Part 2 — CHAPTER III. TREATMENT OF WITNESSES AND EVIDENCE BY THE COUNSEL FOR THE DEFENSE AND THEIR ANIMUS TOWARD THE GOVERNMENT AND APPEALS TO THE POLITICAL PREJUDICES OF JURORS.

The conduct of this trial on the part of the defense toward the witnesses for the prosecution was most remarkable. The law prescribes the methods by which testimony is to be discredited, and the eminent lawyers who defended the prisoner were of course well acquainted with the legal methods of impeaching testimony. That they did not confine themselves to these was not only unprofessional, but was calculated to create a suspicion that they had an intuitive perception of the fact that the methods known to the law would not avail them in this case. Hence from the first they attempted to influence the jury by treating the government witnesses with supercillious contempt, and even scorn.

They did not, however, stop here, but whenever they could find or make an occasion they would throw out insinuations against the witnesses en masse by side remarks intended for the ears of the jury.

They spoke of the witnesses who were kept together in a room, to be called as they were needed, as being in the "penitentiary," and added to this that "they would soon be in another penitentiary."

On the examination of Dr. McMillen, the surgeon of the ocean steamer "Peruvian," in whose charge Father La Pierre had placed Surratt under the name of McCarthy, and to whom Surratt had made confessions during his voyage across the Atlantic that were conclusive of his guilt, the counsel for Surratt made themselves so offensive that the witness was provoked to a retort in self-defense.

This witness was intolerable to them because of the directness and force of his testimony. In self-defense the Doctor was provoked into making the following remark: He said he would tell the counsel (Mr. Merrick), and if he was not deaf, he could hear, and repeated his answer, adding that Mr. Merrick had insulted witness the other day, and that it was the act of a coward and a sneak. The Court here cautioned the witness that such language was not becoming, but also remarked "that it was not becoming in counsel to try to worry witness into bad temper."

Witness stated "that Mr. Merrick had remarked the other day that all the witnesses in the adjoining room ought to go to the penitentiary, or something to that effect; that he was just as good as Merrick."

On the following day, at the opening of the court, Mr. Bradley said: "If your honor please, before we proceed with the trial of this case, I beg leave to call the attention of the Court to an incident which occurred just before the adjournment yesterday, and to ask that the notes of the reporter may be read. Your honor was very much occupied at the time, and I desire that the record may be read in order that you may see what passed, and what led to the attack made by the witness upon the stand upon the counsel with whom I am associated, your honor, without having heard what passed at that time, if not in precise words yet in substance, censured the counsel to whom these observations were addressed. I think, in looking at it, your honor will see that there was no provocation given; and that if there was, it is due to the dignity of this court, and to the protection of the members of the bar, to which they are entitled at the hands of the Court, that some notice should be taken of what then passed." After the reading of so much of the report as related to the matter, the Court spoke as follows: "I did not hear what was said by the witness in regard to the gunboats, for the reason that I was at the time occupied in preparing some passes for a friend. When my attention was called to the remark made use of by the witness towards the counsel, I was under the impression that he had been provoked to it by something that had been said by the counsel. I cannot, however, perceive in the record which has been read anything which ought to have called forth, or which justifies, the expression of the witness. I will say now to the witness, that although Mr. Merrick did say a few days ago, in regard to the witnesses who were in the adjoining room (which Mr. Bradley had called a penitentiary) that they (the witnesses) would soon be in another penitentiary, or words to that effect, it is not the privilege of a witness to take exception in the way he did to any remarks made in the court room. He may appeal to the Court to protect him if he is aggrieved." [Turning to witness] "You must not, hereafter, in your examination, make use of any expressions to counsel which are at all insulting in their character, however much you may feel yourself aggrieved by remarks which they may have made in reference to witnesses generally, or in reference to yourself before your examination.

"In this connection it may not be improper to observe that I have never, in all my judicial experience, seen a case in which there has been so much trouble with regard to the examination of witnesses and so much bitterness of feeling displayed.

"It may be all right, but I confess I see no reason why it should be so. I cannot, of course, enter into the feelings of counsel, and it is possible they may feel themselves aggrieved, and therefore regard themselves as justified in exhibiting this spirit. I will say, further, that I have never seen witnesses cross-examined with so much asperity as I have in the case now pending. It does not appear to me, therefore, as at all strange that witnesses should be worried into such remarks as this witness has uttered, especially when intimations are publicly thrown out by counsel as to their fitness for the penitentiary, and that, too, when some of the most respectable persons in the land, such, for instance, as General Grant and Assistant Secretary Seward, are among the number. And not even was the effect of the remark allowed to stop with the intimation, but when attention was called to it by the District Attorney, in the hope, I presume, that it would be recalled, it was repeated, and with the additional observation that the propriety of the remark could be shown. When such things occur it is not at all surprising that witnesses should come here prepared to avenge themselves by making insulting replies to the counsel. I deeply deplore it, and will endeavor, by most carefully observing all that transpires, to prevent a similar recurrence on the part of either counsel or witnesses; but however watchful the Court may be, such things will occasionally break forth at times and under circumstances when, from not expecting it, it is impossible for the Court to check them." [Again addressing himself to the witness.] "Dr. McMillen, you are highly reprehensible for having made such remarks as that to which exception has been taken. It was altogether out of place. If you felt yourself aggrieved by any remark, you should have called on the Court for protection. You will now proceed to give your evidence, and in a manner respectful to the counsel. If the counsel on either side shall treat you with what you conceive to be disrespect, you will appeal to the Court, and the Court will intervene for your protection. I would, however, suggest to gentlemen on both sides that in the examination of witnesses, if they will consult Quintilion and Allison in regard to their duty in this respect (and no doubt they have read the remarks of both these authors on the subject), they will find that those writers say nothing is to by gained by a bitterness of manner toward witnesses either on examination in chief or cross-examination, but that everything may possibly be gained by kindness and conciliatory manners; and I think it would be a decided improvement in this case if their suggestions were accepted. In the course of the five years that I was engaged in prosecuting criminal cases, I do not recollect ever to have had an unkind word with a witness on the one side or the other, and never in a civil case except on one occasion, when a witness of my own turned against me. Then I was led away by a natural quickness of temper. I advise that we should all, to the best of our ability, endeavor to control our tempers in conducting this case; and then there will be no fear of a repetition of the unpleasant occurrences that have happened during its progress."

To this Mr. Merrick replied: "I feel it incumbent upon me to say, after what has fallen from the Court, especially as your honor seems to have the impression that I intended my remarks to apply to all the witnesses, including Secretary Seward and General Grant, that while your honor misunderstood me in this regard, I do not believe I was misunderstood by some others outside, in supposing I intended to embrace all the witnesses in that remark. I will here say that I have the greatest respect for General Grant and Mr. Seward, and I apprehend that among the witnesses in the case it is perfectly well understood to whom I referred and to whom I did not refer. I apprehend that no sane man can suppose that I meant any such reference to General Grant, Mr. Seward, or Mrs. Seward, and that class of witnesses. I will only say, in conclusion, that I think, without any further explanation, or more direct pointing of the remark at present, it is perfectly well understood among the witnesses to whom the remark referred."

To this the Court replied: "I do not know whether it is understood or not. I cannot understand it, because I am bound not to know the witnesses, either as regards their own private character, or the character of their testimony, and I enter into the trial of this case knowing nothing, as it were, about either, scarcely ever having glanced at the testimony, and of course, therefore, I cannot enter into the feelings of counsel on the subject. I do not know to what witnesses these remarks may be directed, but this I do know, that there are certain legal methods pointed out in the text books of the law by which we are to be guided in undertaking to discredit the testimony of witnesses. One method is the discrediting of the witness by himself; by his own contradictions, and by his mode and manner of testifying. Another is by proving the witness to be utterly devoid of reputation for truth and veracity, and not to be believed on his oath. Another is by contradicting him by the conflicting testimony of other witnesses. These are the legal modes that are pointed out in the law books, and any side remarks that are made by way of prejudicing a jury, any acting in the case, the casting of sinister looks at the jury, are departures from the rules laid down.

"The examination of a witness ought to be conducted by the witness standing up and the counsel standing up, and looking each other in the face, without the counsel directing his remarks to the jury by turning towards them instead of turning towards the witness. That is the proper way to conduct either an examination in chief or a cross-examination."

