“Beware the people weeping /
When they bare the iron hand” 

Herman Melville, “The Martyr”

It is one of the most famous photographs of the nineteenth century: Alexander Gardner’s picture of four hooded figures dangling from a gallows in the old federal penitentiary in Washington, D.C. on July 7, 1865.  On that sweltering afternoon, about a hundred civilians mingled in the courtyard below, while soldiers patrolled the walkway on top of the brick wall behind the gallows.  Throughout this spectacle, the crowd chanted, “Remember Booth the murderer.”  John Wilkes Booth, however, was not present, having been shot to death in a Maryland barn by a Union soldier less than three months earlier.  The four persons hanged had been convicted of conspiring with Booth in his assassination of President Abraham Lincoln.  Three of the four—George Atzerodt, David Herold, and Lewis Payne—were lowlifes who had indeed been privy to Booth’s plot.  The fourth, Mrs. Mary Surratt, was almost certainly a scapegoat sacrificed to the bloodlust of a grieving nation.  How these four prisoners came to their fate (deserved or not) is a cautionary tale for our time.

The murder of Lincoln at Ford’s Theater on the evening of April 14, 1865, only five days after Lee’s surrender to Grant, produced a national trauma.  The end of the War Between the States seemed to promise the survival of the Union.  Lincoln advocated national reconciliation, and many in the North were willing to acquiesce to a policy of relative leniency toward the South.  Given the President’s popularity, radicals within his own party were forced to suppress their desire for retribution.  In particular, Lincoln’s second inaugural address offered healing for a war-torn people.  But at least one member of the crowd that heard that address was in no mood for healing.  John Wilkes Booth was a charismatic young actor and Southern sympathizer who felt guilty for never having served in the Confederate army.  When his earlier plan to kidnap Lincoln and exchange him for a large number of rebel prisoners proved unfeasible, Booth resolved to avenge the South by killing the President.

While the elimination of Lincoln might have aided the Southern cause during the war, it proved absolutely disastrous coming so soon after the end of hostilities.  Any desire for national reconciliation came to an abrupt end in the North, as cries of recrimination were immediately forthcoming from the newspapers and pulpits of the conquering region.  Even the people of the South, who might have secretly rejoiced at the death of their enemy, knew that their lot would now be harder.  (When the old Southern patriarch Colonel Cameron hears of Lincoln’s death in D.W. Griffith’s The Birth of a Nation, he declares: “Our best friend is gone.  What will become of us now?”) The more vindictive radicals, whom Lincoln had been able to hold in check, were now running the country, while Lincoln himself was viewed as a martyr.  Booth might have assured his own place in history, but it was as an archvillain rather than a Southern Brutus.

If the survival of the Union seemed assured by the end of the war, Lincoln’s death cast that prospect into doubt.  Although political assassinations were common in Europe, Lincoln was the first American president to be struck down by violence.  At the same time, Lewis Payne had made a futile attempt on the life of Secretary of State William Seward, while George Atzerodt had been instructed to kill Vice President Andrew Johnson.  During four years of war, the Confederate army had never sought to overthrow the Northern government.  (The South simply wanted to leave the Union in peace.)  Even the election of 1864 was allowed to proceed in the midst of war.  Now a band of demented conspirators appeared to threaten an American coup d’etat.  It would have required extraordinary statesmanship to preserve constitutional liberties in the face of the ensuing national hysteria.  The new President, Andrew Johnson (a feckless alcoholic who had been put on the national ticket for purely political reasons), and the de facto ruler of the country, Secretary of War Edwin Stanton, did not even try.

The aspect of the Lincoln conspiracy trial that has the most relevance for our present situation was the decision to try Atzerodt, Herold, Payne, and Mrs. Surratt in a military tribunal.  Never before had American civilians been subjected to  military jurisprudence during peacetime.  Five years earlier, such a trial would have been virtually unthinkable.  During the War Between the States, however, the trying of civilians in military courts (often for trivial offenses) and the suspension of habeas corpus became common.  By making the survival of the Union his overarching goal, Lincoln sought to justify the widespread disregard of civil liberties.  He argued somewhat disingenuously that, if the Union fell, there would no longer be any civil authority for preserving the Constitution.  (He would not admit the possibility of two separate constitutional republics existing on American soil.)  Given the corrosive effect of such reasoning, it was not difficult for Lincoln’s successors to propose using a military tribunal to try those accused of complicity in his murder.  According to their twisted logic, this expedient was justified by the fact that the District of Columbia was a military venue and Lincoln was Commander in Chief.

Although several prominent Northern newspapers (particularly the New York World and the New York Tribune) denounced the military trial as unconstitutional (the World called it a “star chamber”), the general public wanted vengeance.  Mob actions against Southerners, Copperheads, and theatrical people of no discernible political beliefs were common.  With the public denied the satisfaction of Booth’s trial and execution, attention quickly turned to his accomplices.  Although there was sufficient evidence to convict Atzerodt, Herold, and Payne in a civilian court, the process would not have been as efficient as that of the military tribunal.

