The Judicial Murder of Mary E. Surratt

by David Miller DeWitt

But Andrew Johnson was not the only interested personage who read the explicit declaration of Mr. Pierrepont. The statement that every member of the Cabinet voted to confirm the sentence of Mrs. Surratt, with the record, including, of course, the recommendation, before them, must have been read also by William H. Seward, Edwin M. Stanton, Hugh McCulloch, and Gideon Welles, the members of that “full Cabinet” who still remained in office. They surely knew the truth of the statement, if it was true, or its falsity, if it was false. If it was true, is it not perfectly inconceivable that the President, conscious that these four of his confidential advisers had seen the record and voted to deny the petition, would have dared to enact the comedy of sending for the record, and then brazenly assert that the petition had not been attached to it when before him, and that he had neither seen nor read it?

And if he had been guilty of so foolhardy a course of action, now was the time for the Judge-Advocate to fortify the declaration which he had inspired Mr. Pierrepont to make, by appealing to these members of the Cabinet to confront their shameless chief with their united testimony, and forever silence the “atrocious accusation.”

From his course of proceeding at a later day, it is not probable that he made any such attempt. At all events, he got no help from Seward, from McCulloch or from Welles. Nay, he got no help to sustain his history of the record, even from Stanton. If help came from that quarter at all, it was to shield him from the awakened wrath of the hood-winked Executive, by drawing the fire upon the head of his department.

But what the Judge-Advocate-General did do, in view of the crisis, is sufficiently apparent. He took immediate measures to retract all that portion of Mr. Pierrepont’s declaration of Saturday, which expressed or implied any knowledge on the part of the Cabinet of the disputed paper.

The counsel for the United States had continued his speech to the jury all day Monday, apparently unconscious of the tempestuous effect of his statement of Saturday, and of the predicament in which it had involved his informant. In the evening, he must have had a “confidential interview” with Judge Holt. For, on rising to resume his speech on Tuesday morning, the 6th of August, from no apparent logical cause arising from the course of his argument, he saw fit to recur to the now absent record, and to interpolate the following perfectly insulated and seemingly superfluous piece of information:

“You will recollect, gentlemen, when a call was made several days ago by Mr. Merrick * * asking that we should produce the record of the Conspiracy Trial, that I brought the original record here and handed it to counsel. I then stated that as a part of that record was a suggestion made by a part of the Court that tried the conspirators, that, if the President thought it consistent with his public duty, they would suggest, in consideration of the sex and age of one of those condemned, that a change might be made in her sentence to imprisonment for life. I stated that I had been informed that when that record was before the President, and when he signed the warrant of execution, that recommendation was then before him. I want no misunderstanding about that, and I do not intend there shall be any. That is a part of the original record which I here produced in Court. It is in the hand-writing of one of the members of that Court, to wit, General Ekin. The original of that is now in his possession and in the hand-writing of Hon. John A. Bingham. When the counsel called for that record, I sent the afternoon of that day to the Judge-Advocate-General, in whose possession these records are. He brought it to me with his own hand, and told me with his own voice, in the presence of three other gentlemen, that that identical paper, then a part of the record, was before the President when he signed the warrant of execution, and that he had a conversation with the President at that time on the subject. That is my authority. Subsequently to this, having presented it here, the Judge-Advocate-General called to receive it back, and reiterated in the presence of other gentlemen the same thing. That is my knowledge and that is my authority.”

Here we have, then, the final statement of his side of the case, made by Judge Holt, through the mouth of counsel, revised and corrected under the stress of the occurrences at the White House and the negatory attitude of the members of the Cabinet present on the spot. Stripped of the allegation that the record was laid before the Cabinet and voted upon by every member of the Cabinet, its affirmations, carefully confined to “the confidential interview” between the President and the Judge-Advocate, go no farther than that “the identical paper” was “before the President,” when he signed the death warrant, and they had a conversation “on the subject.”

“He wants no misunderstanding” and does “not intend there shall be any.” The counsel in great detail relates how he came by his facts. “That is my knowledge and that is my authority.” Of course it is open to everybody to believe, if he choose, that the talk of the Cabinet meeting and of the unanimous vote of its members against the petition, was a mere rhetorical exaggeration of a simple narrative of Holt relating the incidents of an interview between the President and himself, struck off by Judge Pierrepont in the full fervor of his eloquence; but, nevertheless, it remains true that the Judge-Advocate, until the catastrophe befell, was satisfied it should stand, rhetoric and all; because he “reiterated the same thing” on Saturday, after the counsel had concluded his statement, and on Monday the counsel continued his address all day without being advised of the necessity for any retraction.

Be this as it may, there is now, at the last, no appeal by the Judge-Advocate to the members of the Cabinet, all of whom were living, as witnesses to the President’s knowledge of the petition of mercy. He abandons hope of corroboration from members of the Cabinet, and he takes his stand upon the single categorical affirmation, that the “identical paper” formed part of the record when the record was before the President in 1865.

And, singular as it may appear, this is the very thing that the President does not categorically deny; he only infers the contrary from the appearance of the record in 1867.