Assassination of Lincoln: a History of the Great Conspiracy / Trial of the Conspirators by a Military Commission, and a Review of the Trial of John H. Surratt

by T. M. Harris

The fourth count charged that John Wilkes Booth, John H. Surratt, David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt, and divers other persons to the jury unknown, on the 14th day of April, 1865, at the county of Washington, District of Columbia, did unlawfully and wickedly combine, confederate, and conspire and agree together feloniously to kill and murder one Abraham Lincoln, and that the said John Wilkes Booth, John H. Surratt, David E. Herold, George A. Atzerodt, Lewis Payne, Mary E. Surratt, and other persons to the jurors unknown, did, on the 14th day of April, 1865, in pursuance of said unlawful conspiracy, make an assault, and that the said John Wilkes Booth, in pursuance of said unlawful and wicked conspiracy, did kill and murder one Abraham Lincoln.

It will be noticed that the legal allegations designating the crime used in this indictment are the same as are used in the charge and specifications on which Surratt's co-conspirators were arraigned and tried before the Commission, except that the word "traitorously," there used, is omitted in this indictment. This indictment in its first count charged the prisoner on trial with the murder of Abraham Lincoln. This was done on the principle that when two or more persons conspire together to do an unlawful act, or to do that which is lawful by unlawful means, the act of any one of the parties thus conspiring, in pursuance of said conspiracy becomes the act of all. They are held equally guilty in law. To make this count good, it was only necessary to prove the existence of a conspiracy to do this murder—that it was done by one of the conspirators, and that the person indicted was a member of said conspiracy at the time the murder was committed, and that he aided and abetted and performed his part, whatever that might be, in accomplishing the object of the conspiracy. The second count charges that Surratt and Booth murdered Abraham Lincoln, and that the murder was actually accomplished by the hand of Booth. This implies that they acted together for the accomplishment of the crime and would be made good only by proving the presence of John H. Surratt at the time and place of its commission, and that he was there aiding and abetting Booth in the alleged murder. The third count simply enlarges the conspiracy by designating others known to have been included in its membership, alleging also, that there were still others belonging to it, who were unknown to the jury, and that in pursuance of its object and purpose the murder was done by the hand of one of its members.

The fourth count more distinctly and emphatically alleges the combining, confederating, conspiring, and agreeing together of these persons to do this murder, and that it was so done by one of its members, viz., Booth. This would require proof to be made of such combination and agreeing together to commit this crime on the part of the persons named in the indictment; that the crime was perpetrated, and that the prisoner was a member of said conspiracy at the time of its perpetration. It will be remarked that in addition to the word "traitorously," used in the charge and specifications against the members of this conspiracy who were tried before the Commission, the political purpose of the conspiracy, as there alleged, is here omitted.

The real purpose of the conspiracy was to aid the existing rebellion in its purpose and effort to overthrow the government by assassinating the President, Vice-President, Secretary of State, and the general in command of the armies of the United States.

The parties tried before a military commission were tried under the laws of war, during a state of war, and were brought under the jurisdiction of a military tribunal because they were secret active enemies of the government, and were engaged in an effort to aid the rebellion. This required that the word traitorously should be used, and that the treasonable purpose of the conspiracy should be alleged. This member of the conspiracy was indicted for his participation in this crime; but he had made good his escape, and had not been brought within the jurisdiction of the authorities that could hold him to account until long after the rebellion had been suppressed, and peace had been declared; and under the political policy which had been adopted by the government in dealing with the question of treason and traitors in connection with the war, he could only be indicted for his crime, as it was a violation of civil law. Hence these omissions in framing this indictment.

The case is unique in the history of American jurisprudence. A number of his co-conspirators had been tried before a military commission under an arraignment that fully set forth, not only the crime of murder and a conspiracy to murder, but also the fact that it involved much more than the mere killing of a man—a private individual—that it was a conspiracy to murder the President of the United States, a treasonable conspiracy to subvert the government. It was a blow aimed at the nation's life. He who murders the humblest citizen sets at naught God's image impressed on man at his creation, and so commits a crime not only against a fellow man and a crime against society, but a crime against God. When Noah became the new head and progenitor of the race after the flood, God, who had just destroyed the world of mankind because they had filled the world with violence and blood, gave this law: "Whoso sheddeth man's blood by man shall his blood be shed; for in the image of God created he him." God is also the author of civil government, as we read in the thirteenth of Romans: "Let every soul be subject to the higher powers, for there is no power but of God. The powers that be are ordained of God." Here we learn that civil government is the ordinance of God; and so he who assassinates a ruler, not only sets at naught God's image in man, but despises his ordinance for the welfare, protection, and peace of society.

This treasonable aspect of his crime, although it could not, for the reasons stated, be embraced in his indictment, yet, as we shall see, was a matter of which the court and jury could take judicial cognizance.

Here we have a man on trial for participation in the murder of a President; yet, in his indictment, he is only charged with the murder of one Abraham Lincoln. His fellow conspirators had been convicted of murdering Abraham Lincoln, President of the United States, and Commander-in-Chief of the armies and navy of the United States, and of attempting to kill William H. Seward, Secretary of State of the United States, and lying in wait to kill Andrew Johnson, Vice-President of the United States, and Ulysses S. Grant, commander in the field of the armies of the United States, for the purpose of overthrowing the government of the United States in aid of the existing rebellion. Under this charge they had been condemned and some of them executed. This was the result of a military trial in time of war.

This trial had been denounced by every rebel sympathizer in the land. Great lawyers and statesmen had argued with vehemence that these assassins had been tried by an unconstitutional tribunal. The dead President had been denounced as a tyrant, and usurper of authority; one who had trampled under foot the Constitution he had sworn to protect and defend by proclaiming martial law, and suspending the writ of habeas corpus; and even in prosecuting a war to compel rebellious States to submit to the lawful authority of the government, and now they would tie up the hands of the government by insisting that it could only try these traitorous assassins, constitutionally, before a civil court. The country stood divided on this contention, just as it did on the issues of the war, and partisan feeling ran as high in this discussion as it did on the right of secession or the right of the government to compel submission to its authority.

The sophistry of this reasoning, when applied to a time of war, was made apparent by the results of this trial of John H. Surratt before a civil court, in time of peace. No government could protect itself under such a construction of the Constitution, because no government could ever convict a traitorous assassin before a jury made up of its enemies as well as its friends.