May 1, 1865 – President Andrew Johnson authorized the formation of a military commission to try the eight people accused of conspiring with John Wilkes Booth to assassinate President Abraham Lincoln.
Johnson issued an executive order:
“Whereas, the Attorney-General of the United States hath given his opinion: That the persons implicated in the murder of the late President, Abraham Lincoln, and the attempted assassination of the Honorable William H. Seward, Secretary of State, and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City, and their aiders and abettors, are subject to the jurisdiction of, and lawfully triable before, a Military Commission; It is ordered:
“1st. That the Assistant Adjutant-General detail nine competent military officers to serve as a Commission for the trial of said parties, and that the Judge Advocate General proceed to prefer charges against said parties for their alleged offenses, and bring them to trial before said Military Commission; that said trial or trials be conducted by the said Judge Advocate General, and as recorder thereof, in person, aided by such Assistant and Special Judge Advocates as he may designate; and that said trials be conducted with all diligence consistent with the ends of justice: the said Commission to sit without regard to hours.
“2d. That Brevet Major-General Hartranft be assigned to duty as Special Provost Marshal General, for the purpose of said trial, and attendance upon said Commission, and the execution of its mandates.
“3d. That the said Commission establish such order or rules of proceeding as may avoid unnecessary delay, and conduce to the ends of public justice.”
Assistant Adjutant General Edward D. Townsend appointed nine loyal Republicans to preside over the military tribunal: Major General Lew Wallace, Brigadier Generals Robert S. Foster, Thomas M. Harris, Albion P. Howe, and August Kautz, Colonels James A. Ekin and Charles H. Tompkins, and Lieutenant Colonel David Ramsay Clendenin. Major General David Hunter presided over the commission as judge advocate general.
Brigadier General Joseph Holt, the judge advocate general of the army, headed the prosecution team. Holt was an old friend of Secretary of War Edwin M. Stanton who had established controversial commissions to prosecute citizens accused of “disloyal practices” during the war. In a conflict of interest, Holt would also serve as legal counsel to the commission. Congressman John A. Bingham would examine witnesses, and Major Henry L. Burnett rounded out Holt’s prosecution team.
Although it was unconstitutional to try civilians by a military court where civil courts functioned, Attorney General James Speed argued that if the defendants acted as “public enemies,” they “ought to be tried before a military tribunal.” The tribunal was to establish the trial rules. While a civil court required a unanimous jury verdict for conviction, the tribunal only needed a simple majority. Only a two-thirds majority was required to sentence the defendants to death.
Evidence requirements tended to be less stringent in a military tribunal, and punishment tended to be more severe. If convicted, the defendants could appeal to no one except President Johnson. Lincoln’s former attorney general, Edward Bates, declared, “If the offenders are done to death by that tribunal, however truly guilty, they will pass for martyrs for half the world.”
The eight defendants were:
- David E. Herold, who had accompanied Booth out of Washington after the assassination before surrendering to Federal authorities
- Lewis Powell (or Paine), who had attempted to assassinate Secretary of State William H. Seward
- George Atzerodt, who had been assigned to assassinate then-Vice President Johnson but lost his nerve
- Edward “Ned” Spangler, who had held Booth’s horse outside Ford’s Theatre during Lincoln’s assassination
- Dr. Samuel Mudd, who had set Booth’s broken leg and had known Booth prior to the assassination
- Michael O’Laughlen, who had been Booth’s friend since childhood and allegedly conspired to kidnap Lincoln
- Samuel Arnold, who had allegedly been involved in the kidnap plot
- Mary Surratt, who had run the boardinghouse where the conspirators plotted the assassination
Federal officials held the men in shackles in Washington’s Old Arsenal Penitentiary, with hoods over their heads. The hoods were padded to prevent the prisoners from hearing anything or ramming their heads against the walls. Small slits were cut for air and food. Officials did not require Mrs. Surratt to wear a hood or shackles. Federal authorities had never treated defendants so harshly in American history.
The commission assembled on the 8th in a new 45-foot-by-30-foot courtroom on the third floor of the Old Penitentiary. General Hantranft went to each defendant’s cell to read the charges against them. He recalled, “I had the hood (of each prisoner) removed, entered the cell alone with a lantern, delivered the copy, and allowed them time to read it, and in several instances, by request read the copy to them, before replacing the hood.”
Authorities removed the hoods from the male prisoners before they entered the courtroom. The commission issued its specific charges against the defendants:
“That David E. Harold, Edward Spangler, Lewis Payne, John H. Surratt, Michael O’Loughlin, Samuel Arnold, George A. Atzerott, Samuel A. Mudd, and Mary E. Surratt, did on April 15, 1865, combine, confederate, and conspire together to murder President Abraham Lincoln, Vice-President Andrew Johnson, Lieutenant-General U. S. Grant, and Secretary of State William H. Seward.”
These charges reflected the general assumption throughout the North that the defendants had conspired with the Confederate government to murder high-level Federal officials as a means of prolonging the war. Upon learning that the defendants had not been allowed legal counsel yet, the commission adjourned to grant it to them. Pleas and testimony would begin on the 12th.
CivilWarDailyGazette.com; Clark, Champ, The Assassination: The Death of the President (Alexandria, VA: Time-Life Books, 1983), p. 139-58; Davis, Jefferson, The Rise and Fall of the Confederate Government: All Volumes (Heraklion Press, Kindle Edition 2013, 1889), Loc 19876-86; Denney, Robert E., The Civil War Years: A Day-by-Day Chronicle (New York: Gramercy Books, 1992 [1998 edition]), p. 564, 567-68; Foote, Shelby, The Civil War: A Narrative: Volume 3: Red River to Appomattox (Vintage Civil War Library, Knopf Doubleday Publishing Group, Kindle Edition, 2011), Loc 21762-72; Fredriksen, John C., Civil War Almanac (New York: Checkmark Books, 2007), p. 588, 590; law2.umkc.edu/faculty/projects/ftrials/lincolnconspiracy/lincolnaccount.html; Long, E.B. with Long, Barbara, The Civil War Day by Day (New York: Da Capo Press, Inc., 1971), p. 684-86; Pittman, Benn, The Assassination of President Lincoln and the Trial of the Conspirators (U.S. Army, Military Commission, Cincinnati and New York: Moore, Wilstach & Boldwin, 1865), p. 406; Steers, Edward, Blood on the Moon: The Assassination of Abraham Lincoln (University Press of Kentucky, 2001); “The Trial of the Lincoln Assassination Conspirators” (Law.umkc.edu, archived from original 12 May 2011, retrieved 28 May 2011)