Virginia since 1861, nor of Surratt e*c' 
being at Dr. Mudd’s, nor of any of the oth®1" 
named by Mary Simms, except the Gwynns,l 0 
1861. 
11th. Henry L. Mudd, jr., brother of the < 
cused, living at his father’s; same as above 
to Surratt. 
None of the five witnesses, whose testim0 
has been shown false in all essential par*B y, 
the evidence of the twelve witnesses for 
fense, referred to above said that Surratt w THE CONSPIRACY TRIAL. 
323 
one of the party sleeping in the pines, except 
Mary and Milo Simms. These two witnesses 
are shown to have established reputations as 
liars, by the evidence of Charles Bloyce, Julia 
Ann Bloyce, and Frank, Baptist and Betty 
Washington. So all that testimony for the 
prosecution, of the “intelligent contrabands,” 
Who darkened the counsels of the court in this 
case, is cleared away. The only part of it at all 
admissible under the rules of evidence, or enti- 
tled to the consideration of the Court, was that 
showing Surratt was intimate with Mudd, and 
often at his house last year and year before; 
and that, like nearly all the rest of their tes- 
timony, has been conclusively shown to be 
false. 
either being there, or the name of either men- 
tioned in the family. 
4th. Weichmann who hoarded there through 
last winter, never heard of Mudd being at the 
house. 
sth. Judson Jarboe says he never was at 
Mrs. Surratt’s house, or met Dr. Mudd or Miss 
Surratt in Washington before the assassina- 
tion. 
6th. Mary Mudd says Samuel Mudd was at 
Frederick College, at Fredericktown, Mary- 
land, in December, 1850, and was not at home 
during the collegiate year, beginning in Sep- 
tember of that year; and Rev. Dr. Stonestreet, 
who was president of that college until De- 
cember of that year, testifies the accused was 
then entered as a student there, and could not 
by the rules of the college have gone home. 
This witness, Evans, boasted often to the 
Court that he was a minister of the Gospel, 
and reluctantly admitted, on cross-examina- 
tion, that he was also one of the secret police. 
In his reckless zeal as a detective, he forgot 
the ninth commandment, and bore false wit- 
ness against his neighbor. It is to be hoped 
his testimony that he is a minister of the Gos- 
pel is as false as his material evidence. I feel 
bound in candor to admit, however, that his 
conduct on the stand gave an air of plausibil- 
ity to one of his material statements—that for 
a month past he has “been on the verge of 
insanity.” 
I have now presented and considered all the 
testimony going to show that Mudd ever met 
Surratt at all, and all that he ever met Booth, 
"before the assassination, and after the first 
visit Booth made to Charles county—except 
the testimony of Weichmann, which I will now 
consider. 
Another witness, who testifies to implicate 
Mudd as an associate of Surratt, is William 
A. Evans, who said he saw Mudd some time 
last winter enter a house on H street, just as 
Judson Jarboe, of Prince George’s county, was 
going out of it; and that Jai’boe was then 
shaking hands with a young lady, whom wit- 
ness took to be a daughter of Mrs. Surratt, 
from her striking likeness to her mother, he 
having known or seen all the family; and that 
he stopped a policeman on the street, and 
asked whose house it was, and he said, “ Mrs. 
Surratt’s;” and that he drove up to the pave- 
ment, and asked also a lady who lived near by 
and she said the same. He said this house 
Was between Eighth and Ninth, or Ninth and 
Tenth—he was not perfectly certain as to the 
streets, but was certain it was between the Pat- 
ent Office and the President’s. Through an 
hour’s cross-examination, he fought by equiv- 
ocation, or pleading defect of memory, against 
fixing any circumstance by which I could 
learn, directly or indirectly, the day or the 
month when it occurred, and, finally, he could 
only say it was “sometime last winter.” Al- 
though his attention had been so strongly at- 
tracted to the house, he first said it was on one 
side of the street and then on the other; and 
oould not tell whether it had any porch or any 
Portico, nor describe its color, nor whether it 
had a yard in front, nor whether it was near 
the center of the Square, nor describe a single 
house on either side of the same square. He 
said he knew Dr. Samuel Mudd, having met 
him first at Bryantown church, in December, 
1850. 
That witness says that about the middle of 
January last, he and Surratt were walking 
down Seventh street one night, and passed 
Booth and Mudd walking up the street, and 
just after they had passed, Mudd called, “Sur- 
ratt, Surratt.” Surratt turned and recognized 
Mudd as an old acquaintance, and introduced 
Mudd to witness, and then Mudd introduced 
Booth to witness and Surratt. That soon after 
the introduction, Booth invited them all to his 
room at the National Hotel, where wine and 
cigars were ordered. That Dr. Mudd, after 
the wines and cigars came, called Booth into 
the passage, and they stayed there five to eight 
minutes, and then bothcame and called Surratt 
out, and all three stayed there about as long as 
Mudd and Surratt had stayed, both interviews 
together making about ten to twenty minutes. 
On "returning to the room, Dr. Mudd seated 
himself by witness, and apologized for their 
private conversation, saying, “that Booth and 
he had some private business that Booth 
wished to purchase his farm.” And that, sub- 
sequently, Booth also apologized to him, giv- 
ing the same reason for the private conversa- 
tion. Booth at one time took out the back of 
an envelope, and made marks on it with a pen- 
cil. “I should not consider it writing, but 
more in the direction of roads or lines.” The 
three were at the time seated round a center 
table in the middle of the room. “ The room 
Every material thing he did say, which was 
Bllsceptible of being shown false, has been so 
shown. 
. Ist. Mrs. Surratt’s bouse is not between the 
Patent Office and the President’s, but next the 
of Sixth. (Weichmann, Holahan, Miss 
2d. Miss Surratt, an only daughter, says she 
fiever saw or heard of Samuel Mudd being at 
er mother’s house, nor heard his name men- 
•-ffined in the family, and never met Judson 
arboe there or elsewhere before the assassin- 
ation. 
~ Bd. Miss Fitzpatrick, who boarded at Mrs. 
k'H’ratt’s from the 6th of' October last to the 
*Ssassination, and Holahan, who was there 
r°m the first week of February last, never 
aw either Mudd or Jarboe there, or heard of 324 
ARGUMENT OF THOMAS EWING, JR. 
was very large—half the size of this court 
room.” He was standing, when this was done, 
within eight feet of them, and Booth was 
talking in a low tone, and Surratt and Mudd 
looking on the paper, but witness heard no 
word of the conversation. About twenty min- 
utes after the second return from the passage, 
and after a good deal of general conversation, 
they all walked round to the Pennsylvania 
House, where the accused sat with witness on 
a lounge, and talked about the war, “ex- 
pressed the opinion that the war would soon 
be over, and talked like a Union man.” Soon 
after getting there, Booth bid the accused good 
night, and after Booth left, witness and Sur- 
ratt followed, at about half-past ten o’clock. 
It will be observed that the only men spo- 
ken of by this witness as having seen the ac- 
cused on this occasion are, Booth, who is dead, 
and Surratt, who is a fugitive from the coun- 
try. So there is no one who can be called to 
confirm or confute his statements, as to the 
fact of these men being together, or as to the 
character of the interview. But there was one 
fact about which he said he could not be mis- 
taken, and by means of which his evidence 
against Mudd is utterly overthrown. That is, 
he alleges the meeting was about the middle 
of January, and fixes the time with certainty 
by three distinct circumstances : 
Ist. He made a visit to Baltimore about the 
middle of January, and near the date of this 
meeting. 
2d. He had, before the meeting, got a letter, 
which he received on the IQih of January. 
3d. It was after the Congressional holidays, 
and Congress had resumed its session. He re- 
collects this fact of itself, and is confirmed in 
his recollection by the fact that Booth’s room 
was one a member of Congress had occupied 
before the holidays, and which was given 
Booth, as he learned, until the member, who 
had been delayed beyond the time of the re- 
assembling of Congress, should return. Booth 
told him this. 
store making purchases; were not at the 
National Hotel, and left the city about one 
o’clock in the afternoon of the 24th, and re- 
turned home together. Witness never saw 
Booth, except on his visit to Bryantown in 
November. We have shown by the evidence 
of Lucas, Montgomery, Julia Bloyce and Jerry 
Mudd, that accused came here on that visit on 
a sufficient and legitimate business errand—- 
to purchase a cooking stove and other articles, 
which he bought here then. 
On the 23d of March, Lewellyn Gardiner 
said accused again came to Washington with 
him to attend a sale of condemned horses, but 
that the sale did not occur at that time. They 
got to Washington at four or five P. M., left 
their horses at Martin’s, beyond the Navy 
Yard, and went about looking at some wagons 
for sale, and went then to the Island to the 
house of Henry Clark, where they took tea. 
They spent the evening at Dr. Allen’s playing 
whist; slept together that night at Clark’s, 
and after breakfast next morning went through 
the Capitol, looking at the paintings in the 
Rotunda, and returned to Martin’s at dinner, 
and after dinner left and returned home. Ac- 
cused was not separated from or out of sight 
of witness five minutes during the whole visit, 
and did not go to any of the hotels or to the 
post-office, or see or inquire for Booth. Dr. 
Allen, Clark, Martin, Thomas Davis, Mary, 
Mudd, Henry Mudd and Betty Washington 
confirm witness as to the objects or incidents 
of the visit. 
On the 11th of April, three days before the 
assassination, while Booth, as appears by the 
hotel register, was at the National in this city, 
accused came to Giesboro to attend the sale of 
Government horses, which he and Lewellyn 
Gardiner had come on the 23d of March to at- 
tend. Though in sight of Washington, he did 
not come into the city, but took dinner at 
Martin’s, and after dinner left and returned 
home. On this visit he stayed all night at 
Blanford’s, twelve miles from the city, coming 
up, but not returning. (Lewellyn Gardiner, 
Henry L. Mudd, Dr. Blanford, Martin, DaviSj 
Betty Washington, Mary Mudd.) 
On the 26th of January, he wont with hi 3 
wife to the house of his neighbor, Georg® 
H. Gardiner, to a party, and stayed til* 
daylight. (Betty Washington, Thomas Davis, 
Mary Mudd.) Except for one night on the oc- 
casion of each of those four visits—two t° 
Washington, one to Giesboro, and one to Gard' 
iner’s—accused was not absent from horn® a 
night from the 23d of December until his ar- 
rest. (Betty Washington, Thomas Davis? 
Henry L. Mudd, Mary Mudd, Frank Washing' 
ton.) 
After the evidence for the defense above re' 
ferred to had been introduced, refuting and com' 
pletely overwhelming Weichmann’s testimony 
and all inferences as to Dr. Mudd’s compli®l J 
with Booth, which might be drawn from it, a ne 
accuser was introduced against him on 
same point, in the person of Marcus P. Nort°f< 
who said that at half-past 10 o’clock on * 
morning of the 3d of March, as he was prep 
ing his papers to go to the Supreme Court 
In refutation of this evidence, we have 
proved, beyond all controversy, that Dr. Mudd 
was not in Washington from the 23d of Decem- 
ber to the 23d of March. 
On the 23d of December he came to Wash- 
ington with J. T. Mudd, who says they left 
their horses at the Navy Yard, and went into 
the city at dark, on the street cars, and regis- 
tered at the Pennsylvania House. They then 
went out and got supper at a restaurant, and 
then went to the Metropolitan Hotel and 
stayed there together a quarter of an hour, 
and then to the National, where witness met 
a friend, and became separated in the crowd 
from the accused. Witness strolled out and 
went back to the Pennsylvania House, to 
which accused returned in a few minutes 
after he got there. He saw and heard no one 
with the accused, though there might have been 
persons with him in the front part of the 
room (which was separated from where wit- 
ness sat by open folding doors), without wit- 
ness seeing them. Witness and accused then 
went to bed; were together all next day; 
were about the market together, and at the THE CONSPIRACY TRIAL. 
325 
argue a motion in a patent case there pending, 
(which motion the record of the Court shows he 
did argue on that day), a stranger abruptly en- 
tered his room and as abruptly retired, saying 
he was looking for Mr. Booth’s room; and though 
witness never saw Dr. Mudd before or since, until 
the day of his testifying, he says that stranger 
is the prisoner at the bar. He could not tell any 
article of the stranger’s clothing except a black 
hat. Wm. A. Evans, a part of whose evidence 
We have hereinbefore considered, comes to the sup- 
port of Norton by saying that early on the morn- 
ing of either the Ist, or 2d, or 8d of March (wit- 
ness is certain it was one of those three days), 
Dr. Mudd passed witness on the road from Bry- 
antown to Washington, a few miles from the 
city, driving a two-horse rockaway, and there 
Was a man in with him, but whether a black or 
a white man witness could not recollect. Fortu- 
nately for the accused, the Ist day of March was 
Ash Wednesday—the first day of Lent—a relig- 
ious holiday of note and observance in the com- 
munity of Catholics among whom he lived. For- 
tunately for him, too, his sister Mary was taken 
ill on that day, and required his medical attend- 
ance (at her father’s house, on the farm adjoin- 
ing his own, thirty miles from Washington) each 
day, from the 2d to the 7th of March, inclusive. 
By the aid of these two circumstances we have' 
been able to show, by Thomas Davis, that accused 
Was at home at work on the 28th of February— 
ihe day before Ash Wednesday; by Dr. Blan- 
ford, Frank Washington and Betty Washington, 
that he was there at wrork at home on the Ist of 
March; by Mary, Fanny, Emily and Henry L. 
Mudd, Betty and Frank Washington and Thomas 
Davis, that he was there on the 2d, 3d, 4th and 
sth of March, at various hours of each day. At or 
Within two hours of the time when Norton says 
he 
saw the accused enter the room at the National 
(half past 10 A. M., 3d of March), Mary, Emily, 
Danny and Henry L. Mudd, Frank and Betty 
Washington, Thomas and John Davis, ail testify 
*Uost emphatically to having seen him at his 
bouse, on his farm, or at his father’s house ad- 
jacent to his own—six hours’ ride from Wash- 
ington ! We have shown, too, by Mary Mudd, 
Biat the accused has always worn a lead-colored 
hat whenever she has seen him this year, and 
that she has seen him almost daily; and by 
Henry Mudd, Dr. Blanford and Mary Mudd, that 
hoither he nor his father owns a rockaway. 
How, Norton either saw the accused enter his 
r°om on the morning of the 3d of March, or not 
H all, for his evidence, clinched as to the date 
by the record of the Supreme Court, excludes the 
opposition that he could have been mistaken as 
the day. Nor can these eight witnesses for the 
notense be mistaken as to the day, for the inci- 
■Uits by which they recollect Mudd’s presence 
home, fix the time in their memories exactly. 
”Ah all this evidence before the Court, it can 
f\°t hesitate to hold the alibi established beyond 
Ml cavil. 
The only other item of evidence as to anything 
Tone or said by Dr. Mudd, or by anybody, be- 
9**® the assassination, tending in the least to 
®bpw him implicated in the conspiracy, is the 
ovidence of Daniel J. Thomas, who says that sev- 
etal weeks before the assassination he met Mudd 
at the house of his neighbor, Downing, and there, 
in the course of conversation, Mudd said (laugh- 
ingly) that “Lincoln and his whole Cabinet, and 
every Union man in the State of Maryland, 
would be killed within six weeks.” Witness said 
he wrote to Col. John C. Holland, provost mar- 
shal of that district, at Ellicott’s Mills, before the 
assassination, advising him of Mudd’s statement. 
But Col. Holland says Ire got a letter from wit- 
ness about that time, and there was not a word 
of the statement in it, nor a reference to the ac- 
cused, nor to any statement by anybody about 
killing anybody. Thomas says he told his 
brother, Dr. Thomas, of the declaration before 
the President was killed, but his brother says 
emphatically he did not tell him until after 
Mudd’s arrest—the boot found at Mudd’s house 
having been named in the same conversation. 
Thomas says he told Mr. Downing about it be- 
fore the assassination, but Downing says em- 
phatically he did not tell him a word about it at 
any time. Downing also says that he himself 
was present every moment of the time Mudd and 
Thomas were together at his house, and heard 
every word said by either of them, and Mudd 
did not make that statement, nor refer to the 
President, or the Cabinet, or the Union men of 
Maryland, at all, nor say a word about anybody 
being killed. He says, however, Mudd, when 
Thomas was bragging and lying about being a 
provost marshal, did tell him, “he was a jack,” 
which insult was doubtless an incentive to the 
invention of the calumny. But it was not the 
only incentive. Thomas knew that if that lie 
could be ]3almed off on the Judge Advocate and 
the Court for truth, it might lead to Mudd’s ar- 
rest and conviction as one of the conspirators. 
He had, on Tuesday, before Mudd’s arrest, and 
before this lie was coined and circulated, been 
posting handbills, containing the order of the 
War Department offering liberal rewards for any 
information leading to the arrest of Booth’s ac- 
complices, and he then doubtless conceived the 
idea of at once getting reward in money from 
the Government for his information, and revenge 
on Mudd for his insult in Downing’s house. 
That he gave that evidence corruptly is shown 
by Wm. Watson, John 11. Richardson and Ben- 
jamin Naylor, who say that Thomas, after testi- 
fying against Mudd, went to see them, and said 
that “if Dr. Mudd was convicted upon his testi- 
mony, he would then have given conclusive evidence 
that he gave the information that led to the detection 
of the conspirator! “He then asked Mr. Benjcu- 
min J. Naylor if he did not mention to him and 
Gibbons, before the killing of the President, the 
language that Dr. Mudd had used. Mr. Naylor 
said that he had never done it before or after!" 
uNe said his portion of the reward ought to be 
$lO,OO0—and asked me ( Watson) if I would not, 
as the best loyal man in Prince George's county, give 
him a certificate of how much he ought to he entitled 
to.’’ The testimony of Richards, and of Eli J. 
Watson, coupled with Thomas’ testimony in de- 
nial of these statements, fill the record of infamy 
of this false witness. 
To accumulate evidence that Thomas’ state- 
ment is utterly unreliable, the defense brought 
over twenty of his neighbors, who testified that 
he could not be believed on oath—among whom 326 
ARGUMENT OE THOMAS EWING, JR. 
« 
able to ride off on horseback with his broken and 
swollen limb at all—not that he took ten hours’ 
rest. The Court will observe from the map in 
evidence, that Booth, taking Surrattsville in his 
route to Pope’s creek, opposite Matthias Point, 
where he crossed the Potomac (Capt. Doherty), 
traveled at least eight or ten miles out of his'way 
to go, after leaving Surrattsville, by Dr. Mudd’s. 
(See Dyer’s testimony.) Would he have gone 
that far out of his route to the Potomac crossing 
if he had not broken his leg ? Or was it part of 
his plan to break it ? Obviously, he could not 
in advance have planned to escape by crossing 
the Patuxent, nor to evade his pursuers by lying 
concealed in Charles county, within six hours’ 
ride of Washington. He must, as a sane man, 
have contemplated and planned escape across 
the Potomac into Virginia, and thence South or 
abroad; and it could never have been part either 
of the plan of abduction, or of that of assassina- 
tion, to go the circuitous route to a crossing of 
the Potomac by Bryantown or Dr. Mudd’s. So 
that the fact of Booth going to the house of the 
accused and stopping to get his leg set and to 
rest, does not necessarily lead to any conclusion 
unfavorable to the accused. 
were Naylor, Roby, Richards, Orme, Joseph 
Waters, John Waters, J. F. Watson, Eli Watson, 
Smith, Baden, Dickens, Hawkins, Monroe and 
others, of undisputed loyalty, nearly all of whom 
had known him from boyhood. His brother, 
Dr. Thomas, testifies that he is at times de- 
ranged ; and Dr. Georgs Mudd says that he is 
mentally and morally insane. And, although 
Thomas’ evidence was the most important in the 
case against Dr. Mudd, the Judge Advocate has 
not seriously attempted to sustain him—has not 
tried to show that ho ever told or hinted at this 
story to anybody before the assassination—and 
has not asked one of the scores of witnesses for 
the prosecution in attendance from Thomas’ 
neighborhood a question as to his reputation for 
veracity—except Wm. Watson, who said it was 
decidedly had. A feeble attempt was made to 
sustain him, by endeavoring to show that he was 
a zealous supporter of the Administration, and 
that, therefore, the general voice of his commu- 
nity was against him. But we showed that he 
was a rebel at the beginning of the war, and an 
opponent of the Administration at the last elec- 
tion—and then the Judge Advocate dropped him! 
This is all the evidence of every act or word 
done or said by any body, prior to the assassi- 
nation, tending in the remotest degree to con- 
nect Mudd with the conspiracy. It consists, in 
large part, of the testimony of the five negroes, as 
to the Confederate officers frequenting Mudd’s 
house last year and the year before—two of 
them, Milo and Mary Simms, as to Surratt’s visit- 
ing his house last year—of Evans, as to Mudd’s 
going to Surratt’s house last winter—of Evans 
and Norton, as to Mudd’s being here on the Bd 
of March—of Weichmann, as to the interview 
between Mudd, Booth and Surratt, about the 
middle of January, and of Thomas, as to Mudd’s 
prediction of the assassination in March. I ven- 
ture to say that rarely in the annals of criminal 
trials has the life of an accused been assailed by 
such an array of false testimony as is exhibited 
in the evidence of these nine witnesses—and 
rarely has it been the good fortune of an inno- 
cent man, arraigned and on trial for his life, to 
so confute and overwhelm his accusers. I feel 
it would be a waste of time, and an imputation 
on the intelligence of the Court to delay it with 
fuller discussion of the evidence of these wit- 
nesses, and feel sure it will cast their testimony 
from its deliberations, or recollect it only to re- 
flect how foully and mistakenly the accused has 
been assailed. 
Booth got there, with Herold, about daybreak 
(Frank Washington). He usually wore a mus- 
tache (see photograph), but he then wore heavy 
whiskers, and had his face muffled in a shawl) 
so as to disguise him. The disguise was kept 
up all day. (Col. Wells.) He was taken to a 
lounge in the hall, and then to a front room up 
stairs, where the broken bone was set, where » 
fee of 's2s was paid for the service, and where, 
it is probable, he slept most of the day. They 
represented that the leg had been broken by a 
fall of the horse; that they had come from Bry- 
antown, and were going to Parson Wilmer’s. 
After breakfast accused went to his field to work. 
Herold, whom Mudd had never met (Colonel 
Wells), came down to breakfast and dinner with 
the family, and after dinner he and Mudd went 
off together to the house of Mudd’s father to get 
a family carriage to take the wounded man to 
the house of Parson Wilmer, five miles off, 
Piney Chapel. (Lovett Wells.) Now, can any 
man suppose for a moment that Mudd, at this 
time, had the slightest suspicion or intimation ot 
the awful tragedy of the night before? Could 
he, knowing or suspecting the crime or the crimi- 
nal, have thus recklessly given himself up to ar- 
rest and trial, by publicly aiding the escape of 
the assassin ? Could he have been ready to ex- 
pose his old father to suspicion by thus borrow'' 
ing his carriage, which would have been noticed 
by every man, woman and child on the road, W 
carry off the assassin ? Impossible! I neec 
nothing more of the Court than its consideration 
of this fact, to clear the accused of all suspicion 
of having, up to that time, known or suspected 
that a crime had been committed by the crippl® 
stranger, whom he was thus openly and kindly 
seeking to aid, , 
But the carriage could not be got, and Mum 
and Herold rode off toward Bryantown to ge 
one there. Col. Wells thinks the accused tol' 
him that Herold turned back when getting 011 
and a-half miles from the elder Mudd’s housC) 
saying he could take his friend off on horsebac 
Having now discussed all the evidence ad- 
duced that calls for discussion, or may by possi- 
bility be relied on as showing Mudd’s acquaint- 
ance with Booth, or connection with the con- 
spiracy, and having, I think, shown that there 
is no reliable evidence that he ever met Booth 
before the assassination but once on Sunday, 
and once the day following, in November last, I 
will proceed to a consideration of the testimony 
relied on to show that he knowingly aided the 
escape of the assassin. 
First, Why did Booth go to Dr. Mudd’s and 
stop there from daybreak till near sundown on 
his flight? I answer, because he had a broken 
leg, and needed a physician to set it. And as 
to°the length of the stay, the wonder is he was THE CONSPIRACY TRIAL. 
327 
Betty Briscoe and Eleanor Bloyce, however, say 
they saw a man riding toward Bryantown with 
the accused, who turned back at the bridge at 
the edge of the town. 
Mudd made some purchases of calico and other 
articles, and heard of the assassination. (Bean.) 
It was not generally known then among the 
citizens who was the assassin. (Bean, Boby, 
Trotter, B. W. Gardiner, M. L. McPherson, John 
McPherson.) In fact it was not generally known 
with certainty at the theater, or in Washington, 
Friday night, whether Booth was the murderer. 
(Gobright.) In Bryantown it was commonly 
understood that Boyle, a noted desperado of that 
region, who assassinated Capt. Watkins last fall, 
was one of the assassins. (M. L. McPherson, 
Bean, Trotter, Roby.) It was not known that 
the murderer had been tracked into that neigh- 
borhood. (Bean, Dr. Geo. Mudd.) Lieutenant 
Dana told Dr. Geo. Mudd, Saturday afternoon, 
that Boyle assassinated Mr. Seward, and Booth 
the President, but that he thought Booth had not 
then got out of Washington. Even next day 
(Sunday) it was reported there that it was Edwin 
Booth who killed the President. 
toward Bryantown and the time Herold 
returned alone, was but three-quarters of an 
hour. From the fact that Herold could not 
have ridden to the bridge and back in that 
time (six miles), it seems highly probable that 
he did not go to the bridge, but turned back 
about where Colonel Wells thinks Mudd said 
he did. But however that may be is not im- 
portant, as it is certain from the evidence of 
these four witnesses that Herold did not wait 
at the branch for Mudd’s return from Bry- 
antown. 
As Mudd rode home, he turned out of his 
way to see his neighbor, Hardy (who lives 
half-way between the house of the accused 
and Bryantown), about some rail-timber he 
had engaged there. The house is not in view 
of the road, a clump of pines intervening. 
He told Hardy and Farrell of the news. Har- 
dy says: 
“He said to me that there was terrible news 
now, that the President and Mr. Seward and 
his son had been assassinated the evening 
before. Something was said in that connec- 
tion about Boyle (the man who is said to have 
killed Captain Watkins) assassinating Mr. 
Seward. I remember that Booth’s name was 
mentioned in the same connection, and I asked 
him if Booth was the man who had been down 
there. His reply was that he did not know 
whether it was that man or one of his broth- 
ers; he understood that he had some brothers. 
That ended the conversation, except that he 
said it was one of the most terrible calamities that 
could have befallen the country at this time. 
“ Q. Did you say that it was understood or 
said that Booth was the assassin of the Pres- 
ident? A. There was some such remark made, 
but I do not exactly remember the remark.” 
They both say he seemed heartily sorry for 
the calamity, and that he said he had just 
come from Bryantown, and heard the news 
there. Hardy says he stayed there only 
about ten minutes, and left just about sun- 
down. Farrell corroborates Hardy as to the 
conversation, except that he reports nothing 
as to Boyle’s name being mentioned; but he 
says the conversation was going on when he 
joined Hardy and Mudd. He says the house 
is less than a quarter of a mile off the road, 
and that accused stayed there about fifteen 
minutes. 
Now, I ask the Court, what is there up to 
this point to indicate that Mudd knew or had 
any suspicion that the broken-legged man was 
implicated in the crime? If there is anything 
in proof showing that fact, I fail to find it. 
true, he had met Booth twice in November— 
five months before. Had seen him that dark, 
cloudy morning, at day-break, faint with 
fatigue and suffering, muffled in his shawl 
and disguised in a heavy beard; had minis- 
tered to him in the dim light of a caudle, 
whose rays struggled with the dull beams of 
the opening day; had seen him, perhaps, 
sleeping in the darkened chamber, his mus- 
tache then shaved off, his beard still on, his 
effort at concealment still maintained. 
(Wells.) And here let me remind the Court, 
that there is nothing in the evidence showing 
The accused left Bryantown about four 
o’clock to return home. Betty Briscoe says the 
same man who had turned back at the bridge 
stopped in the edge of a branch, which the 
road crosses a couple of hundred yards from 
the bridge, until Mudd returned from the 
town, and then they rode off together across 
the branch, “up the road.” But Booz says he 
saw Mudd a couple of hundred yards beyond 
that crossing leisurely going through the farm 
Booz lives on, by a near-cut which he usually 
traveled, alone; and that he would himself 
have probably noticed the man at the crossing, 
which was in full view of where he was, had 
he been waiting there; and would have cer- 
tainly noticed him had he been with Mudd 
traveling the main road, when Mudd turned 
into the cut-off through the farm—but he saw 
no one but the accused. Susan Stewart also 
saw Mudd in the by-road returning home 
alone, and did not see any man going the 
main road, which was in full view. I call the 
attention of the Court to the plat by which 
the branch and these roads are to 
the fact that there is no road turning off from 
the main road between Booz’s place and Bry- 
antown, except the side road by Booz’s house. 
If further refutation of the testimony of Bet- 
ty Briscoe on this point be required, it is 
found in the evidence of Primus Johnson, who 
saw Herold pass the elder Mudd’s in the main 
road, going toward the house of the accused, 
and some time after that, himself caught a 
horse in the pasture, and rode toward Bry- 
antown, and met and passed Dr. Mudd coming 
leisurely from Bryantown, alone, at Booz's 
farm; and that from the time he saw Herold 
until he met and passed Mudd was full an 
hour and a-half. And in the evidence of John 
■felon, who was on the roadside, three miles 
from Bryantown, when Herold passed, at 
het-ween three and four o’clock, and who 
remained there an hour, and Dr. Mudd did 
go by in that time. Acton also says, 
Ihat, between the time Herold and Mudd went ARGUMENT OF THOMAS EWING, JR. 
that Booth spoke a word, but where either of the 
men are referred to as saying anything, “ the 
smaller man ” was the spokesman. Let it be 
remembered, too, that Booth was an actor, accus- 
tomed by years of professional practice to dis- 
guise his person, his features, and his tones, so 
that if Mudd had been an intimate associate, 
instead of a more casual acquaintance, it wrould 
have been easy for Booth to maintain a disguise 
even when subjected to close scrutiny under cir- 
cumstances favorable to recognition. If the 
Court will also consider with what delicacy a 
physician and a gentleman would naturally re- 
frain from an obtrusive scrutiny of a patient 
coming to his house under the circumstances, 
they will appreciate how easy it was for Booth 
to avoid recognition, and how probable that 
Mudd had no suspicion who his patient was. 
Had he recognized Booth before he went to Bry- 
antown, and heard there that name connected 
with the “ terrible calamity,” would he have 
jogged quietly home, stopping to chat with 
Booz, to look after his rail-timber, to talk of the 
names of the assassins with his neighbors ? 
Unless the Court start out with the hypothesis 
of guilt, and substitute unsupported suspicion 
for proof—which I respect them too highly to 
fear for a moment they will do—they can not 
charge him with a recognition of Booth before 
he returned home from Bryantown. 
Hardy says it was about sundown when Mudd 
left; Farrell says about 5 o’clock. Ho had two 
miles to ride home. It must have been sundown 
when he-got home, and the men had just gone. 
Betty Washington says that three or four min- 
utes after Herold (the last of the two) disap- 
peared toward the swamp, Mudd came through 
the hall to the kitchen, and was then first seen 
by her after his return from Bryantown. The 
other servants had not come from the field when 
the men started, and we are, therefore, left to 
that one witness to show that the statement of 
Simon Gavacan, one of the detectives, who says 
“Ae thinks ” Mudd said he went with them part 
of the way, is incorrect. It is inconsistent, too, 
with Mudd’s statement to Col. Wells on the sub- 
ject, which is as follows: “The Doctor said that 
as he came back to the house he saw the person, 
that he afterward supposed to be Herold, pass- 
ing to the left of the house, and toward the barn 
or the stable; that he did not see the other per- 
son at all after he left him at the house, which 
was about 1 o’clock, I think.” This statement, 
and that of Betty Washington, last above quoted, 
coincide with, and strengthen each other. 
It is true, Dr. Mudd did say to all, who asked 
him, that he had shown Herold the way to Par- 
son Wilmer s by the short route, but this was in 
the morning, soon after the parties reached the 
house, and before the idea of the carriage ap- 
pears to have been suggested. This is shown 
by the statement of Col. Wells, who says that 
the accused, in the same conversation in which he 
said that Booth and Herold had just gone from the 
house as he came up, told him that “ Herold, the 
younger of them, asked him the direct route to 
Piney Chapel, Dr. Wilmer’s, saying that he was 
acquainted with Dr. Wilmer.” He described the 
main traveled road, which leads to the right of 
his house, and was then asked if there was not 
a shorter or nearer road. He said, “Yes; there 
is a road across the swamp that is about a mile 
nearer, I thinkhe said it was five miles from 
his house to Piney Chapel by the direct road, 
and four miles by the marsh, and undertook to 
give him (as he said) a description by which 
they could go by the nearer route. He said 
that the directions were these: “They were to 
pass down by his barn, inclining to the left, 
and then pass straight forward in a new direc- 
tion across the marsh, and that, on passing 
across the marsh, they would come to a hill; 
keeping over the hill, they would come in sight 
of the roof of a barn, and, letting down one or 
two fences, they would reach the direct road.” 
The accused meant, of course, that this in- 
quiry and explanation occurred before his re- 
turn to the house from Bryantown, and so Col. 
Wells understood him, for he so in effect says. 
The statement of the accused to Dr. George 
Mudd, the next day after Booth left, is to the 
same effect. He said: “ That these parties 
stated that they came from Bryantown, and 
were inquiring the way to the Rev. Dr. Wil- 
mer’s,” thus putting their inquiry for the route 
to Parson Wilmer’s in direct connection with 
their early explanation as to whence they came. 
I have no doubt that Gavacan, the detective, 
recollects an inference which he, and, perhaps, 
also his associate detective, Williams, drew 
from Dr. Mudd saying that he had shown 
Herold the route to Parson Wilmer’s; that he 
showed it as Booth and Herold wrere leaving. 
But the inferences of detectives, under the 
strong stimulus of prospective rewards, arc in- 
ferences generally of guilt; and that these gen- 
tlemen were not free from the weaknesses of 
their profession, and that they grossly misrep- 
resented Dr. Mudd in other important state- 
ments, will presently be shown to the satisfac- 
tion of the Court. 
Now, if Mudd did not know, when he talked 
with Hardy about the assassination, and spbke 
of Booth in connection with it, that the assas- 
sin was at his house—as I think the evidence 
shows he did not—then when did he first sus- 
pect it? Col. Wells says his inference was, 
from something the accused said, that he sus- 
pectech4he crippled man to be Booth before he 
left the premises. The evidence not only shows 
that when Mudd returned Booth had gone out 
of sight, but it also shows what fact it was 
that, added to the undue excitement of the 
strangers, and to the fact that the crippled 
man shaved off his moustache, thoroughly 
aroused his suspicion. It was the fact that his 
wife said to him, after they left, that, as the crip- 
pled man came down to go, his false whiskers be- 
came detached from his face. (Lieut. Lovett.) 
When she told him this, and what he said or 
proposed to do, was not shown by the prosecu- 
tion, and, by the rules of evidence, could not be 
by the defense. But that was a fact which 
could not probably have been communicated to 
Mudd by his wife until Booth had gone. 
In the evidence adduced as to Mudd’s sub- 
sequent conduct and statements, I need only 
call the attention of the Court to two points, 
for in it there is nothing else against him: 
Ist. He did not tell, on Tuesday, that the boot THE CONSPIRACY TRIAL. 
329 
Wag there, far down in the leg of which was j 
found, by the officers, “J. “Wilkes,” written in j 
pale ink. I answer, the boot was not found by j 
his wife until several days after the assassin | 
left, and was then found in sweeping under the 
hed. (Hardy.) We have every reason Jo sup- 
pose it was not found until after Tuesday, for 
the accused, on Friday, before a question was 
asked, or a word communicated to him, told of 
the hoot himself and had it produced, and said, in 
presence of his wife, it was found by her after 
the officers were there before. (Hardy.) 
2d. Of the three detectives who went to the 
house of accused Tuesday, Williams says: Ac- 
cused denied throughout that two men had 
been there; yet he says, on cross-examination, 
that accused, in the same conversation, pointed 
out the route the men had taken toward Wil- 
ffier’s. Gavacan said he at first denied two men 
had passed there, and then admitted it. Lloyd 
says he denied it from beginning to end, on 
Tuesday. But Lieut. Lovett, who went with 
and in command of these detectives, speaking 
of this interview on Tuesday, says: “We first 
asked ivhether there had been any strangers at his 
house, and he said there were.” The three detec- 
tives are manifestly mistaken ; either from in- 
firmity of memory, or from some less pardon- 
able cause, they have failed to recollect and 
truthfully render what Dr. Mudd did say on 
that subject. 
The commentators upon the law of evidence 
give a caution which it may be well for the 
Court to observe. They admonish its how easy 
R is for a corrupt witness to falsify a conver- 
sation of a person accused, and as the accused 
Can not be heard, how difficult, if not impossi- 
ble, contradiction is. How easy for an honest 
witness to misunderstand, or in repeating 
was said, to substitute his own language 
°r inference for the language which was really 
hsed, and thus change its whole meaning and 
Import. In no case can the caution be more 
Pertinent than in this. The very phrensy of 
badness ruled the hour. Reason was swal- 
lowed up in patriotic passion, and a feverish 
and intense excitement prevailed most unfa- 
vorable to a calm, correct hearing and faith- 
ful repetition of what was said, especially by 
*ha suspected. Again, and again, and again 
Cm accused was catechised by detectives, each 
°f whom was vieing with the otheras to which 
should make the most important discoveries, 
aUd each making the examination with a pre- 
conceived opinion of guilt, and with an eager 
desire, if not determination, to find in what 
be said the proofs of guilt. Again, the 
Witnesses against the accused have testified 
the strong stimulus of a promised re- 
gard for information leading to arrest and 
allowed by convictions. (See order of Secre- 
ary of War.) At any time and in any com- 
munity, an advertisement of rewards to in- 
ffiriners would be likely to be responded to— 
at a time, and on an occasion like this, it 
'v°uld be a miracle if it failed of effect. In 
View of these considerations, the Court can 
*J°t be too vigilant in its scrutiny of the evi- 
. nce of these detectives, or too circumspect 
adjusting the influence to be given to it. 
No more effective refutation of this state- 
ment, that Mudd denied on Tuesday that two 
strangers had been at his house, can be given 
than to ask how came Lieut. Lovett and the 
detectives at Dr. Mudd’s? They did not scent 
out the track for themselves. They were at 
Bryan town on Saturday, and were at fault, 
and had they been let alone, would probably 
have remained at fault, and not have gone to 
Dr. Mudd’s. By whom and when was the in- 
formation given which brought them there ? 
The next morning after the startling news of 
the assassination reached him, the accused 
went to Dr. George Mudd, a man of spotless 
integrity and veracity, and of loyalty un- 
swerving through all the perilous and dis- 
tressing scenes of the border war, and fully 
informed him of all that had occurred—the 
arrival of the two strangers, the time and cir- 
cumstances under which they came, what he 
had done for them, the suspicions he enter- 
tained, wrhen they departed, and what route 
they had taken; and requested him, on his 
behalf and in his name, to communicate this 
information to the military authorities on his 
return that day to Bryantown. Dr. George 
Mudd did make the communication as requested, 
on Monday morning, to Lieut. Dana, and fur- 
ther informed him of Dr. Samuel Mudd’s de- 
sire to be sent for any further information 
which it might be in his power to give. In 
consequence of this, and of this alone, Lieut. 
Lovett and the detectives did, on Tuesday, go 
to the house of the accused, accompanied by 
Dr. George Mudd, who prefaced his introduc- 
tion by informing the accused that, in accord- 
ance with his request, he had brought Lieut. 
Lovett and the detectives to confer with him 
in reference to the strangers who had been at 
his house Saturday. Of these facts there is 
no doubt or dispute. They stand too promi- 
nenty upon the record to be ignored or eva- 
ded. But for this information the detectives 
would not have been at the house of the ac- 
cused at all. They came at his request, and 
when they came it is absurd and idle to say 
that he denied, almost in the presence of Dr. 
George Mudd, who had been his messenger 
and was then in the house, that the two stran- 
gers had been there. On the contrary, the 
evidence shows he imparted all he knew, and 
pointed out the route which the strangers 
took when they left—but which Lieut. Lovett 
and the detectives did not at once pursue, be- 
cause they chose to consider his statement un- 
candid, and intended to put them upon a false 
scent. Indeed, so accurate was the descrip- 
tion given by the ascused to Lieut. Lovett, 
Tuesday, of the persons who had been at his 
house, that the lieutenant says he was satis- 
fied, from Mudd’s description, they were Loath and 
Her old. 
It was in great part by reason of Dr. Mudd's 
having delayed from Saturday night until 
Sunday noon to send to the authorities at Bry- 
antown information as to the suspected per- 
sons who had been at his house, that he was 
arrested and charged as a conspirator; and 
yet I assert this record shows he moved 
more promptly in communicating his inform- 330 
ARGUMENT OE THOMAS EWING, JR. 
ation than they did in acting on it. His mess- 
age was communicated to Lieut. Dana Mon- 
day morning. Tuesday, Lieut. Lovett and the 
detectives came, and that officer got such in- 
formation from Dr. Mudd as convinced him 
the suspected persons were Booth and Herold, 
and yet it was not until Col. Wells came, on 
Saturday, that an energetic effort was made to 
find the route of the assassin. On that day, 
Dr. Mudd himself went with that officer, and 
followed the tracks on the route indicated be- 
yond the marsh into a piece of plowed 
ground, where the tracks were lost. But Col. 
Wells had got the general direction, and it was 
in consequence of the information sent by the 
accused to the authorities the day after Booth 
left his house, that he was tracked to the Po- 
tomac. 
J not shown. True, they might have talked of 
and plotted assassination ; but did they ? Is 
! there, in the intercourse which had thus far 
occurred, any incident from which such a de- 
duction could be drawn, or which would jus- 
! tify a suspicion that any such thing was 
i thought of or hinted at? Nor did they ever 
meet again anywhere before the assassination, 
unless the testimony of Weichmann is to be 
accepted as true, which, upon this point, at 
least, is quite unworthy of credence. He 
swears to having met Dr. Mudd and Booth, in 
the city of Washington, about the middle ot 
January-—certainly after the holidays. But 
it is in proof by many witnesses, who can not 
be mistaken, have not been impeached, and 
who unquestionably stated the truth, that Dr. 
Mudd was from home but one night from the 
23d of December to the 23d of March, and 
that night at a party in his own neighborhood. 
If this be so, and there is no reason to doubt 
it. then Weichmann’s statement can not be 
true. The mildest thing that can be said ot 
him, as of Norton, is, that he was mistaken 
in the man. That which was attempted to be 
shown by this contradicted witness (Welch- 
raann) was, that Dr. Mudd and Booth, who 
were almost strangers to each other, met Sur- 
ratt, to whom Booth was unknown, at the Na- 
tional Hotel, and within half an hour after 
the meeting, plotted the assassination of the 
President, his Cabinet, the Vice-President, and 
General Grant—all this in Washington, and 
in the presence of a man whom one of the 
supposed conspirators knew to be an em- 
ployee of the War Department, and had rea- 
son to believe was a Government detective! 
It is monstrous to believe any such thing oc- 
curred. It outrages all that we have learned 
of the philosophy of human nature, all that 
we know of the motives and principles of hu- 
man actions. And yet, if Mudd was not then 
and there inducted into the plot, he never was- 
He never sawr Booth again until after the assas- 
sination, and never saw any of the other con- 
spirators at all. Twice, then, and twice only-— 
unless the Court shall accept the testimony 
of Weichmann against the clear proofs of 11 u 
alibi, and then only three times—he and Booth 
had met. None of these meetings occurred 
later than the 15th of January. They al’e 
shown to have been accidental and brief. The 
parties had but little conversation, and portions 
of that little have been repeated to the Court- 
So far as it has been disclosed, it was as inn°' 
cent as the prattle of children, and not a wor 
was breathed that can be tortured into crimi- 
nality—not a word or an act that betokens 
malign purposes. Against how many scores 
of loyal persons, even in this community, maa 
stronger evidence be adduced than again® 
Mudd, if the mere fact of meeting and 
versing with Booth is to be accepted as e'Q 
dence of guilt? Booth was a guest at i* 
National Hotel—intelligent, agreeable, of 
tractive manner, with no known blemish 0 
his character as a man or a citizen. He n , 
the entree of the drawing-rooms, and mingm 
freely with the throngs that assembled ther 
His society, so far from being shunned, 
But the evidence does not show that Dr. 
Mudd delayed at all in communicating his in- 
formation, for it does not show when his wife 
told him of the false whisker of the crippled 
man. But, admit she told him on Saturday 
evening, as soon as the men left. It was four 
miles to Bryantown, and his wife may have 
feared to be left alone that night. Boyle, who 
haunted that neighborhood, was understood 
by Dr. Mudd to have been one of the assas- 
sins (Hardy), and may not his or his wife’s 
fears of the vengeance of that desperado have 
prevented him communicating his suspicions 
direct and in person to the officer at Bryantown? 
He told Dr. George Mudd next day, when ask- 
ing him to go to the authorities with the in- 
formation, to caution them not to let it be pub- 
licly known that he had volunteered the state- 
ment, lest he might be assassinated in revenge 
for having done it. 
Having thus presented and discussed some- 
what in detail the testimony in this case, I 
now ask the indulgence of the Court while I 
briefly review some of its leading features. 
Booth and Mudd met first in November last 
at church, near Bryantown, casually, and but 
for a few minutes. Their conversation was in 
presence of many others, including men of 
unquestioned loyalty. Next morning, Booth 
left Dr. Queen’s, rode by Mudd’s, talked of 
buying his farm, got him to show him over to 
Gardiner’s, a quarter of a mile off, where he 
bought a horse, Mudd manifesting no interest 
in the purchase. They rode away tpgether 
toward Mudd’s house, and toward Bryantown, 
where Gardiner found Booth next morning at 
the village hotel. Booth was again at Dr. 
Queen’s in the middle of December. But the 
evidence shows that he did not go into Mudd’s 
neighborhood, or seek or see him. So far as 
we dare speak from the evidence—and -we 
should dare speak from nothing else—that is 
all the intercourse between Mudd and Booth 
in that neighborhood before the assassination. 
What was there in that to attract attention 
or excite remark toward Mudd more than to 
Dr. Queen or Mr. Gardiner, or any other gen- 
tleman in Charles county, to whom Booth had 
been introduced, and with whom he had con- 
versed ? All that is shown to have passed 
between them was perfectly natural and harm- 
less, and nothing is to be presumed which was THE CONSPIRACY TRIAL. 
331 
courted; and the fairest ladies of the land, 
the daughters of distinguished statesmen and 
patriots deemed it no disparagement to them 
to accept his escort and attentions. It is not 
extravagant to say, that hundreds of true, 
Union-loving, loyal people in this and in 
other cities, were on terms of cordial and in- 
timate association with him. And why should 
they not have been ? He was under no sus- 
picion. They did not shun him. Why should 
Mudd ? And why shall what was innocent in 
them be held as proof of guilt in him ? Let 
it be remembered, in this connection, that Dr. 
Mudd’s house was searched and his papers 
seized; that Surratt’s house was seized and 
searched; that all the effects of Booth, Atze- 
rodt, Arnold, Herold, Spangler, and Mrs. Sur- 
I'att, that could be found, were seized and ex- 
amined ; and among them all not a letter, a 
note, a memorandum, not the scrape of a pen by 
any person or in any form, has been found 
implicating Dr. Mudd. Let it further be re- 
membered, that all these persons have been 
subjected to repeated examinations, under ap- 
palling circumstances, by various officials of 
the Government, eager to catch the faintest 
intimation of Mudd’s complicity, and that not 
one of them has mentioned or hinted at his 
name. Let it also be remembered, that anon- 
ymous letters have been picked up in railroad 
cars, found in pigeon-holes at hotels, rescued 
from the waves, and that the continent has 
been traversed and the ocean vexed in search 
of proofs of the conspiracy, its instigators, 
leaders, and abettors, and that in all this writ- 
ten and oral testimony there is not a word 
making the remotest allusion to Dr. Mudd. 
The probabilities are as a thousand to one that 
he never knew, or heard, or imagined, of a I 
Purpose, much less plotted in a conspiracy, 
either to capture or to assassinate the President. 
There is not only a failure to show his connec- 
Dection affirmatively, but, if the rules of law 
be reversed, and guilt be presumed until in- 
nocence be shown, then, I say, he has carried 
bis proofs in negation of complicity to a point 
as near demonstration as it is possible for cir- 
cumstantial evidence to reach. I once more 
concede, that (if the Court accept Weich- 
toann’s statement) it is possible he may have 
talked treason and plotted assassination with 
booth and Surratt, but it is indefinitely re- 
moved from the probable; and neither liberty 
nor life is to be forfeited upon either proba- 
bilities or possibilities. I can not bring my- 
Bclf to fear that this Commission will sanction 
h’hat, in my judgment, would be so shocking 
and indefensible a conclusion. 
. If he and Booth had, at the alleged meeting 
ln January, confederated for the perpetration of 
ane of the most stupendous and startling crimes 
*n the annals of human depravity, who can 
ta>ubt that frequent meetings and consulta- 
Cons would thereafter have occurred, and 
*bat they would have increased in frequency 
the time for the consummation of the atro- 
cj°us plot approached ? Yet, though within 
Bix hours’ ride of each other, they had no 
Meetings, no consultations, no intercourse, no 
c°mmunication, no concert, but were in total 
ignorance of each othex*’s movements and pur- 
i poses. Mudd was here the 23d of March, but 
jhe was not here for the purpose of seeing 
| Booth, nor did he see him. He made no in- 
quiry for him; did not call at his hotel; saw 
none of his associates; did not speak of him; 
did not, so far as appears, even think of him. 
On the 11th of April, only three days before 
the frightful tragedy was enacted, Mudd was 
at Giesboro, in sight of Washington. Booth 
was then at the National Hotel; and if Mudd 
was leagued with him, that was the time of all 
others, from the conception to the consumma- 
tion of the deed, when he would have seen 
and conferred with him. If Mudd was a con- 
spirator, he knew of Booth’s presence here 
then; yet he did not come to the city—did not 
inquire for Booth, see him, hold communica- 
tion with him, learn whether he was in Wash- 
ington or Boston, Nassau or London. Three 
days only before the frightful tragedy—three 
days before the world was astounded by its 
enactment! Imagine, if you can—if he was 
a conspirator—what a tumult of thought and 
emotion must have agitated him then—what 
doubts and misgivings—what faltering and 
rallying of resolution—what invocations to 
“ stop up the access and passage to remorse”— 
and then ask your own hearts and judgments 
if it is natural, or possible, that, at such a mo- 
ment and under such circumstances, he could 
quietly have transacted the business that 
brought him to Geisboro, then turn his back 
upon Washington, inditferent to the failure or 
success of the events with which his own life, 
the happiness of his family, and all that was 
dear to him on earth, were bound up ? If a 
conspirator, he knew what had been, and what 
was to be, done. He knew that, the hour for 
the bloody business was at hand, and that 
everything depended upon the secrecy and 
success of its execution. Yet he was indif- 
ferent. He sought no interview with his sup- 
posed confederates—gave them no counsel or 
assistance—took no precautions for security— 
gave no signs of agitation or concern—but, in 
sight of the place and the agents selected for 
the enactment of the horrible deeds, turned 
his back upon them all, with an indifference 
that bordered upon idiocy, quietly trafficked 
at Geisboro, and returned to the seclusion of 
his family and farm. You know, gentlemen, 
that this is impossible. Y"ou know that it 
could not have happened without outraging 
every law of human nature and human ac- 
tion. You know that at such an hour his soul 
would have been shaken with the maddest 
storm and tempest of passion, and that no 
mere business affair on earth could have se- 
duced his thoughts fora moment from the sav- 
age slaughter he had in hand. It would have 
engrossed all his thoughts, and shaped all his 
actions. No one can, in the strong light of 
the evidence, believe he teas a conspirator. 
I then confidently conclude that Dr. Mudd 
can not be convicted as a principal in the fel- 
ony. He did not participate in its commis- 
sion, and was more than thirty miles distant 
from the scene when it was committed. He 
can not be convicted as an accessory before 332 
ARGUMENT OF THOMAS EWING, JR. 
the fact, for the evidence fails to show that 
he had any knowledge or suspicion of an 
intention to commit it. If, then, he is to be 
held responsible at all, it is an accessory after 
the fact. Does the evidence implicate him in 
that character? What is an accessory after 
the fact ? 
assassin, none of these acts of assistance 
would have made him an accessory after the 
fact. “If a person supply a felon with food, or 
other necessaries for his sustenance, or profession- 
ally attend him sick or wounded, though he know 
him to be a, felon, these acts will not be sufficient to 
make a party an accessory after the fact." Whar- 
ton's American Criminal Law, p. 73. But he did 
not know, and had no reason to suspect, that 
his patient was a fugitive murderer. The 
most zealous advocate would not venture to 
assert that the evidence warrants such con- 
clusion ; much less will it be assumed by one 
acting under the solemn responsibilities of 
judge. Down, then, to the time Mudd left 
home with Herold, after dinner, the evidence 
affords no pretext for asserting he was an ac- 
cessory after the fact. 
But if he was not then an accessory, he 
never was. It is shown that Herold turned 
back on the way to Bryantown, and when 
Mudd returned, he and Booth had gone. 
And the evidence does not show that he sus- 
pected them of having been guilty of any 
wrong, until his wife told him, after they had 
gone, that the whiskers of the crippled man 
fell off as he came down stairs to go. True, 
Booth was guilty, and Mudd had shown his 
companion the route to Wilmer's; which was 
the only thing done by Mudd, from first to 
last, that could have implicated him, even had 
he from the first known the crime and the criminal. 
But when he did that, he did not know either; 
for he did not know the crime until he went 
to Bryantown, nor have even the least suspi- 
cion of the criminal, until after Booth had 
gone. I have read you the law—the scienter 
must be shown. Things not appearing and 
not existing stand before the law in the same 
category; and the guilty knowledge not ap- 
pearing in evidence, in the eye of the law it 
does not exist. In this case it is not only not 
shown, but is negatived by the evidence. The 
conclusion most unfavorable to Mudd which 
the evidence can possibly justify is, that, hav- 
ing had his suspicions thoroughly aroused Sat- 
urday night, he delayed until Sunday noon 
to communicate them to the authorities. “If 
A knows B hath committed a felony, but doth not 
discover it, this doth not make A an accessory afur 
the fact." Isi Hale's Pleas of the Grown, 618. 
“ Merely suffering a felon to escape will not charge 
the party so doing—such amounting to a mere omis' 
sion.” Whar. Am. Grim. Law, 78. 
Can, then, Dr. Mudd be convicted as a conspD’' 
ator, or an accessory before or after the fact, m 
the assassination? If this tribunal is to he 
governed in itsfindings by the justaud time-hon- 
ored rules of law, he can not; if by some edic 
higher than constitutions and laws, I know no 
what to anticipate or how to defend him. With 
confidence in the integrity of purpose of th® 
Court and its legal advisers, I now leave th 
case to them. SAM’L. A. MUDD. 
An accessory after the fact is when a per- 
son, knowing a felony to have been committed, 
receives, relieves, comforts, or assists him 
whom he knows to be the felon. He must 
know that the felon is guilty to make him an 
accessory. 1 Chitt. Crim. Law, 264. 
Any assistance given to him to hinder his 
being apprehended, tried, or punished, is suffi- 
cient to convict the offender—as lending him 
a horse to escape his pursuers ; but the as- 
sistance or support must be given in order to 
favor an illegal escape. 1 Chitt. Grim. Law, 
265. If a man receives, harbors, or otherwise 
assists to elude justice, one ivhom he knows to 
be guilty of felony, he becomes thereby an ac- 
cessory after the fact in the felony. 1 Bish- 
op's Crim. Law, 487. Obviously, a man to be 
an accessory after the fact must be aware of the 
guilt of his principal; and, therefore, one can 
not become an accessory by helping to escape 
a prisoner convicted of felony, unless he has 
notice of the conviction, or at least of the felony 
committed. 1 Bishop's Crim. Law, 488. The 
charge against an accessory consists of two 
parts: First, of the felonious situation of th 
principal: and, secondly, of the guilty knowl- 
edge and conduct of the accessory. It will 
thus be seen that knowledge of the crime com- 
mitteel, and of the guilt of the principal who is 
aided, and aid and assistance after acquiring that 
knowledge, are all necessary to charge one as 
accessory after the fact. 
Now let us apply the facts to the law, and 
see whether Dr. Mudd falls within the rule. 
On the morning after the assassination, about 
daybreak, Booth arrived at his house. He did 
not find the doctor on watch for him, as a 
guilty accomplice, expecting his arrival, would 
have been, but he and all his household were 
in profound sleep. Booth came with a broken 
leg, and his companion, Herold, reported that 
it had happened by the fall of his horse, and 
that they had come from Bryan town, and were 
going to Parson Wilmer’s. The doctor rose 
from his bed, assisted Booth into the house, 
laid him upon a sofa, took him up stairs to 
a bed, set the fractured bone, sent him a razor 
to shave himself, permitted him to remain 
there to sleep and rest, and had a pair of rude 
crutches improvised for his use. For all this 
he received the ordinary compensation for 
services rendered to strangers. He then went 
to his field to work. After dinner, while the 
day was still dark, and Booth still resting dis- 
guised in his chamber, Mudd left the house 
with Herold, Even though he had known of 
the assassination, and that his patient was the ARGUMENT 
IN 
DEFENSE OF MICHAEL O’LAUGHLIN AND SAFE ARNOLD, 
WALTER S. COX, ESQ. 
BY 
Mr, President and Gentlemen of the Commission : 
of the evidence he expects to adduce. By this 
the accused is enabled not only to apply intel- 
ligently the test of cross-examination, but 
also to know and show how much credit is due 
to the witnesses who accuse him. In this case 
the accused were aroused from their slumbers 
on the night before their arraignment, and, for 
the first time, presented with a copy of the 
charge. For the most part, they were unable 
to procure counsel until the trial had com- 
menced; and, when counsel were admitted, they 
came to the discharge of their duties in utter 
ignorance of the whole case which they were 
to combat, except as they could gather it from 
the general language of the charge, as well as, 
for the most part, wholly unacquainted with 
the prisoners and their antecedents; and the 
consequence is, that the earlier witnesses for 
the Government were allowed to depart with 
little or no cross-examination, which, subse- 
quent events show, was of vital importance to 
elicit the truth, and reduce their vagueness of 
statement to more of accuracy. And, I may 
add, that important parts of this testimony 
have consisted of the always suspicious state- 
ments of informers and accomplices, brought 
from remote places, whose antecedents and 
characters it is impossible for the prisoners to 
trace. 
I have appeared before you as the sole coun- 
sel of the pi’isoner, Michael O’Laughlin, and, 
in part, represent the accused, Samuel Arnold. 
I now rise to their defense, deeply impressed 
with the gravity of their situation, and the im- 
portance of the duty it imposes. 
For myself, I would say, that, born and nur- 
tured under the aegis of the Federal Govern- 
ment, and schooled from childhood in that all- 
embracing patriotism which knows no section 
nor party when the interests or glory of my 
country is in question, I have been second to 
none, in attachment to the Federal Union, and 
in hostility to the rebellion which menaced its 
existence. I need hardly add, that no one 
could have more deplored and execrated the 
odious crime wrought upon the Chief Magis- 
trate of the nation at a moment when the re- 
wards of peace and sectional reconciliation 
Were about to crown his arduous and patriotic, 
labors. Nor was I willing to connect my hum- 
ble name with this defense until I felt assured 
that the accused, for whom my service was first 
invited, was merely the victim of compromising 
appearances, but was wholly innocent of the 
great offense. And now that I have heard the 
evidence produced to you, I am strong in the 
conviction that, even if it appear that these 
two accused were ever beguiled, for a moment, 
to listen to the suggestions of this restless 
Schemer, Booth, yet there is no blood on their 
Hands, and they are wholly guiltless of all 
previous knowledge of, or participation in, 
that “arch deed of malice” which plunged the 
nation into mourning. I feel, therefore, that 
t stand here, not as the defender of assassins, 
but to rescue the innocent from the opprobrium 
°f this great crime and a death of infamy. 
I can not forbear the remark that, upon this 
trial, both the accused and their counsel have 
labored under disadvantages not incident to 
the civil courts, and unusual even in military 
trials. In both the civil courts and courts- 
martial the accused receives not only a copy 
°f the charge, or indictment, in time to prepare 
his defense, but also a list of the witnesses 
" ith whom he is to be confronted. And, in the 
civil courts, it is usual for the prosecutor to 
state in advance the general nature of the case 
expects to establish, and the general scope 
I am constrained, further, to notice the man- 
ner in which the trial has been conducted, and 
which, I think, can hardly have a parallel. 
The accused were arraigned upon a single 
charge. It described one offense of some kind, 
but, however specific in form, it seems to have 
been intended, like a purser’s shirt, to fit every 
conceivable form of crime which the wicked- 
ness of man can devise. The crime is laid at 
Washington; yet we have wandered far away, 
like mariners who have lost their compass and 
can not see the polar star. We have been car- 
ried to the purlieus of Toronto and Montreal, 
and have skirted the borders of New York and 
Vermont, touching at Ogdensburg and St. Al- 
bans; have passed down the St. Lawrence, and 
out to sea; inspected our ocean shipping; have 
visited the fever hospitals of the British islands; 
have returned to the prison-pen of Anderson- 
ville; have seen the camp at Belle Isle and the 
historical Libby, and penetrated the secret 
councils of Richmond; have passed thence to 
the hospitals of the West, and ascended the 
333 ARGUMENT OF WALTER S. COX. 
Mississippi, and, at length, terminated this ec- 
centric career in the woods of New York Under 
a charge against these prisoners of conspiring 
to kill the President, and others, in Washing- 
ton, Jefferson Davis and his associates have 
been tried, and, in the judgment of many, con- 
victed of starving, poisoning, arson, and other 
crimes too numerous to mention. 
admonish me that I should present some legal 
considerations, at least, of a general character. 
This Commission sits by authority of the order 
of the President, offered in evidence, of Sep- 
tember 24, 1862, which declared martial law 
against all rebels and insurgents, their aiders 
and abettors, and all guilty of any disloyal prac- 
tice, affording aid and comfort to rebels against 
the authority of the United States. The ques- 
tion of jurisdiction having been discussed at 
length already, I shall not enter upon the ques- 
tion whether this Court has jurisdiction to try 
the accused upon this charge, but, assuming 
that for argument’s sake, I shall endeavor to 
ascertain the grounds and limits of that juris- 
diction, and the mode in which it is to be ex- 
ercised; and, with this view, shall first submit 
some general reflections upon the character of 
the offenses set forth in the charge and specifi- 
cation, as they are known to, and punishable 
by, the civil law of the land, and then endeavor 
to ascertain how far this Commission, in deal- 
ing with them, is to be guided and restrained 
by that law. 
Below the grade of treason, crimes are 
ranged under two general heads, viz,: felonies 
and misdemeanors. The class of felonies em- 
braces the more heinous offenses, such as mur- 
der, arson, robbery, rape, etc.; and the idea 
of felony is generally associated with that of 
capital punishment, though, in point of fact, 
they are not inseparably connected. The class 
of misdemeanors embraces the offenses' of lower 
degrees, such as perjury, battery, libels, public 
nuisances, and conspiracies, and, in short, all 
crimes less than felonies. See 1 Russell on 
Crimes, pp. 44, 45. 
I have apprehended that the counsel for the 
accused would appear in a false position, from 
their apparent acquiescence in this wide range 
of inquiry, and, therefore, feel it due to my- 
self, at least, to explain. I, for my part, have 
felt no interest whatever in resisting the ex- 
posure of the misdeeds of the rebel authorities 
and agents. My only concern has been to show 
that my clients had nothing to do with the con- 
spiracy set forth in this charge. To the best 
of ray ability, I have scrutinized and sifted 
the evidence of that conspiracy, so far as neces- 
sary to their defense. With regard to other 
matters, foreign to this issue, I have to say, in 
the first place, the charge was artfully framed, 
with a view to admit them in evidence. It im- 
putes that the accused conspired, with Jefferson 
Davis and others, to kill and murder the Presi- 
dent, etc., with intent to aid and comfort the in- 
surgents, etc., and thereby aid in the subversion and 
overthrow of the Constitution and laws of the 
United States. And, on the principle that other 
acts, constituting distinct offenses, were some- 
times admitted as proof of intent, these sub- 
jects, foreign to the main issue, have been put 
in evidence. Although this seems to me a total 
misapplication of the rule of practice, yet, the 
Court having settled the principle in favor of 
the prosecution in the early part of the trial, 
it became useless to object to each separate 
item coming within it afterward. It would 
have been to tilt with windmills, for by no 
possible ingenuity can these foreign matters be 
used to the prejudice of the accused. I have 
supposed that the only object of introducing 
them was to bring to the public, in the shape 
of sworn testimony, information of the prac- 
tices of the rebel leaders, to which, however ir- 
regular the proceeding, I had no objection to 
interpose. I can not, for a moment, suppose 
that the object was to inflame prejudice against 
the accused, because of their supposed remote 
connection with the authors of all these evils, 
and, for want of higher victims, to make them 
the scapegoats for all the atrocities imputed to 
the rebellion; to immolate them, to hush the 
clamors of the public for a victim, or to ap- 
pease the Nemesis that lias recorded the secrets 
of the Southern prison-houses, or the deadly 
deeds wrought through fire and pestilence; for 
such a proceeding would disgrace this Govern- 
ment in the eyes of all Christendom, as much 
as assassination would disgrace the spurious 
Government which has just vanished into thin 
air. 
A conspiracy, then, belongs to the lower grade 
of crime, and this whatever may be its object, 
whether to commit a felony or a misdemeanor- 
See 2 Bishop on Criminal Law, sec. 202. 