The fact that the Court deemed it necessary to deliver such a lecture as this to counsel, who were men of age and experience in their profession, and who from their reading ought to have been as well informed as the Court on the proper treatment of a witness and the legal methods of discrediting testimony, indicates that he had found in their conduct such flagrant departures from the requirements of law and professional conduct a necessity for such criticism and such admonitions. The opinion of the Court as thus expressed fully justifies me in the charges I have made against the conduct of the defense and their unprofessional efforts to discredit testimony. I am still further justified in it by the remark of Mr. Merrick that they (the counsel for the defense) "had laid at the feet of the attorneys a mass of the most corrupt battalion that was ever summoned to support a cause in a criminal court."

Here Mr. Merrick attempts to set aside all of the testimony that had been offered by the government proving the guilt of the prisoner, by denouncing it as corrupt throughout, and unworthy of the slightest consideration. This would certainly be as easy a method as it would be novel to throw out testimony en masse upon the mere ipse dixit of counsel, and in consequence of the legal standing and weight of character claimed by them with such manifest self complacency, but when we consider the fact that upon a candid and careful scrutiny of all the testimony in the case, it could be set aside in no other way, we could not perhaps reasonably expect them to refrain from trying to get the benefit of all the method that was left them.

The most important witnesses introduced by the government and those who most unequivocally proved the existence of a conspiracy and the connection of the prisoner with it, as also his participancy in its accomplishment, and also the fact that his mother belonged to it and performed a part in preparing for its accomplishment, had stood every test that ingenuity could devise to discredit their testimony. Some of them had been kept on the stand under cross examination for nearly two days, and could not be made to discredit their own testimony, either by contradictions or mode of answering. Neither had they been discredited by proving that they were utterly devoid of character for truth and veracity, and not to be believed on oath. The attempts at their contradiction by the conflicting testimony of other witnessess had all proven miserable failures, and so the counsel for the defense attempted to have their client declared innocent by scouting all of the evidence in the case and offering their own convictions of his entire innocence, and referring the jury to their weight of character and legal standing to enforce their opinions on the jury as grounds for a favorable verdict for their client. Never did able lawyers deal more unfairly with witnesses nor with evidence, nor more wantonly set at naught the established rules of evidence, not only in the respects referred to, but also in the efforts that they made to introduce testimony which they must have known to be inadmissible under the rules of evidence, as already shown in the number of exceptions which they not only took to the rulings of the court, but kept count of and paraded before the jury. Their animus toward the government was also shown in this matter of testimony, as also in other ways to be hereafter noticed. They charged the government with presenting testimony on this trial that it knew to be false, and withholding testimony from the military commission that would have proven the innocence of Mrs. Surratt. To sustain the first charge, they asserted in regard to the handkerchief found by Blinn at the Burlington depot, that it had been dropped by a government detective, and not lost by Surratt. Blinn, however, was positive in his testimony that he found the handkerchief on the morning of the 18th, but the handkerchief which Hallohan, the detective, claimed to have lost, was lost at Burlington on the morning of the 20th of April. He did not discover its loss, however, until he got to Essex Junction, and did not know where he had lost it. The handkerchief found by Blinn on the morning of the 18th, and put in evidence by the government, could not therefore have been the handkerchief that Hallohan claimed to have lost. There was also too heavy a cloud of uncertainty hanging over his (Hallohan's) testimony after his cross-examination, to have warranted the counsel in making so serious a charge against the government as that it knew that Hallohan, and not Surratt, lost the handkerchief.

In further proof of the charge that they disregarded and set at naught the rules of evidence, they tried to get in a statement by John Matthews of the contents of an article put into his hands by Booth on the afternoon of the 14th of April, with a request that if he (Booth) did not see him before 10 o'clock on the following morning he should hand it to the National Intelligencer for publication, and which Matthews, after the assassination, had burned, thinking it would put him in danger to have such a thing found in his possession. They proposed to prove by this witness that neither the prisoner nor his mother were in the conspiracy. Of course they knew that they could not prove the contents of a paper that would have been inadmissible even if it had been presented. But if they had had the paper in their possession they could not have proven anything by it, as it was represented to be a paper prepared by Booth to justify himself in the crime he had in contemplation, and would have been no more admissible as evidence than the diary which Booth kept during his flight, every entry in it having been made in view of his probable failure to make his escape, and with the intention of palliating his crime. It was of no more value as evidence than was his assertion of the entire innocence of his companion, Herold, just a few minutes before he was shot. Yet they censured the government for not putting this diary in evidence before the Commission, asserting that its reason for withholding it was that it would have proven the innocence of Mrs. Surratt, thus by implication asserting that the government was thirsting for her blood, and was determined that she must be convicted right or wrong.

This position was boldly taken by them in their arguments, as we shall hereafter see, in the face not only of the evidence on which she was declared guilty by the Commission, but also in the face of that presented on this trial, which much more clearly and fully established her guilt. I have thus been careful to show from the record that I am justified in the strictures I am making on the course of the defense. I would be sorry to do any injustice to these men if they were here to answer for themselves, much more so now that the two senior members, Mr. Bradley and Mr. Merrick, are numbered with the dead. My charitable conclusion in their behalf is that their political opposition to the government so prejudiced their minds that they could not bring themselves into a judicial frame for the trial of this case. Their religious sympathies with Mrs. Surratt, and their ready acceptance of the assertion of Father Walter that she was "as innocent as the newborn babe," so influenced their minds that they would reject as false any testimony whatever that went to establish her guilt. Their sympathies then would naturally lead them to conduct the defense of her son in the same spirit of determination to hold him innocent in spite of all adverse testimony. The prisoner found his counsel in a state of mind to readily accept the ingenuous fabrication which he had had two years to get into form, as also no doubt the able assistance of the Reverend Fathers who so sedulously watched for his return to Canada after the murder of the President, and who at once took him under their protection on his return to Montreal, and kept him secreted for five months, until they could get him landed in the Pope's dominions; and then when he was brought back and put upon his trial, stood by him from day to day with unfaltering fidelity, until he was set at liberty.

The story which Surratt gives in his Rockville, Md., lecture, which bears throughout the marks of the "fine Italian hand" of the Jesuit, and which is contradicted in all of its most important points by the whole run of the testimony in the two trials, had no doubt been accepted by his counsel as true, and hence they would hear no testimony that conflicted with it; but were ready to accept any evidence whatever, without regard to the character of the witnesses, that corroborated it. This, in the opinion of the author, is the most charitable construction that can be put upon their conduct in the management of their case. Their eyes were blinded by their all controlling prejudices, and bitter opposition to the course of the government in sending Surratt's co-conspirators before a military commission for trial. We shall now proceed to give the evidence of their feelings toward the government in this matter. They could apparently find no words bitter enough to express their abhorrence of the trial by a commission.

As John H. Surratt and his mother were bound up in the same bundle by all the testimony in the case, and his mother had been found guilty upon this testimony by the court before which she was tried, his counsel seemed to feel the necessity of getting rid of the effect of this fact, in its bearing on their case. That I may not be accused of doing them injustice in presenting their mode of doing this, I will let them speak for themselves.

In the examination of jurors on their voire dire, Mr. Pierrepont asked the question: "Have you formed any opinion in regard to the guilt or innocence of the other conspirators?" The question was objected to by the counsel for the defense, and Mr. Merrick, to sustain his objection, said, among other things: "I presume there is scarcely a gentleman in the United States who has not formed and expressed the opinion that Booth shot Lincoln. I apprehend there are very few who have not formed and expressed an opinion that the mother of the prisoner at the bar suffered death without competent testimony to convict her, and so we might go through in an inquiry in relation to all the others." In replying, Mr. Pierrepont said: "The reason urged by my learned friend against it is, that he believes, I do not know but that he asserts, that there are very few in the United States who do not believe that Mrs. Surratt was illegally executed. Therefore we could not get a jury competent to try the prisoner at the bar if this question is allowed to be put."

Mr. Merrick [interrupting]. "My brother will allow me to say that he did not state my entire proposition. I said there were few intelligent persons in the United States who had not formed an opinion upon the question of Booth's participation in the killing of Lincoln; and there were also, I presumed, but few persons who had not formed an opinion that Mrs. Surratt had been executed upon insufficient evidence."

Mr. Pierrepont. "Precisely; that is the very statement, except that my friend has made it a little stronger than I did.

"I did not intend to overstate it, as there is nothing gained by overstatement, but it seems I did not come up to the mark."...

