This trial necessarily aroused the passions and prejudices engendered by the war that gave occasion for the crime of the prisoner, and could not be conducted on a strictly judicial and legal basis. It was just as impossible now, almost two years after the close of the war, as it would have been at the time of the trial by a military commission of Surratt's fellows in crime; and a conviction by a jury in a civil court was just as impossible now as it would have been then because a jury of partisans embracing those of both sides politically can never be expected to come to an agreement in a case that appeals to their partisan feelings. This case was unique then, because it was the first case of a man on trial before a civil court for the murder of the civil head of the nation, the President of the United States, and although since that time another has been tried, convicted, and executed, for the murder of a President, the case of Surratt is still unique in this, that his crime was overshadowed by a higher crime out of which it grew—the crime of treason—of being engaged in a treasonable conspiracy to overthrow his government, and yet the circumstances surrounding the case were such that this could not be alleged in the indictment, but were of such a nature that this phase of his crime could not be excluded from view.
On the day appointed for the trial of John H. Surratt a very large number of people assembled, and all were deeply interested in his case. The court house was crowded, and it was remarked by a most intelligent observer that the appearance and spirit of the crowd wore more of the air of a political convention than that of men assembled to participate in, and witness, the solemn scene of a fellow-being on trial for his life.
The trial was before Judge Fisher of the Criminal Court of the county of Washington, and District of Columbia, a man of great legal ability, sterling patriotism, and high moral character. The trial was a very lengthy one, and was hotly contested at every point by counsel for and against the prisoner. He was defended by lawyers who had made an enviable local reputation for ability in their profession. The District Attorney and his assistant were aided in the prosecution by that pure patriot and eminent jurist, Judge Edwards Pierrepont, of New York, who had been retained for that purpose by Attorney General Stanbury and William H. Seward, Secretary of State, and also by A. G. Riddle, Esq.
A deep partisan spirit was manifested by the defense from the first opening of their mouths to the close of the case. Every effort was made to drive the presiding judge from his fearless duty, but without avail. He stood firm as the adamantine rock. He was not only well qualified by his knowledge of law for his high position, but was also impartial, honest, and brave in his decisions on the very numerous questions of law and evidence that were raised by counsel during the trial. His carriage during that most notable trial must command the admiration of both friend and foe; and his decisions will ever command the respect of courts and lawyers.
The 10th day of June, 1867, was the day that had been set for calling up this case. The United States was represented by the District Attorney, E. C. Carrington, Esq., his assistant, Nathaniel Wilson, Esq., and associate counsel, Messrs. Edwards Pierrepont and A. G. Riddle. The prisoner was represented by Messrs. Joseph H. Bradley, R. T. Merrick, and Joseph H. Bradley, Jr. At the earnest solicitation of the Secretary of State and the Attorney General, and upon their representation that the trial would not last more than a week, Judge Pierrepont had consented to assist in the prosecution. He had just taken his seat in the convention which had met at Albany to make a new constitution for the state of New York and in which he had been appointed on the judiciary committee, and left his place there to take a part in this trial. He was a Democrat in politics, but loyal to the government in its struggle for the perpetuation of its life. He had filled a judicial position in his own State, was a man of great legal acumen, and was noted for his patriotism and purity of character.
At ten o'clock on the 10th day of June, 1867, the Court said: "Gentlemen, this is the day assigned for the trial of John H. Surratt, indicted for the murder of Abraham Lincoln, late President of the United States. Are you ready to proceed?" To this Mr. Bradley responded, "The prisoner is ready, Sir, and has been from the first." In this answer we have sounded forth the key-note to the spirit and policy of the defense. That candor and honesty of purpose which always characterize a judicial frame of mind, would have found their sufficient expression in the first clause of this reply. The addition of the declaratory clause, "And has been from the first" was not mere surplusage, but had in it the distinct and manifest intent of boldly assuming in advance, and in the face of all the adverse facts, the entire innocence of the prisoner. The purpose was at this first moment of opportunity to present the prisoner to the jury and to the country as one who was only anxious for an opportunity to exculpate himself from all guilt. The reader, if he chance to be of an imaginative turn of mind, will be able when he reads this clause of the reply of the learned counsel to see the assumed air of assurance and self-importance, and to hear the arrogant and confident tone of voice with which it was uttered. But without thus giving license to our imagination, the addition of that clause to Mr. Bradley's reply, when contrasted with the efforts of the prisoner to escape and evade a trial, creates an impression of a sinister design that is calculated to throw a taint of suspicion over all which is to follow in the line of the defense. We shall have abundant occasion, as we proceed with the review of this trial, to show that the suspicion which has been thus created is fully justified.
John H. Surratt, as was shown by the evidence on the trial, was in Washington on the 14th day of April, 1865, performing his part in the great crime. He was there aiding and abetting Booth, and co-ordinating the agencies employed in the execution of the plot, in order that all of the assassinations embraced in it might be simultaneously accomplished. Acting first as a counsellor and then as monitor, passing rapidly up and down the street to keep himself in communication with the fiends who were to do the work; calling the time loud enough to be heard at some distance; then going up the street to ascertain whether his warning could be heard by Payne, and the last time with a face deadly pale and manifesting a degree of nervous excitement, inseparable from the commission of such a crime, he called the fatal hour, "Ten minutes past ten!" and vanished from sight. He has gone, but he has left an image imprinted on the mind and memory of Sergeant Dye that can never be effaced. He now becomes a fugitive in disguise, and hies away to Canada to join the hellish clan that first conceived and then led him into his crime. Here he was at once taken in charge by sympathising friends, who kept him hidden away for five months and then, under a disguise and an alias, sent him across the Atlantic, and finally to Italy.
Here he is found in the Pope's army, and being charged with his crime, which he has already confessed in words as well as by flight, is arrested, escapes from his guards, flies to Naples and thence to Egypt, is met and arrested at Alexandria, and brought back to the scene of his crime, and is now put upon his trial. When asked if he is ready, he replies through his counsel, "I am ready, and have been from the first." Why, then, did he leave the city of his home, his mother and sister and all of his youthful associations, in the early morning of the 15th of April, 1865? Why did he fly to Canada disguised as an English tourist? Why did he hide in Canada for almost half a year, and then, in disguise, and under an alias, flee to Europe? Why did he escape from his guards in Italy at the risk (?) of his life, and flee to Egypt? Why, if innocent, did he flee to the ends of the earth, and never cease his flight until his way was hedged before him and further flight was impossible? Was it because he was innocent and desired an opportunity to prove his innocence to the world? In the presence of all these facts, what a mistake it was to say, "And has been from the first." In how much better taste it would have been to have simply replied, "The prisoner is ready, your honor."
The District Attorney replied as follows: "If your honor please, I am happy to be able to announce that the government is ready to proceed with the trial. Before we proceed, however, sir, to impanel a jury, we desire to submit a motion to the court, which motion we have reduced to writing. With the permission of the court I will now proceed to read it to your honor. It is as follows:—
IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
United States against John H. Surratt.
Indictment, Murder.
And now, at this day, to wit, on the 10th day of June, A.D. 1867, come the United States and the said John H. Surratt, by their respective attorneys; and the jurors of the jury impanelled and summoned also come; and hereupon the said United States, by their attorney, challenge the array of the said panel, because he saith that the said jurors comprising said panel were not drawn according to law, and that the names from which said jurors were drawn were not selected according to law, wherefore he prays judgment, and that the said panel may be quashed." This motion, if your honor please, is sustained by an affidavit which I hold in my hand, and which, with the permission of your honor, I will now proceed to read. We think after this affidavit shall have been read it will be found unnecessary to introduce any oral testimony."