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

As this is a question of the gravest importance we all ought to know whether, as claimed twice in the arguments of defendant's counsel, the military commission which tried the conspirators and assassins has been decided by the Supreme Court of the United States to have been an illegal tribunal. Judge Pierrepont, as we have seen, asserts boldly that in his judgment no such decision had ever been given by that tribunal, or ever would be. That the counsel for the defense did not really so understand it he clearly shows by the fact that they had never asked for a writ of habeas corpus in behalf of those who were working out the sentence of the commission. To his opinion I will now add that of Judge Fisher as given in his charge to the jury. It is as follows:—

"You have been told, gentlemen, in the argument of this case, that those who were tried before that military commission, and hung upon its findings, were themselves the victims of a base and disgraceful conspiracy to murder. Brave, gallant, and honest soldiers of their country have been held up before you as inhuman butchers of innocent men. It has been said in support of this denunciation, that the Supreme Court of the United States have, in the case of Milligan, declared that the military court which tried Herold and others for the murder of Abraham Lincoln was an illegal tribunal, organized without law, without right, and without warrant in the Constitution—a mere convocation of military men, having no right to try the cause committed to them by President Johnson; and it has been said that it was convoked not to try but to condemn.

"In my humble judgment the Supreme Court has made no such decision. If so, why have not the prisoners now confined upon the Dry Tortugas for complicity in the greatest crime of the age been released from their confinement? They have sympathizing friends enough to have applied any such decision in the direction of their deliverance, and they would not have remained there a week after the decision had been made to the effect that they were unlawfully restrained of their liberty. If I understand the decision in Milligan's case aright, it went upon the ground that the commission which tried Milligan was not organized in obedience to the act of Congress providing for the punishment of such crimes as he was charged with committing, and the opinion of the majority of the court went upon the additional ground that no hostile foot had ever pressed the soil of Indiana at the time when he was arraigned before a military tribunal there, and that, therefore, that tribunal which condemned him for acts of treason committed in that State had no authority to try him, notwithstanding the whole nation was involved in the most terrible struggle for its life. The majority opinion being thus predicated upon a misapprehension of historic truth, we could not, perhaps, have looked for a more rightful deduction.

"Unprepared, however, as all loyal hearts were for such an announcement, the American people would be even yet more astounded to have it declared by any court in this country that the commander-in-chief of the army and navy, the President of the United States, has not the power in time of war to institute a military commission for the purpose of trying a gang of spies and traitors who have found their way within the intrenched encampments of the nation's capital to take the life of the chief of the army and navy, to assassinate all the heads of the executive departments, in the interest of the pretended government with which the federal government was engaged in war. They who maintain such a doctrine profess to defend it upon the ground that no such power is delegated by the constitution, as they did who could find no warrant there to coerce seceding States into submission to the federal authority; but the day has passed by when honest statesmen will longer, if they ever did, regard the sovereignty of the federal Union as possessing no powers save those expressly enumerated in the Constitution.

"The government of the United States was doubtless created by the adoption of the Constitution. But when it had once been spoken into being it stood upon the same level with other nations, and was clothed with all the powers incident to an independent sovereignty under the laws of nature and of nations, and among these was the power, in time of war or great public emergency, to arrest and inflict upon spies and traitors the most summary punishment, whenever and wherever the strong hand of military justice can be laid upon them. It is a power incident to the right and duty of self preservation, and ought to be exercised, just as the individual owes it to himself to strike down the assassin who is feeling for his heartstrings, without waiting to lose his own life, in order that the courts of justice may, at their leisure, proceed to try the felon according to the formularies of the law and the Constitution. The right of self-defense needs not to be inscribed upon parchment, either for individuals or for sovereign states. The Almighty impressed this right and duty upon the hearts and minds of men long before he wrote the decalogue upon the tables of stone. To say that this government has not the power in time of war to exercise this great duty of self-preservation, for want of warrant in the Constitution, is to condemn the action of the government in acquiring from France and Spain and Mexico and Russia territory lying far beyond the limits of the original thirteen States, because such power of acquisition and growth is not provided for by the Constitution. Both these powers are but the incidents of sovereignty, requiring no warrant in written governmental charter; they are derived from the common law of nations, and are co-existent with sovereignty.