In his opening for the defense, Mr. Joseph H. Bradley, Jr., said: "We have at last arrived at that stage of this case when an opportunity is afforded the prisoner for saying something by way of defense, not only of his own character, his own reputation, his life and his honor, but also as it shall rise incidentally in this discussion of this evidence before you, something in the way of vindicating the pure fame of his departed mother." Again. "As to Mrs. Surratt we hope to satisfy you that a grave error has been made in her case." Again Mr. Merrick, in his argument on the motion to strike out certain testimony, said: "The counsel had said, if it was anything favorable, the defense would insist on it; if anything unfavorable, they would not desire it. All he had to say in reply was, that he would insist on the free confession of all who had testified in the case, if he could get it. He would like to have had the privilege of putting in whatever this poor boy's butchered mother said, but had not. When he offered what she said, counsel on the other side said, 'No, you cannot prove that. We can prove what she said that will benefit the state, but you shall not throw the mantle of a mother's declarations over the child standing in the prisoner's dock.' Had we been allowed, we would have proved her declarations—proved them when tottering from the dungeon to the scaffold, with the world behind her, and nothing in the front but that God before whom she was shortly to appear, and before whom she solemnly asseverated that she was innocent of the crime for which she was being killed."

To all these charges and assumptions the District Attorney, in his argument upon the evidence, replied as follows: "Well, I do most kindly but most respectfully and emphatically repudiate the unjust imputation that Mary E. Surratt has been murdered, as was alleged by one of the counsel, and butchered as alleged by another. Where is the evidence to justify it? If they have a right to make this accusation, have we not a right to reply to it? For what purpose was it introduced before this jury? Is it to appeal to your prejudices? I make no such accusation against the gentlemen; they charge it home upon us when they say a murdered and a butchered woman. I deny it, and I undertake to prove to the contrary."

Mr. Bradley, interrupting, said "he supposed this threw the whole subject open for discussion." The District Attorney rejoined: "It had been introduced by the learned gentlemen on the other side." Mr. Bradley replied "that he was not aware what evidence there was on which this question could be discussed. But if it was understood that the whole subject was open, and that the counsel for the prisoner could not be interrupted in their discussion of it, he was satisfied."

The District Attorney. "Then why make allusion to it in the first instance? Who cast the first stone in the presence of this jury?

"I regret that it should have been necessary for an American woman to be executed by the judgment of an American tribunal. That verdict has been rendered by an American tribunal, and the consequence of it was the execution of an American woman. I know the character of the American people. I know that imagination revolts at the execution of one of the tender sex. But when the daughter of Herodias murdered John the Baptist, she deserved death. When Lucretia Borgia darkened the history of her country by her horrid crimes, she deserved death. And when Mary E. Surratt murdered Abraham Lincoln, the great moral hero of the age in which he lived, the patriot and philanthropist of the nineteenth century, she deserved death. There is no man who has a heart more capable of love for woman than myself. But when she unsexes herself, when she conceives, when she encourages, when she urges on, and is instrumental in committing the crime of murder, she places herself beyond the pale of protection. The best wife who ever lived, according to Milton, our great mother Eve, is thus represented as speaking to her husband:—

"I believe in submission on the part of women; submission to her God, to the laws of her country and to her husband. But when a woman opens her house to murderers and conspirators, infuses the poison of her own malice into their hearts, and urges them to the crime of murder and treason, I say boldly, as an American officer, public safety, public duty, requires that an example be made of her conduct. Murder! gentlemen of the jury. Who composed that military commission? They are no better men than you are, but you will not be offended with me if I say they are as good men as you are, or I, or any of us." Naming over the officers who constituted the tribunal by which Mrs. Surratt was tried, he continued: "I say, gentlemen of the jury, that they are good men, holding commissions under the government of the United States, and they are presumed to be honorable men. The law declares that every private citizen, and every public officer who is a servant of the American people, is presumed to be honorable until the contrary is proved.

"Your officers, your men, your representatives in the American army, in an accusation which will travel upon the telegraph wires perhaps to the four quarters of the world have been denounced, if not expressly, by implication, as murderers and butchers who took the life of an innocent woman. If so, when you come to try them, and you believe it, say it, but it is not the question submitted to you now. She may be innocent and the prisoner at the bar be guilty; the subject was introduced collaterally by the learned counsel, for what purpose I know not, except for effect. Before you brand these gentlemen with the character of murderers, see that you have relevant grounds to act upon. Take care, or you may be placed in the same situation; I have not charged it, and I do not think my friends would, upon reflection, charge men who are placed in such a solemn obligation with such a dereliction of duty. It has been said that this has been pronounced by the Supreme Court of the United States an illegal tribunal. What has that to do with the action of these officers? What has that to do with your action? What pertinency can it have to the issue now submitted to you for your decision? But, gentlemen of the jury, let us first consider the character of this crime, and then I will consider briefly the connection of Mrs. Surratt with it. I do not desire to say much about her; she has gone to her grave, and her spirit has passed before her Eternal Judge."

After recounting the character of the crime, the District Attorney thus refers to Mrs. Surratt's connection with it: "Now, gentlemen of the jury, let us view the connection of Mrs. Mary E. Surratt with this assassination. I feel the delicacy of the ground upon which I stand. I know the situation. I know that you dislike to consider this question, which has been forced upon you. I do not want to do it. My duty is to prosecute the prisoner, but one of the counsel has said she was murdered, and another that she was butchered, and it therefore becomes my duty to trace her connection with this crime, and then leave it to you to say whether she was guilty (though not relevant to this case), of the crime for which she suffered. First, I call your attention to a fact to which we have already adverted; that her house, 541, was the rendezvous for these conspirators. Now, gentlemen, will you pause for a moment, and let me ask you how you can reconcile it with innocence? You remember the law, that it is not how much a party did, but whether she had anything to do with it. Can you, I say, reconcile it with innocence that this woman's house should have been the rendezvous of John Wilkes Booth, Lewis Payne, Atzerodt, Herold, and John H. Surratt? Would you not know by intuition? Would you not know by their conversation? Would not your judgment and your hearts tell you who they were and what they contemplated?

That is the great central truth, which I defy the learned counsel for the defense successfully to assail. Secondly, who furnished the arms with which the bloody deed was done?... The woman who puts an arm into the hand of her lover, her son, her brother, or her husband, who urges him on to the deed, by the law of God and of man is equally guilty with the one who with his own hand perpetrates the crime. According to the testimony of John M. Lloyd this is shown. Do you believe him or disbelieve him? My friend, Mr. Bradley, who opened this case said he was a common drunkard; but mark you, he was an attendant and friend of Mrs. Surratt."

Mr. Bradley. "Who says so?"

The District Attorney. "I will prove it. When I was examining that witness, and proposed to ask him certain questions in reference to Mrs. Mary E. Surratt, he said, 'Mr. Carrington,' for he knew me personally, 'I don't wish to speak about Mrs. Surratt, for she is not on trial.' I said 'Go on, Mr. Lloyd.' He declined. I applied to the Court, and the Court said that it was his duty to answer. He saw her continually. He lived in her house; he drank her liquor. Why, this evidence shows that John H. Surratt, Herold, and John M. Lloyd played cards and drank together.... But says the friend and companion of the prisoner at the bar,—the confiding and confidential agent of his mother, unwilling to testify against her when put on the solemn sanction of an oath, but when required to do so he speaks out,—he says certain arms were furnished him by the prisoner at the bar; that he concealed them, the prisoner showing him where they could be safely concealed, he protesting at the time against it, protesting that it might get him into some personal difficulty. The mother knew of the transaction, for on the 11th of April we have Lloyd's own testimony; she asked him where those shooting-irons were, and said they might soon be needed, or words to that effect. But I am going too fast, for I do not desire to speak to confuse you. I say, first, that her house is the rendezvous; and that, secondly, she furnishes arms, or knows of their being furnished. On the night of the 14th of April, Booth and Herold returned, and are leaving the city of Washington in flight for their lives. At Surrattsville they called for whiskey from the agent and friend of the prisoner and his mother. She gives them a home, gives them arms, gives them whiskey, not to nerve them but to refresh them after the commission of their horrid crime.

"But Booth, in making his escape, needs something more than whiskey and arms.

