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Good Friday was the day Of the Prodigy and crime, When they killed him in his pity, When they killed him in his prime. . . . There is sobbing of the strong, And a pall upon the land; But the People in their weeping Bare the iron hand; Beware the People weeping When they bare the iron hand. — “The Martyr,” by Herman Melville Easter week, 1865, was both the happiest and the saddest week in the history of the United States. On Palm Sunday, April 9, Confederate General Robert E. Lee surrendered at Appomattox. Everyone knew the war would soon be over. The celebrations in the North seemed like they would never end — but they did. At 10:15 p.m. on Good Friday, April 14, actor John Wilkes Booth stepped into Box 7 in the balcony of Ford’s Theatre and fired a single shot into the back of the head of President Abraham Lincoln. Booth thought General Ulysses Grant would be there, too, but in his stead sat Maj. Henry Rathbone and his fianc�e, Clara Harris. Booth sliced Rathbone on the arm with a knife, delivered his line — “Sic semper tyrannis” — jumped to the stage breaking his leg, hobbled out a back door, mounted his horse, and rode to Maryland via a bridge over the Anacostia River at the Navy Yard. Lincoln died the next morning. The country’s shock and sorrow from events of that week would have profound effects. Political and military leaders, looking for someone to blame, focused on Booth and a collection of real and imagined conspirators. After a brief investigation, eight suspects, all civilians, were summarily tried by a special military commission and found guilty. But, the hasty investigation, military trial, and unfair treatment of the accused compounded the tragedy of Lincoln’s death and made a mockery of the rule of law. For 136 years after the fact, debate has continued about whether justice was served. Minutes before Booth entered Box 7 and a few blocks away at Lafayette Park across from the White House, Lewis Payne talked his way into the home of Secretary of State William Seward. Seward was in bed recovering from a carriage accident. Payne, a handsome but dimwitted giant of a man, slashed at Seward repeatedly, leaving him permanently disfigured, fractured the skull of Seward’s son Frederick, stabbed a State Department messenger in the chest, bloodied Seward’s male nurse, Sgt. George Robinson, and wrestled with Seward’s son Frank and daughter Fanny before fleeing. A third man, George Atzerodt, was supposed to kill Vice President Andrew Johnson that night. Earlier in the day, Atzerodt had checked into the Kirkwood House, a hotel at 12th and Pennsylvania where Johnson lived. Atzerodt stashed a knife and gun in his room. In the evening, he went to the hotel bar to muster his courage but, as was usually the case with the poor German immigrant, he never found it. He left the hotel without accomplishing his mission. Secretary of War Edwin McMasters Stanton was the most powerful man in the Lincoln administration. He had prosecuted the war, and he would capture and prosecute the men involved in what he saw as a desperate, last-minute conspiracy to win the war through assassination. Stanton ordered the army to seal off Washington. He sent cavalry out in all directions to bring in Booth and the others. And he personally deposed witnesses that very night. Stanton ordered the police in Washington to launch an investigation. They quickly made the embarrassing discovery that they had received a tip in February about Booth and a nest of conspirators. A team of detectives from New York City came down to help. The result was the wholesale arrest and detention of suspects and their relatives, of witnesses, bystanders, prostitutes, and vagrants, of anyone else who seemed suspicious, and of the guiltless. So wide-ranging was the dragnet that the three brothers who owned the theater — John, James, and Harry Ford — were imprisoned merely for knowing Booth, and its actors were told they could not leave the city without Stanton’s permission. Payne — also known as Lewis Powell and Lewis Paine — and Atzerodt were found and arrested within days. The cavalry tracked Booth down to a barn in Virginia on April 26 and set it afire. A soldier saw Booth inside the burning building and shot him through the neck. Booth was dragged outside only to die a few hours later. With Booth dead, the primary suspects in jail, and the investigation complete — all in just more than two weeks — Stanton was ready for a trial. On May 1, the new president, Andrew Johnson, ordered the War Department to establish a military commission to try the remaining conspirators. The commission, made up of nine Union officers and chaired by General David Hunter, convened on May 9. Army Judge Advocate General Joseph Holt was legal officer. Meanwhile, the extended mourning over Lincoln’s death cast its pall over the upcoming trial. One of the Ford brothers, Harry, was incarcerated at Old Capitol Prison and heard the drums from the funeral cortege. He worried that the mourners would break in and lynch him. Lincoln’s body was sent on a 1,700-mile railroad journey in order for the public to see the casket and did not reach Springfield, Ill., for burial until May 4. The trial itself began on May 12, less than a month after the assassination. Two of the commission members, General Cyrus Comstock and General Horace Porter, expressed to the commission their doubts about the military’s authority to try civilians. In a private diary entry of May 8, Comstock wrote: “On Military Commission for trial of conspirators. [General] Hunter president. Wish I could get off. They ought to be tried by Civil Courts.” Both men were replaced for the stated reason that they were on Grant’s staff and might be prejudiced against defendants who had planned to kill their commander. Stanton’s investigation established that Lincoln was the victim of a conspiracy that went beyond the three perpetrators. Booth was a nationally known actor with Southern sympathies and Southern friends. He had been scheming since the fall of 1864 to kidnap Lincoln, specifically to capture Lincoln at some theater, truss him up, and take him to Richmond. Booth used his notoriety and charisma to draw a collection of weak underlings into his bumbled attempts. The first was scheduled for a night in January 1865 at Ford’s Theatre, but Lincoln didn’t show up. The second was in March. Booth and others waited along the 7th Street Road, now Georgia Avenue, to capture Lincoln as he rode to a play at the