It is significant that the ready Special Judge-Advocate rendered no aid to his colleague on the latter branch of the inquiry.
According to the theory of the prosecution, then, Mary E. Surratt was tried, as a co-conspirator of Jefferson Davis and seven of his agents, of the seven men tried with her, and of Booth and her own son, for the crime of “traitorous conspiracy” to murder the President, Vice-President, Secretary of State and Lieutenant-General, of the United States; and for the following crimes committed in pursuance thereof:
1. Assassination of the President, with Booth.
2. Attempt to murder the Secretary of State, his two sons and two attendants (five crimes instead of one), with Payne.
7. Lying in wait to kill the Vice-President, with Atzerodt.
8. Lying in wait to kill the Lieutenant-General, with O’Laughlin.
Eight separate species of crimes, beside the generic one of “traitorous conspiracy.” And she, a citizen, a non-combatant, a woman, was tried on this nine-fold, omnibus charge, jointly with seven men, under “the common law of war”!
On the 16th of June (Friday), Mr. Clampitt read the argument of Reverdy Johnson against the jurisdiction of the Commission—one of the most cogent and convincing ever delivered in a court of justice.
The Supreme Court of the United States, subsequently (December, 1866), in deciding the Milligan case, did but little more than reiterate the propositions maintained by this great lawyer.