"It is necessary that he should secrete himself as he traveled through the country, and that he should see persons approaching him from an immense distance, he needs a field-glass, and has it delivered to him by his friend and agent, Mrs. Surratt." With the defense no witness told the truth whose testimony went to convict their client, whilst the stories of the most infamous men, self-confessed scoundrels and accomplices after the fact, if not before, such as Father Boucher, and Reverend Cameron, must be taken as gospel truth.30 In the face of all this testimony the counsel for the defense again bring their false accusations against the government. Mr. Merrick in the course of his argument, said: "Does the Attorney General feel that public justice demands that he should employ assistant counsel in this case, or is there somebody else behind?"... "Are there any other officers of the federal government that have purposes to accomplish in this case? Says the learned attorney on the other side (Mr. Pierrepont) in a speech delivered I think before you were impaneled:—

"'It has likewise been circulated through all the public journals that after the former convictions, when an effort was made to go to the President for pardon, men, active here at the seat of government, prevented any attempt being made, or the President even being reached for the purpose of seeing whether he would not exercise clemency; whereas the truth, and the truth of record, which will be presented in this court is, that all this matter was brought before the President, and presented to a full cabinet meeting, where it was thoroughly discussed, and, after such discussion, condemnation, and execution received not only the sanction of the President, but that of every member of his cabinet. This and a thousand others of these false stories will be all set at rest forever in the progress of this trail; and the gentlemen may feel assured that not only are we ready, but that we are desirous of proceeding at once with the case.' Now if this declaration of my learned brother on the other side is correct, this trial was not entered upon for the purpose alone of inquiring into the guilt or innocence of the prisoner at the bar. It was not entered upon because public justice demanded his arraignment, before you, gentlemen, but in order that a thousand false stories about men high in office might be settled at his expense.

"Then, although my learned brother is here under appointment by the Attorney General of the United States, yet it is an appointment which probably had its origin in the stimulus of some private feeling lying behind. He comes here, not to try this case alone, but he comes here to set at rest certain false stories. Has he done it?"... "Where is your record? Why didn't you bring it in? Did you find at the end of the record a recommendation to mercy in the case of Mrs. Surratt that the President never saw? You had the record here in court."

Mr. Bradley. "And offered it once and withdrew it."

Mr. Merrick. "Yes, sir, offered it and then withdrew it. Did you find anything at the close of it that you did not like? Why didn't you put that record in evidence, and let us have it here? We were not going to quarrel about it; we would like to know all we can about the dark secrets of those chambers whose doors are closed, but from which light enough creeps to make us anxious to look within. We only know enough to make us curious; but that is enough to make us feel. You were going to show, too, that nobody prevented access to the President on the part of those who waited to get a pardon. Why didn't you do it? Gentlemen of the jury, I should have been glad to have heard that proof. They have brought these charges into the case and I must meet them as part of the case. I should have been glad to have heard that proof. Who of you who was in the city of Washington, will ever forget that fatal day when the tolling of the bells reminded you of the sad fact that the hour had come when those people were to be hung? Your honor (referring to Justice Wylie, who was at the time sitting beside Judge Fisher on the bench), in your praise be it said, raised your judicial hand to prevent that murder, but it was too weak. The storm beat against your arm, and it fell powerless in the tempest. You remember that day, gentlemen. Twenty-four hours for preparation. The echoes of the announcement of impending death, scarcely dying away before the tramp of the approaching guard was heard leading to the gallows. Priest, friend, philanthropist, and clergyman went to the Executive Mansion to get access to the President, to implore for that poor woman three days respite to prepare her soul to meet her God, but got no access. The heart-broken child—the poor daughter—went there crazed, and, stretched upon the steps that lead to the Executive chamber, she raised her hands in agony and prayed to every one that came, 'O God! let me have access, that I may ask for but one day for my poor mother—just one day.' Did she get there? No. And yet, says the counsel, there was no one to prevent access being had. Why don't you prove it? O, God! if such a thing could have been proved, how would I not have rejoiced in that fact; for when reflecting upon that sad, unfortunate, wretched hour in the history of my country—an hour when I feel she was so much degraded, I could weep until the paper be worn away with the continual dropping of my tears. Who stood between her and the seat of mercy? Has conscience lashed the chief of the Bureau of Military Justice? [Gen. Joseph Holt.] Does memory haunt the Secretary of War? Or is it true that one who stood between her and Executive clemency now sleeps in the dark waters of the Hudson, while another died by his own violent hand in Kansas?

"The learned gentleman is right. He did come here to put these things at rest, or to endeavor to put them at rest; but he could not do it. What else is there in this case to show a feeling behind, besides public justice impelling to conviction? Gentlemen of the jury, as the counsel has stated in his speech, public rumors had gone abroad, and certain grave charges had been made. You know that political accusations had been brought against Judge Holt, Mr. Bingham, and the Secretary of War, in the House of Representatives, and that it had become a political matter." (Mr. Merrick here referred to an effort that had been made by rebel sympathizers in Congress to make political capital out of this transaction.) "There were parts of those accusations that the learned counsel was going to put at rest. Where is the proof? The proof is in this; follow me for a moment.

"I said I would show there was a conspiracy on conspiracy. What has the chief of the Bureau of Military Justice got to do with this case? Does not your honor hold an independent court? Is not the judicial tribunal of the land separate from the executive? Is it not a fundamental principle of American constitutional law that the executive and judicial departments shall be distinct and separate? The Bureau of Military Justice is a part of the executive department. What has he to do with this case? Nothing, says the counsel. Is he counsel? we ask. No, say they. Why, then, is he manipulating their witnesses in this case? Smoot, one of their witnesses, tells you that he is called up before Judge Holt, with ten others, examined, and his examination was taken down in writing. The day after giving his testimony he comes back and says that it was not Judge Holt that examined him, but was somebody else.

"I pressed him, pressed him hard, as to the place and time. He then recollected it was in the Winder Building, opposite the War Department; and when I pressed him still further, he had to say that the office he was in had written over the door 'Judge Advocate General's office.' Again I ask what had the Judge Advocate General to do with this case? Not only was Smoot there, but Norton was there, and God only knows how many more. It is apparent, then, that he has taken a deep interest in this case. Why is he taking such an interest? It is certainly indiscreet. He has lost his prudence and he has lost his discretion; he has lost his judgment thus to expose himself and his office in a criminal prosecution.

"Mr. District Attorney, gird on your loins and answer me. Whose discretion is broken down? Whose prudence is betrayed? Is there anybody else's heart at which the vulture gnaws? Is there any high and great man who is forgetting the dignity of his office and the duties of a moral creature so far as to descend to the preparation of witnesses with which he has nothing to do to satiate his hunger with the blood of an innocent being?... But I am now speaking of the Bureau of Military Justice. He you know has furnished the evidence in this case."

Mr. Merrick then went on to charge the government with preparing and presenting evidence against Surratt that it knew to be false, and then proceeded as follows: "No matter whether they knew the truth in this case or not, prudence has been betrayed; discretion has been broken down; courage has been conquered. Following on Judge Pierrepont's declaration, which I have read to you, and these circumstances, comes Mr. Carrington, breaking the cerements of the tomb, and demanding your verdict against Mrs. Surratt. In God's name isn't it enough to try the living? Will you play the gnome, and bring her from the cold, cold earth and hang her corpse? Bring her in; but there is no occasion for doing so; she is here already. We have felt our blood run cold as the rustling of the garments from the grave swept by us. Her spirit moves about, and the Judge Advocate General and all these men may understand that it is the eternal law of God, though, so far as men are concerned, fresh and innocent blood may apparently vindicate innocent blood previously shed, yet the spirit will still walk beside them.

"He may shudder before her, because she is with him by day and by night; and he may say—

But the cold blood and marrowless bones are still beside him, and her whisperings are presaging that great judgment day when all men shall stand equal before the throne of God, and when Mrs. Surratt is called to testify against Joseph Holt, what will he in vindication say?...

"Mr. Carrington, your honor, has gone outside of this record, and I must follow him to some extent, at least. He has gone outside of it in speaking of the military commission, defending the major generals and others. I am glad I recurred to it, for it reminds me of a statement of his that I desire to correct. He says we accused those honorable men of murder. No, sir; I refrain from any expression of opinion on that subject. It is true the most exalted judicial tribunal in the world, vindicating the liberty of American citizens and their constitutional rights against military authority, and maintaining the supremacy of the courts over military law, have pronounced that, and all other commissions similarly constituted, to be illegal; but what I denounce here is not the men who in judgment sat there, but the men conducting the trial, and who with this diary of Booth in their hands could have proved Mrs. Surratt's innocence by showing this conspiracy to have been organized on the 14th day of April, but who, though producing the toothpick and the penknife found on Booth, yet never so much as disclosed the fact that such a diary existed.

"They never made it known to those men or to the country. Do they not deserve to be denounced? Now that it has become known to the country, they come in before this jury to get them, with the diary in evidence before them, to find the same verdict that the military commission found.