A word as to the rationale of this rule. The 
criminal law takes no notice of a mere mental 
intent, unaccompanied by an act. It would be 
equally impossible for human wisdom to scru- 
tinize the operations of the mind with that 
accuracy essential to justice, and to adapt a 
scale of punishments to offenses which have 
no visible proportions, no tangible effects- 
Besides which the law makes a charitable al- 
lowance for that repentance and change of pur- 
pose which may intervene at any stage betweeu 
the first conception and the consummation of 
crime. Between the intent and the consumma- 
tion lies the wide region of attempts from tbe 
first feeble preparation or movement, to the 
striking of the deadly blow. A conspiracy 13 
scarcely more than an intent, at least in it® 
earliest stage. It is but the intent of several, 
mutually communicated, perhaps with rautua 
excitement, and encouragement, and consult*' 
tion, and the chances of its falling short of aII 
overt attempt are multiplied just in proportion t° 
the number of wills between which concert Is 
necessary to successful action. If it can 
properly said to advance beyond a mere inten , 
it is in the nature of an attempt, but it Is s° 
manifestly inchoate and elementary, leaving 
so wide a scope for the working of that ling 
ing good which may prompt to change of Pur' 
To come to the issue before this Commission: 
I had intended to confine myself to a simple 
review of the evidence; but the anomalous 
character of the charge, the uncertainty in 
which we are left with reference to the posi- 
tions to be taken by the Government, and the 
general course of the investigation pursued, THE CONSPIRACY TRIAL. 
335 
pose, that the law wisely places it in the lower 
grade of offenses. “All indictable attempts 
(says Bishop, vol. 1, sec. 528), whether to com- 
mit felony or misdemeanor, are misdemeanors'.' 
As the idea of capital punishment is ordi- 
narily associated with that of felony, though 
the more appropriate idea is that of forfeiture 
of property, so with misdemeanor is associated 
the punishment of fine and imprisonment only. 
Says Bishop, vol. 1, sec. 626: “ The ordinary and 
appropriate common law punishment for misde- 
meanor is fine and imprisonment, or either of 
them, at the discretion of the Court. It is in- 
flicted in all cases in which the law has not pro- 
vided some other specific penalty.” 
So much for the case of a conspiracy to com- 
mit a felony. How is it with a conspiracy to 
commit treason ? 
comfort, and no person shall be convicted of 
treason unless on the testimony of two wit- 
nesses to the same overt act, or on confession in 
open court. To constitute treason, therefore, 
there must be an overt act. In the case of Boll- 
mau and Swartout, 4 Cr., S. C. li., 76, in which 
these parties were charged with levying war 
against the United States in combination with 
Aaron Burr, the Supremo Court said, “To con- 
stitute that specific crime for which the priso- 
ners now before the Court have been committed, 
war must be actually levied against the United 
States. However flagitious may be the crime 
of conspiring to subvert by force the Govern- 
ment of our country, such conspiracy is not 
treason. To conspire to levy war, and actually 
to levy war, are distinct offenses. The first 
must be brought into open action by the assem- 
blage of men for a purpose treasonable in 
itself, or the fact of levying war can not have 
been committed.” Again, “in the case now 
before the Court, a design to overturn the 
Government of the United States in New Or- 
leans by force would have been, unquestion- 
ably, a design which, if carried into execu- 
tion, would have been treason, and the assem- 
blage of a body of men for the purpose of car- 
rying it into execution would amount to levy- 
ing war against the United States; but no con- 
spiracy for this object, no enlisting of men to effect 
it, would be an actual levying of war. In con- 
formity with the principles now laid down, have 
been the decisions heretofore made by the 
judges of the United States. Judge Chase, in 
the case of Fries, stated the opinion of the 
Court to be, “ that if a body of people conspire 
and meditate an insurrection to resist or oppose the 
execution of any statute of the United States by 
force, they are only guilty of a high misdemeanor; 
but if they proceed to carry such intention into 
execution by force, they are guilty of the trea- 
son of levying war,” etc. So much for that 
species of treason which consists of levying war. 
The same rule prevails as to the other form, 
viz.; adhering to the enemy, and giving them 
aid and comfort. In the case of the United 
States vs. Pryor, 8 Washington Circuit Court Re- 
ports, p. 234, in which the accused was charged 
with adhering to the enemy, and giving them 
aid and comfort, by purchasing provisions for 
them, Judge Washington said: “That the pris- 
oner went from the British seventy-four to the 
shore with an intention to procure provisions 
for the enemy, is incontestably proved, and, 
indeed, is not denied by his counsel. If this 
constituted the crime of treason, the motives 
which induced him to attempt the commission 
of it, and by which there are the strongest 
reasons to believe he was most sincerely actu- 
ated, would certainly palliate the enormity of 
it. But the law does not constitute such an 
act treason, even although these motives had 
not existed ; and although intentions and feelings 
as guilty as ever stained the character of the most 
atrocious traitor were proved against the pris- 
oner, can it be seriously urged that if a man, 
contemplating an adherence to the enemy, by sup- 
plying them with provisions, should walk toward the 
market-house to purchase, or into his own fields to 
slaughter, whatever he might find there, but should, 
In looking at this charge and specification, 
one may doubt whether the terms “in aid of 
the said rebellion” are predicated of the con- 
spiring, confederating, and combining, or of 
the acts charged to have been done in pursu- 
ance of said conspiracy and combination, etc. 
Inasmuch as giving aid and comfort to the 
enemies of the United States is one form of 
treason, it may be supposed that a mere unex- 
ecuted conspiracy may amount to giving aid 
and comfoi't to the enemies of the Government, 
and thereby become treason, and it may be 
supposed that to show such a conspiracy alone 
■would be to make out a substantive case of 
treason, and that a party might be convicted 
thereof under this charge, although the evi- 
dence might show him to be not guilty of the 
crimes actually perpetrated in pursuance of 
the alleged conspiracy. Let us inquire, then, 
■What is the law of treason. 
The murder of the President of the United 
States, considered in itself, is no more, in the 
eJe of the law, than the murder of any other 
citizen. Whether, however, that murder, per- 
petrated for the very object of overthrowing 
the Government or aiding its enemies, is trea- 
son, is a different question. I do not require 
to discuss that question. I pause, however, to 
remark that the term uenemies,” in this part of 
tile Constitution, has been understood and ad- 
judged to mean public and not domestic ene- 
mies. And Congress have legislated in exact 
accordance with this view; for in the act 
t° suppress insurrection, to punish treason and 
Rebellion, etc., of July 17, 1862, they provide, 
the first section, that any one who shall com- 
mit the crime of treason, and shall be adjudged 
Suilty thereof, shall suffer death; and in the 
Second section, that any one convicted of giving 
aid and comfort to the existing rebellion, shall 
punished by fine or imprisonment, or both, 
•iiut whether murder, committed with the intent 
charged, is treason, either in the sense of levy- 
Uig 
war or of giving aid and comfort to the 
encmies of the United States, is immaterial to 
present purpose. All that I need to main- 
am is, that a mere conspiracy to do this is not 
Reason. 
The Constitution, in art. 8, sec. 3, declares 
hat treason against the United States shall 
Resist only in levying war against them, or in 
adhering to their enemies, giving them aid and 336 
ARGUMENT OF WALTER S. COX. 
in fact, do neither the one nor the other of the in- 
tended acts, he has committed an overt act of ad- 
hering to the enemy ? Certainly not. All rests in 
intention merely, which our law of treason, in 
no instance, professes to punish.” 
Thus we find it adjudged by the highest au- 
thorities, that under our Constitution, mere inten- 
tion, or preparation, or conspiracy, to levy war 
or adhere to and aid and comfort the enemies 
of the Government, does not constitute treason, 
but misdemeanor only, and Congress seem clearly 
to recognize this view in their legislation, for 
by the act entitled “An act to define and pun- 
ish certain conspiracies,” approved July 21st, 
1861, they enact “that if two or more persons, 
within any State or Territory of the United 
States, shall conspire together to overthrow, or 
to put down, or to destroy by force, the Govern- 
ment of the United States, or to levy war 
against the United States, or to oppose by 
force the authority of the United States,” etc., 
“ each several person so offending shall be guilty 
of a high crime, and upon conviction thereof, in 
any District or Circuit Court of the United States 
having jurisdiction thereof, shall be punished 
by a fine not less than SSOO, and not more than 
$5,000; or by imprisonment with or without 
hard labor, as the court shall determine, for a 
period not less than six months, nor greater 
than sis years, or by both fine and imprisonment.” 
In other words, the offense is declared to be 
a high misdemeanor, and has annexed to it, by 
this law, the punishment appropriate to that 
degree of crime. 
It results, then, that a mere conspiracy to com- 
mit either treason or felony, in this country, is a 
mere misdemeanor. Of course, these remarks 
apply only to unexecuted conspiracies. If the 
conspiracy to commit treason or felony be exe- 
cuted by the actual commission of the intended 
crime, it is held that the misdemeanor is merged 
in the higher crime. And the law is conceded to 
be, that if parties join and continue in a con- 
spiracy, and different parts are assigned to the 
different members, and are executed, wholly or 
partially, each is responsible for everything 
done in pursuance of the common design. 
But if, after a conspiracy is organized, but 
unexecuted, any party involved therein should 
withdraw and abandon it, and refuse to have 
any further connection with it, he is not respon- 
sible for any act done by the others in prosecu- 
tion of the objects of the conspiracy afterward. 
A conspirator may be said to be a compound 
of a principal and an accessory before the fact. 
Conspirators mutually incite, encourage, advise 
and instruct each other to the commission of a 
crime, and are tlms accessories before the fact, 
and at the same time each expects to act as 
principal in some way or other. 
In the case of a principal, so long as an act 
x'ests in bare intention, it is not punishable. So, 
if a man start out to commit a crime, as in the 
case put by Judge Washington in the case 
of the United States vs. Pryor, before cited, 
of a man going to market to purchase provisons, 
or going to his field to slaughter cattle for the 
enemy, but doing neither in fact. 
And in the case of an accessory before the 
fact—that is, one who counsels, persuades or 
commands the commission of a crime—it is laid 
down in Wharton’s American Criminal Late, cit- 
ing 1 Hale, 618, that “the procurement (by an 
accessory) must continue till the consummation 
of the offense, for if the procurer of a felony re- 
pent, and before the felony is committed actually 
countermand his ordex-, and the principal, not- 
withstanding, commit the felony, the oxfiginal 
contriver will not be an accessory.” The con- 
spix’atox*, then, who withdraws from a con- 
spiracy before the same is executed, is in the 
position of a principal who has repented before 
acting, and of a procui’er who has incited or 
ordered a exfime, and withdrawn his order before 
it was acted upon. And his case is evidently 
still stronger where he was not the principal 
conspirator, who has incited and px’ocured others, 
but was only one of the subordinates, himself in- 
cited and procured by others, and where, after 
yielding for the time to their influence, he with- 
dx’aws from and x’esists their solicitations. The 
responsibility of such a person for the results of 
the conspiracy, had he remained in it, would 
have been less, morally, than that of the princi- 
pal, and by his withdrawal is so much the more 
easily got rid of. 
Another proposition to be borne in mind is, 
that if parties conspire for one object, however 
criminal, and some of them commit a crime dif- 
ferent from that contemplated by the original 
conspiracy, the others are not involved in their 
guilt. The proposition is too evident for argu- 
ment. An illustration of it is found in 1 Bishop 
on Criminal Law, section 265. He says; “ Ob- 
viously, if two or more persons are lawfully to- 
gether, and one of them commits a crime with- 
out the concux-rence of the others, the rest are 
not thereby involved in guilt. So, if they arc 
unlawfully together, or if several persons are 
in the actual perpetration, by a concurrent un- 
derstanding, of some crime, and one of them, of 
his sole volition, not in pursuance of the main 
purpose, does another thing criminal, but in no 
way connected with this, he only is liable. ThuS) 
if numbers are togethex*, poaching, and join 
an attack on the game-keeper and leave him 
senseless, then if one of them returns and steal8 
the game-keeper’s money, this one only can be 
convicted of the robbery.” 
So, in the analogous case of an accessory, 
is said (1 Hale, 617), “If the accessoxy order of 
advise one crime, and the principal intention' 
ally commit anothei", as, for instance, to burn a 
house, and instead of that he commit a larceny) 
or to commit a crime against A, and instead A 
that he commit the same crime against B, f^0 
accessory will not be liable.” 
These are the general principles which I de' 
sired to premise in reference to the general na' 
ture of crimes, and which might be applicable 
more or less to this case. 
I need scarcely add, that a material varianc 
between the charge and the proof, as where on 
crime is chai’ged and another proved, is fatal 
the prosecution, and entitles the accused to a 
acquittal. Thus, if a burglary be alleged 
have been committed in the house of J. Y., _a® 
it txxrned oxxt in evidence to be the dwell!11®, 
house of J. S., the defendant must be acquiH6 
for the variance. (Archbold, 95.) THE CONSPIRACY TRIAL. 
So, in indictment for larceny of the goods of 
H, when they were proved to be the goods of H 
ftud E, the variance was admitted to be fatal. 
( Commonwealth vs. Trimmer, 1 Mass. Rep., 476.) 
So, a conspiracy against A is not sustained 
by proof of conspiracy against B or against the 
public generally. (See Wharton.) So, if a per- 
son be indicted for one species of killing, as by 
poisoning, he can not be convicted by evidence 
of a species of death entirely different, as by 
shooting, starving or strangling. (1 Russell on 
Grimes, 557.) 
Still less can a conviction be had by proof of 
offense which is entirely different in char- 
acter. 
organized' for that purpose by the Government 
of military occupation, etc. It must be re- 
membered that the authority of such tribu- 
nals has its source not in the laws of the con- 
quering, nor in those of the conquered State, 
but, like any other powers of the Government 
of military occupation, in the laws of war; 
and in all cases not provided for by the laws ac- 
tually in force in the conquered territory, such tri- 
bunals must be governed and guided by the 
principles of universal public jurisprudence.” 
This plainly implies that where the eases are 
provided for by the local law, that should guide 
in the administration of criminal justice. 
Professor Lieber, in his Instructions for the 
Government of the Armies of the United States 
in the Field, adopted by the War Department, 
says: 
While upon an indictment for a murder a man 
ffiay be convicted of manslaughter, the essential 
crime being the homicide, it is very plain that 
be could not be convicted of an assault, false 
ituprisonment or abduction ; and upon a charge 
of conspiracy to murder, he could not be con- 
victed of conspiracy to imprison or to abduct. 
The same rule prevails in courts-martial. De 
Hart says (p. 364): “It is a distinction which 
funs through the whole criminal law, that it is 
enough to prove so much of the indictment as 
shows that the defendant has committed a sub- 
stantive crime therein specified; but the offense, 
however, of which ho is convicted must be of the 
same class with that with which he is charged.” 
The general principles of the common law on 
this subject are adopted in the military code. 
Let us next consider how far tribunals sit- 
ing by virtue of martial law can depart from 
established law of the land in its distinc- 
tions between crimes and in its scale of pun- 
ishments. 
Military law, says De Hart (p. 17), is a rule 
for the government of military persons only ; 
hut martial law is understood to be that state of 
things when, from the force of circumstances, 
the military law is indiscriminately applied to 
aH persons whatsoever. And Grecnleaf says 
(vol. 3, p. 469, etc.): “It [martial law] extends 
aiso to a great variety of cases not relating to 
the discipline of the army, such as plots against 
the sovereign, intelligence to the enemy, and 
the like. It is founded on paramount necessity, 
aod is proclaimed by a military chief, and when 
G is imposed upon a city or other territorial 
district, all their inhabitants and all their ac- 
tions are brought within the sweep of its do- 
minion.” Almost everything in the shape of 
Authority on the subject of martial law relates 
t° that law as exercised in a foreign and hostile 
ponntry. Even in that case it has certain lim- 
hations. 
General Halleck, in his work on international 
and the laws of war, in treating of the 
effects of military occupation, says (chap. 32, 
Bec. 6): 
‘‘Although the laws and jurisdiction of the 
cpuquering State do not extend over such for- 
territory, yet the laws of war confer upon 
1 ample power to govern such territory, and to 
hpuish all offenses and crimes therein, by 
y'homsoever committed. The trial and punish- 
Got of the guilty parties may be left to the 
ot,dinary courts and authorities of the country, 
r they may be referred to special tribunals 
“Martial law in a hostile country consists in 
the suspension by the occupying military authority 
of the criminal and civil law and of the domestic 
administration and government in the occupied 
place or territory, and in the substitution of mili- 
tary rule and force for the same, as well as in the 
dictation of general laws, as far as military ne- 
cessity requires this suspension, substitution, or 
dictation 
And Benet, p. 14, thus lays down the rule; 
“ Martial law, then, is that military rule and 
authority which exists in time of war in rela- 
tion to persons and things under and within the 
scope of active military operations in carrying on 
the war, and which extinguishes or suspends civil 
rights and the remedies founded on them, for the 
time being, so far as it may appear to be necessary in 
order to the full accomplishment of the purpose of 
the tear, the party who exercises it being liable in 
an action for any abuse of the authority thus con- 
ferred. It is the application of military govern- 
ment—the government of force—to persons and 
property within the scope of it, according to 
the laws and usages of war, to the exclusion of 
the municipal Government in all inspects 
where the latter would impair the efficiency of mili- 
tary law or military action.” 
The exercise of martial law is capable of 
being abused. It must, therefore, have some 
limits. It has no code but one single, vital, 
fundamental principle, which is alike its justi- 
fication and its limit; and that is, necessity— 
not state nor political necessity, but military 
necessity. It is the same principle announced 
by Sir Boyle Roche, a member of the Irish 
Parliament and a breeder of Irish bulls, who, 
in the debate on the suspension of the habeas 
corpus act, said “he was in favor of surrender- 
ing a part of the Constitution, and even the 
whole of it if necessary, in order to save the 
remainder.” As this alone justifies the sus- 
pension of the civil law of the land at all, so 
that suspension can not be legitimately carried 
further than is necessary to the efficiency of 
military action or military law—i. e., of the law 
governing the military force. 
If this is true of a military occupation of an 
enemy’s country, how infinitely more binding 
in the case of martial law prevailing at home! 
When an enemy’s country is conquered, all po- 
litical powers therein cease, and a suspension 
of judicial functions also generally results. ARGUMENT OF WALTER S. COX. 
There must be offenses unprovided for in such 
a state of things which can only be taken cog- 
nizance of by military courts established in 
virtue of the martial law, which is established 
and proclaimed by the very presence of a hos- 
tile army. Of course, revolts, insurrections, 
and plots against the conquering power would 
be wholly unprovided for in the laws of the 
conquered State, and must be necessarily dealt 
with by martial law. But all this is different 
when martial law exists at home. Treason, 
conspiracy, murder, in short, every crime, is 
already provided for by the civil law. When 
the law martial undertakes to deal with such 
offenses, it finds them already accurately de- 
fined in the written or common law of the 
land, and the appropriate punishment affixed 
by the same. It may find, and it certainly 
does find in the present case, legal courts duly 
constituted and in unobstructed operation. It 
invades the domain of the latter, wrests from 
them their jurisdiction, and seeks to deal with 
crimes which, I may say, it does not under- 
stand, for which it has no definitions, no grad- 
uated scale of penalties. 
Clearly, nothing can justify this but the 
most urgent military necessity, and the 
requirements of active military operations must he 
the measure of that departure from the civil law, 
which would be legitimate and which could not 
be taken notice of subsequently, by that law, 
as an abuse. 
crimes, and in its measure of punishment. To dis- 
regard it without overruling military neces- 
sity, is unnecessarily to infringe public and 
private rights, and this is military oppression, 
which Professor Lieber says is not martial law, 
but is the abuse of the power that law confers. 
Granting, then, for the sake of argument, 
that at the time of the President’s assassina- 
tion, when the rebellion was not yet subdued, 
when it was possible for its flickering and ex- 
piring hopes to be revived by this startling 
event, when the mysterious plot seemed to be 
aimed directly at the power of the Government 
to effect the purpose of the war, to suppress 
the rebellion and perpetuate its own existence, 
it was necessary to employ the machinery of 
martial law to pursue and bring to justice the 
perpetrators of the murder, and on account of 
difficulties, supposed or real, in the trial of the 
accused in a civil court, to subject them to a 
trial by a military commission, still the ques- 
tion recurs, how is this commission to deal 
with the accused? Now that “grim-visaged 
war hath smoothed his wrinkled front,” that 
“bruised arms are hungup for monuments, 
that the only military action in progress con- 
sists in the disbanding and dispersion of tb® 
national forces, that even the rancors of civil 
strife are yielding to an universal aspiration 
for peace and fraternal union, can any man, 
on his conscience, say, that any military exir 
gency requires this Commission to ignore the 
law of the land in regard to crimes and pun- 
ishments, to condemn and punish, as treason, 
that which is not treason by the Constitution; 
to confound felonies with treason on the one 
side, or misdemeanors, on the other; to try for 
one offense and convict of another; to inflict 
punishments disproportionate to the crime, i° 
view of the proportion between them estab- 
lished by the common law and universal un- 
derstanding? Most cleaxdy not. It will not 
do to assume that martial law, once conceded to 
be in force, has no limit. It is begging tb® 
whole question to assume that to concede the 
necessity of martial law is to concede the n®' 
cessity of all its rigors and harsh contrast® 
with the civil law. In the able argument ot 
Judge-Advocate Burnett on the plea of juris' 
diction, on the trial of the Chicago conspir' 
ators, he says: 
“ Martial law can never be restricted by an}' 
defined lines, because it is the law of necessity) 
the law of self-defense, of self-preservation ; 
is a law to meet the exigencies and necessities 
great, unexpected emergencies in time of war; an< 
whatever law or rule of action becomes nee®®' 
sary to meet these emergencies is martial laW- 
He also cites Professor Greenleaf, who, 
speaking of the difference between martial a» 
military law, says : 
“ The tribunals of both are alike bound b} 
the common law of the land in regard to the rUy 
of evidence, as well as to other rules of law, so 
as they are applicable to the manner of proceedin')! 
and adds: “As, for illustration, martial lftV ’ 
as now being administered, is, giving tb® 
prisoners a fair, impartial hearing, accordip» 
to the strict rules of the civil law, in all flue . 
tions of evidence, argument, etc.; it gives the 
In a beleaguered city, under martial law, one 
who is detected in signaling the enemy, or do- 
ing any thing to cripple the defenders, secretly 
or openly, may be shot down without trial, or 
dealt with by a military commission in the 
most summary way. But no one would main- 
tain that such a commission could place a petty 
larceny, by a civilian, on the same footing as 
murder, and visit it with the death penalty. It 
would be a criminal abuse of power, simply 
because wholly unnecessary to the efficiency of 
military operations. And even acts of mili- 
tary hostility, committed during a period of 
invasion and siege, could not, after the enemy 
is repulsed, the siege raised, the danger 
passed, be punished by summary execution 
without trial. 
The argument on this head may be summed 
up thus: The law of the land defines certain 
crimes. It establishes a distinction and grada- 
tion among them, and visits them with appro- 
priate punishments. It also establishes the 
mode in which the accused shall be tried, and 
certain guarantees of fairness and justice. 
These distinctions between crimes and punish- 
ments and these guarantees are the right alike 
of the innocent and guilty, the injured public 
and the accused. If it be absolutely necessary 
to the repulse of a foreign or the reduction of 
a domestic enemy, by the military power of the 
country, persons within the scope of its opera- 
tions may be both tried and punished in a man- 
ner different from the course of the civil law. 
But without such necessity they can not be so 
tried. And if the situation require such trial, 
still, without such necessity, the military authority 
can not ignore hut must adhere to, observe, and he 
guided by the civil law, in its distinctions between THE CONSPIRACY TRIAL. 
339 
the benefit of counsel, of processes to compel the 
attendance of witnesses; it allows them a 
clear and public trial, in open day, before their 
peers, and before just and honorable men. But 
Under other circumstances and greater emer- 
gencies, it might have demanded that they be 
shot down in the streets, and without trial and 
Without hearing, as in case they had gone for- 
ward in this conspiracy, attacked our camps, 
Undertaken to release our prisoners, and burn 
the city.” 
Now, on what ground can martial law admit 
a trial at all ? On what ground can its courts 
he bound to observe the common law rule of ev- 
idence and proceeding? On no other but this: 
That, by the law of the land, this is one of the 
rights of the accused of which he can not be 
deprived, unless there be a military necessity 
for it. But what reason is there applicable to 
form, which does not apply, with ten-fold force, 
to matters of substance? If the accused is en- 
titled to be tried according to the forms of the 
common law, as far as applicable, how much 
more is he entitled to be judged and punished 
according to that law, where no departure from 
it, in that respect, is required by any military 
emergency. 
But the Government officers seem to have 
tasked their ingenuity to invent a new species 
of crime—traitorous murder, traitorous con- 
spiracy—murder which is something more than 
murder, yet something less than treason; a 
hybrid between them, partaking of both. On 
the same principle, stealing a percussion cap, 
With intent to use it against the Government, 
Would be traitorous larceny, instead of petty 
larceny. And when we inquire by what code 
H is to be judged and punished, we are re- 
ferred to the common law of war. 
The common laiv of war! What a convenient 
instrument for trampling upon every constitu- 
tional guarantee, every sacred right of the citi- 
zen! There is no invention too monstrous, no 
Punishment too cruel, to find authority and 
Banction in such a common law. Is it possible 
jhat American citizens can be judged and pun- 
ished by an unwritten code, that has no defini- 
tions, no books, no judges or lawyers; which, 
it it has any existence, like the laws of the 
Homan Emperor, is hung up too high to be 
read ? 
I deny that the common law of war has any- 
thing to do with treason, or anything traitor- 
°ns, as such. Treason, in any shape, is an 
offense against the civil government. The acts 
Constituting the offense are dealt with by mar- 
tial law, not as treason, but only as they inter- 
tere with military rule and operations. Such 
offenses as those charged are unknown to any 
Common law of war. In short, the only com- 
mon law of war, which can be admitted in this 
Country against civilians, is the common law 
ct the land, so far modified, only, as the mili- 
,ary emergency of the hour requires. 
I conclude, then, that, supposing this Com- 
mission to have lawful jurisdiction over the 
of the accused, for the purpose of try- 
them upon this charge, still the Commis- 
sion are bound, in ascertaining the nature of 
be offense made out by the evidence, if any be 
I proven, and in affixing a punisfiment to it, to 
] follow and be guided by the law of the land, 
as administered in the civil courts. 
The application of these general principles 
I shall reserve until I shall have discussed the 
evidence. 
The evidence offers a very wide field to one 
inclined to collate, weigh, and comment on it, 
in detail, but I shall notice only so much as 
seems material to my case. 
First, then, what are some of the facts in re- 
lation to the alleged conspiracy? The assassi- 
nation of the President and other heads of 
Government, may have been discussed in the 
South, as a measure of ultimate resort, to re- 
trieve the fortunes of the Confederacy, when 
at their lowest ebb; the rebel agents in Canada 
may have individually signified their approval 
of the measure, in the abstract, long since; 
but I undertake to maintain, upon the evidence, 
that there never was any final determination 
on the part of any person or persons, with 
whom any of these accused can possibly be 
connected, actually to attempt the life of the 
President, or other functionary, until a few 
days—about one week—before the murder; that 
no conspiracy for that object, such as is charged 
against the accused, was formed, or, at least, 
had any active existence, at any time during 
the month of March, as imputed in the charge 
and specification; and that if any conspiracy 
had ever been organized, for such object, at an 
earlier period, it did not contemplate the event, 
otherwise than contingently, and upon a con- 
tingency which never arrived until the period 
I have named, and was, meanwhile, completely 
in suspense and abeyance. 
The specification imputes that the accused 
were ipcited and encouraged to the murder by 
Davis, Thompson, Clay, and others, and this is 
of the very essence of the charge. 
The theory of the prosecution is, that Booth, 
who is acknowledged to have been the head, 
and front, and soul of the conspiracy, if there 
was one, was only the hireling tool of these 
rebel emissaries. I think he was probably 
something more, but it will not vary the result. 
I think he was probably actuated not only by 
the sordid hope of reward, but by a misguided, 
perverted ambition. Of moderate talents, but 
considerable ambition, of strong will and pas- 
sions, and high nervous organization, accus- 
tomed to play parts, and those of a tragic 
character, he had contracted perverted and 
artificial views of life and duty, and aspired 
to be the Brutus, in real life, that he had been 
or seen on the boards. He well knew, how- 
ever, that the act he contemplated would be ex- 
ecrated all the world over, except, possibly, 
among those whom he intended to serve. There- 
fore, whether pecuniary reward or false glory 
was his object, he could hope for neither until 
he was secure of their approbation. Whatever 
his principle of action, he was wholly without 
motive for so desperate an undertaking until 
he had, or supposed he had, the approval of the 
rebel authorities. When does the evidence 
tend to show that this was given? On this 
subject three principal witnesses have testified 
for the Government. None of them carry far- ARGUMENT OF WALTER S. COX. 
ther back than January last, the date when 
even an individual approval of the scheme of 
assassination was expressed by any of the 
rebel agents in Canada. The first witness, 
Richard Montgomery, represents Jacob Thomp- 
son as saying, in the summer of 1864, that he 
had his agents throughout the Northern States, 
and could, at any time, have President Lincoln, 
or any of his advisers, put out of the way. But 
it was only in the middle of January last that 
Thompson informed him that a distinct propo- 
sition for the President’s assassination had 
been made to him, and that he was in favor of 
it, but was determined to defer his answer until 
he had consulted his Government, at Richmond, 
and he was then only waiting their approval. 
Although the witness was in constant inter- 
course with those men in Canada, going back 
and forth, until shortly before his testimony 
was given, he was not able to slate when these 
rebel agents considered themselves authorized 
to act in this matter. But in a conversation 
with Tucker, a few days after the assassination, 
the latter said, “it was too bad that the boys 
had not been allowed to act when they wanted 
to,” which would indicate that the approval 
waited for from Richmond was not received in 
time for earlier action, and this the witness 
distinctly states to be his impression. He in- 
ferred from Tucker’s remark that the approval 
had been received, and that the attempt had 
been delayed for its arrival. 
In all this, Montgomery agrees exactly with 
Conover. The latter states that Thompson 
spoke to him in February on the subject of the 
removal of the President and others from office, 
by killing them, and offered him the chance of 
immortalizing himself and saving the country 
by embarking in the enterprise; that these 
conversations were repeated all through the 
month of February, and in that month he 
stated he was awaiting dispatches from Rich- 
mond. The witness inquired if he thought the 
plan would receive the approbation of the Gov- 
ernment at Richmond, and Thompson replied 
that he thought it would, but he would know in 
a few days. The witness knew nothing of the 
arrival of such dispatches, until about the 6th 
or 7th of April, when Surratt arrived in Can- 
ada with dispatches from Mr. Benjamin and 
Mr. Davis. The witness was present in Thomp- 
son’s room, with Surratt, when Thompson laid 
his hand upon the papers, brought by the latter 
from Richmond, and said, “This makes the 
thing all right,” referring, as the witness says, 
to the assent of the Richmond authorities, that is, 
to the assassination project. On cross-exam- 
ination the witness says distinctly that he un- 
derstood this to be the first official approval they 
had received from Richmond of the plan to assas- 
sinate the President, and he knew of ni other. 
And this evidence, as far as it fixes the date 
op Surratt’s arrival in Canada, and its probable 
object, is corroborated by Weichmann, who has 
testified that Surratt arrived in Washington, 
from Richmond, on the 3d of April, with money 
in his pocket, and professing to have seen Ben- 
jamin and DaVis, and to have been assured by 
them that Richmond would not be evacuated, 
and that he left, on the same evening, for Mon- 
treal, where he would probably arrive on the 
sth or 6th. 
There is an apparent discrepancy between 
the testimony of Dr. Merritt and that of Cono- 
ver, which I here proceed to notice. 
He represents that he was present at a meet- 
ing of a number of the rebel emissaries, in 
Montreal, in the middle of February last, at 
which George N. Sanders, after discussing the 
projected assassination, read a letter which he 
said he had received from “the President of our 
Confederacy,” meaning Jefferson Davis, ex- 
pressing approbation of whatever measures 
they might take to accomplish the object. Con- 
over, on the other hand, had had conversations 
with Thompson all through the month of Feb- 
ruary, and no dispatches had then arrived of 
the purport stated by Merritt. But that Mer- 
ritt is wholly mistaken, and his testimony 
wholly unreliable, in this particular, is clear, 
from several considerations: 
First. The witness did not read the letter, 
nor does he pretend to repeat its language, nor 
can he distinguish very clearly between the 
language of the letter and that of Sanders 
himself. He says, at first: “Which letter just- 
ified him (Sanders) in making any arrange- 1 
ments that he could to accomplish the object. 
This was the witness’ construction of the let- 
ter, not its terms. When asked for its lan- 
guage he could not give a word of it, but said 
it was in substance, “That if the people in 
Canada and the Southerners in the States were 
willing to submit to be governed by such a ty- 
rant as Lincoln, he did not wish to recognize 
them as friends or associates, or something 
like that.” This was the whole of the witness 
unprompted account of the substance of the 
letter. He is asked, however, the leading 
question, “And you say that in that letter h® 
expressed his approbation of whatever meas- 
ures they might take to accomplish this object ■ 
To this he answers, “Yes.” But he had said 
nothing of the sort. He had merely said that 
the letter justified such measures. Still later h® 
says: “When he (Sanders) read the letter h® 
spoke of Mr. Seward, and I inferred that thn 
was partially the language of the letter; I thin* 
it was, that if those parties, the President, Vi®’’' 
President and Cabinet, or Mr. Seward, coul 
be disposed of, it would satisfy the people0 
the North that they (the Southerners) ha 
friends in the North, and that a peace couh 
be obtained on better terms than it could oth®1' 
wise be obtained,” etc. It will be found th* • 
in the course of his testimony, he gives three 
different versions of the substance of the lettci- 
He does not pretend to say the assassin*' 
tion was mentioned, in terms, in the lettcL 
and he is evidently unable to disting 
clearly between the language of Sanders aI) 
that of Davis, and, on the whole, we are left 
complete uncertainty whether we have the con 
elusions of the witness or those of Jeffe>’sol 
Davis. * 
But, secondly, it is perfectly certain that J 0 ■ 
ferson Davis never would have written such 
letter as this is described to be, to George' 
Sanders. It is apparent, from the whole 
mony, that Jacob Thompson and Clement THE CONSPIRACY TRIAL. 
341 
Clay were the principal emissaries of the rebel 
Government in Canada. They represented 
themselves to Montgomery to be invested with 
full powers to do anything they might deem 
expedient for the benefit of their cause. Thomp- 
son seemed to have had the principal financial 
agency, though Clay is also said to have had 
the funds used in the frontier raids. Thomp- 
son certainly was the controlling authority in 
regard to the assassination; the proposition 
was made to him, he consulted his Government 
and expected their approval. No others than 
these professed to have any authority or con- 
trol over the frontier operations ; and Sanders 
evidently acted a subordinate part and had 
the entire confidence of no one, Clay describing 
him as a very good man to do their dirty work, 
but not one to whom everything could be safely 
communicated. It was, therefore, of all things, 
one of the most unlikely, that a dispatch, so 
important as the one described by the witness, 
Would be addressed by Davis to Sanders. 
Thirdly. It was equally unlikely that Thomp- 
son and Clay would not even be privy to the 
tact, but would be actually excluded from 
the confidence of Davis and Sanders. And 
.Vet, if the witness is correct, this is the case. 
Bor when he is called on to repeat the names 
°f those present at'the meeting at which San- 
ders read his confidential missive, he names ten 
persons, but omits both Thompson and Clay. 
In proof that this omission was intentional and 
not accidental, it is to be noted, that the wit- 
ness afterward spoke to Clay in Toronto about 
the letter Sanders had read in Montreal, and 
states, as a noteworthy fact, that Clay seemed 
to understand the nature and character of the 
tetter, which remark would never have occurred 
to the witness, had Clay been present and heard 
the letter read, and handled and perused it 
himself when it was passed round at the meet- 
lag, as he says it was. 
But finally, on this head, the testimony of 
this witness, as to the subsequent proceedings 
°f the rebel agents, clearly corroborates Con- 
over. It is clear, that no steps were taken on 
the strength of this letter of Davis, in pursu- 
ance of the object supposed to be sanctioned by 
lt, for nearly two months afterward. But the 
Witness Merritt states, that he was in Toronto, 
the sth and 6th of April; that on the 6th, 
*e met Harper and several other rebels, and 
Harper told him they were going to the States, 
Mid were going to kick up the damnedest row 
hat had ever been heard of yet, and after- 
JVard said, that if he [the witness] did not 
•eav 0f tke death 0f Old Abe, of the Vice- 
resident, and of General Dix in less than ten 
j ys) he might put him [Harper] down as a 
[amned fool. He afterward ascertained that 
arper had in fact left on the Bth of April for 
States. 
Now, it will be remembered that, according 
• ° D eichmann, Surratt passed through Wash- 
ington on the 3d of April for Canada, where 
t‘s probably arrived on the sth, and that, on 
.j,Je 6th or 7th, according to Conover, Jacob 
I ,‘10mpson spoke of the dispatches carried by 
flrtlas conveying the needful authority. This 
‘c{ could easily be communicated, by telegraph 
to the rebels in Toronto, and there is a perfect 
correspondence between their declarations and 
actions, on the 6th of April and after, and Con- 
over s story, that the sanction of the Richmond 
authorities to the assassination scheme was 
communicated, for the first time, in the dis- 
patches carried by Surratt to Canada, about the 
sth of April. Thus, in the end, there is seen to 
be a substantial accord between all the three 
witnesses, on the important question, when the 
formal sanction of the Richmond authorities 
was received in Canada, and when, consequent- 
ly, for the first time, they were in a condition 
to give their formal and official approval to 
the proposed assassination. 
By whom the proposition was originally 
made to Thompson is involved in profound mys- 
tery, or, at most, is left to conjecture. If it 
came from Booth, both his conduct and that 
of the rebel band in Canada show that it was 
a mere offer, unaccepted, unacted upon, and 
that its acceptance, and the granting the au- 
thority it invited, was an open question, from 
the month of December to the sth of April. 
Booth was reported to have been in Canada in 
the fall, and as late as December last, but since 
that time none of the testimony shows any 
immediate intercourse between him and the 
rebel emissaries there. And although Harper, 
Caldwell, and Randall, and Ford are mentioned 
by Merritt, as parties whom he understood to 
be implicated in the plot, we hear of no stir or 
activity among them until the 6th of April. 
It seems, therefore, very clear, upon this tes- 
timony, that this dat<i was the earliest period 
at which any positive design was formed for 
the assassination. 
The testimony of Mrs. Mary Hudspeth may 
seem to conflict with this theory, and, therefore, 
requires some examination. That she is sin- 
cere in her statements, I have no reason to 
doubt; but that she is mistaken seems to me 
very probable. In the month of November 
last, she saw two strangers, whom she had never 
met before, and has never met since, in a street 
car in New York city, one of them disguised 
by false whiskers. Some six months afterward, 
she is shown a photograph taken of Booth, 
without disguise, and undertakes to recognize 
it as that of one of the persons in question. 
This is one improbability in her story. Again, 
she represents that they had an earnest con- 
versation, one stating that he would leave for 
Washington on the second day after, and the 
other being very angry that it had not fallen to 
him to go to Washington; and all this in a car 
which she represents as crowded—a second 
improbability, if the conversation was serious. 
Next, these important letters are dropped care- 
lessly on the floor and left there. The conduct 
of these men would seem to justify the judg- 
ment Gen. Dix was half inclined to pronounce 
on the transaction, viz.; that it was a hoax got 
up for the Sunday Mercury; particularly, when 
we consider that, though one of the letters looks 
in terms to immediate action, yet nothing fol- 
lowed having the remotest reference to the sub- 
ject matter, for five months afterward. 
But let us compare dates. Mrs. Hudspeth 
says the circumstance she relates occurred on 342 
ARGUMENT OE WALTER S. COX. 
the day when General Butler left New York. 
Major Eckert says the order to leave New York 
was sent to General Butler on the 11th of No- 
vember; that he applied for permission to re- 
main until the next Monday, which was the 
14th. The inference would be that General 
Butler left on the 14th, and that Mrs. Hudspeth’s 
adventure occurred on that day, and, as one 
of the parties she speaks of was to leave for 
Washington on the second day after, Wednes- 
day, the 16th, would be the day fixed for his 
departure. But a little uncertainty is thrown 
upon this by the dispatch of General Dix, of 
the 17th, to C. A. Dana, Esq., in which he says: 
“ The party who dropped the letter was heard 
to say he would start for Washington on Friday 
night.” This would be the 18th. If, then, 
Mrs. Hudspeth is correct in saying that one of 
the parties said he would leave for Washington 
the day after to-morrow, and so reported to 
General Dix, and he properly understood her, 
it must have been on Wednesday, the 16th, that 
the meeting in the car occurred, and either her 
recollection is at fault, as to date, or General 
Butler left on the 16th instead of the 14th. At 
all events, we are safe in fixing either the 14th 
or 16th as the date of the occurrence; no evi- 
dence points to any other date. Now, if we turn 
to the testimony of Mr. Bunker, clerk of the 
National Hotel, we will find that Booth arrived 
in Washington and registered at that hotel on 
the 14th of November, and left again on the 
16 th. 
within ten days or a fortnight is clearly contem- 
plated. Now, this is no such conspiracy as 
the present charge is intended to embrace; for 
the evidence for the Government shows that 
the rebel authorities, at a much later period, 
had not incited and encouraged or even ap- 
proved formally any plot of assassination, but 
instead, that the proposition had been made 
to them and was only held under advisement. 
No such plot had been sanctioned by them in 
November, and it is such a plot only that this 
charge deals with. If there really was any 
such plot as the letter hints at, it evidently 
failed and was abandoned, for it was to be con- 
summated within ten days. Nothing was done 
in furtherance of the design, and in Decem- 
ber we find Booth, according to Cleary’s infor- 
mation to Montgomery, again in Canada. 
Again, it docs not appear from the evidence, 
as far as.l remember, that as early as Novem- 
ber, Booth was even acquainted or had any in- 
tercourse with Payne, Atzorodt, Herold or Sur- 
ratt, who are evidently considered by the Gov- 
ernment his principal accomplices in the crime 
which is the subject of this charge. On the 
contrary, it is shown, as to Surratt, by the Gov- 
ernment witness, Weichmann, that Booth was 
only introduced to him on the 15th of January 
last. If, therefore, the letter found by Mrs. 
Hudspeth tends to show any conspiracy exist- 
ing as far back as November, looking to the 
murder of the President, it must have been a 
consjuracy wholly different from that with 
which these accused are charged—one which 
wholly failed or was abandoned immediately! 
and, therefore this evidence is not inconsistent 
with the theory I have announced, that there 
was no active, living, breathing conspiracy ill 
February or March, or until April, and no de- 
termination by any one, connected with an}' 
conspiracy, to assail the life of the President 
or of other heads of Government. This, then, 
I take to be incontrovertibly established by the 
evidence on the part of the Government. 
But in the interval between the proposition 
said to have been made in or before January, 
1865, to the rebel agents in Canada, to assassi- 
nate the President and others, and the forma1 
sanction to the scheme in April, what 
brewing ? 
It is evident that in this interval Booth W®s 
revolving and maturing another project, of aII 
entirely different character; one which, as be- 
tween two hostile nations, was perfectly legh1' 
mate, and involved no breach of the law of na- 
tions, and one which the Confederate authori- 
ties had as much right to attempt as they ha 
to do anything within the scope of belligerem 
rights, and one to which the special sanction ° 
the Richmond authorities was wholly unneces- 
sary. That was the capture of the President, 071 J 
perhaps, others, and their abduction to Richrr>orl 1 
with a view of forcing an exchange of prisoner ’ 
The scheme, though not innocent, might almo 
be called harmless, from its perfect absurdi 
and impracticability. But Booth had becon1 
possessed with the idea, and was a monoman1 
on the subject. He would admit no difficult10 ’ 
and, like a madman, sought to dragoon 
friends into the scheme with threats of ruin ali 
If he arrived here on the 14th, he could not 
possibly have been riding in a street car in 
New York, at an hour when the brokers’ offices 
were open, to one of which Mrs. Hudspeth was 
then going with some gold, and the fact is also 
inconsistent with the declaration made by the 
party at the time, that he was to leave for 
Washington two days after; and again, if 
Booth started from Washington on the 16th, as 
the National Hotel book shows hd did, it was 
equally impossible for him to have had the 
pleasure of Mrs. Hudspeth’s company, in the 
street cars of New York, on the same day in 
business hours; for even Sir Boyle Roche de- 
clared that nothing could be in two places at 
the same time, except a bird. I conclude, there- 
fore, that this was a case of mistaken identity, 
like others which have been developed in the 
course of this trial—that Mrs. Hudspeth is 
wholly mistaken in identifying Booth as the 
person encountered by her in the car; and if 
this be so, then her evidence does not point to 
anybody now under accusation, and is wholly 
immaterial; and if it further be judged proba- 
ble, as it seems to me to be, that the occurrence 
testified to was designed merely to mystify the 
public, its value as evidence in this case, of 
course, falls below zero. 
But if the letter found by Mrs. Hudspeth 
had a serious character, and the individual 
\vho dropped it was really Booth, what then ? 
It says, among other things, “ The English gen- 
tleman, Harcourt, must not act hastily—re- 
member,. he has ten days.” Again, “Do any- 
thing but fail, and meet us at the appointed 
place within the fortnight." Whatever the plot 
darkly alluded to, its complete consummation THE CONSPIRACY TRIAL. 
343 
even death. A 1 this is proved by the testimony 
Of the Government witness, by Booth’s declara- 
tions, made in the prosecution of his design, in 
the very act of enlisting adherents for his 
project, or rather, I should say, of conscripting 
them, for cajolery was less a means and instru- 
ment, than threats, of effecting his object. 
Samuel Knapp Chester testifies that about the 
24th or 25th of November, Booth took a walk 
with him in New York, and told him he had a 
big speculation on hand, and some time after 
repeated the statement; that still later Booth 
Wrote to him from Washington that he was specu- 
lating in farms in Lower Maryland, in which he 
Was sure to coin money, saying that the witness 
must join him; that late in December or early in 
January, he walked with the witness in an un- 
frequented portion of Fourth street, in New 
York, and there disclosed the nature of the great 
speculation he was engaged in; that it was a 
large conspiracy to capture the heads of the 
Government, including the President, and to 
take them to Richmond. He assigned to Ches- 
ter the part which lie wished him to perform, 
threatened to implicate him in it anyhow, and 
that if he attempted to betray the plot he would 
be hunted down through life. Subsequently, 
in January, Booth wrote several times to Ches- 
ter, and remitted money to him, urging him to 
come to Washington. Still later, he saw Ches- 
ter in New York in February, and repeated his 
solicitations, and spoke of his efforts to engage 
one John Matthews in the enterprise, saying 
that he would not have cared if he had sacrificed 
him, in consequence of his refusal to join him, 
as he was a coward, and not fit to live—all 
Which indicates the insane state of Booth’s mind 
on this subject. Subsequently,»the witness 
states, Booth told him he had given up the par- 
ticular project of capturing the President and 
heads of Government, and that it had fallen 
through in consequence of some of the parties hack- 
ing out. Still later, he informed him that in cotise- 
quence of this, he was selling off the horses he had 
bought for the purpose. When was this project 
given up? The witness thought he was so in- 
formed in February, but we shall see that he 
Was mistaken in the month, both by the date of 
the sale of the horses and the date when some 
of the parties backed out. Who were the parties 
that backed out? Booth did not give their 
names, but this omission is supplied by the 
statement of Arnold, made after his arrest, 
Which was elicited from the Government wit- 
ness, Eaton G. Horner. From this it appears, 
that on the Ist of April, Arnold went to Fortress 
Monroe to accept a situation. Some time before 
that—the witness can not remember whether it 
Was a week or two or three weeks—he attended 
a meeting in Washington, in reference to the 
Projected capture of the President, in order to 
take him South, and thereby compel the Gov- 
ernment to make an exchange of prisoners. Ar- 
nold declared that he would withdraw from the 
scheme unless it was effected that week, where- 
npon Booth threatened to shoot him. Arnold 
considered the scheme impracticable, and did 
Withdraw, and had nothing more to do with it, 
and Booth told him to sell the arms that had 
keen furnished him, or do what he chose with 
them. It has been proved, by Mrs. Van Tyne, 
that Arnold gave up his room at her house about 
the 18th of March, and by other witnesses, as 
we shall hereafter see, more at large, that he 
left Washington finally on or before the 20th of 
March. So that, according to his confession, he 
was the party, or one of the parties, who backed 
out from this insane scheme of capture, and it 
must have fallen through and been abandoned 
somewhere about the middle of March. This is 
corroborated by other evidence. Weichmann 
shows that on a certain day, which at first he 
could not fix with certainty, vacillating be- 
tween the 18th and 25th, but which he finally 
; fixed to be the 16th, Booth, Payne and John 
Surratt came into Mrs. Surratt’s in a state of 
great anger and excitement, and Surratt ex- 
claimed, “ My prospects are gone, my hopes are 
blighted; I want something to do. Can you get 
me a clerkship?” Booth and Payne manifested 
similar excitement, and all three went off to- 
gether. On Surratt’s return he informed the 
witness that Payne had gone to Baltimore and 
Booth to New York. By the hotel register it 
appears that Booth did leave on the 21st. All 
this demonstrates that at this time some mys- 
terious scheme of theirs had failed. The sale of 
the horses is another circumstance. Surratt 
had told Weichmann that he had two horses, 
which he kept at Howard’s stable, which Booth 
afterward told him were his. From the testi- 
mony of Brooke Stabler, who kept Howard’s 
stable, it appears that on the 29th of March, 
Booth paid the livery of these horses for the 
month, and that Atzerodt, who had been allowed 
before the use of the horses, took them away on 
the 31st, and shortly after brought them back, 
at different times, separately, for sale. This, 
then, was about the period when Booth must 
have informed Chester he was selling off’ his 
horses, and the backing out of parties to the 
abduction scheme, and its consequent falling 
through and abandonment must have been 
shortly before, and about the middle of March. 
We shall see hereafter that Booth still clung to 
this project all through the month of March, 
and made one or two spasmodic efforts to rally 
his forces, but without success. The abandon- 
ment and failure were complete about the mid- 
dle of that month. On the Ist of April, Booth 
went to New York and was there a week, evi- 
dently having then finally abandoned the scheme 
of capture. According to Conover, this schemeof 
capture had been talked of inCanada in the month 
of February. It is probable, however, that it was 
deemed too impracticable to attract much atten- 
tion. In fact, its failure might easily have been 
predicted. It was only necessary for the parties 
concerned to assemble and arrange to put it 
in motion, for the whole thing to fall to pieces, 
and this was exactly the result of the first gen- 
eral meeting of the conspirators. But Booth 
adhered to it with the infatuation of a half in- 
sane man, which both his original conception of 
and his mode of prosecuting this scheme, prove 
to have been. 
But suddenly the scones are all shifted, and 
the curtain rises upon a new drama, a bloody 
tragedy. On the 3d of April, during Booth’s 
absence, John H. Surratt, arrives in Washing- ARGUMENT OF WALTER S. COX. 
ton with these ominous dispatches from Rich- 
mond, freighted with doom to the unconscious 
victim of all these contrivances, and with ruin 
and infamy to all the authors of his fate. Booth 
was then in New York. Bunker shows that he 
left the National on the Ist, and Chester saw 
him in New York on the 7th. Surratt started 
for Montreal, and probably saw Booth on the 
way, or else he received news from Canada 
after Surratt’s arrival there; for he came to 
Washington on the Bth, and the hellish plot of 
murder must have been concocted, and all its 
details arranged by him, between that time and 
the moment of its execution. In its execution, 
not a single trace is seen of any of the Cana- 
dian rebels, nor is there the slightest ground 
furnished by the evidence, for believing that 
more than three or four persons, besides Booth 
himself, were immediately concerned in the 
commission of the crime. 
for the serious consequences it involves to the 
accused. On the evening of the 13th, a large 
crowd assembled in front of Secretary Stan- 
ton’s, in compliment to him and General Grant. 
About half-past ten o’clock, and while the crowd 
were still there, according to Mr. David Stan- 
ton and Major Knox, a stranger inquired of the 
latter where the 'Secretary was, and afterward 
lounged into the hall and peered into the par- 
lor, and, on being questioned by Mr. David 
Stanton, repeated his inquiry, and being told 
that the Secretary was on the steps, and being 
requested to leave, quietly walked out. Neither 
of those witnesses has any recollection that 
General Grant was inquired for at all. Why 
the Government, with this information, did not 
charge the lying in wait to have been for Sec- 
retary Stanton, is a matter of astonishment. 
The whole evidence applicable to General Grant 
is that of Mr. Stanton’s messenger, John H. 
Hatter, who simply relates that about nine 
o’clock, or a little after, a man approached him, 
on the step, and inquired for Grant, and, on 
being told that ho could not see him, walked off. 
This was, probably, some half-intoxicated and, 
perhaps, half-demented stranger, who was ac- 
tuated by the same curiosity that brought a 
large part of the crowd assembled there on that 
occasion, and, but for the tragedy of the next 
night, the circumstance would never have been 
thought of again. But when the President was 
shot, Mr. Seward was assaulted, and the Vice- 
President apparently waylaid, it naturally oc- 
curred to every one that the members of the 
Cabinet had, probably, all been exposed to the 
common danger, and the affair of the mysteri- 
ous stranger’s visit was recalled, and when 
Booth was discovered to be the assassin of the 
President, and his associates were arrested, 
these witnesses went to examine them with a 
natural suspicion of finding among them a 
would-be assassin of Secretary Stanton or Gen- 
eral Grant. Mr. David Stanton recognized 
O’Laughlin as the man on the monitor, although 
he says he had a very indistinct view of him, 
because it was so dark. Major Knox and Hal- 
ter visited him in prison, and both under the 
same conviction that the person seen at Mr. 
Stanton’s must have had something to do with 
the conspiracy, undertook to identify the ac- 
cused as the man. Two of these witnesses 
describe his coat as a black dress coat, and one 
as a frock; all say he had black pants. None 
of them had ever seen the individual before. _ 
This is only one of several instances of mis- 
taken identity exhibited in the trial. Dr.Merritt 
located Herold in Canada, where he never v/aS 
in his life, from the 15th to the 20th of Febru- 
ary, when he was clearly proved to have been 
here on both those days, collecting rent, and 
signing his own name to the receipts. Th® 
same thing occurred in regard to Dr. Mudd, 
whom Evans swears to having seen in Wash- 
ington on the Ist, 2d or 3d of March, whereas, 
he is proved to have been many miles distau 
on each of those days. 
But this whole story about the lying in waj 
for General Grant is blown to the wind by 
testimony of the defense. Let us trace the ac- 
cused by the light of this testimony. In the 
Now, what part had Arnold or O’Laughlin 
in the final tragedy ? As to Arnold, the matter 
seems too plain for doubt or argument. Mrs. 
Van Tyne shows that he gave up his room at her 
house about the 18th or 20th of March. His 
brother, William S. Arnold, met him on the 
way to his house, in Hookstown, on the 21st, 
where he remained till Saturday, the 25th. On 
the afternoon of that day, he went to Baltimore 
with the same brother, supped with him, and 
slept in the same room with him, and returned 
with him to the country on the following morn- 
ing. He there remained until Tuesday or 
Wednesday, the 28th or 29th, when he returned 
to Baltimore, and on the way stopped at the 
house of another witness, Miss Minnie Pole. 
On the 30th and 31st, Thursday and Friday 
nights, he was at his father’s house, and his 
brother, Frank, slept with him, William also 
sleeping in the room, on Friday night. On 
Saturday morning he went to the country with 
his brother, returned in the middle of the day, 
and on the same afternoon went to Fortress 
Monroe. He had previously made application, 
by letter, for a situation there. The testimony 
of his brother, as to his stay in the country, is 
confirmed by that of Jacob Smith, a neighbor. 
Then it appears from the testimony of Mr. 
Wharton, who employed him as clerk, and of 
Charles B. Hall, a fellow-clerk, that he was 
constantly in the store at Fortress Monroe, in 
daily attendance, and faithfully discharging 
his duty, from the time of his arrival, the 2d 
of April, to the 17th, the date of his arrest. It 
was, therefore, physically impossible for him 
to participate in the murder or assaults in 
Washington. Nor is there the slightest evi- 
dence, or even pretense, that he had any part 
to perform, in the execution of the deadly plot, 
at Fortress Monroe, or was otherwise engaged 
there, than in the peaceful duties of his clerk- 
ship. 
The case of O’Laughlin is equally free from 
doubt. The specific charge against him is, that, 
in pursuance of the general design of the con- 
spiracy, he did, on the nights of the 13th and 
14th of April, lie in wait for General Grant, 
with intent then and there to murder him; and 
the whole evidence on the subject shows a mis- 
take of identity that would be ridiculous but THE CONSPIRACY TRIAL. 
first place, he was invited, with two others, 
Murphy and Early, by Ensign Henderson, to 
come to Washington, on Thursday, the 13th of 
April, the occasion of the general illumina- 
tion. This is sworn to by all three of these 
parties. They arrived in Washington between 
five and six o’clock, and first stopped at Rull- 
man’s Hotel. While one of the company stopped 
to be shaved, the accused went with Early to 
the National Hotel, and there inquired for 
some person, and, perhaps, went in search of 
him, but returned to the door in from three to 
five minutes. This is proven by Early. The 
accused stated to Henderson afterward that he 
had been to see Booth, but not whether he had 
seen him; and there is no proof that he had, 
but the contrary is sufficiently shown by the 
short time spent in the hotel. The accused and 
Early then returned to Rullman’s before Hen- 
derson had finished shaving, and there rejoined 
him and Murphy. This is sworn to by all 
three—Murphy, Early and Henderson—and 
Murphy says that Early and the accused were 
not gone more than five or six minutes. They 
then lounged up Pennsylvania avenue, and 
went into Welcher’s saloon. These details are 
given by both Early and Murphy, and though 
Henderson is more general, he confirms them, 
as to the accused having been in company, all 
the time, with these parties. Leaving Welcher’s 
about eight o'clock, they returned to Rullman’s, 
and were shortly after joined by Daniel Lough- 
ran, who is now added as a fourth witness. 
The whole party of five then strolled up Penn- 
sylvania avenue to look at the illumination. 
They all agree as to having passed Seventh 
street. Those not residing here, and not fa- 
miliar with the streets, speak only of going a 
little beyond Seventh, but Loughran, who re- 
sides here, fixes the end of the walk at Ninth 
street, and all agree that they did not go be- 
yond it. They then turned back. Henderson, 
Early and Loughran all fix the hour of this 
movement to be nine o’clock, about. Loughran 
looked at his watch, because he wished to go as 
far as the Treasury, and some of the party re- 
marked that it was too late. They then went 
to the Canterbury Music Hall, and remained 
about an hour or three-quarters, which brought 
them to about ten o’clock. All four swear that 
O'Laughlin went there with them, and re- 
mained with them, and returned with them to 
Eullman’s, after stopping at the Metropolitan, 
about ten o’clock—a little sooner or later. 
There they remained from half an hour to an 
hour. At half-past ten, Grillet passed with a 
lady, and shortly after eleven o’clock returned, 
found them in the same place, and joined them. 
He, Early, Murphy and Loughran mention the 
circumstance, and this brings a fifth witness 
°n the stage. In addition to these, Purdy, the 
manager, and Giles, the bar-tender of Rull- 
man’s Hotel, both swear that he was at the 
Hotel, one fixing the hour at about ten, and the 
other at about half-past ten, and remained 
With the other parties until after eleven. Here, 
tfien, arc seven witnesses, of whom four swear 
they were in company with the accused at the 
hour fixed by Hatter of his waylaying General 
Grant at Mr. Stanton’s, and all the evening af- 
terward, and that they were not for a moment 
nearer to Mr. Stanton’s than a point which 
must be a full mile distant, and their testimony 
is added to by three other witnesses, making 
seven, who locate the accused still farther off 
from the scene of his supposed murderous de- 
signs, between the hours of ten and eleven 
o’clock, when the other Government witnesses 
profess to have seen him. Six of the party 
were with the accused until between twelve 
and one o’clock that night, and the casual ac- 
cessions to the company having left, the ac- 
cused, Henderson, Murphy and Early, accord- 
ing to their concurrent testimony, retired, at 
the Metropolitan Hotel, toward two o’clock in 
the morning. On Friday morning the accused 
was roused by Early and Henderson. The 
same party of four breakfasted at Welcher’s, 
and strolled on the avenue to the National 
Hotel, and entered there about nine o’clock. 
There the accused went up stairs in search of 
Booth, and, as he did not return for some time, 
a half or three-quarters of an hour, the party 
left, thinking he might have gone to Rullman’s. 
Not finding him there, they returned to the 
National, and sent up their cards to Booth’s 
room, but no one was there. The cards being 
left at the office, they returned to Rullman’s, 
where they were joined by the accused in about 
an hour. This would be in the neighborhood 
of eleven o’clock, and the accused then stated 
to Henderson that he had not found Booth, that 
he was out. All the rest of the morning the 
accused was in company with all three of his 
friends, and, in the afternoon, he only parted 
with the others, to go with Early, between four 
and five o’clock, to visit a lady. Early speaks 
fully of this, and Henderson says he was with 
the accused all day, except a part of the after- 
noon, when he went off with Early. Early and 
the accused paid the visit, and returned about 
six o’clock, and rejoined the others at the hotel 
(Rullman’s). So Early states, and Henderson 
confirms it, and Murphy states that he was 
with them until eight o’clock, when they went 
to supper, and ho parted with them until next 
day. Meanwhile, Early, Henderson and the 
accused went to Welcher’s to supper, and re- 
turned to Rullman’s, where they remained 
until after the news of the President’s assas- 
sination. Early does not remember how late 
this was, and does not remember the hour of 
O’Laughlin’s leaving there with Fuller; but 
Grillet, Purdy, Henderson, Fuller and Giles all 
swear that O’Laughlin was at Rullman’s, in 
their company, when the news of the Presi- 
dent’s assassination reached there. It was com- 
municated to O'Laughlin and the others by 
Purdy, who had heard it at the door. Shortly 
after 0 Laughlin left Rullman’s, in company 
with Fuller, who had been in his brother’s em- 
ploy, and, on his invitation, he spent the night 
with him. Early on Saturday morning the 
accused joined the same party, and was with 
them until their departure for Baltimore, in tlie 
afternoon train, as testified by Early 
Murphy. 
Now, to return to Thursday evening. One 
Government witness fixed nine, and the other 
two, half-past ten o’clock, as the hour at which 346 
ARGUMENT OF WALTER B. COX. 
the accused was seen lurking about Mr. Stan- ; 
ton’s. As to the first hour, we have four, and j 
as to the second hour, the same, with three 1 
others, making seven respectable witnesses, j 
of different pursuits, casually meeting, and in j 
no wise implicated or interested themselves; j 
two of them called by the Government, and so j 
accredited as worthy of belief, and one of these 
an officer in the United States navy, and all of 
them wholly unimpeached, all intimately ac- 
quainted with the accused, who establish an 
alibi beyond the possibility of question. It is 
physically impossible that they can be mista- 
ken ; they can not be disbelieved without im- 
puting deliberate perjury to them all. It is 
morally impossible that they can be perjured. 
On the other hand, nothing is further from im- 
possible, nothing is easier, than for all the 
Government witnesses to have been mistaken. 
A minute’s view at night, of a stranger, whom 
they had never beheld before, furnished them 
all the knowledge upon the strength of which, 
w eks after, they assumed to identify him in 
the obscurity of an iron-clad, and the shades 
of a dungeon. It were folly to dwell longer on 
the comparison between the two kinds of evi- 
dence. But look for a moment at the- gross im- 
probability of the story. It is evident that the 
different parts of this plot were to be executed 
simultaneously—it was essential to success. 
It is also evident that Friday night was the 
first time fixed for its execution. Nothing tends 
to show any eaidier attempt, made or contem- 
plated. On Friday night the murder occurred; 
on the same night Mr. Seward was assaulted; 
on Friday afternoon Booth called to see the 
Vice-President, evidently not to assassinate 
him then, but to learn of his whereabouts; and 
if any such part as the assassination of Gen. 
Grant was assigned to O’Laughlin, Friday night 
was the time assigned for its execution. It is 
evident that if he had made the attempt on 
Thursday, successfully or not, it would have 
thwarted the whole scheme, for it would have 
put every one else on his guard. And the pros- 
ecution felt the stress of this consideration, for 
they have added Friday, the 14th, in the speci- 
fication, because this was absolutely necessary 
in order to connect the accused with the actual 
execution of the conspiracy, although they had 
not a scintilla of proof to justify it. The story 
becomes still more improbable when we are re- 
quired to believe that this small and feeble 
man ventured, single-handed, into a brilliantly 
lit house to assault Mr. Stanton or General 
Grant, or both, where he could hardly fail to 
be seized, with a crowd at the front to inter- 
cept his retreat, and wholly ignorant of the 
exit by the rear. It may be said that he was 
then simply reconnoitering for a more favor- 
able opportunity. But the charge is, that he 
lay in wait on that night with intent, then and 
there to kill and murder General Grant; and 
if that is disproved, the whole is disproved, for 
it has not been even attempted to show way- 
laying on Friday night, the 14th of April. 
For this reason it is almost battling wind-mills 
to attempt to controvert that part of the charge 
relating to Friday night. There is nothing to 
answer or refute. It is sufficient, however, to 
| ■ efer to the evidence already analyzed, which 
shows that from six o’clock until after the as- 
j sassination, the accused was quietly engaged 
j with the companions before named, remote from 
(the scenes of blood and danger, until after the 
j whole tragedy was over. General Grant, mean- 
j while, was far away, although he had been ex- 
pected and announced to appear at Ford’s 
theater on Friday night, and the change of 
purpose was probably only known to the con- 
spirators by his actual absence. The accused 
was not at the theater, nor at Secretary Sew- 
ard’s, nor at the Kirkwood, nor anywhere else 
where it can be conceived that any part of the 
massacre was to be performed. No conceivable 
part in the enterprise can be assigned to him. 
Indeed, it is evident that he designed, as the 
others did, to return to Baltimore on Friday 
morning, and was only detained by the per- 
suasions of Henderson. Did his conduct indi- 
cate any complicity in, or knowledge of, the 
impending crime? Was he silent, or excited, 
or nervous, betraying the fatal truth in his 
cups, bursting with the big and fatal secret 
which could not be contained? On the con- 
trary, he is represented as in the finest spirits, 
cheerful, composed, and light-hearted, mingling 
in the merry revel with his boon companions, 
evidently all unconscious of the impending 
evil. 
But he went to see Booth on two occasions— 
Thursday afternoon and Friday morning. H 
does not appear that he saw him on either; the 
contrary is rather shown. But suppose he had 
seen him. Theaflernoon and the morning visit 
were both before Booth even knew that the 
President was to be at Ford’s theater on Fri- 
day night, for it appears that ho only received 
the information at the theater at noon on that 
day. Before that hour, O’Laughlin had rejoined 
his companions, and was not out of the com- 
pany of some of them the whole day after- 
ward. Now, after Booth learned of the Pres- 
ident’s arrangements for the evening, and laid 
his plans for the murder, if the accused had 
any connection with him whatever in this 
scheme, why did not Booth go after him. 
seek him out, and assign him his part ? 
