Lincoln Conspiracy
On April 14, 1865 the Civil War was nearing the end and Abraham Lincoln, enjoying an evening at Ford's Theatre, was shot. The President died the next day. An attempt had been made to kill Secretary of State William Seward. Clearly, some sort of plot had been launched. John Wilkes Booth, the assassin, successfully escaped from the theatre and from the city and a few days later was apprehended in a Virginia barn and killed. Nine people were eventually charged with murder and conspiracy to commit murder. Under the rules of the day, if a felony resulted from a conspiracy that was originally planned to commit a misdemeanor, all of those involved would be charged with a felony (Steers 2001 210). All of the individuals captured were civilians, but they were closely involved with the Confederate cause and, in some cases, were clearly helping the Confederacy and might have been on the payroll.
Andrew Johnson, the new President, ordered that those charged with the murder be tried by a military tribunal, even though all of them were civilians and one of the accused, Mary Surratt, was female. This decision seems to have been made by Edwin Stanton, the Secretary of War. The reasons for a military tribunal in the opinion given by the Attorney General, James Speed, were that there was still martial law in the District; a Civil War was still "flagrant"; Washington was defended by fortifications; Federal soldiers served a police function by guarding public buildings and property and were or should have been guarding the President and the President's house (UMKC, Attorney General's Opinion). The federal authorities worried that they might not be able to get an unbiased jury because of the pro-Southern sympathy in the District. Under military law, the government could keep close control on proceedings (Steers 2001 210-211).
Former Attorney General Edward Bates took an opposing view and thought that the civil courts were the proper venue for this trial because of the civilian status of the alleged perpetrators and because the crime was not military in nature (Steers 2001 212). The crime of killing was murder and could be tried in a civilian court. The military tribunal won out when Attorney General James Speed described the accused as enemy belligerents. The term "enemy belligerents" will be used in the case of the World War II saboteurs. Speed added that they did not commit this murder for personal motives, but because they wanted to oppose the military effort. He gave examples of other acts that were not crimes under the civil code, but were under the Laws of War. For instance, spying is not a civil crime, but it violates the laws of war (Steers 2001 213).
Sen. Reverdy Johnson (D- MD), representing Mary Surratt, and Thomas Ewing, the counsel for Samuel Mudd and Samuel Arnold, argued that the civilian courts were open and their clients should be tried there, an argument that anticipated by a year the issue in Ex parte Milligan. The commission denied the request and, under the regulations of the tribunal, the ruling could not be appealed. Frederick Aiken, another of Surratt's attorneys, later petitioned President Andrew Johnson for a writ of habeas corpus. The President denied this appeal and said that the writ was suspended for this trial. Secrecy, one of the reasons military tribunals are used, was not a factor in this trial. After the first day, a pool of reporters was allowed to hear the proceedings that took place in the penitentiary at the Old Washington arsenal. Verbatim copies of the daily testimony were given to the prosecution and the defense and to two newspapers, the Washington Intelligencer and the Philadelphia Daily Inquirer. In this respect the trial was "open" and used the latest courtroom technology, phonology, which was a type of shorthand (Steers 2001 215).
The Judge Advocate General presided. The court consisted of nine officers who had seen combat during the Civil War. One of these officers was Major General Lew Wallace, who later was the author of Ben Hur. The Government wanted to make the case that there were two conspiracies, one that involved the Confederate leaders and the second smaller one that involved only the immediate conspirators. In terms of conviction for a crime, this was really an unnecessary approach because the doctrine of "vicarious liability" that was in effect at this period stated that someone in a conspiracy is responsible for the actions of all (Steers 2001 210). After fifty days of testimony and 366 witnesses, on June 30, six of the eight accused, including Mary Surratt, were found guilty and sentenced to hang. The sentences were reviewed by President Johnson and none was commuted. There is controversy surrounding Mary Surratt's sentence. The commission is said to have sent along a request for clemency for Surratt, but Andrew Johnson denied ever having seen this request (Steers 2001 227). The sentences were carried out a week later on July 7.
The trial of the Lincoln conspirators was conducted fairly. Attorney General James Speed's opinion on the legality of a military tribunal is eloquently expressed and logically argued. He uses the term "public enemy" to refer to the conspirators, a usage adopted by John Edgar Hoover to describe 20th century gangsters. With the exception of this term, Speed follows the reasoning and definitions found in Lieber's Code. The trial was run fairly and the defendants were allowed their full legal rights and access to competent legal counsel. For many years popular histories of the trial pictured two of the conspirators, Samuel Mudd and Mary Surratt, as innocent bystanders who had been unjustly convicted. This belief led to the military tribunal being pictured as a biased hanging jury. Careful studies of the trial transcripts and other documents by Hanchett and Steers have shown that there was ample evidence presented to justify a conviction.
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