The examination of witnesses was conducted on the part of the government by the Judge Advocate and by counsel on the part of the accused. The evidence was taken down by short-hand reporters who were sworn to record the evidence faithfully and truly, and not to communicate the same, or any part of the proceedings on the trial, except by authority of the presiding officer. They were required to furnish a copy of the evidence taken each day to the Judge Advocate, and also a copy to prisoners' counsel. No reporters except the official reporters were allowed access to the court-room. The Judge Advocate, however, was allowed to furnish to the agent of the Associated Press, at his discretion, a copy of such testimony and proceedings as might be published during the trial without injury to the public and to the ends of justice. All other publication of the evidence and of the proceedings during the trial was forbidden, and was to be dealt with as a contempt of court. The testimony being closed, the case was to be immediately summed up by one judge advocate, selected by the Judge Advocate General, to be followed or opened, if the Judge Advocate General so selected, by counsel for the prisoners, and the argument closed by one judge advocate.
The argument being closed, the court was to proceed immediately to deliberate and make its determination. The provost marshal was required to have the prisoners present during the trial, and was held responsible for their safe keeping. Their counsel was permitted to hold communication with them in the presence, but not in the hearing, of the guard. Counsel for the prisoners were required to furnish immediately a list of witnesses required for the defense of their respective clients to the Judge Advocate General, who procured their attendance in the usual manner. At the meeting of the Commission on May the 11th, Samuel A. Mudd asked permission to introduce Frederick Stone, Esq., and Thomas Ewing, Jr., Esq., as his counsel. Mary E. Surratt asked to introduce Frederick Aiken, Esq., and John W. Clampitt, Esq., as her counsel, which applications were granted by the court. At its meeting on May 12th, David E. Herold asked to introduce Frederick Stone, Esq., as his counsel; Samuel Arnold asked to introduce Thomas Ewing, Jr., Esq., as his counsel; George A. Atzerodt asked to introduce William E. Doster, Esq., as his counsel; Michael O'Laughlin applied for permission to introduce Walter S. Cox, Esq., as his counsel; Lewis Payne asked to introduce William E. Doster, Esq., as his counsel; Edward Spangler applied for permission to introduce Thomas Ewing, Jr., Esq., as his counsel; which applications were granted, and Messrs. Doster and Cox, having first taken the oath prescribed by act of Congress approved July 2d, 1862, in open court, appeared accordingly. The accused, Mary E. Surratt, applied for permission to introduce Hon. Reverdy Johnson as additional counsel for her, and permission being granted, he appeared accordingly. The admission of Mr. Johnson was objected to by the author, a member of the court, on the ground that he had very light views of the obligations of an oath, and in proof of this, reference was made to an open letter to the people of Maryland, written a few months previously by the honorable gentleman, in which he advised them to take the oath prescribed by the late Constitutional Convention of that State as a qualification for the exercise of the right of suffrage in the adoption or rejection of the amended Constitution, in which letter he took the ground that as the convention had transcended its power in prescribing such an oath, which in effect was intended to exclude all disloyal persons from participation in this right of citizenship, it carried in it no moral obligation; and that they might therefore take it as a matter of indifference, even though they were disloyal. The honorable gentleman at first treated this objection to his appearance with great hauteur of manner, and appeared to be astonished that an obscure officer in the army, whom nobody knew, should presume to arraign a man in his position as incompetent to appear before such a court. He was answered by the president of the Commission, who said, that had not General Harris raised this objection he had intended doing so himself. The honorable gentleman, seeing that there was danger of his exclusion from the court, and that it could not be bluffed, immediately came down from his high horse, and in a very respectful manner entered into a lengthy explanation of the letter referred to, which explanation did not put a better face on the matter, but as he in closing emphatically declared that he did recognize the moral obligation of an oath, the objection was withdrawn, and he was admitted and appeared accordingly. The accused severally then asked, for the time, to withdraw their plea of "Not guilty," heretofore filed, so that they might plead to the jurisdiction of the court.
This being granted, they offered the following plea to the jurisdiction of the court:—
"—— ——, one of the accused, for plea says that this court has no jurisdiction in the proceedings against him, because he says he is not, and has not been, in the military service of the United States.
"And for further plea, the said —— —— says that loyal civil courts, in which all the offenses charged are triable, exist, and are in full and free operation in all the places where the several offenses charged are alleged to have been committed.
"And for further plea, the said —— —— says that the court has no jurisdiction in the matter of the alleged conspiracy, so far as it is charged to have been a conspiracy to murder Abraham Lincoln, late President of the United States, and William H. Seward, Secretary of State, because he says said alleged conspiracy, and all acts alleged to have been done in the formation and in the execution thereof, are in the charge and specifications alleged to have been committed in the City of Washington, in which city are loyal civil courts in full operation, in which all said offenses charged are triable.
"And the said —— —— for further plea says this court has no jurisdiction in the matter of the crime of murdering Abraham Lincoln, late President of the United States, and William H. Seward, Secretary of State, because he says said crimes and acts done in execution thereof are, in the charge and specifications, alleged to have been committed in the City of Washington, in which city are loyal civil courts, in full operation, in which said crimes are triable."
In answer to this plea the judge advocate presented the following replication:—
"Now come the United States, and for answer to the special plea by one of the defendants, —— ——, plead to the jurisdiction of the Commission in this case, say that this Commission has jurisdiction in the premises to try and determine the matters in the charge and specifications alleged and set forth against the said defendant, —— ——.
"J. Holt,
"Judge Advocate General."
The court was then cleared for deliberation, and on being reopened the Judge Advocate announced that the pleas of the accused had been overruled by the Commission. The accused then made application for severance as follows:—