Either he did not know of his presence 
here, or he did not regard him as an accom- 
plice. 
But could the accused really desire better 
proof of his innocence than the fact of hi® 
j visit to Booth affords? Can anybody conceive 
that with the knotvledge of the intended mur- 
ders, still more, expecting to participate i° 
them, he would have gone openly, in a pubhc 
hotel, to visit the intended leader in the crime, 
in company with several persons, one of them 
an officer in the navy, on the very day of tb® 
intended attempt? Could such infatuation h0 
imputed to any man in his senses? Woun 
not a guilty man, or one w’th guilty knowledge 
only, have sought a covert interview, v're 
knowing that suspicion would attach to every 
one seen in intercourse with Booth about tn 
time of his crime, and that the sleuth-hound® 
of justice would soon be upon his trail? 
And when he received the news of the as- 
sassination, what was his conduct? Did 1 THE CONSPIRACY TRIAL. 
347 
betray guilt by agitation, and excitement and 
flight? Nothing of the sort. He was natu- 
rally startled, and the thought naturally oc- 
curred, that as he had been intimate with | 
Booth, and had only that morning gone openly 
to call on him, he might be suspected. But still 
he betrayed none of the terrors of guilt. He 
went quietly to sleep at the house or lodgings 
of a friend. The party had no particular 
lodgings, and seem all to have scattered that 
night. O’Laughlin stayed with Fuller. He 
joined his friends the next morning, and they 
went quietly home together. On reaching home 
he was informed that the officers of justice were 
in search of him. His suspicion, expressed in 
Washington, was realized, and he found him- 
self involved in trouble. No man—the most 
innocent—could avoid emotion in some degree, 
under such circumstances. But his demeanor 
was wholly irreconcilable with guilt. He ab- 
sented himself from home that night for a rea- 
son that was creditable to him, viz.: that his 
arrest there might be the death of his mother; 
and no one can believe that a youth governed 
by these filial sentiments could be so steeped 
in depravity as to have had any share in the 
conception or execution of the diabolical crime 
of Booth. The officers were at his lodgings in 
search of him on Saturday and on Sunday. 
On Sunday he informed Murphy of the fact, 
and stated that he meant to surrender himself 
on Monday, and on that day he did so, through 
his brother-in-law, Mr. Maulsby. Throughout, 
his declarations were that he was innocent of 
any connection with the crime, and could ac- 
count for every moment of his time spent in 
Washington; and that he has done. 
It is, therefore, apparent that neither Arnold 
nor O’Laughiin had anything to do with the 
execution of the alleged conspiracy, and that 
they even could not have had any knowledge of 
the intended murders. 
not recollect his coming during the last few 
days of Booth’s stay. Those last few days were 
the week before the assassination. The previ- 
ous week Booth was in New York, and could not 
have been seen here by the accused. Bunker’s 
testimony is so vague as to dates, that it can 
not be weighed for a moment against the posi- 
tive testimony of Mr. Maulsby. The same may 
be said of Streett, who thinks he remembers see- 
ing the accused in conversation with Booth in 
the streets, well on to the Ist of April, which 
might have been before’ his departure on the 
18th of March. It is true that Booth tele- 
graphed to him on the 27th to come to Washing- 
ton on the 29th, but it does not appear that he 
ever received the telegram, and it is certain he 
did not respond to or comply with its request. 
Some time in March it also appears that a let- 
ter was sent from Booth to O’Laughlin, but 
whether in the beginning or end, or what were 
its contents, is a matter of perfect uncertainty, 
as it is, also, whether he ever noticed it. On 
O’Laughlin’s own part, no single act of inter- 
course is shown, between March 18th and April 
13th, when he came to Washington, evidently in 
the most complete anti happy ignorance of the 
mischief that was brewing. 
If, then, Arnold and O’Laughlin ever were con- 
nected with Booth in a conspiracy for any ob- 
ject, before the middle of March, it is clear that, 
about that time, they wholly withdrew from and 
abandoned it, while it was wholly unexecuted, 
if not merely in embryo. And this being the 
case, according to the principles heretofore laid 
down, they were not parties, in law or in fact, 
to any act subsequently done. 
But let us see what evidence there is to con- 
nect them with any conspiracy. 
First, as to O’Laughlin. I maintain that there 
is no competent legal evidence to show him im- 
plicated in any conspiracy whatever. Throw 
out of the case the confession of Arnold, and 
any statements made by him casually to third 
persons—which, I shall show, are not evidence 
against O’Laughlin—what remains? No one 
can pretend that there is any direct evidence. 
If any, it is circumstantial. A conspiracy may 
be proved by circumstances, but by what kind 
of circumstances? Russell on Crimes, 2 vol p 
G9B, says: ’’ 
“The evidence in support of an indictment 
for a conspiracy is generally circumstantial; 
and it is not necessary to prove any direct con- 
cert, or even any meeting of the conspirators, 
as the actual fact of conspiracy may be collected 
from the collateral circumstances of the case.” 
“ It, therefore, two persons pursue, by their oxen 
acts, the same objects, often by the same means, one 
performing one part of the act, and the other an- 
other part of the same act, so as to complete it, 
with a view to the attainment of the object they 
were pursuing, the jury are at liberty to draw the 
conclusion that they had been engaged in a conspiracy 
to effect that object. In a case where a husband 
and wife and their servants were indicted for a 
conspiracy to ruin the trade of the prosecutor, 
who was the king’s card-maker, the evidence 
against them was that they had, at several 
times, given money to the prosecutor’s appren- 
. tices to put grease into the paste, which had 
Furthermore, it appears that for nearly a 
month before the assassination they had no per- 
sonal intercourse with Booth. Arnold was in 
Baltimore and the neighborhood from the 21st 
to the 31st of March, and from that time at Fort- 
ress Monroe. He was not in Washington at 
all. And though his letter, offered in evidence, 
would seem to show that Booth had been to see 
him at his home, it also shows that no interview 
Was had, nor is any correspondence shown, ex- 
cept the letter in question. This letter evidently 
shows a rupture of former relations with Booth. 
“When I left you, you stated we would not meet 
in a month or so.” “I told my parents I had 
ceased with you. Can J\ then, under existing cir- 
cumstances, come as you request ?" Such are the 
terms of the letter. And, in effect, we know 
that he did not come as requested, but, on the 
contrary, accepted a situation, and went to 
Fortress Monroe on the Ist of April, and this 
Was the last even of his correspondence with 
Booth, and this completed and sealed the rup- 
ture. As to O’Laughlin, no intercourse of any 
sort is shown with Booth after the 18th ot 
March. On that day he went home, according 
to Mr. Maulsby, and remained there with him 
ever since. Mr. Bunker, who speaks of O’Laugh- 
lin' s frequent visits to Booth, admits that he did 348 
ARGUMENT OF WALTER S. COX. 
spoiled the cards; but there was no account 
given that ever more than one at a time was 
present, though it was proved that they had all 
given nsoney in their turns; it was objected that 
this could not be conspiracy, on the ground 
that several persons might do the same thing 
• without having any previous communication 
with each other. But it was ruled that the de- 
fendants being all of a family, and concerned 
in the making of cards, it (i. e. these acts done 
in pursuance of a common object) would be evi- 
dence of a conspiracy.” Now, it is evident in 
this case, that the mere fact of belonging to this 
family, and even being concerned in the same 
trade, would not have begun to be evidence to 
implicate any one. It was the doing of acts in 
pursuance of the common end., which was the cir- 
cumstantial proof admitted, aided by showing 
a common motive. 
seen that Booth was absent from Washington at 
that time. Indeed, he was absent for twelve 
days before the room was taken at Mrs. Van 
Tyne’s, and so continued, if I understand 
Bunker’s evidence aright, for twelve days after- 
ward. The book shows that he left on the 2Bth 
of January, and arrived again on the 22d of 
February, though there is some confusion on 
this point. It can hardly be understood, then, 
how his occupancy of this room could have any 
reference to schemes Booth was prosecuting 
here. It certainly had no necessary connection 
with them, and can not be called as an act done 
in furtherance of them, without much more 
proof. Where O’Laughlin was in the begin- 
ning of March, is not very clear, but it is cer- 
tain that he was at home on the 7th, and so 
continued until the 13th, when he spent five 
days in Washington. Now, this is everything 
in the case, in the shape of acts or declarations 
of O’Laughlin. No man can deny that his in- 
timacy with Booth, and his stay in Washington, 
were perfectly consistent with utter ignorance 
of anything illicit in progress, and are fully 
accounted for on other grounds. Ho might, for 
aught that appears, have been guilelessly keep- 
ing up a social intimacy with the friends of his 
boyhood, and Booth may not have whispered 
his designs to him, as he did not to others 
equally or more intimate with him. This inti- 
macy, therefore, can not be called an act done 
in pursuance of the conspiracy, and tending 
to prove it against O’Laughlin. Consider, 
moreover, what else has not been proved against 
him. While the prosecution have sought to 
show, and will doubtless maintain, that Mrs. 
Surratt’s house was the headquarters of the 
alleged conspiracy, that John Surratt, Payne, 
Atzerodt, and perhaps Spangler and Herold, 
were the principal accomplices of Booth, they 
have not shown that O’Laughlin was ever at 
that house, or was ever known to any of those 
parties. When arrested, no arms were found 
on him, nor anything indicating any deadly or 
illegal purpose, of any kind. 
Now, if I am right in my position that no act 
or word of O’Uaughlin himself has been shown, 
nor any independent fact, connecting him with 
any conspiracy, then it is very plain that no 
act or declaration of any third person is com- 
petent evidence against him. The rule of law, 
under this head, is too plain to be misunder- 
stood. 
Now, in the case under trial, what single act 
or declaration of O’Laughlin can be shown 
looking to any common end or object between 
him and Booth? Is his personal intimacy ad- 
duced ? But not only had that no necessary 
connection with any criminal design, but it is 
proved that it could not have originated in any- 
thing of the sort. They were opposite neigh- 
bors in Baltimore, had been schoolmates in 
boyhood, in the same neighborhood, and be- 
tween themselves and their families an unin- 
terrupted intimacy had subsisted for many 
years. If intimacy were any evidence of 
complicity with Booth, it would hardly be pos- 
sible to assign any limits to the scope of this 
conspiracy. His profession, no less than his 
personal qualities, necessarily made him many 
acquaintances. Others were more intimate 
with him than the accused—McCulloch, Went- 
worth, and others, shared his room at the Na- 
tional Hotel. Yet they seem to have attracted 
no suspicion. 
Can the circumstance of O’Laughlin’s pres- 
ence in Washington and his occupying a room at 
Mrs. Yan Tyne’s be relied on ? It has been 
shown that he formerly resided in Washington, 
was in the employment of his brother, then in 
business here, and that he has constantly had 
to visit Washington since, to make collections, 
solicit orders, and deliver merchandise, and 
that on the very day of his last visit, a month 
before the assassination, he came down for his 
brother, upon business, about which he was tel- 
egraphed the next day. In this state of affairs, 
nothing was more natural than that he should 
occupy a room with a fellow-townsman, Arnold; 
but that that had no reference to anything in 
which Booth or Arnold was concerned, an ex- 
amination of dates will show. Mrs. Yan Tyne 
does not profess to know anything of the rela- 
tions between Arnold and O’Laughlin, nor 
could she know which of them was actually 
present in her lodgings at any particular time. 
But she fixes the beginning of this occupancy 
on the 10th of February. Now, Mr. Maulsby 
shows that O’Laughlin was at home on the 14th 
of February, and remained there two weeks— 
that is, to "the end of the month. So that, as 
far as appears, he was in Washington but four 
days during the whole month of February; and, 
by" looking" at Bunker’s testimony, it will be 
The fact of conspiracy between A and B can 
never be proved against A by the mere declara- 
tions of B; but if it once be proved by the 
declarations or acts of A himself, then B'S 
declarations, accompanying some act done in 
furtherance of the common design, would be 
evidence, but they would not be evidence if 
made casually, or after the conspiracy is either 
executed or abandoned. 
Thus, Professor Greenleaf says (vol. I, § IH): 
“The same principles apply to the acts and 
declarations of one of a company of conspira- 
tors, in regard to the common design, as affecting 
his fellows. Here a foundation must first be 
laid by proof sufficient, in the opinion of the 
judge, to establish, prima facie, the fact of con- 
spiracy between the parties, or proper to be lam THE CONSPIRACY TRIAL. 
349 
before the jury, as tending to establish that 
fact. The connection of the individual in the' un- 
lawful enterprise being thus shown, every act and 
declaration of each member of the confederacy, 
in pursuance of ihe original concerted plan, is, in 
contemplation of law, the act and declaration 
of them all,” etc. “ Sometimes, for the sake of 
convenience, the acts and declarations of one 
are admitted in evidence, before sufficient proof 
is given of the conspiracy, the prosecutor un- 
dertaking to furnish such proof of conspiracy 
in a subsequent stage of the cause. But this 
rests in the discretion of the judge, and is not 
permitted, except under peculiar and urgent 
circumstances, lest the jury should he misled to 
infer the fact itself of the conspiracy, from the 
declarations of strangers. And here, also, care 
must be taken that the acts and declarations 
thus admitted be those only which were made 
and done during the pendency of the criminal 
enterprise, and in furtherance of its object.I'' 
If they took place at a subsequent period, 
and are, therefore, merely narrative of past oc- 
currences, they are, as we have just seen, to be 
refused. 
considering them. I treat, the oases of Arnold 
and O’Laughlin together. 
If I have been correct in my analysis of the 
proof, I have shown, that no active design 
against the life of the President was on foot, 
between January and the early part of April; 
and I have further shown, from the evidence of 
the Government, that during that interval, 
Booth was contriving an entirely different pro- 
ject—the capture of the President and others. 
It has further appeared that that project was 
abandoned, and the date of its abandonment is 
fixed about, by facts referred to by Booth, to- 
wit: the defection of some of the parties, the 
sale of horses, etc., and that date is ascertained 
to have been about the middle of March. 
Now, it is clears that if any connection is 
shown between Booth on one hand, and 
O’Laughlin and Arnold on the other, it existed 
only during the period when this absurd pro- 
ject of capture was agitated, and terminated 
with that. Their fitful stay in Washington was 
only between February 10th and March 18th. 
By Arnold’s confession,-it would appear that 
he, and if he is not mistaken, O’Laughlin, at- 
tended one meeting about the middle of March, 
to consider the plan of capture; but so imma- 
ture was the plan, and so slight his connection 
with it, that lie did not even know the names 
of the others at the meeting—two in number— 
besides Booth, Surratt and Atzerodt. At that 
meeting, as might have been expected, the dif- 
ficulties of the scheme became apparent, and a 
rupture ensued between him and Booth; the 
whole scheme fell through, and he and O’Laugh- 
lin, immediately after, left for Baltimore. 
Booth told him he might sell the arms he had 
given him; and, in fact, it is proved that he 
gave part of them away, shortly after, to his 
brother. As to O’Laughlin, this confession 
proves nothing but his presence at this single 
meeting. This was the beginning and the end 
of their connection with Booth in any scheme 
whatever of a political character; and, in this, 
it is evident that he wasdhe arch-contriver, and 
they the dupes. And when they had once es- 
caped his influence, although he still evidently 
clung to his design, and telegraphed and 
wrote, and called to see them, it is evident that 
they refused to heed the voice of the charmer, 
charm he never so wisely. From O’Laughlin 
he received no response at all; from Arnold, 
only the letter offered in evidence. There arc 
expressions in the letter which look to a con- 
tingent renewal of their relations in the fu- 
ture ; but they were employed to parry his im- 
portunities for the present. Certainly, all con- 
nection ceased from that time. 
If, therefore, any conspiracy at all be proved, 
by the utmost latitude of evidence, against 
these two accused, it was a mere unacted, still- 
scheme, scarce conceived before abandoned, of 
a nature wholly different from the offense de- 
scribed in this charge, the proof of which does 
not sustain this charge, and of which the ac- 
cused could not be convicted upon this trial; 
for this Court, as we have seen, is bound by the 
rules of evidence which prevail in others, and 
one of the most important is, that the proof 
must correspond with the charge or indictment, 
And, as Russell says [v. 2, p. 697]: “But 
what one of the party may have been heard to 
say at some other time, as to the share which 
some of the others had in the execution of the 
common design, or as to the object of the con- 
spiracy, can not, it is conceived, be admitted as 
evidence to affect them, on their trial for the 
same offense.” 
It is clear, then, that Arnold’s oral confession 
is not admissible against O’Laughlin, for two 
reasons, viz.: first, because no conspiracy be- 
tween them had first been proved by other evi- 
dence; and next, because it was not made in 
furtherance or prosecution of any conspiracy, 
but as to a past transaction. It is pure hear- 
say, inadmissible because of the double chance 
of mistakes—mistake in the witness as to the 
third person’s declarations, and mistake of the 
third person himself. The same is to be said 
of casual remarks made by him to third per- 
sons, as to the nature of his or their business, 
not made in the prosecution and furtherance of 
that business. 
On the same principle, neither could any act 
or declaration of Booth be evidence against 
him. We have nothing of this sort but the 
sending of a letter, the contents of which are en- 
tirely unknown, and the sen ding of the telegrams 
of March 13 and March 27, asking him to come 
to Washington. But without proof of conspir- 
acy, from another source, this would be inad- 
missible against O’Laughlin. Otherwise, it 
would be in the power of any man to ruin an 
enemy, by writing to him or telegraphing to 
him in terms which assumed the existence of 
some guilty plot between them ; and these acts 
are consistent with the theory of a mere at- 
tempt to persuade him into a conspiracy, which 
he would not yield to. If, then, these acts of 
Booth, and declarations of Arnold be rejected 
as evidence, the case is utterly bare of proof 
against O’Laughlin of any conspiracy what- 
ever. 
But suppose all these acts and declarations 
admitted, let us see what they prove; and in 350 
ARGUMENT OF WALTER S. COX. 
and show the same offense, or the accused is 
entitled to acquittal. 
And there is no evidence which connects 
these two accused with that dreadful conspir- 
acy which forms the subject of this charge. 
There is nothing to show that during their 
brief intercourse with Booth, in Washington, 
that nefarious design was agitated at all, cer- 
tainly none that it was even disclosed to them; 
and if such conspiracy had any existence, it 
was in a state of slumber and suspense, await- 
ing that sanction without which it had no mo- 
tive, nor end, nor aim, nor life. 
I state, then, the following conclusions as es- 
tablished, viz.: \ 
1. That the accused, Samuel Arnold and Mi- 
chael O’Laughlin, had no part whatever in the 
execution of the conspiracy set forth in this 
charge and its specification. 
2. That if they were implicated in such con- 
spiracy, they withdrew from it and abandoned 
it while yet wholly unexecuted, and resting 
merely in intention, and are not responsible 
for any of the acts subsequently done in pur- 
suance of it. 
8. That there is no legal and complete evi- 
dence implicating O’Laughlin in any conspir- 
acy whatever, and none implicating either 
O’Laughlin or Arnold in the conspiracy 
charged. 
4. That if there is evidence against them of 
any conspiracy, it is of one wholly different 
from that set forth in the charge and specifica- 
tion, and upon these they must be wholly ac- 
quitted. 
I, therefore, claim for them an absolute and 
unqualified acquittal. That the accused were 
wrong in ever joining the rebellion against 
their Government, no one will deny ; that they 
were wrong in ever listening for a moment, if 
they ever did, to any proposition from that 
wicked schemer, Booth, inimical to their Gov- 
ernment, no one will deny. But it would be 
to insult the intelligence of this Court to waste 
time in showing that this Court are not sitting 
in judgment on all the errors in the lives of 
these accused, but to decide the single question 
whether they are guilty of conspiracy to kill 
and murder the President, Vice-President, Sec- 
retary of State, and General in command of 
the armies of the United States, and of the acts 
charged against them severally in pursuance 
of said conspiracy. 
And now, Mr. President and gentlemen, 
with all the sense of responsibility the occa- 
sion is fitted to inspire, I commit to you the 
lives, liberties, and good names of my clients, 
to be dealt with by you according to the law 
and evidence, without partiality, favor, or af- 
fection. MICHAEL O’LAUGHLIN, 
SAMUEL ARNOLD. IR, G- XJ 3VE 33 .TNT T 
ARGUMENTS IN DEFENSE OF MARY E. SURRATT 
IN REPLY TO THE SEVERAL 
AND OTHERS, CHARGED WITH CONSPIRACY AND THE MURDER OF ABRAHAM 
LINCOLN, LATE PRESIDENT OF THE UNITED STATES, ETC. 
THE 
HOK. JOHN A. BINGHAM, 
Special Judge Advocate. 
May it please the Court: 
States; and then and there lying in wait to 
kill and murder Andrew Johnson, then Vice- 
President of the United States, and Ulysses S. 
Grant, then Lieutenant-General and in com- 
mand of the armies of the United States, in 
pursuance of a treasonable conspiracy entered 
into by the accused with one John Wilkes 
Booth, and John H. Surratt, upon the instiga- 
tion of Jefferson Davis, Jacob Thompson, and 
George N. Sanders and others, with intent 
thereby to aid the existing rebellion and sub- 
vert the Constitution and laws of the United 
States. 
The conspiracy here charged and specified, 
and the acts alleged to have been committed in 
pursuance thereof, and with the intent laid, 
constitute a crime the atrocity of which has 
sent a shudder through the civilized world. All 
that, was agreed upon and attempted by the al- 
leged inciters and instigators of this crime 
constitutes a combination of atrocities with 
scarcely a parallel in the annals of the human 
race. Whether the prisoners at your bar are 
guilty of the conspiracy and the acts alleged 
to have been done in pursuance thereof, as set 
forth in the charge and specification, is a ques- 
tion the determination of which rests solely 
With this honorable Court, and in passing upon 
which this Court are the sole judges of the law 
and the fact. 
The rebellion, in aid of which this conspiracy 
was formed and this great public crime com- 
mitted, was prosecuted for the vindication of 
no right, for the redress of no wrong, but was 
itself simply a criminal conspiracy and gigantic 
assassination. In resisting and crushing this 
rebellion the American people take no step 
backward, and cast no reproach upon their past 
history. That people now, as ever, proclaim 
the self-evident truth that whenever govern- 
ment becomes subversive of the ends of its 
creation, it is the right and duty of the people 
to alter or abolish it; but during these four 
years of conflict they have as clearly pro- 
claimed, as was their right and duty, both by 
law and by arms, that the Government of their 
own choice, humanely and wisely administered, 
oppressive of none and just to all, shall not be 
overthrown by privy conspiracy or armed rebel- 
lion. 
In presenting my views upon the questions 
of law raised by the several counsel for the 
defense, and also on the testimony adduced 
for and against the accused, I desire to be just 
to them, just to you, just to my country, and 
just to my own convictions. The issue joined 
involves the highest interests of the accused, 
and, in my judgment, the highest interests of 
the whole people of the United States. 
It is a matter of great moment to all the peo- 
ple of this country that the prisoners at your 
bar be lawfully tried and lawfully convicted 
or acquitted. A wrongful and illegal convic- 
tion or a wrongful and illegal acquittal upon 
this dread issue would impair somewhat the 
security of every man's life, and shake the 
stability of the republic. 
The crime charged and specified upon your 
record is not simply the crime of murdering a 
human being, but it is the crime of killing and 
murdering, on the 14th day of April, A. D. 
1865, within the military department of Wash- 
ington and the intrenched lines thereof, Abra- 
ham Lincoln, then President of the United 
States, and commander-in-Chief of the army 
and navy thereof; and then and there assault- 
ing, with intent to kill and murder, William H. 
Seward, then Secretary of State of the United 
What wrong had this Government or any of 
its duly constituted agents done to any of the 
guilty actors in this atrocious rebellion ? They 
themselves being witnesses, the Government 
which they assailed had done no act, and at- 
tempted no act, injurious to them, or in any 
sense violative of their rights as citizens and 
men; and yet for four years, without cause of 
complaint or colorable excuse, the inciters and 
instigators of the conspiracy charged upon 
your record have, by armed rebellion, resisted 
the lawful authority of the Government, and 
attempted by force of arms to blot the Republic 
from the map of nations. Now that their 352 
THE CONSPIRACY TRIAL, 
battalions of treason are broken and flying 
before the victorious legions of the Republic, 
the chief traitors in this great crime against 
your Government, secretly conspire with 
their hired confederates to achieve by assassi- 
nation, if possible, what they have in vain 
attempted by wager of battle, the overthrow 
of the Government of the United States and 
the subversion of its Constitution and laws. 
It is for this secret conspiracy in the interest of 
the rebellion, formed at the instigation of the 
chiefs in that rebellion, and in pursuance of 
which the acts charged and specified are al- 
leged to have been done, and with the intent 
laid, that the accused are upon trial. 
The Government, in preferring this charge, 
does not indict the whole people of any State 
or section, but only the alleged parties to this 
unnatural and atrocious conspiracy and crime. 
The President of the United States, in the dis- 
charge of his duty as Commander-in-Chief of 
the army, and by virtue of the power vested in 
him by the Constitution and laws of the United 
States, has constituted you a military court, to 
hear and determine the issue joined against 
the accused, and has constituted you a court 
for no other purpose whatever. To this charge 
and specification the defendants have pleaded, 
first, that this court has no jurisdiction in the 
premises; and, second, not guilty. As the 
Court has already overruled the plea to the ju- 
risdiction, it would be passed over in silence 
by me but for the fact, that a grave and elabo- 
rate argument has been made by counsel for 
the accused, not only to show the want of juris- 
diction, but to arraign the President of the 
United States before the country and the world 
as a usurper of power over the lives and the 
liberties of the prisoners. Denying the author- 
ity of the President to constitute this Com- 
mission is an averment that this tribunal is not 
a court of justice, has no legal existence, and 
therefore no power to hear and determine the 
issue joined. The learned counsel for the ac- 
cused, when they make this averment by way 
of argument, owe it to themselves and to their 
country to show how the President could oth- 
erwise lawfully and efficiently discharge the 
duty enjoined upon him by his oath to protect, 
preserve, and defend the Constitution of the 
United States, and to take care that the laws 
be faithfully executed. 
in-Chief, to prevent the consummation of this 
traitorous conspiracy in aid of this treasonable 
rebellion. The civil courts, say the counsel, 
are open in the District. I answer, they are 
closed throughout half the Republic, and were 
only open in this District on the day of this 
confederation and conspiracy, on the day of 
the traitorous assassination of your President, 
and are only open at this hour by force of the 
bayonet. Does any man suppose that if the 
military forces which garrison the intrench- 
ments of your capital, fifty thousand strong, 
were all withdrawn, the rebel bands who this 
day infest the mountain passes in your vicinity 
would allow this Court, or any court, to remain 
open in this District for the trial of these their 
confederates, or would permit your executive 
officers to discharge the trust committed to 
them, for twenty-four hours ? 
At the time this conspiracy was entered into, 
and when this Court was convened and entered 
upon this trial, the country was in a state of 
civil war. An army of insurrectionists have, 
since this trial began, shed the blood of Union 
soldiers in battle. The conspirator, by whose 
hand his co-conspirators, whether present or 
absent, jointly murdered the President on the 
14th of last April, could not be and was not 
arrested upon civil process, but was pursued by 
the military power of the Government, cap- 
tured and slain. Was this an act of usurpa- 
tion ?—a violation of the right guaranteed to 
that fleeing assassin by the very Constitution 
against which and for the subversion of which 
he had conspired and murdered the President? 
Who in all this land is bold enough or base 
enough to assert it? 
I would be glad to know by what law the 
President, by a military force, acting only upon 
his military orders, is justified in pursuing, 
arresting, and killing one of these conspir- 
ators, and is condemned for arresting in 
like manner and by his order subjecting to trial, 
according to the laws of war, any or all of the 
other parties to this same damnable conspiracy 
and crime, by a military tribunal of justice—-a 
tribunal I may be pardoned for saying, whose 
integrity and impartiality are above suspicion, 
and pass unchallenged even by the accused 
themselves. 
The argument against the jurisdiction of this 
Court rests upon the assumption that, even in 
time of insurrection and civil war, no crimes 
are cognizable and punishable by military 
commission or court-martial, save crimes com' 
mitted in the military or naval service of the 
United States, or in the militia of the several 
States when called into the actual service of the 
United States. But that is not all the argu- 
ment ; it affirms that, under this plea to the ju- 
risdiction, the accused have the right to demand 
that this Court shall decide that it is not a judi- 
cial tribunal, and has no legal existence. 
This is a most extraordinary proposition, that 
the President, under the Constitution and laWs 
of the United States, was not only not author- 
ized, but absolutely forbidden to constitute 
this Court, for the trial of the accused, anffi 
therefore, the act of the President is void, and 
the gentlemen who compose the tribunal, with' 
An existing rebellion is alleged and not de- 
nied. It is charged that in aid of this existing 
rebellion a conspiracy was entered into by the 
accused, incited and instigated thereto by the 
chiefs of this rebellion, to kill and murder the 
executive officers of the Government, and the 
commander of the armies of the United States, 
and that this conspiracy was partly executed 
by the murder of Abraham Lincoln, and by a 
murderous assault upon the Secretary of State; 
and counsel reply, by elaborate argument, that 
although the facts be as charged, though the 
conspirators be numerous and at large, able 
and eager to complete the horrid work of as- 
sassination already begun within your military 
encampment, yet the successor of your mur- 
dered President is h usurper if he attempts by 
military force and martial law, as Commander- ARGUMENT OF JOHN A. BINGHAM. 
out judicial authority or power, and are not, 
in fact or in law, a court. 
That I do not misstate what is claimed and 
attempted to be established on behalf of the 
accused, I ask the attention of the Court to the 
following as the gentleman’s (Mr. Johnson’s) 
propositions: 
That Congress has not authorized, and, under 
the Constitution, can not authorize the ap- 
pointment of this Commission. 
That this Commission has, “as a court, no 
legal existence or authority,” because the Pres- 
ident, who alone appointed the Commission, has 
no such power. 
cide in advance, the very question in dispute, 
to-wit, his actual existence. 
So with the question presented in this re- 
markable argument for the defense; before 
this Court can enter upon the inquiry of the 
want of authority in the President to consti- 
tute them a court, they must take for granted 
and decide the very point in issue, that the 
President had the authority, and that they are 
in law and in fact a judicial tribunal; and, 
having assumed this, they are gravely asked, 
as such judicial tribunal, to finally and 
solemnly decide and declare that they are not 
in fact or in law a judicial tribunal, but a 
mere nullity and nonentity. A most lame 
and impotent conclusion ! 
As the learned counsel seems to have great 
reverence for judicial authority, and requires 
precedent for every opinion, I may be par- 
doned for saying that the objection which I 
urge against the possibility of any judicial 
tribunal, after being officially qualified as 
such, entertaining, much less judicially de- 
ciding, the proposition that it has no legal 
existence as a court, and that the appointment 
Avas a usurpation, and without authority of 
laAv, has been solemnly ruled by the Supreme 
Court of the United States. 
That his act “is a mere nullity, the usurpa- 
tion of a power not vested in the Executive, 
and conferring no authority upon you.” 
We have had no common exhibition of law- 
learning in this defense, prepared by a Senator 
of the United States; but, with all his expe- 
rience, and all his learning and acknowledged 
ability, he has failed, utterly failed, to show 
how a tribunal, Constituted and sworn, as this 
has been, to duly try and determine the charge 
and specification against the accused, and, by 
its commission, not authorized to hear or deter- 
mine any other issues whatever, can rightfully 
entertain, or can, by any possibility, pass 
upon the proposition presented by this argu- 
ment of the gentleman for its considera- 
tion. 
That Court say; “The acceptance of the ju- 
dicial office is a recognition of the authority 
from Avhich it is derived. If a court should 
enter upon the inquiry (whether the authority 
of the Government which established it ex- 
isted), and should come to the conclusion that 
the Government under Avhich it acted had been 
put aside, it would cease to be a court, and be 
incapable of pronouncing a judicial decision 
upon the question it undertook to try. If it 
decides at all, as a court, it necessarily affirms 
the existence and authority of the Government 
under which it is exercising judicial power.” 
Luther vs. Borden, 7 Howard, 40. 
That is the very question raised by the 
learned gentleman in his argument, that 
there was no authority in the President, by 
Avhose act alone this tribunal was constitAited, 
to vest it with judicial poAver to try this issue; 
and, by the order upon your record, as has 
already been shown, if you have no power to 
try this issue, for want of authority in the 
Commander-in-Chief to constitute you a court, 
you are no court, and have no power to try 
any issue, because his order limits you to this 
issue, and this alone. 
It requires no very profound legal attain- 
ments to apply the ruling of the highest ju- 
dicial tribunal of this country, just cited, to 
the point raised, not by the pleadings, but by 
the argument. This Court exists as a judicial 
tribunal by authority only of the President of 
the United States; the acceptance of the office 
is an acknowledgement of the validity of the 
authority conferring it, and, if the President 
had no authority to order, direct and constitute 
this Court to try the accused, and, as is 
claimed, did, in so constituting it, perform an 
unconstitutional and illegal act, it necessarily 
results that the order of the President is void 
and of no effect; that the order did not, and 
could not, constitute this a tribunal of justice, 
The members of this Court are officers in the 
army of the United States, and, by order of the 
President, as Commander-in-Chief, are required 
to discharge this duty, and are authorized, in 
this capacity, to discharge no other duty, to 
exercise no other judicial power. Of course, 
if the commission of the President constitutes 
this a court for the trial of this case only, as 
such com’t it is competent to decide all ques- 
tions of law and fact arising in the tidal of the 
case. But this Court has no poiver, as a Court, 
to declare the authority by which it was con- 
stituted null and void, and the act of the 
President, a mere nullity, a usurpation. Has it 
been shoivn by the learned-gentleman, who 
demands that this Court shall so decide, that 
officers of the army may lawfully and consti- 
tutionally question, in this manner, the orders 
of their Commander-in-Chief, disobey, set them 
aside, and declare them a nullity and a usurpa- 
tion? Even if it be conceded that the officers, 
thus detailed by order of the Commander-in- 
Chief, may question and utterly disregard his 
order, and set aside his authority, is it possible, 
in the nature of things, that any body of men, 
constituted and qualified as a tribunal of jus- 
tice, can sit in judgment upon the proposition 
that they are not a court for any purpose, and 
finally decide judicially, as a court, that the 
Government which appointed them was with- 
out authority ? Why not crown the absurdity 
°f this proposition by asking the several mem- 
bers of this Court to determine that they are 
Hot men—living, intelligent, responsible men! 
This would be no more irrational than the 
question upon which they are asked to pass. 
How can any sensible man entertain it! Be- 
fore he begins to reason upon the proposition 
he must take for granted, and, therefore, de- 354 
THE CONSPIRACY TRIAL. 
and, therefore, its members are incapable of 
pronouncing a judicial decision upon the 
question presented. 
There is a marked distinction between the 
question here presented, and that raised by a 
plea to the jurisdiction of a tribunal whose 
existence, as a court, is neither questioned nor 
denied. Here, it is argued, through many 
pages, by a learned Senator, and a dis- 
tinguished lawyer, that the order of the Presi- 
dent, by whose authority alone this Court is 
constituted a tribunal of military justice, is 
unlawful; if unlawful it is void and of no 
effect, and has created no court; therefore, 
this body, not being a court, can have no 
more power as a court, to decide any ques- 
tion whatever, than have its individual mem- 
bers power to decide that they, as men, do not 
in fact exist. 
since, w'as a general in the service of the coun- 
try, and as such in his department in the West 
proclaimed and enforced martial law by the 
constitution of military tribunals for the trial 
of citizens not in the land or naval forces, but 
who were guilty of military offenses, for which 
he deemed them justly punishable before mili- 
tary courts, and accordingly he punished them. 
Is the gentleman quite sure, when that account 
comes to be rendered for these alleged uncon- 
stitutional assumptions of power, that he will 
not have to answer for more of these alleged 
violations of the rights of citizens by illegal 
arrests, convictions, and executions, than any 
of the members of this Court? In support of 
his opinion that this is no court, the gentleman 
cites the 3d article of the Constitution, which 
provides “ that the judicial power of the United 
States shall be vested in one Supreme Court, and 
such inferior courts as Congress may estab* 
lish,” the judges whereof “shall hold their offi- 
ces during good behavior.” 
It is a sufficient answer to say to the gentle- 
man, that the power of this Government to try 
and punish military offenses by military tribu- 
nals is no part of the “judicial power of the 
United States,” under the 3d article of the Con- 
stitution, but a power conferred by the Bth sec- 
tion of the Ist article, and so it has been ruled 
by the Supreme Court in Dyres vs. Hoover, 20 
Howard, 78. If this power is so conferred by 
the Bth section, a military court authorized by 
Congress, and constituted as this has been, to 
try all persons for military crimes in time of 
war, though not exercising “the judicial power” 
provided for in the 3d article, is nevertheless a 
court as constitutional as the Supreme Court 
itself. The gentleman admits this to the extent 
of the trial by courts-martial of persons in the 
military or naval service, and by admitting it 
he gives up the point. There is no express grant 
for any such tribunal, and the power to estab- 
lish such a court, therefore, is implied from the 
provisions of the Bth section, Ist article, that 
“Congress shall have power to provide and 
maintain a navy,” and also “to make rules for 
the government of the land and naval forces.” 
From these grants the Supreme Court infer the 
power to establish courts-martial, and from the 
grants in the same Bth section, as I shall notice 
hereafter, that “ Congress shall have power to 
declare war,” and “ to pass all laws necessary 
and proper to carry this and all other powers 
into effect,” it is necessarily implied that in 
time of war Congress may authorize military 
commissions, to try all crimes committed in aid 
of the public enemy, as such tribunals are ne- 
cessary to give effect to the power to make war 
and suppress insurrection. 
Inasmuch as the gentleman (Gen. Ewing) for 
whom, personally, I have a high regard as the 
military commander of a western department, 
made a liberal exercise, under the order of the 
Commander-in-Chief of the army, of this power 
to arrest and try military offenders not in the 
land or naval forces of the United States, and 
inflicted upon them, as I am informed, the ex- 
treme penalty of the law, by virtue of his mili' 
tary jurisdiction, I wish to know whether be 
proposes, by his proclamation of the personal 
It is a maxim of the common law—the 
perfection of human reason—that what is 
impossible the law requires of no man. 
How can it be possible that a judicial tri- 
bunal can decide the question that it does 
not exist, any more than that a rational man 
can decide that he does not exist? 
The absurdity of the proposition, so elabo- 
rately urged upon the consideration of this 
Court, can not be saved from the ridicule and 
contempt of sensible men by the pretense that 
the Court is not asked judicially to decide that 
it is not a court, but only that it has no juris- 
diction; for it is a fact not to be denied that 
the whole argument for the defense, on this 
point, is, that the President had not the law- 
ful authority to issue the order by which 
alone this Court is constituted, and that the 
order for its creation is null and void. 
Gentlemen might as well ask the Supreme 
Court of the United States, upon a plea to 
the jurisdiction, to decide, as a court, that 
the President had no lawful authority to 
nominate the judges thereof severally to the 
Senate, and that the Senate had no lawful 
authority to advise and consent to their ap- 
pointment, as to ask this Court to decide, as a 
court, that the order of the President of the 
United States constituting it a tribunal for 
the sole purpose of this trial was not only 
without authority of law, but against and in 
violation of law. If this Court is not a law- 
ful tribunal, it has no existence, and can no 
more speak as a court than the dead, much 
less pronounce the judgment required at its 
hands, that it is not a court, and that the Pres- 
ident of the United States, in constituting it 
such to try the question upon the charge and 
specification preferred, has transcended his 
authority, and violated his oath of office. 
Before passing from the consideration of the 
proposition of the learned Senator, that this is 
not a Court, it is fit that I should notice that 
another of the counsel for the accused (Mr. 
Ewing) has also advanced the same opinion, 
certainly with more directness and candor, and 
without any qualification. His statement is, 
“You,” gentlemen, “are no court under the 
Constitution.” This remark of the gentleman 
can not fail to excite surprise, when it is remem- 
bered that the gentleman, not many months ARGUMENT OF JOHN A. BINGHAM. 
355 
responsibility awaiting all such usurpations of 
judicial authority, that he hiihself shall be 
subjected to the same stern judgment which he 
invokes against others—that, in short, he shall 
be drawn and quartered for inflicting the ex- 
treme penalties of the law upon citizens of the 
United States in violation of the Constitution 
and laws of his country ? I trust that his error 
of judgment in pronouncing this military juris- 
diction a usurpation and violation of the Con- 
stitution may not rise up in judgment to con- 
demn him, and that he may never be subjected 
to pains and penalties for having done his duty 
heretofore in exercising this rightful authority, 
and in bringing to judgment those who con- 
spired against the lives and liberties of the 
people. 
Here I might leave this question, committing 
it to the charitable speeches of men, but for the 
fact that the learned counsel has been more 
careful in his extraordinary argument to de- 
nounce the President as a usurper than to show 
how the Court could possibly decide that it has 
no judicial existence, and yet that it has judi- 
cial existence. 
or arrested by the Executive power. Let the 
people decide this question; and in doing so, 
let them pass upon the action of the Senator as 
well as upon the action of those whom he so ar- 
rogantly arraigns. His plea in behalf of an 
expiring and shattered rebellion is a fit, subject 
for public consideration and for public con- 
demnation. 
Let that people also note, that while the learned 
gentleman (Mr. Johnson), as a volunteer, with- 
out pay, thus condemns as a usurpation the 
means employed so effectually to suppress this 
gigantic insurrection, the New York Netvs, 
whose proprietor, Benjamin Wood, is shown by 
the testimony upon your record to have received 
from the agents of the rebellion twenty-five 
thousand dollars, rushes into the lists to cham- 
pion the cause of the rebellion, its aiders and 
abettors, by following to the letter his colleague 
(Mr. Johnson), and with greater plainness of 
speech, and a fervor intensified, doubtless, by 
the twenty-five thousand dollars received, and 
the hope of more, denounces the Court as a 
usurpation and threatens the members with the 
consequences! 
The argument of the gentleman, to which the 
Court has listened so patiently and so long, is but 
an attempt to show that it is unconstitutional 
for the Government of the United States to arrest 
upon military order and try before military tri- 
bunals and punish upon conviction, in accord- 
ance with the laws of war and the usages of 
nations, all criminal offenders acting in aid of 
the existing rebellion. It does seem to me that 
the speech in its tone and temper is the same as 
that which the country has heard for the last 
four years uttered by the armed rebels them- 
selves and by their apologists, averring that it 
was unconstitutional for the Government of the 
United States to defend by arms its own right- 
ful authority and the supremacy of its laws. 
It is as clearly the right of the republic to live 
and to defend its life until it forfeits that right 
by crime, as it is the right of the individual to 
live so long as God gives him life, unless he for- 
feits that right by crime. I make no argument 
to support this proposition. Who is there here 
or elsewhere to cast the reproach upon my coun- 
try that for her crimes she must die ? Young- 
est born of the nations ! is she not immortal by 
all the dread memories of the past—by that sub- 
lime and voluntary sacrifice of the present, in 
which the bravest and noblest of her sons have 
laid down their lives that she might live, giving 
their serene brows to the dust of the grave, and 
lifting their hands for the last time amidst the 
consuming fires of battle! I assume, for the 
purposes of this argument, that self-defense is 
as csearly the right of nations as it is the ac- 
knowledged right of men, and that the Ameri- 
can people may do in the defense and mainten- 
ance of their own rightful authority against or- 
ganized armed rebels, their aiders and abettors, 
whatever free and independent nations any- 
where upon this globe, in time of war, may of 
right do. 
All this is substantially denied by the gentle- 
man in the remarkable argument which he has 
here made, 'i here is nothing further from my 
purpose than to do injustice to the learned gen- 
A representative of the people and of the 
rights of the people before this Court, by the 
appointment of the President, and which ap- 
pointment was neither sought by me or desired, 
I can not allow all that has here been said by 
way of denunciation of the murdered President 
and his successor to pass unnoticed. This has 
been made the occasion by the learned counsel, 
Mr. Johnson, to volunteer, not to defend the 
accused, Mary E. Surratt, not to make a judi- 
cial argument in her behalf, but to make a 
political harangue, a partisan speech against 
his Government and country, and thereby swell 
the cry of the armed legions of sedition and 
rebellion that but yesterday shook the heavens 
with their infernal enginery of treason and 
filled the habitations of the people with death. 
As the law forbids a Senator of the United 
States to receive compensation, or fee, for de- 
fending, in cases before civil or military com- 
missions, the gentleman volunteers to make a 
speech before this Court, in whicli he denounces 
the action of the Executive Department in pro- 
claiming and executing martial law against 
rebels in arms, their aiders and abettors, as a 
usurpation and a tyranny. I deem it my duty 
to reply to this denunciation, not for the pur- 
pose of presenting thereby any question for the 
decision of this Court, for I have shown that 
the argument of the gentleman presents no 
question for its decision as a Court, but to repel, 
as far as I may be able, the unjust aspersion 
attempted to be cast upon the memory of our 
dead President, and upon the official conduct of 
his successor. 
I propose now to answer fully all that the 
gentleman (Mr. Johnson) has said of the want 
of jurisdiction in this Court, and of the alleged 
Usurpation and tyranny of the Executive, that 
the enlightened public opinion to which he ap- 
peals may decide whether all this denunciation 
is just—whether indeed conspiring against the 
yhole people, and confederation and agreement 
aid of insurrection to murder all the execu- 
tive officers of the government, can not be checked 356 
THE CONSPIRACY TRIAL. 
tleman or to Ms elaborate and ingenious argu- 
ment. To justify what I have already said, I 
may be permitted here to remind the Court that 
nothing is said by the counsel touching the con- 
duct of the accused, Mary E. Surratt, as shown 
by the testimony; that he makes confession at 
•the end of his arraignment of the Government 
and country, that he has not made such argu- 
ment, and that he leaves it to be made by her 
other counsel. He does take care, however, to 
arraign the country and the Government for con- 
ducting a trial with closed doors and before a 
secret tribunal, and compares the proceedings of 
this Court to the Spanish Inquisition, using the 
strongest words at his command to intensify the 
horror which he supposes his announcement will 
excite throughout the civilized world. 
Was this dealing fairly by this Govern- 
ment? Was there anything in the conduct of 
the proceedings here that justified any such 
remark? Has this been a secret trial? Has 
it not been conducted in open day, in the 
presence of the accused, and in the presence 
of seven gentlemen learned in the law, who 
appeared from day to day as their counsel? 
Were they not informed of the accusation 
against them ? Were they deprived of the 
right of challenge? Was it not secured to 
them by law, and were they not asked to ex- 
ercise it? Has any part of the evidence been 
suppressed? Have not all the proceedings 
been published to the world ? What, then, 
was done, or intended to be done, by the Gov- 
ernment, which justifies this clamor about a 
Spanish Inquisition ? 
That a people assailed by organized treason 
over an extent of territory half as large as the 
continent of Europe, and assailed in their 
very capital by secret asSassins banded to- 
gether and hired to do the work of murder by 
the instigation of these conspirators, may not 
be permitted to make inquiry, even with 
closed doors, touching the nature and extent 
of the organization, ought not to be asserted 
by any gentleman who makes the least pre- 
tensions to any knowledge of the law, either 
common, civil or military. Who does not 
know that at the common law all inquisition 
touching crimes and misdemeanors, prepara- 
tory to indictment by the grand inquest of the 
State, is made with closed doors ? 
In this trial, no parties accused, nor their 
counsel, nor the reporters of this Court, were 
at any time excluded from its deliberations 
when any testimony was being taken; nor 
has there been any testimony taken in the 
case with closed doors, save that of a few wit- 
nesses who testified, not in regard to the ac- 
cused or either of them, but in respect to the 
traitors and conspirators not on trial, who 
were alleged to have incited this crime. Who 
is there to say that the American people, in 
time of armed rebellion and civil war, have 
not the right to make such an examination as 
secretly as they may deem necessary, either in 
a military or civil court ? 
I have said this, not by way of apology for 
anything the Government has done or at- 
tempted to do in the progress of this trial, but 
to expose the animus of the argument, and to 
repel the accusation against my country sent 
out to the world by the counsel. From any- 
thing that he has said, I have yet to learn that 
the American people have not the right to 
make their inquiries secretly, touching a gen- 
eral conspiracy in aid of an existing rebellion, 
which involves their nationality and the peace 
and security of all. 
The gentleman then enters into a learned 
argumentfor thepurpose of showingthat, by the 
Constitution, the people of the United States 
can not, in war or in peace, subject any per- 
son to trial before a military tribunal, what- 
ever may be his crime or offense, unless such 
person be in the military or naval service of 
the United States. The conduct of this argu- 
ment is as remarkable as its assaults upon the 
Government are unwarranted, and its insinu- 
ations about the revival of the inquisition and 
secret trials are inexcusable. The Court will 
notice that the argument, from the beginning 
almost to its conclusion, insists that no per- 
son is liable to be tried by military or martial 
law before a military tribunal, save those in 
the land and naval service of the United 
States. I repeat, the conduct of this argu- 
ment of the gentleman is remarkable. As 
an instance, I ask the attention, not only 
of this Court, but of that public whom he has 
ventured to address in this tone and temper, 
to the authority of the distinguished Chancel- 
lor Kent, whose great name the counsel has 
endeavored to press into his service in sup- 
port of his general proposition, that no per- 
son save those in the military or naval service 
of the United States is liable to be tried for 
any crime whatever, either in peace or in war, 
before a military tribunal. 
The language of the gentleman, after citing 
the provision of the Constitution, “that no 
person shall be held to answer for a capital or 
otherwise infamous crime unless on a pre- 
sentment or indictment of a grand jury, ex- 
cept in cases arising in the land or naval 
forces, or in the militia, when in actual ser- 
vice in time of Avar or public danger,” is, “ that 
this exception is designed to leave in force, 
not to enlarge, the power vested in Congress 
by the original Constitution to make rules for 
the government and regulation of the land 
and naval forces; that the land or naval 
forces are the terms used in both, have the 
same meaning, and until lately have been 
supposed by every commentator and judge to 
exclude from military jurisdiction ofl'enses 
committed by citizens not belonging to such 
forces.” The learned gentleman then adds: 
“Kent, in a note to his Ist Commentaries, 84b 
states, and with accuracy, that ‘military and 
naval crimes and offenses, committed while 
the party is attached to and under the imme- 
diate authority of the army and navy of the 
United States, and in actual service, are not 
cognizable under the common-law jurisdiction 
of the courts of the United States.’ ” I ask 
this Court to bear in mind that this is the 
only passage which he quotes from this note 
of Kent in his argument, and that no man 
possessed of common sense, however destitute 
j he may be of the exact and varied learninglll ARGUMENT OF JOHN A. BINGHAM, 
the law to which the gentleman may right- 
fully lay claim, can for a moment entertain 
the opinion that the distinguished chancellor 
of New York, in the passage just cited, inti- 
mates any such thing as the counsel asserts, 
that the Constitution excludes from military 
jurisdiction offenses committed by citizens not 
belonging to the land or naval forces. 
Who can fail to see that Chancellor Kent, 
by the passage cited, only decides that mili- 
tary and naval crimes and offenses committed 
by a party attached to and under the immediate 
authority of the army and navy of the United 
States, and in actual service, are not cognizable 
under the common-lawjurisdiction of the courts 
of the United States ? He only says they arc not 
cognizable under its common-law jurisdic- 
tion; but by that he does not say or intimate, 
what is attempted to be said by the counsel 
for him, that “ all crimes committed by citi- 
zens are by the Constitution excluded from 
military jurisdiction,” and that the perpetra- 
tors of them can under no circumstances be 
tried before military tribunals. Yet the 
counsel ventures to proceed, starting upon 
this passage quoted from Kent, to say that, 
“ according to this great authority, every other 
class of persons and every other species of 
offenses are within the jurisdiction of the 
civil courts, and entitled to the protection of 
the proceeding by presentment or indictment 
and the public trial in such a court.” 
Whatever that great authority may have 
said elsewhere, it is very doubtful whether any 
candid man in America will be able to come to 
the very learned and astute conclusion that 
Chancellor Kent has so stated in the note or 
any part of the note which the gentleman has 
just cited. If he has said it elsewhere, it is for 
the gentleman, if he relies upon Kent for au- 
thority, to produce the passage. But was it 
fair treatment of this “ great authority ”—was 
it not taking an unwarrantable privilege with 
the distinguished chancellor and his great work, 
the enduring monument of his learning and 
genius, to so mutilate the note referred to, as 
might leave the gentleman at liberty to make 
his deductions and assertions under cover of 
the great name of the New York chancellor, to 
suit the emergency of his case, by omitting the 
following passage, which occurs in the same 
note, and absolutely excludes the conclusion so 
defiantly put forth by the counsel to support 
his argument? In that note Chancellor Kent 
says: 
rebellion before military tribunals, and subject 
them, according to the laws of war and the 
usages of nations, to just punishment for their 
great crimes, it has been made clear from what 
I have already stated, that he has been emi- 
nently successful in mutilating this beautiful 
production of that great mind; which act of 
mutilation, every one knows, is violative alike 
of the laws of peace and war. Even in war 
the divine creations of art and the immortal 
productions of genius and learning are spared. 
In the same spirit, and it seems to me with 
the same unfairness as that just noted, the 
learned gentleman has very adroitly pressed 
into his service, by an extract from the auto- 
biography of the war-worn veteran and hero, 
General Scott, the names of the late Secretary 
of War, Mr. Marcy, and the learned ex-Attor- 
ney-General, Mr. Cushing. This adroit per- 
formance is achieved in this way; after stat- 
ing the fact that General Scott in Mexico pro- 
claimed martial law for the trial and punish- 
ment by military tribunals of persons guilty 
of “assassination, murder and poisoning,” the 
gehtleman proceeds to quote from the Autobi- 
ography, “that this order, when handed to the 
then Secretary of War (Mr. Marcy) for his 
approval, 1 a startle at the title (martial law 
order) was the only comment he then or ever 
made on the subject,’ and that it was ‘soon si- 
lently returned as too explosive for safe hand- 
ling.’ ‘ A little later (he adds) the Attorney- 
General (Mr. Cushing) called and asked for a 
copy, and the law officer of the government, 
whose business it is to speak on all such mat- 
ters, was stricken with legal dumbness.’ ” There- 
upon the learned gentleman proceeds to say : 
“How much more startled and more paralyzed 
would these great men have been had they been 
consulted on such a commission as this! A 
commission, not to sit in another country, and 
to try offenses not provided for in any law of 
the United States, civil or military, then in 
force, but in their own country, and in a part 
of it where there are laws providing for their 
trial and punishment, and civil courts clothed 
with ample powers for both, and in the daily 
and undisturbed exercise of their jurisdiction.” 
I think I may safely say, without stopping to 
make any special references, that the official 
career of the late Secretary of War (Mr. Mar- 
cy) gave no indication that he ever doubted or 
denied the constitutional power of the Ameri- 
can people, acting through their duly consti- 
tuted agents, to do any act justified by the laws 
ot war, for the suppression of a rebellion or to 
repel invasion. Certainly there is nothing in 
this extract from the Autobiography which jus- 
tifies any such conclusion. He was startled, 
we are told. It may have been as much the 
admiration he had for the boldness and wis- 
dom of the conqueror of Mexico as any abhor- 
rence he had for the trial and punishment of 
“assassins, poisoners and murderers,” accord- 
ing to the laws and usages of war. 
But the official utterances of the ex-Attorney- 
General, Cushing, with which the gentleman 
doubtless was familiar when he prepared this 
argument, by no means justify the attempt 
here made to quote him as authority against 
“ Military law is a system of regulations for 
the government of the armies in the service of 
the United States, authorized by the act of 
Congress of April 10, 1806, known as the Ar- 
ticles of War, and naval law is a similar sys- 
tem for the government of the navy, under 
the act of Congress of April 23, 1800. But 
martial law is quite a distinct thing, and is 
founded upon paramount necessity, and pro- 
claimed by a military chief." 
However unsuccessful, after this exposure, 
the gentleman appears in maintaining his mon- 
strous proposition, that the American people 
;>re by their own Constitution forbidden to try 
the aiders and abettors of armed traitors and 358 
THE CONSPIRACY TRIAL. 
the proclamation and enforcement of martial 
law in time of rebellion and civil war. That 
distinguished man, not second in legal attain- 
ments to any who have held that position, has 
left an official opinion of fecord touching this 
subject. Referring to what is said by Sir 
Mathew Hale, in his History of the Common 
Law, concerning martial law, wherein he lim- 
its it, as the gentleman has seemed by the 
whole drift of his argument desirous of doing, 
and says that it is “not in truth and in reality 
law, but something indulged rather than al- 
lowed as a law—the necessity of government, 
order and discipline in an army," Mr. Cushing 
makes this just criticism: “This proposition 
is a mere composite blunder, a total misappre- 
hension of the matter. It confounds martial 
law and law military; it ascribes to the former 
the uses of the latter; it erroneously assumes 
that the government of a body of troops is a 
necessity more than of a body of civilians or 
citizens. It confounds and confuses all the 
relations of the subject, and is an apt illustra- 
tion of the incompleteness of the notions of the 
common-law jurists of England in regard to 
matters not comprehended in that limited 
branch of legal science. * 0 0 Military 
law, it is now perfectly understood in England, 
is a branch of the law of the land, applicable 
only to certain acts of a particular class of 
persons, and administered by special tribunals; 
but neither in that nor in any other respect 
essentially differing as to foundation in consti- 
tutional reason from admiralty, ecclesiastical 
or indeed chancery and common law. * * 
It is the system of rules for the government of 
the army and navy established by successive 
acts of Parliament. * * * * ® 
Martial law, as exercised in any country by 
the commander of a foreign army, is an ele- 
ment of the jus belli. 
“It is incidental to the state of solemn war, 
and appertains to the law of nations. * * 
Thus, while the armies of the United States oc- 
cupied different provinces of the Mexican re- 
public, the respective commanders were not 
limited in authority by any local law. They 
allowed, or rather required, the magistrates of 
the country, municipal or judicial, to continue 
to administer the laws of the country among 
their countrymen; but in subjection, always, 
to the military power, which acted summarily 
and according to discretion, when the bellige- 
rent interests of the conqueror required it, and 
which exercised jurisdiction, either summarily 
or by means of military commissions for the 
protection or the punishment of citizens of the 
United States in Mexico. Opinions of Attor- 
neys- General, vol. viii, 366-369. 
Mr. Cushing says, “ That, it would seem, 
was one of the forms of martial law;” but he 
adds, that such an example of martial law ad- 
ministered by a foreign army in the enemy’s 
country “does not enlighten us in regard to 
the question of martial law in one’s own coun- 
try, and as administered by its military com- 
manders. That is a case which the law of na- 
tions does not reach. Its regulation is of the 
domestic resort of the organic laws of the 
country itself, and regarding which, as it hap- 
pens, there is no definite or explicit legislation 
in the United States, as there is none in Eng- 
land. 
“ Accordingly, in England, as we have seen, 
Earl Grey assumes that when martial law ex- 
ists it has no legal origin, but is a mere fact of 
necessity, to he legalized afterward by a bill 
of indemnity, if there be occasion. lam not 
prepared to say that, under existing laws, such 
may not also be the case in the United States." 
Ibid., 370. 
After such a statement, wherein ex-Attor- 
ney-General Cushing very clearly recognizes 
the right of this Government, as also of Eng- 
land, to employ martial law as a means of de- 
fense in a time of war, whether domestic or 
foreign, he will be as much surprised when he 
reads the argument of the learned gentleman 
wherein he is described as being struck with 
legal dumbness at the mere mention of proclaim- 
ing martial law, and its enforcement by the 
commander of our army in Mexico, as the late 
Secretary of War was startled with even the 
mention of its title. 
Even some of the reasons given, and certain- 
ly the power exercised by the veteran hero him- 
self, would seem to be in direct conflict with 
the propositions of the learned gentleman. 
The Lieutenant-General says, he “excludes 
from his order cases already cognizable by 
court-martial, and limits it to cases not pro- 
vided for in the act of Congress establishing 
rules and articles for the government of the 
armies of the United States." Has not the 
gentleman who attempts to press General 
Scott into his service argued and insisted upon 
it, that the commander of the army can not sub- 
ject the soldiers under his command to any 
control or punishment whatever, save that 
which is provided for in the articles ? 
It will not do, in order to sustain the gen- 
tleman’s hypothesis, to say that these provi- 
sions of the Constitution, by which he attempts 
to fetter the power of the people to punish 
such offenses in time of war within the terri- 
tory of the United States, may be disregarded 
by an officer of the United States in command 
of its armies, in the trial and punishment of 
its soldiers in a foreign war. The law of the 
United States for the government of its own 
armies follows the flag upon every sea and in 
every land. 
The truth is, that the right of the people to 
proclaim and execute martial law is a neces- 
sary incident of war, and this was the right 
exercised, and rightfully exercised, by Lieu- 
tenant-General Scott in Mexico. It was what 
Earl Grey has justly said was a “fact of ne- 
cessity," and I may add, an act as clearly au- 
thorized as was the act of fighting the enemy 
when they appeared before him. 
In making this exception, the Lieutenant- 
General followed the rule recognized by the 
American authorities on military law, 
which it is declared that “many crimes com- 
mitted even by military officers, enlisted men, 
or camp retainers, can not be tried under the 
rules and articles of war. Military Com- 
missions must be resorted to for such cases, 
and these commissions should be ordered by AKGUMENT OF JOHN A. BINGHAM. 
359 
the same authority, be constituted in a simi- 
lar manner, and their proceedings be conduc- 
ted according to the same general rules as 
general courts-martial.” Benet, 15. 
There remain for me to notice, at present, 
two other points in this extraordinary speech : 
first, that martial law does not warrant a 
military commission for the trial of military 
offenses—that is, offenses committed in time 
of war in the interests of the public enemy, 
and by concert and agreement with the enemy ; 
and second, that martial law does not prevail 
in the United States, and has never been de- 
clared by any competent authority. 
It is not necessary, as the gentleman him- 
self has declined to argue the first point— 
whether martial law authorizes the organi- 
zation of military commissions by order of 
the Commander-in-Chief to try such offenses, 
that I should say more than that the authority 
just cited by me shows that such commissions 
are authorized under martial law, and are 
created by the commander for the trial of all 
such offenses, when their punishment by court- 
martial is not provided for by the express 
statute law of the country. 
The second point—that martial law has not 
been declared by any competent authority, is 
an arraignment of the late murdered Presi- 
dent of the United States for his proclamation 
of September 24, 1862, declaring martial law 
throughout the United Stales; and of which, 
in Lawrence's edition of Wheaton on Inter- 
national Law, p. 522, it is said: “ Whatever 
may be the inference to be deduced, either 
from Constitutional or International Law, or 
from the usages of European governments, as 
to the legitimate depository of the power of 
suspending the writ of habeas corpus, the vir- 
tual abrogation of the judiciary in cases 
affecting individual liberty, and the establish- 
ment as matter .of fact in the United States, 
by the Executive alone, of martial law, not 
merely in the insurrectionary districts, or in 
cases of military occupancy, but throughout 
the entire Union, and not temporarily, but as 
an institution as permanent as the insurrec- 
tion on which it professes to be based, and 
capable on the same principle of being revived 
in all cases of foreign as well as civil war, 
are placed beyond question by the President’s 
proclamation of September 24, 1862.” That 
proclamation is as follows : 
listments, resisting militia drafts, or guiltj 
of any disloyal practice, affording aid and 
comfort to rebels, against the authority of the 
United States, shall be subject to martial law, 
and liable to trial and punishment by courts- 
martial or military commission. 
“Second. That the writ of habeas corpus is 
suspended in respect to all persons arrested, 
or who are now, or hereafter during the rebel- 
lion shall be, imprisoned in any fort, camp, 
arsenal, military prison, or other place of con- 
finement, by any military authority, or by the 
sentence of any court-martial or military 
commission. 
“In witness whereof, I have hereunto set 
my hand, and caused the seal of the United 
States to be affixed. 
“Done at the city of Washington, this 24th 
day of September, A. D. 1862, and of the inde- 
pendence of the United States the eighty- 
seventh. “ABKAHAM LINCOLN. 
“By the President: 
“William H. Seward, Secretary of State.” 
This proclamation is duly certified from the 
AVar Department to be in full force and not 
revoked, and is evidence of record in this 
case ; and but a few days since a proclamation 
of the President, of which this Court will take 
notice, declares that the same remains in full 
force. 
It has been said by another of the counsel 
for the accused (Mr. Stone) in his argument, 
that admitting its validity, the proclamation 
ceases to have effect with the insurrection, and 
is terminated by it. It is true the proclama- 
tion of martial law only continues during the 
insurrection; but inasmuch as the question 
of the existence of an insurrection is a polit- 
ical question, the decision of which belongs 
exclusively to the political department of the 
Government, that department alone can declare 
its existence, and that department alone can 
declare its termination, and by the action of 
the political department of the Government 
every judicial tribunal in the land is concluded 
and bound. That question has been settled 
for fifty years in this country by the Supreme 
Court of the United States: First, in the case 
of Brown vs. the United States, 8 Oranch; also 
in the prize cases, 2 Black, 641. Nothing more, 
therefore, need bo said upon this question of 
an existing insurrection than this ; The political 
department of the Government has heretofore 
proclaimed an insurrection; that department 
has not yet declared tne insurrection ended, 
and the event on the 14th of April, which 
robbed the people of their chosen Executive, 
and clothed this land in mourning, bore sad 
bu,t overwhelming witness to the fact that the 
rebellion is not ended. The fact of the insur- 
rection is not an open question to be tried or 
settled by parol, either in a military tribunal 
or in a civil court. 
“BY THE PRESIDENT OF THE UNITED STATES 01 
“Whereas, it has become necessary to call 
into service not only volunteers, but also por- 
tions of the militia of the States, by a draft, 
in order to suppress the insurrection existing 
in the United States, and disloyal persons are 
not adequately restrained by the ordinary pro- 
cesses of law from hindering this measure, 
and from giving aid and comfort in various 
Ways to the insurrection : Now, therefore, be 
it ordered, that during the existing insurrec- 
tion, and as a necessary means for suppress- 
ing the same, all rebels and insurgents, their 
aiders and abettors, within the United States, 
and all persons discouraging volunteer en- 
AMERICA A PROCLAMATION. 