"I put a question to a witness on that stand (referring to Father Walter) and asked him, 'Did you administer the consolations of religion to Mrs. Surratt?' 'I did. I gave her communion on Friday, and prepared her for death.' I asked him, 'Did she tell you as she was marching to the scaffold that she was an innocent woman?' I told him not to answer the question before I directed him to. He nodded his head, but he did not answer the question, because he had no right to, as the other side objected. If you are going to try that woman, and she being dead is unable to be here to defend herself, can you not at least have charity enough to let her last words come in in her defence? Will you try one who is not only absent from the court, but is dead? While trying one that is dead, will you deny to her the poor privilege of having the last word she uttered on earth spoken in her vindication? Were you afraid of it? Did you feel that the words would sink deep into the hearts of everybody that was here in this room, and in the United States, and cause to well up from that heart a fountain of mercy, rich and pure as the fountain that sprang from the rock at the bidding of the sacred rod? Shame on you! Prepared for the world to come, and marching to the scaffold, with her God before her and the world behind her, and a load of sin laid at the feet of Almighty God, and no hope but in that eternal mercy upon which we must all rely, I ask whether she cannot at such an hour speak for herself? No! you answer. Why not? is it likely she would lie? No, gentlemen, they will not say that. Then why is it? They did not want to hear it. Oh, they must indeed be hardened of heart, reckless of guilt, and indifferent to justice. But although they had no desire to hear it, they do hear it, and you hear it, for as that voice spoke then, it speaks now, and will continue to speak until justice is meted out. It whispers and is heard. It descends upon the head of that boy, and breathes on each of your hearts. Yes, gentlemen, that woman in the nameless grave in yonder arsenal yard, the cerements of which have been broken by the government, comes here to vindicate her child. 'A nameless grave' did I say? Yes, alas! too true. Aye, sir, it would seem as if the ordinary feelings of humanity and common respect for the dead, to say nothing of regard for the honor of our country and sympathy for the sufferings of a distracted and loving daughter, would suggest to those pressing the prosecution (and who have charge of the matter) to allow this poor girl the privilege of paying a simple tribute to a mother's love by having her remains removed from a felon's grave. Yes! there that mother lies in a nameless grave, on which no flower is allowed to be strewn by that heart-broken daughter, who for the past two years has been earnestly pleading that she might have the privilege of placing those last sad, and to her, sacred relics, where filial love might weep the tear, and a filial hand plant a flower on the tomb."

Mr. Merrick then went on to meet the argument that Surratt had confessed his guilt by flight by declaring that the mad passions of the hour, and tyrannical usurpations of the government in its method of dealing with those charged with this crime, by sending them before a military commission instead of a civil court for trial, justified him in his flight.

He then went on to vindicate the Catholic Church, which he claimed had been assailed in this matter. The only reference to the Catholic Church in connection with this trial had been made in the public press. The prosecution had carefully abstained from any assault on that church, and had tried to exclude religious prejudices from the minds of the jurors.

Mr. Merrick, however, seized the occasion to pass an eulogium on that church, in which he showed as much disregard for the facts of history as he did for the proven facts in this case. Perhaps he felt this vindication to be called for from the fact that most of the conspirators were Catholics in religion, and the further fact that the friends who waited and watched for the return of his client to Montreal after the assassination, and who, on his return, spirited him away and kept him secreted for five months and then helped him off to Italy, where he was found in the ranks of the Pope's army, and who voluntarily came before the court on his trial to testify, and to procure testimony in his behalf, were priests of that church. In his eulogium on that church he forgot to mention the fact that the Pope at an early period of the war acknowledged the Southern Confederacy and wrote a sympathizing letter to Jefferson Davis, in which he called him his dear son and denounced President Lincoln as a tyrant. He could scarcely have forgotten that the Pope of Rome had sought to take advantage of the arduous struggle in which our government was engaged for the preservation of its life, to establish a Catholic Empire in Mexico, and had sent Maximillian, a Catholic prince, to reign over that, at that time, unhappy people, under the protection of the arms of France, lent to the furtherance of his unholy purpose by the last loyal son of the church that ever occupied a throne in Europe. Perhaps he did not realize that it was God who frustrated that last grasp of the drowning man at a straw that eluded his grasp, by preparing for his holiness, the Pope, and for Louis Napoleon just at that moment the Franco-Prussian war, which resulted in the final loss of his temporal power to the Pope and with it his grip on the world, and of his empire and crown to the last servile supporter of his temporal pretensions. To claim for that church, as Mr. Merrick did, friendship to civil liberty, respect for the rights of conscience and of private judgment, and love for our republican institutions, is to ignore, or set at naught, all the dogmas of that church on the above questions and all the claims of the Papacy. Mr. Merrick manifestly thought that the attitude of the Catholic clergy toward the assassination of the President could be hidden from public view by his fulsome eulogy.

The appeals made by the eminent counsel for the prisoner to the political and religious prejudices of jurors was ably seconded all through the trial by the Jesuit priesthood of Washington City and the vicinity. It will be recalled by scores of people who attended the trial that not a day passed but that some of these were in the court-room as the most interested of spectators. That they were not idle spectators may be inferred from the fact that whenever it seemed necessary to the prisoner's counsel to find witnesses to contradict any testimony that was particularly damaging to their cause they were always promptly found, and were almost uniformly Catholics in religion, as shown by their own testimony on their cross-examination. It was a remarkable fact, also, that these witnesses were scarcely ever able to come from under the fire of Judge Pierrepont's searching cross-examinations uncrippled, and also that when they took the risk of bringing two witnesses in rebuttal of the same testimony their witnesses uniformly killed each other off before they got through the ordeal that tests the truthfulness of witnesses—the cross-examination. Other outside influences were brought to bear on jurors, such as these: Father John B. Menu, from St. Charles College, spent a day in the court-room, sitting beside the prisoner all day, thus saying to the jury, "You see which side I am on." A great many of the students from the same college also visited the trial, it being vacation, and they uniformly took great pains to show their sympathy with the prisoner by shaking hands with him. The press also was prostituted almost daily by publishing cunningly devised paragraphs impugning the motives of the government in the prosecution and management of the case. Thus were the prejudices of jurors appealed to and efforts also made to pervert public opinion.

I have quoted thus at length from Mr. Merrick's argument to show, first the animus of the defense toward the government, and especially toward the Judge Advocate General, Joseph Holt, and the Secretary of War at time of the assassination, Edwin M. Stanton. These two officers of the government need no vindication at my hands before the loyal people of this country, as they were never denounced by any but rebels, whose especial venom against them would be the strongest presumptive evidence of their virtue and efficiency. A purer man, a truer patriot, a braver, more intelligent and able officer than Gen. Joseph Holt never will grace the pages of American history. He was only hated and denounced by rebels because of his faithfulness to duty and efficiency in its performance. Of Edwin M. Stanton, also, it is needless for me to say a word. His place is fixed in history, and his record cannot be blurred by the false and vile charges or insinuations of his enemies, for his enemies were only found amongst the enemies of his country, and precisely for the same reason that they were enemies of the Judge Advocate General. The charges here so boldly made that they stood between Mrs. Surratt and an appeal to the Executive for clemency, was shown to be false by Judge Pierrepont, who produced the official record of the trial of the conspirators, together with a paper signed by some members of the court recommending commutation of the sentence of Mrs. Surratt to imprisonment for life on account of her age and sex, and showed that this whole record had been laid before the President and a full cabinet, and that after mature discussion and consideration it had received their unanimous approval, with the exception of the request for the commutation of Mrs. Surratt's sentence which, though not a part of the record, was presented with it; and that the President's order for the execution of the sentence of the court had been written on the back of this very record.

These papers containing this whole record were handed to Mr. Merrick, who tossed them from him indignantly, afterwards assigning as his reason for doing so that he had learned to distrust everything that came from the Bureau of Military Justice. His real reason was that he did not desire to be estopped from reiterating the falsehoods he had so boldly proclaimed.

His denunciation of the Judge Advocate General for assisting the prosecution by furnishing them with witnesses, to prove facts found on his records, if he did indeed thus assist, is unmerited; as it is not only the duty of every private citizen, but of every public officer as well, to assist, if it be in his power to do so, in securing the ends of justice where crimes have been committed, and the safety, peace, and welfare of society put in jeopardy. His deliberate false assumption that the prosecution had put Mrs. Surratt on trial is worthy of note, as he himself dragged her case in even before a jury was impaneled; and his colleague, Mr. Jos. H. Bradley, Jr., in his opening speech, had also brought it up in such a way that the District Attorney was forced to notice it. It was evidently a premeditated scheme of the defense, and was done for the purpose of appealing to the prejudices of jurors, and of making political capital.

