Context for the Trial Proceedings

by Jill Myers, Docent, Surratt House Museum
with contributions by Dr. Edward Steers, Jr.

The individuals arrested by the Government as conspirators in a plot to assassinate President Lincoln—Lewis Powell (alias Lewis Payne), David E. Herold, George A. Atzerodt, Edman (Ned) Spangler, Samuel Arnold, Michael O’Laughlin, Mary E. Surratt, and Samuel A. Mudd—were tried before a military commission, rather than in a civilian court, as enemy beligerents who had committed offenses against the law of war. Counsel for the defendants argued that the military had no jurisdiction over civilians and thus trial of the conspirators by military tribunal was unconstitutional—an argument the Supreme Court would support by its decision the following year in a landmark case, Ex Parte Milligan.

Benn Pitman, brother of Sir Isaac Pitman (1813-97), the inventor of the Pitman stenographic system, or phonetic shorthand, and himself an inventor of a shorthand system modeled after that of his brother, was chief of the team of five stenographic reporters who recorded the trial of the Lincoln assassination conspirators. Pitman applied to, and was commissioned by, the War Department to compile, at his own expense, trial testimony, documents introduced in evidence, the discussion of points of law raised during the trial, the addresses of the counsel for the accused, the reply of the Special Judge Advocate, and the findings and sentences of the Commission. Pitman’s one-volume work, published in 1865 in Pitman's home town of Cincinnati by publishers Moore, Wilstach and Baldwin, summarizes the testimony given at the Conspiracy Trial in narrative form, and arranges the testimony in a logical framework relating to the prosecution and defense of each defendant. While Pitman’s was the official record of the trial; concurrent versions by Ben: Perley Poore and Peterson were based on Pitman’s transcript.

Ben: Perley Poore’s comprehensive report of the trial proceedings was published in a three-volume record. Poore was an eminent journalist who covered the Washington scene during a period of more than sixty years for such publications as the Boston Journal and Harper’s Weekly. Poore’s is a complete, verbatim transcript of the trial, presented without the Pitman table of contents or index but in the exact chronological sequence of witnesses during the proceedings. His three-volume work was published in limited quantities and makes for an extremely rare find today. Thus, most citations referring to the trial of the conspirators are to the Pitman transcript.

Brigadier-General Joseph Holt, Judge Advocate General, U.S. Army, was appointed Judge Advocate and Recorder of the Commission. Nine officers were detailed to the Commission, and along with two Special Judge Advocates appointed by Judge Advocate General Holt, 11 individuals sat in judgment of the conspirators:

  • Major-General David Hunter, U.S. Volunteers
  • Major-General Lewis Wallace, U.S. Volunteers
  • Brevet Major-General August V. Kautz, U.S. Volunteers
  • Major-General David Hunter, U.S. Volunteers
  • Brigadier-General Albion P. Howe, U.S. Volunteers
  • Brigadier-General Robert S. Foster, U.S. Volunteers
  • Brevet Brigadier-General James A. Ekin, U.S. Volunteers
  • Brigadier-General T. M. Harris, U.S. Volunteers
  • Brevet Colonel C. H. Tomkins, U.S. Army
  • Lieutenant-Colonel David R. Clendenin, Eighth Illinois Cavalry
  • John A. Bingham (Special Judge Advocate)
  • Brevet Colonel H. L. Burnett (Special Judge Advocate)

The Commission came to be known as the Hunter Commission after its ranking member, Major General David Hunter. Hunter had been a long-time friend of Lincoln, and was therefore expected to deal harshly with the conspirators. The trial commenced on May 9, 1865, whereupon the accused were afforded the opportunity to obtain counsel. The following day, the accused were presented with the charge and specificationand allowed until Friday, May 12, to secure counsel, when the government called its first witness. Counsel for the accused were as follows:

  • for Samuel Arnold - Thomas Ewing, Jr
  • for George A. Atzerodt - William E. Doster
  • for David E. Herold - Frederick Stone
  • for Michael O'Laughlin - Walter S. Cox
  • for Samuel A. Mudd - Frederick Stone and Thomas Ewing, Jr.
  • for Lewis Payne - William E. Dossier
  • for Edman Spangler - Thomas Ewing, Jr.
  • for Mary E. Surratt - Frederick Aiken, John W. Clampitt, and Reverdy Johnson

Among the defense counsel, those with the most noted reputation were Thomas Ewing, Jr., who served as counsel for Arnold, Mudd, and Spangler; and Reverdy Johnson who was counsel for Mrs. Surratt. Ewing was the son of a former senator and, himself, a former chief justice of the Kansas Supreme Court. Rising to the rank of general during the war, Ewing, 35 years old, also was the brother-in-law of Union hero General William T. Sherman. Reverdy Johnson was the former Attorney General for Maryland, a well-known and respected attorney.

Over the following six weeks, the Commission heard from some 350 witnesses, and on a wide range of topics, some totally unrelated to the prosecution of the accused, and, instead, intended to indict the Confederacy in terrorist plots. Among others, these included plans to poison the New York water supply, to spread disease by infecting clothing with yellow fever and smallpox viruses, and, ultimately, to assassinate President Lincoln. By far the largest number of witnesses were called in the prosecution and defense of two whose guilt and innocence remains in dispute to this day—Mary E. Surratt and Dr. Samuel A. Mudd.

On June 30, 1865, the Commission tendered its findings. All eight of the alleged conspirators were found guilty, and four—George A. Atzerodt, David E. Herold, Lewis Payne, and Mary E. Surratt—were sentenced to death by hanging. This sentence was carried out on July 7.

Samuel Arnold, Michael O’Laughlin and Dr. Samuel Mudd were sentenced to life imprisonment at hard labor, while Edman Spangler received a sentence of six years’ imprisonment at hard labor. The four defendants were subsequently transferred to Fort Jefferson, located on an island in the Dry Tortugas some 75 miles west of Key West, Florida. Michael O’Laughlin died there on September 23, 1867, during an epidemic of yellow fever; the three remaining prisoners were ordered released in February, 1869, after receiving pardons from President Andrew Johnson.