The declaration of the learned gentleman 
who opened the defense (Mr. Johnson), that 
martial law has never been declared by any 
competent authority, as I have already said, 
arraigns Mr. Lincoln for a usurpation of power. 
Does the gentleman mean to say that, until 
Congress authorizes it, the President can not 360 
THE CONSPIRACY TRIAL. 
proclaim and enforce martial law in the sup- 
pression of armed and organized rebellion? 
Or does he only affirm that this act of the late 
President is a usurpation? 
The proclamation of martial law in 1862 a 
usurpation! though it armed the people in 
that dark hour of trial with the means of 
defense against traitorous and secret ene- 
mies in cvCry State and district of the coun- 
try; though by its use some of the guilty were 
brought to swift and just judgment, and others 
deterred from crime or driven to flight; though 
by this means the innocent and defenseless 
were protected ; though by this means the city 
of the gentleman’s residence was saved from 
the violence and pillage of the mob and the 
torch of the incendiary. But, says the gen- 
tleman, it was a usurpation, forbidden by the 
laws of the land! 
every act done by a subordinate officer, in 
obedience to such orders, is equally justifiable. 
The law contemplates that, under such cir- 
cumstances, orders shall be given to carry the 
power into effect; and it can not, therefore, be 
a correct inference that any other person has 
a just right to disobey them. The law 
does not provide for any appeal from the judg- 
ment of the President, or for any right in sub- 
ordinate officers to review his decision, and in 
effect defeat it. Whenever a statute gives a dis- 
cretionary power to any person, to be exercised 
by him upon his own opinion of certain facts, 
it is a sound rule of construction, that the 
statute constitutes him the sole and exclusive 
judge of the existence of those facts.” 12 
Wheaton, 31. 
In the light of these decisions, it must be 
clear to every mind that the question of the 
existence of an insurrection, and the necessity 
of calling into requisition for its suppression 
both the militia of the States, and the army 
and navy of the United States, and of pro- 
claiming martial law, which is an essential 
condition of war, whether foreign or do- 
mestic, must rest with the officer of the Gov- 
ernment who is charged by the express terms 
of the Constitution with the performance of 
this great duty for the common defense and the 
execution of the laws of the Union. 
The same was said of the proclamations of 
blockade, issued April 19 and 27, 1861, which 
declared a blockade of the ports of the in- 
surgent States, and that all vessels violating 
the same were subjects of capture, and, to- 
gether with the cargo, to be condemned as 
prize. Inasmuch as Congress had not then 
recognized the fact of civil war, these procla- 
mations were denounced as void. The Supreme 
Court decided otherwise, and affirmed the 
power of the Executive thus to subject prop- 
erty on the seas to seizure and condemnation. 
I read from that decision : 
“ The Constitution confers upon the Presi- 
dent the whole executive power; he is bound 
to take care that the laws be faithfully exe- 
cuted ; he is Commander-in-Chief of the army 
and navy of the United States, and of the 
militia of the several States when called into 
the actual service of the United States. * * 
Whether the President, in fulfilling his duties 
■as Commander-in-Chief in suppressing an in- 
surrection, has met with such armed hostile 
resistance, and a civil war of such alarming 
proportions as will compel him to accord to 
them the character of belligerents, is a ques- 
tion to be decided by him, and this Court must 
be governed by the decisions and acts of the 
political department of the Government to 
which this power was intrusted. He must de- 
termine what degree of force the crisis de- 
mands. 
But it is further insisted by the gentleman 
in this argument, that Congress has not author- 
ized the establishment of military commissions, 
which are essential to the judicial administra- 
tion of martial law, and the punishment of 
crimes committed during the existence of a civil 
war, and especially, that such commissions are 
not so authorized to try persons other than those 
in the military or naval service of the United 
States, or in the militia of the several States, 
when in the actual service of the United States. 
The gentleman's argument assuredly destroys 
itself, for he insists that the Congress, as the 
legislative department of the government, can 
pass no law which, either in peace or war, can 
constitutionally subject any citizen not in the 
land or naval forces, to trial for crime before a 
military tribunal, or otherwise than by a jury 
in the civil courts. 
Why does the learned gentleman now tell us 
that Congress has not authorized this to be done, 
after declaring just as stoutly that by the fifth 
and sixth amendments to the Constitution no 
such military tribunals can be established for 
the trial of any person not in the military or 
naval service of the United States, or in the mi- 
litia, when in actual service, for the commission 
of any crime whatever in time of war or insurrec- 
tion ? It ought to have occurred to the gentleman 
when commenting upon the exception in the fifth 
article of the Constitution, that there was a reason 
for it very different from that which he saw fit 
to assign, and that reason, manifestly upon the 
face of the Constitution itself, was, that by the 
eighth section of the first article, it is expressly 
provided that Congress shall have power to 
make rules for the government of the land and 
naval forces, and to provide for organizing; 
arming and disciplining the militia, and tor 
governing such part of them as may be employed 
“The proclamation of blockade is itself of- 
ficial and conclusive evidence to the Court that 
a state of war existed which demanded and 
authorized a recourse to such a measure under 
the circumstances peculiar to the case.” 2 
Black, 670. 
It has been solemnly ruled by the same tribu- 
nal, in an earlier case, “that the power is con- 
fided to the Executive of the Union to deter- 
mine when it is necessary to call out the 
militia of the States to repel invasion,” as 
follows: “That he is necessarily constituted 
the judge of the existence of the exigency in 
the first instance, and is bound to act according 
to his belief of the facts. If he does so act, 
and decides to call forth the militia, his orders 
for this purpose are in strict conformity with 
the provisions of the law; and it would seem 
to follow as a necessary consequence, that ARGUMENT OF JOHN A. BINGHAM. 
361 
in the service of the United States, and that, in- | 
Hsrnuch as military discipline and order are as | 
essential in an army in time of peace as in time 
of war, if the Constitution would leave this power 
to Congress in peace, it must make the excep- 
tion, so that rules and regulations for the gov- 
ernment of the array and navy should he ope- 
rative in time of peace as well as in time of war; 
because the provisions of the Constitution give 
the right of trial by jury in time of peace, in 
all criminal prosecutions by indictment, in terms 
embracing every human being that may be held 
to answer for crime in the United States; and 
therefore, if the eighth section of the first article 
was to remain in full force in time of peace, 
the exception must be made; and accordingly, 
the exception was made. But by the argument 
We have listened to, this Court is told, and the 
country is told, that in time of war—a war 
which involves in its dread issue the lives and 
interests of us all—the guarantees of the Con- 
stitution are in full force for the benefit of those 
who conspire with the enemy, creep into your 
camps, murder in cold blood, in the interests of 
the invader or insurgent, the Commander-in- 
Chief of your army, and secure to him the slow 
and weak provisions of the civil law, while the 
soldier, who may, when overcome by the de- 
mands of exhausted nature, which can not be 
resisted, have slept at his post, is subject to be 
tried upon the spot by a military tribunal and shot. 
The argument amounts to this; that as military 
courts and military trials of civilians in time of 
War are a usurpation and tyranny, and as soldiers 
are liable to such arrests and trial, Sergeant Cor- 
bett, who shot Booth, should be tried and executed 
by sentence of a military court; while Booth's co- 
conspirators and aiders should be saved from 
any such indignity as a military trial! I con- 
fess that I am too dull to comprehend the logic, 
the reason, or the sense of such a conclusion ! If 
there is any one entitled to this privilege of a 
civil trial, at a remote period, and by a jury of 
the District, in time of civil war, when the 
foundations of the Republic are rocking beneath 
the earthquake tread of armed rebellion, that 
man is the defender of the republic. It will 
never do to say, as has been said in this argu- 
ment, that the soldier is not liable to be tried in 
time of war by a military tribunal for any other 
offense than those prescribed in the rules and 
articles of war. To my mind, nothing can be 
clearer than that citizen and soldier alike, in 
time of civil or foreign war, after a proclamation 
°f martial law, are triable by military tribunals 
for all offenses of which they may be guilty, in 
the interests of, or in concert with, the enemy. 
These provisions, therefore, of your Constitu- 
tion for indictment and trial by jury in civil 
oourts of all crimes are, as I shall hereafter show, 
gilent and inoperative in time of war when the 
Public safety requires it. 
The argument to which I have thus been re- 
plying, as the Court will not fail to perceive, nor 
J-bat public to which the argument is addressed, 
is a labored attempt to establish the proposition, 
that, by the Constitution of the United States, 
the American people can not, even in a civil war 
the greatest the world has ever seen, employ 
martial law and military tribunals as a means | 
of successful!y asserting their authority, preserv- 
ing their nationality, and securing protection to 
the lives and property of all, and especially to 
the persons of those to whom they have com- 
mitted, officially, the great trust of maintaining 
the national authority. The gentleman says, 
with an air of perfect confidence, that he denies 
the jurisdiction of military tribunals for the 
trial of civilians in time of war, because nei- 
ther the Constitution nor laws justify, but on 
the contrary repudiate them, and that all the 
experience of the past is against it. I might 
content myself with saying that the practice of 
all nations is against the gentleman’s conclu- 
sion. The struggle for our national independ- 
ence was aided and prosecuted by military tri- 
bunals and martial law, as well as by arms. 
The contest for American nationality began 
with the establishment, very soon after the fir- 
ing of the first gun at Lexington, on the 19th 
day of April, 1775, of military tribunals and 
martial law. On the 30th of June, 1775, the 
Continental Congress provided that “ whosoever, 
belonging to the continental army, shall be convicted 
of holding correspondence with, or giving intel- 
ligence to the enemy, either indirectly or di- 
rectly, shall suffer such punishment as by a 
court-martial shall be ordered.” This was found 
not sufficient, inasmuch as it did not reach those 
civilians who, like certain civilians of our day, 
claim the protection of the civil law in time of 
war against military arrests and military trials 
for military crimes. Therefore, the same Con- 
gress, on the 7th of November, 1775, amended 
this provision by striking out the words “ be- 
longing to the continental army,” and adopting 
the article as follows: 
11 All persons convicted of holding a treacher- 
ous correspondence with, or giving intelligence 
to the enemy, shall suffer death, or such other 
punishment as a general court-martial shall 
think proper.” 
And on the 17th of June, 1776, the Congress 
added an additional rule: 
“That all persons, not members of, nor owing 
allegiance to, any of the United States of Amer- 
ica, who should be found lurking as spies in or 
about the fortifications or encampments of the 
armies of the United States, or any of them, 
shall suffer death, according to the law and 
usage of nations, by the sentence of a court- 
martial, or such other punishment as a court- 
martial shall direct.” 
Comprehensive as was this legislation, embrac- 
ing, as it did, soldiers, citizens and aliens, sub- 
jecting all alike to trial for their military 
crimes by the military tribunals of justice, ac- 
cording to the law and the usage of nations, 
it was found to be insufficient to meet that 
most dangerous of all crimes, committed in the 
interests of the enemy, by citizens, in time of 
war, the crime of conspiring together to assas- 
sinate, or seize and carry away, the soldiers and 
citizens who were loyal to the cause of the 
country. Therefore, on the 27th of February, 
1778, the Congress adopted the following reso- 
lution : 
“ Resolved, That whatever inhabitants of these 
States shall kill, or seize, or take, any loyal cit- 
izen or citizens thereof, and convey him, her, 362 
THE CONSPIRACY TRIAL. 
or them, to any place within the power of the 
enemy, or shall enter into any combination 
for such purpose, or attempt to carry the same 
into execution, or hath assisted or shall assist 
therein; or shall, by giving intelligence, acting 
as a guide, or, in any manner whatever, aid 
the enemy in the perpetration thereof, he shall 
suffer death, by the judgment of a court-mar- 
tial, as a traitor, assassin, or spy, if the offense 
be committed within seventy miles of the head- 
quarters of the grand or other armies of these 
States, where a general officer commands.” 
Journals of Congress, vol. 11, pp. 459, 460. 
So stood the law until the adoption of the 
Constitution of the United States. Every well- 
informed man knows that, at the time of the 
passage of these acts, the courts of justice, hav- 
ing cognizance of all crimes against persons, 
were open, in many of the States, and that, by 
their several constitutions and charters, which 
were then the supreme law for the punishment 
of crimes committed within their respective ter- 
ritorial limits, no man was liable to conviction 
but by the verdict of a jury. Take, for example, 
the provisions of the Constitution of North Car- 
olina, adopted on the 10th of November, 1776, 
and in full force at the time of the passage of 
the last resolution by Congress above cited, 
which provisions are as follows: 
“That no freeman shall be put to answer any 
criminal charge but by indictment, presentment 
or impeachment.” 
“ That no freeman shall be convicted of any 
crime but by the unanimous verdict of a jury 
of good and lawful men, in open court, as here- 
tofore used.” 
federate Congress I know was challenged, but 
only by men charged with the guilt of their 
country’s blood. 
Washington, the peerless, the stainless, and 
the just, with whom God walked through the 
night of that great trial, enforced this just and 
wise enactment upon all occasions On the 
80th of September, 1780, Joshua H. Smith, by 
the order of General Washington, was put upon 
his trial before a court-martial, convened in the 
State of New York, on the charge of there aid- 
ing and assisting Benedict Arnold, in a combi- 
nation with the enemy, to take, kill and seize 
such loyal citizens or soldiers of the United 
States as were in garrison at West Point. 
Smith objected to the jurisdiction, averring that 
he was a private citizen, not in the military or 
naval service, and, therefore, was only amena- 
ble to the civil authority of the State, whose 
constitution had guaranteed the right of trial 
by jury to all persons held to answer for crime. 
Chandler’s Criminal Trials, vol. 11, p. 187. The 
Constitution of New York, then in force, had so 
provided; but, notwithstanding that, the Court 
overruled the plea, held him to answer, and 
tried him. I repeat that, when Smith was thus 
tried by court-martial, the Constitution of New 
York as fully guaranteed trial by jury in the 
civil courts, to all civilians charged and held 
to answer for crimes within the limits of that 
State, as does the Constitution of the United 
States guarantee such trial within the limits of 
the District of Columbia. By the second of the 
Articles of Confederation each State retained 
“its sovereignty,” and every power, jurisdic- 
tion and right not expressly delegated to the 
United States in Congress assembled. By those 
Articles there was no express delegation of ju- 
dicial power; therefore, the States retained it 
fully. 
If the military courts, constituted by the 
commander of the army of the United States 
under the Confederation, who was appointed 
only by a resolution of the Congress, without 
any express grant of power to authorize it— 
his office not being created by the act of the 
people in their fundamental law—had jurisdic- 
tion in evei-y State to try and put to death 
“any inhabitant” thereof who should kill any 
loyal citizen, or enter into “any combination’ 
for any such purpose therein in time of war, not- 
withstanding the provisions of the Constitution 
and laws of such States, how can any man con- 
ceive that, under the Constitution of the 
United States, which is the Supreme law over 
every State, anything in the Constitution and 
laws of such State to the contrary not- 
withstanding, and the supreme law over every 
Territory of the Republic as well, the Com- 
mander-in-Chief of the army of the United 
States, who is made such by the Constitution, 
and, by its supreme authority, clothed with the 
power and charged with the duty of directing 
and controlling the whole military power ot 
the United States, in time of rebellion or i°' 
vasion, has not that authority ? 
I need not remind the Court that one of tb® 
marked 'differences between the Articles ot 
I Confederation and the Constitution of the 
• I United States was, that, under the Confedei’a' 
This was the law in 1778 in all the' States, 
and the provision for a trial by jury, every one 
knows, meant a jury of twelve men, impanneled 
and qualified to try the issue in a civil court. 
The conclusion is not to be avoided that these 
enactments of the Congress, under the confed- 
eration, set aside the trial by jury within the 
several States, and expressly provided for the 
trial, by court-martial, of “any of the inhab- 
itants” who, during the revolution, might, con- 
trary to the provisions of said law, and in aid 
of the public enemy, give them intelligence, or 
kill any loyal citizens of the United States, or 
enter into any combination to kill or carry 
them away. How comes it, if the argument of 
the counsel be true, that this enactment was 
passed by the Congress of 1778, when the con- 
stitutions of the several States, at that day, as 
fully guaranteed trial by jury to every person 
held to answer for a crime, as docs the Consti- 
tution of the United States at this hour? Not- 
withstanding this fact, I have yet to learn that 
any loyal man ever challenged, during all the 
period of our conflict for independence and na- 
tionality, the validity of that law for the trial, 
for military offenses, by military tribunals, of 
all offenders, as the law, not of peace, but of 
war, and absolutely essential to the prosecution 
of Avar. I maybe pardoned for saying that it 
is the accepted common law of nations that 
martial law is, at all times, and everywhere, 
essential to the successful prosecution of war, 
whether it be a civil or a foreign war. The va- 
lidity of these acts of the Continental and Con- AHGUMENT OF JOHN A. BINGHAM. 
363 
tion, the Congress was the sole depository of 
all federal power. The Congress of the Con- 
federation, said Madison, held “ the command 
of the army.” Fed., No. 38. Has the Con- 
stitution, which was ordained by the people the 
better “to insure domestic tranquillity and to 
provide for the common defense,” so fettered 
the great power of self-defense against armed 
insurrection or invasion that martial law, so 
essential in war, is forbidden by that great in- 
strument? I will yield to no man in rever- 
ence for or obedience to the Constitution of my 
country, esteeming it, as I do, a new evangel 
to the nations, embodying the democracy of the 
New Testament, the absolute equality of all 
men before the law, in respect of those rights 
of human nature which are the gift of God, 
and, therefore, as universal as the material 
structure of man. Can it be that this Consti- 
tution of ours, so divine in its spirit of justice, 
so beneficent in its results, so full of wisdom, 
and goodness, and truth, under which we be- 
came one people, a great and powerful nation- 
ality, has, in terms or by implication, denied 
to this people the power to crush armed rebel- 
lion by war, and to arrest and punish, during 
the existence of such rebellion, according to 
the laws of war and the usages of nations, se- 
cret conspirators who aid and abet the public 
enemy ? 
Here is a conspiracy, organized and prose- 
cuted by armed traitors and hired assassins, 
receiving the moral support of thousands in 
every State and district, who pronounced the 
war for the Union a failure, and your now 
murdered but immortal Commander-in-Chief a 
tyrant; the object of which conspiracy, as the 
testimony shows, was to aid the tottering rebel- 
lion which struck at the nation’s life. It is in 
evidence that Davis, Thompson, and others, 
chiefs in this rebellion, in aid of the same, 
agreed and conspired with others to poison the 
fountains of water which supply your commer- 
cial metropolis, and thereby murder its inhab- 
itants; to secretly deposit in the habitations of 
the people and in the ships in your harbors in- 
flammable materials, and thereby destroy them 
hy fire; to murder by the slow and consuming 
torture of famine your soldiers, captives in their 
hands; to import pestilence in infected clothes 
to be distributed in your capital and camps, 
and thereby murder the surviving heroes and 
defenders of the republic, who, standing by the 
holy graves of your unretuvning brave, proudly 
and defiantly challenge to honorable combat and 
open battle all public enemies, that their coun- 
try may live; and, finally, to crown this horrid 
catalogue of crime, this sum of all human 
atrocities, conspired, as charged upon your 
Record, with the accused and John Wilkes Booth 
and John H. Surratt, to kill and murder in 
J’our capital the executive officers of your Gov- 
ernment and the commander of your armies. 
When this conspiracy, entered into by these 
traitors, is revealed by its attempted execution, 
and the foul and brutal murder of your Presi- 
dent in the capital, you are told that it is uncon- 
stitutional, in order to arrest the further execu- 
tion of the conspiracy, to interpose the military 
Power of this government for the arrest, without 
civil process, of any of the parties thereto, and 
for their trial by a military tribunal of justice. 
If any such rule had obtained during our strug- 
gle for independence, we never would have been 
a nation. If any such rule had been adopted 
and acted upon now, during the tierce struggle 
of the past four years, no man can say that our 
nationality would have thus long survived. 
The whole people of the United States, by 
their Constitution, have created the office of 
President of the United Stages and Commander- 
in-Chief of the army and navy, and have vested, 
by the terms of that Constitution, in the person 
of the President and Commander-in-Chief, the 
power to enforce the execution of the laws, and 
preserve, protect, and defend the Constitution. 
The question may well be asked: If, as Com- 
mander-in-Chief, the President may not, in time 
of insurrection or war, proclaim and execute 
martial law, according to the usages of nations, 
how he can successfully perform the duties of 
his office—execute the laws, preserve the Con- 
stitution, suppress insurrection, and repel inva- 
sion ? 
Martial law and military tribunals are as es- 
sential to the successful prosecution of war as 
are men, and arms, and munitions. The Consti- 
tution of the United States has vested the power 
to declare war and raise armies and navies ex- 
clusively in the Congress, and the power to 
prosecute the war and command the army and 
navy exclusively in the President of the United 
States. As, under the Confederation, the com- 
mander of the army, appointed only by the 
Congress, was by the resolution of that Congress 
empowered to act as he might think proper for 
the good and welfare of the service, subject only 
to such restraints or orders as the Congress 
might give; so, under the Constitution, the 
President is, by the people who ordained that 
Constitution and declared him Commander-in- 
Chief of the army and navy, vested with full 
power to direct and control the army and navy 
of the United States, and employ all the forces 
necessary to preserve, protect, and defend the 
Constitution and execute the laws, as enjoined 
by his oath and the very letter of the Consti- 
tution, subject to no restriction or direction 
save such as Congress may from time to time 
prescribe. 
That these powers for the common defense, 
intrusted by the Constitution exclusively to 
the Congress and the President, are, in time 
ot civil war or foreign invasion, to be exer- 
cised without limitation or restraint, to the 
extent of the public necessity, and without 
any intervention of the Federal judiciary or 
of State constitutions or State laws, are facts 
in our history not open to question. 
The position is not to be answered by 
saying you make the American Congress 
thereby omnipotent, and clothe the American 
Executive with the asserted attribute of hered- 
itary monarchy—the king can do no wrong. 
Let the position be fairly stated—that the Con- 
gress and President, in war as in peace, are 
but the agents of the whole people, and that 
this unlimited power for the common defense 
against armed rebellion or foreign invasion is 
but the power of the people intrusted exclu- 364 
THE CONSPIRACY TRIAL. 
sively to the legislative and executive depart- 
ments as their agents, for any and every abuse 
of which these agents are directly responsible 
to the people—and the demagogue cry of an 
omnipotent Congress, and an executive in- 
vested with royal prerogatives, vanishes like 
the baseless fabric of a vision. If the Con- 
gress corruptly, or oppressively, or wantonly 
abuse this great trust, the people, by the irre- 
sistible power of the ballot, hurl them from 
place. If the President so abuse the trust, the 
people by their Congress withhold supplies, or 
by impeachment transfer the trust to better 
hands, strip him of the franchises of citizen- 
ship and of office, and declare him forever dis- 
qualified to hold any position of honor, trust, 
or power under the government of his 
country. 
great men who formed and fashioned the wise 
and majestic fabric of American government. 
Some of the citations which I deemed it my 
duty at that time to make, and some of which 
I now re-produce, have, I am plsased to say, 
found a wider circulation in books that have 
since been published by others. 
When the Constitution was on trial for its 
deliverance before the people of the several 
States, its ratification was opposed on the 
ground that it conferred upon Congress and 
the Executive unlimited power for the common 
defense. To all such objectors—and they were 
numerous in every State—that great man, Al- 
exander Hamilton, whose words will live as 
long as our language lives, speaking to the lis- 
tening people of all the States, and urging 
them not to reject that matchless instrument 
which bore the name of Washington, said; 
“ The authorities essential to the care of the 
common defense are these : To raise armies; to 
build and equip fleets; to prescribe rules for 
the government of both ; to direct their opera- 
tions ;to provide for their support. These pow- 
ers ought to exist without limitation ; because 
it is impossible to foresee or define the extent 
and variety of national exigencies, and the 
correspondent extent and variety of the means 
which may be necessary to satisfy them. 
“ The circumstances that endanger the safety 
of nations are infinite; and for this reason no 
constitutional shackles can wisely be imposed 
on the power to which the care of it is com- 
mitted. * * * This power ought 
to be under the direction of the same councils 
which are appointed to preside over the com- 
mon defense. * » * It must be 
admitted, as a necessary consequence, that 
there can be no limitation of that authority 
which is to provide for the defense and pro- 
tection of the community, in any manner essen- 
tial to its efficacy; that is, any matter essen- 
tial to the formation, direction or support of 
the national forces.” 
I can understand very well why men should 
tremble at the exercise of this great power by 
a monarch whose person, by the Constitution 
of his realm, is inviolable, but I can not con- 
ceive how an American citizen, who has faith 
in the capacity of the whole people to govern 
themselves, should give himself any concern 
on the subject. Mr. Hallam, the distinguished 
author of the Constitutional History of England, 
has said: 
“ Kings love to display the divinity with 
which their flatterers invest them, in nothing 
so much as in the instantaneous execution of 
their will, and to stand revealed, as it were, in 
the storm and thunderbolt when their power 
breaks through the operation of secondary 
causes and awes a prostrate nation without 
the intervention of law.” 
How just are such words when applied to an 
irresponsible monarch! How absurd, when 
applied to a whole people, acting through 
their duly appointed agents, whose will, thus 
declared, is the supreme law, to awe into sub- 
mission and peace and obedience, not a pros- 
trate nation, but a prostrate rebellion! The 
same great author utters the fact which all 
history attests, when he says; 
“ It has been usual for all governments du- 
ring actual rebellion, to proclaim martial law 
for the suspension of civil jurisdiction; and this 
anomaly, I must admit,” he adds, “is very far 
from being less indispensable at such unhap- 
py seasons where the ordinary mode of trial 
is by jury, than where the right of decision 
resides in the court.” Const. Hist., vol. I, ch. 
6, p. 326. 
That the power to proclaim martial law and 
fully or partially suspend the civil jurisdic- 
tion, Federal and State, in time of rebellion or 
civil war, and punish by military tribunals all 
offenses committed in aid of the public enemy, 
is conferred upon Congress and the Executive, 
necessarily results from the unlimited grants 
of power for the common defense to which 1 
have already briefly referred. I may be par- 
doned for saying that this position is not as- 
sumed by me for the purposes of this occasion, 
but that early in the first year of this great 
struggle for our national life I proclaimed it 
as a representative of the people, under the ob- 
ligation of my oath, and, as I then believed, 
and still believe, upon the authority of the 
He adds the further remark : 
“ This is one of those truths which, to a cor- 
rect and unprejudiced mind, carries its own 
evidence along with it; and may be obscured, 
but can not be made plainer by argument or 
reasoning. It rests upon axioms as simple as 
they are universal—the means ought to be pro- 
portioned to the end; the persons from whose 
agency the attainment of any end is expected, 
ought to possess the means by which it is to 
be attained.” Federalist, No. 23. 
In the same great contest for the adoption of 
the Constitution, Madison, sometimes called the 
Father of the Constitution, said: 
“Is the power of declaring war necessary • 
No man will answer this question in the nega- 
tive. * * * Is the power of rais- 
ing armies and equipping fleets necessary- 
* * * It is involved in the power oi 
self-defense. * * * With wha 
color of propriety could the force necessary 
for defense .be limited by those who can no 
limit the force of offense ? * * * 
means of security can only be regulated by rh# 
means and the danger of attack. * w 
It is in vain to oppose constitutional barriei ARGUMENT OF JOHN A. BINGHAM. 
365 
to the impulse of self-preservation. It is worse 
than in vain, because it plants in the Consti- 
tution itself necessary usurpations of power.” 
Federalist, No. 41. 
With this construction, proclaimed both by 
the advocates and opponents of its ratifica- 
tion, the Constitution of the United States was 
accepted and adopted, and that construction 
has been followed and acted upon, by every 
department of the Government to this day. 
It was as well understood then in theory as 
it has since been illustrated in practice, that 
the judicial power, both Federal and State, had 
no voice and could exercise no authority in the 
conduct and prosecution of a war, except in 
subordination to the political department of 
the Government. The Constitution contains 
the significant provision, “The privilege of the 
Writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion 
the public safety may require it." 
prived of liberty and life “ without due process 
of law;” all enemies captured and held as 
prisoners of war are deprived of liberty “with- 
out due process of law;” all owners whose 
property is forcibly seized and appropriated in 
war are deprived of their property “without 
due process of law.” The Constitution recog- 
nizes the principle of common law, that every 
man’s house is his castle; that his home, the 
shelter of his wife and children, is his most 
sacred possession ; and has therefore specially 
provided, “ that no soldier shall in time of peace 
be quartered in any house, without the con- 
sent of its owner, nor in time of war, but in a 
manner to be prescribed by law [III Amend.] ; 
thereby declaring that, in time of war, Con- 
gress may by law authorize, as it has done, 
that without the consent and against the con- 
sent of the ownei’, the soldier may be quar- 
tered in any man’s house, and upon any man’s 
hearth. What I have said illustrates the pro- 
position, that in time of war the civil tribunals 
of justice are wholly or partially silent, as the 
public safety may require ; that the limitations 
and provisions of the Constitution in favor of 
life, liberty and property are therefore wholly 
or partially suspended. In this lam sustained 
by an authority second to none with intelli- 
gent American citizens. Mr. John Quincy 
Adams, than whom a purer man or a wiser 
statesman never ascended the chair of the 
Chief Magistracy in America, said in his place 
in the House of Representatives, in 1836, that: 
“ In the authority given to Congress by the 
Constitution of the United States to declare 
war, all the powers incident to war are by 
necessary implication conferred upon the Gov- 
ernment of the United States. Now the pow- 
ers incidental to war are derived, not from 
their internal, municipal source, but from the 
laws and usages of nations. There are, then, 
in the authority of Congress and of the Execu- 
tive, two classes of powers altogether different 
in their nature, and often incompatible with 
each other, the war power and the peace power. 
The peace power is limited by regulations and 
restricted by provisions prescribed within the 
Constitution itself. The war power is limited 
only by the laws and usage of nations. This 
power is tremendous; it is strictly constitu- 
tional, but it breaks down every barrier so 
anxiously erected for the protection of liberty, 
of property, and of life.” 
If this be so, how can there be trial by jury 
for military offenses in time of civil war? If 
you can not, and do not, try the armed enemy 
before you shoot him, or the captured enemy 
before you imprison him, why should you be 
held to open the civil courts and try the spy, 
the conspirator and the assassin, in the secret 
service of the public enemy, by jury, before 
you convict and punish him? Why not clamor 
against holding imprisoned the captured armed 
rebels, deprived of their liberty without due 
process of law? Are they not citizens ? Why 
not clamor against slaying, for their crime of 
treason, which is cognizable in the civil courts, 
by your rifled ordnance and the leaden hail of 
your musketry in battle, these public enemies, 
without trial by jury ? Are they not citizens ? 
What was this but a declaration, that in 
time of rebellion, or invasion, the public safety 
is the highest law ?—that so far as necessary 
the civil courts (of which the Commander-in- 
Chief, under the direction of Congress) must 
be silent, and the rights of each citizen, as 
secured in time of peace, must yield to the 
Wants, interests and necessities of the nation? 
Yet we have been gravely told by the gentle- 
man, in his argument, that the maxim, salus 
populi suprema est lex, is but fit for a tyrant’s 
use. Those grand men, whom God taught to 
build the fabric of empire, thought otherwise, 
when they put that maxim into the Constitu- 
tion of their country. It is very clear that the 
Constitution recognizes the great principle 
which underlies the structure of society and 
of all civil government; that no man lives for 
himself alone, but each for all; that if need be 
some must die, that the State may live, because 
at best the individual is but for to-day, while 
the commonwealth is for all time. I agree 
with the gentleman in the maxim which he bor- 
rows from Aristotle, “Let the public weal be 
under the protection of the lawbut I claim 
that in war, as in peace, by the very terms of 
the Constitution of the country, the public 
safety is under the protection of the law ; that 
the Constitution itself has provided for the de- 
claration of war for the common defense, to 
Suppress rebellion, to repel invasion, and by 
express terms, has declared that whatever is 
necessary to make the prosecution of the war 
successful, may be done, and ought to be done, 
and is therefore constitutionally lawful. 
Who will dare to say that in time of civil 
War “no person shall be deprived of life lib- 
erty and property, without due process of law?” 
This is a provision of your Constitution, than 
)vhich there is none more just or sacred in it; 
it is, however, only the law of peace, not of 
ln peace, that wise provision of the Con- 
stitution must be, and is, enforced by the civil 
eourts; in war, it must be, and is, to a great 
extent, inoperative and disregarded. The 
thousands slain by your armies in battle were 
deprived of life “without due process of law.” 
All 
spies arrested, convicted and executed by | 
military tribunals in time of war are de- 366 
THE CONSPIRACY TRIAL. 
Why is the clamor confined exclusively to the 
trial by military tribunals of justice of trait- 
orous spies, traitorous conspirators, and as- 
sassins hired to do secretly what the armed 
rebel attempts to do openly—murder your na- 
tionality by assassinating its defenders and 
its executive officers? Nothing can be clearer 
than that the rebel captured prisoner, being a 
citizen of the republic, is as much entitled to 
trial by jury before he is committed to prison, 
as the spy, or the aider and abettor of the trea- 
son by conspiracy and assassination, being a 
citizen, is entitled to such trial by jury, before 
he is subjected to the just punishment of the 
law for his great crime. I think that in time 
of war the remark of Montesquieu, touching 
the civil judiciary, is true : that “it is next to 
nothing.” Hamilton well said, “The Execu- 
tive holds the sword of the community; the 
judiciary has no direction of the strength of 
society; it has neither force nor will; it has 
judgment alone, and is dependent for the ex- 
ecution of that upon the arm of the Executive.” 
The people of these States so understood the 
Constitution, and adopted it, and intended 
thereby, without limitation or restraint, to em- 
power their Congress and Executive to author- 
ize by law, and execute by force, whatever the 
public safety might require, to suppress rebel- 
lion or repel invasion. 
Notwitstanding all that has been said by 
the counsel for the accused to the contrary, the 
Constitution has received this construction 
from- the day of its adoption to this hour. 
The Supreme Court of the United States has 
solemnly decided that the Constitution has 
conferred upon the Government authority to 
employ all the means necessary to the faithful 
execution of all the powers which that Consti- 
tution enjoins upon the Government of the 
United States, and upon every department and 
every officer thereof. Speaking of that pro- 
vision of the Constitution which provides that 
“Congress shall have power to make all laws 
that may be necessary and proper to carry 
into effect all powers granted to the Govern- 
ment of the United States, or to any depart- 
mentor officer thereof,” Chief Justice Marshall, 
in his great decision in the case of McCulloch 
vs. State of Maryland, says ; 
“The powers given to the Government imply 
the ordinary means of execution, and the Gov- 
ernment, in all sound reason and fair interpre- 
tation, must have the choice of the means which 
it deems the most convenient and appropriate 
to the execution of the power. * * * The 
powers of the Government were given for the 
welfare of the nation; they were intended to 
endure for ages to come, and to be adapted to 
the various crises in human affairs. To pre- 
scribe the specific means by which Government 
should, in all future time, execute its power, 
and to confine the choice of means to such nar- 
row limits as should not leave it in the power 
of Congress to adopt any which might be ap- 
propriate and conducive to the end, would be 
most unwise and pernicious.” 4 Wheaton, 420. 
Words fitly spoken! which illustrated at 
the time of their utterance the wisdom of the 
Constitution in providing this general grant 
of power to meet every possible exigency which 
the fortunes of war might cast upon the coun- 
try, and the wisdom of which words, in turn, 
has been illustrated to-day by the gigantic and 
triumphant struggle of the people during the 
last four years for the supremacy of the Con- 
stitution, and in exact accordance with its 
provisions. In the light of these wonderful 
events, the words of Pinckney, uttered when 
the illustrious Chief Justice had concluded his 
opinion, “The Constitution of my country is 
immortal!” seem to have become words ol 
prophesy. Has notthis great tribunal, through 
the chief of all its judges, by this luminous 
and profound reasoning, declared that the 
Government may by law authorize the Execu- 
tive to employ, in the prosecution of war, the 
ordinary means, and all the means necessary 
and adapted to the end ? And in the othei 
decision, before referred to, in the Bth of 
Cranch, arising during the late war with Great 
Britain, Mr. Justice Story said: 
“ When the legislative authority, to whom 
the right to declare war is confided, has de- 
clared war in its most unlimited manner, the 
executive authority, to whom the execution of 
the war is confided, is bound to carry it into 
effect. He has a discretion vested in him as 
to the manner and extent, but he can not law- 
fully transcend the rules of warfare estab- 
lished among civilized nations. He can not 
lawfully exercise powers or authorize proceed- 
ings which the civilized world repudiates and 
disclaims. The sovereignty, as to declaring 
war and limiting its effects, rests with the 
Legislature. The sovereignty, as to its execu- 
tion, rests with the President.” Brown vt. 
United States, 8 Cranch, 153. 
Has the Congress, to whom is committed the 
sovereignty of the whole people to declare war, 
by legislation restricted the President, or at- 
tempted to restrict him, in the prosecution of 
this war for the Union, from exercising all 
the “powers” and adopting all the “proceed- 
ings” usually approved and employed by the 
civilized world? He would, in my judgment, 
be a bold man who asserted that Congress has 
so legislated; and the Congress which should 
by law fetter the executive arm when raised 
for the common defense, would, in my opinion, 
be false to their oath. That Congress may pre' 
scribe rules for the government of the arm/ 
and navy, and the militia when in actual ser- 
vice, by articles of war, is an express grant 
of power in the Constitution, which Congress 
has rightfully exercised, and which the Exec- 
utive must and does obey. That Congress 
may aid the Executive by legislation in the 
prosecution of a war, civil or foreign, is ad- 
mitted. That Congress may restrain the Exec- 
utive, and arraign, try, and condemn him f‘j>r 
wantonly abusing the great trust, is expressly 
declared in the Constitution. That Congr^8* 
shall pass all laws necessary to enable the Ex- 
ecutive to execute the laws of the Union, 
press insurrection, and repel invasion, is 
of the express requirements of the Consti 
turn, for the performance of which the Con 
gress is bound by an oath. 
What was the legislation of Congress w ARGUMENT OF JOHN A. BINGHAM. 
367 
treason fired its first gun on Sumter? By tlie 
act of 1795 it is provided that whenever the 
laws of the United States shall be opposed, or 
the execution thereof obstructed, in any State, 
by combinations too powerful to be suppressed 
by the ordinary course of judicial proceeding, 
or by the powers vested in the marshals, it 
shall be lawful by this act for the President to 
call forth the militia of such State, or of any 
other State or States, as may be necessary to 
suppress such combinations and to cause the 
laws to be executed. Ist Statutes at Large, 424. 
By the act of 1807 it is provided that in case 
of insurrection or obstruction to the laws, either 
of the United States or of any individual State 
Or Territory, where it is lawful for the President 
of the United States to call forth the militia 
for the purpose of suppressing such insurrec- 
tion or of causing the laws to be duly executed, 
it shall be lawful for him to employ for such 
purpose such part of the land or naval forces 
of the United States as shall be judged neces- 
sary. 2d Statutes at Large, 443. 
Can any one doubt that, by these acts, the 
President is clothed with full power to deter- 
mine whether armed insurrection exists in any 
State or Territory of the Union, and, if so, to 
make war upon it with all the force he may 
deem necessary or be able to command ? By 
the simple exercise of this great power it neces- 
sarily results that he may, in the prosecution 
of the war for the suppression of such insur- 
rection, suspend, as far as may be necessary, 
the civil administration of justice by substi- 
tuting in its stead martial law, which is simply 
the common law of war. If, in such a mo- 
ment, the President may make no arrests with- 
out civil warrant, and may inflict, no violence 
Or penalties on persons (as is claimed here for 
the accused), without first obtaining the ver- 
dict of juries and the judgment of civil courts, 
then is this legislation a mockery, and the 
Constitution, which not only authorized but en- 
joined its enactment, but a glittering general- 
ity and a splendid bauble. Happily the Su- 
preme Court has settled all controversy on this 
question. In speaking of the Rhode Island in- 
surrection the Court say: 
“The Constitution of the United States, as 
far as it has provided for an emergency of 
ibis kind, and authorized the general Govern- 
ment to interfere in the domestic concerns of a 
State, has treated the subject as political in its 
hature, and placed the power in the hands of 
'bat department.” * * * * 
“By the act of 1795 the power of deciding 
the exigency has arisen upon which 
'■be Government of the United States is bound 
'° interfere is given to the President.” 
The Court add: 
“When the President hajs acted, and called 
m*t the militia, is a Circuit Court of the United 
States authorized to inquire whether his de- 
cision was right ? If it could, then it would 
become the duty of the Court, provided it came 
the conclusion that the President had decided 
lticorrectly, to discharge those who were ar- 
rested or detained by the troops in the service 
the United States.” * * * “If 
'be judicial power extends so far, the guaran- 
tee contained in the Constitution of the United 
States is a guarantee of anarchy and not of 
order.’ * * * “Yet, if this right 
does not reside in the courts when the conflict 
is raging, if the judicial power is, at that time, 
bound to follow the decision of the political, it 
must be equally bound when the contest is over. 
It can not, when peace is restored, punish, as 
offenses and crimes, the acts which it before 
recognized and was bound to recognize as law- 
ful.” Luther vs. Borden, 7 Howard, 42, 43. 
If this be law, what becomes of the volun- 
teer advice of the volunteer counsel, by him 
given without money and without price, to this 
Court, of their responsibility—their personal 
responsibility—for obeying the orders of the 
President of the United States, in trying per- 
sons accused of the murder of the Chief Mag- 
istrate and Commander-in-Chief of the army 
and navy of the United States in time of rebel- 
lion, and in pursuance of a conspiracy entered 
into with the public enemy? I may be par- 
doned for asking the attention of the Court to 
a further citation from this important decision, 
in which the Court say the employment of mil- 
itary power, to put down an armed insurrec- 
tion, “is essential to the existence of every 
Government, and is as necessary to the States 
of this Union as to any other Government; and 
if the Government of the State deem the armed 
opposition so formidable as to require the use 
of military force and the declaration of mar- 
tial law, we see no ground upon which this 
Court can question its authority.” Ibid. This 
decision, in terms, declared that, under the act 
of 1795, the President had power to decide, 
and did decide, the question so as to exclude 
further inquiry whether the State Government, 
which thus employed force and proclaimed 
martial law, was the Government of the State, 
and, therefore, was permitted to act. If a State 
may do this, to put down armed insurrection, 
may not the Federal Government as well? 
The reason of the man who doubts it may justly 
be questioned. I but quote the language of 
that tribunal, in another case before cited, 
when I say the Constitution confers upon the 
President the whole executive power. 
We have seen that the proclamation of block- 
ade, made by the President, was affirmed by 
the Supreme Court as a lawful and valid act, 
although its direct effect was to dispose of the 
property of whoever violated it, whether citizen 
or stranger. It is difficult to perceive what 
course of reasoning can be adopted, in the 
light of that decision, which will justify any 
man in saying that the President had not the 
like power to proclaim martial law in time of 
insurrection against the United States, and to 
according to the customs of war 
among civilized nations, military tribunals of 
justice for its enforcement, and for the punish- 
ment of all crimes committed in the interests, 
of the public enemy. 
These acts of the President have, however, 
all been legalized by the subsequent legisla- 
tion of Congress, although the Supreme Court 
decided, in relation to the proclamation of 
blockade, that no such legislation was neces- 
sary. THE CONSPIRACY TRIAL. 
By the act of August 6, 1861, ch. 68, sec. 
3, it is enacted that: 
“All the acts, proclamations and orders of the 
President of the United States, after the 4th 
of March, 1861, respecting the army and nayy 
of the United States, and calling out, or relating 
to, the militia or volunteers from the States, are 
hereby approved in all respects, legalized and 
made valid to the same extent, and with the 
same effect, as if they had been issued and 
done under the previous express authority and 
direction of the Congress of the United States.” 
12 Slat, at Large, 326. 
This act legalized, if any such legalization 
was necessary, all that the President had done 
from the day of his inauguration to that hour, 
in the prosecution of the war for the Union. 
He had suspended the privilege of the writ of 
habeas corpus, and resisted its execution when 
issued by the Chief Justice of the United States; 
he had called out and accepted the services of a 
large body of volunteers for a period not pre- 
viously authorized by law; he had declared a 
blockade of the Southern ports; he had de- 
clared the Southern States in insurrection; he 
had ordered the armies to invade them and 
suppress it; thus exercising, in accordance 
with the laws of war, power over the life, the 
liberty and the property of the citizens. Con- 
gress ratified it, and affirmed it. 
In like manner, and by subsequent legisla- 
tion, did the Congress ratify and affirm the 
proclamation of martial law of September 25, 
1862. That proclamation, as the Court will 
have observed, declares that, during the exist- 
ing insurrection, all rebels and insurgents, 
their aiders and abettors within the United 
States, and all persons guilty of any disloyal 
practice affording aid and comfort to the rebels 
against the authority of the United States, 
shall be subject to martial law, and liable to 
trial and punishment by courts-martial or mili- 
tary commission; and, second, that the writ of 
habeas corpus is suspended in respect to all per- 
sons arrested, or who are now, or hereafter 
during the rebellion shall be, imprisoned in any 
fort, etc., by any military authority, or by the 
sentence of any court-martial or military com- 
mission. 
the United States. Against these he suspended 
the privilege of the writ of habeas corpus; and 
these, and only such as these, were, by that 
proclamation, subjected to trial and punish- 
ment by court-martial or military commission. 
That the proclamation covers the offense 
charged here, no man will, or dare, for a mo- 
ment deny. Was it not a disloyal practice? 
Was it not aiding and abetting the insurgents 
and rebels to enter into a conspiracy with them 
to kill and murder, within your Capital and 
your intrenched camp, the Commander-in- 
Chief of our army, your Lieutenant-General, 
and the Vice-President and the Secretary of 
State, with intent thereby to aid the rebellion, 
and subvert the Constitution and laws of the 
United States? But it is said that the Presi- 
dent could not establish a court for their trial, 
and, therefore, Congress must ratify and affirm 
this proclamation. I have said before that 
such an argument comes with ill grace from 
the lips of him who declared, as solemnly, that 
neither by the Congress nor by the President 
could either the rebel himself or his aider or 
abettor be lawfully and constitutionally sub- 
jected to trial by any military tribunal, whether 
court-martial or military commission. But the 
Congress did ratify, in the exercise of the 
power vested in them, every part of this procla- 
mation. I have said, upon the authority of the 
fathers of the Constitution, and of its judicial 
interpreters, that Congress has power, by legis- 
lation, to aid the Executive in the suppression 
of rebellion, in executing the laws of the 
Union when resisted by armed insurrection, 
and in repelling invasion. 
By the act of March 3, 1863, the Congress of 
the United States, by the first section thereof, 
declared that during the present rebellion the 
President of the United States, whenever in 
his judgment the public safety may require it, 
is authorized to suspend the writ of habeas cot' 
pus in any case throughout the United States 
or any part thereof. By the fourth section ot 
the same act, it is declared that any order ot 
the President, or under his authority, made at 
any time during the existence of the present 
rebellion, shall be a defense in all courts to 
any action or prosecution, civil or criminal, 
pending or to be commenced, for any search, 
seizure, arrest, or imprisonment, made, donC: 
or committed, or acts omitted to be done, under 
and by virtue of such order. By the fifth sec- 
tion it is provided, that, if any suit or prose- 
cution, civil or criminal, has been or shall he 
commenced in any State court against any oft- 
cer, civil or military, or against any other per- 
son, for any arrest or imprisonment made, 01 
others trespasses or wrongs done or cornm1 ' 
ted, or any act omitted to be done at any tinlC 
during the present rebellion, by virtue ol °r_ 
under color of any authority derived from 
exercised by or under the President of ' 1 
United States, if the defendant shall, uP°l<r 
appearance in such court, file a petition statißo 
I the facts upon affidavit, etc., as aforesaid, 1 
j the removal of the cause for trial to the CircU* 
j Court of the United States, it shall be the du 7 
| of the State court, upon his giving security, 
1 proceed no further in the cause or prosecutio 
One would suppose that it needed no argu- 
ment to satisfy an intelligent and patriotic cit- 
izen of the United States that, by the ruling of 
the Supreme Court cited, so much of this procla- 
mation as declares that all rebels and insur- 
gents, their aiders and abettors, shall be sub- 
ject to martial law, and be liable to trial and 
punishment by court-martial or military com- 
mission, needed no ratification by Congress. 
Every step that the President took against the 
rebels and insurgents was taken i-n pursuance 
of the rules of war, and was an exercise of 
martial law. Who says that he should not de- 
prive them, by the authority of this law, of life 
and liberty ? Are the aiders and abettors of 
these insurgents entitled to any higher consid- 
eration than the armed insurgents themselves? 
It is against these that the President proclaimed 
martial law, and against all others who were 
guilty of any disloyal practice affording aid 
and comfort to rebels against the authority of ARGUMENT OF JOHN A. BINGHAM. 
Thus declaring that all orders of the President, 
made at any time during the existence of the 
present rebellion, and all acts done in pursu- 
ance thereof, shall be held valid in the courts 
of justice. Without further inquirj", these 
provisions of this statute embrace Order 141, 
Which is the proclamation of martial law, and 
necessarily legalize every act done under it, 
either before the passage of the act of 1863 or 
since. Inasmuch as that proclamation ordered 
that all rebels, insurgents, their aiders and 
abettors, and persons guilty of any disloyal 
practice affording aid and comfort to rebels 
against the authority of the United States, at 
any time during the existing insurrection, 
should be subject to martial law, and liable to 
trial and punishment by military commission, 
the sections of the law just cited declaring law- 
ful all acts done in pursuance of such order, 
including, of course, the trial and punishment 
by military commission of all such offenders, 
as directly legalized this order of the Presi- 
dent as it is possible for Congress to legalize 
or authorize any executive act whatever. 
12 Slat, at Ijarge, 755—6. 
But after assumingand declaring with great 
earnestness in his argument that no person 
could be tried and convicted for such crimes, 
by any military tribunal, whether a court-mar- 
tial or a military commission, save those in 
the land or naval service in time of war, the 
gentleman makes the extraordinary statement 
that the creation of a military commission 
niust be authorized by the legislative depart- 
ment, and demands, if there be any such leg- 
islation, “let the statute be produced.” The 
statute has been produced. The power so to 
try, says the gentleman, must be authorized 
by Congress, when the demand is made for 
Such authority. Does not the gentleman there- 
by give up his argument, and admit, that if 
the Congress has so authorized the trial of all 
aiders and abettors of rebels or insurgents for 
Whatever they do in aid of such rebels and in- 
surgents during the insurrection, the statute 
and proceedings under it are lawful and valid? 
I have already shown that the Congress have 
so legislated by expressly legalizing Order No. 
141, which directed the trial of all rebels, their 
aiders and abettors, by military commission. 
Hid not Congress expressly legalize this order 
by declaring that the order shall be a defense 
in all courts to any action or prosecution, civil 
0r criminal, for acts done in pursuance of it? 
No amount of argument could make this point 
clearer than the language of the statute itself. 
But, says the gentleman, if there be a statute 
authorizing trials by military commission, 
Bet it be produced.” 
, By the act of March 3, 1863, it is provided 
section thirty that in time of war, insur- 
rection, or rebellion, murder and assault with 
latent to kill, etc., when committed by persons 
*n the military service, shall be punishable by 
*Be sentence of a court-martial or military 
c°m.mission, and the punishment of such offenses 
sball never be less than those inflicted by the 
laWs of the State or District in which they 
have been committed. By the 38th sec- 
Hon of the same act, it is provided that all 
persons who, in time of war or rebellion 
against the United States, shall be found lurk- 
ing or acting as spies in or about the camps, 
etc., of the United States, or elsewhere, shall 
be triable by a military commission, and shall, 
upon conviction, suffer death. Here is a stat- 
ute which expressly declares that all persons, 
whether citizens or strangers, who in time of 
rebellion shall be found acting as spies, shall 
suffer death upon conviction by a military 
commission. Why did not the gentleman give 
us some argument upon this law? We have 
seen that it was the existing law of the United 
States under the Confederation. Then, and 
since, men not in the land or naval forces of 
the United States have suffered death for this 
offense upon conviction by courts-martial. If 
it was competent for Congress to authorize 
their trial by courts-martial, it was equal- 
ly competent for Congress to authorize their 
trial by military commission, and accord- 
ingly they have done so. By the same authority 
the Congress may extend the jurisdiction of 
military commissions over all military offenses 
or crimes committed in time of rebellion or war 
in aid of the public enemy; and it certainly 
stands with right reason, that if it were just 
to subject to death, by the sentence of a military 
commission, all persons who should be guilty 
merely of lurking as spies in the interests of the 
public enemy in time of rebellion, though they 
obtained no information, though they inflicted 
no personal injury, but were simply overtaken 
and detected in the endeavor to obtain intelli- 
gence for the enemy, those who enter into 
conspiracy with the enemy, not only to lurk as 
spies in your camp, but to lurk there as murder- 
ers and assassins, and who, in pursuance, of 
that conspiracy, commit assassination and mur- 
der upon the Commander-in-Chief of your army 
within your camp and in aid of rebellion, 
should be subject in like manner to trial by mil- 
itary commission. Siat. at Large 12, 736-’7, ch. 8. 
Accordingly, the President having so declared, 
the Congress, as we have stated, have affirmed 
that his order was valid, and that all persons 
acting by authority, and consequently as a 
court pronouncing such sentence upon the of- 
fender as the usage of war requires, are justified 
by the law of the land. With all respect, permit 
me to say that the learned gentleman has mani- 
fested more acumen and ability in his elaborate 
argument by what he has omitted to say than 
by anything which he has said. By the act of 
July 2, 1864, cap. 215, it is provided that the 
commanding general in the field, or the com- 
mander of the department, as the case may be, 
shall have power to carry into execution all 
sentences against guerrilla marauders for rob- 
bery, arson, burglary, etc., and from violation 
of the laws and customs of war, as well as 
sentences against spies, mutineers, deserters, 
and murderers. 
From the legislation I have cited, it is appa- 
rent that military commissions are expressly 
recognized by the law-making power; that they 
are authorized to try capital offenses against 
citizens not in the service of the United States, 
and to pronounce the sentence of death upon 
them; and that the commander of a department, THE CONSPIRACY TRIAL. 
or the commanding general in the field, may 
carry such sentence into execution. But, says 
the gentleman, grant all this to be so; Congress 
has not declared in what manner the court 
shall be constituted. The answer to that ob- 
jection has already been anticipated in the 
citation from Benet, wherein it appeared to be 
the rule of the law martial that in the punish- 
ment of all military offenses not provided for 
by the written law of the land, military com- 
missions are constituted for that purpose by the 
authority of the commanding officer or the 
Commander-in-Chief, as the case may be, who 
selects the officers of a court-martial; that they 
arc similarly constituted, and their proceedings 
conducted according to the same general rules. 
I'hat is a part of the very law martial which 
the President proclaimed, and which the Con- 
gress has legalized. The Proclamation has de- 
elared that all such offenders shall be tried by 
military commissions. The Congress has legal- 
ized the same by the act which I have cited; 
and by every intendment it must be taken that, 
as martial law is by the Proclamation declared 
to be the rule by which they shall be tried, the 
Congress, in affirming the act of the President, 
simply declared that they should be tried accord- 
ing to the customs of martial law ; that the 
eommission should be constituted by the Com- 
mauder-in-Chief according to the rule of pro- 
cedure known as martial law; and that the 
penalties inflicted should be in accordance with 
the laws of war and the usages of nations. 
Legislation no more definite than this has been 
upon your statute-book since the beginning of 
the century, and has been held by the Supreme 
Court of the United States valid for the punish- 
ment of offenders. 
argument of the gentleman, would, upon pre- 
sentation of such charge in legal form against 
the President, constitute the high court of im- 
peachment for his trial and condemnation, ha* 
decided the question in advance, and declared 
upon the occasion referred to, as they had 
before decided by solemn enactment, that this 
order of the President declaring martial law 
and the punishment of all rebels and insurgents, 
the:r aiders and abettors, by military commis- 
sion, should be enforced during the insurrection, 
as the law of the land, and that the offenders 
should be tried, as directed, by military com- 
mission. It may be said that this subsequent 
legislation of Congress, ratifying and affirming 
what had been done by the President, can have 
no validity. Of course it can not if neither the 
Congress nor the Executive can authorize the 
proclamation and enforcement of martial law, 
in the suppression of rebellion, for the punish- 
mentof all persons conhnittingmilitary offenses 
in aid of that rebellion. Assuming, however, as 
the gentleman seemed to assume, by asking for 
the legislation of Congress, that there is such 
power in Congress, the Supreme Court of the 
United States has solemnly affirmed that such 
ratification is valid. 2 Black. 071. 
The gentleman’s argument is full of citation* 
of English precedent. There is a late English 
precedent bearing upon this point—the power 
of the legislature, by subsequent enactment, to 
legalize executive orders, arrests, and impris- 
onment of citizens—that I beg leave to conirnenti 
to his consideration. I refer to the statute of 
11 and 12 Victoria, ch. 35, entitled “ An act to 
empower the lord lieutenant or other chief 
ernor or governors of Ireland, to apprehend and 
detain until the first day of March, 1849, such 
persons as he or they shall suspect of conspiring 
against her Majesty’s person and government, 
passed July 25, 1848, which statute in term# 
declares that all and every person and person* 
who is, are, or shall be, within that period, 
within that part of the United Kingdom 
England and Ireland called Ireland, at of 
on the day the act shall receive her Majesty * 
royal assent, or after, by warrant for high trea- 
son or treasonable practices, or suspicion of big® 
treason or treasonable practices, signed by th® 
lord lieutenant, or other chief governor or gor' 
ernors of Ireland for the time being, or his °r 
their chief secretary, for such causes as afore* 
said, may be detained in safe custody, withou 
bail or main prize, until the first day of March, 
1849; and that no judge or justice shall b®l 
or try any such person or persons so comm1' 
ted, without order from her Majesty's P1’I'/ 
counsel, until the said first day of March, ' 
any law or statute to the contrary notwit 
ing. The 2d section of this act provides tb®b 
in cases where any persons have been, 
the passing of the act, arrested, committed, 0 
detained for such cause by warrant or warr®D 
signed by the officers aforesaid, or either 
them, it may be lawful for the person or P® j 
sous to whom such warrants have been or si* 
be directed, to detain such person or person* 
his or their custody in any place whatever in 
land ; and that such person or persona to w 
such warrants have been or shall be direc 
By the 32d article of the act of 23d April, 
1800, it is provided that “all crimes committed 
by persons belonging to the navy which are not 
specified in the foregoing articles shall be pun- 
ished according to the laws and customs in such 
•uses at sea.” Of this article the Supreme 
Court of the United States say, that when of- 
fenses and crimes are not given in terms or by 
definition, the want of it may be supplied by a 
comprehensive enactment such as the 32d arti- 
cle of the rules for the government of the navy ; 
which means that courts-martial have juris- 
diction of such crimes as are not specified, but 
which have been recognized to be crimes and 
offenses by the usages in the navies of all na- 
tions, and that they shall be punished according 
to the laws and customs of the sea. Dynes vs. 
Hoover, 20 Howard, 82. 
But it is a fact that must not be omitted in the 
reply which I make to the gentleman's argu- 
-gument, that an effort was made by himself and 
others in the Senate of the United States, on the 
8d of March last, to condemn the arrests, impris- 
onments, etc., made by order of the President of 
the United States in pursuance of his proclama- 
tion, and to reverse, by the judgment of that 
body, the law which had been before passed 
affirming his action, which effort most signally 
failed. 
Thus we see that the body which by the Con- 
stitution, if the President had been guilty of 
the misdemeanors alleged against him in this ARGUMENT OF JOHN A. BINGHAM. 
371 
shall be deemed and taken, to all intents and 
purposes, lawfully authorized to take into safe 
custody and be the lawful jailors and keepers of 
such persons so arrested, committed, or detained. 
Here the power of arrest is given by the act 
of Parliament to the governor or his secretary ; 
the process of the civil courts was wholly sus- 
pended ; bail was denied and the parties im- 
prisoned, and this not by process of the courts, 
but by warrant of the chief governor or his 
secretary ; not for crimes charged to have been 
committed, but for being suspected of treasonable 
practices. Magna charta it seems opposes no 
restraint, notwithstanding the parade that is 
made about it in this argument, upon the power 
of the Parliament of England to legalize arrests 
and imprisonments made before the passage of 
the act upon an executive order, and without 
colorable authority of statute law, and to au- 
thorize like arrests and imprisonments of so 
many of six million of people as such executive 
officers might suspect of treasonable practices. 
But, says the gentleman, whatever may be 
the precedents, English or American; whatever 
may be the provisions of the Constitution; 
whatever may be the legislation of Congress; 
Whatever may be the proclamations and orders 
of the President as Commander-in-Chief, it is 
a usurpation and a tyranny in time of rebel- 
lion and civil war, to subject any citizen 
to trial for any crime beftwe military tri- 
bunals, save such citizens as are in the 
land or naval forces, and against this usur- 
pation, which he asks this Court to rebuke 
by solemn decision, he appeals to public opin- 
ion. I trust that I set as high value upon en- 
lightened public opinion as any man. I recog- 
nize it as the reserved power of the people 
which creates and dissolves armies, which cre- 
ates and dissolves legislative assemblies, whicli 
enacts and repeals fundamental laws, the bet- 
ter to provide for personal security by the due 
administration of justice. To that public opin- 
ion upon this very question of the usurpation 
of authority, of unlawful arrests, and unlawful 
imprisonments, and unlawful trials, condem- 
nations, and executions by the late President 
of the United States, an appeal has already 
been taken. On this very issue the President 
Was tried before the tribunal of the people, that 
great nation of freemen who cover this conti- 
nent, looking out upon Europe from their east- 
ern and upon Asia from their western homes. 
That people came to the consideration of this 
issue, not unmindful of the fact that the first 
ftruggle for the establishment of our national- 
ity could not have been, and was not, success- 
fully prosecuted without the proclamation and 
Enforcement of martial law, declaring, as we 
have seen, that any inhabitant who, during 
that war, should kill any loyal citizen, or enter 
into any combination for that purpose, should, 
llpon trial and conviction before a military 
tribunal, be sentenced as an assassin, traitor, 
0r spy, and should suffer death, and that in 
this last struggle for the maintenance of Amer- 
ican nationality, the President but followed the 
example of the illustrious Father of his Coun- 
try. Upon that issue the people passed judg- 
ment on the Bth day of last November, and 
declared that the charge of usurpation was false. 
From this decision of the people there lies no 
appeal on this earth. Who can rightfully chal- 
lenge the authority of the American people to 
decide such questions for themselves ? The 
voice of the people, thus solemnly proclaimed, 
by the omnipotence of the ballot, in favor of 
the righteous order of their murdered Presi- 
dent, issued by him for the common defense, 
for the preservation of the Constitution, and 
for the enforcement of the laws of the Union, 
ought to be accepted, and will be accepted, I 
trust, by all just men, as the voice of God. 
May it please the Court: I have said thus 
much touching the right of the people, under 
their Constitution, in time of civil war and 
rebellion, to proclaim through their Executive, 
with the sanction and approval of their Con 
gress, martial law, and enforce the same ac- 
cording to the usage of nations. 
I submit that it has been shown that, by the 
letter and spirit of the Constitution, as well as 
by its contemporaneous construction, followed 
and approved by every department of the Gov- 
ernment, this right is in the people; that it is 
inseparable from the condition of war, whether 
civil or foreign, and absolutely essential to its 
vigorous and successful prosecution; that ac- 
cording to the highest authority upon Consti- 
tutional law, the proclamation and enforce- 
ment of martial law are “usual under all Gov- 
ernments in time of rebellion;1’ that our own 
highest judicial tribunal has declared this, 
and solemnly ruled that the question of the 
necessity for its exercise rests exclusively with 
Congress and the President; and that the de- 
cision of the political departments of the Gov- 
ernment, that there is an armed rebellion and 
a necessity for the employment of military 
force and martial law in its suppression, con- 
cludes the judiciary. 
In submitting what I have said in support 
of the jurisdiction of this honorable Court, 
and of its Constitutional power to hear and de- 
termine this issue, 1 have uttered my own con- 
victions; and for their utterance in defense of 
my country, and its right to employ all the 
means necessary for the common defense against 
armed rebellion and secret treasonable con- 
spiracy in aid of such rebellion, 1 shall neither 
ask pardon nor offer apology. I find no words 
with which more fitly to conclude all I have to 
say upon the question of the jurisdiction and 
Constitutional authority of this Court, than 
those employed by the illustrious Lord Brough- 
am to the House of Peers in support of the bill 
before referred to, which empowered the Lord 
Lieutenant of Ireland, and his deputies, to ap- 
prehend and detain, for the period of seven 
months or more, all such persons within that 
island as they should suspect of conspiracy 
against Her Majesty's person and Government. 
Said that illustrious man: “A friend of liberty 
I have lived, and such will I die; nor care I 
how soon the latter event may happen, if I can 
not be a friend of liberty without being a friend 
of traitors at the same time—a protector of 
criminals of the deepest dye—an accomplice 
of foul rebellion and of its concomitant, civil 
war, with all its atrocities and all its fearful 372 
THE CONSPIRACY TRIAL. 
consequences.” Hansards Debates, 3d series, 
vol. 100, p. 685. 
May it please the Court: It only remains 
for me to sum up the evidence, and present my 
views of the law arising upon the facts in the 
case on trial. The questions of fact involved in 
the issue are: 
cretly. The purpose formed is known only to 
those who enter into it. Unless one of the 
original conspirators betray his companions 
and give evidence against them, their guilt can 
be proved only by circumstantial evidence. * 
* It is said by some writers on evidence that 
such circumstances are stronger than positive 
proof. A witness swearing positively, it is 
said, may misapprehend the facts or swear 
falsely, but that circumstances can not lie. 
“ The common design is the essence of the 
charge; and this may be made to appear when 
the defendants steadily pursue the same object, 
whether acting separately or together, by com- 
mon or different means, all leading to the same 
unlawful result. And where prima facie evi- 
dence has been given of a combination, the 
acts or confessions of one are evidence against 
all. * * It is reasonable that where a body 
of men assume the attribute of individuality, 
whether for commercial business or for the 
commission of a crime, that the association 
should be bound by the acts of one of its mem- 
bers, in carrying out the design.” 
It is a rule of the law, not to be overlooked 
in this connexion, that the conspiracy or agree- 
ment of the parties, or some of them, to act in 
concert to accomplish the unlawful act charged, 
may be established either by direct evidence 
of a meeting or consultation for the illegal 
purpose charged, or more usually, from the 
very nature of the case, by circumstantial evi- 
dence. 2 Starkie, 232. 