Mr. Merrick's portrayal of the scenes incident to the execution of Mrs. Surratt was a fine piece of eloquent and pathetic declamation. We cannot but deplore, however, that the fine sensibilities of the counsel had not found occasion for their display in the case of the widow and orphan child of the martyred President, rather than in the person of one proven guilty of complicity in his assassination, and of being so actively engaged in that tragedy that she had traveled twenty miles on that fatal Friday afternoon to carry, at Booth's request, a field glass which he had delivered to her for the purpose, to Surrattsville, to be deposited and delivered by Lloyd, at her request, along with the carbines and the whiskey, to the assassins on that night, when fleeing from the seat of their crime, and from offended justice. It is to be deplored that he had no tears for the crazed widow and orphan child of the murdered President, when he could find such a generous fountain for his murderers. Such, however, is the deplorable effect of political and religious prejudice on frail human nature, that it perverts our moral sensibilities and warps our judgment. Mr. Merrick could see nothing but innocence in the prisoner and his mother, although the proof of their guilt was piled mountain high. It will have been noticed that he unequivocally asserts that the Supreme Court of the United States had decided that the commission that tried the assassins was an illegal tribunal. We shall have occasion hereafter to show that this is untrue.

If the counsel for the defense was not aware of this fact, it was because they had failed to grasp the meaning of the decision to which they referred, and on which they relied.

It was neither fair nor honest in them, after dragging into the trial the question of Mrs. Surratt's guilt or innocence, and that for the purpose we have above indicated, to endeavor, in the face of the facts, to shift the burden of the responsibility for this on to the prosecution. It was equally dishonest to insinuate that the prosecution of John H. Surratt was not entered upon alone for the purpose of ascertaining his guilt or innocence, but in order that the false stories that had been published in regard to the course of the government in executing Mrs. Surratt might be set at rest. The most eloquent counsel for the defence, ably assisted by his colleagues, endeavored to put the government, and not the prisoner, on trial before the jury, and before the country. They uniformly and boldly asserted his innocence, whilst they arraigned the government for having murdered, according to one, and butchered according to another, an innocent woman; and also of being in this trial engaged in an endeavor to cover up the guilt of shedding her innocent blood, by shedding the blood of her innocent son. To cap the climax of their audacity Mr. Bradley, after reiterating the charges made by Mr. Merrick and Joseph H. Bradley, Jr., asked the jury, in making up their verdict, to make a written statement at the same time of their belief that Mrs. Surratt had been unjustly condemned, and found guilty upon insufficient evidence.

They charged the government with dishonesty in withholding Booth's diary from the commission; claiming that it would have proven Mrs. Surratt's innocence. They could not have failed to know, as able lawyers, that this diary was of no account whatever as evidence. It was no more admissible than was Atzerodt's confession, as every entry that was made in it was made with the almost certainty of his capture in view, and for the purpose of concealing the greatness of the conspiracy and its personnel. It was of no more value than was his declaration in favor of his fellow-conspirator, Herold, that he was an innocent man, made a few moments before he was shot.

In his argument on the defense of an alibi set up by the prisoner, Mr. Merrick makes great account of the evidence of the detectives who visited and searched Mrs. Surratt's house at two o'clock on the morning of the 15th of April, that Mrs. Surratt declared that John was not there, and that she had not seen him for two weeks.

She claimed that he was in Montreal, and that she had received a letter from him on the day previous. They well knew that her declarations had no value as testimony, and that there was evidence flatly contradicting her statements.

That she had received the letter as claimed, was true; but that that letter had been written for the very purpose of being used in the defence of an alibi is evident from its contents, when considered in connection with the evidence in the case. It will be remembered that Wiechmann, who was a boarder in the house, answered the door-bell, when the detectives rang it for the purpose of demanding admittance, that they might search the house. He rapped at Mrs. Surratt's door and informed her as to who was at the door and what they had come for. Her answer was, "For God's sake, let them come in; I have been expecting them."31 When they inquired for her son she said, "He is not here; I have not seen him for two weeks." This was a sufficient answer, but her guilty conscience would not let her stop here, she had to add, "There are a great many mothers who do not know where their sons are." Let us ask ourselves at this point, how many mothers in Washington City at that hour of that eventful night were lying awake expecting their houses to be searched by detectives? Our inner consciousness will unerringly dictate the answer, "Not one who was innocent of crime." It is only necessary to say, further, in regard to this defense set up, of an alibi, that although there is no more common defense resorted to by criminals, because there is none more easy of establishment, there was never perhaps in all the history of jurisprudence a weaker and more unsuccessful effort made to establish it than in this defense. The effort made by the prisoner to establish an alibi showed plainly that he had endeavored to prepare for it, in anticipation for his defense, and that, in this preparation he had had able help. There is good reason to conclude that he and a half dozen other of his friends in Canada had found an opportunity to visit Canandaigua in disguise, for the purpose of doctoring up a hotel register to be used in evidence. The effort after all, proved a miserable failure.

That he went from Montreal to Elmira, N.Y., leaving the former place at two o'clock on the morning of the 12th of April, was admitted. There was evidence that he was in Elmira on the morning of the 13th, and two or three credible witnesses were found who swore that they saw him there either on the 13th or 14th. They were willing to conclude that it might have been on the 14th; but would not positively swear that it was. On the other hand the government produced two witnesses who identified him as a man whom they saw on the road making his way towards Baltimore, on the 13th, one of whom ferried him over the Susquehanna river, and stopped mid-stream to collect his fare, and so talked with him and had a good look at him. It was then proven by nearly a dozen witnesses that they saw him in Washington City on the 14th. So that the great preponderance of evidence was against the alibi; and so it legally failed. The defense was lame and weak at every point in the light of the evidence, which all tended to show the prisoner's guilt. It was only strong in the bold efforts of his counsel to scout all the testimony against him, and to have the jury accept their assertions of his innocence, backed by their weight of character as lawyers, in lieu of evidence, to establish his innocence, and in contumning and rejecting that which established his guilt.

They also made great complaint that they were not allowed to prove by John Matthews, the contents of the paper which he alleged was put into his hand by Booth, a few hours before the commission of his crime, with the request that he would, on the following day, upon certain contingencies, give it to the editor of the National Intelligencer for publication, and which Matthews claimed to have destroyed. Of course they knew that nothing could be proven by this paper, much less by evidence as to its contents, yet, when it was not admitted by the court, they reserved an exception, and then in argument claimed that had they been allowed the benefit of this, they could have shown that the purpose of assassination was not formed until that day, and that neither the prisoner nor his mother was in it.

Matthews afterwards published what he said he desired to testify to, but was not permitted to do so by the Court. The statement that he claimed to be of Booth in this paper, gave the lie to Atzerodt's confession. These able lawyers knew full well that culprits, anticipating arrest and trial, could not be permitted to manufacture evidence in their own favor in advance. Yet they did not scruple to use, in an indirect way, in argument before the jury, this very testimony that had been excluded. Booth's diary, Booth's statement for publication, Atzerodt's confession, and the lecture of John H. Surratt, in which he makes his confession and statement of the affair, are all of a piece, and alike unworthy of credit, because they are all contradicted by sufficient and reliable testimony in every important particular. The eloquence of counsel in regard to the grave of Mrs. Surratt, who was buried in the grounds of the old arsenal, being a nameless grave, is wasted eloquence in the mind of every loyal man and woman in the country, as the heniousness of the crime of which she was convicted, made it fitting that she should sleep in a nameless grave, and that the spot of her resting-place be unknown, as an admonition to all traitors to their country, and its free institutions of government, and whose disloyalty fits them for the highest crimes that man can commit, of the infamy that awaits them in the just verdict of an outraged people. Mrs. Surratt's remains were given up to her daughter two years later, in 1869.

We will now give a few of the opening paragraphs of Judge Pierrepont's argument for the prosecution, in which he disposes of the outside and irrelevant matter that had been lugged into the defense, and out of which they had endeavored to make so much capital.

"May it please your honor, and gentlemen of the jury, I have not, in the progress of this long and tedious cause, had the opportunity as yet of addressing to you one word. My time has now arrived, 'Yea, all that a man hath will he give for his life.' When the book of Job was written, this was true, and it is just as true to-day. A man, in order to save his life, will give his property, will give his liberty, will sacrifice his good name, and will desert his father, his brother, his mother and his sister. He will lift up his hand before Almighty God and swear that he is innocent of the crime with which he is charged. He will bring perjury upon his soul, giving all that he hath in the world, and be ready to take the chances and jump the life to come; and so far as counsel place themselves in the situation of their client, and just to the degree that they absorb his feelings, his terror, and his purposes, just so far will counsel do the same.

"I am well aware, gentlemen, of the difficulties under which I labor in addressing you. The other counsel have all told you that they know you and that you know them. They know you in social life, and they know you in political affairs. They know your sympathies, your habits, your modes of thought, your prejudices even. They know how to address you, and how to awaken your sympathies, whilst I come before you a total stranger. There is not a face in those seats that I have ever beheld until this trial commenced, and yet I have a kind of feeling pervading me that we are not strangers.

