The Judicial Murder of Mary E. Surratt

by David Miller DeWitt

“Did you find anything at the close of it that you did not like? Why didn’t you put that record in evidence, and let us have it here?”

Stung by the necessity of making some answer to this defiant challenge, Mr. Pierrepont on the moment sent for the record. And in response to the summons, Judge-Advocate Holt, who naturally must have followed the prosecution and trial with the most absorbing anxiety, on that very afternoon brought the record “with his own hand,” “with his own voice” told its history, in the presence of “three gentlemen,” to Mr. Pierrepont, and then left the papers with him.

On the succeeding day, August 2nd, Mr. Bradley, the senior counsel of the prisoner, renewed the attack:

“It was boastfully said in the opening of this case that they would vindicate the conduct of the law officers of the Government engaged in the conspiracy trials. They would produce Booth’s diary; they would show that the judgment of the court was submitted to the Cabinet and fully approved; that no recommendation for mercy for Mrs. Surratt—that no petition for pardon to the Government—had been withheld from the President. Is it so?”

The next morning, Saturday, August 3d, Mr. Pierrepont began his address to the jury. Having kept possession of the record since Thursday afternoon, and having been made acquainted with its history by Judge-Advocate Holt in such an impressive manner, he, thus, in his exordium, at last, redeemed the promise of the prosecution:

“The counsel certainly knew when they were talking about that tribunal” (i. e. the Military Commission), “and when they were thus denouncing it, that President Johnson * * * ordered it with his own hand, that President Johnson * * * signed the warrant that directed the execution, that President Johnson * * * when that record was presented to him, laid it before his Cabinet, and that every single member voted to confirm the sentence, and that the President with his own hand wrote his confirmation of it, and with his own hand signed the warrant. I hold in my hand the original record, and no other man as it appears from that paper ordered it. No other one touched this paper, and when it was suggested by some of the members of the Commission that in consequence of the age and the sex of Mrs. Surratt, it might possibly be well to change her sentence to imprisonment for life, he signed the warrant for her death with the paper right before his eyes—and there it is (handing the paper to Mr. Merrick). My friend can read it for himself.”

This is the first appearance in public of the precious record. On Wednesday, July 5th, 1865, Andrew Johnson put his name to the death-warrant written on its back by Judge Holt. And, now, two years after, emerging from its hiding-place, it is flung upon a table in a court-room by the counsel for the United States.

Even now it seems to be destined to a most unsatisfactory publication. For the counsel of the prisoner decline to look at it, because (as Mr. Merrick subsequently explained), “he mistrusted whatever came from the Judge-Advocate-General’s office;” because it “had been carefully withheld until all opportunity had passed for taking evidence in relation to it;” and because the official report of the trial contained no recommendation of mercy. The mysterious roll of paper, consequently, lies there unopened, until Judge Holt comes to reclaim it that same afternoon; and that officer is careful, when receiving it back, to repeat over again, before other witnesses, the same history of the document, he had told before to the counsel for the prosecution, and which that counsel had just retold to the jury.

But that had been said and done which must blow away the atmosphere of unwholesome secrecy which had so long enveloped this addendum to the record. The explicit declaration of the counsel for the United States, made in a crowded court-room on so celebrated a trial, with the “identical paper” in his hand, that the President had laid the record before his Cabinet and “every single member voted to confirm the sentence,” and that the President had signed the death-warrant with the “suggestion” of commutation “right before his eyes,” was immediately published far and wide, and must have been read on Sunday, the 4th, or at latest on Monday, the 5th, by the President himself. And the President was certainly astounded. By a most singular providence, Judge Holt himself, in a letter written to himself, at his request, by his chief clerk, and published by him in 1873 for another purpose, has furnished independent proof that the President was now for the first time startled into sending for the record.

Here is what Chief Clerk Wright says: