Joseph Holt Judge Advocate General
[The Controversy between President Johnson and Judge Holt.]
A Paper read by Gen. Henry L. Burnett, late U. S. V., at a Meeting of the Commandery, State of New York, Military Order, Loyal Legion, April 3, 1889.
Perhaps no incident connected with the trial of the assassins of President Lincoln created more general interest—was so much discussed and commented upon by the public press, or aroused deeper feeling of antagonism and bitterness between two public men, than the charge by President Johnson that the Judge Advocate General, Judge Holt, had withheld or suppressed the recommendation to mercy of Mrs. Surratt, signed by five members of the commission, when he represented to him, the President, the record for his official action. While this charge had circulation and was asserted in the press during the time Mr. Johnson was occupying the presidential office, Mr. Johnson never openly made the charge until after his term had expired, some time in 1873.
No graver charge could be made against a public officer than this against Judge Holt, and, if true, no more cruel and treacherous betrayal of a public trust was ever committed by a man in high official position. It would be murderous in intent and effect. This charge rested, so far as human testimony went, upon the solemn assertion alone of President Johnson, and, if untrue, was one of the most cruel wrongs ever perpetrated by one man against another. I propose to give a brief abstract of the testimony produced by Judge Holt to disprove this charge, and also a statement of my connection with, and what little personal knowledge I had of the matter.
In a communication addressed to the Washington Chronicle, dated August 25, 1873, Judge Holt gives a copy of a letter addressed by him to the Secretary of War, on the 14th of that month, in which he sets forth evidence tending to disprove the charge originating with Andrew Johnson, of his suppression of the petition, signed by five of the nine members of the commission, recommending, in consideration of her age and sex, a commutation of the death sentence of Mary E. Surratt to imprisonment for life in the penitentiary. The petition read as follows: "To the President: The undersigned, members of the military commission appointed to try the persons charged with the murder of Abraham Lincoln, etc., respectfully represent that the commission have been constrained to find Mary E. Surratt guilty, upon the testimony, of the assassination of Abraham Lincoln, late President of the United States, and to pronounce upon her, as required by law, the sentence of death; but in consideration of her age and sex, the undersigned pray your Excellency, if it is consistent with your sense of duty, to commute her sentence to imprisonment for life in the penitentiary."
In a letter dated February 11, 1873, addressed to Hon. John A. Bingham, one of the special Judge Advocates during the trial, Judge Holt states: "In the discharge of my duty when presenting that record to President Johnson, I drew his attention to that recommendation, and he read it in my presence, and before approving the proceedings and sentence. He and I were together alone when this duty on his part and on mine was performed.... The President and myself having, as already stated, been alone at the time, I have not been able to obtain any positive proof on the point, although I have been able to collect circumstantial evidence enough to satisfy any unbiased mind that the recommendation was seen and considered by the President, when he examined and approved the proceeding and sentence of the court. Still, in a matter so deeply affecting my reputation and official honor, I am naturally desirous of having the testimony in my possession strengthened as far as practicable, and hence it is that I trouble you with this note. While I know that the question of extending to Mrs. Surratt the clemency sought by the petition was considered by the President at the time mentioned, I have, in view of its gravity, been always satisfied that it must have been considered by the Cabinet also; but from the confidential character of Cabinet deliberations I have thus far been denied access to this source of information." He then proceeds to inquire whether or not he (Judge Bingham) had any conversation with Secretary Seward or Mr. Stanton in reference to this petition, and if so to please give him as nearly as he (Judge Bingham) could, all that Secretary Seward or Mr. Stanton had said upon the subject.