Civil Liberties: What If Jefferson Davis Had Been Tried by a Military Court?





Mr. Alger is a freelance writer.

Extraordinary times call for extraordinary measures. Maybe so. But extraordinary measures can also easily, almost imperceptibly, lead to common mistakes and assumptions, which was the case with the scope of the military tribunal gathering evidence to try those associated with John Wilkes Booth in the assassination of President Abraham Lincoln.

In the immediate aftermath of the assassination at Ford's Theater on April 14, 1865, it was not surprising that many, especially in top government quarters, adamantly believed that Lincoln's murder was the result of a grand Confederate conspiracy. What was more surprising, perhaps, was that more people didn't unquestioningly buy into that theory, a theory vigorously argued by Judge Advocate General Joseph Holt of the U.S. Army and head of the Bureau of Military Justice.

Louis J. Weichmann, a central figure in the government's prosecution of the conspirators, was in his room in Mary Surratt's boardinghouse on H Street in Washington when Booth fired the fatal shot. A clerk in the War Department, Weichmann was one of two principal government witnesses whose testimony sealed Mrs. Surratt's fate, ultimately sending her and three others to the gallows for involvement with Booth's conspiracy to assassinate Lincoln.

In his narrative, A True History of the Assassination of Abraham Lincoln and of the Conspiracy of 1865, not published until 1976, seventy-five years after his death, Weichmann maintained that a military tribunal was justifiable under the circumstances, but added, that had the assassination occurred sixty days later, then all individuals implicated in the plot would have justifiably been tried in civil courts.

Weichmann, in arguing that the military commission was warranted, stated,"The war was not over, Johnston's army had not surrendered and other bodies of troops were still fighting in different parts of the South. Washington City was yet a fortified camp, and headquarters for directing operations of the Army and Navy of the United States. The Commander in Chief of all its forces had been slain in the very center of its military lines."

The streets were flooded as word spread of the assassination of Lincoln and the attempted assassination of Secretary of State William Seward, who was viciously attacked the same night with a knife by Booth's associate, Lewis Paine, while Seward lay in bed at home recovering from a fractured jaw and broken arm injured in a recent carriage accident. Panic filled the night, followed by an uneasy sense of foreboding, coupled with grief and rage, over the coming weeks, as people feared what might come next.

Secretary of War Edwin Stanton, upon leaving Lincoln's deathbed on the morning of April 15th, ordered precautionary steps implemented to protect other government leaders and called for the immediate arrest and detention of any and all suspicious people.

As hundreds and hundreds of suspects were rounded up and questioned, the government became more and more convinced that Booth had acted as part of a grand conspiracy which was organized by Confederate leaders in Canada and approved in Richmond by President Jefferson Davis himself.

It was quickly learned that John Surratt, a friend of Weichmann's and Mary Surratt's son, had been involved in something nefarious with Booth. The Metropolitan Police came to the Surratt boardinghouse before dawn on April 15th in search of the young Surratt but were informed that he was in Canada. Two days later, Mrs. Surratt was arrested at her boardinghouse, where she was accused of"keeping the nest that hatched the egg," along with Paine, who unexpectedly stumbled on the scene in hope of finding food and shelter.

Evidence began pouring into the Bureau of Military Justice where Holt was put in charge of the investigation of the assassination. On April 24th, Holt forwarded his findings to Stanton who announced that the War Department had information that the assassination had indeed taken root in Canada and was given the green light in Richmond. Based on the evidence gathered by Holt, eight people were charged with conspiracy, all to be tried by a military commission ordered formed on May 1, 1865 by President Andrew Johnson.

According to Holt, the Lincoln assassination involved the leadership of the Confederacy, as well as Booth and his co-conspirators, and President Johnson duly signed a proclamation making it official.

The proclamation signed by Johnson cited"evidence in the Bureau of Military Justice that the atrocious murder of the late President, and the attempted assassination of the Hon. William H. Seward, Secretary of State, were incited, concerted and procured," by, among others, Jefferson Davis and Confederate Canadian representatives Jacob Thompson, Clement C. Clay, Beverly Tucker, George Sanders, and William C. Cleary. Johnson even went so far as to offer a $100,000 reward for the capture of Davis for his part in the assassination of Lincoln.