Lord Mansfield ruled that it was not neces- 
sary to prove the actual fact of a conspiracy, 
but that it might be collected from collateral 
circumstances. Parson's Case, 1 W. Blackstone, 
892. 
“If,” says a great authority on the law of 
evidence, “on a charge of conspiracy, it ap- 
pear that two persons by their acts are pursu- 
ing the same object, and often by the same 
means, or one performing part of the act, and 
the other completing it, for the attainment of 
the same object, the jury may draw the con- 
clusion there is a conspiracy. If a conspiracy 
be formed, and a person join in it afterward, 
he is equally guilty with the original conspD'- 
ators.” Roscoe, 415. 
“The rule of the admissibility of the acts 
and declarations of any one of the conspira- 
tors, said or done in furtherance of the com- 
mon design, applies in cases as well where 
only part of the conspirators are indicted, °r 
upon trial, as where all are indicted and upon 
trial. Thus, upon an indictment for murder, 
if it appear that others, together with the pri9' 
oner, conspired to commit the crime, the act o* 
one, done in pursuance of that intention, wd* 
be evidence against the rest.” 2d Starkie, 237. 
They are all alike guilty as principal9: 
Commonwealth vs. Knapp, 9 Pickering, 496,' I 
Pickering, 477; 6 Term Reports, 528; 11 East., 58L 
What is the evidence, direct and circumstan- 
tial, that the accused, or either of them, to' 
gether with John H. Surratt, John Wiik 
Booth, Jefferson Davis, George N. Sanders, Bev- 
erley Tucker, Jacob Thompson, William ' 
Cleary, Clement C. Clay, George Harper an 
George Young, did combine, confederate, an 
First, did the accused, or any two of them, con- 
federate and conspire together, as charged ? and, 
Second, did the accused, or any of them, in 
pursuance of such conspiracy, and with the in- 
tent alleged, commit either or all of the several 
acts specified ? 
If the conspiracy be established, as laicq it 
results that whatever was said or done by either 
of the parties thereto, in the furtherance or ex- 
ecution of the common design, is the declaration 
or act of all the other parties to the conspiracy; 
and this, whether the other parties, at the time 
.'uch words were uttered or such acts done by 
their confederates, were present or absent— 
here, within the intrenched lines of your capi- 
tal, or crouching behind the intrenched lines 
of Richmond, or awaiting the results of their 
murderous plot against their country, its Con- 
stitution and laws, across the border, under the 
shelter of the British flag. 
The declared and accepted rule of law in 
cases of conspiracy is that— 
“ln prosecutions for conspiracy it is an es- 
tablished rule that where several persons are 
proved to have combined together for the same 
illegal purpose, any act done by one of the 
party, in pursuance of the original concerted 
plan, and in reference to the common object, is, 
in the contemplation of law as well as in sound 
reason, the act of the whole party; and, there- 
fore, the proof of the act will be evidence 
against any of the others, who were engaged 
in the same general conspiracy, without regard 
to the question whether the prisoner is proved 
to have been concerned in the particular trans- 
action.” Phillips on Evidence, p. 210. 
The same rule obtains in cases of treason: 
“If several persons agree to levy war, some in 
one place and some in another, and one party 
do actually appear in arms, this is a levying 
of war by all, as well those who were not in 
arms as those who were, if it were done in pur- 
suance of the original concert, for those who 
made the attempt were emboldened by the con- 
fidence inspired by the general concert, and 
therefore these particular acts are in justice 
imputable to all the rest.” 1 East., Pleas of 
the Crown, p. 97; Roscoe, 84. 
In Ex parte Bolivian and Swartwout, 4 Crunch, 
126, Marshall, Chief Justice, rules : “If war be 
actually levied—that is, if a body of men be 
actually assembled, for the purpose of effect- 
ing, by force, a treasonable purpose, all those 
who perform any part, however minute, or how- 
ever remote from the scene of action, and who are 
actually leagued in the general conspiracy, are 
to be considered as traitors.” 
In United States vs. Cole et al., 5 McLean, 601, 
Mr. Justice McLean says: “A conspiracy is 
rarely, if ever, proved by positive testimony. 
When a crime of high magnitude is about to be 
perpetrated by a combination of individuals, 
they do not act openly, but covertly and se- ARGUMENT OF JOHN A. BINGHAM. 
373 
conspire, in aid of the existing rebellion, as 
charged, to kill and murder, within the mili- 
tary department of Washington, and within 
the fortified and intrenched lines thereof, 
Abraham Lincoln, late, and, at the time of the 
said combining, confederating and conspiring, 
President of the United States of America, and 
Commander-in-Chief of the army and navy 
thereof; Andrew Johnson, Vice-President of 
the United States; William H. Seward, Secre- 
tary of State of the United States; and Ulys- 
ses S. Grant, Lieutenant-General of the armies 
thereof, and then in command, under the direc- 
tion of the President? 
| dent for the purpose of destroying his life. It 
! may be said, and doubtless will be said, by the 
i pensioned advocates of this rebellion, that 
| Hyams, being infamous, is not to be believed, 
j It is admitted that he is infamous, as it must 
: be conceded that any man is infamous who 
; either participates in such a crime or at- 
! tempts in anywise to extenuate it. But it will 
| be observed that Hyams is supported by the 
testimony of Mr. Sanford Conover, who heard 
Blackburn and the other rebel agents in 
Canada speak of this infernal project, and by 
the testimony of Mr. Wall, the well-known 
auctioneer of this city, whose character is un- 
questioned, that he received this importation 
of pestilence (of course without any knowledge 
of the purpose), and that Hyams consigned 
the goods to him in the name of J. W. Harris, 
a fact in itself an acknowledgment of guilt; 
and that he received, afterward, a letter from 
Harris, dated Toronto, Canada West, December 
1, 1864, wherein Harris stated that he had 
not been able to come to the States since his 
return to Canada, and asked for an account 
of the sale. He identifies the Godfrey Joseph 
Hyams, who testified in court as the J. W. 
Harris who imported the pestilence. The very 
transaction shows that Hyams’ statement is 
truthful. He gives the names of the parties 
connected with this infamy (Clement C. Clay. 
Dr. Blackburn, Rev. Dr. Stuart Robinson, J. C. 
Holcombe, all refugees from the Confederacy 
in Canada), and states that he gave Thompson 
a receipt for the fifty dollars paid to him, and 
that he was by occupation a shoemaker; in 
none of which facts is there an attempt to dis- 
credit him. It is not probable that a man in 
his position in'life would be able to buy five 
trunks of clothing, ship them all the way from 
Halifax to Washington, and then order them to 
be sold at auction, without regard to price, 
solely upon his own account. It is a matter 
of notoriety that a part of his statement is 
verified by the results at Newbern, North Car- 
olina, to which point, he says, a portion of the 
infected goods were shipped, through a sutler, 
the result of which was that nearly two thou- 
sand citizens and soldiers died there, about 
that time, with the yellow fever. 
That the rebel chief, Jefferson Davis, sanc- 
tioned these crimes, committed and attempted 
through the instrumentality of his accredited 
a,gents in Canada—Thompson, Clay, Tucker, 
Sanders, Cleary, etc.—upon the persons and 
property of the people of the North, there is 
positive proof on your record. The letter 
brought from Richmond, and taken from the 
archives of his late pretended Government 
there, dated February 11, 1865, and addressed 
to him by a late rebel Senator from Texas, W. 
S. Oldham, contains the following significant 
words: “When Senator Johnson, of Missouri, 
and myself waited on you, a few days since, in 
relation to the project of annoying and har- 
rassing the enemy, by means of burning their 
shipping, towns, etc., there were several re- 
marks made by you upon the subject, which I 
was not fully prepared to answer, but which, 
upon subsequent conference with parties pro- 
posing the enterprise, 1 find can not apply 
The time, as laid in the charge and specifi- 
cation, when this conspiracy was entered into, 
is immaterial, so that it appear by the evi- 
dence that the criminal combination and 
agreement were formed before the commis- 
sion of the acts alleged. That Jefferson Davis, 
one of the conspirators named, was the ac- 
knowledged chief and leader of the existing 
rebellion against the Government of the United 
States, and that Jacob Thompson, George N. 
Sanders, Clement C. Clay, Beverley Tucker, 
and others named in the specification, were his 
duly accredited and authorized agents, to act 
in the interests of said rebellion, are facts es- 
tablished by the testimony in this case beyond 
all question. That Davis, as the leader of said 
rebellion, gave to those agents, then in Can- 
ada, commissions in blank, bearing the official 
signature of his war minister, James A. Seddon, 
to be by them filled up and delivered to such 
agents as they might employ to act in the 
Interests of the rebellion within the United 
States, and intended to be a cover and pro- 
tection for any crimes they might therein 
commit in the service of the rebellion, is also 
a fact established here, and which no man can 
gainsay. Who doubts that Kennedy, whose 
confession, made in view of immediate death, 
as proved here, was commissioned by those ac- 
credited agents of Davis to burn the city of 
New York ? That he was to have attempted it 
on the night of the Presidential election, and 
that he did, in combination with his confed- 
erates, set fire to four hotels in the city of New 
York on the night of the 25th of November 
last? Who doubts that, in like manner, in the 
interests of the rebellion, and by the authority 
of Davis, these, his agents, also commissioned 
Bennett H. Young to commit arson, robbery 
and the murder of unarmed citizens in St. Al- 
bans, Vermont? Who doubts, upon the testi- 
mony shown, that Davis, by his agents, delib- 
orately adopted the system of starvation for 
the murder of our captive soldiers in his 
hands, or that, as shown by the testimony, he 
Banctioned the burning of hospitals and steam- 
boats, the property of private persons, and 
Paid therefor, from his stolen treasure, the 
snrn of thirty-five thousand dollars in gold ? 
By the evidence of Godfrey Joseph Hyams it 
m proved that Thompson—the agent of Jeffer- 
son Davis—paid him money for the service he 
vendered in the infamous and fiendish project 
°f importing pestilence into our camps and 
mties, to destroy the lives of citizens and 
Soldiers alike, and into the house of the Presi- THE CONSPIRACY TRIAL. 
as objections to the scheme. First, the ‘com- j 
bustible materials’ consist of several prepara-j 
tions, and not one alone, and can be used 
without exposing the party using them to the 
least danger of detection whatever. * * 
® Second, there is no necessity for sending 
persons in the military service into the enemy’s 
country, but the work may be done by agents. 
* * * I have seen enough of the ef- 
fects that can be pi-oduced to satisfy me that 
in most cases, without any danger to the par- 
ties engaged, and, in others, but very slight, 
we can, first, burn every vessel that leaves a 
foreign port for the United States; second, 
we can burn every transport that leaves the 
harbor of New York, or other Northern port, 
with Supplies for the armies of the enemy in 
the South; third, burn every transport and 
gunboat on the Mississippi river, as well as 
devastate the country of the enemy, and fill 
his people with terror and consternation. 
* * * For the purpose of satisfying 
your mind upon the subject, I respectfully, 
but earnestly, request that you will give an 
interview with General Harris, formerly a 
member of Congress from Missouri, who, I 
think, is able, from conclusive proofs, to con- 
vince you that what I have suggested is per- 
fectly feasible and practicable.” 
No one can doubt, from the tenor of this 
letter, that the rebel Davis only wanted to be 
satisfied that this system of arson and mur- 
der could be carried on by his agents in the 
North successfully and without detection. 
With him it was not a crime to do these acts, 
but only a' crime to be detected in them. 
But Davis, by his indorsement on this letter, 
dated the 20th of February, 1865, bears wit- 
ness to his own complicity and his own in- 
famy in this proposed work of destruction 
and crime for the future, as well as to his 
complicity in what had before been attempted 
without complete success. Kennedy, with his 
confederates, had failed to burn the city of 
New York. “The combustibles” which Ken- 
nedy had employed were, it seems, defective. 
This was “a difficulty to be overcome.” Neither 
had he been able to consummate the dreadful 
work without subjecting himself to detection. 
This was another “ difficulty to be overcome.” 
Davis, on the 20th of February, 1865, indorsed 
upon this letter these words: “Secretary of 
State, at his convenience, see General Harris, 
and learn what plan he has for overcoming 
the difficulties heretofore experienced. J. D." 
This indorsement is unquestionably proved 
to be the handwriting of Jefferson Davis, and 
it bears witness on its face that the monstrous 
proposition met his approval, and that he de- 
sired his rebel Secretary of State, Benjamin, 
to see General Harris and learn how to over- 
come the difficulty heretofore experienced, to wit: 
the inefficiency of “the combustible materials” 
that had been employed, and the liability of 
its agents to detection. After this, who will 
doubt that he had endeavored, by the hand of 
incendiaries, to destroy by fire the property 
and lives of the people of the North, and there- 
by “fill them with terror and consternation;” 
that he knew his agents had been unsuccess- 
ful; that he knew his agents had been detected 
in their villainy and punished for their crime; 
that he desired, through a more perfect “ chem- 
ical preparation,” by the science and skill of 
Professor McCulloch, to accomplish successfully 
what had before been unsuccessfully attempted? 
The intercepted letter of his agent, Clement 
C. Clay, dated St. Catharine’s, Canada West, 
November 1, 1864, is an acknowledgment and 
confession of what they had attempted, and a 
suggestion made through J. P. Benjamin, rebel 
Secretary of State, of what remained to be 
done, in order to make the “chemical prepara- 
tions” efficient. Speaking of this Bennett H. 
Young, he says: “You have doubtless learned 
through the press of the United States, of the 
raid on St. Alban’s by about twenty-five Con- 
federate soldiers, led by Lieutenant Bennett 
H. Young; of their attempt and failure to burn 
the town; of their robbery of three banks there 
of the aggregate amount of about two hundred 
thousand dollars; of their arrest in Canada, 
by United States forces; of their commitment 
and the pending preliminary trial.” He makes 
application, in aid of Young and his associates, 
for additional documents, showing that they 
acted upon the authority of the Confederate 
States Government, taking care to say, how- 
ever, that he held such authority at the time, 
but that it ought to be more explicit, so far as 
regards the particular acts complained of. He 
states that he met Young sit Halifax in May, 
1864, who developed his plans for retaliation 
on the enemy; that he, Clay, recommended him 
to the rebel Secretary of war; that after this, 
“Young was sent back by the Secretary of War 
with a commission as Second Lieutenant to exe- 
cute his plans and purposes, but to report to 
Hon. and myself.” Young afterward 
“proposed passing through New England, burn- 
ing some towns and robbing them of whatever 
he could convert to the use of the Confederate 
Government. This I approved as justifiable 
retaliation. He attempted to burn the town of 
St. Alban’s, Vermont, and would have succeed- 
ed but for the failure of the chemical preparation 
with which he was armed. He then robbed the 
banks of funds amounting to over two hundred 
thousand dollars. That he was not prompted 
by selfish or mercenary motives, I am as wen 
satisfied as I am that he is an honest man. He 
assured me before going that his effort would be 
to destroy towns and farm-houses, but not to 
plunder or rob; but he said if, after firing a 
town, he saw he could take funds from a bank 
or any house, and thereby might inflict injury 
upon the enemy and benefit his own Govern- 
ment, he would do so. He added most emphat' 
ically, that tvhatever he took should be turne 
over to the Government or its representatives n* 
foreign lands. My instructions to him were, 
destroy whatever was valuable; not to stop 
rob, but if, after firing a town, lie could seize an 
carry off money or treasury or bank notes, h 
might do so upon condition that they were dehj' 
ered to the proper authorities of the Confedera 
States”—that is, to Clay himself. 
When he wrote this letter, it seems that tin 
accredited agent of Jefferson Davis wa9 a_ 
strongly impressed with the usurpation and des ARGUMENT OE JOHN A. BINGHAM. 
375 
polism of Mr. Lincoln’s administration as some 
of the advocates of his aiders and abettors seem 
to be at this day; and he indulges in the fol- 
lowing statement; “ All that a large portion 
of the Northern people, especially in the North- 
west, want to resist the oppressions of the des- 
potism at Washington, is a leader. They are 
ripe for resist:; uce, and it may come soon after the 
Presidential election. At all events, it must 
come, if our armies are not overcome, or de- 
stroyed, or dispersed. No people of the Anglo- 
Saxon blood can long endure the usurpations 
and tyrannies of Lincoln.” Clay does not sign 
the dispatch, but indorses the bearer of it as 
a person who can identify him and give his 
name. The bearer of that letter was the wit- 
ness, Richard Montgomery, who saw Clay write 
a portion of the letter, and received it from his 
hands, and subsequently delivered it to the 
Assistant Secretary of War of the United 
States, Mr. Dana. That the letter is in Clay's 
handwriting, is clearly proved by those famil- 
iar with it. Mr. Montgomery testifies that he 
was instructed by Clay to deliver this letter to 
Benjamin, the Rebel Secretary of State, if he 
could get through to Richmond, and to tell him 
what names to put in the blanks. 
This letter leaves no doubt, if any before 
existed in the mind of any one who had read 
the letter of Oldham, and Davis’ indorsement 
thereon, that “the chemical preparations” and 
“combustible materials” had been tried and 
had failed, and it had become a matter of great 
moment and concern that they should be so 
prepared as, in the words of Davis, “to over- 
come the difficulties heretofore experienced 
that is to say, complete the work of destruc- 
tion, and secure the perpetrators against per- 
sonal injury or detection in the performance 
of it. 
ing at the very hearts' blood of those who seek 
to enchain her in slavery. I consider nothing 
dishonorable having such a tendency. All I ask 
of you is, to favor me by granting me the 
necessary papers, etc., to travel on. * * * 
lam perfectly familiar with the North, and feel con- 
fident that 1 can execute anything I undertake. 
I was in the raid last June in Kentucky, under 
General John 11. Morgan; * * * was taken 
prisoner; * * * escaped from them by 
dressing myself in the garb of a citizen. 
* » * i went through to the Canadas, from 
whence, by the assistance of Colonel J. P. Holcomb, 
I succeeded in working my way around and 
through the blockade. * * * I should like 
to have a personal interview with you in order 
to perfect the arrangements before starting.” 
Is there any room to doubt that this was a 
proposition to assassinate, by the hand of this 
man and his associates, such persons in the 
North as he deemed the “ deadliest enemies * 
of the rebellion ? The weakness of the man 
who for a moment can doubt that such was the 
proposition of the writer of this letter, is cer- 
tainly an object of commiseration. What had 
Jefferson Davis to say to this proposed assas- 
sination of the “ deadliest enemies ” in the North 
of his great treason ? Did the atrocious sug- 
gestion kindle in him indignation against the 
villain who offered, with his own hand, to 
strike the blow? Not at all. On the contrary, 
he ordered his private secretary, on the 29th of 
November, 1864, to indorse upon the letter 
these words : “ Lieutenant W. Alston ; accom- 
panied raid into Kentucky, and was captured, 
but escaped into Canada, from whence he found 
his way back. Now offers his services to rid 
the country of some of its deadliest enemies; 
asks for papers, etc. Respectfully referred, by 
direction of the President, to the honorable 
Secretary of War.” It is also indorsed for at- 
tention, “By order. (Signed) J. A. Campbell, 
Assistant Secretary of War.” 
Note the fact in this connection, that Jeffer- 
son Davis himself, as well as his subordinates, 
had, before the date of this indorsement, con- 
cluded that Abraham Lincoln was “ the dead- 
liest enemy" of the rebellion. You hear it in 
the rebel camp in Virginia in 1863, declared 
by Booth, then and there present, and assented 
to by rebel officers, that “Abraham Lincoln 
must be killed.” You bear it in that slaughter- 
pen in Georgia, Andersonville, proclaimed 
among rebel officers, who, by the slow torture 
of starvation, inflicted cruel and untimely 
death on ten thousand of your defenders, cap- 
tives in their hands—whispering, like demons, 
their horrid purpose, “Abraham Lincoln must 
be killed.” And in Canada, the accredited 
agents of Jefferson Davis, as early as October, 
1864, and afterward, declared that “ Abraham 
Lincoln must be killed ” if his re-election could 
not be prevented. These agents in Canada, on 
the 13th of October, 1864, delivered, in cipher, 
to be transmitted to Richmond by.Richard Mont- 
gomery, the witness, whose reputation is un- 
challenged, the following communication: 
“ October 13, 1864. 
“We again urge the immense necessity of 
our gaining immediate advantages. Strain 
It only remains to be seen whether Davis, 
the procurer of arson and of the indiscrimi- 
nate murder of the innocent and unoffending, 
necessarily resultant therefrom, was capable 
also of endeavoring to procure, and in fact 
did procure, the murder, by direct assassina- 
tion, of the President of the United States 
and others charged with the duty of main- 
taining the Government of the United States, 
and of suppressing the rebellion in which this 
arch-traitor and conspirator was engaged. 
The official papers of Davis, captured under 
the guns of our victorious army in his rebel 
capital, identified beyond question or shadow 
of doubt, and placed upon your record, toget her 
with the declarations and acts of his co-con- 
spirators and agents, proclaim to all the world 
that he was capable of attempting to accom- 
plish his treasonable procuration of the mur- 
der of the late President, and other chief of- 
ficers of the United States, by the hands of 
hired assassins. 
In the fall of 1864, Lieutenant W. Alston 
addresses to “His Excellency ’ a letter, now 
before the Court, which contains the following 
words : 
“ I now offer you my services, and if you 
will favor me in my designs, I will proceed, as 
soon as my health will permit, to rid my coun- 
try of some of her deadliest enemies, by strik- 376 
THE CONSPIRACY TRIAL. 
every nerve for victory. We now look upon 
the re-election of Lincoln in November as al- 
most certain, and we need to whip his hirelings 
to prevent it. Besides, with Lincoln re-elected, 
and his armies victorious, we need not hope 
even for recognition, much less the help men- 
tioned in our last. Holcomb will explain this. 
Those figures of the Yankee armies are correct 
to a unit. Our friends shall he immediately set 
to work as you direct.” 
To which an official reply, in cipher, was de- 
livered to Montgomery by an agent of the state 
department in Richmond, dated October 19, 
1864, as follows : 
“ Your letter of the 13th instant is at hand. 
There is yet time enough to colonize many voters 
before November. A blow will shortly be 
stricken here. It is not quite time. General 
Longstreet is to attack Sheridan without delay, 
and then move north as far as practicable 
toward unprotected points. This will be made 
instead of movement before mentioned. He 
will endeavor to assist the Republicans in col- 
lecting their ballots. Be watchful and assist him.’’ 
On the very day of the date of this Richmond 
dispatch Sheridan was attacked, with what 
success history will declare. The Court will 
not fail to notice that the re-election of Mr. Lin- 
coln is to be prevented if possible, by any and 
every means. Nor will they fail to notice that 
Holcomb is to “explain this’’—the same person 
who, in Canada, was the friend and advisor of 
Alston, who proposed to Davis the assassination 
of the “deadliest enemies” of the rebellion. 
to be furnished with papers to go North and rid 
the Confederacy of some of its “ deadliest ene- 
mies,” was in Canada. He was doubtless one 
of the “friends” referred to. As appears by 
the testimony of Montgomery, Payne, the pris- 
oner at your bar, was about that time in Canada, 
and was seen standing by Thompson’s door, 
engaged in a conversation with Clay, between 
whom and the witness some words were inter- 
changed, when Clay stated he (Payne) was one 
of their friends—“we trust him.” It is proved 
beyond a shadow of doubt that in October last 
John Wilkes Booth, the assassin of the Presi- 
dent, was also in Canada, and upon intimate 
terms with Thompson, Clay, Sanders, and other 
rebel agents. Who can doubt, in the light of 
the events which have transpired, that he was 
one of the “friends” to be “set to work,” as 
Davis had already directed—not, perhaps, as 
yet to assassinate the President, but to do that 
other work which is suggested in the letter of 
Oldham, indorsed by Davis in his own hand, 
and spread upon your record—the work of the 
secret incendiary, which was to “ fill the people 
of the North with terror and consternation.” 
The other “ work” spoken of by Thompson—put- 
ting the tyrant Lincoln and any of his advisers out 
of the way, was work doubtless to be commenced 
only after the re-election of Mr. Lincoln, which 
they had already declared in their dispatch to 
their employer, Davis, was with them a foregone 
conclusion. At all events, it was not until after 
the Presidential election in November that Als- 
ton proposed to Davis to go North on the work 
of assassination ; nor was it until after that 
election that Booth was found in possession of 
the letter which is in evidence, £nd which dis- 
closes the purpose to assassinate the President. 
Being assured, however, when Booth was with 
them in Canada, as they had already declared 
in their dispatch, that the re-election of Mr. 
Lincoln was certain, in which event there would 
be no hope for the Confederacy, they doubtless 
entered into the arrangement with Booth as one 
of their “ friends,” that as soon as that fact was 
determined he should go “to work,” and as soon 
as might be “ rid the Confederacy of the tyrant 
Lincoln and of his advisers.” 
In the dispatch of the 13th of October, which 
was borne by Montgomery, and transmitted to 
Richmond in October last, you will find these 
words : “ Our friends shall be immediately set 
to work as you direct.” Mr. Lincoln is the sub- 
ject of that dispatch. Davis is therein notified 
that his agents in Canada look upon the re- 
election of Mr. Lincoln in November as almost 
certain. In this connection he is assured by 
those agents, that the friends of their cause are 
to be set to work as Davis had directed. The 
conversations, which are proved by witnesses 
whose character stands unimpeached, disclose 
what “work” the “friends” were to do under 
the direction of Davis himself. Who were these 
“friends,” and what was “ the work ” which 
his agents, Thompson, Clay, Tucker and San- 
ders had been directed to set them at? Let 
Thompson answer for himself. In a conversa- 
tion with Richard Montgomery in the summer 
of 1864, Thompson said that he had his friends, 
confederates, all over the Northern States, who 
were ready and willing to go any lengths for 
the good of the cause of the South, and he 
could at any time have the tyrant Lincoln, or any 
other of his advisers that he chose, put out of his 
way; that they would not it a crime 
when done for the cause of the Confederacy.” 
This conversation was repealed by the witness 
in the summer of 1864 to Clement C. Clay, who 
immediately stated: “That is so; we are all 
devoted to our cause and ready to go any 
length—to do anything under the sun.”. 
At and about the time that these declarations 
of Clay and Thompson were made, Alston, who 
made the proposition, as we have seen, to Davis, 
That these persons named upon your record, 
Thompson, Sanders, Clay, Cleary and Tucker, 
were the agents of Jefferson Davis, is another 
fact established in this case beyond a doubt. 
They made affidavit of it themselves, of record 
here, upon the examination of their “friends,” 
charged with the raM upon St. Albans, before 
Judge Smith, in Canada. It is in evidence, 
also, by the letter of Clay, before referred to. 
The testimony, to which I have thus briefly 
referred, shows, by the letter of his agents, of 
the 13th of October, that Davis had before di- 
rected those agents to set his friends to work. 
By the letter of Clay it seems that his direc- 
tion had been obeyed, and his friends had been 
set to work, in the burning and robbery and 
murder at St. Albans, in the attempt to burn 
the city of New York, and in the attempt to in- 
troduce pestilence into this capital and into 
the house of the President. It having ap- 
peared, by .the letter of Alston, and the in- 
dorsement thereon, that Davis had in Novem- ARGUMENT OF JOHN A. BINGHAM. 
377 
ber entertained the proposition of sending 
agents, that is to say, “friends,” to the North, 
to not only “ spread terror and consternation 
among the people” by means of his “ chemical 
preparations,” but also, in the words of that 
letter, “ to strike,” by the hands of assassins, 
“ at the heart’s blood” of the deadliest enemies 
in the North to the confederacy of traitors; it 
has also appeared by the testimony of many 
respectable witnesses, among others the attor- 
neys who represented the people of the United 
States and the State of Vermont, in the prelim- 
inary trial of the raiders in Canada, that Clay, 
Thompson, Tucker, Sanders and Cleary de- 
clared themselves the agents of the Confeder- 
acy. It also clearly appears by the corres- 
pondence referred to, and the letter of Clay, 
that they were holding, and at any time able 
to command, blank commissions from Jefferson 
Davis to authorize their friends to do whatever 
work they appointed them to do, in the inter- 
ests of the rebellion, by the destruction of life 
and property in the North. 
If a prima facie case justifies, as we have 
seen by the law of evidence it does, the intro- 
duction of all declarations and acts of any of 
the parties to a conspiracy, uttered or done in 
the prosecution of the common design, as evi- 
dence against all the rest, it results, that what- 
ever was said or done in furtherance of the 
common design, after this month of October, 
1864, by either of these agents in Canada, is 
evidence not only against themselves, but 
against Davis as well, of his complicity with 
them in the conspiracy. 
Mr. Montgomery testifies that he met Jacob 
Thompson in January, at Montreal, when he 
said that “ a proposition had been made to him 
to rid the world of the tyrant Lincoln, Stanton, 
Grant, and some others; that he knew the meh 
who had made the proposition were bold, dar- 
ing men, able to execute what they undertook ; 
that he himself was in favor of the proposition, 
but had determined to defer his answer until 
he had consulted his government at Richmond ; 
that he was then only awaiting their approval.” 
This was about the middle of January, and 
consequently more than a month after Alston 
had made his proposition direct to Davis, in 
writing, to go North and rid their Confederacy 
of some of its “deadliest enemies.” It was at 
the time of this conversation that Payne, the 
prisoner, was seen by the witness standingmt 
Thompson’s door in conversation with Clay. 
This witness also shows the intimacy between 
Thompson, Clay, Cleary, Tucker, and Sanders. 
A few days after the assassination of the 
President, Beverley Tucker said to this witness 
“that President Lincoln deserved his death 
long ago; that it was a pity he didn’t have it 
long ago, and it was too bad that the boys had 
uot been allowed to act when they wanted to.” 
This remark undoubtedly had reference to 
the propositions made in the fall to Thompson, 
and also to Davis, to rid the South of its dead- 
liest enemies by their assassination. Cleary, 
■tvho was accredited by Thompson as his confi- 
dential agent, also stated to this witness that 
Booth was one of the party to whom Thompson 
had referred in the conversation in January, in 
which he said he knew the men who were ready 
to rid the world of the tyrant Lincoln, and of 
Stanton and Grant. Cleary also said, speak- 
ing of the assassination, “ that it was a pity 
that the whole work had not been done,” and 
added, “they had better look out—we are not 
done yet;” manifestly referring to the state- 
ment made by his employer, Thompson, before 
in the summer, that not only the tyrant Lin- 
coln, but Stanton and Grant, and others of his 
advisers, should be put out of the way. Cleai-y 
also stated to this witness that Booth had vis- 
ited Thompson twice in the winter, the last 
time in December, and had also been there in 
the summer. 
Sanford Conover testified that he had been 
for some time a clerk in the war department at 
Richmond; that in Canada he knew Thompson, 
Sanders, Cleary, Tucker, Clay, and other rebel 
agents; that, he knew John H. Surratt and 
John Wilkes Booth: that he saw Booth there 
upon one occasion, and John H. Surratt upon 
several successive days; that he saw Surratt 
(whom he describes) in April last, in Thomp- 
son’s room, and also in company with Sanders; 
that about the 6th or 7th of April Surratt de- 
livered to Jacob Thompson a dispatch brought 
by him from Benjamin, at Richmond, enclos- 
ing one in cipher from Davis. Thompson had 
before this proposed to Conover to engage in a 
plot to assassinate President Lincoln and his 
cabinet, and on this occasion he laid his hand 
upon these despatches and said, “This makes 
the thing all right,” referring to the assent of 
the rebel authorities, and stated that the rebel 
authorities had consented to the plot to assas- 
sinate Lincoln, Johnson, the Secretary of War, 
Secretary of State, Judge Chase, and General 
Grant. Thompson remarked further that the 
assassination of these parties would leave the 
Government of the United States entirely with- 
out a head; that there was no provision in the 
Constitution of the United States by which they 
could elect another President, if these men 
were put out of the way. 
In speaking of this assassination of the Pres- 
ident and others, Thompson said that it was 
only removing them from office, that the kill- 
ing of a tyrant was no murder. It seems that 
he had learned precisely the same lesson that 
Alston had learned in November, when he com- 
municated with Davis, and said, speaking of 
the President’s assassination, “he did not 
think anything dishonorable that would serve 
their cause.” Thompson stated at the same 
time that he had conferred a commission on 
Booth, and that everybody engaged in the en- 
terprise would be commissioned, and if it suc- 
ceeded, or tailed, and they escaped into Cana- 
da, they could not be reclaimed under the ex- 
tradition treaty. The fact that Thompson and 
other rebel agents held blank commissions, as 
I have said, has been proved, and a copy of one 
of them is of record here. 
This witness also testifies to a conversation 
with William C. Cleary, shortly after the sur- 
render of Lee’s army, and on the day before the 
President’s assassination, at the St. Lawrence 
Hotel, Montreal, when, speaking of the rejoic- 
ing in the States over the capture of Richmond, 378 
THE CONSPIRACY TRIAL. 
Oleary said, “they would put the laugh on the 
oHier side of their mouth in a day or two:’ 
These parties knew that Conover was in the 
secret of the assassination, and talked with 
him about it as freely as they would speak of 
the weather. Before the assassination he had 
a conversation, also, with Sanders, who asked 
him if he knew Booth well, and expressed some 
apprehension that Booth would “make a failure 
of it ; that he was desperate and reckless, and 
he was afraid the whole thing would prove a 
failure.” 
thelhear 
hear of the death of Old Abe, of the Vice- 
President and of General Dix in less than ten 
days, I might put him down as a fool. That 
was on the 6th of April. He mentioned that 
Booth was in Washington at that time. He 
said they had plenty of friends in Washington, 
and that some fifteen or twenty were going.” 
This witness ascertained, on the Bth of April, 
that Harper and others had left for the States. 
The proof is, that these parties could come 
through to Washington, from Montreal or To- 
ronto, in thirty-six hours. They did come, and 
within the ten days named by Harper, the Pres- 
ident was murdered! Some attempts have been 
made to discredit this witness (Dr. Merritt), 
not by the examination of witnesses in court, 
not by any apparent want of truth in the testi- 
mony, but by the ex parte statements of these 
rebel agents in Canada, and their hired advo- 
cates in the United States. There is a state- 
ment upon the record, verified by an official 
communication from the War Department, 
which show's the truthfulness of this witness, 
and that is, that, before the assassination, 
learning that Harper and his associates had 
started for the States, informed, as he was, of 
their purpose to assassinate the President, Cab- 
inet and leading generals, Merritt deemed it 
his duty to call, and did call, on the 10th of 
April, upon a Justice of the Peace, in Canada, 
named Davidson, and gave him the informa- 
tion, that he might take steps to stop these 
proceedings. The correspondence on this sub- 
ject with Davidson has been brought into 
Court. Dr. Merritt testifies, further, that after 
this meeting in Montreal he had a conversa- 
tion with Clement C. Clay, in Toronto, about 
the letter from Jefferson Davis, which Sanders 
had exhibited, in which conversation Clay gave 
the witness to understand that he knew the 
nature of the letter perfectly, and remarked 
that he thought “the end would justify the 
means.” The witness also testifies to the pres- 
ence of Booth with Sanders in Montreal, last 
fall, and of Surratt in Toronto in February 
last. 
Dr. James B. Merritt testifies that George 
Young, one of the parties named in the record, 
declared in his presence, in Canada, last fall, 
that Lincoln should never be inaugurated; that 
they had friends in Washington, who, I sup- 
pose, were some of the same friends referred 
lo in the dispatch of October 13, and whom 
Davis had directed them “to set to work.” 
George N. Sanders also said to him “that Lin- 
coln would keep himself mighty close if he did 
serve another term;” while Steele and other 
confederates declared that the tyrant never 
should serve another term. He heard the as- 
sassination discussed at a meeting of these 
rebel agents in Montreal in February last. 
“Sanders said they had plenty of money to ac- 
complish the assassination, and named over a 
number of persons who wrere ready and willing 
to engage in undertaking to remove the Presi- 
dent, Vice-President, the Cabinet, and some of 
the leading generals. At this meeting he read 
a letter, which he had received from Davis, 
which justified him in making any arrange- 
ments that he could to accomplish the object.” 
This letter the witness heard read, and it, in 
substance, declared that if the people in Can- 
ada, and the Southerners in the States, were 
willing to submit to be governed by such a ty- 
rant as Lincoln, he didn’t wish to recognize 
them as friends. The letter was read openly; 
it was also handed to Colonel Steele, George 
Young, Hill and Scott to be read. This was 
about the middle of February last. At this 
meeting Sanders named over the persons who 
were willing to accomplish the assassination, 
and among the persons thus named was Booth, 
whom the witness had seen in Canada in Oc- 
tober; also, George Harper, one of the conspira- 
tors named on the record, Caldwell, Randall, 
Harrison and Surratt. 
The Court must be satisfied, by the manner 
of this and other witnesses to the transactions 
in Canada, as well as by the fact that they are 
wholly uncontradicted in any material matter 
that they state, that they speak the truth, and 
that the several parties named on your record 
(Davis, Thompson, Cleary, Tucker, Clay, Young, 
Harper, Booth and John H. Surratt), did coin- 
bine and conspire together, in Canada, to kill 
and murder Abraham Lincoln, Andrew John- 
son, William H. Seward and Ulysses S. Grant- 
That this agreement was substantially entered 
into by Booth and the agents of Davis in Can- 
ada as early as October there can not be any 
doubt. The language of Thompson at that 
time, and before, was that he was in favor of 
the assassination. His further language was, 
that he knew the men who were ready to do it I 
and Booth, it is shown,‘was there at that time, 
and, as Thompson’s secretary says, was one o 
the men referred to by Thompson. 
The fact that others, beside the parties name 
on the record, were, by the terms of the con- 
spiracy, to be assassinated, in nowise affec 
The witness understood, from the reading of 
the letter, that if the President, Vice-President 
and Cabinet could be disposed of, it would sat- 
isfy the people of the North that the Southern- 
ers hadyWczids in the North; that a peace could 
be obtained on better terms; that the rebels had 
endeavored to bring about a war between the 
United States and England, and that Mr. 
Seward, through his energy and sagacity, had 
thwarted all their efforts; that was given as a 
reason for removing him. On the sth or 6th of 
last April this witness met George Harper, 
Caldwell, Randall, and others, who are spoken 
of in this meeting, at Montreal, as engaged to 
assassinate the President and Cabinet, when 
Harper said they were going to the States to 
make a row, such as had never been bear'd of, 
and added, that “if I (the witness) did not ARGUMENT OF JOHN A. BINGHAM. 
379 
the case now on trial. If it is true that these 
parties did conspire to murder other parties, as 
well as those named upon the record, the sub- 
stance of the charge is proved. 
It is also true that, if, in pursuance of that 
conspiracy, Booth confederated with Surratt 
and the accused, killed and murdered Abraham 
Lincoln, the charge and specification is proved 
literally, as stated on your record, although 
their conspiracy embraced other persons. In 
law the case stands, though it may appear that 
the conspiracy was to kill and murder the 
parties named in the record and others not 
named in the record. If the proof is that the 
accused, with Booth, Surratt, Davis, etc., con- 
spired to kill and murder one or more of the 
persons named the charge of conspiracy is 
proved. 
The declaration of Sanders, as proved, that 
there was plenty of money to carry out this as- 
sassination, is very strongly corroborated by 
the testimony of Mr. Campbell, cashier of the 
Ontario Bank, who states that Thompson, during 
the current year preceding the assassination, 
had upon deposit, in the Montreal Branch of 
the Ontario Bank, six hundred and forty nine 
thousand dollars, beside large sums to his credit 
in other banks in the province. 
There is a further corroboration of the testi- 
mony of Conover as to the meeting of Thompson 
and Surratt in Montreal, and the delivery of 
the dispatches from Richmond, on the 6th or 
7th of April, first, in the fact, which is shown by 
the testimony of Chester, that in the winter, or 
spring, Booth said he himself, or some other 
party, must go to Richmond; and, second, by 
the letter of Arnold, dated 27th of March last, 
that he preferred Booth’s first query, that he 
would first go to Richmond and see how they 
would take it, manifestly alluding to the pro- 
posed assassination of the President. It does 
not follow, because Davis had written a letter 
in February, which, in substance, approved the 
general object, that the parties were fully satis- 
fied with it; because it is clear there was to be 
some arrangement made about the funds; and 
it is also clear that Davis had not before as 
distinctly approved and sanctioned this act as 
his agents, either in Canada or here, desired. 
Booth said to Chester, “We must have money; 
there is money in this business, and, if you will 
enter into it, I will place three thousand dollars 
at the disposal of your family; but I have no 
money myself, and must go to Richmond, or 
one of the parties must go, “to get money to 
carryout the enterprise.” This was one ot the 
arrangements that was to be “made right in 
Canada.” The funds at Thompson’s disposal, 
as the banker testifies, were exclusively raised 
by drafts of the Secretary of the Treasury ot 
the Confederate States upon London, deposited 
in their bank to the credit of Thompson. 
Accordingly, about the 27th of March, Sur- 
ratt did go to Richmond. On the 3d of April 
he returned to Washington, and the same day 
left for Canada. Before leaving, he stated to 
Weichmann that when in Richmond he had 
had a conversation with Davis and with Ben- 
jamin. The fact in this connection is not to 
be overlooked, that on or about the day Surratt 
arrived in Montreal, April 6th, Jacob Thomp- 
son, as the cashier of the Ontario Bank states, 
drew of these Confederate funds the sum of 
one hundred and eighty thousand dollars in 
the form of certificates, which, as the bank of- 
ficer testifies, “might be used anywhere.” 
What more is wanting? Surely no Avord 
further need be spoken to show that John 
Wilkes Booth was in this conspiracy; that 
John H. Surratt was in this conspiracy; and 
that Jefferson Davis and his several agents 
named, in Canada, were in this conspiracy. 
If any additional evidence is wanting to show 
the complicity of Davis in it, let the paper 
found in the possession of his hired assassin, 
Booth, come to bear witness against him. 
That paper contained the secret cipher which 
Davis used in his State Department, at Rich- 
mond, which he employed in communicating 
with his agents in Canada, and which they 
employed in the letter of October 13th, noti- 
fying him that '‘their friends would be set to 
work as he had directed The letter in cipher 
found in Booth’s possession, is translated here 
by the use of the cipher machine now in Court, 
which, as the testimony of Mr. Dana shows, 
he brought from the rooms of Davis’ State 
Department in Richmond. Who gave Booth 
this secret cipher? Of what use was it to 
him if he was notin confederation with Davis? 
But there is one other item of testimony 
that ought, among honest and intelligent peo- 
ple at all conversant witliHhis evidence, to 
end all further inquiry as to whether Jeffer- 
son Davis was one of the parties, with Booth, 
as charged upon this record, in the conspiracy 
to assassinate the President and others. That 
is, that on the fifth day after the assassination, 
in the city of Charlotte, North Carolina, a 
telegraphic dispatch was received by him, at 
the house of Mr. Bates, from John C. Breck- 
inridge, his rebel Secretary of War, which 
dispatch is produced here, identified by the 
telegraph agent, and placed upon your record 
in the words following; 
“ Greensboro’, April 19, 1865. 
“ I/is Excellency, President Davis : 
“ President Lincoln was assassinated in the 
theater in Washington on the night of the 14th 
inst. Seward’s house was entered on the same 
night and he was repeatedly stabbed, and is 
probably mortally wounded. 
“JOHN C. BRECKINRIDGE.” 
At the time this dispatch was handed to 
him, Davis was addressing a meeting ti om the 
steps of Mr. Bates’ house, and after reading 
the dispatch to the people, he said; “If it were 
to be done, it were better it were well done.” 
Shortly afterward, in the house of the witness, 
in the same city, Breckinridge, having come to 
see Da vis, stated his regret that the occurrence 
had happened, because he deemed it unfortu- 
nate for the people of the South at that time. 
Davis replied, referring to the assassination, 
“ Well, General, I don’t know; if it were to be 
done at all, it were better that it were well 
done; and if the same had beendbne to Andy 
Johnson, the beast, and to Secretary Stanton, 
the job would then be complete.” 380 
THE CONSPIRACY TRIAL. 
Accomplished as this man was in all the arts 
of a conspirator, he was not equal to the task 
■—as happily, in the good providence of God, 
no mortal man is—of concealing, by any form 
of words, any great crime which he may have 
meditated or perpetrated either against his 
Government or his fellow-men. It was doubt- 
less furthest from Jefferson Davis’purpose to 
make confession. His guilt demanded utter- 
ance; that demand he could not resist; there- j 
fore his words proclaimed his guilt, in spite of j 
his purpose to conceal it. He said, “If it were] 
to be done, it were better it were well done." \ 
Would any man, ignorant of the conspiracy, be 
able to devise and fashion such a form of speech 
as that ? Had not the President been murdered ? 
Had he not reason to believe that the Secretary 
of State had been mortally wounded ? Yet he 
was not satisfied, but was compelled to say, “it 
were better it were well done”—that is to say, all 
that had been agreed to be done had not been 
done. Two days afterward, in his conversa- 
tion with Breckinridge, he not only repeats the 
same form of expression—“if it were to be 
done it were better it were well done"—but adds 
these words; “And if the same had been done 
to Andy Johnson, the beast, and to Secretary 
Stanton, the job would then be complete." He 
would accept the assassination of the Presi- 
dent, the Vice-President, of the Secretary of 
State, and the Secretary of War, as a complete 
execution of the “job” which he had given out 
upon contract, and which he had “made all 
right,” so far as the pay was concerned, by the 
dispatches he had sent to Thompson by Sur- 
ratt, one of his hired assassins. Whatever may 
be the conviction of others, my own conviction 
is that Jefi'erson Davis is as clearly proven 
guilty of this conspiracy as is John Wilkes Booth, 
by whose hand Jefferson Davis inflicted the 
mortal wound upon Abraham Lincoln. His 
words of intense hate, and rage, and disappoint- 
ment, are not to be overlooked—that the assas- 
sins had not done their work well; that they 
had not succeeded in robbing the people alto- 
gether of their Constitutional Executive and 
his advisers; and hence he exclaims, “If they 
had killed Andy Johnson, the beast! ” Neither 
can he conceal his chagrin and disappointment 
that the War Minister of the Republic, whose 
energy, incorruptible integrity, sleepless vigi- 
lance, and executive ability had organized day 
by day, month by month, and year by year, 
victory for our arms, had escaped the knife of 
the hired assassins. The job, says this pro- 
curer of assassination, was not well done; it 
had been better if it had been well done! Be- 
cause Abraham Lincoln had been clear in his 
great office, and had saved the nation’s life by 
enforcing the nation’s laws, this traitor de- 
clares he must be murdered; because Mr. Sew-' 
ard, as the foreign Secretary of the country, I 
had thwarted the purposes of treason to plunge i 
his country into a war with England, he must 
be murdered; because, upon the murder of 
Mr. Lincoln, Andrew Johnson would succeed 
to the Presidency, and because he had been true 
to the Constitution and Government, faithful 
found among the faithless of his own State, 
clinging to the falling pillars of the Republic 
when others had fled, he must be murdered; 
and because the Secretary of War had taken 
care by the faithful discharge of his duties, 
that the Republic should live and not die, he 
must, be murdered. Inasmuch as these two 
faithful officers were not also assassinated, as- 
suming that the Secretary of State was mor- 
tally wounded, Davrs could not conceal his 
disappointment and chagrin that the work was 
not “well done,” that the “job was not complete!” 
| Thus it appears by the testimony that the 
proposition made to Davis was to kill and 
murder the deadliest enemies of the Confed- 
eracy—not to kidnap them, as is now pretended 
here; that by the declaration of Sanders, 
Tuckbr, Thompson, Clay, Cleary, Harper, and 
Young, the conspirators in Canada, the agree- 
ment and combination among them was to 
kill and murder Abraham Lincoln, William H. 
Seward, Andrew Johnson, Ulysses S. Grant, 
Edwin M. Stanton, and others of his advisors, 
and not to kidnap them ; it appears from every 
utterance of John Wilkes Booth, as well as 
from the Charles Selby letter, of which men- 
tion will presently be made, that, as early as 
November, the proposition with him was to 
kill and murder—not to kidnap. 
Since the first examination of Conover, wrho 
testified, as the Court will remember, to many 
important facts against these conspirators and 
agents of Davis in Canada, among others, the 
terrible and fiendish plot, disclosed by Thomp- 
son, Fallen, and others, that they had ascer- 
tained the volume of water in the reservoir 
supplying New York city, estimated the quan- 
tity of poison required to render it deadly, and 
intended thus to poison a whole city, Conover 
returned to Canada, by direction of this Court, 
for the purpose of obtaining certain document- 
ary evidence. There, about the 9th of June, he 
met Beverley Tucker, Sanders, and other con- 
spirators, and conversed with them. Tucker 
declared that Secretary Stanton, whom he de- 
nounced as “a scoundrel,” and Judge Holt, 
whom he called “a bloodthirsty villain,” could 
protect themselves, as long as they remained 
in office, by a guard, but that would not always 
be the case, and, by the Eternal! he had a 
large account to settle with them.” After this, 
the evidence of Conover here having been pub- 
lished, these parties called upon him, and 
asked him whether he had been to Washington 
and bad testified before this Court. Conover 
denied it; they insisted, and took him to a room, 
where, with drawn pistols, they compelled him 
to consent to make an affidavit that he had been 
falsely personated here by another, and that he' 
would make that affidavit before a Mr. Kerr, 
who would witness it. They then called in Mr. 
Kerr to certify to the public that Conover had 
made such a denial. They also compelled this 
witness to furnish, for publication, an adver- 
tisement, offering a reward of five hundred dol- 
lars for the arrest of the “infamous and per* 
jured scoundrel” who had recently personated 
James W. Wallace under the name of Sanford 
Conover, and testified to a tissue of falsehoods 
before the Military Commission at Washington, 
which advertisement was published in the pa* 
pers. ARGUMENT OF JOHN A. BINGHAM. 
To these facts Mr. Conover now testifies, and 
also discloses the fact that these same men pub- 
lished, in the report of the proceedings before 
Judge Smith, an affidavit purporting to be his, 
but which he never made. The affidavit which 
he in fact made, and which was published in a 
newspaper at that time, produced here, is set 
out substantially upon your record, and agrees 
with the testimony upon the same point given 
by him in this Court. 
To suppose that Conover ever made such an 
affidavit, voluntarily, as the one wrung from 
him as stated, is impossible. Would he adver- 
tise for his own arrest, and charge himself with 
falsely personating himself? But the fact can 
not evade observation, that, when these guilty 
conspirators saw Conover’s testimony before 
this Court in the public prints, revealing to the 
world the atrocious plots of these felon conspir- 
ators, conscious of the truthfulness of his state- 
ments, they cast about at once for some defense 
before the public, and devised the foolish and 
stupid invention of compelling him to make an 
affidavit that he was not Sanford Conover, was 
not in this Court, never gave this testimony, 
but was a practicing lawyer in Montreal! This 
infamous proceeding, coupled with the evi- 
dence before detailed, stamps these ruffian 
plotters with the guilt of this conspiracy. 
John Wilkes Booth having entered into this 
conspiracy in Canada, as has been shown, as 
early as October, he is next found in the city 
of New York, on the 11th day, as I claim, of' 
November, in disguise, in conversation with 
another, the conversation disclosing to the wit- 
ness, Mrs. Hudspeth, that they had some mat- 
ter of personal interest between them; that 
upon one of them the lot had fallen to go to 
Washington; upon the other to go to Newbern. 
This witness, upon being shown the photograph 
of Booth, swears “that the facets the-same” 
as that of one of those men, who, she says, was 
a young man of education and culture, as ap- 
peared by his conversation, and who had a 
scar, like a bite, near the jaw-bone. It is a 
fact, proved here by the Surgeon-General, that 
Booth had such a scar on the side of his neck. 
Mrs. Hudspeth heard him say he would leave 
for Washington the day after to-morrow. His 
companion appeared angry because it had not 
fallen on him to go to Washington. This took 
place after the Presidential election in Novem- 
ber. She can not fix the precise date, but 
says she was told that General Butler left New 
York on that day. The testimony discloses 
that General Butler’s army was, on the 11th 
of November, leaving New York. The register 
of the National Hotel shows that Booth left 
Washington on the early morning train, No- 
vember 11, and that he returned to this city on 
the 14th. Chester testifies positively to Booth s 
presence in New York early in November. 
This testimony shows most conclusively that 
Booth was in New York on the 11th of Novem- 
ber. The early morning train on which he 
left Washington would reach New York early 
in the afternoon of that day. Chester saw him 
there early in November, and Mrs. Hudspeth 
no.t only identifies his picture, but describes 
his person. The scar upon his neck, near his 
jaw, was peculiar, and is well described by the 
witness as like a bite. On that day Booth had 
a letter in his possession which he accidentally 
dropped in the street car in the presence of 
Mrs. Hudspeth, the witness, who delivered it 
to Major-General Dix the same day, and by 
whom, as his letter on file before this Court 
shows, the same was transmitted to the War 
Department, November 17, 1864. That letter 
contains these words: 
“Dear Louis: The time has at last come 
that we have all so wished for, and upon you 
every thing depends. As it was decided, be- 
fore you left, we were to cast lots; we accord- 
ingly did so, and you are to be the Charlotte 
Corday of the 19th century. When you re- 
member the fearful, solemn vow Aiat was taken 
by us, you will feel there is no drawback. 
Abe must die, and now. You can choose your 
weapons—the cup, the knife, the bullet. The 
cup failed us once, and might again. Johnson, 
who will give this, has been like an enraged 
demon since the meeting, because it has not 
fallen upon him to rid the world of the mon- 
ster. * * * You know where to 
find your friends. Your disguises are so perfect 
and complete, that, without one knew your face, 
no police telegraphic dispatch would catch 
you. The English gentleman, Harcourt, must 
not act hastily. Remember he has ten days. 
Strike for your home, strike for your country; 
hide your time, but strike sure. Get introduced; 
congratulate him; listen to his stories (not 
many moi’e will the brute tell to earthly 
friends); do anything but fail, and meet us at 
the appointed place within the fortnight. You 
will probably hear from me in Washington. 
Sanders is doing us no good in Canada. 
“CHAS. SELBY.” 
The learned gentleman (Mr. Cox), in his 
very able and considered argument 
in defense of O’Laughlin and Arnold, attached 
importance to this letter, and, doubtless, very 
clearly saw its bearing upon the case, and, 
therefore, undertook to show that the witness, 
Mrs. Hudspeth, must be mistaken as to the 
person of Booth. The gentleman assumes that 
the letter of General Dix, of the 17th of No- 
vember last, transmitting this letter to the War 
Department, reads that the party who dropped 
the letter was heard to say that he would start 
to Washington on Friday night next, although 
the word “next” is not in the letter; neither is 
it in the quotation which the gentleman makes, 
for he quotes it fairly; yet he concludes that 
this would be the 18th of November. 
Now, the fact is, the 11th of November last 
was Friday, and the register of the National Ho- 
tel bears witness that Mrs. Hudspeth is not 
mistaken; because her language is, that Booth 
said he would leave for Washington day after 
to-morrow, which would be Sunday, the 13th, 
and if in the evening, would bring him to 
Washington on Monday, the 14th of November, 
the day on which, the register shows, he did re- 
turn to the National Hotel. As to the improb- 
ability which the gentleman raises, on the con- 
versation happening in a street car, crowded 
with people, there was nothing that transpired. 382 
THE CONSPIRACY TRIAL. 
although the conversation was earnest, which 
enabled the witness, or could have enabled any 
one, in the absence of this letter, or of the sub- 
sequent conduct of Booth, to form the least 
idea of the subject-matter of their conversa- 
tion. The gentleman does not deal altogether 
fairly in his remarks touching the letter of 
General Dix; because, upon a careful exami- 
nation of the letter, it will be found that he did 
not form any such judgment as that it was a 
hoax for the Sunday Mercury, but he took care 
to forward it to the Department, and asked at- 
tention to it; when, as appears by the testimony 
of the Assistant Secretary of War, Mr. Dana, 
the letter was delivered to Mr. Lincoln, who 
considered it important enough to indorse it 
with the word “ Assassination,” and file it in 
his office, where it was found after the commis- 
sion of this crime, and brought into this Court 
to bear witness against his assassins. 
Although this letter would imply that the as- 
sassination spoken of was to take place speedily, 
yet the party was to hide his time. Though he 
had entered into the preliminary arrangements 
in Canada; although conspirators had doubtless 
agreed to co-operate with him in the commis- 
sion of the crime, and lots had been cast for 
the chief part in the bloody drama, yet it re- 
mained for him, as the leader and principal of 
the hired assassins, by whose hand their em- 
ployers were to strike the murderous blow, to 
collect about him and bring to Washington 
such persons as would be willing to lend them- 
selves for a price to the horrid crime, and likely 
to give the necessary aid and support in its 
consummation. The letter declares that Abra- 
ham Lincoln must die, and now, meaning as 
soon as the agents can be employed, and the 
woikdone. To that end you will bide your 
time. But says the gentleman, it could not 
have been the same conspiracy charged here 
to which this letter refers. Why not? It is 
charged here that Booth with the accused and 
Others conspired to kill and murder Abraham 
Lincoln—that is precisely the conspiracy dis- 
closed in the letter. Granted that the parlies 
on trial had not then entered into the combi- 
nation; if they at any time afterward entered 
into it they became parties to it, and the con- 
spiracy was still the same. But, says the gen- 
tleman, the words of the letter imply that the 
conspiracy was to be executed within the fort- 
night. Booth is directed, by the name of Louis, 
to meet the writer within the fortnight. It by 
no means follows that he was to strike within 
the fortnight, because lie was to meet his co- 
conspirator within that time, and any such con- 
clusion is excluded by the words, “Bide your 
time.” Even if the conspiracy was to be exe- 
cuted within the fortnight, and was not so exe- 
cuted, and (he same party, Booth, afterward by 
concert and agreement with the accused and 
others, did execute it by “striking sure’’ and 
killing the President, that act, whenever done, 
would be but tire execution of the same conspir- 
acy. The letter is conclusive evidence of so 
much of this conspiracy as relates to the mur- 
der of President Lincoln. As Booth was to do 
anything but fail, he immediately thereafter 
«ought out the agents to enable him to strike 
sure,'and execute all that lie had agreed with 
Davis and his co-confederates in Canada to do 
—to murder the President, the Secretary of 
State, the Vice-President, General Grant, and 
Secretary Stanton. 
Even Booth’s co-conspirator, Payne, now on, 
his trial, by his defense admits all this, and 
says Booth had just been to Canada, “ was filled 
with a mighty scheme, and was lying in wait 
for agents.” Booth asked the co-operation of 
the prisoner, Payne,' and said: “1 will give 
you as much money as you want; but first you 
must swear to stick by me. It is in the oil 
business.” This, you arc told by the accused, 
was early in March last. Thus guilt bears 
witness against itself. 
We find Booth in New York in November, 
December and January, urging Chester to 
enter into this combination, assuring him that 
there was money in it; that they had “ friends 
on the other side;” that if he would only par- 
ticipate in it he would never want for money 
while he lived, and all that was asked of him 
was to stand at and open the hack door of Fords 
theater. Booth, in his interviews with Chester, 
confesses that he is without money himself, and 
allows Chester to reimburse him the SSO which 
he (Booth) had transmitted to him in a letter 
for the purpose of paying his expenses to 
Washington as one of the parties to this con- 
spiracy. Booth told him, although he himself 
was penniless, “ there is money in this—we have 
friends on the other side;” and if you will but 
engage, I will have three thousand dollars de- 
posited at once for the use of your family. 
Failing to secure the services of Chester, be- 
cause his soul recoiled with abhorrence from 
the foul work of assassination and murder, he 
found more willing instruments in others whom 
he gathered about him. Men to commit the 
assassinations, horses to secure speedy and cer- 
tain escape, were to be provided, and to this 
end Booth, with an energy worthy of a better 
cause, applies himself. For this latter purpose 
he told Chester he had already expended $5,000. 
In the latter part of November, 1864, he visits 
Charles county, Maryland, and is in company 
with one of the prisoners, Dr. Samuel A. Mudd, 
with whom he lodged over night, and through 
whom he procures of Gardner one of the sev- 
eral horses which were at his disposal, and used 
by him and his co-conspirators in Washington 
on the night of the assassination. 
Some time in January last, it is in testimony, 
that the prisoner, Mudd, introduced Booth t* 
John H. Surratt and the witness, Weichmann; 
that Booth invited them to the National Hotel; 
that when there, in the room to which Booth 
took them, Mudd went out into the passage, 
called Booth out and had a private conversa- 
tion with him, leaving the witness and Surratt 
in the room. Upon their return to the room. 
Booth went out with Surratt, and upon their 
coming in, all three, Booth, Surratt, and Sam- 
uel A. Mudd, went out together and had a con- 
versation in the passage, leaving the witness 
alone. Up to the time of this interview, A 
seems that neither the witness nor Surratt had 
any knowledge of Booth, as they were then 
introduced to him by Dr. Mudd. Whether bur- ARGUMENT OF JOHN A. BINGHAM. 
383 
ratt had in fact previously known Booth, it is 
not important to inquire. Mudd deemed it 
necessary, perhaps a wise precaution, to intro- 
duce Surratt to Booth; he also deemed it neces- 
sary to have a private conversation with Booth 
shortly afterward, and directly upon that to 
have a conversation together with Booth and 
Surratt alone. Had this conversation, no part 
of which was heard by the witness, been per- 
fectly innocent, it is not to be presumed that 
Dr. Mudd, who was an entire stranger to 
Weichmann, would have deemed it necessary to 
hold the conversation secretly, nor to have vol- 
unteered to tell the witness, or rather pretend 
to tell him, what the conversation was; yet he 
did say to the witness, upon their return to the 
room, by way of apology, I suppose, for the 
privacy of the conversation, that Booth had 
some private business with him and wished to 
purchase his farm. This silly device, as is of- 
ten the case in attempts at deception, failed in 
the execution; for it remains to be shown, how 
the fact that Mudd had private business with 
Booth, and that Booth wished to purchase his 
farm, made it at all necessary or even proper 
that they should both volunteer to call out Sur- 
ratt, who up to that moment was a stranger to 
Booth. What had Surratt to do with Booth’s 
purchase of Mudd’s farm? And if it was nec- 
essary to withdraw and talk by themselves se- 
cretly about the sale of the farm, why should 
they disclose the fact to the very man from 
whom they had concealed it ? 
Upon the return of these three parties to the 
room, they seated themselves at a table, and 
upon the back of an envelope Booth traced lines 
with a pencil, indicating, as the witness states, 
the direction of roads. Why was this done ? 
As Booth had been previously in that section of 
country, as the prisoner in his defense has 
taken great pains to show, it was certainly not 
necessary to anything connected with the pur- 
chase of Mudd’s farm that at that time he 
should be indicating the direction of roads to 
or from it; nor is it made to appear, by any- 
thing in this testimony, how it comes that Sur- 
ratt, as the witness testifies, seemed to be as 
much interested in the marking out of these 
roads as Mudd or Booth. It does not appear 
that Surratt was in anywise connected with or 
interested in the sale of Mudd s farm. From 
all that has transpired at this meeting at the 
hotel, it would seem that this plotting the roads 
was intended, not so much to show the road to 
Mudd's farm, as to point out the shortest and 
safest route for flight from the capital, by the 
houses of all the parties to this conspiracy, to 
their “ friends on the other side.” 
But, saj's the learned gentleman (Mr. Ewing), 
in his very able argument in defense of this 
prisoner, why should Booth determine that his 
flight should be through Charles county ? The 
answer must be obvious, upon a re- 
flection, to every man, and could not possibly 
have escaped the notice of the counsel himself, 
but for the reason that his zeal for his client | 
constrained him to overlook it. It was abso- j 
lutely essential that this murderer should have 
his co-conspirators at convenient points along 
his route, and it does not appear in evidence! 
that by the route to his friends, who had then 
lied from Richmond, which the gentleman (Mr. 
Ewing) indicates as the more direct, but of 
which there is not the slightest evidence what- 
ever, Booth had co-conspirators at an equal 
distance from Washington. The testimony 
discloses, further, that on the route selected by 
him tor his flight there is a large population 
that would be most likely to favor and aid him 
in the execution of his wicked purpose, and in 
making his escape. But it is a sufficient answer 
to the gentleman’s question, that Booth’s co-con- 
spirator Mudd lived in Charles county. 
To return to the meeting at the hotel. In the 
light of other facts in this case, it must become 
clear to the Court that this secret meeting between 
Booth, Surratt, and Mudd was a conference 
looking to the execution of this conspiracy. It 
so impressed the prisoner—it so impressed his 
counsel, that they deemed it necessary and ab- 
solutely essential to their defense to attempt to 
destroy the credibility of the witness Weich- 
mann. 
I may say here, in passing, that they have 
not attempted to impeach his general reputation 
for truth by the testimony of a single witness, 
nor have they impeached his testimony by call- 
ing a single witness to discredit one material 
fact to which he has testified in this issue. 
Failing to find a breath of suspicion against 
Weichmann’s character, or to contradict a single 
fact to which he testified, the accused had to tly 
to the last resort, an alibi, and very earnestly 
did the learned counsel devote himself to the 
task. 
It is not material whether this meeting in the 
hotel took place on the 23d of December or in Jan- 
uary, But, says the counsel, it was after the 
commencement or close of the Congressional 
holiday. That is not material; but the concur- 
rent resolution of Congress shows that the 
holiday commenced on the 22d December, the 
day before the accused spent the evening in 
Washington. The witness is not certain about 
the date of this meeting. The material fact is, did 
this meeting take place—either on the 23d of De- 
cember or in January last? Were the private 
interviews there held, and was the apology 
made, as detailed, by Mudd and Booth, after 
the secret conference, to the witness ? That the 
meeting did take place, and that Mudd did ex- 
plain that these secret interviews, with Booth 
first, and with Booth and Surratt directly after- 
ward, had relation to the sale of his farm, is 
confessedly admitted by the endeavor of the 
prisoner, through his counsel, to show that ne- 
gotiations had been going on between Booth 
and Mudd for the sale of Mudd’s farm. If no 
such meeting was held, if no such explanation 
was made by Mudd to Weichmann, can any 
man for a moment believe that a witness would 
have been called here to give any testimony 
about Booth having negotiated for Mudd’s farm? 
What conceivable connection has it with this 
case, except to show that Mudd’s explanation to 
Weichmann for his extraordinary conduct was 
in exact accordance with the fact? Or was this 
testimony about the negotiat ions for Mudd’s farm 
intended to show so close an intimacy and in- 
tercourse with Booth that Mudd could not fail t* 384 
THE CONSPIRACY TRIAL. 
recognize him when he came flying for aid to his 
, house from the work of assassination? It would 
be injustice to the able counsel to suppose that. 