"I feel as though we had a common origin, a common country, and a common religion, and that, on many grounds, we must have a common sympathy. I feel as though, if hereafter I should meet you in my native city, or in a foreign land, I should meet you, not as strangers, but as friends. It was not a pleasant thing for me to come into this case. I was called into it at a time ill-suited in every respect. I had just taken my seat in the convention called for the purpose of forming a new constitution for my State, and I was a member of the judiciary committee. The convention is now sitting, and I am now absent where I ought to be present. I feel, however, that I had no right to shirk this duty.

"The counsel asked whether I represented the Attorney General in this case. They had, perhaps, the right to ask, and so asking I give you the answer. There surely is no mystery about the matter. The District Attorney, feeling the magnitude of this case, felt that he ought to apply to the Attorney General for assistance in the prosecution of it, and he accordingly made the application. I have known the Attorney General for more than twenty years. Our relations have been most friendly, both in a social and professional point of view. The Attorney General conferred with the Secretary of State, who is, as you know, from my own State, and they determined to ask me to assist in the prosecution of this cause. On receiving a letter from the Secretary of State, I came to Washington, when I met him and the Attorney General. This is the way I happened to be here engaged in this case; and I may say that I am assured that there was no member of the cabinet but those two who ever heard or knew of my retainer until after my arrival here. I have simply tried to perform my duty as I best could, but I have, no doubt, failed to a great extent. A trial, protracted as this has been, and in such oppressive weather, is indeed a trial. It is a trial to the court, it is a trial to you, it is a trial to the counsel, it is a trial to health, it is a trial to patience, and it is a trial to temper.

"When the President of the United States was assassinated, I was one of a committee sent on by the citizens of New York to attend his funeral. When standing, as I did stand, in the east room by the side of that coffin, if some citizen sympathizing with the enemies of my country had, because my tears were falling in sorrow over the murder of the President, there insulted me, and I had at that time repelled the insult with insult, I think my fellow-citizens would have said to me that my act was deserving of condemnation; that I had no right, in that solemn hour, to let my petty passions or my personal resentments disturb the sanctity of the scene. To my mind the sanctity of this trial is far above that funeral occasion, solemn and holy as it was, and I should forever deem myself disgraced if I should ever allow any passion pf mine or personal resentment of any kind to bring me here into any petty quarrel over the murder of the President of the United States. I have tried to refrain from anything like that, and God helping me, I shall so endeavor to the end.

"To me, gentlemen, this prisoner at the bar is a pure abstraction. I have no feeling toward him whatever. I never saw him until I saw him in this room, and then it was under circumstances calculated to awaken only my sympathy. I never knew one of his kindred, and never expect to know one of them. To me he is a stranger. Toward him I have no hostility, and I shall not utter any word of vituperation against him. I came to try one of the assassins of the President of the United States, as indicted before you. I laid personal considerations aside, and I hope I shall succeed in keeping them from this cause, so far as I am concerned. I believe, gentlemen, that what you wish to know in this case is the truth. I believe it is your honest desire to find out whether the accused was engaged in this plot to overthrow this government and assassinate the President of the United States. My duty is to try to aid you in coming to a just conclusion. When this evidence is reviewed, and when it is honestly and fairly presented, when passions are laid aside, and when other people who have nothing to do with the trial are kept out of the case, you will discover that in the whole history of jurisprudence no murder was ever proved with the demonstration with which this has been proven before you. The facts, the proofs, the circumstances all tend to one point, and all prove the case, not only beyond a reasonable, but beyond any doubt.

"This has been, as I have already stated, a very protracted case. The evidence is scattered. It has come in link by link, and as we could not have witnesses here in their order when you might have seen it in its logical bearings, we were obliged to take it as it came; and now it becomes my duty to put it together and show you what it is. I shall not attempt, gentlemen, to convince you by bold assertions of my own. I fancy I could make them as loudly and as confidently as the counsel on the other side, but I am not here for that purpose. The counsel are not witnesses in the cause. We have come here for the purpose of ascertaining whether under the law and on the evidence presented, this man arraigned before you is guilty as charged. I do not think it proper that I should tell you what I think about everything that may arise in the case, or that I should tell you that I know that this thing is so, and that the other is another way. My business is to prove to you from this evidence that the prisoner is guilty. If I do that I shall ask your verdict. If I do not do that, I shall neither expect nor hope for it."

"I listened, gentlemen, to the two counsel who have addressed you for several days, without one word of interruption. I listened to them respectfully and attentively. I knew their earnestness, and I know the poetry that was brought into the case, and the feeling and the passion that was attempted to be excited in your breasts, by bringing before you the ghost trailing her calico dress and making it rustle against these chairs. I have none of these powers which the gentlemen seem to possess, nor shall I attempt to invoke them. I have come to you for the purpose of proving that this party accused here was engaged in this conspiracy to overthrow this government, which conspiracy resulted in the death of Abraham Lincoln, by a shot from a pistol in the hands of John Wilkes Booth. That is all there is to be proven in this case.

"I have not come here for the purpose of proving that Mrs. Surratt was guilty or that she was innocent, and I do not understand why that subject was lugged into this case in the mode that it has been; nor do I understand why the counsel denounced the military commission who tried her, and thus indirectly censured, in the severest manner, the President of the United States. The counsel certainly knew when they were talking about that tribunal, and when they were thus denouncing it, that President Johnson, President of the United States, ordered it with his own hand; that President Johnson, President of the United States, signed the warrant that directed the execution; that President Johnson, President of the United States, when that record was presented to him, laid it before his cabinet, and that every single member voted to confirm the sentence, and that the President with his own hand, wrote his confirmation of it, and with his own hand signed the warrant. I hold in my hand the original record, and no other man, as it appears from that paper, ordered it. No other one touched this paper; and when it was suggested by some of the members of the commission that in consequence of the age and the sex of Mrs. Surratt it might possibly be well to change her sentence to imprisonment for life, he signed the warrant for her death with the paper right before his eyes—and there it is (handing the paper to Mr. Merrick). My friend can read it for himself.

"My friends on the other side have undertaken to arraign the government of the United States against the prisoner. They have talked very loudly and eloquently about this great government of twenty-five or thirty millions of people being engaged in trying to bring to conviction one poor young man, and have treated it as though it was a hostile act, as though two parties were litigants before you, the one trying to beat the other. Is it possible that it has come to this, that, in the city of Washington, where the President has been murdered, that when under the form of law, and before a court and jury of twelve men, an investigation is made to ascertain whether the prisoner is guilty of this great crime, that the government are to be charged as seeking his blood, and its officers as lapping their tongues in the blood of the innocent? I quote the language exactly. It is a shocking thing to hear. What is the purpose of a government? What is the business of a government? According to the gentleman's notion, when a murder is committed the government should not do anything towards ascertaining who perpetrated that murder; and if the government did undertake to investigate the matter and endeavor to find out whether the man charged with the crime is guilty or not guilty the government and all connected with it must be expected to be assailed as 'blood hounds of the law,' and as seeking 'to lap their tongues in the blood of the innocent.' Is that the business of government, and is it the business of counsel under any circumstances thus to charge the government? What is government for? It is instituted for your protection, for my protection, for the protection of us all. What could we do without it? Tell me, my learned and eloquent counsel on the other side, what would you do without a government? What would you do in this city? Suppose, for instance, a set of young men, who choose to lead an idle life, say to themselves that it is not right that some rich man living here should be enjoying his hoarded wealth, and they break into his house at night and steal therefrom. My learned friend would say, when you came to prosecute them for that robbery, 'What! would you have this great and generous government of twenty-five or thirty millions of people pursue these poor young men, who merely tried to break into the house of one of your citizens and steal his money? Should not this government be generous and let them go? Oh, yes! Let them off. Well, they are let off, and a few days afterward they break into the house of my friend, Mr. Merrick, for the purpose of stealing his money, when he, a brave man, undertakes to resist them, and in doing so they strike him down in death. Oh, generous government! with twenty-five or thirty millions of people, let the young men off. Why should a great and generous government with all its powers be pursuing the young men who thus murdered Mr. Merrick while attempting to prevent a robbery at his house?