Soldiers Home in Washington, but again Lincoln failed to show. After Richmond fell and Lee surrendered, Booth realized that the mere capture of Lincoln no longer served a purpose, and so his thoughts turned to assassination. Booth dropped by Ford’s Theatre on the morning of April 14 to pick up his mail and learned that Lincoln had sent word that he, Mrs. Lincoln, and Grant, who had just arrived in town from Appomattox, would attend the evening’s performance. Booth relayed the news to Payne, Herold, Atzerodt, and the die was cast. As it turned out, Grant was not in the president’s box at the theater that night because he and his wife took an overnight train to New Jersey to see their children instead. Stanton’s initial fear had been that the assassination was the work of diehard rebels and that others in government, including Stanton himself, were also in danger. Yet in the end, he had nothing more than suspicions that Booth’s failed kidnapping schemes were known to the Confederacy and no evidence that knowledge of the change in plans, from kidnapping to assassination, went higher than Booth. Still, the public wanted vengeance, and Stanton would oblige. Six defendants, in addition to Payne and Atzerodt, were put on trial. David Herold held Payne’s horse at Seward’s house and joined Booth on his flight to southern Maryland. In “The Day Lincoln Was Shot,” Jim Bishop wrote that Herold “was twenty-three, looked seventeen, and had the mentality of a boy of eleven.” Forty-something Mary Surratt was a widow who ran the Washington, D.C., boarding house where Booth and others hatched the plot. She also owned a tavern in Surrattsville, Md., where guns and other items were stashed to aid Booth in his escape. Ned Spangler was a stagehand at Ford’s Theatre. He allegedly helped Booth at the theater and then told a witness not to mention the direction in which Booth fled. Samuel Mudd was a doctor who had been introduced to Booth once before the assassination. After the assassination, Booth sought out Mudd at his home in Bryantown, Md., where the doctor set his broken leg, fed him, let him rest, and sent him on his way. Michael O’Laughlin and Samuel Arnold had been with Booth in the earlier attempts to capture Lincoln, but neither was involved in the work of April 14. Mary Surratt’s son John was also believed to have been involved, but he was out of the country. The cases against Payne and Herold were overwhelming. In addition to eyewitnesses, the prosecution had admissions from both men. Atzerodt was seen in the company of Booth, Payne and Herold on the day of the assassination and admitted that he had been in league with them in trying to kidnap the president. Yet he denied knowing about plans to kill Lincoln and of intending himself to assassinate the vice president. The others, except for Mudd, were known friends of Booth and were frequently seen together and at Mary Surratt’s boarding house. Their fate would be determined by whether the nine military officers on the commission concluded that they knew of and went along with Booth’s decision to change the plan and assassinate Lincoln. But the trial was controlled more by feelings of vengeance than by the rule of law. The proceedings were grossly unfair by modern measure. Not only did the government, in its haste to convict, trample on rights that Americans take for granted today, but it used the trial to lash out at the Confederacy, seeking retribution against the eight defendants for the evils of the war. Stanton wanted the accused to be tried by court-martial, rather than in the civilian court in the District of Columbia. The trial of civilians at courts-martial during the Civil War was not uncommon, and defendants routinely mounted legal challenges to the military’s jurisdiction. Thus, not unexpectedly, one of Surratt’s lawyers, U.S. Sen. Reverdy Johnson of Maryland, opened by arguing that the commission had no jurisdiction. Also not unexpectedly, the argument was rejected. Whether such a commission was lawful is still debated. In 1867, the Supreme Court in Ex parte Milligan found unconstitutional the practice of military commissions trying civilians in Indiana, a state which saw no fighting and where the civil courts were functioning. In 1942, in Ex parte Quirin, the Supreme Court allowed a military commission to try German saboteurs who had landed by submarines in New York and Florida during World War II even though one of the men was an American citizen. More recently, Chief Justice William Rehnquist looked at the question in his book “All the Laws But One,” but he didn’t render an opinion. In March 2001, Judge Paul Friedman of the U.S. District Court for the District of Columbia, in a suit brought by Dr. Mudd’s grandson, ruled that Mudd’s conviction by court-martial was not unlawful. The Hunter commission, following courts-martial procedures of the time, did not reference violation of a statute in charging the defendants. Murder of federal officials, including the president, was not a federal crime then, and indeed did not become a federal crime until after President John Kennedy’s assassination in 1963. The charge instead was of a broad criminal conspiracy to aid the rebellion and to commit murder. Confederate President Jefferson Davis and other rebel leaders were named as accomplices. The defendants were held in solitary confinement at Old Arsenal Penitentiary, where Fort McNair is today, and the trial was held there. The prison cells were 8 feet deep and 4 feet wide. There was space at the bottom of the iron cell doors to allow for drainage. Even the battle-hardened military officers of the commission were surprised when they first saw the eight defendants. Except for Mrs. Surratt, the prisoners entered the courtroom wearing canvas hoods, manacles, and balls and chains. They shuffled and stumbled to their seats with the help of soldiers. Stanton had issued orders that the prisoners could not communicate with anyone without his approval. One of the commission members remarked later that the sight reminded him of the Spanish Inquisition. From then on, the defendants were freed of the hoods while in the courtroom, but not the manacles, balls, and chains. According to one of their lawyers, once outside the courtroom they still were hooded “all day, everyday” until June 10, 1865. Next week: part two. Washington, D.C., lawyer James H. Johnston is a writer and a frequent contributor to Legal Times . He may be contacted at [email protected]

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