"—— ——, one of the accused, asks that he be tried separate from those who are charged with him, for the reason that he believes his defense will be greatly prejudiced by a joint trial."
The Commission overruled the application for severance. The accused then severally plead:—
To the specifications, "Not guilty."
To the charge, "Not guilty."
The considerations on which the motion for severance was overruled were, that the charge alleged a conspiracy on the part of the persons accused and on trial, with others unknown, unlawfully, maliciously, and traitorously to kill and murder the President and others. The fact of entering into a conspiracy to do unlawful acts gives to the associated body, in law, an individuality; personality is merged in the common purpose of those thus combining themselves together, and so the declaration or act of any one of them, touching the accomplishment of the common purpose, becomes the declaration or act of all. The guilt is equally shared by all. If the government could not sustain the charge of a conspiracy, then none of the accused could be found guilty of entering into a conspiracy as alleged. The fact of a conspiracy being established, it only remained to be shown in each case that the accused was a member of it; proving this, he would be held to be a sharer in the guilt, although not present at the commission of the crime; but failing to establish the fact of his belonging to the conspiracy, his innocence must be legally admitted. In other words he could not be found guilty. There can in law be no severance of an individuality; and so the application for a separate trial was denied, or overruled.
On the demurrer to the jurisdiction of the court, the Commission held that it could not admit this to be a question that it could properly take under its consideration. To the executive department of the government alone belonged the decision of this question as to the kind of trial that the accused should have; and the President, after maturely considering it in the light of the Constitution and the related facts, and after having submitted it to his Attorney General for his opinion, accepting that opinion as the correct conclusion of his very exhaustive argument, embracing all the Constitutional questions involved, had determined that these parties were offenders against the laws of war, as their offense was the act of secret, active participants in the existing hostilities, and committed with a deep political intent, the purpose of which was to give aid to the existing rebellion, and so, justly, under the Constitution, subjecting them to law martial, and trial by a military commission. The President, being ex-officio Commander-in-Chief of the armies of the United States, had the right to order a detail of officers to constitute such court, and by order to specify the duties required of them. Their duty as officers of the army required of them simply obedience to the orders of the President of the United States and to those over them in the organization of the military arm of the government. To this they were bound by the solemn obligations of their official oath. To have entertained this question would have been an act of disobedience, subjecting them to discipline; to have refused to serve would have been an act of mutiny. The officers composing this court were, according to the biographers of President Lincoln (Nicolay and Hay) "not only officers high in rank, but of unusual weight of character"; they had been thoroughly schooled in military discipline, and so recognized the duty of obedience to orders as the first duty of a soldier. It was not any part of their duty to discuss the wisdom, propriety, or legality of an order before entering upon the act of obedience. Their duty was simply to obey, and for this they were properly held responsible. The order of detail assigned to them the specific duty of trying the accused under the charge and specifications prepared against them by the government, and so, as loyal, obedient soldiers, loving their country and having faith in its government, they had nothing to do but to enter upon and discharge the duties for which they had been detailed.
As before stated, the Hon. Reverdy Johnson, a United States Senator from Maryland, volunteered to defend Mrs. Mary E. Surratt, selecting her for his client that he might have the benefit, for the purpose of his argument, of the sympathy which we all naturally feel for her sex. It was not his purpose to defend her any more than any other one or all of the prisoners, as he addressed himself simply to the task of arguing the question of jurisdiction. His real object was, evidently, to get himself before the Commission, that he might arraign the martyred President before the country and before the world, and denounce his acts for the prosecution of the war as unconstitutional and tyrannical usurpations of power. He made a lengthy, and from the stand-point of the right of secession, able argument against the right to try these cases before a military tribunal. The Commission was made up largely of men sufficiently versed in constitutional law, as well as the laws of nations and of war, to be little influenced by his sophistries. Their position towards the government on these questions had placed them where they were, as officers in its military service, and they could not be swerved from the loyal discharge of their duty. The reply of the Hon. John A. Bingham to the sophistries of the honorable senator, is a masterpiece of logical reasoning, as also of forensic eloquence and legal acumen, and will well repay the careful study, not only of every student of law, but of every young man who has an ambition to become intelligent in matters of public interest, involving the rights, duties, and privileges of the citizen in time of peace and in time of war.
It will be found not only thoroughly learned and exhaustive of all questions involved, as a legal argument, but also the very embodiment of patriotic devotion to our free institutions of government, and to the cause of civil liberty, justice, humanity, and moral progress.
The Commission was diligently engaged in the trial of the prisoners from the 11th day of May until the 30th day of June, a period of about seven weeks being consumed in hearing the testimony and the motions and arguments of counsel. As I have given, in narrative form, the facts proven against each of the accused, as they stood unimpeached and uncontroverted by testimony given in defense, in giving the history of their arrest, it is unnecessary that I should give it formally, as it appears upon the record of the trial.
After maturely deliberating on the evidence adduced in the case of each of the accused, the findings of the Commission were as follows:—