Holt determined that there was no reason to delay the trial while waiting for Davis and the others to be apprehended so he recommended that the government proceed with its case against the eight who had been charged -- Mrs. Surratt, Paine, David Herold, George Atzerodt, William O'Laughlin, Samuel Arnold, Edwin Spangler, and Dr. Samuel Mudd.

The defendents were formally charged on May 10th, a significant date as will be seen, before a military tribunal consisting of seven generals and two colonels, including General Lew Wallace, who later achieved fame as the author of Ben Hur. According to Weichmann, 344 witnesses were examined, 180 for the prosecution and 160 for the defense. The defendents were all allowed legal counsel but none were permitted to testify on their own behalf.

During the trial, General Wallace stated that he believed that perhaps three to four of the dependents would be acquitted. But that assertion was made before the closing argument by the masterful Special Judge John Bingham, who powerfully asserted that in a conspiracy the act of one was the act of all, even going so far as to declare that"Jefferson Davis is as clearly proven guilty of this conspiracy as is John Wilkes Booth."

Meanwhile, Davis had been captured by federal troops in Georgia on May 10, eventually being incarcerated in Fortress Monroe in Virginia, even suffering the indignity of having manacles placed on his ankles.

Justice moved swiftly for the eight dependents. The members of the military commission met behind closed doors on June 29th and June 30th before delivering a verdict that all were guilty. Holt presented the findings of the court to President Johnson on July 5th and two days later, Mrs. Surratt, Paine, Herold and Atzerodt were hanged.

The problem of Davis, however, still remained. He was in custody, accused of guilt in the assassination conspiracy by Holt, with the judge advocate general logically maintaining that Davis should be charged with treason, tried before a military commission, and a date with the gallows the logical outcome.

According to historian William Hanchett in his book, The Lincoln Conspiracy Murders,"While it is unlikely that Holt doubted for a moment that Davis and the others were guilty, as charged, he and Stanton were too able and experienced to fail to recognize that the evidence presented at the conspiracy trial was not proof of guilt but only hearesay and that it was only as credible as the eyewitnesses who gave it."

As a result, on July 21st, a mere two weeks after Mrs. Surratt and the others were hanged for conspiring to assassinate Lincoln with Booth, Davis, and other Confederate leaders, the government decided to charge Davis with treason and not assassination. What's more, it determined that Davis would be tried in a civil court rather than a military one, with even Stanton voting in favor.

Jefferson Davis was eventually released from prison on bail in May of 1867 and never brought to trial. The tide had shifted, with the preoccupation of the Republican-dominated Congress moving from punishing Davis to removing Johnson from office.

A month later, John Surratt, who had been serving as a zouave in the papal guard at the Vatican before being turned over to the United States government, stood trial for murder for his alleged involvement with Booth in the plot to assassinate Lincoln. It was a trial before a civil court and in many respects a replay of the case against Mrs. Surratt, the first woman ever executed by the United States government. Her son was acquitted, with eight jurors reportedly in favor of a not guilty verdict and the other four against.

The proclamation of May 2nd, signed by President Johnson, charging Jefferson Davis and other Confederate leaders with involvement in the plot to assassinate President Lincoln was never revoked.



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Troy Cowan - 3/30/2011

According to my aunt Roberta Davis, a descendant of Samuel Davis, (Jefferson Davis' father) Booth was hired by Jefferson Davis and Stonewall Jackson. She says:
On May 2, 1863 President Jefferson Davis and General Stonewall Jackson summoned Secret Agent Lt. Colonel John Wilkes Booth. Their purpose was to give John Wilkes Booth the Congressional Medal of Honor and to promote him to full Colonel. Booth served under General Jackson. Booth is credited with the confiscation of needed medical supplies from the North and successfully delivering wagon loads of foodstuffs and clothing into the hands of the South. He also supplied secret information from the North to General Jackson. On May 2, 1863, John Wilkes Booth would learn of his most important assignment. He was to capture or kill Abraham Lincoln.

www.angelfire.com/planet/check/davis.html


Victor Rangel-Ribeiro - 1/15/2002

An excellent article, well researched, informative, dispassionate, and quite relevant to our own troubled times. In Jefferson Davis' case, an initial rush to judgement was fortunately not acted on when an opportunity presented itself.

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