I have said that it was wholly immaterial 
whether this conversation took place on the 23d 
of December or in January; it is in evidence 
that in both those months Booth was at the 
National Hotel; that he occupied a room there; 
that he arrived there on the 22d and was there 
on the 23d of December last, and also on the 
12th day of January. The testimony of the 
witness is, that Booth said he had just come 
in. Suppose this conversation took place in 
December, on the evening of the 23d, the time 
when it is proved by J. T. Mudd, the witness 
fbr the accused, that he, in company with Sam- 
uel A. Mudd, spent the night in Washington 
city. Is there anything in the testimony of 
that or any other witness to show that the ac- 
cused did not have and could not have had an 
interview with Booth on that evening ? J. T. 
Mudd testifies that he separated from the pris- 
oner, Samuel A. Mudd, at the National Hotel 
early in the evening of that day, and did not 
meet him again until the accused came in for 
the night at the Pennsylvania House, where he 
stopped. Where was Dr. Samuel A. Mudd 
during this interval? What does his witness 
know about him during that time ? How can 
he say that Dr. Mudd did not go up on Seventh 
street in company with Booth, then at the Na- 
tional; that he did not on Seventh street meet 
Surratt and Weichmann ; that he did not return 
to the National Hotel; that he did not have this 
interview, and afterward meet him, the witness, 
as he testifies, at the Pennsylvania House ? Who 
knows that the Congressional holiday had not in 
fact commenced on that day? What witness has 
been called to prove that Booth did not on either 
of those occasions occupy the room that had for- 
merly been occupied by a member of Congress, 
who had temporarily vacated it, leaving his 
books there? Weichmann, I repeat, is not posi- 
tive as to the date, he is only positive as to the 
fact; and he disclosed voluntarily, to this 
Court, that the date could probably be fixed by 
a reference to the register of the Pennsylvania 
House; that register can not, of course, be con- 
clusive of whether Mudd was there in January 
or not, for the very good reason that the pro- 
prietor admits that he did not know Samuel A. 
Mudd, therefore Mudd might have registered 
by any other name. Weichmann does not pre- 
tend to know that Mudd had registered at all. 
If Mudd was here in January, as a party to 
this conspiracy, it is not at all unlikely that, if 
he did register at that time in the presence of a 
man to whom he was wholly unknown, his 
kinsman not then being with him, he would reg- 
ister by a false name. But if the interview took 
place in December, the testimony of Weichmann 
bears as strongly against the accused as if it 
had happened in January. Weichmann says 
he does not know what time was occupied in 
this interview at the National Hotel; that it 
probably lasted twenty minutes; that, after the 
private interviews between Mudd and Surratt 
and Booth, which were not of very long dura- 
tion, had terminated, the parties went to the 
Pennsylvania House, where Dr. Mudd had! 
rooms, and after sitting together in the common 
I sitting-room of the hotel, they left Dr. Mudd 
there about 10 o’clock, P. M., who remained 
during the night. Weichmann’s testimony 
leaves no doubt that this meeting on Seventh 
street and interview at the National took place 
after dark, and terminated before 10 o’clock, P. 
M. His own witness, J. T. Mudd, after stating 
that he separated from the accused at the Na- 
tional Hotel, says after he had got through a 
conversation with a gentleman of his acquaint- 
ance, he walked down the Avenue, went to sev- 
eral clothing stores, and “after a while” 
walked round to the Pennsylvania House, and 
“very soon after” he got there Dr. Mudd came 
in, and they went to bed shortly afterward. 
What time he spent in his “ walk alone ” on 
the Avenue, looking at clothing; what period he 
embraces in the terms “ after a while,” when 
he returned to the Pennsylvania House, and 
“ soon after ” which Dr. Mudd got there, the 
witness does not disclose. Neither does he 
intimate, much less testify, that he saw Dr. 
Mudd when he first entered the Pennsylva- 
nia House on that night after their separation. 
How does he know that Booth and Surratt and 
Weichmann did not accompany Samuel A. 
Mudd to that house that evening? How does 
he know that the prisoner and those persons 
did not converse together some time in the sit- 
ting-room of the Pennsylvania! Hotel ? Jere- 
miah Mudd has not testified that he met Doctor 
Mudd in that room, or that he was in it him- 
self. He has, however, sworn to the fact, which 
is disproved by no one, that the prisoner was 
separated from him long enough that evening 
to have had the meeting with Booth, Surratt, 
and Weichmann, and the interviews in the 
National Hotel, and at the Pennsylvania House, 
to which Weichmann has testified? Who is 
there to disprove it ? Of what importance is 
it whether it was' on the 23d day of December 
or in January ? How does that affect the cred- 
ibility of Weichmann? He is a man, as I have 
before said, against whose reputation for\truth 
and good conduct they have not been able to 
bring one witness. If this meeting did by 
possibility take place that night, is there any- 
thing to render it improbable that Booth, and 
Mudd, and Surratt did have the conversation 
at the National Hotel to which Weichmann 
testifies? Of what avail, therefore, is the at- 
tempt to prove that Mudd was not here during 
January, if it was clear that he was here on 
the 23d of December, 1864, and had this conver- 
sation with Booth ? That this attempt to prove 
an alibi during January has failed, is quite as 
clear as is the proof of the fact that the prisoner 
was here on the evening of the 23d of December, 
and present in the National Hotel, where Booth 
stopped. The fact that the prisoner, Samuel A- 
Mudd, went with J. T. Mudd on that evening 
to the National Hotel, and there separated from 
him, is proved by his own witness, J. T. Mudd; 
and that he did not rejoin him until they had 
retired to bed in the Pennsylvania House m 
proved by the same witness, and contradictec 
by nobody. Does any one suppose there wouK 
have been such assiduous care to prove that the 
prisoner was with his kinsman all the time on ARGUMENT OF JOHN A. BINGHAM. 
the 23d of December in Washington, if they 
had not known that Booth was then at the Na- 
tional Hotel, and that a meeting of the pris- 
oner with Booth, Surratt, and Weichmann on 
that day would corroborate Weichmann’s testi- 
mony in every material statement he made con- 
cerning that meeting ? 
The accused having signally failed to ac- 
count for his absence after he separated from 
his witness, J. T. Mudd, early in the evening 
of the 23d of December, at the National Hotel, 
until they had again met at the Pennsylvania 
House, when they retired to rest, he now at- 
tempts to prove an alibi as to the month of 
January. In this he has failed, as he failed in 
the attempt to show that he could not have met 
Booth, Surratt and Weichmann on the 23d of 
December. 
ton testifies. Thomas Davis was called for the 
same purpose, but stated that he was himself 
absent one night in January, after the 9th of 
that month, and he could not say whether Mudd 
was there on that night or not. He does tes- 
tify to Mudd’s absence over night three times, 
and fixes one occasion on the night of the 26th 
of January. In consequence of his own ab- 
sence one night in January, this witness can 
not account for the absence of Mudd on the 
night referred to by Betty Washington. 
This matter is entitled to no further atten- 
tion. It can satisfy no one, and the burden of 
proof is upon the prisoner to prove that he was 
not in Washington in January last. How can 
such testimony convince any rational man that 
Mudd was not here in January, against the evi- 
dence of an unimpeached witness, who swears 
that Samuel A. Mudd was in Washington in 
the month of January? Who that has been 
examined here as a witness knows that he was 
not? 
For this purpose the accused calls Betty 
Washington. She had been at Mudd’s house 
every night since the Monday after Christmas 
last, except when here at court, and says that 
the prisoner, Mudd, has only been away from 
home three nights during that time. This wit- 
ness forgets that Mudd has not been at home 
any night or day since this Cotirt assembled. 
Neither does she account for the three nights in 
which she swears to his absence from home. 
First, she says he went to Gardner’s party; 
second, he went to Giesboro, then to Washing- 
ton. She does not know in what month he was 
away, the second time, all night. She only 
knows where he went, from what he and his 
wife said, which is not evidence; but she does 
testify that when he left home and was absent 
over night, the second time, it was about two 
or three weeks after she came to his house, 
which would, if it were three weeks, make it 
just about the 15th of January, 1865 ; because 
she swears she came to his house on the first 
Monday after Christmas last, which was the 
26th day of December; so that the 16th of Jan- 
uary would be three weeks, less one day, from 
that time; and it might have been a week ear- 
lier according to her testimony, as, also, it 
might have been a week earlier, or more, by 
Weichmann’s testimony, for he is not positive 
as to the time. What I have said of the regis- 
ter of the Pennsylvania House, the headquar- 
ters of Mudd and Atzerodt, I need not here re- 
peat. That record proves nothing, save that 
Dr. Mudd was there on the 23d of December, 
Which, as we have seen, is a fact, along with 
others, to show that the meeting at the Nation- 
al then took place. I have also called the at- 
tention of the Court to the fact that if Mudd 
was at that house again in January, and did 
not register his name, that fact proves nothing; 
or, if he did, the register only proves that he 
registered falsely; either of which facts might 
have happened without the knowledge of the 
witness called by the accused from that house, 
who does not know Samuel A. Mudd person- 
ally. 
The testimony of Henry L. Mudd, his brother, 
in support of this alibi, is, that the prisoner 
Was in Washington on the 23d of March, and 
°n the 10th of April, four days before the mur- 
der! But he does not account for the absent 
fiight jn January, about which Betty Washing- 
The Rev. Mr. Evans swears that he saw him 
in Washington last winter, and that at the 
same time he saw Jarboe, the one coming out 
of, and the other going into, a house on H 
street, which he was informed on inquiry, was 
the house of Mrs. Surratt. Jarboe is the only 
witness called to contradict Mr. Evans, and he 
leaves it in extreme doubt whether he does not 
corroborate him, as he swears that he was here 
himself last winter or fall, but can not state ex- 
actly the time. Jarboe’s silence on questions 
touching his own credibility leaves no room for 
any one to say that his testimony could im- 
peach Mr. Evans, whatever he might swear. 
Miss Anna H. Surratt is also called for the 
purpose of impeaching Mr. Evans. It is suffi- 
cient to say of her testimony on that point that 
she swears negatively only—that she did not 
see either of the persons named at her mother’s 
house. This testimony neither disproves, nor 
does it even tend to disprove, the fact put in 
issue by Mr. Evans. No one will pretend, 
whatever the form of her expression in giving 
her testimony, that she could say more than 
that she did not know the fact, as it was im- 
possible that she could know who was, or who 
was not, at her mother’s house, casually, at a 
period so remote. It is not my purpose, nei- 
ther is it needful here, to question in any way 
the integrity of this young woman. 
It is further in testimony that Samuel A. 
Mudd was here on the 3d day of March last, 
the day preceding the inauguration, when 
Booth was to strike the traitorous blow, and it 
was, doubtless, only by the interposition of 
that God who stands within the shadow and 
keeps watch above his own, that the victim of 
this conspiracy was spared that day from the 
assassin’s hand that he might complete his 
work and see the salvation of his country in 
the fall of Richmond and the surrender of its 
great army. Dr. Mudd was here on that day 
(the 3d of March) to abet, to encourage, to 
nerve his co-conspirator for the commission of 
this great crime. He was carried away by the 
awful purpose which possessed him, and rushed 
into the room of Mr. Norton at the National 
Hotel in search of Booth, exclaiming excitedly: 386 
THE CONSPIRACY 
“I’m mistaken; I thought this was Mr. Booth’s 
room.” He is told Mr. Booth is above, on the 
next floor. He is followed by Mr. Norton, be- 
cause of his rude and excited behavior, and be- 
ing followed, conscious of his guilty errand, he 
turns away, afraid of himself and afraid to be 
found in concert with his fellow-confederate. 
Mr. Norton identifies the prisoner, and has no 
doubt that Samuel A. Mudd is the man. 
the force of this testimony, that Mr. Norton 
did not, in communicating this matter to Mr. 
King, make mention of Booth’s name; be- 
cause there was nothing in the transaction, 
at the time, he being ignorant of the name 
of Mudd, and equally ignorant of the con- 
spiracy between Mudd and Booth, to give the 
least occasion for any mention of Booth or of 
the transaction further than as he detailed it. 
With such corroboration, who can doubt the 
fact that Mudd did enter the room of Mr. 
Norton, and was followed by him, on the 3d 
of March last? Can he be mistaken in the 
man ? Whoever looks at the prisoner carefully 
once will be sure to recognize him again. 
For the present, I pass from the considera- 
tion of the testimony showing Dr. Mudd’s con- 
nection with Booth in this conspiracy, with 
the remark that it is in evidence, and, I think, 
established, both by the testimony adduced by 
the prosecution and that by the prisoner, that, 
since the commencement of this rebellion, John 
H. Surratt visited the prisoner’s house; that he 
concealed Surratt, and other rebels and traitors, 
in the woods near his house, where, for several 
days, he furnished them with food and bedding; 
that the shelter of the woods, by night and by 
day, was the only shelter that the prisoner dare 
furnish these friends of his; that, in November, 
Booth visited him, and remained over night; 
that he accompanied Booth, at that time, to 
Gardner’s, from whom he purchased one of the 
horses used on the night of the assassination, 
to aid the escape of one of his confederates; 
that the prisoner had secret interviews with 
Booth and Surratt, as sworn to by the witness, 
Weichmann, in the National Hotel, whether on 
the 23d of December or in January is a matter 
of entire indifference; that he rushed into Mr. 
Norton’s room, on the 3d of March, in search 
of Booth; and that he was here again on the 
10th of April, four days before the murder of 
the President. Of his conduct after the assas- 
sination of the President, which is confirma- 
tory of all this—his conspiring with Booth, and 
his sheltering, concealing and aiding the flight 
of his co-conspirator, this felon assassin—l 
shall speak hereafter, leaving him, for the 
present, with the remark that the attempt to 
prove his character has resulted in showing 
him in sympathy with the rebellion, so cruel 
that he shot one of his slaves, and declared his 
purpose to send several of them to work on the 
rebel batteries in Richmond. 
What others, beside Samuel A. Mudd, and 
John H. Surratt, and Lewis Payne, did Booth, 
after his return from Canada, induce to join 
him in this conspiracy to murder the President, 
the Vice-President, the Secretary of State, and 
the Lieutenant-General, with the intent there- 
by to aid the rebellion, and overthrow the Gov- 
ernment and laws of the United States? 
The Rev. Mr. Evans also swears that, after 
the Ist and before the 4th day of March last, 
he is certain that within that time, and on the 
2d or 3d of March, he saw Dr. Mudd drive into 
Washington city. The endeavor is made by 
the accused, in order to break down this wit- 
ness, by proving another alibi. The sister of 
the accused, Miss Fanny Mudd, is called. She 
testifies that she saw the prisoner at breakfast 
in her father’s house, on the 2d of March, about 
5 o’clock in the morning, and not again until 
the 3d of March at noon. Mrs. Emily Mudd 
swears substantially to the same statement. 
Betty Washington, called for the accused, swears 
that he was at home all day at work with her 
on the 2d of March, and took breakfast at 
home. Frank Washington swears that Mudd 
was at home all day; that he saw him when 
he first came out in the morning about sunrise 
from his own house, and knows that he was 
there all day with them. Which is correct, the 
testimony of his sisters, or the testimony of his 
servants ? The sisters say that he was at their 
father’s house for breakfast on the morning of 
the 2d of March; the servants say he was at 
home for breakfast with them on that day. If 
this testimony is followed, it proves one alibi 
too much. It is impossible, in the nature of 
things, that the testimony of all these four wit- 
nesses can be true. 
Seeing this weakness in the testimony brought 
to prove this second alibi, the endeavor is next 
made to discredit Mr. Norton for truth; and 
two witnesses, not more, are called, who testify 
that his reputation for truth has suffered by 
contested litigation between one of the im- 
peaching witnesses and others. Four witnesses 
are called, who testify that Mr. Norton’s 
reputation for truth is very good; that he is a 
man of high character for truth, and entitled to 
be believed whether he speaks under the obli- 
gation of an oath or not. The late Postmaster- 
General, Hon. Horatio King, not only sustains 
Mr. Norton as a man of good reputation for 
truth, but expressly corroborates his testimony 
by stating that in March last, about the 4th of 
March, Mr. Norton told him the same fact to 
which he swears here: that a man came into 
his room under excitement, alarmed his sister, 
was followed out by himself, and went down 
stairs instead of going up; and that Mr. Nor- 
ton told him this before the assassination, and 
about the time of the inauguration. What mo- 
tive had Mr. Norton at that time to fabricate 
this statement ? It detracts nothing from his 
testimony that he did not at that time mention 
the name of this man to his friend, Mr. King; 
because it appears from his testimony—and 
there is none to question the truthfulness of 
his statement—that at that time he did not 
know his name. Neither does it take from 
On the 10th of February the prisoners, 
Arnold and O'Laughlin, came to Washington 
and took rooms in the house of Mrs. Vantyne; 
were armed; were there visited frequently hy 
John Wilkes Booth, and alone; were occasion" 
ally absent when Booth called, who seemed 
anxious for their return; would sometimes 
leave notes for them, and sometimes a reques ARGUMENT OF JOHN A. BINGHAM. 
387 
that when they came in they should be told to 
come to the stable. On the 18th of March last, 
when Booth played in “The Apostate,” the wit- 
ness, Mrs. Vantyne, received from O’Laughlin 
complimentary tickets. These persons remained 
there until the 20th of March. They were vis- 
ited, so far as the witness knows, during their 
stay at her house, only by Booth, save that on 
a single occasion an unknown man came to see 
them, and remained with them over night. 
They told the witness they were in the “oil 
business.” With Mudd, the guilty purpose was 
sought to be concealed by declaring that he 
was in the “land business;” with O’Laughlin 
and Arnold it was attempted to be concealed 
by the pretence that they were in the “ oil busi- 
ness.” Booth, it is proved, had closed up all 
connexion with the oil business last September. 
There is not a word of testimony to show that 
the accused, O’Laughlin and Arnold, ever in- 
vested, or sought to invest, in any way, or to 
any amount, in the oil business; their silly 
words betray them; they forgot, when they 
uttered that false statement, that truth is strong, 
next to the Almighty, and that their crime 
must find them out was the irrevocable and ir- 
resistible law of nature and of nature’s God. 
scribed in the letter; and that a man commonly 
called “ Lon ” lives at South Branch Bridge. 
If the Court are satisfied—and it is for them 
to judge—that this letter was written before 
the assassination, as it purports to have been, 
and on the day of its date, there can be no 
question, with any one who reads it, that the 
writer was in the conspiracy, and knew that 
the time of its execution drew nigh. If a con- 
spirator, every word of its contents is evidence 
against every other party to this conspiracy. 
Who can fail to understand this letter? His 
words, “go deep enough,” “don’t fail,” “every- 
thing depends on you and your helpers,” “if 
you can’t gbt through on your trip after you 
strike oil, strike through Thornton Gap, etc., 
and “I can keep you safe from all hardships 
for a year,” necessarily imply that when he 
“strikes oil” there will be an occasion for a 
flight; that a trip, or route, has already been 
determined upon; that he may not be able to 
go through by that route, in which event he is 
to strike for Thornton Gap, and across by 
Capon and Romney, and down the branch, for 
the shelter which his co-conspirator otfers him. 
“I am clear of all surveillance now;” does any 
one doubt that the man who wrote those words 
wished to assure Booth that he was no longer 
watched, and that Booth could safely hide with 
him from his pursuers ? Does any one doubt, 
from the further expression in this letter, “Jake 
will be at Green’s with the funds,” that this 
was a part of the price of blood, or that the 
eight thousand dollars subscribed by others, 
and the one thousand additional, subscribed by 
the writer, were also a part of the price to be 
paid? 
“The oil business,” which was the declared 
business of O’Laughlin and Arnold, was the 
declared business of the infamous writer of 
this letter; was the declared business of John 
H. Surratt; was the declared business of Booth 
himself, as explained to Chester and Payne; 
was 11 the business” referred to in his telegrams 
to O’Laughlin, and meant the murder of the 
President, of his Cabinet, and of General 
Grant. The first of these telegrams is dated 
Washington, 13th March, and is addressed to 
M. O’Laughlin, No. 57 North Exeter street, Bal- 
timore, Maryland, and is as follows: “Don’t 
you fear to neglect your business; you had 
better come on at once. J. Booth.” The tele- 
graphic operator, Hoffman, who sent this dis- 
patch from Washington, swears that John 
Wilkes Booth delivered it to him in person on 
the day of its date; and the handwriting of the 
original telegram is established beyond ques- 
tion to be that of Booth. The other telegram 
is dated Washington, March 27, addressed “M. 
O’Laughlin, Esq., 57 North Exeter street, Balti- 
more, Maryland, and is as follows: “Get word 
to Sam. Come on, with or without him, on 
Wednesday morning. We sell that day, sure; 
don’t fail. J. Wilkes Booth.” The original of 
this telegram is also proved to be in the hand- 
writing of Booth. The sale referred to, in this 
last telegram, was doubtless the murder of the 
President, and others—the “oil speculation,” 
in which the writer of the letter from South 
Branch Bridge, dated April 6, had taken a 
One of their co-conspirators, known as yet 
only to the guilty parties to this damnable plot 
and to the Infinite, who will unmask and 
avenge all blood-guiltiness, comes to bear wit- 
ness, unwittingly, against them. This unknown 
conspirator, who dates his letter at South 
Branch Bridge, April 6, 1865, mailed and post- 
marked Cumberland, Maryland, and addressed 
to John Wilkes Booth, by his initials, “J. W. 
8., National Hotel, Washington, D. C., was also 
in the “oil speculation.” In that letter he says: 
“ Friend Wilkes : I received yours of March 
12th, and reply as soon as practicable. I saw 
French, Brady, and others, about the oil spec- 
ulation. The subscription to the stock amounts 
to eight thousand dollars, and I add one thou- 
sand myself, which is about all I can stand. 
Now, when you sink your well, go deep enough; 
don't fail; everything depends upon you and 
your helpers. If you can not get through on 
your trip after you strike oil, strike through 
Thornton Gap and across by Capon, Romney, 
and down the Branch. I can keep you safe 
from all hardships for a year. I am clear of 
all surveillance, now that infernal Purdy is 
heat. * * * _ * 
“I send this by Tom, and, if he don’t get 
drunk, you will get it the 9th. At all events, 
it can not be understood if lost. 
“No more, only Jake will be at Green’s with 
the funds. [Signed] LON.” 
That this letter is not a fabrication is made 
apparent by the testimony of Purdy, whose 
name occurs in the letter. He testified that he 
had been a detective in the Government service, 
and that he had been falsely accused, as the 
letter recites, and put under arrest ; that there 
Was a noted rebel by the name of Green living 
at Thornton Gap; that there was a servant, 
who drank, known as “Tom, ’ in the neighbor- 
hood of South Branch Bridge; that there is 
an obscure route through the Gap, and as de- 388 
THE CONSPIRACY TRIAL. 
thousand dollars, and in which Booth said 
there was money, and Sanders said there was 
money, and Atzerodt said there was money. 
The words of this telegram, “ get word to Sam,” 
mean Samuel Arnold, his co-conspirator, who 
had been with him during all his stay in Wash- 
ington, at Mrs. Vantyne’s. These parties to 
this conspiracy, after they had gone to Balti- 
more, had additional correspondence with 
Booth, which the Court must infer had relation 
to carrying out the purposes of their confede- 
ration and agreement. The colored witness, 
Williams, testifies that John Wilkes Booth 
handed him a letter for Michael O’Laughlin, 
and another for Samuel Arnold, in Baltimore, 
some time in March last; one of which he de- 
livered to O’Laughlin at the theater in Balti- 
more, and the other to a lady at the door where 
Arnold boarded in Baltimore. 
shall he better prepared to again he with yon. I 
dislike writing. Would sooner verbally make 
known my views. Yet your now waiting causes 
me thus to proceed. Do not in anger peruse 
this. Weigh all I have said, and, as a rational 
man and a friend, you can not censure or up- 
braid my conduct. I sincerely trust this, nor 
aught else that shall or may occur, will ever be 
an obstacle to obliterate our former friendship 
and attachment. Write me to Baltimore, as I 
expect to be in about Wednesday or Thursday; 
or, if you can possibly come on, I will, Tuesday, 
meet you at Baltimore at B. 
“ Ever, I subscribe myself, your friend, 
“SAM. 
Here is the confession of the prisoner Arnold, 
that he was one with Booth in this conspiracy; 
the further confession that they are suspected 
by the Government of their country, and the 
acknowledgment that since they parted Booth 
had communicated among other things, a sug- 
gestion which leads to the remark in this letter, 
“ I would prefer your first query, ‘Go and see 
how it will be taken aft Richmond,’ and ere long 
I shall be better prepared to again he with you." 
This is a declaration that affects Arnold, Booth, 
and O’Laughlin alike, if the Court are satis- 
fied, and it is difficult to see how they can have 
doubt on the subject, that the matter to be re- 
ferred to Richmond is the matter of the assas- 
sination of the President and others, to effect 
which these parties had previously agreed and 
conspired together. It is a matter in testimo- 
ny; by the declaration of John H. Surratt, who 
is as clearly proved to have been in this con- 
spiracy and murder as Booth himself, that 
about the very date of this letter, the 27th of 
March, upon the suggestion of Booth, and with 
his knowledge and consent, he went to Rich- 
mond, not only to see “how it would be taken 
there,” but to get funds with which to carry 
out the enterprise, as Booth had already de- 
clared to Chester in one of his last interviews, 
when he said that he or “some one of the par- 
ty” would be constrained to go to Richmond 
for funds to carry out the conspiracy. Surratt 
returned from Richmond, bringing with him 
some part of the money for which he went, and 
was then going to Canada, and, as the testi- 
mony discloses, bringing with him the dispatches 
from Jefferson Davis to his chief agents iu 
Canada, which, as Thompson declared to Con- 
over, made the proposed assassination “ all 
right.” Surratt, after seeing the parties here, 
left immediately for Canada, and delivered his 
dispatches to Jacob Thompson, the agent of 
Jefferson Davis. This was done by Surratt 
upon the suggestion, or in exact accordance 
with the suggestion of Arnold, made on the 
27th of March in his letter to Booth just read, 
and yet you are gravely told that four weeks 
before the 27th of March, Arnold had aban- 
doned the conspiracy. 
Surratt reached Canada with these dispatches 
as we have seen, about the 6th or 7th ot 
April last, when the witness Conover saw them 
delivered to Jacob Thompson and heard their 
contents stated by Thompson, and the decla- 
ration from him that these dispatches made it 
Their agreement and co-operation in the 
common object having been thus established, 
the letter written to Booth by the prisoner 
Arnold, dated March 27, 1865, the handwriting 
of which is proved before the Court, and which 
was found in Booth’s possession after the assas- 
sination, becomes testimony against O’Laugh- 
lin, as well as against the writer, Arnold, 
because it is an act done in furtherance of their 
combination. That letter is as follows; 
“Dear John; Was business so important 
that you could not remain in Baltimore till I 
saw you? I came in as soon as I could, but 
found you had gone to Washington. I called 
also to see Mike, but learned from his mother 
he had gone out with you and had not returned. 
I concluded, therefore, he had gone with you. 
How inconsiderate you have been! When I 
left you, you stated that we would not meet in a 
month or so, and, therefore, I made application 
for employment, an answer to which I. shall re- 
ceive during the week. I told my parents I had 
ceased with you. Can I, then, under existing 
circumstances, act as you request? You know 
full well that the Government suspicions some- 
thing is going on there; therefore, the under- 
taking is becoming more complicated. Why not, 
for the present, desist, for various reasons, 
which, if you look into, you can readily see 
without my making any mention thereof. You, 
nor any one, can censure me for my present 
course. You have been its cause, for how can 
I now come after telling them I had left you? 
Suspicion rests upon me now from my whole 
family, and even parties in the country. I will 
be compelled to leave home anyhow, and how 
soon I care not. None, no, not one, were more 
in favor of the enterprise than myself, and to- 
day would be there had you not done as you 
have. By this I mean manner of proceeding. 
I am, as you well know, in need. I am, as you 
may say, in rags; whereas, to-day, I ought to 
be well clothed. I do not feel right stalking 
about with means, and more from appearances 
a beggar. I feel my dependence. But even all 
this would have been, and was, forgotten, for I 
was one with you. Time more propitious will 
arrive yet. Do not act rashly or in haste. I 
would prefer your first query, ‘Go and see how 
it will be taken in Richmond,’ and, ere long, I ARGUMENT OP JOHN A. BINGHAM. 
389 
“all right.” That Surratt was at that time in 
Canada, is not only established by the testi- 
mony of Conover, but it is also in evidence 
that he told Weichmann on the 8d of April that 
he was going to Canada, and on that day left 
for Canada, and afterward, two letters ad- 
dressed by Surratt, over the fictitious signature 
of John Harrison to his mother and to Miss 
Ward, dated at Montreal, were received by 
them on the 14th of April, as testified by 
Weichmann and by Miss Ward, a witness 
called for the defense. Thus it appears that 
the condition named by Arnold in his letter had 
been complied with. Booth had “ gone to Rich- 
mond,” in the person of Surratt, “to see how 
it would be taken.” The rebel authorities at 
Richmond had approved it, the agent had re- 
turned, and Arnold was, in his own words, 
thereby better prepared to rejoin Booth in the 
prosecution of this conspiracy. 
To this end Arnold went to Fortress Mon- 
roe. As his letter expressly declares, Booth 
said when they parted, “ we would not meet in 
a month or so, and therefore I made application 
for employment—an answer to which I shall 
receive during the week.” He did receive the 
answer that week from Fortress Monroe, and 
went there to await the “more propitious time,” 
bearing with him the weapon of death which 
Booth had provided, and ready to obey his call, 
as the act had been approved at Richmond and 
been made “all right.” Acting upon the same 
fact that the conspiracy had been approved in 
Richmond,, and the funds provided, O’Laughlin 
came to Washington to identify General Grant, 
the person who was to become the victim of 
his violence in the final consummation of this 
crime—General Grant, whom, as is averred in 
the specification, it had become the part of 
O’Laughlin, by his agreement in this conspira- 
cy, to kill and murder. On the evening pre- 
ceding the assassination—the 13th of April— 
by the testimony of three reputable witnesses, 
against whose truthfulness not one word is 
uttered here or elsewhere, O’Laughlin went 
into the house of the Secretary of War, where 
General Grant then was, and placed himself 
in position in the hall where he could see him, 
having declared before he reached that point, 
to one of these witnesses, that he wished to 
see General Grant. The house was brilliantly 
illuminated at the time; two, at least, of the 
witnesses conversed with the accused, and the 
other stood very near to him, took special rio- 
tice of his conduct, called attention to it, and 
suggested that he be put out of the house, and 
he was accordingly put out by one of the wit- 
nesses. These witnesses are confident, and 
have no doubt, and so swear upon their oaths, 
that Michael O’Laughlin is the man who was 
on that occasion. There is no denial 
on the part of the accused that he was in Wash- 
ington during the day and during the night of 
April 13th, and also during the day and during 
the night of the 14th; and yet, to get rid of 
this testimony, recourse is had to that common 
device—an alibi; a device never, I may say, 
more frequently resorted to than in this trial. 
But what an alibi! Nobody is called to prove 
it, save some men who, by their own testimony, 
were engaged in a drunken debauch through 
the evening. A reasonable man who reads 
their evidence can hardly be expected to allow 
it to outweigh the united testimony of three 
unimpeached and unimpeachable witnesses 
who were clear in their statements—who en- 
tertain no doubt of the truth of what they say 
—whose opportunities to know were full and 
complete, and who were constrained to take 
special notice of the prisoner by reason of his 
extraordinary conduct. 
These witnesses describe accurately the ap- 
pearance, stature, and complexion of the ac- 
cused, but because they describe his clothing 
as dark or black, it is urged that as part of 
his clothing, although dark, was not black, 
the witnesses are mistaken. O’Laughlin and 
his drunken companions (one of whom swears 
that he drank ten times that evening) were 
strolling in the streets, and in the direction of 
the house of the Secretary of War, up the Av- 
enue; but you are asked to believe that these 
witnesses could not be mistaken in saying they 
were not otf the Avenue above 7th street, or 
on K street. I venture to say that no man 
who reads their testimony can determine sat- 
isfactorily all the places that were visited by 
O’Laughlin and his drunken associates that 
evening tfrom seven to eleven o’clock, P. M. 
All this time, from seven to eleven o’clock, P. 
M., must be accounted for satisfactorily before 
the alibi can be established. Loughran does 
not account for all the time, for he left O Laugh- 
lin after seven o’clock, and rejoined him as he 
says, “I suppose about eight o’clock.” Grillet 
did not meet him until half-past ten, and then 
only casually saw him in passing the hotel. 
May not Grillet have been mistaken as to the 
fact, although he did meet O’Laughlin after 
eleven o’clock the same evening, as he swears ? 
Purdy swears to seeing him in the bar with 
Grillet about half-past ten, but, as we have 
seen by Grillet’s testimony, it must have been 
after eleven o’clock. Murphy contradicts, as 
to time, both Grillet and Purdy, for he says it 
was half-past eleven or twelve o’clock when he 
and O’Laughlin returned to Rullman’s, from 
Plata’s, and Early swears the accused went 
from Rullman’s to 2d street, to a dance about 
a quarter past eleven o’clock, when O’Laughlin 
took the lead in the dance and stayed about 
one hour. I follow these witnesses no further. 
They contradict each other, and do not account 
for O'Laughlin all the time from seven to 
eleven o’clock. X repeat, that no man can read 
their testimony without finding contradictions 
most material as to time, and coming to the con- 
viction that they utterly fail to account for 
O’Laughlin’s whereabouts on that evening. 
To establish an alibi the witnesses must know 
the fact and testify to it. Loughran, Grillet, 
Purdy, Murphy, and Early utterly fail to prove 
it, and only succeed in showing that they did 
not know where O’Laughlin was all this time, 
and that some of them were grossly mistaken 
in what they testified, both as to time and place. 
The testimony of James B. Henderson is equal- 
ly unsatisfactory. He is contradicted by other 
testimony of the accused as to place. He says 
O’Laughlin went up the Avenue, above 7th 390 
THE CONSPIRACY TRIAL. 
street, but that he did not go to 9th street. 
The other witnesses swear he went to 9th 
street. He swears he went to Canterbury 
about nine o’clock, after going back from 7th 
street to Pullman's. Loughran swears that 
O’Laughlin was with him at the corner of the 
Avenue and 9th street at nine o’clock, and 
Avent from there to Canterbury, while Early 
swears that O’Laughlin went up as far as 11th 
street, and returned with him and took supper 
at Welcker’s, about eight o’clock. If these 
witnesses proAre an alibi, it is really against 
each other. It is folly to pretend that they 
prove facts which make it impossible that 
O’Laughlin could have been at the house of 
Secretary Stanton, as three witnesses swear 
he Avas, on the evening of the 13th of April, 
looking for General Grant. 
Has it not, by the testimony thus reviewed, 
been established prima facie that in the months 
of February, March and April, O’Laughlin 
had combined, confederated, and agreed Avith 
John Wilkes Booth and Samuel Arnold to 
kill and murder Abraham Lincoln, William 
H. SeAvard, AndreAV Johnson, and Ulysses S. 
Grant ? Is it not established, beyond a shadow 
of doubt, that Booth had so conspired 
Avith the rebel agents in Canada as early as 
October last: that he was in search of agents 
to do the work on pay, in the interests of the 
rebellion, and that in this speculation Arnold 
and O’Laughlin had joined as early as Feb- 
ruary; that then, and after, with Booth and 
Surratt, they were in the “oil business,” which 
was the business of assassination by contract 
as a speculation ? If this conspiracy on the 
part of O’Laughlin with Arnold is established, 
even primafacie, the declarations and acts of 
Arnold and Booth, the other conspirators, in 
furtherance of the common design, is evidence 
against O’Laughlin as well as against Arnold 
himself, or the other parties. The rule of law 
is, that the act or declaration of one conspir- 
ator, done in pursuance or furtherance of the 
common design, is the act or declaration of 
all the conspirators. 1 Wharton, 706. 
The letter, therefore, of his co-conspirator, 
Arnold, is evidence against O’Laughlinbecause 
it is an act in the prosecution of the common 
conspiracy, suggesting what should be done in 
order to make it effective, and which sugges- 
tion, as has been stated, was followed out. 
The defense has attempted to avoid the force 
of this letter by reciting the statement of 
Arnold, made to Horner at the time he was 
ari-ested, in which he declared, among other 
things, that the purpose was to abduct Presi- 
dent Lincoln and take him South; that it was 
to be done at the theater by throwing the 
President out of the box upon the floor of the 
stage, Avhen the accused was to catch him. 
The very announcement of this testimony ex- 
cited derision that such a tragedy meant only 
to take the President and carry him gently 
away! This pigmy to catch the giant as the 
assassins hurled him to the floor from an ele- 
vation of twelve feet! The Court has viewed 
the theater, and must be satisfied that Booth, 
in leaping from the President’s box, broke his 
limb. The Court can not fail to conclude that 
this statement of Arnold was but another silly 
device, like that of “the oil business,” which, 
for the time being, he employed to hide from 
the knowledge of his captor the fact that the 
purpose was to murder the President. No 
man can, for a moment, believe that any one 
of these conspirators hoped or desired, by such 
a proceeding as that stated by the prisoner, to 
take the President alive in the presence of 
thousands assembled in the theater after he had 
been thus thrown upon the floor of the stage, 
much less to carry him through the city, through 
the lines of your army, and deliver him into 
the hands of the rebels. No such purpose Avas 
expressed or hinted by the conspirators in Can- 
ada, who commissioned Booth to let these as- 
sassinations on contract. I shall Avaste not a 
moment more in combatting such an absurdity. 
Arnold does confess that he was a conspira- 
tor with Booth in this proposed murder: that 
Booth had a letter of introduction to Dr. Mudd; 
that Booth, 0 Laughlin, Atzerodt, Surratt, a 
man with an alias, “Mosby,” and another 
Avhom he does not knoAv, and himself, Avere 
parties to this conspiracy, and that Booth had 
furnished them all Avith arms. He concludes 
this remarkable statement to Horner with the 
declaration that at that time, to wit, the first 
week of March, or four Aveeks before he went 
to Fortress Monroe, he left the conspiracy, and 
that Booth told him to sell his arms if he chose. 
This is sufficiently ansAvered by the fact that, 
four Aveeks afterward, he wrote his letter to 
Booth, which Avas found in Booth’s possession 
after the assassination, suggesting to him what 
to do in order to make the conspiracy a suc- 
cess, and by the further fact that at the very 
moment he uttered these declarations, part of 
his arms were found upon his person, and tho 
rest not disposed of, but at his father’s house. 
A party to a treasonable and murderous 
conspiracy against the government of his coun- 
try can not be held to have abandoned it be- 
cause he makes such a declaration as this, when 
he is in the hands of the officer of the IaAV, ar- 
rested for his crime, and especially when hio 
declaration is in conflict with and expressly 
contradicted by his written acts, and unsupport' 
ed by any conduct of his which becomes a citi- 
zen and a man. 
If he abandoned the conspiracy, why did he 
not make known the fact to Abraham Lincoln 
and his constitutional advisers that these men, 
armed with the weapons of assassination, Avere 
daily lying in Avait for their lives ? To pre- 
tend that a man avlio thus conducts himself f°r 
weeks after the pretended abandonment, vol- 
unteering advice for the successful prosecutm11 
of the conspiracy, the evidence of which is ill 
writing, and about Avhich there can be no mis- 
take, has, in fact, abandoned it, is to insult the 
common understanding of men. O’Laughln1 
having conspired with Arnold to do this mur- 
der, is, therefore, as much concluded by the 
letter of Arnold of the 27th of March as is Ar- 
nold himself. The further testimony touching 
O’Laughlin, that of Streett, establishes the tac 
that about the Ist of April he saw him in con - 
dential conversation with J. Wilkes Booth, no 
this city, on the Avenue. Another man, Avho ARGUMENT OF JOHN A. BINGHAM. 
the witness does not know, was in conversation. 
O’Laughlin called Streett to one side, and told 
him Booth was busily engaged with his friend— 
was talking privately to his friend. This re- 
mark of O’Laughlin is attempted to be account- 
ed for, but the attempt failed; his counsel tak- 
ing the pains to ask what induced O’Laughlin 
to make the remark, received the fit reply ; “I 
did not see the interior of Mr. O’Laughlin’s 
mind; I can not tell.” It is the province of this 
Court to infer why that remark was made, and 
what it signified. 
That John H. Surratt, George A. Atzerodt, 
Mary E. Surratt, David E. Herold, and Louis 
Payne, entered into this conspiracy with 
Booth, is so very clear upon the testimony, that 
little time need be occupied in bringing again 
before the Court the evidence which establishes 
it. By the testimony of Weichmann we find 
Atzerodt in February at the house of the pris- 
oner, Mrs. Surratt. He inquired for her or for 
John when he came and remained over night. 
After this and before the assassination he visit- 
ed there frequently, and at that house bore the 
name of “ Port Tobacco,” the name by which he 
was known in Canada among the conspirators 
there. The same witness testifies that he met 
him on the street, when he said he was going 
to visit Payne at the Herndon House, and also 
accompanied him, along with Herold and John 
H. Surratt, to the theater, in March, to hear 
Booth play in “The Apostate.” At the Pennsylva- 
nia House, one or two weeks previous to the 
assassination, Atzerodt made the statement to 
Lieutenant Keim, when asking for his knife 
which he had left, in his room, a knife corres- 
ponding in size with the one exhibited in Court, 
“I want that; if one fails I want the other,” 
wearing at the same time his revolver at his 
belt. He also stated to Greenawalt, of the 
Pennsylvania House, in March, that he was 
nearly broke, but had friends enough to give 
him as much money as would see him through, 
adding, “I am going away some of these days, 
but will return with as much gold as will keep 
me all my lifetime.” Mr. Greenawalt also says 
that Booth had frequent interviews with Atze- 
rodt, sometimes in the room, and at other times 
Booth would walk in and immediately go out, 
Atzerodt following. 
fact that Atzerodt was found in possession of 
Booth’s bank book I 
Colonel Nevins testifies that on the 12th of 
April last he saw Atzerodt at the Kirkwood 
House; that Atzerodt there asked him, a 
stranger, if he knew where Vice-President 
Johnson was, and where Mr. Johnson’s room 
was. Colonel Nevins showed him where the 
room of the Vice-President was, and told him 
that the Vice-President was then at dinner. 
Atzerodt then looked into the dining-room, 
where Vice-President Johnson was dining 
alone. Robert R. Jones, the clerk at the Kirk- 
wood House, states that on the 14th, the day of 
the murder, two days after this, Atzerodt reg- 
istered his name at the hotel, G. A. Atzerodt, 
and took No. 126, retaining the room that day, 
and carrying away the key. In this room, af- 
ter the assassination, were found the knife and 
revolver with which he intended to murder the 
Vice-President. 
The testimony of all these witnesses leaves 
no doubt that the prisoner, George A. Atzerodt, 
entered into this conspiracy with Booth; that 
he expected to receive a large compensation 
for the service that he would render in its exe- 
cution ; that he had undertaken the assassina- 
tion of the Vice-President for a price; that he, 
with Surratt and Herold, rendered the import- 
ant service of depositing the arms and ammu- 
nition to be used by Booth and his confederates 
as a protection in their flight after the conspir- 
acy had been executed ; and that he was care- 
ful to have his intended victim pointed out to 
him, and the room he occupied in the hotel, so 
that when he came to perform his horrid work 
he would know precisely where to go and whom 
to strike. 
I take no further notice now of the prepara- 
tion which this prisoner made for the successful 
execution of this part of the traitorous and 
murderous design. The question is, did he en- 
ter into this conspiracy ? His language, over- 
heard by Mr. Norton, excludes every other 
conclusion. Vice-President Johnson’s name 
was mentioned in that secret conversation with 
Booth, and the very suggestive expression was 
made between them that “ little could be proved 
by the witnesses.” His confession in his de- 
fense is conclusive of his guilt. 
ThatPayne was in this conspiracy is confessed 
in the defense made by his counsel, and is also 
evident from the facts proved, that when the con- 
spiracy was being organized in Canada by 
Thompson, Sanders, Tucker, Cleary, and Clay, 
this man Payne stood at the door of Thompson ; 
was recommended and indorsed by Clay with 
the words, “We trust him; ” that after coming 
hither he first reported himself at the house of 
Mrs. Mary E. Surratt, inquired for her and for 
John H. Surratt; remained there for four days, 
having conversation with both of them; hav- 
ing provided himself with means of disguise, 
was also supplied with pistols and a knife, 
such as he afterward used, and spurs, prepara- 
tory to his flight; was seen with John H. Sur- 
ratt, practicing with knives such as those 
employed in this deed of assassination, and 
now before the Court; was afterward provided 
with lodging at the Herndon House at the in- 
John M. Lloyd testifies that some six weeks 
before the assassination, Herold, Atzerodt, and 
John H. Surratt came to his house at Surratts- 
ville, bringing with them two Spencer carbines 
with ammunition, also a rope and wrench. 
Surratt asked the witness to take care of them 
and to conceal the carbines. Surratt took him 
into a room in the house, it being his mother’s 
house, and showed the witness where to put the 
carbines, between the joists on the second floor. 
The carbines were put there according to his 
directions, and concealed. Marcus P. Norton 
saw Atzerodt in conversation with Booth at the 
National Hotel about the 2d or 3d of March; 
the conversation was confidential, and the 
witness accidentally heard them talking in re- 
gard to President Johnson, and say that “ the 
class of witnesses would be of that character 
that there could be little proven by them.” 
This conversation may throw some light on the 392 
THE CONSPIRACY TRIAL. 
stance of Surratt; was visited there by Atzerodt, 
and attended Booth and Surratt to Ford’s thea- 
ter, occupying with those parties the box, as I 
believe and which we may readily infer, in 
which the President was afterward murdered. 
that bank of the rebel funds there on deposit 
the sum of one hundred and eighty thousand 
dollars. This being done, Surratt finding it 
safer, doubtless, to go to Canada for the great 
bulk of funds which were to be distributed 
among these hired assassins than to attempt 
to carry it through our lines direct from Rich- 
mond, immediately returned to Washington, 
and was present in this city, as is proven by 
the testimony of Mr. Reid, on the afternoon of 
the 14th of April, the day of the assassination, 
booted and spurred, ready for flight when- 
ever the fatal blow should have been struck. 
If he was not a conspirator and a party to this 
great crime, how comes it that from that hour 
to this no man has seen him in the capital, nor 
has he been reported anywhere outside of Can- 
ada, having arrived in Montreal, as the testi- 
mony shows, on the 18th of April, four days after 
the murder? Nothing but his conscious coward 
guilt could possibly induce him to absent him- 
self from his mother, as he does, upon her 
trial. Being one of these conspirators, as 
charged, every act of his in the prosecution of 
this crime is evidence against the other parties 
to the conspiracy. 
That Mary E. Surratt is as guilty as her son 
of having thus conspired, combined and confed- 
ated to do this murder, in aid of this rebellion, 
is clear. First, her house was the headquarters 
of Booth, John H. Surratt, Atzerodt, Payne and 
Herold. She is inquired for by Atzerodt; she 
is inquired for by Payne, and she is visited by 
Booth, and holds private conversations with 
him. His picture, together with that of the chief 
conspirator, Jefferson Davis, is found in her 
house. She sends to Booth for a carriage to 
take her, on the 11th of April, to Surrattsville, 
for the purpose of perfecting the arrangement 
deemed necessary to the successful execution of 
the conspiracy, and especially to facilitate and 
protect the conspirators in their escape from 
justice. On that occasion Booth, having dis- 
posed of his carriage, gives to the agent she 
employed ten dollars, with which to hire a con- 
veyance for that purpose. And yet the pre- 
tence is made that Mrs. Surratt went on the 
11th to Surrattsville exclusively upon her own 
private and lawful business. Can any one tell) 
if that be so, how it comes that she should apply 
to Booth for a conveyance, and how it comes 
that he, of his own accord, having no convey- 
ance to furnish her, should send her ten dollars 
with which to procure it ? There is not the 
slightest indication that Booth was under any 
obligation to her, or that she had any claim 
upon him, either for a conveyance or for the 
means with which to procure one, except that 
he was bound to contribute, being the agent ot 
the conspirators in Canada and Richmond, 
whatever money might be necessary to the con- 
summation of this infernal plot. On that day, 
the 11th of April, John H. Surratt had not re- 
turned from Canada with the funds'furnishe 
by Thompson! , 
Upon that journey of the 11th, the accuse , 
Mary E. Surratt, met the witness, John j- • 
Lloyd, at Uniontown. She called him; he go 
out of his carriage and came to her, and s 
whispered to him in so low a tone that her a 
If further testimony be wanting that he had 
entered into the conspiracy, it may be found in 
the fact sworn to by Weichmann, whose testi- 
mony no candid man will discredit, that about 
the 20th of March, Mrs. Surratt, in great ex- 
citement, and weeping, said that her son John 
had gone away not to return, when about three 
hours subsequently, in the afternoon of the 
same day, John H. Surratt re-appeared, came 
rushing in a state of frenzy into the room, in 
his mother’s house, armed, declaring he would 
shoot whoever came into the room, and pro- 
claiming that his prospects were blasted and 
his hopes gone; that soon Payne came into the 
same room, also armed and under great excite- 
ment, and was immediately followed by Booth, 
with his riding-whip in his hand, who walked 
rapidly across the floor from side to side, so 
much excited that for some time he did not no- 
tice the presence of the witness. Observing 
Weichmann, the parties then withdrew, upon a 
suggestion from Booth, to an upper room, and 
there had a private interview. From all that 
transpired on that occasion, it is apparent that 
when these parties left the house that day, 
it was with the full purpose of completing some 
act essential to the final execution of the work 
of assassination, in conformity with their pre- 
vious confederation and agreement. They re- 
turned foiled—from what cause is unknown— 
dejected, angry, and covered with confusion. 
It is almost imposing upon the patience of 
the Court to consume time in demonstrating the 
fact, which none conversant with the testimony 
of this case can for a moment doubt, that John 
H. Surratt and Mary E. Surratt were as surely 
in the conspiracy to murder the President as 
was John Wilkes Booth himself. You have the 
frequent interviews between John H. Surratt 
and Booth, his intimate relations with Payne, 
his visits from Atzerodt and Herold, his deposit 
of the arais to cover their flight after the con- 
spiracy should have been executed; his own 
declared visit to Richmond to do what Booth 
himself said to Chester must be done, to-wit, 
that he or some of the party must go to Rich- 
mond in order to get funds to carry out the 
conspiracy ; that he brought back with him 
gold, the price of blood, confessing himself that 
he was there; that he immediately went to 
Canada, delivered dispatches in cipher to Jacob 
Thompson from Jefferson Davis, which were in- 
terpreted and read by Thompson in the pres- 
ence of the witness Conover, in which the con- 
spiracy was approved, and, in the language of 
Thompson, the proposed assassination was 
“made all right.” 
One other fact, if any other fact be needed, 
and I have done with the evidence which proves 
that John H. Surratt entered into this combina- 
tion ; that is, that it appears by the testimony 
of the witness, the cashier of the Ontario, Bank, 
Montreal, that Jacob Thompson, about the day 
that these dispatches were delivered, and while 
Surratt was then present in Canada, drew fi/om ARGUMENT OF JOHN A. BINGHAM. 
393 
tendant not hear her words, though Lloyd, 
to whom they were spoken, did distinctly hear 
them, and testifies that she told him he should 
have those “shooting-irons” ready, meaning 
the carbines which her sou and Herold and At- 
zerodt had deposited with him, and added the 
reason, “for they would soon be called for.” 
On the day of the assassination she again sent 
for Booth, had an interview with him in 
her own house, and immediately went again to 
Surrattsville, and then, at about six o’ clock in 
the afternoon, she delivered to Lloyd a field- 
glass and told him “to have two bottles of 
whisky and the carbines ready, as they would 
be called for that night.” Having thus per- 
fected the arrangement, she returned to Wash- 
ington to her own house, at about half-past 
eight o’clock in the evening, to await the final 
result. How could this woman anticipate, on 
Friday afternoon, at six o’clock, that these arms 
would be called for and would be needed that 
night, unless she was in the conspiracy and 
knew the blow was to be struck, and the flight 
of the assassins attempted by that route? Was 
not the private conversation which Booth held 
with her in her parlor on the afternoon of the 
14th of April, just before she left on this busi- 
ness, in relation to the orders she should give 
to have the arms ready? 
An endeavor is made to impeach Lloyd. But 
the Court will observe that no witness has been 
called who contradicts Lloyd’s statement in any 
material matter; neither has his general char- 
acter for truth been assailed. How, then, is he 
impeached? Is it claimed that his testimony 
shows that he was a party to the conspiracy ? 
Then it is conceded by those who set up any 
such pretence that there was a conspiracy. A 
conspiracy between whom ? There can be no 
conspiracy without the co-operation or agree- 
ment of two or more persons. Who were the 
other parties to it? Was it Mary E. Surratt? 
Was it John H. Surratt, George A. Atzerodt, 
David E. Herold ? Those are the only persons, 
so far as his own testimony or the testimony of 
any other witness discloses, with whom he had 
any communication whatever on any subject 
immediately or remotely touching this con- 
spiracy before the assassination. His receipt 
and concealment of the arms are unexplained 
evidence that he was in the conspiracy. 
The explanation is that he was dependent 
upon Mary E. Surratt; was her tenant; and 
his declaration, given in evidence by the ac- 
cused herself, is that “she had ruined him, and 
brought this trouble upon him.” But because 
he was weak enough, or wicked enough, to be- 
come the guilty depositary of these arms, and to 
deliver them on the order of Mary E. Surratt to 
the assassins, it does not follow that he is not to 
be believed on oath. It is said that he concealed 
the facts that the arms had been left and called 
for. He so testifies himself, but he gives the 
reason that he did it only from apprehension of 
danger to his life. If he were in the conspiracy, 
his general credit being unchallenged, his tes- 
timony being uncontradicted in any material 
matter, he is to be believed, and can not be dis- 
believed if his testimony is substantially cor- 
roborated by other reliable witnesses. Is he 
not corroborated touching the deposit of arms 
by the fact that the arms are produced in court, 
one of which was found upon the person of 
Booth at the time he was overtaken and slain, 
and which is identified as the same which had 
been left with Lloyd by Herold, Surratt and At- 
zerodt? Is he not corroborated in the fact of 
the first interview with Mrs. Surratt by the 
joint testimony of Mrs. Offut and Louis J. 
Weichmann, each of whom testified (and they 
are contradicted by no one), that on Tuesday, 
the 11th day of April, at Uniontown, Mrs. Sur- 
ratt called Mr. Lloyd to come to her, which he 
did, and she held a secret conversation with 
him? Is he not corroborated as to the last con- 
versation on the 14th of April by the testimony 
of Mrs. Offut, who swears that upon the 14th 
of April she saw the prisoner, Mary E. Surratt, 
at Lloyd’s house, approach and hold conversa- 
tion with him ? Is he not corroborated in the 
fact, to which he swears, that Mrs. Surratt de- 
livered to him at that time the field-glass wrap- 
ped in paper, by the sworn statement of Weich- 
mann, that Mrs. Surratt took with her on that 
occasion two packages, both of which wei'e 
wrapped in paper, and one of which he de- 
scribes as a small package about six inches in 
diameter? The attempt was made by calling 
Mrs. Offut to prove that no such package was 
delivered, but it failed; she merely states that 
Mrs. Surratt delivered a package wrapped in 
paper to her after her arrival there, and before 
Lloyd came in, which was laid down in the 
room. But whether it was the package about 
which Lloyd testifies, or the other package of 
the two about which Weichmann testifies, as hav- 
ing been carried there that day by Mrs. Surratt, 
does not appear. Neither does this witness 
pretend to say that Mrs. Surratt, after she had 
delivered it to her, and the witness had laid it 
down in the room, did not again take it up, if 
it were the same, and put it in the hands of 
Lloyd. She only knows that she did not see 
that done; but she did see Lloyd with a pack- 
age like the one she received in the room before 
Mrs. Surratt left. How it came into his posses- 
sion she is not able to state; nor what the pack- 
age was that Mrs. Surratt first handed her; nor 
which of the packages it was she afterward saw 
in the hands of Lloyd. - 
But there is one other fact in this case that 
puts forever at rest the question of the guilty 
participation of the prisoner, Mrs. Surratt, in 
this conspiracy and murder; and that is, that 
Payne, who had lodged four days in her house, 
who, during all that time, had sat at her table, 
and who had often conversed with her, when 
the guilt of his great crime was upon him, and 
he knew not where else he could so safely go to 
find a co-conspirator, and he could trust none 
that was not, like himself, guilty, with even the 
knowledge of his presence, under cover of 
darkness, after wandering for three days and 
nights, skulking before the pursuing officers of 
justice, at the hour of midnight, found his way 
to the door of Mrs. Surratt, rang the bell, was 
admitted, and upon being asked, “Whom do 
you want to see?” replied, “Mrs. Surratt.” He 
was then asked by the officer, Morgan, what he 
came at that time of night for, to which he re- THE CONSPIRACY TRIAL. 
plied, “to dig a gutter in the morning; Mrs. 
Surratt had sent for him.” Afterward he said 
“ Mrs. Surratt knew he was a poor man and 
came to him.” Being asked where he last worked, 
he replied, “ sometimes on ‘I ’ street,” and 
where he boarded, he replied, “he had no board- 
ing-house, and was a poor man who got his 
living with the pick ” which he bore upon his 
shoulder, having stolen it from the intrench- 
ments of the Capital. Upon being pressed 
again why he came there at that time of night 
to go to work, he answered that he simply 
called to see what time he should go to work in 
the morning. Upon being told by the officer, 
who, fortunately, had preceded him to this 
house, that he would have to go to the Provost 
Marshal’s office, he moved and did not answer, 
whereupon Mrs. Surratt was asked to step into 
the hall and state whether she knew this man. 
Raising her right hand, she exclaimed, “Before 
God, sir, I have not seen that man before; I 
have not hired him; Ido not know anything 
about him.” The hall was brilliantly lighted. 
If not one word had been said, the mere act 
of Payne, in flying to her house for shelter, 
would have borne witness against her strong 
as proofs from Holy Writ. But when she de- 
nies, after hearing his declarations that she 
had sent for him, or that she had gone to him 
and hired him, and calls her God to witness 
that she had never seen him, and knew nothing 
of him, when in point of fact, she had seen 
him for four successive days in her own house, 
in the same clothing which he then wore, who 
can resist for a moment the conclusion that 
these parties were alike guilty ? 
in which the President was murdered on the 
afternoon of the 14th of April, and when there 
damned the President and General Grant, and 
said the President ought to be cursed, he had 
got so many good men killed, showing not only 
his hostility to the President, but the cause of 
it, that he had been faithful to his oath, and 
had resisted that great rebellion, in the interest 
of which his life was about to be sacrificed by 
this man and his co-conspirators. In perform- 
ing the work, which had doubtless been in- 
trusted to him by Booth, a mortise was cut in 
the wall. A wooden bar was prepared, one 
end of which could be readily inserted in the 
mortise and the other pressed against the edge 
of the door, on the inside, so as to prevent its 
being opened. Spangler had the skill and the 
opportunity to do that work and all the addi- 
tional work which was done. 
It is in evidence that the screws in “the 
keepers” to "the locks on each of the inner 
doors of the box occupied by the President were 
drawn. The attempt has been made, on behalf 
of the prisoner, to show that this was done some 
time before, accidentally, and with no bad de- 
sign, and had not been repaired by reason of 
inadvertence; but that attempt has utterly 
failed, because the testimony adduced for that 
purpose relates exclusively to but one of the two 
inner doors, while the fact is that the screws 
were drawn in both, and the additional precau- 
tion taken to cut a small hole through one of 
these doors, through which the party approach- 
ing, and while in the private passage would be 
enabled to look into the box and examine the 
exact posture of the President before entering, 
It was also deemed essential, in the execution 
of this plot, that some one should watch at the 
outer door, in the rear of the theater, by which 
alone the assassin could hope for escape. It 
was for this work Booth sought to employ 
Chester in January, offering $3,000 down of the 
money of his employers, and the assurance that 
he should never want. What Chester refused 
to do, Spangler undertook and promised to do. 
When Booth brought his horse to the rear door 
of the theater, on the evening of the murder, he 
called for Spangler, who went to him, when 
Booth was heard to say to him, “Ned, you’ll 
help me all you can, won’t you?” To which 
Spangler replied, “Oh, yes.” 
When Booth made his escape, it is testified by 
Colonel Stewart, who pursued him across the 
stage and out through the same door, that, as he 
approached it, some one slammed it shut. RR" 
terspaugh, who was standing behind the scenes 
when Booth fired the pistol and fled, saw Booth 
run down the passage toward the back door, 
and pursued him; but Booth drew his knife 
upon him and passed out, slamming the door 
after him. Ritterspaugh opened it and went 
through, leaving it open behind him, leaving 
Spangler inside, and in a position from which 
he readily could have reached the door. RR" 
terspaugh also states that very quickly after 
he had passed through this door he was followe 
by a large man, the first who followed him, and 
who was, doubtless, Colonel Stewart. Stewar 
is very positive that he saw this door slammet , 
that he himself was constrained to open it, an 
The testimony of Spangler’s complicity is 
conclusive and brief. It was impossible to 
hope for escape after assassinating the Presi- 
dent, and such others as might attend him in 
Ford’s theater, without arrangements being 
first made to aid the flight of the assassin, and, 
to some extent, prevent immediate pursuit. 
A stable was to be provided close to Ford’s 
theater, in which the horses could be concealed, 
and kept ready for the assassin’s use whenever 
the murderous blow was struck. Accordingly, 
Booth secretly, through Maddox, hired a stable 
in the rear of the theater, and connecting with 
it by an alley, as early as the Ist of January 
last, showing that at that time he had concluded, 
notwithstanding all that has been said to the 
contrary, to murder the President in Ford’s 
theater, and provide the means for immediate 
and successful flight. Conscious of his guilt, 
he paid the rent for this stable through Maddox, 
month by month, giving him the money. He 
employed Spangler, doubtless for the reason 
that he could trust him with the secret, as a 
carpenter to fit up this shed, so that it would 
furnish room for two horses, and provided the 
door with lock and key. Spangler did this 
work for him. Then it was necessary that a 
carpenter, having access to the theater, should 
be employed by the assassin to provide a bar 
for the outer door of the passage leading to the 
President’s box, so that when he entered upon 
his work of assassination he would be secure 
from interruption from the rear. By the evi- 
dence it is shown that Spangler was in the box ARGUMENT OF JOHN A. BINGHAM. 
395 
had some difficulty in opening it. He also testi- 
fies that as he approached the door a man stood 
near enough to have thrown it to with his 
hand, and this man, the witness believes, was 
the prisoner Spangler. Ritterspaugh has sworn 
that he left the door open behind him when he 
went out, and that he was first followed by 
the large man, Colonel Stewart. Who slammed 
that door behind Ritterspaugh? It was not 
Ritterspaugh; it could not have been Booth, for 
Ritterspaugh swears that Booth was mounting 
his horse at the time; and Stewart swears that 
Booth was upon his horse when he came out. 
That it was Spangler who slammed the door 
after Ritterspaugh may not only be inferred 
from Stewart’s testimony, but it is made very 
clear by his own conduct aftex'ward, upon the 
return of Ritterspaugh to the stage. The door 
being then open, and Ritterspaugh being asked 
which way Booth went, had answered. Rit- 
terspaugh says: £< Then I came back on the 
stage, where I had left Edward Spangler; he 
hit me on the face with his hand, and said, 
‘ Don’t say which way he went.’ I asked him 
what ho meant by slapping me in the mouth. 
He said, ‘For God’s sake, shut up.’” 
The testimony of Withers is adroitly handled, 
to thi'ow doubt upon these facts. It can not 
avail, for Withers says he was knocked in the 
scene by Booth, and when he “come to” he got 
a side view of him. A man knocked down 
and senseless, on “coming to” might mistake 
anybody, by a side view, for Booth. 
An attempt has been made by the defense to 
discredit this testimony of Ritterspaugh, by 
showing his contradictory statements to Gifford, 
Carlan and Lamb, neither of whom do, in fact, 
contradict him, but substantially sustain him. 
None but a guilty man would have met the wit- 
ness with a blow for stating which way the as- 
sassin had gone. A like confession of guilt 
was made by Spangler when the witness Miles, 
the same evening, and directly after the assas- 
sination, came to the back door, where Spang- 
ler was standing, with others, and asked Spang- 
ler who it was that held the horse, to which 
Spangler replied; “Hush; don’t say anything 
about it.” He confessed his guilt again when 
he denied to Mary Anderson the fact, proved 
here beyond all question, that Booth had called 
him when he came to that door with his horse, 
using the emphatic words, “No; he did not; he 
did not call me.” The rope comes to bear wit- 
ness against him, as did the rope which Atze- 
rodt, and Herold, and John H. Surratt, had 
carried to Surrattsville, and deposited there 
with the carbines. 
ratt’s, his attendance at the theater with Payne, 
Surratt and Atzerodt, his connexion with Atze- 
rodt on the evening of the murder, riding with 
him on the street in the direction of, and near 
to, the theater at the hour appointed for the 
work of assassination, and his final flight and 
arrest, show that he, in common with all the 
other parties on trial, and all the parties named 
upon your record not upon trial, had combined 
and confederated to kill and murder in the in- 
terests ofHhe rebellion, as charged and specified 
against them. 
That this conspiracy was entered into by all 
these parties, both present and absent, is thus 
proved by the acts, meetings, declarations and 
correspondence of all the parties, beyond any 
doubt whatever. True, it is circumstantial evi- 
dence, but the Court will remember the rule 
before recited, that circumstances can not lie; 
that they are held sufficient in every court 
where justice is judicially administered to es- 
tablish the fact of a conspiracy. I shall take 
no further notice of the remark made by the 
learned counsel who opened for the defense, 
and which has been followed by several of his 
associates, that, under the Constitution, it re- 
quires two witnesses to prove the overt act of 
high treason, than to say, this is not a charge 
of high treason, but of a treasonable conspir- 
acy, in aid of a rebellion, with intent to kill 
and murder the Executive officer of the United 
States, and commander of its armies, and of 
the murder of the President, in pursuance of 
that conspiracy, and with the intent laid, etc. 
Neither by the Constitution, nor by the rules of 
the common law, is any fact connected with 
this allegation required to be established by 
the testimony of more than one witness. I 
might say, however, that every substantive 
averment against each of the parties named 
upon this record has been established by the 
testimony of more than one witness. 
