The irrepressible conflict between the President and the Congress; the consequent schism in the very ranks of the triumphant conquerors; the insane charge against Andrew Johnson of complicity in a conspiracy against his own life, supported by the incredible statements of the very witnesses who were responsible for the charge of complicity against Jefferson Davis and others; the final and complete exposure of the fiction of a conspiracy to assassinate, either by the Confederate authorities, or anybody else; and the true, historical character of the Assassination of Abraham Lincoln;—all combined to shake the edifice of guilt, which the Bureau of Military Justice had so carefully built up around their helpless victim, upon such an aerial foundation. Whilst the gradual abatement of that furious uncharitableness, which in the hey-day of the war could find nothing not damnable in the Southern people, and no secessionist who was not morally capable either of murder or of perjury in its defense or concealment, was, surely but imperceptibly, clearing up the general atmosphere of public opinion, and thus preparing for the cordial reception of such a measure of retributive justice, as Time, with his sure revenges, was daily disclosing to be more and more inevitable.
The Milligan decision dissipated the technical jurisdiction of the Commission. But lawyers could still distinguish, and the hyperloyal could still maintain the essential rightfulness of the verdict.
But the explosion of the great assassination conspiracy; the nol-pros. of the awful charge against Jefferson Davis, Clement C. Clay, Jacob Thompson, and their followers—a crime, which, if capable of proof, no government on earth would have dared to condone—discredited forever the judgment of the Military Commission, reopened wide all questions of testimony, of character, of guilt or innocence, and summoned the silent and dishonored dead to a new and benignant trial.
CHAPTER II.
Reversal upon the Merits.
The new trial was in fact at hand. In the summer of the year 1867, the interest excited by the investigation of the Judiciary Committee of the House of Representatives, referred to in the last chapter, suddenly became merged into the intenser and more widespread interest excited by the trial of John H. Surratt in the Criminal Court of the District of Columbia.
Surratt, after escaping from his captors in Italy by leaping down a precipice, fled to Malta and thence to Alexandria, where, on the 21st of December, 1866, he was recaptured and taken on board the United States vessel “Swatara.” In this vessel, bound hand and foot, the prisoner arrived at Washington on the 21st of February following. Thus the radicals in Congress, impelled by their growing enmity to the President over the reconstruction contest, by scattering abroad sinister intimations that the cause of his remissness in bringing to punishment the accomplices of the convicted assassins was fear for himself of a full investigation of the assassination, succeeded at last in forcing the Executive Department, apprehensive, as it had good reason to be, of the shadows which any future trial in the civil courts was likely to reflect back upon the Military Commission, and aware of the breaking down of the case against the Canadian confederates and Jefferson Davis, face to face with the necessity of ratifying the conviction of the mother by securing the conviction of the son. On the one hand, the radicals, in blind ignorance of the true inwardness of affairs, clamored for the trial, in the hope that the guilt of the prisoner’s supposed accomplices, Davis and Company, and possibly of the President himself, might be detected. On the other hand, the administration, now that the man had been forced upon its hands, knowing the futility of the hope of its enemies, pushed on the trial in the hope that, with its powerful appliances, a result could be obtained which would vindicate the verdict of the Military Commission. No one on either side, however, so much as dreamed of renewing the iniquity of a trial by court-martial. Amid the silence of the Holts and the Binghams and the Stantons, Surratt was duly indicted by a grand jury for the murder of “one Abraham Lincoln,” and for conspiring with Booth, Payne, Atzerodt, Herold and Mary E. Surratt to murder “one Abraham Lincoln,” which conspiracy was executed by Booth. There was no averment about the traitorous conspiracy to murder the heads of Government, in aid of the rebellion; nor were the names of Dr. Mudd, O’Laughlin, Arnold or Spangler, then undergoing punishment on the Dry Tortugas, inserted as parties to the conspiracy; nor was any mention made of Seward or Johnson or Grant, as among the contemplated victims. All was precise and perspicacious, as is required in pleadings in the civil courts. The loose, vague, indefinite and impalpable charges permissible, seemingly, on military trials, gave place to plain and simple allegations, such as an accused person might reasonably be expected to be able to meet. On Monday, June 10, 1867, while the investigation before the Judiciary Committee of the House was still going on, while the sensation produced by the sight of Booth’s diary and by Matthews’ disclosures was still fresh, while the echoes of the encounter of Bingham and Butler still lingered in the air, the momentous trial came on. Great and unprecedented preparations had been made by the prosecution. Again the country was ransacked for witnesses, as in the palmy days of Baker and his men. Again the Montgomeries and other Canada spies haunted the precincts of the District Attorney’s office, willing as ever to swear to anything necessary to make out the case for the prosecution. Even the voice of Conover was heard, de profundis clamavi, from his dungeon cell. The Bureau of Military Justice started into active life, and Holt and his satellites bestirred themselves as though fully conscious of the impending crisis. Indeed, every one of these officials, from the President and the Secretary of War down to the meanest informer and hired hangman, who had had anything to do with the trial and execution of Mary E. Surratt, felt as if he, too, was to be put on trial in the trial of her son. A Court recognized in, and drawing its life and jurisdiction from, the Constitution was to act as a court of appeal to review the process and judgment of that extra-constitutional tribunal, which had, summarily and without legal warrant, put a free American woman to a felon’s death. A Daniel in the shape of a jury—a common law jury—a jury of civilians—unadorned by sword, epaulette or plume—a jury guaranteed by the Bill of Rights—a Daniel had come to judgment! The Shylocks of the days of arbitrary power dropped their sharpened knives and ejaculated, “Is that the law?”
Great, assuredly, must have been the flurry of the once omnipotent Bureau, when it was ascertained that the tribunal before which it must come could not be “organized to convict;” that there could be no soldiery around the Court, no shackles on the prisoners or the witnesses for the defense, no prosecuting officers in the jury room. Everything must be done decently and in order, with the same calm dignity, unruffled composure, the same presumption of the innocence of the accused, as though the murdered man had been the humblest citizen of the land. One great advantage, however, the prosecution managed to secure. A Judge was selected to preside whom they could rely on, as “organized to convict.” But this was the sole reminiscence of the unbridled reign of the military only two years before. A jury of twelve intelligent men, some of them the best citizens of the District, was speedily obtained to the evident satisfaction of both the people and the prisoner,—and the succeeding Monday, the 17th, the struggle began.