"Why should the officers of the government be 'lapping their tongues in the blood of the innocent?' Suppose this view as to the duty of a government were universally entertained, what would be the result? How long would your government last? How long would you hold a dollar of property? How long would the safety of your daughters be secure? How long would the life of your sons, who stand in resistance to lust and rapine, be safe? I have never heard such shocking sentiments uttered in relation to the duty of government from any human lips, or from any writer on the face of the earth. We have been told here that our government has nothing of divinity that hedges it about; that it is only the government of man's making. The Bible tells us that all government is of God; that the powers that be are ordained of God; and I can tell you, gentlemen, if such are the sentiments of this country that there is no divinity and no power of God that hedges about this government, its days are numbered, its condemnation is already written, and it will lie in the dust before many years have rolled by. No government that is not of God will last. It will soon come to naught. No other government ever did long exist. No other government can exist. Every government which is a government of the people is of God, and the powers that be are ordained of God. When you come together to the polls, and you elect as the ruler of this great nation a President, he is made so by the sanction of your votes, and in that act the voice of the people becomes the voice of God. I repeat, a government which is thus instituted is ordained of God, and it is as much hedged about as that of any king that ever reigned on England's throne. Is it possible that our countrymen will say that the government which we thus have made, which our fathers established, and which we are thus cherishing, has nothing of divinity hedging it about?

"Does it rest alone on human whim, without having anything sacred about it, and without any protection of the Almighty over it? If so, let me again repeat, its days are numbered; it will soon pass away. Once there was an empire in Rome. It was an empire which was in its day the greatest which the human mind had ever reared; but it did not believe, or rather ceased to believe, that there was a God who ruled; that government was of God; and they ceased to punish great crimes, such as treason, rapine, and murder, and it happened a very short time after they ceased to inflict punishment for such crimes—ceased to exercise the powers which belong to government—that the Roman empire tumbled into ruins.

"It was trampled down by the barbarians, and now not a son of the Cæsars lives on the face of the earth, and not a descendant of a Roman matron exists anywhere in this wide universe. The empire perished, and crumbled into dust; nothing but its ashes remain. And thus will it ever be whenever a people cease to obey God, and cease to think that government is of God. Let us see what the Bible says on this subject; what views were entertained in the Old Testament, and what in the New." Mr. Pierrepont then read from 1st Samuel, chapter xv, as follows:—

"'Samuel also said unto Saul, the Lord sent me to anoint thee to be king over his people, over Israel; now therefore hearken thou unto the voice of the words of the Lord.

"'Thus saith the Lord of hosts, I remember that which Amalek did to Israel, how he laid wait for him in the way, when he came up from Egypt.

"'Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.

"'And Saul gathered the people together, and numbered them in Telaim, two hundred thousand foot-men, and ten thousand men of Judah.

"'And Saul came to a city of Amalek, and laid wait in the valley.

"'And Saul said unto the Kenites, go, depart, get you down from among the Amalekites, lest I destroy you with them; for ye showed kindness to all the children of Israel, when they came up out of Egypt. So the Kenites departed from among the Amalekites.

"'And Saul smote the Amalekites, from Havilah until thou comest to Shur, that is over against Egypt.

"'And he took Agag, the king of the Amalekites, alive, and utterly destroyed all the people with the edge of the sword.

"'But Saul and the people spared Agag, and the best of the sheep, and of the oxen, and of the fatlings, and of the lambs, and all that was good, and would not utterly destroy them; but every thing that was vile and refuse, that they destroyed utterly.

"'Then came the word of the Lord unto Samuel, saying, It repenteth me that I have set up Saul to be king; for he is turned back from following me, and hath not performed my commandments. And it grieved Samuel, and he cried unto the Lord all night.

"'And when Samuel rose early to meet Saul in the morning, it was told Samuel, saying, Saul came to Carmel, and behold, he set him up a place, and is gone about, and passed on, and gone down to Gilgal.

"'And Samuel came to Saul, and Saul said unto him, blessed be thou of the Lord; I have performed the commandment of the Lord.

"'And Samuel said, what meaneth then this bleating of sheep in mine ears, and the lowing of the oxen which I hear?

"'And Saul said, they have brought them from the Amalekites; for the people spared the best of the sheep, and of the oxen, to sacrifice unto the Lord thy God, and the rest we have utterly destroyed.

"'Then Samuel said unto Saul, stay, and I will tell thee what the Lord hath said to me this night. And he said unto him say on.

"'And Samuel said, when thou wast little in thine own sight, wast thou not made the head of the tribes of Israel, and the Lord anointed thee king over Israel?

"'And the Lord sent thee on a journey, and said, go and utterly destroy the sinners of the Amalekites, and fight against them until they be consumed.

"'Wherefore then didst thou not obey the voice of the Lord, but didst fly upon the spoil, and didst evil in the sight of the Lord.

"'And Saul said unto Samuel, yea, I have obeyed the voice of the Lord, and have gone the way which the Lord sent me, and have brought Agag, the king of Amalek, and have utterly destroyed the Amalekites.

"'But the people took of the spoil, sheep and oxen, the chief of the things, which should have been utterly destroyed to sacrifice to the Lord thy God in Gilgal.

"'And Samuel said, hath the Lord as great delight in burnt offerings and sacrifices as in obeying the voice of the Lord? Behold to obey is better than sacrifice, and to hearken than the fat of rams.

"'For rebellion is as the sin of witchcraft, and stubbornness is as iniquity and idolatry; because thou hast rejected the word of the Lord, he hath also rejected thee from being king.

"'And Saul said unto Samuel, I have sinned, for I have transgressed the commandment of the Lord, and thy words; because I feared the people, and obeyed their voice.

"'Now, therefore, I prayed thee, pardon my sin, and turn again with me that I may worship the Lord.

"'And Samuel said unto Saul, I will not return with thee; for thou hast rejected the word of the Lord, and the Lord hath rejected thee from being king over Israel.

"'And as Samuel turned about to go away, he laid hold upon the skirt of his mantle, and it rent.

"'And Samuel said unto him, the Lord hath rent the kingdom of Israel from thee this day, and hath given it to a neighbor of thine, that is better than thou.

"'And also the strength of Israel will not lie nor repent; for he is not a man that he should repent.

"'Then he said, I have sinned; yet honor me now, I pray thee, before the elders of my people, and before Israel, and turn again with me, that I may worship the Lord thy God.

"'So Samuel turned again after Saul, and Saul worshiped the Lord.

"'Then said Samuel, bring ye hither to me Agag, the king of the Amalekites. And Agag came unto him delicately. And Agag said, surely the bitterness of death is past.

"'And Samuel said, as thy sword has made women childless, so shall thy mother be childless among women. And Samuel hewed Agag in pieces before the Lord in Gilgal.

"'Then Samuel went to Ramah; and Saul went up to his house to Gibeah of Saul.

"'And Samuel came no more to see Saul until the day of his death; nevertheless, Samuel mourned for Saul; and the Lord repented that he had made Saul king over Israel.'"

Mr. Pierrepont then read from the eighteenth chapter of St. Matthew as follows:—

"'Woe unto the world because of offences, for it must needs be that offences come; but woe unto that man by whom the offence cometh.... It were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.'

"Such was the order in the times of this Book. All government is of God. The powers that be are ordained of God. Now, from whom come those words? Not from the Old Testament, but they come from the meek and lowly Jesus, the Saviour of the world, who died for you, for me, for all. It is true as the counsel have said, that God is a God of mercy; but he says: 'Though I am a God of mercy, I will by no means clear the guilty.' Now the counsel who has addressed you, you will remember, said in his speech, with great earnestness: 'We have had blood enough; let us have peace.' The question before you, gentlemen, is not about blood. The question is not about peace. The question before you is whether you have not had murder enough, and assassination enough, and crime enough, to enable us to have at least once before a civil tribunal in this land a trial and a verdict. Not a single one of all those engaged in the conspiracy has been tried before a civil tribunal; and the question now is, have you not had enough of this murder, enough of this assassination, to have at least one jury of the country say so, and to say that we will stop it? You and I have nothing to do with the consequences. All we have to do is to do our duty, and ascertain whether the man is guilty. You do not punish the man; I do not punish the man. I have not a feeling toward him of punishment, and you have no such feeling. The duty does not lie with you, nor with me; we have nothing to do with that. The question for us is to see whether this man is guilty of this violation of the law of the land as charged; and if so, to so declare; and then, if for any cause, the Executive sees fit to show leniency, he will show it. If he does not, he will not. It is not for you or for me to have to say what the leniency should be. It is not for you or for me to have anything to say upon that question. Our business is, I repeat, to ascertain whether he is guilty of this violation of the law, and if he is guilty, so to say, and then afterward to say whatever we thought fit to be said with regard to any leniency. Our duty is, and the duty of the court is, to find out that one fact, and to have you pronounce your verdict, under your oath, according to the facts as you find them.