That the several accused did enter into this 
conspiracy with John Wilkes Booth and John 
H. Surratt, to murder the officers of this Gov- 
ernment named upon the record, in pursuance 
of the wishes of their employers and instiga- 
tors in Richmond and Canada, and with intent 
thereby to aid the existing rebellion and sub- 
vert the Constitution and laws of the United 
States, as alleged, is no longer an open ques- 
tion. 
The intent as laid was expressly declared 
by Sanders in the meeting of the conspiratox-s 
at Montreal in February last, by Booth in Vir- 
ginia and New York, and by Thompson to Con- 
over and Montgomery; but if there were no 
testimony directly upon this point, the law 
would presume the intent, for the reason that 
such was the natural and necessary tendency 
and manifest design of the act itself. 
The learned gentleman (Mr. Johnson) says 
the Government has survived the assassination 
of the President, and thereby would have you 
infer that this conspiracy was not entered into 
and attempted to be executed with the intent 
laid. With as much show of reason, it might 
be said that because the Government of the 
United States has survived this unmatched 
rebellion, it therefore results that the rebel con- 
It is only surprising that the ingenious coun- 
sel did not attempt to explain the deposit of the 
rope at Surrattsville by the same method that 
he adopted in explanation of the deposit of 
this rope, some sixty feet long, found in the 
carpet-sack of Spangler, unaccounted for, save 
by some evidence which tends to show that he 
may have carried it away from the theater. 
It is not needful to take time in the recapit- 
ulation of the evidence, which shows conclu- 
sively that David E. Herold was one of these 
Conspirators. His continued association with 
Booth, with Atzerodt, his visits to Mrs. Sur- 396 
THE CONSPIRACY TRIAL. 
spirators waged war upon the Government with 
no purpose or intent thereby to subvert it. By 
the law, we have seen that without any direct 
evidence of previous combination and agree- 
ment between these pai'ties, the conspiracy 
might be established by evidence of the acts 
of the prisoners, or of any others with wTiom 
they co-operated, concurring in the execution 
of the common design. Roscoe, 416. 
Was there co-operation between the several 
accused in the execution of this conspiracy ? 
That there was, is as clearly established by 
the testimony as is the fact that Abraham Lin- 
coln was killed and murdered by John Wilkes 
Booth. The evidence shows that all of the 
accused, save Mudd and Arnold, were in 
Washington on the 14th of April, the day of 
the assassination, together with John Wilkes 
Booth and John H. Surratt; that on that day 
Booth had a secret interview with the prisoner, 
Mary E. Surratt; that immediately thereafter 
she went to Surrattsville to perform her part 
of the preparation necessary to the successful 
execution of the conspiracy, and did make that 
preparation; that John 11. Surratt had arrived 
here from Canada, notifying the parties that 
the price to be paid for this great crime had 
been provided for, at least in part, by the de- 
posit receipts of April 6th for $lBO,OOO, pro- 
cured by Thompson, of the Ontario Bank, Mon- 
treal, Canada; that he was also prepared to 
keep watch, or strike a blow, and ready for 
the contemplated flight; that Atzerodt, on the 
afternoon of that day, was seeking to obtain 
a horse, the better to secure his own safety by 
flight, after he should have performed the task 
which he had voluntarily undertaken by con- 
tract in the conspiracy—the murder of An- 
drew Johnson, then Vice-President of the 
United States; that he did procure a horse for 
that purpose at Naylor’s and was seen about 
nine o’clock in the evening to ride to the Kirk- 
wood House, where the Vice-President then 
was, dismount, and enter. At a previous hour 
Booth was in the Kirkwood House, and left 
his card, now in evidence, doubtless intended 
to be sent to the room of the Vice-President, 
and which was in these words: “Don’t wish 
to disturb you. Are you at home? J. Wilkes 
Booth.” Atzerodt, when he made application 
at Brooks’ in the afternoon for the horse, said 
to Weichmann, who was there, he was going to 
ride in the country, and that “he was going to 
get a horse and send for Payne.” He did get 
a horse for Payne, as well as for himself; for it 
is proven that on the 12th he was seen in Wash- 
ington, riding the horse which had been pro- 
cured by Booth, in company with Mudd, last 
November, from Gardner. A similar horse 
was tied before the door of Mr. Seward on the 
night of the murder, was captured after the 
flight of Payne, who was seen to ride away, 
and which horse is now identified as the Gard- 
ner horse. Booth also procured a horse on the 
same day, took it to his stable in the rear of 
the theater, where he had an interview with 
Spangler, and where he concealed it. Herold, 
too, obtained a horse in the afternoon, and was 
seen between nine and ten o’clock riding with 
Atzerodt down the Avenue from the Treasury, 
i then up Fourteenth and down F street, passing 
| close by Ford's theater. 
O’Laughlin had come to Washington the day 
before, had sought out his victim, General 
Grant, at the house of the Secretary of War, 
that he might be able with certainty to identify 
him, and at the very hour when these prepa- 
rations were going on, was lying in wait at 
llullman’s, on the Avenue, keeping watch, and 
declaring, as he did, at about ten o’clock P. M., 
when told that the fatal blow had been struck 
by Booth, “I don’t believe Booth did it.” Dur- 
ing the day, and the night before, he had been 
visiting Booth, and doubtless encouraging him, 
and at that very hour was in position, at a con- 
venient distance, to aid and protect him in his 
flight, as well as to execute his own part of the 
conspiracy by inflicting death upon General 
Grant, who happily was not at the theater nor 
in the city, having left the city that day. 
Who doubts that, Booth having ascertained in 
the course of the day, that General Grant 
would not be present at the theater, O’Laugh- 
lin, who was to murder General Grant, instead 
of entering the box with B®oth, was detailed 
to lie in wait, and watch and support him. 
His declarations of his reasons for changing 
his lodgings here and in Baltimore, after the 
murder, so ably and so ingeniously presented 
in the argument of his learned counsel (Mr. 
Cox), avail nothing before the blasting fact that 
he did change his lodgings, and declared “he 
knew nothing of the affair whatever.” O’Laugh- 
lin, who lurked here, conspiring daily with 
Booth and Arnold for six weeks to do this 
murder, declares “he knew nothing of the 
affair.” O’Laughlin, who said he was “in the 
oil business,” which Booth and Surratt, and 
Payne and Arnold, have all declared meant 
this conspiracy, says he “knew nothing of the 
affair.” O’Laughlin, to whom Booth sent the 
dispatches of the 18th and 27th of March— 
O’Laughlin, who is named in Arnold’s letter as 
one of the conspirators, and who searched for 
General Grant on Thursday night, laid in wait 
for him on Friday, was defeated by that Provi- 
dence “which shapes our ends,” and laid in 
wait to aid Booth and Payne, declares “he 
knows nothing of the matter.” Such a denial 
is as false and inexcusable as Peter’s denial 
of our Lord. 
Mrs. Surratt had arrived at home, from the 
completion of her part of the plot, about half- 
past eight o’clock in the evening. A few mo- 
ments afterward she was called to the parlor, 
and there had a private interview with some 
one unseen, but whose retreating footsteps were 
heard by the witness Weichmann. This was 
doubtless the secret and last visit of John H. 
Surratt to his mother, who had instigated and 
encouraged him to strike this traitorous and 
murderous blow against his country. 
While all these preparations were going on, 
Mudd was awaiting the execution of the plot, 
ready to faithfully perform his part in secur- 
ing the safe escape of the murderers. Arnold 
was at his post at Fortress Monroe, awaiting 
the meeting referred to in his letter of March 
27th, wherein he says they were not “to meet 
for a month or so,” which month had more than ARGUMENT OF JOHN A. BINGHAM. 
expired on the day of the murder, for his letter 
and the testimony disclose that this month of 
suspension began to run from about the first 
week in March. He stood ready with the 
arms which Booth had furnished him to aid 
the escape of the murderers by that route, and 
secure their communication with their employ- 
ers. He had given the assurance in that letter 
to Booth, that although the Government “ sus- 
picioned them,” and the undertaking was “be- 
coming complicated,” yet “a time more propi- 
tious would arrive ” for the consummation of 
this conspiracy in which he “was one” with 
Booth, and when he would “be better'prepared 
to again be with him.” 
Such were the preparations. The horses 
were in readiness for the flight; the ropes were 
procured, doubtless, for the purpose of tying 
the horses at whatever point they might, be 
constrained to delay, and to secure their boats 
to their moorings in making their way across 
the Potomac. The five murderous camp knives, 
the two carbines, the eight revolvers, the Der- 
ringer, in Court and identified, all were ready 
for the work of death. The part that each had 
played has already been in part stated in this 
argument, and needs no repetition. 
Booth proceeded to the theater about nine 
o’clock in the evening, at the same time that At- 
zerodt, Payne and Herold were riding the streets, 
while Surratt, having parted with his mother 
at the brief interview in her parlor, from which 
his retreating steps were heard, was walking 
the avenue, booted and spurred, and doubtless 
consulting with O’Laughlin. When Booth 
reached the rear of the theater, he called Span- 
gler to him (whose denial of that fact, when 
charged with it, as proven by three witnesses, 
is very significant), and received from Span- 
gler his pledge to help him all he could, when 
with Booth he entered the theater by the stage 
door, doubtless to see that the way was clear 
from the box to the rear door of the theater, 
and look upon their victim, whose exact posi- 
tion they could study from the stage. After 
this-view, Booth passes to the street, in front 
of the theater, where, on the pavement with 
other conspirators yet unknown, among them 
one described as a low-browed villain, he 
awaits the appointed moment. Booth himself, 
impatient, enters the vestibule of the theater 
from the front, and asks the time. He is re- 
ferred to the clock, and returns. Presently, 
as the hour of ten approached, one of his guilty 
associates called the time; they wait; again, 
as the moments elapsed, this conspirator 
upon watch called the time; again, as the ap- 
pointed hour draws nigh, he calls the time; 
and finally, when the fatal moment arrives, he 
repeats in a louder tone, “Ten minutes past 
ten o’clock.” Ten minutes past ten o’clock ! 
The hour has come when the red right hand of 
these murderous conspirators should strike, 
and the dreadful deed of assassination be done. 
Booth, at the appointed moment, entered the 
theater, ascended to the dress-circle, passed to 
the right, paused a moment, looking down, 
doubtless to see if Spangler was at his post, 
and approached the outer door of the close pas- 
sage leading to the box occupied by the Presi- 
dent, pressed it open, passed in, and closed the 
passage door behind him. Spangler’s bar was 
in its place, and was readily adjusted by Booth 
in the mortise, and pressed against the inner 
side of the door, so that he was secure from in- 
terruption from without. He passes on to the 
next door, immediately behind the President, 
and there stopping, looks through the aperture 
in the door into the President’s box, and delib- 
erately observes the precise position of his vic- 
tim, seated in the chair which had been pre- 
pared by the conspirators as the altar for the 
sacrifice, looking calmly and quietly down up- 
on the glad and grateful people whom by his 
fidelity he had saved from the peril which had 
threatened the destruction of their government, 
and all they held dear this side of the grave, 
and whom he had come upon invitation to greet 
with his presence, with the words still linger- 
ing upon his lips which he had uttered with 
uncovered head and uplifted hand before God 
and his country, when on the 4th of last March 
he took again the oath to preserve, protect and 
defend the Constitution, declaring that he en- 
tered upon the duties of his great office “ with 
malice toward none—with charity for all.” In 
a moment more, strengthened by the knowledge 
that his co-conspirators were all at their posts, 
seven at least of them present in the city, two 
of them, Mudd and Arnold, at their appointed 
places, watching for his coming, this hired as- 
sassin moves stealthily through the door, the 
fastenings of which had been removed to facil- 
itate his entrance, fires upon his victim, and 
the martyr spirit of Abraham Lincoln ascends 
to God. 
“ Treason has done his worst; nor steel nor poison, 
Malice domestic, foreign levy, nothing 
Can touch him further.” 
At the same hour, when these accused and 
their co-conspirators in Richmond and Canada, 
by the hand of John Wilkes Booth, inflicted 
this mortal wound which deprived the republic 
of its defender, and filled this land from ocean 
to ocean with a strange, great sorrow, Payne, 
a very demon in human form, with the words 
of falsehood upon his lips, that he was the bearer 
of a message from the physician of the venerable 
Secretary of State, sweeps by his servant, en- 
counters his son, who protests that the assassin 
shall not disturb his father, prostrate on a bed 
of sickness, and receives for answer the assas- 
sin’s blow from the revolver in his hand, re- 
peated again and again, rushes into the room, 
is encountered by Major Seward, inflicts wound 
after wound upon him with his murderous knife, 
is encountered by Hansell and Robinson, each 
of whom he also wounds, springs upon the de- 
fenseless and feeble Secretary of State, stabs 
first on one side of his throat, then on the other, 
again in the face, and is only prevented from 
literally hacking out his life by the persistence 
and courage of the attendant Robinson. He 
turns to flee, and, his giant arm and murderous 
hand for a moment paralyzed by the conscious- 
ness of guilt, he drops his weapons of death, 
one in the house, the other at the door, where 
they were taken up, and are here now to bear 
witness against him. He attempts escape on 
the horse which Booth and Mudd had procured 398 
THE CONSPIRACY TRIAL. 
of Gardner—with what success has already 
been stated. 
that day, who had committed this crime, yet it 
is in evidence by two witnesses, whose truth- 
fulness no man questions, that upon Mudd’s re- 
turn to his own house, that afternoon, he stated 
that Booth was the murderer of the President, 
and Boyle the murderer of Secretary Seward, 
but took care to make the further remark that 
Booth had brothers, and he did not know which 
of them had done the act. When did Dr. Mudd 
learn that Booth had brothers? And what is 
still more pertinent to this inquiry, from whom 
did he learn that either John Wilkes Booth or 
any of his brothers had murdered the President? 
It is clear that Booth remained in his house 
until some time in the afternoon of Saturday; 
that Herold left the house alone, as one of the 
witnesses states, being seen to pass the window; 
that he alone of those two assassins was in the 
company of Dr. Mudd on his way to Bryantown. 
It does not appear when Herold returned to 
Mudd’s house. It is a confession of Dr. Mudd 
himself, proven by one of the witnesses, that 
Booth left his house on crutches, and went in 
the direction of the swamp. How long he re- 
mained, there, and what became of the horses 
which Booth and Herold rode to his house, and 
which were put into his stable, are facts no- 
where disclosed by the evidence. The owners 
testify that they have never seen the horses 
since. The accused give no explanation of the 
matter, and when Herold and Booth were cap- 
tured they had not these horses in their posses- 
sion. How comes it that, on Mudd’s return 
from Bryantown, on the evening of Saturday, 
in his conversation with Mr. Hardy and Mr, 
Farrell, the witnesses referred to, he gave the 
name of Booth as the murderer of the President 
and that of Boyle as the murderer of Secretary 
Seward and his son, and carefully avoided inti- 
mating to either that Booth had come to his 
house early that day, and had remained there 
until the afternoon ; that he left him in his 
house and had furnished him a razor with which 
Booth attempted to disguise himself by shaving 
off his mustache? How comes it, also, that, 
upon being asked by those two witnesses 
whether the Booth who killed the President was 
the one who had been there last fall, lie an- 
swered that he did not know whether it was 
that man or one of his brothers, but he under- 
stood he had some brothers, and added, that if 
it was the Booth who was there last fall, he knew 
that one, but concealed the fact that this man 
had been at his house on that day, and was then 
at his house, and had attempted, in his presence, 
to disguise his person? He was sorry, very 
sorry, that the thing had occurred, but not so 
sorry as to be willing to give any evidence to 
these two neighbors, who were manifestly hon- 
est and upright men, that the murderer had 
been harbored in his house all day, and was 
probably at that moment, as his own subse- 
quent confession shows, lying concealed in hi* 
house or near by, subject to his call. This is 
the man who undertakes to show by his own 
declaration, offered in evidence against my pro- 
test, of what he said afterward, on Sunday 
afternoon, the 16th, to his kinsman, Dr. George 
D. Mudd, to whom he then stated that the assas- 
sination of the President was a most damnable 
Atzerodt, near midnight, returns to the stable 
of Naylor the horse which he had procured for 
this work of murder, having been interrupted 
in the execution of the part assigned him at the 
Kirkwood House, by the timely coming of citi- 
zens to the defense of the Vice-President, and 
creeps into the Pennsylvania House at two 
o’clock in the morning with another of the con- 
spirators, yet unknown. There he remained 
until about five o’clock, when he left, found his 
way to Georgetown, pawned one of his revolv- 
ers, now in court, and fled northward into 
Maryland. 
He is traced to Montgomery county, to the 
house of Mr. Metz, on the Sunday succeeding 
the murder, where, as is proved by the testi- 
mony of three witnesses, he said that if the man 
that was to follow Gen. Grant had followed him, 
it was likely that Grant was shot. To one of 
these witnesses (Mr. Leaman) he said he did 
not think Grant had been killed; or if he had 
been killed, he was killed by a man who got on 
the cars at the same time that Grant did; thus 
disclosing most clearly that one of his co-con- 
spirators was assigned the task of killing and 
murdering Gen. Grant, and that Atzerodt knew 
that Gen. Grant had left the city of Washing- 
ton, a fact which is not disputed, on the Friday 
evening of the murder, by the evening train. 
Thus this intended victim of the conspiracy es- 
caped, for that night, the knives and revolvers 
of Atzerodt, and O’Laughlin, and Payne, and 
Herold, and Booth, and John H. Surratt, and, 
perchance, Harper and Caldwell, and twenty 
others, who were then here lying in wait for his 
life. 
In the meantime Booth and Herold, taking 
the route before agreed upon, make directly 
after the assassination, for the Anacostia bridge. 
Booth crosses first, gives his name, passes the 
guard, and is speedily followed by Herold. 
They make their way directly to Surrattsville, 
where Herold calls to Lloyd, “ Bring out those 
things,” showing that there had been communi- 
cation bet ween them and Mrs. Surratt after her 
return. Both the carbines being in readiness, 
according to Mary E. Surratt’s directions, both 
were brought out. took but one. Booth de- 
clined to carry the other, saying that his limb was 
broken. They then declared that they had mur- 
dered the President and the Secretary of State. 
They then make their way directly to the house 
of the prisoner Mudd, assured of safety and se- 
curity. They arrived early in the morning be- 
fore day, and no man knows at what hour they 
left. Herold rode toward Bryantown with 
Mudd about three o’clock that afternoon, in the 
vicinity of which place he parted with him, 
remaining in the swamp, and was afterward 
seen returning the same afternoon in the direc- 
tion of Mudd’s house; about which time, a little 
before sundown, Mudd returned from Bryan- 
town toward his home. This village, at the 
time Mudd was in it, was thronged with soldiers 
in pursuit of the murderers of the President, 
and although great care has been taken by the 
defense to deny that any one said in the pres- 
ence of Dr. Mudd, either there or elsewhere on ARGUMENT OF JOHN A. BINGHAM. 
399 
act—a conclusion in which most men will agree 
with him, and to establish which his testimony 
was not needed. But it is to be remarked that 
this accused did not intimate that the man whom 
he knew the evening before was the murderer 
had found refuge in his house, had disguised 
his person, and sought concealment in the 
swamp upon the crutches which he had pro- 
vided for him. Why did he conceal this fact 
from his kinsman? After the church services 
were over, however, in another conversation on 
their way home, he did tell Dr. George Mudd 
that two suspicious persons had been at his 
house, who had come there a little before day- 
break on Saturday morning; that one of them 
had a broken leg, which he bandaged; that 
they got something to eat at his house; that 
they seemed to be laboring under more excite- 
ment than probably would result from the in- 
jury ; that they said they came from Bryantown, 
and inquired the way to Parson Wilmer’s; that 
while at his house one of them called for a razor 
and shaved himself. The witness says, “Ido 
not remember whether he said that this party 
shaved off his whiskers or his mustache, but 
he altered somewhat, or probably materially, 
his features.” Finally, the prisoner, Dr. Mudd, 
told this witness that he, in company with the 
younger of the two men, went down the road 
toward Bryantown in search of a vehicle to take 
the wounded man away from his house. How 
comes it that he concealed in this conversation 
the fact proved, that he went with Herold to- 
wai-d Bryantown and left Herold outside of the 
town ? How comes it that in this second con- 
versation, on Sunday, insisted upon here with 
such pertinacity as evidence for the defense, but 
which had never been called for by the prosecu- 
tion, he concealed from his kinsman the fact 
which he had disclosed the day before to Hardy 
and Farrell, that it was Booth who assassinated 
the President, and the fact which is now dis- 
closed by his other confessions given in evi- 
dence for the prosecution, that it was Booth 
whom he had sheltered, concealed in his house, 
and aided to his hiding place in the swamps ? 
He volunteers as evidence his further statement, 
however, to this witness, that on Sunday even- 
ing he requested the witness to state to the mili- 
tary authorities that two suspicious persons had 
been at his house, and see if anything could be 
made of it. He did not tell the witness what 
became of Herold, and where he parted with 
him on the way to Bryantown. How comes it 
that when he was at Bryantown on the Satur- 
day evening before, when he knew that Booth 
was then at his house, and that Booth was the 
murderer of the President, he did not himself 
state it to the military authorities then in that 
village, as he well knew ? It is difficult to see 
what kindled his suspicions on Sunday, if none 
were in his mind on Saturday, when he was in 
possession of the fact that Booth had murdered 
the President, and was then secreting and dis- 
guising himself in the prisoner’s own house. 
His conversation with Gardner on the same 
Sunday at the church is also introduced here 
to relieve him from the overwhelming evidences 
of his guilt. He communicates nothing to 
Gardner of the fact that Booth had been in his 
house; nothing of the fact that he knew the 
day before that Booth had murdered the Presi- 
dent; nothing of the fact that Booth had dis- 
guised or attempted to disguise himself; nothing 
of the fact that he had gone with Booth’s asso- 
ciate, Herold, in search of a vehicle, the more 
speedily to expedite their flight; nothing of the 
fact that Booth had found concealment, in the 
woods and swamp near his house, upon the 
crutches which he had furnished him. He con- 
tents himself with merely stating “ that we 
ought to raise immediately a home guard, to 
hunt up all suspicious persons passing through 
our section of country and arrest them, for 
there were two suspicious persons at my house 
yesterday morning.” 
It would have looked more like aiding justice 
and arresting felons if he had put in execution 
his project of a home guard on Saturday, and 
made it effective by the arrest of the man then 
in his house who had lodged with him last fall, 
with whom he had gone to purchase one of the 
very horses employed in his flight after the as- 
sassination, whom he( visited last winter in 
Washington, and to whom he had pointed out 
the very route by which he had escaped by way 
of his house, whom he had again visited on the 
8d of last March, preparatory to the commis- 
sion of this great crime, and who he knew, 
when he sheltered and concealed him in the 
woods on Satui’day, was not merely a suspicious 
person, but was, in fact, the murderer and as- 
sassin of Abraham Lincoln. While I deem it 
my duty to say here, as I said before, when 
these declarations, uttered by the accused op 
Sunday, the 16th, to Gardner and George D. 
Mudd, were attempted to be offered on the part 
of the accused, that they are in no sense evi- 
dence, and by the law were wholly inadmissi - 
ble, yet I state it as my conviction that, being 
upon the record upon motion of the accused 
himself, so far as these declarations to Gardner 
and George D. Mudd go, they are additional 
indications of the guilt of the accused, in this, 
that they are manifestly suppressions of the 
truth and suggestions of falsehood and decep- 
tion ; they are but the utterances and confes- 
sions of guilt. 
To Lieutenant Lovett, Joshua Lloyd, and 
Simon Gavacan, who, in pursuit of the mur- 
derer, visited his house on the 18th of April, 
the Tuesday after the murder, he denied posi- 
tively, upon inquiry, that two men had passed 
his house, or had come to his house on the 
morning after the assassination. Two of these 
witnesses swear positively to his having made 
the denial, and the other says he hesitated to 
answer the question he put to him; all of them 
agree that he afterward admitted that two men 
had been there, one of whom had a broken 
limb, which he had set; and when asked by 
this witness who that man was, he said he did 
not know—that the man was a stranger to him, 
and that the two had been there but a short 
time. Lloyd asked him if he had ever seen any 
of the parties, Booth, Herold and Surratt, and 
he said he had never seen them; while it is pos- 
itively proved that he was acquainted with 
John H. Surratt, who had been in his house; 
that he knew Booth and had introduced Booth 400 
THE CONSPIRACY TRIAL. 
to Surratt last winter. Afterward, on Friday, 
the 21st, he admitted to Lloyd that he had been 
introduced to Booth last fall, and that this man, 
who came to his house on Saturday, the 15th, 
remained there from about four o’clock in the 
morning until about four in the afternoon; that 
one of them left his house on horseback, and 
the other walking. In the first conversation he 
denied ever having seen these men. 
Colonel Wells also testifies that, in his con- 
versation with Dr. Mudd on Friday, the 21st, 
the prisoner said that he had gone to Bryan- 
town, or near Bryantown, to see some friends 
on Saturday, and that as he came back to his 
own house he saw the person he afterward sup- 
posed to be Herold passing to the left of his 
house toward the barn, but that he did not see 
the other person at all after he left him in his 
own house, about one o’clock. If this statement 
be true, how did Dr. Mudd see the same person 
leave his house on crutches? He further stated 
to this witness that he returned to his own 
house about four o’clock in the afternoon; thathe 
did not know this wounded man; said he could 
not recognize him from the photograph which 
is of record here, but admitted that he had met 
Booth some time in November, when he had 
some conversation with him about lands and 
horses ; that Booth had remained with him that 
night in November, and on the next day had 
purchased a horse. He said he had not again 
seen Booth from the time of the introduction 
in November up to his arrival at his house on 
the Saturday morning after the assassination. 
Is not this a confession that he did see John 
Wilkes Booth on that morning at his house, 
and knew it was Booth? If he did not know 
him, how came he to make this statement to the 
■witness: that “he had not seen Booth after 
November prior to his arrival there on the Sat- 
urday morning ?” 
He had said before to the same witness, he 
did not know the wounded man. He said 
further to Colonel Wells, that when he went up 
stairs after their arrival, he noticed that the 
person he supposed to be Booth had shaved olf 
his mustache. Is it not inferable from this 
declaration that he then supposed him to be 
Booth? Yet he declared the same afternoon, 
and while Booth was in his own house, that 
Booth was the murderer of the President. One 
of the most remarkable statements made to this 
witness by the prisoner was that he heard for 
the first time on Sunday morning, or late in the 
evening of Saturday, that the President had 
been murdered! From whom did he hear it ? 
The witness (Colonel Wells) volunteers his 
“impression ” that Dr. Mudd had said he heard 
it after the persons had left his house. If the 
“ impression ” of the witness thus volunteered is 
to be taken as evidence—and the counsel for the 
accused, judging from their manner, seem to 
think it ought to be—let this question be an- 
swered : how could Dr. Mudd have made that im- 
pression upon anybody truthfully, when it is 
proved by Farrell and Hardy that on his return 
from Bryantown, on Saturday afternoon, he not 
only stated that the President, Mr. Seward and 
his son had been assassinated, but that Boyle 
had assassinated Mr. Seward, and Booth had 
assassinated the President? Add to this the 
fact that he said to this witness that he left hia 
own house at one o’clock, and when he returned 
the men were gone, yet it is in evidence, by 
his own declarations, that Booth left his house 
at four o’clock on crutches, and he must have 
been there to have seen it, or he could not have 
known the fact. 
Mr. Williams testifies that he was at Mudd’s 
house on Tuesday, the 18th of April, when he said 
that strangers had not been that way, and also 
declared that he heard, for the first time, of the 
assassination of the President on Sunday morn- 
ing, at church. Afterward, on Friday, the 
21st, Mr. Williams asked him concerning the 
men who had been at his house, one of whom 
had a broken limb, and he confessed they had 
been there. Upon being asked if they were 
Booth and Herold, he said they were not—that 
he knew Booth. I think it is fair to conclude 
that he did know Booth, when we consider the 
testimony of Weichmann, of Norton, of Evans, 
and all the testimony just referred to, wherein 
he declares, himself, that he not only knew 
him, but that he had lodged with him, and that 
he had himself gone with him when he pur- 
chased his horse from Gardner last fall, for the 
very purpose of aiding the flight of himself, or 
some of his confederates. 
All these circumstances taken together, which, 
as we have seen upon high authority, are 
stronger as evidences of guilt than even direct 
testimony, leave no further room for argument, 
and no rational doubt that Dr. Samuel A. Mudd 
was as certainly in this conspiracy as were 
Booth and Herold, whom he sheltered and en- 
tertained ; receiving them under cover of dark- 
ness on the morning after the assassination, 
concealing them throughout that day from the 
hand of oifended justice, and aiding them, bj’ 
every endeavor, to pursue their way success- 
fully to their co-conspirator, Arnold, at For- 
tress Monroe, and in which direction they fled 
until overtaken and Booth was slain. 
We next find Herold and his "onfederate 
Booth, after their departure from the house of 
Mudd, across the Potomac, in the neighborhood 
of Port Conway, on Monday, the 24th of April, 
conveyed in a wagon. There Herold, in order 
to obtain the aid of Captain Jett, Ruggles and 
Bainbridge, of the Confederate army, said to 
Jett, “We are the assassinators of the Presi- 
dent;” that this was his brother with him, who, 
with himself, belonged to A. P. Hill’s corps; 
that his brother had been wounded at Peters- 
burg; that their names were Boyd. He re- 
quested Jett and his rebel companions to take 
them out of the lines. After this, Booth joined 
these parties, was placed on Ruggles’ horse, and 
crossed the Rappahannock river. They then 
proceeded to the house of Garrett, in the neigh- 
borhood of Port Royal, and nearly midway be- 
tween Washington city and Fortress Monroe, 
where they were to have joined Arnold. Be- 
fore these rebel guides and guards parted with 
them, Herold confessed that they were travel- 
ing under assumed names—that his own name 
was Herold, and that the name of the wounded 
man was John AYilkes Booth, “who had killed 
the President.” The rebels left Booth at Gar- ARGUMENT OF JOHN A. BINGHAM. 
401 
rett’s, where Herold re-visited him from time to 
time, until they were captured. At two o’clock 
on Wednesday morning, the 26th, a party of 
United States officers and soldiers surrounded 
Garrett’s barn, where Booth and Herold lay 
concealed, and demanded their surrender. 
Booth cursed Herold, calling him a coward, 
and bade him go, when Herold came out and 
surrendered himself, was taken into custody, 
and is now brought into Court. The barn was 
then set on lire, when Booth sprang to his feet, 
amid the flames that were kindling about him, 
carbine in hand, and approached the door, 
seeking, by the flashing light of the fire, to find 
some new victim for his murderous hand, when 
he was shot, as he deserved to be, by Sergeant 
Corbett, in order to save his comrades from 
wounds or death by the hands of this desperate 
assassin. Upon his person was found the fol- 
lowing bill of exchange: 
“No. 1492. The Ontario Bank, Montreal 
Branch. Exchange for £6l 12s. 10d. Mon- 
treal, 27th October, 1864. Sixty days after 
sight of this first of exchange, second and third 
of the same tenor and date, pay to the order of 
J. Wilkes Booth £6l 12s. lOd. sterling, value 
received, and charge to the account of this 
office. H. Stanus, manager. To Messrs. Glynn, 
Mills & Co., London.” 
Thus fell, by the hands of one of the defend- 
ers of the republic, this hired assassin, who, for 
a price, murdered Abraham Lincoln, bearing 
upon his person, as this bill of exchange testi- 
fies, additional evidence of the fact that he had 
undertaken, in aid of the rebellion, this work 
of assassination by the hands of himself and 
his confederates, for such sum as the accred- 
ited agents of Jefferson Davis might pay him 
or them, out of the funds of the Confederacy, 
which, as is in evidence, they had in “ any 
• amount” in Canada for the purpose of reward- 
ing conspirators, spies, poisoners and assas- 
sins, who might take service under their false 
commissions, and to do the work of the incen- 
diary and the murderer upon the lawful repre- 
sentatives of the American people, to whom had 
been intrusted the care of the republic, the 
maintenance of the Constitution, and the execu- 
tion of the laws. 
The Court will remember that it is in the tes- 
timony of Merritt, and Montgomery, and Con- 
over, that Thompson, and Sanders, and Clay, 
and Cleary, made their boasts that they had 
money in Canada for this very purpose. Nor 
is it to be overlooked or forgotten that the 
officers of the Ontario Bank, at Montreal, testily 
that during the current year of this conspiracy 
and assassination, Jacob Thompson had on de- 
posit in that bank the sum of six hundred and 
forty-nine thousand dollars, and that these de- 
posits to the credit of Jacob Thompson accrued 
from the negotiation of bills of exchange 
drawn by the Secretary of the Treasury of the 
so-called Confederate States on Frazier, Tren- 
liolm & Co., of Liverpool, who were known to 
be the financial agents of the Confederate 
States. With an undrawn deposit in this bank 
of four hundred and fifty-five dollars, which 
has remained to his credit since October last, 
and with an unpaid bill of exchange drawn by 
the same bank upon London, in his possession, 
and found upon his person, Booth ends his 
guilty career in this work of conspiracy and 
blood in April, 1865, as he began it in October, 
1864, in combination with Jefferson Davis, 
Jacob Thompson, George N. Sanders, Clement 
C. Clay, William C. Cleary, Beverley Tucker, 
and other co-conspirators, making use of the 
money of the rebel confederation to aid in the 
execution and in the flight, bearing, at the mo- 
ment of his death, upon his person, their 
money, part of the price which they paid for 
his great crime, to aid him in its consummation, 
and secure him afterward from arrest, and the 
just penalty which, by the law of God and the 
law of man, is denounced against treasonable 
conspiracy and murder. 
By all the testimony in the case, it is, in my 
judgment, made as clear as any transaction 
can be shown by human testimony, that John 
Wilkes Booth and John H. Surratt, and the sev- 
eral accused, David E. Herold, George A. Atze- 
rodt, Lewis Payne, Michael O’Laughlin, Edward 
Spangler, Samuel Arnold, Mary E. Surratt and 
Samuel A. Mudd, did, with intent to aid the ex- 
isting rebellion, and to subvert the Constitution 
and laws of the United States, in the month of 
October last, and thereafter, combine, confed- 
erate and conspire with 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, within the military depart- 
ment of Washington, and within the intrenched 
fortifications and military lines thereof, Abra- 
ham Lincoln, then President of the United 
States, and Commander-in-Chief of the army 
and navy thereof; Andrew Johnson, Vice-Pres- 
ident of the United States; William H. Seward, 
Secretary of State, and Ulysses S. Grant, Lieu- 
tenant-General, in command of the armies of 
the United States; and that Jefferson Davis, 
the chief of this rebellion, was the instigator 
and procurer, through his accredited agents in' 
Canada, of this treasonable conspiracy. 
It is also submitted to the Court, that it is 
clearly established by the testimony that John 
Wilkes Booth, in pursuance of this conspiracy, 
so entered into by him and the accused, did, on 
the night of the 14th of April, 1865, within the 
military department of Washington, and the 
intrenched fortifications and military lines 
thereof, and with the intent laid, inflict a mor- 
tal wound upon Abraham Lincoln, then Presi- 
dent and Commander-in-chief of the army and 
navy of the United States, whereof he died; 
that, in pursuance of the same conspiracy, and 
within the said department and intrenched 
lines, Lewis Payne assaulted, with intent to 
kill and murder, William H. Seward, then Sec- 
retary of State of the United States; that 
George A. At/.erodt, in pursuance of the same 
conspiracy, and within the said department, 
laid in wait, with intent to kill and murder 
Andrew Johnson, then Vice-President of the 
United States; that Michael O’Laughlin, within 
said department, and in pursuance of said con- 
spiracy, laid in wait to kill and murder Ulysses 
S. Grant, then in command of the armies of 
the United States; and that Mary E. Surratt. 402 
THE CONSPIRACY TRIAL. 
David E. Horold, Samuel Arnold, Samuel A. 
Mudd and Edward Spangler did encourage, aid 
and abet the commission of said several acts in 
the prosecution of said conspiracy. 
As we have seen this is the rule, whether all 
the conspirators are indicted or not; whether 
they are all on trial or not. “It is not mate- 
rial what the nature of the indictment is, pro- 
vided the offense involve a conspiracy. Upon 
indictment for murder, for instance, if it appear 
that others, together with the prisoner, con- 
spired to perpetrate the crime, the act of one, 
done in pursuance of that intention, would be 
evidence against the rest.” 1 Whar., 706. To 
the same effect are the words of Chief Justice 
Marshall, before cited, that whoever leagued in 
a general conspiracy, performed any part, how- 
ever minute, or however remote, from the 
scene of action, are guilty as principals. In 
this treasonable conspiracy, to aid the existing 
armed rebellion, by murdering the executive 
officers of the United States and the commander 
of its armies, all the parties to it must be held 
as principals, and the act of one, in the prose- 
cution of the common design, the act of all. 
I leave the decision of this dread issue with 
the Court, to which alone it belongs. It is for 
you to say, upon your oaths, whether the ac- 
cused are guilty. 
I am not conscious that in this argument I 
have made any erroneous statement of the evi- 
dence, or drawn any erroneous conclusions; 
yet I pray the Court, out of tender regard and 
jealous care for the rights of the accused, to 
see that no error of mine, if any there be, shall 
work them harm. The past services of the mem- 
bers of this honorable Court give assurance 
that, without fear, favor or affection, they will 
discharge with fidelity the duty enjoined upon 
them by their oaths. Whatever else may befall, 
I trust in God that in this, as in every other 
American court, the rights of the whole people 
will be respected, and that the Republic in this, 
its supreme hour of trial, will be true to itself 
and just to all, ready to protect the rights of 
the humblest, to redress every wrong, to avenge 
every crime, to vindicate the majesty of law, 
and to maintain inviolate the Constitution, 
whether assailed secretly or openly, by hosts 
armed with gold, or armed with steel. 
If this treasonable conspiracy has not been 
wholly executed; if the several executive of- 
ficers of the United States and the commander 
of its armies, to kill and murder whom the 
said several accused thus confederated and con- 
spired, have not each and all fallen by the 
hands of these conspirators, thereby leaving 
the people of the United States without a Pres- 
ident or Vice-President, without a Secretary 
of State, who alone is clothed with authority 
by the law to call an election to fill the va- 
cancy, should any arise, in the offices of Presi- 
dent and Vice-President; and, without a law- 
ful commander of the armies of the republic, 
it is only because the conspirators were de- 
terred by the vigilance and fidelity of the ex- 
ecutive officers, whose lives were mercifully 
protected, on that night of murder, by the care 
of the Infinite Being, who has, thus far, saved 
the Republic, and crowned its arms with vic- 
tory. 
If this conspiracy was thus entered into by 
the accused; if John Wilkes Booth did kill and 
murder Abraham Lincoln in pursuance thereof; 
if Lewis Payne did, in pursuance of said con- 
spiracy, assault, with intent to kill and murder, 
William H. Seward, as stated, and if the several 
parties accused did commit the several acts al- 
leged against them, in the prosecution of said 
conspiracy, then it is the law that all the par- 
ties to that conspiracy, whether present at the 
time of its execution or not, whether on trial 
before this Court or not, are alike guilty of the 
several acts done by each in the execution of 
the common design. What these conspirators 
did in the execution of this conspiracy by the 
hand of one of their co-conspirators they did 
themselves; his act, done in the prosecution of 
the common design, was the act of all the par- 
ties to the treasonable combination, because 
done in execution and furtherance of their 
guilty and treasonable agreement. A.FFENDIX 
o 
ON THE 
CONSTITUTIONAL POWER OF THE MILITARY 
TO TRY AND EXECUTE THE 
ASSASSINS OF THE PRESIDENT. 
ATTORNEY GENERAL JAMES SPEED. 
Constitution, they must be constituted accord- 
ing to the laws and usages of civilized war- 
fare. They may take cognizance of such of- 
fenses as the laws of war permit; they must 
proceed according to the customary usages of 
such tribunals in time of war, and inflict such 
punishments as are sanctioned by the practice 
of civilized nations in time of war. In time 
of peace, neither Congress nor the military can 
create any military tribunals, except such as 
are made in pursuance of that clause of the 
Constitution which gives to Congress the power 
“ to make rules for the government of the land 
and naval forces.” I do not think that Con- 
gress can, in time of war or peace, under this 
clause of the Constitution, create military tri- 
bunals for the adjudication of offenses com- 
mitted by persons not engaged in, or belonging 
to, such forces. This is a proposition too plain 
for argument. But it does not follow that be- 
cause such military tribunals can not be cre- 
ated by Congress under this clause, that they 
can not be created at all. Is there no other 
power conferred by the Constitution upon Con- 
gress or the military, under which such tribu- 
nals may be created in time of war? 
That the law of nations constitutes a part of 
the laws of the land, must be admitted. The 
laws of nations are expressly made laws of the 
land by the Constitution, when it says that 
“Congress shall have power to define and pun- 
ish piracies and felonies committed on the high 
seas and offenses against the laws of nations.” 
To define is to give the limits or precise meaning 
of a word or thing in being; to make, is to call 
into being. Congress has power to define, not 
to make, the laws of nations; but Congress hag 
the power to make rules for the government of 
the army and navy. From the very face of the 
Constitution, then, it is evident that the laws 
of nations do constitute a part of the laws of 
the land. But very soon after the organization 
of the Federal Government, Mr. Randolph, then 
Attorney General, said: “The law of nations, 
although not specifically adopted by the Con- 
stitution, is essentially a part of the law of the 
land. Its obligation commences and runs with 
Attorney General’s Office, 
Washington, July —, 1865. 
Sir: You ask me whether the persons charged 
with the offense of having assassinated the 
President can he tried before a military tribu- 
nal, or must they be tried before a civil court. 
The President was assassinated at a theater 
in the city of Washington. At the time of the 
assassination a civil war was flagrant, the city 
of Washington was defended by fortifications 
regularly and constantly manned, the principal 
police of the city was by Federal soldiers, the 
public offices and property in the city were all 
guarded by soldiers, and the President’s House 
and person were, or should have been, under the 
guard of soldiers. Martial law had been de- 
clared in the District of Columbia, but the civil 
courts were open and held their regular sess- 
ions, and transacted business as in times of 
peace. 
Such being the facts, the question is one of 
great importance—important, because it in- 
volves the constitutional guarantees thrown 
about the rights of the citizen, and because the 
security of the army and the government in 
time of war is involved; important, as it in- 
volves a seeming conflict between the laws of 
peace and of war. 
Having given the question propounded the 
patierft and earnest consideration its magni- 
tude and importance require, I will proceed to 
give the reasons why I am of the opinion that 
the conspirators not only may but ought to be 
tried by a military tribunal. 
A civil court of the United States is created 
by a law of congress, under and according to 
the Constitution. To the Constitution and the 
law we must look to ascertain how the court is 
constituted, the limits of its jurisdiction, and 
what, its mode of procedure. 
A military tribunal exists under and accord- 
ing to the Constitution in time of war. Con- 
gress may prescribe how all such tribunals are 
to be constituted, what shall be their jurisdic- 
tion and mode of procedure. Should Congress 
fail to create such tribunals, then, under the 
403 404 
APPENDIX, 
the existence of a nation, subject to modification 
on some points of indifference.” (See opinion 
Attorney General, vol. 1, page 27.) The framers 
of the Constitution knew that a nation could 
not maintain an honorable place among the 
pations of thq world that does not regard the 
great and essential principles of the law of na- 
tions as a part of the law of the land. Hence 
Congress may define those laws, but can not 
abrogate them, or as Mr. Randolph says, may 
“ modify on some points of indifference.” 
That the laws of nations constitute a part of 
the laws of the land is established from the face 
of the Constitution, upon principle and by au- 
thority. 
But the laws of war constitute much the 
greater part of the law of nations. Like the other 
laws of nations, they exist and are of binding 
force upon the departments and citizens of the 
Government, though not defined by any law of 
Congress. No one that has ever glanced at the 
many treatises that have been published in dif- 
ferent ages of the world by great, good and 
learned men, can fail to know that the laws of 
war constitute a part of the law of nations, 
and that those laws have been prescribed with 
tolerable accuracy. 
Congress can declare war. When war is de- 
clared, it must be, under the Constitution, car- 
ried on according to the known laws and usages 
of war among civilized nations. Under the 
power to define those laws, Congress can not 
abrogate them or authorize their infraction. 
The Constitution does not permit this Govern- 
ment to prosecute a war as an uncivilized and 
barbarous people. 
As war is required by the frame-work of our 
Government to be prosecuted according to the 
known usages of war among the civilized na- 
tions of the earth, it is important to understand 
what are the obligations, duties and responsi- 
bilities imposed by war upon the military. Con- 
gress, not having defined, as under the Consti- 
tution it might have done, the laws of war, we 
must look to the usage of nations to ascertain 
the powers conferred in war, on whom the ex- 
ercise of such powers devolve, over whom, and 
to what extent do those powers reach, and in 
how far the citizen and the soldier are bound 
by the legitimate use thereof. 
nary process of law, the military should not be 
called out. A defensive foreign war is declared 
and carried on because the civil police is inade- 
quate to repel it; a civil war is waged because 
the laws can not be peacefully enforced by the 
ordinary tribunals of the country through civil 
process and by civil officers. Because of the 
utter inability to keep the peace and maintain 
order by the customary officers and agencies in 
time of peace, armies are organized and put into 
the field. They are called out and invested with 
the powers of war to prevent total anarchy and 
to preserve the Government. Peace is the nor- 
mal condition of a country, and war abnormal, 
neither being without law, but each having laws 
appropriate to the condition of society. The 
maxim enter arma silent leges is never wholly true. 
The object of war is to bring society out of its 
abnormal condition ; and the laws of war aim 
to have that done with the least possible injury 
to persons or property. 
Anciently, when two nations were at war, the 
conqueror had, or asserted, the right to take 
from his enemy his life, liberty and property : 
if either was spared, it was as a favor or act of 
mercy. By the laws of nations, and of war as 
a part thereof, the conqueror was deprived of 
this right. 
When two governments, foreign to each other, 
are at war, or when a civil war becomes terri- 
torial, all of the people of the respective bel- 
ligerents become by the law of nations the ene- 
mies of each other. As enemies they can not 
hold intercourse, but neither can kill or injure 
the other except under a commission from their 
respective governments. So humanizing have 
been, and are the laws of war, that it is a high 
offense against them to kill an enemy without 
such commission. The laws of war demand 
that a man shall not take human life except 
under a license from his government; and under 
the Constitution of the United States no license 
can be given by any department of the Govern- 
ment to take human life in war, except accord- 
ing to the law and usages of war. Soldiers 
regularly in the service have the license of the 
government to deprive men, the active enemies 
of their government, of their liberty and lives! 
their commission so to act is as perfect and 
legal as that of a judge to adjudicate, but the 
soldier must act in obedience to the laws of war, 
as the judge must in obedience to the civil 
A civil judge must try criminals in the mode 
prescribed in the Constitution and the Ihw; s°i- 
soldiers must kill or capture according to the 
laws of war. Non-combatants are not to be dis- 
turbed or interfered with by the armies of either 
party except in extreme cases. Armies are 
called out and organized to meet and overcome 
the active, acting public enemies. , 
But enemies with which an army has to dea 
are of two classes: 
1. Open, active participants in hostilities, a 
soldiers who wear the uniform, move under t 
flag, and hold the appropriate commission fro. 
their government. Openly assuming to cUS 
charge the duties and meet the responsibility 
and dangers of soldiers, they are entitled to a 
belligerent rights, and should receive all 
courtesies due to soldiers. The true soldier 
The power conferred by war is, of course, 
adequate to the end to be accomplished, and not 
greater than what is necessary to be accom- 
plished. The law of war, like every other code 
of laws, declares what shall not be done, and 
does not say what may be done. The legitimate 
use of the great power of war, or rather the' pro- 
hibitions upon the use of that power, increase 
or diminish as the necessity of the case demands. 
When a city is besieged and hard pressed, the 
commander may exert an authority over the 
non-combatants which he may not when no 
enemy is near. 
All wars against a domestic enemy or to re- 
pel invasions, are prosecuted to preserve the 
Government. If the invading force can be over- 
come by the ordinary civil police of a country, it 
should be done without bringing upon the coun- 
try the terrible scourge of war; if a commotion 
or insurrection can be put down by the ordi- appendix 
405 
proud to acknowledge and respect those rights, 
and ever cheerfully extends those courtesies. 
2. Secret, but active participants, as spies, 
brigands, bushwhackers, jay hawkers, war rebels 
and assassins. In all wars, and especially in 
civil wars, such secret, active enemies rise up 
to annoy and attack an army, and must be met 
and put down by the army. When lawless 
wretches become so impudent and powerful as 
not to be con trolled and governed by the ordinary 
tribunals of a country, armies are called out, and 
the laws of war invoked. Wars never have been 
and never can be conducted upon the principle 
that an army is but a posse comitatus of a civil 
magistrate. 
An army, like all other organized bodies, has 
a right, arid it is its first duty, to protect its own 
existence and the existence of all its parts, by 
the means and in the mode usual among civil- 
ized nations when at war. Then the question 
arises, do the laws of war authorize a different 
mode of proceeding, and the use of different 
means against secret active enemies from those 
used against open active enemies ? 
As has been said, the open enemy or soldier in 
time of war may be met in battle and killed, 
wounded or taken prisoner, or so placed by the 
lawful strategy of war as that he is powerless. 
Unless the law of self-preservation absolutely de- 
mands it, the life of a wounded enemy or a pris- 
oner must be spared. Unless pressed thereto by 
the extremest necessity,the laws of war condemn 
and punish with great severity harsh or cruel 
treatment to a wounded enemy or a prisoner. 
Certain stipulations and agreements, tacit or 
express, betwixt the open belligerent parties, 
are permitted by the laws of war, and are held 
to be of very high and sacred character. Such 
is the tacit understanding, or it may be usage, 
of war, in regard to flags of truce. Flags of 
truce are resorted to as a means of saving hu- 
man life, or alleviating human suffering. When 
not used with perfidy, the laws of war require 
that they should be respected. The Romans 
regarded ambassadors betwixt belligerents as 
persons to be treated with consideration and 
respect. Plutarch, in his Life of Ccesar, tells us 
that the barbarians in Gaul having sent some 
ambassadors to Caesar, he detained them, charg- 
ing fraudulent practices, and led his army to 
battle, obtaining a great victory. 
When the Senate decreed festivals and sacri- 
fices for the victory, Cato declared it to be his 
opinion that Caesar ought to be given into the 
hands of the barbarians, that so the guilt which 
this breach of faith might otherwise bring upon 
the State might be expiated by transferring the 
curse on him who was the occasion of it. 
Under the Constitution and laws of the Unit ed 
States, should a commander be guilty of such a 
flagrant breach of law as Cato charged upon 
Cmsar, he would not be delivered to the enemy, 
but would- be punished after a military trial. 
The many honorable gentlemen who hold com- 
missions in the army of the United States, and 
have been deputed to conduct war according to 
the laws of war, would keenly feel it as an in- 
sult to their profession of arms for any one to 
say that they could not or would not punish a 
fcilow-soldier who was guilty of wanton cruelty 
to a prisoner, or perfidy toward the bearers of a 
flag of truce. 
The laws of war permit capitulations of sur- 
render and paroles. They are agreements be- 
twixt belligerents, and should be scrupulously 
observed and performed. They are contracts 
wholly unknown to civil tribunals. Parties 
to such contracts must answer any breaches 
thereof to the customary military tribu- 
nals in time of war. If an officer of rank, 
possessing the pride that becomes a soldier and 
a gentleman, who should capitulate to surren- 
der the forces and property under his command 
and control, be charged with a fraudulent 
breach of the terms of surrender, the laws of 
war do not permit that he should be punished 
without a trial, or, if innocent, that he shall 
have no means of wiping out the foul imputa- 
tion. If a paroled prisoner is charged with a 
breach of his parole, he may be punished if 
guilty, but not without a trial. He should be 
tried by a military tribunal, constituted and 
proceeding as the laws and usages of war pre- 
scribe. 
The law and usage of war contemplate that 
soldiers have a high sense of personal honor. 
The true soldier is proud to feel and know that 
his enemy possesses personal honor, and will 
conform and be obedient to the laws of war. 
In a spirit of justice, and with a wise appreci- 
ation of such feelings, the laws of war protect 
the character and honor of an open enemy. 
When by the fortunes of war one open enemy 
is thrown into the hands and power of another, 
and is charged with dishonorable conduct and a 
breach of the laws of war, he must be tried ac- 
cording to the usages of war. Justice and 
fairness say that an open enemy to whom dis- 
honorable conduct is imputed, has a right to 
demand a trial. If such a demand can be right- 
fully made, surely it can not be rightfully re- 
fused. It is to be hoped that the military au- 
thorities of this country will never refuse such 
a demand, because there is no act of Congress 
that authorizes it. In time of war the law and 
usage of war authorize it, and they are a part 
of the law of the land. 
One belligerent may request the other to pun- 
ish for breaches of the laws of war, and, regu- 
larly, such a request should be made before 
retaliatory measures are taken. Whether the 
laws of war have been infringed or not, is of 
necessity a question to be decided by the laws 
and usages of war, and is cognizable before a 
military tribunal. When prisoners of war con- 
spire to escape, or are guilty of a breach of 
appropriate and necessary rules of prison dis- 
cipline, they may be punished, but not without 
trial. The commander who should order every 
prisoner charged with improper conduct to be 
shot or hung, would be guilty of a higli offense 
against the laws of war, and should be punished 
therefor, after a regular military trial. If the 
culprit should be condemned and executed, the 
commander would be as free from guilt as if the 
man had been killed in battle. 
It is manifest, from what has been said, that 
military tribunals exist under and according to 
the laws and usages of war, in the interest of jus- 
tice and mercy. They are established to save hu- 406 
APPENDIX, 
man life, and to prevent cruelty as far as possible. 
The commander of an army in time of war has 
the same power to organize military tribunals 
and execute their judgments that he has to set 
his squadrons in the field and fight battles. 
His authority in each case is from the law and 
fisage of war. 
Having seen that there must be military tri- 
bunals to decide questions arising in time of 
war betwixt belligerents who are open and 
active enemies, let us next see whether the laws 
of war do not authorize such tribunals to deter- 
mine the fate of those who are active, but secret, 
participants in the hostilities. 
In Mr. Wheaton’s Elements of International 
Lazo, he says; “The effect of a state of war, law- 
fully declared to exist, is to place all the sub- 
jects of each belligerent power in a state of mu- 
tual hostility. The usage of nations has modified 
this maxim by legalizing such acts of hostility 
only as are committed by those who are author- 
ized by the express or implied command of the 
State; such are the regularly commissioned 
naval and military forces of the nation and all 
others called out in its defense, or spontane- 
ously defending themselves, in case of necessity, 
without any express authority for that purpose. 
Cicero tells us in his offices, that by the Roman 
feudal law no person could lawfully engage in 
battle with the public enemy without being 
regularly enrolled, and taking the military oath. 
This wTas a regulation sanctioned both by policy 
and religion. The horrors of war would indeed 
be greatly aggravated, if every individual of 
the belligerent States were allowed to plunder 
and slay indiscriminately the enemy’s subjects, 
without being in any manner accountable for 
his conduct. Hence it is that, in land wars, ir- 
regular bands of marauders are liable to be treated 
as lawless banditti, not entitled to the protection of 
the mitigated usages of war as practiced by civilized 
nations'’ ( Wheaton’s Elements of International 
Law, page 406, 3d edition.) 
In speaking upon the subject of banditti, 
Patrick Henry said, in the Virginia Convention, 
“ The honorable gentleman has given you an 
elaborate account of what he judges tyrannical 
legislation, and an ex post facto law (in the case 
of Josiah Phillips); he has misrepresented the 
facts. That man was not executed by a tyran- 
nical stroke of power; nor was he a Socrates; 
he was a fugitive murderer and an outlaw; a 
man who commanded an infamous banditti, and 
at a time when the war was at the most perilous stage 
he committed the most cruel and shocking bar- 
barities ; he was an enemy to the human name. 
Those who declare war against the human race 
may be struck out of existence as soon as ap- 
prehended. He was not executed according to 
those beautiful legal ceremonies which are 
pointed out by the laws in criminal cases. The 
enormity of his crime did not entitle him to it. 
I am truly a friend to legal forms and methods, 
but, sir, the occasion warranted the measure. 
A pirate, an outlaw, or a common enemy to all 
mankind, may be put to death at any time.' It 
is justified by the law of nature and nations." (3d 
volume Elliott’s Debates on Federal Constitution, 
page 140.) 
No reader, not to say student, of the law of 
nations, can doubt but that Mr.Wheaton and Mr. 
Henry have fairly stated the laws of war. Let 
it be constantly borne in mind that they are 
talking of the law in a state of war. These ban- 
ditti that spring up in time of war are respect- 
ers of no law, human or divine, of peace or of 
war, are hostes humani generis, and may be hunted 
down like wolves. Thoroughly desperate and 
perfectly lawless, no man can be required to 
peril his life in venturing to take them prison- 
ers—as prisoners, no trust can be reposed in 
them. But they are occasionally made prison- 
ers. Being prisoners, what is to be done with 
them? If they are public enemies, assuming 
and exercising the right to kill, and are not 
regularly authorized to do so, they must be ap- 
prehended and dealt with by the military. No 
man can doubt the right and duty of the mili- 
tary to make prisoners of them, and being 
public enemies, it is the duty of the military to 
punish them for any infraction of the laws of 
war. But the military can not ascertain 
whether they are guilty or not without the aid 
of a military tribunal. 
In all wars, and especially in civil wars, 
secret but active enemies are almost as numer- 
ous as open ones. That fact has contributed to 
make civil wars such scourges to the countries 
in which they rage. In nearly all foreign wars 
the contending parties speak different languages 
and have different habits and manners; but in 
most civil wars that is not the case; hence 
there is a security in participating secretly in 
hostilities that induces many to thus engage. 
War prosecuted according to the most civilized 
usage is horrible, but its horrors are greatly 
aggravated by the immemorial habits of plun- 
der, rape and murder practiced by secret, but 
active participants. Certain laws and usages 
have been adopted by the civilized world in wars 
between nations that are not of kin to one an- 
other, for the purpose and to the effect of arrest- 
ing or softening many of the necessary cruel 
consequences of war. How strongly bound are 
we, then, in the midst of a great war, where 
brother and personal friend are fighting against 
brother and friend, to adopt and be governed by 
those laws and usages. 
A public enemy must or should be dealt with 
in all wars by the same laws. The fact that 
they are public enemies, being the same, they 
should deal with each other according to those 
laws of war that are contemplated by the Con- 
stitution. Whatever rules have been adopted 
and practiced by the civilized nations of the 
world in war, to soften its harshness and 
severity, should be adopted and practiced by us 
in this war. That the laws of war authorized 
commanders to create and establish military 
commissions, courts or tribunals, for the trial 
of offenders against the laws of war, whether 
they be active or secret participants in 
the hostilities, can not be denied. That the 
judgments of such tribunals may have beep 
some times harsh, and sometimes even tyranni- 
cal, does not prove that they ought not to exist, 
nor does it prove that they are not constituted 
in the interest of justice and mercy. Consider- 
ing the power that the laws of war give over 
secret participants in hostilities, such as ban- APPENDIX 
407 
ditti, guerrillas, spies, etc., the position of a 
commander would be miserable indeed if he 
could not call to his aid the judgments of such 
tribunals ; he would become a mere butcher of 
men, without the power to ascertain justice, and 
there can be no mercy where there is no justice. 
War in its mildest form is horrible; but take 
away from the contending armies the ability 
and right to organize what is now known as a 
Bureau of Military Justice, they would soon 
become monster savages, unrestrained by any 
and all ideas of law and justice. Surely no 
lover of mankind, no one that respects law and 
order, no one that has the instinct of justice, or 
that can be softened by mercy, would, in time 
of war, take away from the commanders the 
right to organize military tribunals of justice, 
and especially such tribunals for the protection 
of persons charged or suspected with being 
secret foes and participants in the hostilities. 
It would be a miracle if the records and history 
of this war do not show occasional cases in 
which those tribunals have erred; but they will 
show many, very many cases in which human 
life would have been taken but for the interpo- 
sition and judgments of those tribunals. Every 
student of the laws of war must acknowledge 
that such tribunals exert a kindly and benign 
influence in time of war. Impartial history 
will record the fact that the Bureau of Military 
Justice, regularly organized during this war, has 
saved human life and prevented human suffer- 
ing. The greatest suffering, patiently endured 
by soldiers, and the hardest battles gallantly 
fought during this protracted struggle, are not 
more Creditable to the American character than 
the establishment of this bureau. This people 
have such an educated and profound respect for 
law and justice—such a love of mercy-—that 
they have, in the this greatest of civil 
wars, systematized and brought into regular 
order, tribunals that before this war existed 
under the law of war, but without general rule. 
To condemn the tribunals that have been estab- 
lished under this bureau, is to condemn and 
denounce the war itself, or justifying the war, 
to insist that it shall be prosecuted according to 
the harshest rules, and without the aid of the 
laws, usages and customary agencies for miti- 
gating those rules. If such tribunals had not 
existed before, under the laws and usages of 
war, the American citizen might as proudly 
point to their establishment as to our inimitable 
and inestimable constitutions. It must be con- 
stantly borne in mind that such tribunals and 
such a bureau can not exist except in time of 
war, and can not then take cognizance of offen- 
ders or offenses where the civil courts are open, 
except offenders and offenses against the laws 
of war. 
But it is insisted by some, and doubtless with 
honesty, and with a zeal commensurate with 
their honesty, that such military tribunals can 
have no constitutional existence. The argu- 
ment against their constitutionality may be 
shortly, and I think fairly, stated thus; 
Congress alone can establish military or civil 
judicial tribunals. As Congress has not estab- 
lished military tribunals, except such as have 
been created under the articles of war, and 
which articles are made in pursuance of that 
clause in the Constitution which gives to Con- 
gress the power to make rules for the govern- 
ment of the army and navy, any other tribunal 
is and must be plainly unconstitutional, and all 
its acts void. 
This objection thus stated, or stated in any 
other way, begs the question. It assumes that 
Congress alone can establish military judicial 
tribunals. Is that assumption true ? 
We have seen that when war comesvthe laws 
and usages of war come also, and that during 
the war they are a part of the laws of the land. 
Under the Constitution, Congress may define 
and punish offenses against those laws, but in 
default of Congress defining those laws and pre- 
scribing a punishment for their infraction, and 
the mode of proceeding to ascertain whether an 
offense has been committed, and what punish- 
ment is to be inflicted, the army must be gov- 
erned by the laws and usages of war as under- 
derstood and practiced by the civilized nations 
of the world. It has been abundantly shown 
that these tribunals are constituted by the army 
in the interest of justice and mercy, and for the 
purpose and to the effect of mitigating the hor- 
rors of war. 
But it may be insisted that though the laws 
of war, being a part of the law of nations, con- 
stitute a part of the laws of the land, that those 
laws must be regarded as modified so far, and 
whenever they come in direct conflict with plain 
constitutional provisions. The following clauses 
of the Constitution are principally relied upon 
to show the conflict betwixt the laws of war and 
the Constitution : 
“The trial of all crimes, except in oases of 
impeachment, shall be by the jury; and such 
trial shall be held in the State where the said 
crime shall have been committed; but when not 
committed within any State, the trial shall be 
at such place or places as the Congress may by 
law have directed.” [Art. 11l of the original 
Constitution, sec. 2.) 
“No person shall be held to answer for a 
capital or otherwise infamous crime unless on 
a presentment or indictment of a grand jury, 
except in cases arising in the land or naval 
forces, or in the militia when in actual service 
in time of war or public danger; nor shall any 
person be subject for the same offense to be twice 
put in jeopardy of life or limb, nor shall be com- 
pelled, in any criminal case, to be witness 
against himself, nor be deprived of life, liberty 
or property, without due process of law; nor 
shall private property be taken for public use 
without just compensation.” [Amendments to 
the Constitution, Art. V.) 
“In all criminal prosecutions, the accused 
shall enjoy the right of a speedy and public 
trial by an impartial jury of the State and dis- 
trict wherein the crime shall have been com- 
mitted, which district shall have been previously 
ascertained by law, and be informed of the na- 
ture and cause of the accusation; to be con- 
fronted with the witnesses against him, to have 
compulsory process for obtaining witnesses in 
his favor; and to have the assistance of counsel 
for his defense.” [Art. VI of the amendments to 
the Constitution.) 408 
APPENDIX 
These provisions of the Constitution are in- 
tended to fling around the life, liberty and prop- 
erty of a citizen all the guarantees of a jury 
trial. These constitutional guarantees can not 
be estimated too highly, or protected too sacredly. 
The reader of history knows that for many 
weary ages the people suffered for the want of 
them; it would not only be stupidity, but mad- 
ness in us not to preserve them. No man has 
a deeper conviction of their value, or a more 
sincere desire to preserve and perpetuate them 
than I have. 
against the laws of war must be dealt with and 
punished under the Constitution, as the laws of 
war, they being part of the law of nations di- 
rect; crimes must be dealt with and punished as 
the Constitution, and laws made in pursuance 
thereof, may direct. 
Congress has not undertaken to define the 
code of war nor to punish oft'enses against it. 
In the case of a spy, Congress has undertaken 
to say who shall be deemed a spy, and how he 
shall be punished. But every lawyer knows 
that a spy was a well-known offender under the 
laws of war, and that under and according to 
those laws he could have been tried and pun- 
ished without an act of Congress. This is ad- 
mitted by the act of Congress, when it says that 
he shall suffer death “according to the law and 
usages of war.” The act is simply declaratory 
of the law. 
Nevertheless, these exalted and sacred pro- 
visions of the Constitution must not be read 
alone and by themselves, but must be read and 
taken in connexion with other provisions. The 
Constitution was framed by great men—men of 
learning and large experience, and it is a won- 
derful monument of their wisdom. Well versed 
in the history of the world, they knew that the 
nation for which they were forming a govern- 
ment would, unless all history was false, have 
wars, foreign and domestic. Hence the govern- 
ment framed by them is clothed with the power 
to make and carry on war. As has been shown, 
when war comes, the laws of war come with it. 