Under martial law, the defendants could be forced to answer multiple accusations in a single count, and they enjoyed only limited privacy in consulting their attorneys.  Moreover, in a military tribunal, the judge advocate shared the duties of both prosecutor and judge.  Finally, the only appeal from the judgment of the military court was to the President himself.  The most benign interpretation of this travesty of justice is that the government was yielding to the public’s demand for swift retribution.  In the minds of some observers, there was a more sinister reason for these unusual proceedings.  To them, the silencing of the conspirators (who were hooded and manacled during much of their trial), the shooting of Booth, and the mysterious disappearance of several pages of Booth’s diary suggested that the plot against Lincoln was orchestrated by Radical Republicans eager to eliminate Lincoln and just as eager to cover their own tracks.

In condemning Mary Surratt, the government was casting its net beyond Booth and his inner circle.  Her guilt was largely by association.  Her son, John H. Surratt, Jr., was a friend of Booth and a blockade runner for the Confederacy; and both Atzerodt and Payne had stayed briefly at her boarding house in Washington.  The two principal witnesses against her, John M. Lloyd and Louis J. Weichmann, knew more than Mrs. Surratt did about Booth’s activities; they were fortunate enough, however, to cut a deal with the government for their inconsistent and perjured testimony.  In fleeing the country, John Surratt left his mother to be a symbolic victim of public wrath.  As both a Southerner and a Roman Catholic, she belonged to two of the nation’s most hated minority groups.

Although they pronounced the sentence of death upon Mary Surratt, the members of the tribunal did not believe it would ever be carried out.  Along with the sentence, the tribunal also drafted a plea that President Johnson spare her because of her age and sex.  We can not be certain that Johnson ever saw that plea; however, we do know that he refused to see Mrs. Surratt’s daughter on the day of the execution and flatly denied the intercession of Stephen A. Douglas’s widow.  (After the execution, Johnson observed that Mary Surratt had kept the nest that hatched the egg.)  So certain was the hangman that his victim would be spared that he put only five knots in her noose instead of the customary seven.

By the time that John Surratt was finally apprehended and brought back to the United States for trial in 1867, the sort of military tribunal that had condemned his mother had been declared illegal by the Supreme Court.  In the course of his civil trial, his mother’s chief accusers gave markedly different testimony than they had two years earlier.  Also, the perspective of time made much of the circumstantial evidence against Mrs. Surratt seem less damning than it had in the immediate aftermath of the Lincoln assassination.  It is an open question whether it was the nature of the military tribunal or merely the climate of public opinion that had sealed her fate.  Nevertheless, her son, who was far more intimately involved with Booth, was freed by a hung jury in a civilian court two years after his mother’s death.  John Surratt lived the balance of his life in obscurity, dying on April 21, 1916.  As the novelist David Robertson has pointed out, he lived long enough to see the depiction of Lincoln’s murder in The Birth of a Nation.  

We need shed no tears over George Atzerodt, David Herold, and Lewis Payne.  They probably got what they deserved, even if the means were irregular.  However, the fate of Mary Surratt demonstrates the dangers of using a military tribunal against civilian defendants.  Once such a practice has been accepted, we cannot be certain that only the obviously guilty will suffer.  To justify the suspension of civil liberties as a wartime necessity when no war has been declared puts us on the slippery slope to tyranny.  In 1984, George Orwell showed us how a perpetual state of war makes it easier to control the behavior of a nation’s own citizens.  That may be one of the reasons why the Constitution gives the power to declare war to the Congress.  Time and again over the last 60 years, Congress has abrogated that responsibility by approving protracted military operations without declaring war.  That has happened again in the so-called War on Terrorism.

Although those ignorant of history (mostly government spokesmen and cable-news anchors) would have us believe that  the nation has never before been threatened by terrorist organizations that do not represent a nation state, the Framers of the Constitution did envision a situation in which the vagueness of the enemy made a precise declaration of war impossible.  The concern at that time was piracy on the high seas.  (In fact, piracy is one of only three crimes specifically mentioned in the Constitution.)  When the early republic was threatened by piracy, we did not invade the native countries of suspected pirates or indiscriminately kill civilians in nations believed to be harboring them.  And we certainly did not institute military tribunals that could be used against our own citizens.  Rather, the Framers authorized the president to grant letters of marque and reprisal, which would target specific enemies and permit the use of private sources to effect their elimination.  Congressman Ron Paul has argued for just such an approach to the piracy represented by Osama bin Laden and his henchmen.

The use of military tribunals in the “War on Terrorism” has gained widespread national acceptance because public opinion was understandably inflamed by the atrocities committed on September 11, 2001.  We should, however, remember that the Constitution exists, at least in part, to put a brake on public passions.  Neither the legal lynching of Mary Surratt nor the imposition of military justice against the actual accomplices in Lincoln’s murder was necessary to preserve the nation.  If anything, our existence as a republic was harmed both by this precedent and by the earlier abuses of the Great Emancipator himself.  How fitting that the legacy of Lincoln is being cited to justify the current regime’s end run around the Constitution.