"But with this military commission, gentlemen, you have no concern at this time; whether it was a legal or illegal tribunal, is not the matter on which you are now called to decide. The oath that you have taken requires that you shall 'well and truly try, and true deliverance make between the United States of America and John H. Surratt, the prisoner at the bar, whom you have in charge, and a true verdict give according to your evidence.' The prisoner stands before you indicted for the murder of Abraham Lincoln on the 14th day of April, 1865, in this city. About the time and place and manner of the death of your late President no controversy has been made in the case. If there had been your recollection of a nation in tears, and of a whole civilized world in mourning would have revived your memory of the sad and terrible fact. The only question, therefore, for you to determine is, whether the prisoner at the bar participated with John Wilkes Booth and the others named in the indictment, or either or any of them, in the diabolical crime. If, from all the evidence in the case, your minds shall be convinced beyond a reasonable doubt growing out of that evidence that the prisoner did co-operate with them; if that shall have produced a moral conviction in your minds that the prisoner did participate in the conspiracy to murder, or in a plot to do some unlawful act which resulted in this foul murder, no consideration as to the legality or illegality of the tribunal which tried the prisoner's mother; no feelings of sympathy for other members of the family; no consideration of his youth, or that other lives have already been forfeited for the crime, should for a single moment, tempt you to step aside from the plain pathway of duty."

The last paragraph quoted is directed to some of the many artful appeals made to the political prejudices or to the feelings of the jury to swerve them from the duty devolved upon them by their oath. The former paragraphs may well be said to set at rest forever the question of the right of a government to defend its life when the occasion requires it by sending offenders against its life before a military commission for trial. This question may be taken as settled, as is the question of the right of the federal government to coerce into submission a refractory State. The opportunity thus sought by the prisoner's counsel to foist upon the public mind the assertion that the Supreme Court of the United States had made a decision denying to the government this right, thus gave occasion not only for denying that such opinion had ever been delivered, but also for showing that it never could be.

It will be remembered that for reasons heretofore given the crime charged in the indictment was simply that of murder—the murder of Abraham Lincoln.

The fact of his being, at the time of his murder, the President of the United States was not mentioned. The treasonable purpose of that murder was also omitted no reference being made to the political reasons that moved the conspirators to the commission of the crime. The counsel for the defense contended most earnestly that because of these omissions the fact of the official position of Abraham Lincoln and of the political motives that inspired the crime could not be taken into consideration in the trial of the prisoner. They argued that it must be regarded in law simply as the murder of a man, and as a crime no more henious in character than the murder of the humblest citizen. Had the crime of treason been alleged in the indictment the defense would have been entitled to have a list of the witnesses by whom the government expected to prove the crime in advance of the trial; and it would have taken two witnesses to have established an overt act. The defense contended that because they were not entitled to these advantages under this indictment the prosecution could derive no advantages from the consideration of these facts; and that the case must be treated simply as a case of murder. The spirit of their argument would rather indicate that they really regarded it in the same light that Miss Anna Surratt did, as "nothing more than the death of the meanest nigger in the Union army."[32] The following is Mr. Pierrepont's reply to their argument on this point:—

"Our learned friends on the other side have told us, in the progress of their argument, that they could not subscribe in the least degree to the doctrine that it was a higher crime to conspire against the government of the United States, and through that conspiracy commit a murder upon the Chief Magistrate, than it was to murder the humblest vagabond in the streets, or words to that effect. Now that is not the doctrine of a statesman; it is not the doctrine of the Bible; it is not the doctrine of the law. It is a far more heinous crime to conspire against the government of the United States and to murder its President for the purpose of bringing anarchy and confusion on the land, than to murder a single individual. It is because its consequences are so much more terrible. It is because it is involving the lives of hundreds and of thousands. It is because it is involving considerations affecting the stability, the protection, the life, and the liberty, it may be, of a nation. The law of England, which I have cited, but which it would seem, my friends have not read, lays it down, and without a statute, but as the common law, that it is a crime of such heniousness as to admit of no accessories.