Infractions of the laws of nations are not de- 
nominated crimes, but offenses. Hence the ex- 
pression in the Constitution that “ Congress 
shall have power to define and punish * * 
offenses against the law of nations.” Many of 
the offenses against the law of nations for which 
a man may, by the laws of war, lose his life, his 
liberty or his property, are not crimes. It is an 
offense against the law of nations to break a 
lawful blockade, and for which a forfeiture of 
the property is the penalty, and yet the running 
a blockade has never been regarded a crime; 
to hold communication or intercourse with the 
enemy is a high offense against the laws of war, 
and for which those laws prescribe punishment, 
and yet it is not a crime; to act as a spy is an 
offense against the laws of war, and the punish- 
ment for which in all ages has been death, and 
yet it is not a crime; to violate a flag of truce 
is an offense against the laws of war, and yet 
not a crime of which a civil court can take cog- 
nizance; to unite with banditti, jayhawkers, 
guerrillas or any other unauthorized marauders 
is a high offense against the laws of war; the 
offense is complete when the band is organized 
or joined. The atrocities committed by such a 
band do not constitute the offense, but make the 
reasons, and sufficient reasons they are, why 
such banditti are denounced by the laws of war. 
Some of the offenses against the laws of war are 
crimes, and some not. Because they are crimes 
they do not cease to be offenses against those 
laws; nor because they are not crimes or mis- 
demeanors do they fail to be offenses against 
the laws of war. Murder is a crime, and the 
murderer, as such, must be proceeded against in 
the form and manner prescribed in the Consti- 
tution; in committing the murder an offense 
may also have been committed against the laws 
of war; for that offense he must answer to the 
laws of war, and the tribunals legalized by that 
law. 
That portion of the Constitution which de- 
clares that “no person shall be deprived of his 
life, liberty or property without due process of 
law,” has such direct reference to, and connec- 
tion with, trials for crime or criminal prosecu- 
tions, that comment upon it would seem to be 
unnecessary. Trials for offenses against the 
laws of war are not embraced or intended to be 
embraced in those provisions. If this is not so, 
then every man that kills another in battle is a 
murderer, for he deprived a “person of life 
without that duo process of law” contemplated 
by this provision; every man that holds an- 
other as a prisoner of war is liable for false 
imprisonment, as he does so without that 
due process of law contemplated by this pro- 
vision ; every soldier that marches across 
a field in battle array is liable to an action 
of trespass, because he does it without that 
same due process. The argument that flings 
around offenders against the laws of war these 
guarantees of the Constitution would convict all 
the soldiers of our army of murder; no prison- 
ers could be taken and held ; the army could 
not move. The absurd consequences that would 
of necessity flow from such an argument show 
that it can not be the true construction—it can 
not be what was intended by the framers of the 
instrument. One of the prime motives for the 
Union and a Federal Government was to confer 
the powers of war. If any provisions of the 
Constitution are so in conflict with the power to 
carry on war as to destroy and make it value- 
less, then the instrument, instead of being a 
great and wise one, is a miserable failure, a 
felo de se. 
If a man should sue out his writ of habeas 
corpus, and the return shows that he belonged to 
the army or navy, and was held to be tried for 
some offense against the rules and articles of 
war, the writ should be dismissed, and the party 
remanded to answer to the charges. So, in 
time of war, if a man should sue out a writ of 
habeas corpus, and it is made appear that he is 
in the hands of the military as a prisoner of 
war, the writ should be dismissed and the pris- 
oner remanded to be disposed of as the laws and 
usages of war require. If the prisoner be a 
regular unoffending soldier of the opposing 
party to the war, he should be treated with all 
the courtesy and kindness consistent with his 
There is, then, an apparent but no real con- 
flict in the constitutional provisions. Offenses APPENDIX 
409 
safe custody; if lie has offended against the 
laws of war, he should have such trial and he 
punished as the laws of war require. A spy, 
though a prisoner of war, may be tried, con- 
demned and executed by a military tribunal 
without a breach of the Constitution. A bush- 
whacker, a jayhawker, a bandit, a war rebel, 
an assassin, being public enemies, may be tried, 
condemned and executed as offenders against 
the laws of war. The soldier that would fail to 
try a spy or bandit after his capture, would be 
as derelict in duty as if he were to fail to cap- 
ture ; he is as much bound to try and to execute, 
if guilty, as he is to arrest; the same law that 
makes it his duty to pursue and kill or capture, 
makes it his duty to try according to the usages 
of war. The judge of a civil court is not more 
strongly bound under the Constitution and the 
law to try a criminal than is the military to try 
an offender against the laws of war. 
The fact that the civil courts are open does not 
affect the right of the military tribunal to hold 
as a prisoner and to try. The civil courts have no 
more right to prevent the military, in time of 
war, from trying an offender against the laws 
of war than they have a right to interfere with 
and prevent a battle. A battle may be lawfully 
fought in the very view and presence of a court; 
so a spy, a bandit or other offender against the 
law of war, may be tried, and tried lawfully, 
when and where the civil courts are open and 
transacting the usual business. 
The laws of war authorize human life to be 
taken without legal process, or that legal pro- 
cess contemplated by those provisions in the 
Constitution that are relied upon to show that 
military judicial tribunals are unconstitutional. 
Wars should be prosecuted justly as well as 
bravely. One enemy in the power of another, 
whether he be an open or a secret one, should 
not be punished or executed without trial. If 
the question be one concerning the laws of war, 
he should be tried by those engaged in the war; 
they and they only are his peers. The military 
must decide whether he is or not an active 
participant in the hostilities. If he is an active 
participant in the hostilities, it is the duty of 
the military to takehim a prisoner without war- 
ranter other judicial process, and dispose of 
him as the laws of war direct. 
It is curious to see one and the same mind 
justify the killing of thousands in battle be- 
cause it is done according to the laws of war, 
and yet condemning that same law when, out of 
regard for justice and with the hope of saving 
life, it orders a military trial belore the enemy 
are killed. The love of law, ot justice and the 
wish to save life and suffering, should impel all 
good men in time of war to uphold and sustain 
the existence and action of such tribunals. The 
object of such tribunals is obviously intended 
to save life, and when their jurisdiction is con- 
fined to offenses against the laws of war, that is 
their effect. They prevent indiscriminate 
slaughter ; they prevent men from being pun- 
ished or killed upon mere suspicion. 
The law of nations, which is the result of the 
experience and wisdom of ages, has decided that 
jayhawkers, banditti, etc., are offenders against 
the laws of nature and of war, and as such 
amenable to the military. Our Constitution has 
Made those laws a part of the law of the land. 
Obedience to the Constitution and the law, 
then, requires that the military should do their 
whole duty; they must not only meet and fight 
the enemies of the country in open battle, but 
they must kill or take the secret enemies of the 
country, and try and execute them according 
to the laws of war. The civil tribunals of the 
country can not rightfully interfere with the 
military in the performance of their high, ardu- 
ous and perilous, but lawful duties. That Booth 
and his associates were secret active public ene- 
mies, no mind that contemplates the facts can 
doubt. The exclamation used by him when he 
escaped from the box on to the stage, after he had 
fired the fatal shot, sic semper tyrannis, and his 
dying message, “ Say to my mother that I died 
for my country,” show that he was not an as- 
sassin from private malice, but that he acted as 
a public foe. Such a deed is expressly laid 
down by Vattel, in his work on the law of na- 
tions, as an offense against the laws of war, 
and a great crime. “I give, then, the name of 
assassination to a treacherous murder, whether 
the perpetrators of the deed be the subjects of 
the party whom we cause to be assassinated or 
of our own sovereign, or that it be executed by 
any other emissary introducing himself as a 
suppliant, a refugee or a deserter, or, in fine, as 
a stranger.” ( Vattel, 389.) 
Neither the civil nor the military department 
of the Government should regard itself as wiser 
and better than th» Constitution and the laws 
that exist under or are made in pursuance thereof. 
Each department should, in peace and in war, 
confining itself to its own proper sphere of ac- 
tion, diligently and fearlessly perform its legiti- 
mate functions, and in the mode prescribed by 
the Constitution and the law. Such obedience 
to and observance of law will maintain peace 
when it exists, and will soonest relieve the 
country from the abnormal state of war. 
My conclusion, therefore, is, that if the per- 
sons who are charged with the assassination of 
the President committed the deed as public ene- 
mies, as I believe they did, and whether they did 
or not is a question to be decided by the tribu- 
nal before which they are tried, they not only 
can, but ought, to be tried before a military tri- 
bunal. If the persons charged have offended 
against the laws of war, it would be as palpa- 
bly wrong for the military to hand them over 
to the civil courts, as it would be wrong in a 
civil court to convict a man of murder who had, 
in time of war, killed another in battle. 
I am, sir, most respectfully, your obedient 
servant, 
JAMES SPEED, 
Attorney General. 
To the President. INSTRUCTIONS 
GOVERNMENT OF ARMIES OF THE UNITED STATES 
FOR THE 
IN THE FIELD. 
GENERAL ORDERS, NO. 100. 
4. Martial law is simply military authority 
exercised in accordance with the laws and 
usages of war. Military oppression is not mar- 
tial law; it is the abuse of the power which that 
law confers. As martial law is executed by 
military force, it is incumbent upon those 
who administer it to be strictly guided by the 
principles of justice, honor and humanity—vir- 
tues adorning a soldier even more than other 
men, for the very reason that he possesses the 
power of his arms against the unarmed. 
5. Martial law should be less stringent in 
places and countries fully occupied and fairly 
conquered. Much greater severity may be ex- 
ercised in places or regions where actual hos- 
tilities exist, or are expected and must be pre- 
pared for. Its most complete sway is allowed— 
even in the commander’s own country—when 
face to face with the enemy, because of the ab- 
solute necessities of the case, and of the para- 
mount duty to defend the country against in- 
vasion. 
To save the country is paramount to all other 
considerations. 
6. All civil and penal law shall continue to 
take its usual course in the enemy’s places and 
territories under martial law, unless interrupted 
or stopped by order of the occupying military 
power ; but all the functions of the hostile gov- 
ernment—legislative, executive or administra- 
tive—whether of a general, provincial or local 
character, cease under martial law, or continue 
only with the sanction, or if deemed necessary, 
the participation of the occupier or invader. 
7. Martial law extends to property, and to 
persons, whether they are subjects of the enemy 
or aliens to that government. 
8. Consuls, among American and European 
nations, are not diplomatic agents. Neverthe- 
less, their offices and persons will be subjected 
to martial law in cases of urgent necessity only: 
their property and business are not exempted. 
Any delinquency they commit against the es- 
tablished military rule may be punished as in the 
case of any other inhabitant, and such punish- 
ment furnishes no reasonable ground for inter- 
national complaint. 
9. The functions of Ambassadors, Ministers 
or other diplomatic agents, accredited by neu- 
tral powers to the hostile government, cease, so 
far as regards the displaced government; but 
the conquering or occupying power usually 
recognizes them as temporarily accredited to 
itself. 
War Department, 1 
Adjutant General’s Office, I 
Washington, April 24, 1863. J 
The following “Instructions for the Govern- 
ment of Armies of the United States in the 
Field, ’ prepared by Francis Leiber, L. L D., and 
revised by a Board of Officers, of which Major- 
General E. A. Hitchcock is President, having 
been approved by the President of the United 
States, he commands that they be published for 
the information of all concerned. 
Bx Order of the Secretary of War : 
E, D. TOWNSEND, 
Assistant Adjutant General. 
Martial Law—Military Jurisdiction—Military Ne- 
cessity—Retaliation. 
SECTION I. 
1. A place, district or country occupied by 
an enemy, stands, in consequence of the occupa- 
tion, under the martial law of the invading or 
occupying army, whether any proclamation de- 
claring martial law, or any public warning to 
the inhabitants has been issued or not. Martial 
law is the immediate and direct effect and con- 
sequence of occupation or conquest. 
The presence of a hostile army proclaims its 
martial law. 
2. Martial law does not cease during the hos- 
tile occupation, except by special proclamation, 
ordered by the Cornmander-in-Chief, or by 
special mention in the treaty of peace conclud- 
ing the war, when the occupation of a place or 
territory continues beyond the conclusion of 
peace as one of the conditions of the same. 
3. Martial law in a hostile country consists 
in the suspension, by the occupying military 
authority, of the criminal and civil law, and of 
the domestic administration and government in 
the occupied place or territory, and in the sub- 
stitution of military rule and force for the same, 
as well as in the dictation of general laws, as 
far as military necessity requires this suspen- 
sion, substitution or dictation. 
The commander of the forces may proclaim 
that the administration of all civil and penal 
law shall continue, either wholly or in part, as 
in times of peace, unless otherwise ordered by 
the military authority. 
410 APPENDIX, 
411 
10. Martial law affects chiefly the police and 
collection of public revenue and taxes, whether 
imposed by the expelled government or by the 
invader, and refers mainly to the support and 
efficiency of the army, its safety, and the safety 
of its operations. 
11. The law of war does not only disclaim all 
cruelty and bad faith concerning engagements 
concluded with the enemy during the war, but 
also the breaking of stipulations solemnly con- 
tracted by the belligerents in time of peace, and 
avowedly intended to remain in force in case 
of war between the contracting powers. 
It disclaims all extortions and other transac- 
tions for individual gain; all acts of private 
revenge, or connivance at such acts. Offenses 
to the contrary shall be severely punished, 
and especially so if committed by officers. 
12. Whenever feasible, martial lawr is carried 
out in cases of individual offenders by military 
courts ; but sentences of death shall be executed 
only with the approval of the Chief Executive, 
provided the urgency of the case does not re- 
quire a speedier execution, and then only with 
the approval of the chief commander. 
13. Military jurisdiction is of two kinds: 
first, that which is conferred and defined by 
statute; second, that which is derived from the 
common law of war. Military offenses under 
the statute law must be tried in the manner 
therein directed; but military offenses which 
do not come within the statute must be tried 
and punished under the common law of war. 
The character of the courts which exercise these 
jurisdictions depends upon the local laws of 
each particular country. 
In the armies of the United States the first, is 
exercised by courts-martial, while cases which 
do not come within the “Rules and Articles of 
War,” or the jurisdiction conferred by statute 
on courts-martial, are tried by military com- 
missions. 
16. Military necessity does not admit of cru- 
elty, that is, the infliction of suffering for the 
sake of suffering or for revenge, nor of maim- 
ing or wounding except in fight, nor of tortures 
to extort confessions. It does not admit of the 
use of poison in any way, nor of the wanton 
devastation of a district. It admits of decep- 
tion, but disclaims acts of perfidy; and, in gen- 
eral, military necessity does not include any act 
of hostility which makes the return of peace un- 
necessarily difficult. 
17. War is not carried on by arms alone. It 
is lawful to starve the hostile belligerent, armed 
or unarmed, so that it leads to the speedier sub- 
jection of the enemy. 
18. When the commander of a besieged place 
expels the non-combatants, in order to lessen 
the number of those who consume his stock of 
provisions, it is lawful, though an extreme 
measure, to drive them back, so as to hasten on 
the surrender. 
19. Commanders, whenever admissible, inform 
the enemy of their intention to bombard a place, 
so that the non-combatants, and especially the 
women and children, may be removed before 
the bombardment commences. But it is no in- 
fraction of the common law of war to omit thus 
to inform the enemy. Surprise may be a ne- 
cessity. 
20. Public war is a state of armed hostility 
between sovereign nations or governments. Itis 
a law and requisite of civilized exist ence that men 
live in political, continuous societies, forming 
organized units, called states or nations, whose 
constituents bear, enjoy and suffer, advance 
and retrograde together, in peace and in war. 
21. The citizen or native of a hostile country 
is thus an enemy, as one of the constituents of 
the hostile state or nation, and as such is sub- 
jected to the hardships of the war. 
22. Nevertheless, as civilization has advanced 
during the last centuries, so has likewise steadily 
advanced, especially in war on land, the dis- 
tinction between the private individual belong- 
ing to a hostile country and the hostile country 
itself, with its men in arms. The principle has 
been more and more acknowledged that the un- 
armed citizen is to be spared in person, property 
and honor as much as the exigencies of war will 
admit. 
14. Military necessity, as understood by 
modern civilized nations, consists in the neces- 
sity of those measures which are indispensable 
for securing the ends of the war, and which are 
lawful according to the modern law and usages 
of war. 
15. Military necessity admits of all direct 
destruction of life or limb of armed enemies, and 
of other persons whose destruction is incident- 
ally unavoidable in the armed contests ot the 
war; it allows of the capturing of every armed 
enemy, and every enemy of importance to the 
hostile government, or of peculiar danger to 
the captor; it allows of all destruction ot prop- 
erty, and obstruction of the ways and channels 
of traffic, travel or communication, and of all 
withholding of sustenance or means of life from 
the enemy; of the appropriation of whatever an 
enemy’s country affords necessary for the sub- 
sistence and safety of the army, and of such 
deception as does not involve the breaking of 
good faith either positively pledged, regarding 
agreements entered into during the war, or 
supposed by the modern law of war to exist. 
Men who take up arms against one another in 
public war, do not cease, on this account, to be 
moral beings, responsible to one another and to 
God. 
23. Private citizens are no longer murdered, 
enslaved or carried off to distant parts, and the 
inoffensive individual is as little disturbed in 
his private relations as the commander of the 
hostile troops can afford to grant in the overrul- 
ing demands of a vigorous war. 
24. The almost universal rule in remote times 
was, and continues to be with barbarous armies, 
that the private individual of the hostile coun- 
try is destined to suffer every privation of lib- 
erty and protection, and every disruption of 
family ties. Protection was, and still is with 
uncivilized people, the exception. 
25. In modern regular wars of the Europeans, 
and their descendants in other portions of the 
globe, protection of the inoffensive citizen of 
the hostile country is the rule; privation and 
disturbance of private relations are the excep- 
tions. 
26. Commanding generals may cause the 412 
APPENDIX, 
magistrates and civil officers of the hostile coun- 
try to take the oath of temporary allegiance, or 
an oath of fidelity to their own victorious gov- 
ernment or rulers, and they may expel every 
one who declines to do so. But whether they do 
so or not, the people and their civil officers owe 
strict obedience to them as long as they hold 
sway over the district or country, at the peril 
of their lives. 
according to the existing laws of the invaded 
country, from one citizen, subject, or native of 
the same to another. 
The commander of the army must leave it to 
the ultimate treaty of peace to settle the per- 
manency of this change. 
33. It is no longer considered lawful—on the 
contrary, it is held to be a serious breach of the 
law of war—to force the subjects of the enemy 
into the service of the victorious government, 
except the latter should proclaim, after a fair 
and complete conquest of the hostile country or 
district, that it is resolved to keep the country, 
district, or place permanently as its own, and 
make it a portion of its own country. 
34. As a general rule, the property belong- 
ing to churches, to hospitals, or other estab- 
lishments of an exclusively charitable charac- 
ter, to establishments of education, or founda- 
tions for the promotion of knowledge, whether 
public schools, universities, academies of learn- 
ing or observatories, museums of the fine arts, 
or of a scientific character—such property is 
not to be considered public property in the 
sense of paragraph 31; but it may be taxed or 
used when the public service may require it. 
36. Classical works of art, libraries, scien- 
tific collections, or precious instruments, such 
as astronomical telescopes, as well as hospitals, 
must be secured against all avoidable injury, 
even when they are contained in fortified 
places while besieged or bombarded. 
36. If such works of art, libraries, collec- 
tions, or instruments belonging to a hostile na- 
tion or government, can be removed without 
injury, the ruler of the conquering state or na- 
tion may order them to be seized and removed 
for the benefit of the said nation. The ultimate 
ownership is to be settled by the ensuing treaty 
of peace. 
In no case shall they be sold or given away, 
if captured by the armies of the United States, 
nor shall they ever be privately appropriated, 
or wantonly destroyed or injured. 
87. The United States acknowledge and pro- 
tect, in hostile countries occupied by them, re- 
ligion and morality; strictly private property; 
the persons of the inhabitants, especially those 
of women; and the saeredness of domestic re- 
lations. Offenses to the contrary shall be rig- 
orously punished. 
This rule does not interfere with the right of 
the victorious invader to tax the people or 
their property, to levy forced loans, to billet 
soldiers, or to appropriate property, especially 
houses, land, boats or ships, and churches, for 
temporary and military uses. 
38. Private property, unless forfeited by 
crimes or by offenses of the owner, can be seized 
only by way of military necessity, for the sup- 
port or other benefit of the army or of the 
United States. 
27. The law of war can no more wholly dis- 
pense with retaliation than can the law of na- 
tions, of which it is a branch. Yet civilized 
nations acknowledge retaliation as the sternest 
feature of war. A reckless enemy often leaves 
to his opponent no other means of securing him- 
self against the repetition of barbarous outrage. 
28. Retaliation will, therefore, never be re- 
sorted to as a measure of mere revenge, but only 
as a means of protective retribution, and, more- 
over, cautiously and unavoidably; that is to 
say, retaliation shall only be resorted to after 
careful inquiry into the real occurrence, and 
the character of the misdeeds that may demand 
retribution. 
Unjust or inconsiderate retaliation removes 
the belligerents farther and farther from the 
mitigating rules of a regular war, and by rapid 
steps leads them nearer to the internecine wars 
of savages. 
29. Modern times are distinguished from 
earlier ages by the existence, at one and the 
same time, of many nations and great govern- 
ments related to one another inclose intercourse. 
Peace is their normal condition; war is the 
exception. The ultimate object of all modern 
war is a renewed state of peace. 
The more vigorously wars are pursued, the 
better it is for humanity. Sharp wars are brief. 
30. Ever since the formation and co-exist- 
ence of modern nations, and ever since wars 
have become great national wars, war has come 
to be acknowledged not to be its own end, but 
the means to obtain great ends of state, or to 
consist in defense against wrong; and no con- 
ventional restriction of the modes adopted to in- 
jure the enemy is any longer admitted; but the 
law of war imposes many limitations and re- 
strictions on principles of justice, faith and 
honor. 
SECTION 11, 
Public and 'private property of the enemy—Protec- 
tion of persons, and especially women; of religion, 
the arts and sciences—Punishment of crimes 
against the inhabitants of hostile countries. 
31. A victorious army appropriates all public 
money, seizes all public movable property until 
further direction by its government, and seques- 
ters for its own benefit or that of its govern- 
ment all the revenues of real property belong- 
ing to the hostile government or nation. The 
title to such real property remains in the abey- 
ance during military occupation, and until the 
conquest is made complete. 
32. A victorious army, by the martial power 
inherent in the same, may suspend, change, or 
abolish, as far as the martial power extends, 
the relations which arise from the service due, 
If the owner has not fled, the commanding 
officer will cause receipts to be given, which 
may serve the spoliated owner to obtain in- 
demnity. 
89. The salaries of civil officers of the hos- 
tile government who remain in the invaded 
territory, and continue the work of their office, 
and can continue it according to the circum- APPENDIX 
413 
stances arising out of the war—such as judges, 
administrative or police officers, officers of city 
or communal governments—are paid from the 
public revenue of the invaded territory, until 
the military government has reason wholly or 
partially to discontinue it. Salaries or in- 
comes connected with purely honorary titles 
are always stopped. 
40. There exists no law or body of authori- 
tative rules of action between hostile armies, 
except that branch of the law of nature and 
nations which is called the law and usages of 
war on land. 
commercial transactions otherwise legitimate. 
Offenses to the contrary committed by commis- 
sioned officers will be punished with cashier- 
ing, or such other punishment as the nature of 
the offense may require; if by soldiers, they shall 
be punished according to the nature of the offense. 
47. Crimes punishable by all penal codes, 
such as arson, murder, maiming, assaults, 
highway robbery, theft, burglary, fraud, for- 
gery and rape, if committed by an American 
soldier in a hostile country against its inhabit- 
ants, are not only punishable as at home, but 
in all cases in which death is not inflicted, the 
severer punishment shall be preferred. 
41. All municipal law of the ground on which 
the armies stand, or of the countries to which 
they belong, is silent and of no effect between 
armies in the field. 
SECTION 111. 
42. Slavery, complicating and confounding 
the ideas of property (that is of a thing), and 
of personalty (that is of humanity), exists ac- 
cording to municipal or local law only. The 
law of nature and nations has never acknowl- 
edged it. The digest of the Roman law enacts 
the early dictum of the pagan jurist, that “ so 
far as the law of nature is concerned, all men 
are equal.” Fugitives escaping from a country 
in which they were slaves, villains or serfs, 
into another country, have, for centuries past, 
been held free and acknowledged free by judi- 
cial decisions of European countries, even 
though the municipal law of the country in 
which the slave had taken refuge acknowledged 
slavery within its own dominions. 
48. Therefore, in a war between the United 
States and a belligerent which admits of 
slavery, if a person held in bondage by that 
belligerent be captured by, or come as a fugi- 
tive under, the protection of the military forces 
of the United States, such person is immedi- 
ately entitled to the rights and privileges of a 
freeman. To return such person into slavery 
would amount to enslaving a free person, and 
neither the United States nor any officer under 
their authority can enslave any human being. 
Moreover, a person so made free by the law of 
war is under the shield of the law of nations, 
and the former owner or State can have, by the 
law of post-liminy, no belligerent lien or claim 
of service. 
44. All wanton violence committed against 
persons in the invaded country, all destruction 
of property not commanded by the authorized 
officer, all robbery, all pillage or sacking, even 
after taking a place by main force, all rape, all 
wounding, maiming or killing ot such inhab- 
itants, are prohibited under the penalty of 
death, or such other severe punishment as may 
seem adequate for the gravity of the offense. 
A soldier, officer or private, in the act of 
committing -such violence, and disobeying a 
superior ordering him to abstain from it, may 
be lawfully killed on the spot by such superior. 
45. All captures and booty belong, according 
to the modern law of war, primarily, to the gov- 
ernment of the captor. 
Deserters—Prisoners of War—Hostages—Booty 
on the Battle-field. 
48. Deserters from the American army, hav- 
ing entered the service of the enemy, suffer 
death if they fall again into the hands of the 
United States, whether by capture, or being de- 
livered up to the American army; and if a de- 
serter from the enemy, having taken service in 
the army of the United States, is captured by 
the enemy, and punished by them with death or 
otherwise, it is not a breach against the law and 
usages of war, requiring redress or retaliation. 
49. A prisoner of war is a public enemy 
armed or attached to the hostile army for active 
aid, who has fallen into the hands of the cap- 
tor, either fighting or wounded, on the field or 
in the hospital, by individual surrender or by 
capitulation. 
All soldiers, of whatever species of arms; all 
men who belong to the rising en masse of the 
hostile country; all those who are attached to 
the army for its efficiency and promote directly 
the object of the war, except such as are here- 
inafter provided for; all disabled men or offi- 
cers on the field or elsewhere, if captured ; all 
enemies who have thrown away their arms and 
ask for quarter, are prisoners of war, and as 
such exposed to the inconveniences as well as 
entitled to the privileges of a prisoner of war. 
50. Moreover, citizens who accompany an 
army for whatever purpose, such as sutlers, ed- 
itors, or reporters of journals, or contractors, 
if captured, maybe made prisoners of war, and 
be detained as such. 
The monarch and members of the hostile 
reigning family, male or female, the chief, and 
chief officers of the hostile government, its di- 
plomatic agents, and all persons who are of 
particular and singular use and benefit to the 
hostile army or its government, are, if captured 
on belligerent ground, and if unprovided with 
a safe-conduct granted by the captor’s govern- 
ment, prisoners of war. 
51. If the people of that portion of an in- 
vaded country which is not yet occupied by the 
enemy, or of the whole country, at the approach 
of a hostile army, rise, under a duly author- 
ized levy, en masse to resist the invader, they 
are now treated as public enemies, and if cap- 
tured, are prisoners of war. 
52. No belligerent has the right to declare 
that he will treat every captured man in arms 
of a levy en masse as a brigand or bandit. 
Prize money, whether on sea or land, can 
now only be claimed under local law. 
46. Neither officers nor soldiers are allowed 
to make use of their position or power in the 
hostile country for private gain, not even for 414 
APPENDIX 
If, however, the people of a country, or any 
portion of the same, already occupied by an ar- 
my, rise against it, they are violators of the laws 
of war, and are not entitled to their protection. 
53. The enemy’s chaplains, officers of the 
medical staff, apothecaries, hospital nurses and 
servants, if they fall into the hands of the 
American army, are not prisoners of war, un- 
less the commander has reasons to retain them. 
In this latter case, or if, at their own desire, 
they are allowed to remain with their captured 
companions, they are treated as prisoners of war, 
and may be exchanged if the commander sees fit. 
54. A hostage is a person accepted as a pledge 
for the fulfillment of an agreement concluded 
between belligerents during the war, or in con- 
sequence of a war. Hostages are rare in the 
present age. 
64. If American troops capture a train con- 
taining uniforms of the enemy, and the com- 
mander considers it advisable to distribute 
them for use among his men, some striking 
mark or sign must be adopted to distinguish 
the American soldier from the enemy. 
65. The use of the enemy’s national stand- 
ard, flag, or other emblem of nationality, for 
the purpose of deceiving the enemy in battle, 
is an act of perfidy by which they lose all claim 
to the protection of the laws of war. 
66. Quarter having been given to an enemy by 
American troops, under a misapprehension of 
his true character, he may, nevertheless, be or- 
dered to suffer death, if, within three days af- 
ter the battle, it be discovered that he belongs 
to a corps which gives no quarter. 
67. The law of nations allows every sove- 
reign government to make war upon another 
sovereign state, and, therefore, admits of no 
rules or laws different from those of regular 
warfare, regarding the treatment of prisoners 
of war, although they may belong to the army 
of a government which the captor may con- 
sider as a wanton and unjust assailant. 
68. Modern wars are not internecine wars, 
in which the killing of the enemy is the object. 
The destruction of the enemy in modern war, 
and, indeed, modern war itself, are means to 
obtain that object of the belligerent which lies 
beyond the war. 
Unnecessary or revengeful destruction of 
life is not lawful. 
55. If a hostage is accepted, he is treated 
like a prisoner of war, according to rank and 
condition, as circumstances may admit. 
56. A prisoner of war is subject to no pun- 
ishment for being a public enemy, nor is any 
revenge wreaked upon him by the intentional 
infliction of any suffering, or disgrace, by cruel 
imprisonment, want of food, by mutilation, 
death, or any other barbarity. 
57. So soon as a man is armed by a sove- 
reign government, and takes the soldier’s oath 
of fidelity, he is a belligerent; his killing, 
wounding, or other warlike acts, are no indi- 
vidual crimes or offenses. No belligerent has 
a right to declare that enemies of a certain 
class, color or condition, when properly organ- 
ized as soldiers, will not be treated by him as 
public enemies. 
58. The law of nations knows of no distinc- 
tion of color, and if an enemy of the United 
States should enslave and sell captured per- 
sons of their army, it would be a case for 
the severest retaliation, if not redressed upon 
complaint. 
69. Outposts, sentinels, or pickets are not to 
be fired upon, except to drive them in, or when 
a positive order, special or general, has been 
issued to that effect. 
70. The use of poison in any manner, be it 
to poison wells, or food, or arms, is wholly ex- 
cluded from modern warfare. He that uses it 
puts himself out of the pale of the law and 
usages of war. 
71. Whoever intentionally inflicts additional 
wounds on an enemy already wholly disabled, 
or kills such an enemy, or who orders or en- 
courages soldiers to do so, shall suffer death, if 
duly convicted, whether he belongs to the army 
of the United States, or is an enemy captured 
after having committed his misdeed. 
72. Money and other valuables on the person 
of a prisoner, such as watches or jewelry, as 
well as extra clothing, are regarded by the 
American army as the private property of the 
prisoner, and the appropriation of such valua- 
bles or money is considered dishonorable, and 
is prohibited. 
Nevertheless, if large sums are found upon the 
persons of prisoners, or in their possession, 
they shall be taken from them, and the surplus, 
after providing for their own support, appro- 
priated for the use of the army, under the di- 
rection of the commander, unless otherwise or- 
dered by the Government. Nor can prisoners 
claim, as private property, large sums found 
and captured in their train, although they had 
been placed in the private luggage of the pris- 
oners. 
The United States can not retaliate by en- 
slavement ; therefore, death must be the retal- 
iation for this crime against the law of nations. 
59. A prisoner of war remains answerable 
for his crimes committed against the captor’s 
army or people, committed before he was cap- 
tured, and for which he has not been punished 
by his own authorities. 
All prisoners of war are liable to the inflic- 
tion of retaliatory measures. 
60. It is against the usage of modern war to 
resolve, in hatred and revenge, to give no quar- 
ter. No body of troops has the right to declare 
that it will not give, and therefore will not ex- 
pect, quarter; but a commander is permitted to 
direct his troops to give no quarter, in great 
straits, when his own salvation makes it im- 
possible to cumber himself with prisoners. 
61. Troops that give no quarter have no right 
to kill enemies already disabled on the ground, 
or prisoners captured by other troops. 
62. All troops of the enemy known or dis- 
covered to give no quarter in general, or to any 
portion of the army, receive none. 
63. Troops who fight in the uniform of their 
enemies, without any plain, striking, and uni- 
form mark of distinction of their own, can ex- 
pect no quarter. 
73. All officers, when captured, must surren- 
der their side-arms to the captor. They may 
be restored to the prisoner in marked cases, by appendix, 
415 
the commander, to signalize admiration of his 
distinguished bravery, or approbation of his 
humane treatment of prisoners before his cap- 
ture. The captured officer to whom they may 
be restored can not wear them during cap- 
tivity. 
74. A prisoner of war, being a public ene- 
my, is a prisoner of the government, and not 
of the captor. No ransom can be paid by a 
prisoner of war to his individual captor, or to 
any officer in command. The government 
alone releases captives, according to rules pre- 
scribed by itself. 
75. Prisoners of war are subject to confine- 
ment or imprisonment such as may be deemed 
necessary on account of safety, but they are 
to be subjected to no other intentional suffering 
or indignity. The confinement and mode of 
treating a prisoner may be varied during 
his captivity, according to the demands of 
safety. 
76. Prisoners of war shall be fed upon plain 
and wholesome food, whenever practicable, and 
treated with humanity. 
They may be required to work for the benefit 
of the captor’s government, according to their 
rank and condition. 
body for the purpose of making inroads into 
the territory occupied by the enemy. If cap- 
tured, they are entitled to all the privileges of 
the prisoner of war. 
82. Men, or squads of men, who commit hos- 
tilities, whether by fighting, or inroads for de- 
struction or plunder, or by raids of any kind, 
without commission, without being part and 
portion of the organized hostile army, and 
without sharing continuously in the war, but 
who do so with intermitting returns to their 
homes and avocations, or with the occasional 
assumption of the semblance of peaceful pur- 
suits, divesting themselves of the character or 
appearance of soldiers—such men, or squads 
of men, are not public enemies, and, therefore, 
if captured, are not entitled to the privileges of 
prisoners of war, but shall be treated summa- 
rily as highway robbers or pirates. 
83. Scouts, or single soldiers, if disguised in 
the dress of the country, or in the uniform of 
the army hostile to their own, employed in ob- 
taining information, if found within or lurk- 
ing about the lines of the captor, are treated as 
spies, and suffer death. 
84. Armed prowlers, by whatever names 
they may be called, or persons of the enemy’s 
territory, who steal within the lines of the hos- 
tile army, for the purpose of robbing, killing, 
or of destroying bridges, roads, or canals, or of 
robbing or destroying the mail, or of cutting 
the telegraph wires, are not entitled to the priv- 
ileges of the prisoner of war. 
85. War rebels are persons within an occu- 
pied territory who rise in arms against the oc- 
cupying or conquering army, or against the 
authorities established by the same. If cap- 
tured, they may suffer death, whether they rise 
singly, in small or large bands, and whether 
called upon to do so by their own, but expelled, 
government or not. They are not prisoners of 
war; nor are they, if discovered and secured 
before their conspiracy has matured to an actu- 
al rising, or to armed violence. 
77. A prisoner of war who escapes may be 
shot, or otherwise killed in his flight; but 
neither death nor any otherpunishment shall be 
inflicted upon him simply for his attempt to 
escape, which the law of war does not con- 
sider a crime. Stricter means of security 
shall be used after an unsuccessful attempt at 
escape. 
If, however, a conspiracy is discovered, the 
purpose of which is a united or general escape, 
the conspirators may be rigorously punished, 
even with death; and capital punishment may 
also be inflicted upon prisoners of war discov- 
ered to have plotted rebellion against the au- 
thorities of the captors, whether in union with 
fellow-prisoners or other persons. 
78. If prisoners of war, having given no 
pledge nor made any promise on their honor, 
forcibly or otherwise escape, and are captured 
again in battle, after having rejoined their own 
army, they shall not be punished for their es- 
cape, but shall be treated as simple prisoners 
of war, although they will be subjected to 
stricter confinement. 
79. Every captured wounded enemy shall be 
medically treated, according to the ability of 
the medical staff. 
80. Honorable men, when captured, will ab- 
stain from giving to the enemy information 
concerning their own army, and the modern 
law of war permits no longer the use of any 
violence against prisoners, in order to extort 
the desired information, or to punish them for 
having given false information. >, 
SECTION V. 
Safe-conduct Spies War traitors Captured 
messengers—Abuse of the flag of truce. 
86. All intercourse between the territories 
occupied by belligerent armies, whether by 
traffic, by letter, by travel, or in any other way, 
ceases. This is the general rule, to be observed 
without special proclamation. 
Exceptions to this rule, whether by safe-con- 
duct, by permission to trade on a small or large 
scale, or by exchanging mails, or by travel from 
one territory into the other, can take place on- 
ly according to agreement approved by the gov- 
ernment, or by the highest military authority. 
Contraventions of this rule are highly pun- 
ishable. 
Partisans—Armed enemies not belonging to the 
hostile army Scouts—Armed prowlers— War 
rebels. 
SECTION IV. 
87. Ambassadors, and all other diplomatic 
agents of neutral powers, accredited to the en- 
emy, may receive safe-conducts through the 
territories occupied by the belligerents, unless 
there are military reasons to the contrary, and 
unless they may reach the place of their des- 
tination conveniently by another route. It 
implies no international aifront if the safe- 
81. Partisans are soldiers armed and wear- 
ing the uniform of their army, but belonging 
to a corps which acts detached from the main 416 
APPENDIX. 
conduct is declined. Such passes are usually 
given by the supreme authority of the State, 
and not by subordinate officers. 
88. A spy is a person who secretly, in dis- 
guise or under false pretense, seeks informa- 
tion with the intention of communicating it to 
the enemy. 
The spy is punishable with death by hanging 
by the neck, whether or not he succeed in ob- 
taining the information or in conveying it to 
the enemy. 
89. If a citizen of the United States obtains 
information in a legitimate manner, and be- 
trays it to the enemy, be he a military or civil 
officer, or a private citizen, he shall suffer death. 
90. A traitor under the law of war, or a war- 
traitor, is a person in a place or district under 
martial law who, unauthorized by the military 
commander, gives information of any kind to 
the enemy, or holds intercourse with him. 
91. The war traitor is always severely pun- 
ished. If his offense consists in betraying to 
the enemy anything concerning the condition, 
safety, operations or plans of the troops hold- 
ing or occupying the place or district, his pun- 
ishment is death. 
his capture must determine the disposition that 
shall he made of him. 
100. A messenger or agent who attempts to 
steal through the territory occupied by the ene- 
my, to further in any manner the interests of 
the enemy, if captured, is not entitled to the 
privileges of the prisoner of war, and may be dealt 
with according to the circumstances of the case. 
101. While deception in war is admitted as 
a just and necessary means of hostility, and is 
consistent with honorable warfare, the common 
law of war allows even capital punishment for 
clandestine or treacherous attempts to injure 
an enemy, because they are so dangerous, and 
it is so difficult to guard against them. 
102. The law of war, like the criminal war 
regarding other offenses, makes no difference 
on account of the difference of sexes, concern- 
ing the spy, the war traitor, or the war rebel. 
108. Spies, war traitors and war rebels are 
not exchanged according to the common law of 
war. The exchange of such persons would re- 
quire a special cartel, authorized by the gov- 
ernment, or, at a great distance from it, by the 
chief commander of the army in the field. 
104. A successful spy or war traitor, safely 
returned to his own army, and afterward cap- 
tured as an enemy, is not subject to punish- 
ment for his acts as a spy or war traitor, but 
he may be held in closer custody as a person 
individually dangerous. 
92. If the citizen or subject of a country or 
place invaded or conquered gives information 
to his own government, from which he is sep- 
arated by the hostile army, or to the army of 
his government, he is a war traitor, and death 
is the penalty of his offense. 
93. All armies in the field stand in need of 
guides, and impress them if they can not ob- 
tain them otherwise. 
SECTION VI. 
94. No person having been forced by the en- 
emy to serve as a guide, is punishable for hav- 
ing done so. 
95. If a citizen of a hostile and invaded dis- 
trict voluntarily serves as a guide to the ene- 
my, or offers to do so, he is deemed a war 
traitor, and shall suffer death. 
96. A citizen serving voluntarily as a guide 
against his own country commits treason, and 
will be dealt with according to the law of his 
country. 
97. Guides, when it is clearly proved that 
they have misled intentionally, may be put to 
death. 
98. All unauthorized or secret communica- 
tion with the enemy is considered treasonable 
by the law of war. 
Foreign residents in an invaded or occupied 
territory, or foreign visitors in the same, can 
claim no immunity from this law. They may 
communicate with foreign parts, or with the 
inhabitants of the hostile country, so far as 
the military authority permits, but no further. 
Instant expulsion from the occupied territory 
would be the very least punishment for the in- 
fraction of this rule. 
99. A messenger carrying written dispatches 
Or verbal messages from one portion of the 
army, or from a besieged place, to another por- 
tion of the same army, or its government, if 
armed, and in the uniform of his army, and if 
captured, while doing so, in the territory oc- 
cupied by the enemy, is treated by the cap- 
tor as a prisoner of war. If not in uniform, 
nor a soldier, the circumstances connected with 
Exchange of prisoners—Flags of truce—Flags of 
protection. 
105. Exchanges of prisoners take place— 
number for number—rank for rank—wounded 
for wounded—with added condition for added 
condition—such, for instance as not to serve 
for a certain period. 
106. In exchanging prisoners of war, such 
numbers of persons of inferior rank may be 
substituted as an equivalent for one of superi- 
or rank as may be agreed upon by cartel, 
which requires the sanction of the government, 
or of the commander of the army in the field. 
107. A prisoner of war is in honor bound 
truly to state to the captor his rank; and he is 
not to assume a lower rank than belongs to him, 
in order to cause a more advantageous exchange; 
nor a higher rank, for the purpose of obtaining 
better treatment. 
Offenses to the contrary have been justly 
punished by the commanders of released pris- 
oners, and may be good cause for refusing to 
release such prisoners. 
108. The surplus number of prisoners of war 
remaining after an exchange has taken place 
is sometimes released either for the payment of 
a stipulated sum of money, or, in urgent cases, 
of provision, clothing, or other necessaries. 
Such arrangement, however, requires the 
sanction of the highest authority. 
109. The exchange of prisoners of war is an 
act of convenience to both belligerents. If no 
general cartel has been concluded, it can not be 
demanded by either of them. No belligerent is 
obliged to exchange prisoners of war. APPENDIX 
417 
A cartel is voidable so soon as either party 
has violated it. 
110. No exchange of prisoners shall be made 
except after complete capture, and after an ac- 
curate account of them, and a list of the cap- 
tured officers has been taken. 
111. The bearer of a flag of truce can not in- 
sist on being admitted. He must always be 
admitted with great caution. Unnecessary fre- 
quency is carefully to be avoided. 
112. If the bearer of a flag of truce offer him- 
self during an engagement, he can be admitted 
as a very rare exception only. It is no breach 
of good faith to retain such a flag of truce, if 
admitted during the engagement. Firing is not 
required to cease on the appearance of a flag of 
truce in battle. 
113. If the bearer of a flag of truce, present- 
ing himself during an engagement, is killed or 
wounded, it furnishes no ground of complaint 
whatever. 
114. If it be discovered, and fairly proved, 
that a flag of truce has been abused for surrep- 
titiously obtaining military knowledge, the 
bearer of the flag thus abusing his sacred char- 
acter is deemed a spy. 
So sacred is the character of a flag of truce, 
and so necessary is its sacredness, that while 
its abuse is an especially heinous offense, great 
caution is requisite, on the other hand, in con- 
victing the bearer of a flag of truce as a spy. 
115. It is customary to designate by certain 
flags (usually yellow), the hospitals in places 
which are shelled, so that the besieging enemy 
may avoid firing on them. The same has been 
done in battles, when hospitals are situated 
ydthin the field of the engagement. 
116. Honorable belligerents often request that 
the hospitals within the territory of the enemy 
may be designated, so that they may be spared. 
An honorable belligerent allows himself to 
be guided by flags or signals of protection as 
much as the contingencies and the necessities 
of the fight will permit. 
117. It is justly considered an act of bad faith, 
of infamy or fiendishness, to deceive the enemy 
by flags of protection. Such act of bad faith may 
be good cause for refusing to respect such flags. 
118. The besieging belligerent has sometimes 
requested the besieged to designate the build- 
ings containing collections of works of art, sci- 
entific museums, astronomical observatories or 
precious libraries, so that their destruction may 
be avoided as much as possible. 
country, or to live in greater freedom within the 
captor’s country or territory, on conditions 
stated in the parole. 
123. Release of prisoners of war by exchange 
is the general rule; release by parole is the 
exception. 
124. Breaking the parole is punished with 
death when the person breaking the parole is 
captured again. 
Accurate lists, therefore, of the paroled per- 
sons must be kept by the belligerents. 
125. When paroles are given and received, 
there must be an exchange of two written docu- 
ments, in which the name and rank of the pa- 
roled individuals are accurately and truthfully 
stated. 
126. Commissioned officers only are allowed 
to give their parole, and they can give it only 
with the permission of their superior, as long as 
a superior in rank is within reach. 
127. No non-commissioned officer or private 
can give his parole except through an officer. 
Individual paroles not given through an officer 
are not only void, but subject the individuals 
giving them to the punishment of death as desert- 
ers. The only admissible exception is where indi- 
viduals properly separated from their commands, 
have suffered long confinement without the pos- 
sibility of being paroled through an officer. 
128. No paroling on the battle-field; no parol- 
ing of entire bodies of troops after a battle, and 
no dismissal of large numbers of prisoners, with 
a general declaration that they are paroled, is 
permitted or of any value. 
129. In capitulations for the surrender of 
strong places or fortified camps, the command- 
ing officer, in cases of urgent necessity, may 
agree that the troops under his command shall 
not fight again during the war, unless ex- 
changed. 
130. The usual pledge given in the parole is 
not to serve during the existing war, unless 
exchanged. 
This pledge refers only to the active service in 
the field, against the paroling belligerent or his 
allies actively engaged in the same war. These 
cases of breaking the parole are patent acts, and 
can be visited with the punishment of death; but 
the pledge does not refer to internal service, 
such as recruiting or dx-illing the recruits, for- 
tifying places not besieged, quelling civil com- 
motions, fighting against belligerents uncon- 
nected with the paroling belligerents, or to civil 
or diplomatic service for which the paroled 
officer may be employed. 
131. If the Government does not approve of 
the parole, the paroled officer must return into 
captivity, and should the enemy refuse to re- 
ceive him, he is free of his parole. 
132. A belligerent government may declare, 
by a general order, whether it will allow parol- 
ing, and on what conditions it will allow it. 
Such order is communicated to the enemy. 
133. No prisoner of war can be forced by the 
hostile government to parole himself, and no 
government is obliged to parole prisoners of war, 
or to parole all captured officers, if it paroles 
any. As the pledging of the parole is an indi- 
vidual act, so is paroling, on the other hand, an 
act of choice on the part of the belligerent 
SECTION YII. 
The Parole. 
119. Prisoners of war may be released from 
captivity by exchange, and under certain cir- 
cumstances, also by parole. 
120. The term parole designates the pledge 
of individual good faith and honor to do, or to 
omit doing, certain acts after he who gives his 
parole shall have been dismissed, wholly or par- 
tially, from the power of the captor. 
121. The pledge of the parole is always an 
individual, but not a private, act. 
122. The parole applies chiefly to prisoners of 
war whom the captor allows to return to their 418 
APPENDIX 
184. The commander of an occupying army 
may require of the civil officers of the enemy, 
and of its citizens, any pledge he may consider 
necessary for the safety or security of his army, 
and upon their failure to give it, he may arrest, 
confine or detain them. 
or advance of his attacking works as much so 
as from attacks by main force. 
But as there is a difference of opinion among 
martial jurists, whether the besieged have the 
right to repair breaches or to erect new works 
of defense within the place during an armistice, 
this point should be determined by express 
agreement between the parties. 
144. So soon as a capitulation is signed, the 
capitulator has no right to demolish, destroy or 
injui’e the works, arms, stores or ammunition in 
his possession, during the time which elapses 
between the signing and the execution of the 
capitulation, unless otherwise stipulated in the 
same. 
SECTION YIIL 
Armis lice— Capitulation. 
185. An armistice is the cessation of active 
hostilities for a period agreed upon between bel- 
ligerents. It must be agreed upon ;n writing, 
and duly ratified by the highest authorities of 
the contending parties. 
136. If an armistice be declared, without con- 
ditions, it extends no further than to require a 
total cessation of hostilities, along the front of 
both belligerents. 
If conditions be agreed upon, they should be 
clearly expressed, and must be rigidly adhered 
to by both parties. If either party violates any 
express condition, the armistice may be declared 
null and void by the other. 
137. An armistice may be general, and valid 
for all points and lines of the belligerents; or 
special, that is, referring to certain troops or 
certain localities only. 
An armistice may be concluded for a definite 
time, or for an indefinite time, during which 
either belligerent may resume hostilities on giv- 
ing the notice agreed upon to the other. 
138. The motives which induce the one or the 
other belligerent to conclude an armistice, 
whether it be expected to be preliminary to a 
treaty of peace, or to prepare during the armis- 
tice for a more vigorous prosecution of the war, 
does in no way affect the character of the armis- 
tice itself. 
145. When an armistice is clearly broken by 
one of the parties, the other party is released 
from all obligation to observe it. 
146. Prisoners, taken in the act of breaking 
an armistice, must be treated as prisoners of 
war, the officer alone being responsible who gives 
the order for such a violation of an armistice. 
The highest authority of the belligerent ag- 
grieved may demand redress for the infraction 
of an armistice. 
147. Belligerents sometimes conclude an ar- 
mistice while their plenipotentiaries are met to 
discuss the conditions of a treaty of peace; but 
plenipotentiaries may meet without a prelimi- 
nary armistice; in the latter case the war is 
carried on without any abatement. 
SECTION IX. 
Assassination. 
148. The law of war does not allow proclaim 
ing either an individual belonging to the hostile 
army, or a citizen, or a subject of the hostile 
government, an outlaw, who may be slain with 
out trial by any captor, any more than the mod- 
ern law of peace allows such international out- 
lawry ; on the contrary, it abhors such outrage. 
The sternest retaliation should follow the mur- 
der committed in consequence of such procla- 
mation, made by whatever authority. Civilized 
nations look with horror upon offers of rewards 
for the assassination of enemies, as relapses 
into barbarism. 
139. An armistice is binding upon the bel- 
ligerents from the day of the agreed commence- 
ment ; but the officers of the armies are respon- 
sible from the day only when they receive official 
information of its existence. 
140. Commanding officers have the right to 
conclude armistices binding on the district over 
which their command extends, but such armis- 
tice is subject to the ratification of the superior 
authority, and ceases so soon as it is made 
known to the enemy that the armistice is not 
ratified, even if a certain time for the elapsing 
between giving notice of cessation and the re- 
sumption of hostilities should have been stipu- 
lated for. 
SECTION X. 
Insurrection— Civil War—Rehellion. 
149. Insurrection is the rising of people in 
arms against their government, or a portion of 
it, or against one or more of its laws, or against 
an officer or officers of the government. It may 
be confined to mere armed resistance, or it may 
have greater ends in view. 
150. Civil war is war between two or more 
portions of a country or State, each contending 
for the mastery of the whole, and each claiming 
to be the legitimate government. The term is 
also sometimes applied to war of rebellion, when 
the rebellious provinces or portions of the State 
are contiguous to those containing the seat of 
government. 
141. It is incumbent upon the contracting 
parties of an armistice to stipulate what inter- 
course of persons or traffic between the inhabit- 
ants of the territories occupied by the hostile 
armies shall be allowed, if any. 
If nothing is stipulated, the intercourse re- 
mains suspended, as during actual hostilities. 
142. An armistice is not a partial or a tem- 
porary peace; it is only the suspension of mili- 
tary operations to the extent agreed upon by 
the parties. 
143. When an armistice is concluded between 
a fortified place and the army besieging it, it is 
agreed by all the authorities on this subject that 
the besieger must cease all extension, perfection 
151. The term rebellion is applied to an insur- 
rection of large extent, and is usually a war APPENDIX 
419 
between the legitimate government of a country 
and portions or provinces of the same who seek 
to throw off their allegiance to it, and set up a 
government of their own. 
152. When humanity induces the adoption of 
the rules of regular war toward rebels, whether 
the adoption is partial or entire, it does in no 
way whatever imply a partial or complete ac- 
knowledgment of their government, if they have 
set up one, or of them, as an independent or 
sovereign power. Neutrals have no right to 
make the adoption of the rules of war by the 
assailed government toward rebels the ground 
of their own acknowledgment of the revolted 
people as an independent power. 
153. Treating captured rebels as prisoners of 
war, exchanging them, concluding of cartels, 
capitulations or other warlike agreements with 
them; addressing officers of a rebel army by 
the rank they may have in the same; accepting 
flags of truce, or, on the other hand, proclaim- 
ing martial law in their territory, or levying 
war taxes or forced loans, or doing any other 
act sanctioned or demanded by the law and 
usages of public war between sovereign bellig- 
erents, neither proves nor establishes an ac- 
knowledgment of the rebellious people, or of the 
government which they may have erected, as a 
public or sovereign power. Nor does the adop- 
tion of the rules of war toward rebels imply an 
engagement with them extending beyond the 
limits of these rules. It is victory in the field 
that ends the strife and settles the future rela- 
tions between the contending parties. 
fer, imprison or fine the revolted citizens who 
refuse to pledge themselves anew as citizens 
obedient to the law, and loyal to the government. 
Whether it is expedient to do so, and whether 
reliance can be placed upon such oaths, the 
commander or his government have the right 
to decide. 
157. Armed or unarmed resistance by citizens 
of the United States against the lawful move- 
ments of their troops is levying war against the 
United States, and is therefore treason. 
GENERAL ORDERS, NO. 141. 
War Department, v 
Adjutant General’s Office, I 
Washington, September 25, 1862. j 
The following Proclamation by the President 
is published for the information and govern- 
ment of the Army and all concerned: 
“by the president of the united states of 
“A PROCLAMATION. 
AMERICA. 
“Whereas, It has become necessary to call 
into service not only volunteers, but also por- 
tions of the militia of the States by draft, in 
order to suppress the insurrection existing in 
the United States, and disloyal persons are not 
adequately restrained by the ordinary processes 
of law from hindering this measure and from 
giving aid and comfort in various ways to the 
insurrection. Now, therefore, be it ordered ; 
“ First. That during the existing insurrection, 
and as a necessary measure for suppressing the 
same, all rebels and insurgents, their aiders 
and abettors, within the United States, and all 
persons discouraging volunteer enlistments, re- 
sisting militia drafts, or guilty of any disloyal 
practice, affording aid and comfort to rebels 
against the authority of the United States, shall 
be subject to martial law, and liable to trial 
and punishment by courts-martial or military 
commission. 
154. Treating, in the field, the rebellious ene- 
my according to the laws and usages of war has 
never prevented the legitimate government from 
trying the leaders of the rebellion or chief rebels 
for high treason, and from treating them accord- 
ingly, unless they are included in a general 
amnesty. 
155. All enemies in regular war are divided 
into two general classes; that is to say, into 
combatants and non-combatants, or unarmed 
citizens of the hostile government. 
The military commander of the legitimate 
government, in a war of rebellion, distinguishes 
between the loyal citizen in the revolted portion 
of the country and the disloyal citizen. The 
disloyal citizens may further be classified into 
those citizens known to sympathize with the 
rebellion, without positively aiding it, and those 
who, without taking up arms, give positive aid 
and comfort to the rebellious enemy, without 
being bodily forced thereto. 
156. Common justice and plain expediency 
require that the military commander protect 
the manifestly loyal citizens, in revolted terri- 
tories, against the hardships of the war as much 
as the common misfortune of all war admits. 
The commander will throw the burden ot the 
war, as much as lies within his power, on the 
disloyal citizens of the revolted portion or prov- 
ince, subjecting them to a stricter police than 
the non-combatant enemies have to suffer in 
regular war; and if he deems it appropriate, or 
if his government demands of him that every 
citizen shall, by an oath of allegiance, or by 
some other manifest act, declare his fidelity to 
the legitimate government, he may expel, trans- 
“Second. That the writ of habeas corpus is 
suspended in respect to all persons arrested, or 
who are now, or hereafter during the rebellion 
shall be, imprisoned in any fort, camp, arsenal, 
military prison or other place of confinement by 
any military authority, or by the sentence of 
any court-martial or military commission. 
“In witness whereof, I have hereunto set my 
hand, and caused the seal of the United States 
to be affixed. 
“Done at the city of Washington, this twenty- 
fourth day of September, in the year of 
[l. s.] our Lord one thousand eight hundred and 
sixty-two, and of the Independence of the 
United States the eighty-seventh. 
“ABRAHAM LINCOLN. 
“ By the President: 
“William H. Sewaed, Secretary of State. 
“By order of the Secretary of War. 
“ L. THOMAS, Adjutant General. 
“ Official.” AFFIDAVITS 
or 
LOUIS J. WEICHMANN AND CAPT. G. W. DUTTON. 
Col. H. L. Buenett, Judge Advocate, Cincinnati, 
Ohio ; 
with John Wilkes Booth in the parlor. On the 
way down she was very lively and cheerful, 
taking the reins into her own hands several 
times, and urging on the steed. We halted 
once, and that was about three miles from 
Washington, when, observing that there were 
pickets along the road, she hailed an old farmer, 
and wanted to know if they would remain there 
all night. On being told that they were with- 
drawn at about eight o’clock in the evening, she 
said she “ was glad to know it.” On the re- 
turn, I chanced to make some remark about 
Booth, stating that he appeared to be without 
employment, and asking her when he was go- 
ing to act again. “Booth is done acting,” she 
said, “and is going to Now York very soon, 
never to return.” Then turning round, she re- 
marked; “Yes, and Booth is crazy on one sub- 
ject, and I am going to give him a good scold- 
ing the next time I see him.” What that “ one 
subject” was, Mrs. Surratt never mentioned 
to me. She was very anxious to be at home at 
nine o’clock, saying that she had made an en- 
gagement with some gentleman who was to 
meet her at that hour. I asked her if it was 
Booth. She answered neither yes nor no. 
Colonel—l stated before the Commission, at 
Washington, that I commenced to board with 
Mrs. Surratt in November, 1864. As a general 
thing, 1 remained at home during the evenings, 
and, consequently, I beard many things which 
were then intended to blind me, but which now 
are as clear as daylight. The following facts, 
which have come to my recollection since the 
rendition of my testimony, maybe of interest: 
Affidavit of Louis J. Weichmann. 
I once asked Mrs. Surratt what her son John 
had to do with Dr. Mudd’s farm; why he made 
himself an agent for Booth (she herself had 
told me that Booth desired to purchase Mudd’s 
farm). Her reply was, that “ Dr. Mudd and 
the people of Charles county had got tired of 
Booth, and that they had pushed him on John.” 
Before the fourth of March, she was in the 
habit of remarking that “ something was going 
to happen to old Abe which would prevent him 
from taking his seat; that Gen. Lee was going 
to execute a movement which would startle the 
whole world.” What that movement was she 
never said. 
WThen about a mile from the city, and having 
from the top of a hill caught a view of Wash- 
ington swimming in a flood of light, raising 
her hands, she said, “ I am afraid all this re- 
joicing will be turned into mourning, ajid all 
this glory into sadness.” I asked her what she 
meant. She replied that after sunshine there 
was always a storm, and that the people were 
too proud and licentious, and that God would 
punish them. 
The gentleman whom she expected at nine 
o’clock on her return, called. It was, as I af- 
terward ascertained, Booth’s last visit to Mrs. 
Surratt, and the third one on that day. She 
was’ alone with him for a few minutes in the 
parlor. I was in the dining room at the time, 
and as soon as I had taken tea, I repaired 
thither. Mrs. Surratt’s former cheerfulness had 
left her. She was now very nervous, agitated 
and restless. On my asking her what was the 
matter, she replied that she was very nervous, 
and did not feel well. Then looking at me, she 
wanted to know which way the torchlight pro- 
cession was going that we had seen on the 
Avenue. I remarked that it was a procession 
of the arsenal employees, who were going to 
serenade the President. She said that she would 
like to know, as she was very much interested 
A few days after, I asked her why John 
brought such men as Herold and Atzerodt to 
the house, and associated with them? “0, 
John wishes to make use of them for his dirty 
ivork,” was her reply. On my desiring to know 
what the dirty work was, she answered that 
“John wanted them to clean his horses.” He 
had two at that time. And once, when she sent 
me to Brooks, the stabler, to inquire about her 
son, she laughed, and x'emarked that “Brooks 
considered John Surratt, and Booth, and Her- 
old, and Atzerodt a party of young gamblers 
and sports, and that she wanted him to think 
so.” Brooks has told me since the trial that 
such was actually the case, and that at one time 
he saw John H. Surratt with three one-hundred 
dollar notes in his possession. 
When Richmond fell and Lee’s army surren- 
dered, when Washington was illuminated, Mrs. 
Surratt closed her home and wept. Her house 
was gloomy and cheerless. To use her own ex- 
pression, it was “ indicative of her feelings.” 
On Good Friday I drove her into the country, 
ignorant of her purpose and intentions. We 
started at about half-past two o’clock in the af- 
ternoon. Before leaving, she had an interview 
420 APPENDIX, 
421 
in it. Her nervousness finally increased so 
much that she chased myself and the young 
ladies who were making a great deal of noise 
and laughter, to our respective rooms. 
When the detectives came, at three o’clock 
the next morning, I rapped at her door for per- 
mission to let them in. 
In reply, I have the honor to state that my 
duties required me to be constantly with the 
prisoners, and during a conversation with 
Dr. Mudd, on the 22d of July, he confessed 
that he knew Booth when he came to his 
house with Herold, on the morning after the 
assassination of the President; that he had 
known Booth for some time, but was afraid to 
tell of his having been at his house on the 15th 
of April, fearing that his own and the lives of 
his family would be endangered thereby. He 
also confessed that he was with Booth at the 
National Hotel on the evening referred to by 
Weichmann in his testimony; that he came to 
Washington on that occasion to meet Booth, by 
appointment, who wished to be introduced to 
John Surratt; that when he and Booth were 
going to Mrs. Surratt’s house to see John Sur- 
ratt, they met, on Seventh street, John Surratt, 
who was introduced to Booth, and they had a 
conversation of a private nature. I will here 
add that Dr. Mudd had with him a printed 
copy of the testimony pertaining to his trial, 
and I had, upon a number of occasions, re- 
ferred to the same. I will also state that this 
confession was voluntary, and made without 
solicitation, threat or promise, and was made 
after the destination of the prisoners was com- 
municated to them, which communication af- 
fected Dr. Mudd more than the rest; and he 
frequently exclaimed, “Oh, there is now no 
no hope for me.” “ Oh, I can not live in such 
a place.” 
Please acknowledge the receipt of this letter. 
I am, General, very respectfully, 
Your obedient servant, 
GEORGE W. DUTTON, 
Chpt. Co. C, 10th Beg't V. R. 0., com’dg (Guard. 
“For God’s sake, let them come in ! I expected 
the house to he searched,” said she. 
When the detectives had gone, and when her 
daughter, almost frantic, cried out: 
“Oh, Ma! just think of that man’s (JohnW. 
Booth) having been here an hour before the as- 
sassination ! I am afraid it will bring suspi- 
cion upon us.” 
“Anna, come what will,” she replied, “I am 
resigned. I think that J. Wilkes Booth was 
only an instrument in the hands of the Al- 
mighty to punish this proud and licentious 
people.” 
LOUIS J. WEIGHMANN. 
Sworn and subscribed before me this 11th day 
of August, 1865. 
CHAS. E. PANCOAST, 
Alderman. 
AFFIDAVIT CONCERNING CERTAIN STATE- 
MENTS MADE BY DR. SAM’L A. MUDD, 
SINCE HIS TRIAL. 
Camp Fry, Washington, D. C., 
August 22,1865. 
Brig.-Gen. Joseph Holt, 
Judge Advocate General, U. S. A,: 
Sir—l am in receipt of your communication 
of this date, in which you request information 
as regards the truthfulness of certain state- 
ments and confessions reported to have been 
made by Dr. Mudd while under my charge, en 
roufr to the Dry Tortugas. 
Sworn and acknowledged at Washington, 
D. C., this 23d August, 1866, before me. 
G. C. THOMAS, 
Notary Public. The above is a diagram of the stage, with properties, as it stood at the time of the assas- 
sination. 
The number of persons required upon the stage during the performance is as follows: 19 
actors and actresses, 4 scene-shifters, 1 stage carpenter, 1 assistant stage carpenter, 1 property 
man, 1 gas man, 1 (back) door-keeper, 1 prompter, making a total of 29 persons passing and 
repassing upon the stage and through the passages and green-room which connects with the 
stage by the passage through which the assassin passed. 
DIAGRAM OF THE STAGE. 
A—“ Asa Trenchard,” (Mr. Harry Hawk.) 
B—Miss Laura Keene. 
C—Mr. Ferguson. 
D—Gas Man. 
E—Stage Manager, (Mr. Wright.) 
F—Mr. Wm. Withers, Jr., (Leader of Orchestra.) 
1— First scene. 
2 Second “ 
3 Box of President. 
4 Door to box. 
5 “ “ “ 
6 Entrance to passage. 
7 First entrance to right, 
8— Second “ “ 
9 Third “ “ 
10—Fourth 11 " 
U—Back door to alley. 
12— Scenery in pile. 
13— Door to dressing-rooms. 
14— Scenery in pile. 
15— Governor to gas-lights. 
16— Prompter’s desk. 
17— Scenery in pile. 
18— Center door in scene. 
19— Fence, with gate. 
20— Martin-house. 
21— Set dairy, (12 ft. by 12 ft., 3 feet deep.) 
22 Bench. 
23 Small table and two chairs. 
24— Covered stairway to basement. 
25 Set piece, to mask center door. . 
26 Hole in the wall, to fasten door, (3 ft. 6 in. from 
corner.) . 
27 Torn place in carpet, (two feet from lower box.) KEFEKENCES. 
B—Herndon House. C—Vacant lot communicating with the alley of the Theater. D—Alley 
communicating with F Street. K—Alley by which Booth escaped. X—Restaurants.